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Full text of "South African legal dictionary : containing most of the English, Latin and Dutch terms, phrases and maxims used in Roman-Dutch and South African legal practice ; together with definitions occurring in the statutes of the South African colonies"

WO 




(Jorn^U IGatu irljool Slibtarg 



CORNELL 



UNIVERSITY LIBRfRY | 






3 1924 080 340^3 






t—j jf<: t 

1'?- N..;,- ^^f 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924080340353 



SOUTH AFRICAN 

LEGAL DICTIONARY. 



SOUTH AFRICAN 
LEGAL DICTIONARY, 

CONTAI^lING MOST OF THE ENGLISH, LATIN AND 

DUTCH TERMS, PHRASES AND MAXIMS USED 

IN ROMAN-DUTCH LAW AND SOUTH 

AFRICAN LE(UL PRACTICE, 

TOGETHER WITH 

DEFINITIONS OCCURRING IN THE STA'l'UTES OF THE 
S<JUTH AFRICAN COLONIES. 



>* 



0/ 



W. H. SOMERSET BELL, 

ATTOKNICY OF THE SUHRliME COURTS OP' THE TRANSVAAL AND 
OAPK COLONY. 



AFRICAN BOOK COMPANY, LIMITED, 

GRAHAM.STOAVN, CAPE COLONY. 
1910. 



f3 //c cf, 

AFRICAN BOOK COMPANY, LTD., 

GBAHAMSTOWN, 

CAPE or GOOD HOPE, 

PEINTEES. 



PHEFACE. 




It is with some diffidence that I venture to place 
this work before the public ; but for many years 
I have been convinced that a dictionary of South 
African legal terms and phrases was much needed. 
When a student I frequently found myself hopelessly 
at sea in my reading for want of some book in which 
I could find a definitionAof regal "Expressions of which 
I did not know and could not ascertain the meaning. 
A reference to legal dictionaries published in England, 
though of much benefit, did not help me in any way 
in regard to our Roman- Dutch legal terms. I have 
since very often observed the same difficulty existing 
with other students and lawyers. A little more than 
three years ago I commenced this book, and have since 
devoted most of my spare time to its compilation, in 
the hope that it may supply the want above referred 
to. As the M'ork proceeded it occurred to me that 
its value might be enhanced by the addition of defini- 
tions occurring in the statutes of the South African 
colonies, and this I have done. Some of them may 
be unin)portant, but I think it can be claimed that 
they are fairly complete. 

In many instances I have taken over definitions 



vi PREFACE. 

from text-book writers in preference to framing a de- 
finition of my own, for obviously the definition of a 
specialist will be found more accurate than any I could 
frame. In such case, where definitions are taken over 
they are printed within inverted commas and the 
reference is given. I desire to express my indebted- 
ness to the authors of the text-books quoted, and 
especially to Sir Audries Maasdorp, whose work, the 
hisdtiitcif of Cape Law, has been most helpful. Should 
the student desire to pursue any subject further, he 
cannot do better than refer to the text-books cited. 

Such words and phrases as have received judi- 
cial interpretation in South Africa have also been 
inserted. 

Pr(jbably the most laborious part of the work has 
been the finding of the words and phrases ; this has 
necessitated reading nearly all the South African re- 
ports, statutes and text-books, besides a number of 
those published in England. 

I am grateful to Mr. Justice J. G. Kotze, Judge- 
President of the Eastern Districts' Court, who has 
checked the Dutch words, many of which he has sug- 
gested and some of which he has written. He has 
also very kindly read over the whole of the proofs of 
this book. It is partly due to his encouragement that 
the Dictionary has been completed. 

I avail myself, too, of this opportunity to thank 
Mr. W. Boyd Berry, LL.B., of Johannesburg, who 
has given jne great assistance. He has written the 



PREFACE. vii 

larger portion of the Latin words and phrases, besides 
reading and checking proofs. Dr. P. C. Anders, LL.D., 
has also contributed a number of Latin words and 
phrases, and to him likewise I desire to record my 
gratitude. 

W. H. S. BELL. 

JOHANNKSIlUEi:, MniJ, 1910. 



TABLE OF CASES. 



Aaron v. Johaniiesbui'g ISTunicipalitv 

Abbott V. Macfie ... 

Abnei' Major c. John Makettra 

Abraham '•. Adams 

Abrams r. Abrams 

Abt and Wife, Be 

Aburrow r. Wallis 

Acutt c. Bennett 

Adams v. Adams ... 

African Agricultural and Finance Coi'poration c. Bouguenon 

African Life Assurance Co. r. South African Mutual Life Assurance 

Society 
African Realtj^ Trust Co. p. Goodwin & Wilson 
Alcock i\ Du Preez 
Alexander '«. Burger 
Alexander ik De Yilliers 
Alexander v. Perry 
Alexander )■. Pfau 
Alheit's Case 
Allnatt & Bhoiie i\ Piper 

Auiar Chunder Kundu /'. Soshi Busliaii Roy and Others 
Anderson & Murison ■;;. Colonial Government 
Andrew r. Moorhouse 
Anson v. Rex 
Armstrong ?'. Armstrong 
Arnot V. United African Land Co. 
Asbestos Co.'s Trustees v. Hirscli and Others — Hirsch and Others 

y. Trustees of Asbestos Co. 
Ashbury it Co. v. Riche 
Aspeling, Executor of Low, 1'. Waldpot ... 
Atkinson, Ex jjarle 
Attorne^'-General v. Anderson 

Attornej'-General v. Trustees of the British Museum 
Auret ?'. Kernick 
Austin V. Morrall and Others 
Baerselman v. Bailey and Others 
Bal ('. Van Staden 
Barkhuysen t'. Van Huysten ... 



PAGK 

575 
89 
219 
413 
575 
435 
211 
291 
574 
554 

500 

486 

66, 278 

321 

469 

94 

115 

21 

218 

354 

291, 510 
239 

438, 444 
116 
124 

474 
363 
213 
235 
220 
570 
388 
448 
401 
400 
19 



TABLE OF CASES. 



Barnard ;;. Colonial Government 

Barnard ii. Rex ... 

Bai-ratt v. Executors of O'l^eil 

Barrett i: New Oceana Transvaal Coal Co., Ltd. 

Barrington and Others p. Colonial Government 

Bateman (Baroness) and Parke)''s Contract, Ee 

Bathgate's Case ... 

Bauni !'. Rode 

Beattie v. Pennell 

Beaufort West Municipality v. Wernich ... 

Bebru i/. Rex 

Beck's Insol\ciit Estate, In n' 

Beedle &, Co. in liquidation v. Bowley 

Bell V. Bell 

Bell y. Bell's Trustee 

Beilingham and Another v. Blooranietje ... 

Bennett ». ^Morris 

licnnett it Green and Bank of Africa, Ltd., In re 

Bennett and Tatham v. Koovarjee and Kasaw 

Bensley y. Clear ... 

Berg] & Co. V. Ti'ott Bros. 

Bernstein y. Bernstein 

Bernstein v. Rex ... 

Berriman Syndicate v. Simpson 

Best, Iv. rp 

Bestandig w. Bestandig 

Beyers v. Mc-Kenzie 

Bezuidenhout r. Transvaal Government ... 

Biccard's Trustee r. Visagie ... 

Binda r. Simpkins 

Black n. Black's Executors 

Blackburn ?;. Mitchell 

Blaine & Co. v. Moller 

Blake 1'. Goldman and Others... 

Blanckenberg v. Colonial Government 

Blanks 0. Philip ... 

Blignaut v. De Villiers 

Blomson n. Boshoff 

Blue Sky G. M. Co., Ltd., v. .Marshall 

Board of Executors v. Stigling 

Bonamour v. Dunne 

Booysen, Re 

Booysen v. Colonial Orphan Chamber and Others 

Booysen and Another v. Colonial Orphan Chamber 

Borland's Trustee v. Steel Bros it Co., Ltd. 

Borradailes it Co. v. Maynier 



130. 



1374 

+, 477 

191, 408 

3.30 

140 

158 

116 

297 

23 

166, 257 

411 

476, 497 

132, 297 

164, 429 

273, 433 

39, 594 

294 

217 

116 

5 

129 

243 

419 

26, 340 

235 

.591 

537 

192 

38 
196 
249 
49.S 
393 

S4 

35 
232 
109 
591 
133 

70 
592 
327 
524 

23 



39c 



TABLE OF CASE8, 



BuKcli r. Kex 
Boscli r. Titley ... 
Bo^ss V. W'liyte 
Botha, Ex parte. J. J. 
Botlia fi. Bi'ink 
Bowhay v. Ward ... 
Bowie, Re 
Bowlfs c. Stott ... 

Bowling V. Kiiigwilliamstowii Borough Council 

Boyd r. Re.v 

Brady r. S. .-X. Turf Club 

Brain well -. Spiller 

Braiide r. Verdoe's Executors... 

Breda r. Silberbauer 

Breda's Executoi.s and Another v. Mills ... 

Brest and Ladon v. Heydenrych 

Brice r. Zurcher ... 

Biick and Potteries Co. r. Registrar of Deeds 

Brink v. Esterhuyzen 

Brink r. Nederduitsche Gerefonneerde Kerk in de Transvaal 

Brink /'. Van der Byl 

Brink, iV.O., v. High Sheriff and Others .. 

Brink, K.O., v. Norden 

Brink's Trustees r. Mechau and Others ... 

Briscoe k Co. v. Powell k Co. 

British Wagon Co. r. Graj' 

Bi-itten v. Great Northern Railway Co. ... 

Bronkhorst .'. Aberfeldv Diamond Developing Co., Ltd. 

Brough r. Rex 

Brown ('. Brown ... 

Brown r, Leyd.s, N.O. 

Brown r. Rex 

Brown r. Rickard 

Brown ('. Simon ... 

Brown it Co. w. Letchfoi'd 

Brown's Assignee-!'. Pote 

Bruner <. Moore ... 

Brunette ('. Stanford 

Buck i'. Palmer ... 

Buck 1'. Parker ... 

Bulawayo Municipality n. Bulawayo Waterworks Co., Tjtd. 

Bultfontein Mining Board v. Armstrong and Another 

Burger /'. Cape Central Railway Co, 

Burke, E. k J., Ltd., v. Standard Bank, Ltd. 

Burnett and Taylor v. De Beers Consolidated Mines, Ltd. 

Burrough.s ife Watts, Ltd., v. Campbell 



315, 31 ; 



■254, 498, 



I'AGE 

115, 224 
200 
502 
587 

39, 589 
128 
496 
499 
10 
lOO 
564 
171 
398 
207 

92, 519 

47, 198 

472, 527 

109 

431 

449 

187 

169, 444 

151 

190 

52 

455 

412 

321 

125 

499 

556 

182 

225 

424 

411 

81 

373 

107 

10 

497 

20, 247 
496 
553 
100 
95 
291 



xii TABLE OF CASES. 

PAGE 

Burton u Rhodes and Hill ... ... ...203,585 

Burton and Blinkhorn, iiJe ... ... •■ 524 

Butcher A Sons r. Baranov Bros. ... ... ... -Ill 

Buxton u. Barfield ... ... ... ■• 357 

Bydien «. Samao's Estate ... ... ... ... 237 

Cachet, /?t r« ... ... ... .. .. 352,586 

Cairnoross and Another y. Fagan and Another ... ... 124 

Caldecott and Others v. Botha's Reef G. M. Co. ... ... 109 

Caledonia Landing S. and S. Co., Ltd., and Another v. . East 

London Harbour Board ... ... ... ... 304 

■Cambrian Collieries, Ltd., w. Smitli & Ramsay ... ... 228 

Cammell t). Sewell ... ... ... ... 372 

■Campbell ,.. Ord ... ... ... ... ... 89 

Canavan and Rivas v. New Transvaal Gold Farms, Ltd. ... 267 

■Cape Central Railway Co. v. The Government ... ... 563 

Cape of Good Hope Bank v. Fischer ... ... ... 484 

■Cape of Good Hope Bank v. iNlelle ... ... ... 430 

Cape of Good Hope Bank in liquidation v. Knight and Others ... 143 

Cape of Good Hope Bank Permanent Building Society, In n^ ... 81 

Cape of Good Hope Savings Bank, He Petition of ... ... 547 

Capetown and District Waterworks Co., Ltd., v. Elder's Executors 185 

Capetown Club, i?« ... ... ... ... 91 

Capetown Town Council f. Kaiser ... ... ... 396 

Capetown Town Council v. Linder ... ... ... 340 

Capetown Town Council r. Royal Hotel (1906), Ltd. ... ... 404 

Capetown Town Council r. Shenker ... ... ... 386 

Carlill ?;. Carbolic Smoke Ball Co. ... ... ... 452 

Carlis i>. Hay ... ... ... ... ... 149 

Cass' Will, 7ie ... ... ... ... ... l'52 

Castrique -v. Imrie ... ... ... ... ;)72 

Central South African Railways v. Adlington & Co. ... ... 405 

Central South African Railways v. Geldenhuis Main Reef G. ]M. Co., 

Ltd. ... ... ... ... ... yo, 371 

Central South African Railways v. McLaren ... ... 175 

Chaddock iie ... ... ... ... ... 166 

Chad wick and Miller, /n 9-« ... ... ... ... 531 

Channes v. Pezze}' ... ... ... ... 20 

Chase. XO., r. Du Toit's Trustees ... ... ... 229 

Chatwin r. C.S.A.R. ... ... ... ... -tVl 

Chiappini tV Co. 1'. JaffVay's Trustees ... ... ... 221 

Chi.sm, lie ... ... ... ... ... 451 

Chi" ell v. Carlyon and Others ... ... ... :]ft, 

Cholwich V. Penny ... ... ... ... 431 

Christie v. Etheridge ... ... ... . . 17 

Christie r. Kinnear ... ... ... 23 

Citv Bank c. Barrow ... ... ... ... 372 



TABLE OF CASES. xiii 

PAGB 

City of Wellington i\ Borough of Lower Hutt ... ... 25 

Clan Line of Steamers v. Alcock & Co. . . . ... ... 42, 70 

Claremont Municipality ». Colonial Government ... ... 477 

Claremont Sanatorium ('. Claremont Municipality ... ... 265 

Clark ■y Chambers ... ... ... ... 89 

Clarke /• Bruning ... ... ... ... 277 448 

Clarke p. Executors of Castray and Beale... ... 190 

Clay V. Rex ... ... ... ... . .5ig 

Clayton, T.O., i\ Metropolitan and Suburban Railway Co. and 

Walker ... ... ... ... ,5(38 

Cleaver v. Bacon ... ... ... ... ... 84 

Clegg V. Rex ... ... ... ... ... .548 

Cloete, Ex parte ... ... ... ... ... 435 

Cloete V. Cloete's Trustees ... ... ... . . 73 

Clyde Engineering and Shipbuilding Co. v. Castaneda and Others 340 

Cock 7'. Cape of Good Hope Marine Assurance Co. ... ... 123, 561 

Coetzee i<. Tiran ... ... ... ... ... .58 

Coetzee r. Wentzell ... ... ... ... 291 

Cohen v. Shires, M cHattie and King ... ... ... 385 

Coleby-Clarke r\ Coleby-Clarke ... ... ... 1 60 

Collector of Customs v. Cape Central Railways, Ltd. ... ... 208 

Collector of Customs v. De Beers Consolidated ]Mines, Ltd. ... 121, 368 

Collector of Cu.stoms <-. Wolff & Elias ... ... ... 566 

Collins y. Hugo and the Standard Bank ... ... ... 205,229 

Collison, Ltd., v. Castle Wine and Brandy Co. ... ... 573 

Colonial Government y. Bank of Africa ... ... ... 103 

Colonial Government v. Capetown Town Council ... 36, 233, 601 

Colonial Government v. Dundee Coal Co. ... ... 226 

Colonial Government v. National Life Assurance Society ... 91 

Colonial Government y. Smith ife Co. ... ... ... 433 

Colonial Government v. Speuce & Drury ... ... ... 566 

Colonial Goveinnient v. Standard Bank ... ... 103, 327, 488 

Colonial Government ii. Stephan Bros. ... ... 463, 464, 480 

Colonial Secretary i'. G rice ... ... ... ... 79 

Colonial Treasurer c African Agricultural and Finance Corporation 401 

Colonial Treasurer ('. Great Eastern Collieries, Ltd. ... ... 401 

Colonial Treasurer 0. Band Watei- Board ... ... 567 

Combrinck 7;. De Kock ... .. ... ... 499 

Commissioner of Mines v. Solomon and Others ... ... 355, 479 

Commissioner of Public Works c. Hills ... ... ... 20 

Concessions Trust, In rr' ... ... ... ... 97 

Con rad i f t). Gray ... , ■■• .-■ ••• •■• 403 

Cook 0. Aldred ... ... ... ... ... 472 

Coomans (i. Nelson ... ... ... ... 43 

Cooper V. Jordan ... ... ... ... ... 26 

Coote V. Ford ... ... ... ... ... 417 



TABLE OF CASES. 



Corbridge v. Welcli 
Coney's Estate, Be 
Cory's Case 

Couper and Others r. The State 

Coventry r. London, Brighton and South Coast Railway Co. 
Craig i\ Tatham, Lyon and Thorrold 
Crause r. Ryersbaoh 

Crego V. Bezuidenhout and Lark Syndicate 
Crichton's Oil Co., ^e 

Crosbie v. Crosbie's Executors and Another 
Crowe ?'. Rex 
Crowley v. Donionv 
Cumniing r. Brown 
Curtis V. Johannesburg Municipality 
-Uada Gia r'. Rex ... 

Dalby v. India and London Life Assurance Co. 
1 )avey-Paxnian it Co. v. Langlaagte Star G. M. Co 
Davids ». Mendelsohn 
Da vies r. Rex 

Da\ is V. Board of Works for Greenwich Dist. 
Davis ■?'. Prinsloo's Executors... 
Davison's Estate v. Auret 
Day p. Cloete 
De Beer v. Rose ... 

De Beers Consolidated Mines !'. Collector of Customs... 
De Beers Consolidated Mines v. Kimberley Waterworks Co. 
De Beers Consolidated Mines, Ltd., v. London and South African 
Exploration Co. ... ... 30,274,312 

De Beers Mines v. McCarthy... 

De Beers Mining Co. c. Colonial Government 

L'e Bruyn 

] le Klerk 

De Klerk 

1 )e Kock I 

De Kock !■ 



Danvers it Co.'s Assignees 



Kiehaus 

Zeeinan 

Resident Magistrate of Caledon 

Van de A\ aal's Executors 

De Pass v. Colonial Government and Others 

De Pa.ss A Co. c. Rawson 

De Villiers >■. Cape Divisional Council 

De Villiers V. Viljoen 

De Visser i'. Fitzpatrick 

De Vos and Others v. Rex 

De Wet ■«. Cloete 

De Wet V. Hiscock 

De Wet's Trustees v. Krynauw & Co. 

Dely & De Kock v. Civil Commissioner . . . 

Denyssen v. Mostert 





6 




113 




511 




448 




25 




109 




535 




561 




550 




238 




234 




300 




177 




.501 




99 




338 




340 




594 


... 3.5, 


101 




386 




388 


... 41, 


411 




564 


... 502 


547 




350 




.396 


an 
i3, 433 


562 




496 




416 




204 




45 




579 




476 




189 




145 




162 


• ) 


206 




290 


... 245 


398 




346 




188 


... 230, 


231 




401 


32, .54, 


425 



TABLE OF CASES. 

Deputy-Sheriff of Pretoria v. Heyiuann 

Derkson v. Wrensch 

Deschamp v. Van Onselin 

Deyi v. Mbwzikazi and Another 

Diamond !•. Gill ... 

Dickson v. Pretoria Municipal Council 

Dickson v. Stagg ... 

Dickson &, Co. v. Levy 

Dietz^;. Pohl ... ... ... ^ .. 

Dipstaple's Case ... 

Distributing Cold Storage Syndicate v. Imperial Cold Storage Co. 

Divisional Council of Aliwal North v. De Wet 

Divisional Council of Riversdale v. Pienaar 

Dold & Stone i\ Wilson 

Donaldson v. B. S. A. Asphalte and Manufacturing Co. 

Donian v. Kingwilliamstown Borough Council 

Donoghue and Others v. Executor of Van der Merwe... 

Donovan •«. Turffontein Estate Co. 

Doornback v. Hof meyr 

Doran v. Doran ... 

Doi'mer, In re . . . 

Douglas V. Baynes 

Doxey, Ex parte ... 

Drew V. Rex 

Dreyer v. Ireland 

Drumraond v. Searle 

Drysdale v. "Union Fire Insurance Co. 

Du Plooy, Eo; parte 

Du Plooy's Trustee v. Plewman 

Du Prez v. Rose ... 

Du Toit and Others v. Domingo 

Du Toit's Estate, ^e 

Dugmore, Re Estate 

Duke of Leeds v. Earl of Amherst 

Duncker v. Paddon ife Brock, Ltd. 

Dutch Reformed Church v. Town Council of Capetown 

Duyall V. Riches ... 

Dyason V. Ruthven 

Dyke v. De Villiers 

E. k J. Burke, Ltd., ". Standard Bank, Ltd. 

Eaglftson v. Argus Printing and Publishing Co. 

East London Municipality v. Colonial Government ... 

Eastern and S. A. Telegraph Co. v. Capetown Tramways 

Eastwood V. Shepstone 

Ebden's Will, i?e 

Edmondson v. Edmondson 





P.4.GK 


... 271, 


375 




391 




333 




200 




]](l 




22 




411 




237 




4t.2 




287 


ige Co. 


21 




127 




455 


... 


104 




449 




45 


... 296, 


488 


... 109, 


227 




16t 




435 




139 


... 177, 


4.".(; 




43.-.. 




546 




206 




509 




509 




449 


... 40L 


, 438 




2 1 3 




270' 




92 




219 




10 




«■ 




■*S2 


... 357^ 


, 516 


... 294 


,582 




38.3 




100 




89 




496 


162, 279, 325 


, 401 




462 




324 




5T 




h 



TABLE OF CASES. 



Edwards^. Hyde 

Edwards v. Rex ... 

Ehrig &, Weyer v. Transatlantic Fire Insurance Co, 

Einwald v. German West African Co. 

Eksteen v. Eksteen's Executors 

Elliott V. McKillop 

Elliott >: Taylor ... 

Elliott's Trustees v. Elliott and Another . . . 

Ellis V Morgan; Ellis v. Dessai 

Emslie v. African Merchants, Ltd. 

Engelbrecht 7;. Roos 

Euslin u. Truter ... 

Erasmus v. De Wet 

Erasmus v. Erasmus' Guardians and Executors 

Erskine ». Adeane 

Esdaile v. La JSTauze 

Essop and Others v. Rex 

Ewers v. K. M. of Oudtshoorn 

Farquharson v. Morgan 

Faure v. Colonial Secretary ... 

Faure v. Louw 

Faure, Neethling & Co. v. Beyers 

Federal Supply and Cold Storage Co. v. Schultze & Fly 

Federal Timber Co. v. Celliers 

Fein and Cohen v. Colonial Government . . . 

Fenn v. Miller 

Ferguson v. Earl of Kinnoul ... 

Ferguson v. Merensky 

Ferguson and Huckell v. Langermann and Lorentz 

Fernandez, Jie 

Fick V. Bierman ... 

Fick V. De Klerk ... 

Field & Co. v. Marks & Co. ... 

Finchley Electric Light Co., Ltd., v. Finchley Urban 

Council 
Finlason v. The State 
Fischer v. Liquidators of Union Bank 
Fitzpatrick v. Dawes 
Fleming ■!;. Liesbeck Municipality 
Foster v. Underwood 
Fourie and Others, Jie 
Fowlie V. Rex ... ... ... 1 

Foxcroft V. Meiring 
Francis, £x parte ... 
Francis v. Savage & Hill 
J?raugopuIo & Co. v. Lomas it Co. 



District 



91, 195, 293, 



PAGE 

288 
599 
411 
19, 2.3 
574 
48 
553 

189, 190 
455 
276 
482 
463 
207 

110, 496 
96 
587 
346 
391 
455 
297 

421,512 
478 
283 
517 
139 
6 
353 
228 
215 
166 

150, 278 
492 
128 



541 

290 

1, 67, 215 

10, 388 

169 

455 

457 

354, 546 

278 

101 

143, 246, 531 
5 



TABLE OP CASES. 

Fraser v. Prauk Johnson ife Co. 
Frasei' ■«. Sievewriglit 

Freeman v. Standard Bank of South Africa, Ltd. 
French v. Hill's Plymouth Co. and Others 
Fricker, ^a; parte. . . 
Friedman and Sonn v. The State 
Friis V. British United Diamond Mining Co. 
Frische «. Modderfontein G. M. Co. and Another 
Fryer v. King 
Fulton r.. Nunn ... 
Fyne v. African Realty Trust, Ltd. 
■Galliers and Others ?). Rycroft 
Gardner v. Grace ... 
<3arlicke & Holdcrof t -y. Currie 
■Gauf V. Modderfontein 6. M. Co. and Another 
General Auction, Ac, Co. v. Smith 
Gerandeau v. Rex 

Gertenbach & Bellew v. Mosenthal and Others 
<Jiiford V. Table Bay Dock and Breakwater Management Com- 
mission 
Gillingham v. Transvaalsche Koelkamers, Beperkt 
Gipps ?;. Gipps and Hume 
■GledhiU, ife 
•Gleeson -y. Durrheim 

Glenn Bros. v. Commercial General Agency 
Gobeyana v. Maranna 
■Goldmann and Others ■«. Rex... 
•Gordon v. Berliner 
•Gott V. Gandy 
Gous V. De Kock ... ... .... 

<jovu '.'. Stuart 

iGraaff-Reinet Board of Executors v. Maasdorp 

•Grabie v. Pretoria Municipal Council 

Graham ?j. Viljoen 

■Grand Hotel and Theatre Co., Ltd., in liquidation, Ji!x parte 

Grant v. Secretary of State for India 

Grassmann v. Hoffman 

Great Western Railway Co. v. Carpalla United China Clay Co. ... 

-Great We.stern Railway Co. d. London and County Bank 

Greef , Sx parte ... ... ... ... "... 

•Green v. Britten and Another 

■Green v. Griffiths ... ... . . . , 

Green and Sea Point Municipality v. Egnal & Co. 
Green's Estate v. S. A. Mutual Insurance Society 
Grill «. General Iron Screw Collier Co. ... 

■Grobbelaar v. Cockcrof t 





PASE 




152 




272 




100 


333, 


, 337 




435 




398 




275 




588 




482 




480 




353 




526 




89 


5, 


501 




588 




75 




319 




171 


49a 


,535 


54.5, 


,546 




132 




166 




31 




255 




575 


110, 


428 




281 




96 


236, 


499 


269, 


577 


56, 


514 




417 


224, 


509 




.381 




24 




381 




367 


160, 


390 


81, 


554 




601 




542 




565 




401 




254 




246 


h 


1 O 



TABLE OF CASES. 



Giobbelaar /•. Van Heerden ... 

Grossman v. Lewis 

Grundling v. Grundling 

Guardian Insurance and Trust Co. v. Lovemore's Executors 

Guinisberg ■». Scholtz 

Gundelfinger v. De Villiers 

Gunningham v. James 

Guttenberg v. Rex 

Haarhoff's Trustee v. Frieslich 

Hain & Son v. Elandslaagte Colliery Co., Ltd., and Young 

Hajaree v. Ismail ... 

Hall 1. Hall's Trustee 

Hall & Co. V. Kearns 

Hamburg v. Pickard 

Hampson v. Dixon 

Hanau and Others >'. Tlie State 

Hansen, lit rp 

Hansen, Schrader A: Co. v. Kopelowitz 

Hansen & Schrader ;;. Pauling 

Harcombe it Kylands i'. Tndelsohn's Trustee 

Harraan v. King.ston 

Harris r/. Buissinne's Trustee 

Harris v. Ruthven 

Harrow r. Marylebone District Co., Ltd. 

Hart r. Cohen 

Harwin's Estate i. Gates 

Hatch V. Hatch ... 

Havinga and Others v. Swart... 

Hawkes v. Hawkes 

Hawkins v. Munnik 

Hay )'. Goldsmidt 

Haynes v. King ... 

Hay ward v. Hay ward 

Heathcote v. Colonial Government 

Heatlie v. Colonial Government 

Hedges v. Bainbridge 

Hedley r. Celliers 

Heidelberg Municipality v. Vys 

Heinemann r. Barnes 

Henry i;. WHite ... 

Henwood it Co. v. Westlake and Coles 

Herold, In re ... .% 

Hess V. Tlic State 

Heydeiirycli v. Fourie 

He3'denry(;h v Saber and Others 

Hiddingh r. I)enyssen and Others 





PAGK 




422 




290 




340 




41 




32,« 




40» 




449 




529' 




32& 




237 




497 


... 2.3.5, 


447 




96 




24:> 




482 




46.5- 




420 




593 




501 




579 




399 


... 146, 


310 




12,^ 




26 




288 




243 




69 




340 


... 235 


574 




45 


... 


.587 




■J'y 




514 


... 476, 


477 


... 314, 


499 




420 


... 153 


397 




311 




38 




s 


... 29, 


278 


... 37, 


322 


2, 306, 


583 




430 




552 


26, 21.5, 


340 



TABLE OF CASES. xix 

PAGE 

Hiddingli, Mamiel's Trustee, ». Eaton ... ... ... 401 

Hiddingh's Heirs v. De Villieis, Deny.ssen and Others ... 340 

II illcrag, The, V. Beckett ... ... ... ... 423 

Hills y. Colonial Government ... ... ... 20 

Hilpert ;>. Castle Mail Packets Co. ... ... ... 471 

Hirsch -y. Gill ... ... ... ... ... 486 

Hirscli and Others v. Trustees of Asbestos Co. ... ... 474 

Hite's Executor i;. Jones ... ... ... ... 267,487 

Hoffmeister, Ee ... ... ... ... ... 166 

Hoi'meyer t). Gous ... ... ... ... 431 

Hollins V. Registrar of Deeds ... ... ... 203 

HoUins and Others ■«. Fowler and Othei'.s ... ... 144 

Holtshausen v. Minnaar ... ... ... ... 127" 

Hooper ■!;. Gunini .. . ... .. ... ... 372 

Hooper >■. Hooper ... ... ... ... 1 60 

Hooper i& Hansfield i;. Barker ... ... ... 497 

Horak v. Horak ... ... ... ... ... 542 

Horn p. Ijoedolff et Uxor ... ... ... ... 65 

Hornblow ■«. Fotheringham ... ... ... ... 19 

Hornby r. Lacy ... ... ... ... ... 171 

Home and Another v. Struben and Another ... ... 510 

Horwitch's Trustee «. Twentyman & Co. ... ... ... 401,590 

Hossack v. Lippert ... ... ... 432 

Houghting V. Lloyd ... ... ... ... 472 

Houghton Estate Co. ?;. McHattie and Barrat ... 472,527 

Houtpoort Mining and Estate Syndicate, Ltd., v. .lacobs ... 321 

Hovent v. Rex ... ... ... ... ... 404 

Howe ". Smith ... ... ... ... ... 197 

How,se & Co.'s Estate, i?e N. ... ... ... ... 449 

Howse, Sons & Co.'s Trustee v. Howse, Sons & Co.'s Trustees 125, 347, 449 

Hudson V. Hudson ... ... ... ... 235 

Hud.son f. Roberts ... ... ... ... 22 

Hughes (k Rogers c. White, Ryan cfe Co. ... ... ... 102 

Hugo and Moller v. Transvaal Ijoan, Finance and Mortgage Co. ... 98, 351 

Hulle.y ?;. Johannesburg Municipal Council ... ... 161 

Human r. Human's Executors ... ... ... 101 

Hume i^. Cradock Divisional Council ... ... ... 91 

Humphris Co., Ltd., v. Jacklin, Jenkinson & Co. ... ... 566 

Hunt f. Hoare ... ... ... ... ... 396 

Hunt r. Rousmaniere ... ... ... ... 150 

Ian and Others v. Ismael and Others ... ... ... 269 

Illing 1'. Lawford . . . ... ... ... ... 241 

Imperial Cold Storage and Supply Co., Ltd., v. Civil Commissioner 85 
Imperial Cold Storage Co., Ltd., v. Distributing Syndicate for Cold 

Storage ... ... ... ... ... 149 

Incorporated Diamond Mining Co. ». Gordon Mining Co. ... 373 



XX TABLE OF CASES. 

PAOK 

Incorporated Law Society v. Dagg ... ... ... 564' 

Ind, Coope & Co., Ltd., v. Hamblin ... ... ... .^5 

Tnglis t). Durban Navigation Collieries ... ... ... 226- 

Institute of Land Surveyors v. Douglas ... ... ... 426 

Irish Society -V. Bishop of Derry ... ... ... 460 

lr\ine& Co. t.. Berg ... ... ... ... 14,17 

Isherwood «. Oldknovv ... ... ... ... 11& 

Ismail Amod V. Pietersburg Municipality... ... ... 453- 

Ismail and Amod v. Lucas' Trustee ... ... ... 229 

Ismail and Others t). Rex ... ... ... 99,365,452,497 

Israelson's Insolvent Estate v. Harris & Black and Others ... 21 

Jackson I'. Smithson ... ... ... ... 22 

Jacobson V. Nitch ... ... ... 448,452,538 

Jacobson v. Norton ... ... ... ... 94 

James v. Liquidators of the Amsterdam Township ... ... 144 

James Humphris Co., Ltd., v. Jacklin, Jenkinson ife Co. ' ... 566^ 

James, James it Co. v. Vanderwagen ... ... ... 401 

Jameson's Minors x'. Central South African Railways ... 381 

Jamieson v. Rhind ... ... ... ... 235' 

Jansen, Bx parte ... ... ... ... 160 

Jenkins y. Durban Bay Lands Co., Ltd. ... ... ... 315 

Jervis v. Tompkinson ... ... ... ... 91 

Johannesburg Board of Executors and Trust Co., Ltd., r. Victoria 

Buildings Co., Ltd. ... ... ... ... 54lS 

Johannesburg Consolidated Investment Co. v. Johannesburg Town 

Council ... .... ... ... ... 501 

Johannesburg Municipality v. Klipriversberg Estate G. M. Co. ... 178 

John M'Tati ,.. Rex ... ... ... ..304,396 

Johnson 1). Johnson ... ... ... ... 109, 391 

Johnson u. Story ... ... ... ... ... 413 

Johnstone ^'. Byrne ife Lamport ... ... ... 351 

Jones r. Bo\'ce ... ... .. ... ... 155 

Jones I'. Capetown Town Council ... ... ... 590 

Jones i>. Rex ... ... ... ... ... 4:4:\ 

Jones and Another V. Goldschmidt *.. ... ... 407,533 

Jones's Case ... ... ... ... * ... 581 

Jooste f. Jooste's Executor ... ... ... ... 113 

J ooste f. Government of the S. A. R. ... ... ... 188,219 

J ordaan t;. Worcester Municipality ... ... ... 326,424 

Jordaan's Trustee ?'. Fletcher & Co. ... ... ... 401 

Joseph «. Halkett ... ... ... ... 47 

Joseph r. Joseph's Estate and Others ... ... ... HO 

Judes V. Registrar of Mining Rights, Krugersdorp ... ... 169 

Kaifrarian Colonial Bank v. Grahamstown Fire Insurance Co, ... 58 

Kannemeyer, lie ... ... ... ... ... 166 

Keats V. Keats and Montezuma ... ... ... 129' 



TABLE OF CASES. 



PAOF, 



Keet V. Dell ... ... ... ... ... 246 

Kent V. Transvaalsche Bank ... ... ... ... 205 

Kernick v. Fitzpatrick ... ... ... ... 71, 424 

Kerr v. Banti ... ... ... ... ... ] "i .5 

Kerr ^'. Rex ... ... ... 47,57,343,540,541,588 

Kidson I). Campbell and Jooste ... ... ... 448,452 

Kimberley Waterworks Co., Ltd., v. De Beers Consolidated 

Mines, Ltd. ... ... ... ... ... 25 

Kimberley Waterworks Co. v. Kimberley Town Council ... 226 

King V. Gray ... .. ... ... 533 

King, The r. Firling ... ... ... 152,234,293 

King, The, v. Jack Zulu ... ... ... ... :U3 

Kingston Cotton Co., Re ... ... ... ... 55 

Kirby, He ... ... ... ... 166 

Kirby v. Rex ... ... ... ... 528 

Kirchner ?;. Venus .. ... ... ... 239 

Kiseh, JExparte C.B..M. ... ... ... ... 587 

Klippoortje Estates and Tramway Co., Ltd., v. The Government ... 450 

Klopper v. Smit ... ... ... ... ... 225 

Knights Deep, Ltd., v. Colonial Treasurer ... ... 89, 1 49 

Knoop, 7n If ... ... ... ... ... 35 

Knowles v. Holden ... ... ... ... 155 

Koch, Be ... ... ... ... ... 114 

Koch V. Mair, A^.O. ... ... ... ... 278, 302 

Kohler and Others ^•. Baartman ... ,.. ... 28 

Kok, Ex parte ... ... ..: ... ... 101 

Koster v. Blake ... ... ... ... ... 452 

Kotze V. Civil Commissioner of Namaqualand ... ... 400 

Kotze ■!'. Kotze ... ... ... ... ... 542 

Kotze ?.;. Kotze's Trustees ... ... ... ... 164 

Kotze f. Ohlsson's Cape Breweries ... ... ... 471 

Krachmal's Trustees and Capetown Town Council ■!;. Epstein ... 243 

Kruger ». Van Vuuren's Executrix ... ... ... 121,340 

Kyte t'. McLeod . . . ... ... ... ... 469 

Ladysmith Corporation v. Cheeseman ... ... ... 110, 525 

Lalloo V. Rex ... ... ... ... ... 452 

Lambrechts ^'. Van der Byl ... ... ... ... 219 

Land Mortgage Bank of Florida, Ltd., In re ... ... 577 

Landman i\ Da verin ... ... ... ... 522 

Larige V. Scheepers ... ... ... ... 592 

Lange & Co. v. South African Fire and liife Assurance Co. ... 410 

Lange and Others v. Liesching and Others ... ... 210, 592 

Langford v. Moore and Others ... ... 75, 82, 174, 482 

Laubscher ;i. Reeve and Others ... ... ... 519, 522 

La wes & Co. i). Pietermaritzburg Corporation ... ... 86 

Lawr«9nce and Others r. Executors of Lawrence . . . 579, 588, 608 



xxii TABLE OF CASES. 

PAGB 

Lay V. Midland Railway Co. ... ... ... ... 89 

Lazarus v. Dose ... ... ... ... ... 3"" 

Le Roux, .ffie ... ... ... ... •-■ 53 

Le Roux V. Fick ... ... ... ... ... 526 

Lea's Hotel Co., /m »•«; Salter 71. Lea's Hotel Co. ... ... 454 

Leal & Co. ■«. Williams ... ... ... .. 144,591 

Leedham, Re ... ... ... ... ■■■ 447 

Ijeeds Estate Building and Investment Co. v. Shepherd . . . 55 

Leigh and MacDonald v. Rex ... ... ■■■ 586 

Leniue v. Zwartbooi ... ... ... ... 12, 387 

Leslie's Trustee I'. Leslie ... ... ... •.- 449 

Lessing v. Rex ... ... ... ... ... 39 

Letheby & Christopher, Ltd., /?« ye ... ... ... 581 

Levey v. Bayes ... ... ... ... ... 516 

Levi, Re ... ... ... ... ... 435 

Levy V. Rex ... ... ... ... .. 569 

Levy r. Rose ... ... ... ... ... 116 

Lewis and Lensen v. Rex ... ... ... ... 400 

Lewis and Salisbury Gold Mining Co. ... ... 1 18, 156, 471 

Lewis Bros. (I. East London Municipality... ... ... 223 

1-eyds, &: parte .. ... ... ... ... 424 

Leyland and Taylor's Contract, In re ... ... ... 398 

Lezard v. The Queen ... ... ... ... 259 

Li Kui Yu i\ Superintendent of Labourers ... ... 139 

License and Stamp Act, In re ... ... ... 359 

Liebraan r. Re.x ... ... ... ... ... 579 

Lighter A: Co. v. Edwards ... ... ... ... 137 

Lind V. Gibbs and Cooper ... ... ... ... 28 

Link's Trustee, .£'« parte ... ... ... ... 449 

Linley ' . Linley ... ... ... ... ... 575 

Lipperty. Parkin... ... ... .. .., 274 

Lippert k Co. v. Van Rensburg ... ... ... 65 

Lipton 11. Buchanan ... ... ... ... 94 

Little c. Rothman ... ... ... ... 249 

Lloyd ('. General Iron Screw Collier Co. ... ... S 

Lloyd 1'. Gates ... ... ... ... ... .503 

Lloyd V Spence ... ... ... ... ... 3.58 

Logan u Beit ... ... ... 127,133,157,314,499 

Logan it Co. v. Colonial Government ... ... ... 96 

Lok Jan «. Rex ... ... ... ... ... 235 

London and General Bank, Re ... ... ... .55 

London and Northern Bank, Ltd., MoConnell's case ... ... 5 

London and South African Exploration Co. v. Bulfontein Mining 

Board and Another ... ... ... ... 404,518 

London and South African Exploration Co. v. De Beers Consoli- 
dated Mines .. . ... ... ... ... 178 



TABLE OF CASES. xxiii 

JMtJK 

J.oridoii and South Afi-ican Exploration Co. v. Kimbevley Town 

Council ... ... ... ... ... 169 

London and South African Exploration Co. v. Rouliot ... 548 

London and South Western Railway Co. t>. Blackmoor ... 25 

Loots ». Van Wyk ... ... ... ... 5-35 

Loteryman & Co. i;. Cowie ... ... ... ... 248,500 

Louisa v. Van den Berg ... ... ... ... 94 

Louw V. Alining Commissioner of Johannesburg ... ... 450 

Low v. Oberholzer ... ... ... ... 94 

Lucas V. Reston ... ... ... ... ... 277 

Ludolph and Others v. Wegner and Others ... ... 12, 562 

Lumsden -u. Kaffrarian Bank .. ... ■•• 281,421 

MaoHattie v. Filmer ... ... ... ■■. 3-33 

Macintosh v. Pretoria School Board ... ... 115 

Mackayy. Philip... ... ... ... ... 39, 589 

Mackay Bros. i'. Cohen ... ... ... ... 300 

MacMaster's Trustees D. Executor of Kruger ... ... 151 

Macro w y. Great Western Railway Co. ... ... •■■ 1^12 

Mahadi t.. De Kock ... ... ... ... 513 

Mahludi I'. Rex ... ... ... ... ■■• 538 

Mahomed t). Sahib ... ... ... ■•■ 540 

Malagasi, Ex parte ... ... ... ••• 514 

Alalan and Van der Merwe v. Secretan, Boon & Co. ... ... 94 

Malcolm V. Commissioner of Railways ... ... • ■ ■ 24 

Manchester Ship Canal Co. v. Mauche.ster Race Course Co. ... 228 

Mangan v. Atterton ... ... ■-. ■•• *'•' 

Mangold Bros. v. Eskell 

Mann ■;. Booker . . . 

Marais v. The State 

Marbury v. Madison 

Marcus' Executor i;. Mackie, Dunn ife Co.... ... ■•■ 278 

Marico Board of Executors y. Auret ... •■• ■•• 514 

Mashia Ebrahim v. Mahomed Essop ... ... ■•• 353, 360 

Mason (). Bernstein ... ... .■■ ■•■ 381 

Mason V. Mason ... ... . ■ . • • • '" * 

Mason & Co. y. Booth ... ... .•■ •■• 66 

Master of the Supreme Court, A".- j-jcirte ... ... 147,271,283 

Master of the Supreme Court r. Berrange ... •■■ 254 

Master of the Supreme Court v. Maclean's Executrix ... ... 208 

Maswana iJ. Rex... ... ... •■• •■• 5oo 

Matabele Syndicate v. Lippert and Others ... ■• • 5/4 

May V. Burdett ... 

McCalgan, Be 

McCubbin ii. Knox 

McDonald &■ Co. v. Gordon ik Co. 

McGrath ". South British Insurance Co- 



246 
349 

477 
557 



447 

166 

482 

58 



xxiv TABLE OF CASES. 

Mcll waine, Ex parte 

Mclnty re ('. Johnston 

Mclntyre v. Rex 

McKillop V. Zuckerman 

McLeod V. Benjamin 

McLeod it Co., In re 

McLeod ck Co. r. Dunell, Ebden ik Co. ... 

Meats ,'. Pretoria Estate and Market Co. 

Mears n. Rissik and Others ... 

Medallie it Scliiff y. Roux 

Meiring, In re ... 

Melass'.s Estate ... 

Melck V. Da^id and Others 

Merriraan v. Williams 

Merrington v. Davidson and Others 

Meyer v. Botha and Hergenroder 

Meyer v. Estate Meyer 

Meyer v. Johannesburg Waterworks Co. ... 

Meyer's Estate, Re 

Meyer's Executor D. Meyer ... 

Meyer'.s Executors v. Gerricke 

Meyersohn v. Schmid t 

Miohaelis v. Braun 

Michaelis v. ^^'eston k Co. 

Michau's Case 

Middelvlei Syndicate ■y. Tucker 

Midland Railway Co. v. Haunchwood Brick and Tile Co. 

Miles V. Jagger k Co. 

Mills ct Sons V. Benjamin's Trustees 

Milne i;. Leisler ... 

Milnerton Estates, Ltd., v. Colonial Government 

Ming Soo and Others v. Rex ... 

Minitzer ^'. Kriel . . . 

Misnum i\ Rex 

Mission Trading Co. v. Hessel 

Mitchell ('. Hill ... 

Mitcliell 1). Mitchell 

Mocke ('. Fourie ... 

Momsen v. Mostert 

Moolchand r. Rex 

Moolman, Ex parte 

Moore's Executrix v. Le Sueur 

Morris v. Cleasby 

Mosenthal & Co. v. Hellman ... 

Moss V. Sissons and McKenzie 

Mostert v. Mostert 





PAGE 




264 




30 




69 




592 




23 




95- 




499 




533 




291 




175^ 




444 




158- 


... 19L 


, 487 




208 




314 




246 




113 


207, 230, 


, 231 




101 




582- 


16, 195, 


342 




135 




589 




295 




21 




296 




367 




516 




137 




491 


... 


510 




349 




535 




52 




162 




566 


1, 


160 




77 




33 


... 152, 


237 


... 352, 


587 




431 




171 




547 


... 2, 


277 




353^ 



TABLE OF CASES. 

Mshwakezele V. Gudusa 

Mtembu v. Webster 

Muller r. Chad wick <fe Co. 

Muller V. Crawley 

Muller (>. Hobbs ... 

Muller V. Meyer ... ... ... ... 

Muller Bros. v. Kemp and Others 

Municipality of Frenohhoek V. Hugo 

Municipality of Swellendam v. Surveyor-General 

Mutery's Will, & 

Myhurgh, Ex partp. 

My burgh v. Jamie.son 

Naef V. Mutler ... 

Natal Bank v. Martinus & Co. 

Natal Bank, Ltd., r. Natorp and Registrar of Deeds ... 

Natal Investment Co. v. Natal Bank 

Natal Land and Colonisation Co. t;.-Molyneux 17 

Natal Land and Colonisation Co., Ltd., v. Rycroft 

Nathan Bros. v. Pietermaritzburg Corporation 

National Bank of South Africa, Ltd., v. Beckett's 

Colonial Government 
National Bank of Wales, Ltd. ; Cory's Case 
Naylor ». Munnik 

Neebe v. Registrar of Mining Rights 
Nel and Others v. Potgieter and Others ... 
Nelson v. Currey ... ... 

New Blue Sky G. M. Co., Ltd., v. Marshall 

New Transvaal Co., Ltd., Re ... 

Newman v. East London Town Council ... 

Niebuhr and Another v. Joel 

Niekerk y. Wakefield 

Niemand v. Niemand 

Nieuwoudt v. Registrar of Deeds 

Nieuwoudt v. Slavin and Jowell 

Nimmo v. Klinkenberg Estates Co., Ltd. ... 

Nolan V. Barnard 

Nordeu v. Brink ... 

Norden v. Oppenheini 

North British Railway Co. v. Budhill Coal and Sandstone Co. 

Northern Mounted Riiles v. O'Callaghan . . . 

Norton ^'. Satch well 

Notaris v. Rex 

Noyce v. Gluyas ... 

Nunan v. Meyer ... 

Oak f. Lumsden ... 

O'Brien v. Palmer 







PAGE 






311 






94, 120 


62, 


359, 


41.5, 592 
469 
509 
10 
245. 
393 
311 
485 
205 
522 
496 
246 
278 
444 


3, 268, 


270, 


291, 514 
90 

181 


Estate 


and 


172 
511 
118 


33, 


106, 


107, 457 
382 
195 




109, 


227, 367 
550 
155 
128 
571 

129, 1 3a 
176 


13.3, 


505, 


542, 580 
506 
311 
164 
500 


)ne Co. 




227 

460, 461 

58 

32, 219 

128 

490 

513, 514 

14, 17, 96 



TABLE OF CASES. 



O'Callaghan's Assignees v. Cavanagh 

O'Connor ife Co. V. Knight & Co. 

■Oehley y. R. ... ... ... ... ^43; 

■OlifF V. Worcester Municipality 

Oliphant v. Grootboom 

Olivier and Others v. Haarhof ife Co. ... ... 30, 

■Oosthuizen v. Estate Oosthuizen 

Oosthuizen v. Pienaar 

Ormoud y. R. 

■Orpen v. Celliers ... 

■Orson V. Reynolds 

■O'Sliea v. Port Elizabeth Town Council ... 

■Oulton II. Radcliffe 

■Owens y. Campbell, Ltd. 

Paarl Board of Executors v. Paarl Civil Commissioner 

Page V. Burtwell ... 

Page, N.O., V. Ross 

Painter -o. Painter 

Palmer v. Hutchinson 

Panmure Club, Re 

Papert v. Rex ... ... ... ... 85, 

Parker v. Reed ... ... ... ... 5, 

Parkin v. Lippert ... ... 37, 50, 574, 542, 

Partridge v. Adams 

Paruk V. Hayne k Co. 

Paterson's Marriage Settlement Trustees v. Paterson's Trustees in 

Insolvency ... 
Pattison v. White <fc Co., Ltd. 
Patz V. Salzburg ... 
Payn i\ Yates 

Peach ife Co. V. Committee of Jewish Synagogue 
Peach &, Co. v. Simon's Trustee 
Peacock v. Hodges 
Petei^s, Ex parte ... 
Phelan, hire 

Phil pott V. Whittal, Elston and Crosby ife Co. 
Pienaar v. Pretoria Pi-inting Works 
Pienaar and Versfeld v. Incorporated Law Society 
Pietersburg Steam Laundry Co. v. Sinclair 
Pietersen v. Gabrielse's Estate 
Pillans V. Porter's Executors ... 
Pinney v. Jones ... 
Platnauer v. Rex ... 
Poggenpoel r. Poggenpoel 
Poppe, Russouw ik Co. v. Kitching and Others 
Poppe, SchunhoiF & Guttery v. Mosenthal k Co. 



PAGE 

385 
535 

244, 249 
484 
190 

270, 375 
114 
497 

343, 387 
524 

137, 385 
389 
455 
5 
383 
327 
398 
160 
272 
110 

246, 249 

392, 415 

553, 580 
593 

373, 480 

279 
5 

99 
137 
340 
440 
590 
435 
139 
155 
427 
144 
516 
502 
190 
491 
182 
1 
411 
423 



TABLE OF CASES. 



PAGK 



Port Elizabeth Divisional Council v. Uitenhage Divisional Council 126, 217 

Port Elizabeth Town Council i'. Rigg ... ... ... 334 

Porter ife Co. i'. Robinson ... ... ... ..." 249 

Portuguese Wine Depot, Ltd., v. Schenk and Others ... ... 49& 

Potgieter, He Estate ... ... ... ... Ifi4 

Preston & Dixon i\ Biden's Trustee ... ... ... 9& 

Pretoria Racing Club f. Van Pietersen ... ... ... 226,297 

Pretorius i-. Coetzee ... ... ... ... 162 

Pretorius ('. Executors of Pretorius ... ... ... 101 

Pretorius c. Richmond Divisional Council ... ... 383 

Frice, In re ... ... ... ... ... 591 

Price ('. Deputy-Sheriff, Witwatersrand ... ... ... 223, 397 

Proctor's Estate, /^p ... ... ... ... 390 

Puskan r. Veerasamy ... ... ... ... 442 

Queen?'. Adelburg ... ... ... ... 152 

Queen r. Albert ... ... ... ... ...111,224 

Queen ■!>. Armstrong ... ... ... ... 362 

Queen I'. Barker ... ... ... ... ...111,224 

Queen v. Bell ... ... ... ... 362 

Queen u Botha ... ... ... ... • 570 

Queen ?'. Brown ... ... ... ... •■■ 462 

Queen )'. Bruintje.s ... ... ... ... HI 

Queen V. Bruyns ... ... ... ... •■• 455 

Queen (.. Bucheuroeder ... ... ...4,101,356,428,477 

Queen r. De Kock ... ... ••■ ■■• "259 

(^ueen r. Dickinson ... ... ... ■■• 259 

Queen r. Eichorn ... ... ■•■ 59,> 

Queen r. Farley ... ... ... •• ...111,221 

Queen v. February and Mei ... ... • • • ■ ■ ■ 1^6 

Queen I'. Fortuin . . . ... ■ ■ •■• 242,558 

Queen v. Foye Carlin ... ... ■ ■ • •■ ' ' ^ 

Queen >•. Glosten ... ... ... -•• ■•■ '^•^" 

Queen )i. Golding ... ... •■• ••• ''^^ 

Queen 1'. Gontshe... ... ■•■ •■■ ••■ 1^*2,511 

r\ XT \fS'> •''91 

Queen w. Hay ... ... •■• ■■■ • -■ ^•-'-> ^" ' 

Queen v. Holdei- ... ... ... ■• ■ • ■ • ^^7 

Queen r. Jizwa ... ... . • • • • ■ ■ • ■ "^ 

Queen v. Jones ... ... ... '••• ••• 536, 585 

Queen i>. Judge County Court of Shropshire ... ... 455 

Queens. KaplHn ... ... ... ... 52,136,171 

Queen t'. Kelaman ... ... ... ••■ •-" 

Queen ». Kir,sten .. . ... ... ■•■ •■■ 63 

Queen t.. Le Roux ... ... ... ■• 196, +91 

Queen «.Lepal ... ... ... ... .-. ^^'^' ^ 

CJueen v. Lloyd ... 

Queen v. Loftus ... 



306 



XXX iii TABLE OF CASES. 

PAGE 

Queen ?;. Long and Others ... ... ... ... 59 

Queen v. Lettering ... ... ... ... 423 

Queen v. Louis Klein ... ... ... ... 42 

Queen t). Lourie ... ... ... ... ... 111,354 

Queen ti. Louw ... ... ... ... ... 423 

Queen v. Mary Pound ... : . . ... ... 8 

Queen ('. Mattroos Jan ... ... ... ... 539,558 

Queen?;. McDonald ... ... ... ... 595 

Queen v. Meyer, Risli and Other.s ... ... ... 242 

Queen •(). Motati ... ... ... ... ...428,477 

Queen t'. Mu Her ... ... ... ... ... 462 

Queen i'. ISTeethling ... ... ... ... 551 

Queen D. Ohlsson .. . ... ... ... ... 272 

Queen v. Otto ... ... .. ... ... 424 

Queen i;. Parrott ... ... ... ... ... 379 

Queen ». Pearson .. . ... ... ... ... 561 

Queen u. Philander J aoobs ... ... ... ... 558 

Queen v. Phillip and Jack ... ... ... ... 383 

Queen V. Piet Arends ... ... ... ... 281 

Queen v. Plaatjes ... ... ... ... ... 383 

Queen v. Plockers ... ... ... ... 80 

Queen ■«. Poppe ... ... ... ... ... 272 

Queen v. Pushtu and Hlekiso ... ... 387 

Queen v. Reed, Sir Charles ... ... ... 75 

Queen v. Robertson ... ... ... ... 343 

Queen V. Rubenstein ... ... ... ... .561 

Queen v. Russouw ... ... ... ... 348 

Queen 1'. Schulz ... ... ... ... ... 517 

Queen «. Sohut ... ... ... ... ... 4 

Queen II. Shortle ... ... ... ... ... 259 

Queen v. Slinger and Klaas ... ... ... ... Ill 

Queen «. Solomon and Others ... ... ... 136 

Queen v. Strangman ... .. ... ... 603 

Queen «. Strj'dom ... ... ... ... .538 

Queen t;. Sutton ... ... ... ... 73,349 

Queen v. Swart ... ... ... ... ... 553 

Queen r. Tlie Justices of Worcester ... ... ... 235 

Queen V. Thomas ... ... ... ... ... 122 

Queen v. Topken and Skelly ... ... ... ... 52 

Queen v. Van Vliet ... ... ... ... 47, 281 

Queen f. Vorster .. . ... ... ... ... 392 

Queen t'. Wells ... ... ... ... ... 248 

Queen 1). Wilderman ... ... ... ... 4 276 

Quick ti. Luttey ... ... ... ... ... 249 

Band Gold Mining Co. v, Wainwright ... ... §7 

Randall v. Town Council of Grahamstown ... ... 439 



TABLE OF CASES. 



Randall's Trustees v. Haupt . . . 


164 


Ranu V. Hughes ... 


133 


Raphael v. Rex ... 


401 


Reed V. De Beers Consolidated Mines 


162 


Reeves v. Reeves . . 


23.5 


Regina v. Bell 


362 


Regina c. Fortuin 


5.58 


Regina v. Glosten 


196 


Regina v. Gontshe 


... 182, .511 


Regina v. Lepal ... 


... 141, 558 


Regina v. Pearson 


.561 


Regina i\ Russouw 


.348 


Regina v. Sir Charles Reed . . . 


75 


Regina v. Topken and Skelly . . . 


52 


Regina i'. Van Vliet 


... 47, 281 


Reid V. Surveyor-General 


140 


Reid and Others v. Warner ... 


398 


Reid and Stewart v. Rex 


... 110, 182 


Retief v. Hamerslach 


359, 371, 384 


Retief v. liouw 


200 


Reuter v. Yates ... 


582 


R. V. Abdul and Others 


... 196, 274 


R. ('. Abrams 


... 410, 443 


R. V. Adams 


152 


R. V. Albert 


88 


R. V. Allen ... ... , 


236 


R. ». Bibby 


443 


R. V. Boers 


111 


R. V. Brandford ... 


152 


R. V. Chabaud 


471 


R. V. Clapp 


349 


R. V. Crozier 


462 


R. ... DeVos 


152 


R. V. Delport 


281 


R. V. Dier 


242 


R. V. Ebraham 


208 


R. V. Elizabeth Perry 


196 


R. V. Elvin 


546 


R. V. Enslin 


281 


•R. V. Firling ... • 


152. 2.34, 293 


R. i>. Fish 


593 


R. V. Fortuin 


242 


R. V. Foster 


491 


R. V. Francis 


248 


R. V. George 


88 


R. V. Herman and Another ... 


179 



TABLE OF CASES. 



R. V. Jack Zulu ... 

R. p. Jacob 

R. V. Jolosa 

R. V. Kukard 

R. u. Tjaa de Kuei and Another 

R. V. Lalbhai 

R. V. Le Roux 

Lethlaka 

Lin Yuiin Chen 

T,, 



V. Lioune 

II Maiider.son ... 
R. V. Mason 
R. V. Mess 

R. V. Murphy and Another 
R. i\ Myers 
R. r. Njova 

R. r. Peerkhan and Lalloo 
R. ,1. Quarry 
R. II. Reece 
R. V. Roberts 
R. V. Rolston 
R. V. Rossouw 
R. I). Rulofson 
R. r. Sango 

R. V. Schapiro and Saltman ... 
R. /'. Scharff 
R V. Sharpe 
R. IK Standen 
R. 11, Steil 
R. ('. Stern 
1^. r. Stiiurnian ... 
R. r. Suuiango 
R. II. Svvartbooi .. 
R. ,.. Tolson 
R. II. Twalatunga... 
R. r. M'^ariier 
R, ,: Wheeler 
Re-x II. Faithfull and Gray 
Rex /) Stamp 
Reynolds ". Orson 

Reynolds Vehicle and Harness Factory, Ltd., Ee 
Richards v. Guardian Assurance Co. 
Richmond v. Crof ton 
Robb V. Mealey's Executor ... 
Roberts v. Booi ... 
Roberts ('. Robert.s 



PAGE 

427 
152, 2U 
■246 
.546. 
423 
274 
462 
234 

88 
462 

47 

236, 269 

39, 142 

57 
4 

50 

444 

399, 603 

4 

274 

39 
306 
516 
284 
462 

52 
480 
428 

63 

57 

39 
182, 511 

69 

57 
246 
.357 
538 
593 
534 
208 
574 
141 

27 
582 
354 



TABLK OF CASES. xxxi 

PAGIS 

Robertson & Co. ('. Heathorn ... ... ... 516 

Robinson p. Local Board of Barton-Eccles ... ... 541 

Robinson v. Roper, KO. ... ... ... ... 2,476 

Rochester German Insurance Co. v. Peaslee-Gauldert & Co. ... 389 

Rodney, The ... ... ... ... ... 355 

Roesch and Bruce v. 'I'hompson, Watson & Co. ... ... 427 

Rogers v. Hancock ... .. . ... 287 

Rogerson, iV.O., !'. Meyer and Berning ... ... ... 66 

Rolfes, Nebel & Co. v. Zweigenhaft ... ... 49, 267, 542 

Rood !'. Wallach ... ... ... ,,, ... 94 

Roos V. Roos's Executors ... ... ... ... 407 

Rooth ?^ The State ... ... ... 126,206,269 

Rooth & ^Yessels ■;;. Benjamin's Trustee and the Natal Bank ... 444 

Roper ?;. Argus Printing and Publishing Co. ... ... 516 

Roper V. Greenwood ... ... ... ... 8 

Rosemount G. M. Syndicate in liquidation. Re .. ... 453 

Rosenwax, Ex parte ... ... ... ... 575 

Rosson v. Haigh ... ... ... ... ... 491 

Rotestrick -y. Rex ... ... ... ... 572 

Rowson ti. Atlantic Transport Co. ... ... ... 355 

Rubidge V. Hadley ... ... ... ... 593 

Rudd (). Colonial Government ... .. ... 350 

Rudd-y. De Vos ... ... ... ... 290 

Russell ^'. Ledsam ... ... ... ... 199 

Russell V. Savory ... ... ... ... 300 

Russell V. Smyth ... ... ... ... ... 74 

Russell ■i'. Von Grossouvv ... ... ... ... 74 

Rykliefs Heirs 1'. Ryklief's Executors ... ... ... 380 

Sadgrove v. Bryden ... ... ... ... 459 

Safodien, Re ... ... ... ... ... 166 

St. Leger v. Town Council of Capetown ... ... ... 521 

St. Mary, Newington, Vestry v. Jacobs ... ... ... 169 

Salie w. Connelly and Others .. . ... ... ... 270 

Salisbury Reef G. M. Co. v. British South Africa Co. ... ... 5 

Salmon v. Lamb's Executor and Naidoo ... ... ... 364, 494 

Salem's Trustee 1'. Croll ... ... ... ... 200 

Salomon v. Salomon ... ... ... ... 293 

Salter -y. Lea's Hotel Co. ... ... ... ... 454 

Salugee -v. Rex ... ... ... ... ... 115 

Salvage Association of London v. S. A Salvage Syndicate, Ltd. . . . 404 

Sanch-y. Groves ... ... ... ... ... 401 

Saunders V. Butt .. . ... ... ... ... 571 

Scales v. Cheese ... ... ... ... ... 159 

Scarrott v. Grahamstown Brick and Tile Co. ... ... 228 

Schapiro V. Schapiro ... ... ... ... 362 

Schmidt r. Francke ... ... ... ... 385 



TABLE OF CASES. 



Schoeman's Estate, Re 

Schoenemaii v. Cape Lime Co. 

Schomberg's Executors v. De Vos'.s Executor.s 

Schunke v. Taylor and Symonds 

Schweizer's Claimholders' Rights Syndicate, Ltd., v. Rand 

ing Syndicate 
Scott V. Thierae ... 
Scrutton v. Ehrlich ct Co. and Other.s 
Searle v. Parsons and Anothei- 
Seaville v. Colley ... 
Selby, Re 

Sequestrator v. Guardian of Slaves and Beck 
Seyelecho v. Seyelecho 
Shapiro v. Shapiro and Ketz's Trustee 
Shapiro's Trustee v. Livingstone and Another 
Shauban v. Goveia 
Shaw V. Shaw 

Sheard v. Attorney-General ... 
Sheldon v. Registrar of Deeds 
Shepherd v. Commissioner of Railways 
Sherry v. Stewart 
Shortle D. Uniondale Magistrate 

Showers v. .Assessment Committee of Chelmsford Union 
Sidman -y. McLoughlin 
Silberbauer v. Breda 
Silverthorne v. Simon 

Silverton Estates Co. v. Bellevue Syndicate 
Simey v. Simey 

Simm V. Anglo-American Telegraph Co. ... 
Simon v. Jackson ... 
Skinner v. Johannesburg Turf Club 
Sklaar •;;. Sklaar ... 
Slabber v. Bell 

Slabber's Trustee v. Neezer'.s Executor 
Sloman v. Berkovitz 
Sluiter, Re 

Smart v. Raymond & Smart ... 
Smit, Re 

Smit V. Smit's Executrix 
Smith V. Anderson 
Smith w. Desai 
Smith i;. Farrelly's Trustee 
Smith 71. Germiston Municip.ility 
Smith !'. James 
Smith's Trustees v. Smith 
Smuts r. Divisional Council of Cathcart ... 



PAQE 

331 

237 
440 
95, 421, 422, 482 
Explor- 

98 
251 
346 
142 
.5, 313, 333 
166 
101 
542 
41 
164 
237 
542 
24 
130 
417 
250 
259 
464 
295 
207 
545 
385 
160 
208 
400 
363 
575 
. 476, 477 
74, 189, 191, 487 
347 
447 
232 
166 
. 133, 396 
51, 84, 91 
456 
430 
346 
226 
98 
478 



TABLE OJ^" CASES. 



Good Hope 



South 



Smuts' Executrix f. Meyer 

Snook V. Howard 

Societe Anonyme I'lndustrielle Russo-Belge v. Scliolefield 

Society of Accountants and Auditors v. Goodway and Anotbei 

Socout Ally V. Rex 

Solomon v. Rex ... 

Solomon p. Wolft' 

Sonnenberg t). Flower 

Souch V. East London Railway Co. 

South, Ex parte ... 

South African Association v. Mostert 

South African Association v. Van Staden 

South African Breweries, Ltd., v. Muriel 

South African Loan and Mortgage Agency v. Cape 

Bank 
South African Supply and Cold Storage Co. : In re Wild 

African Supply and Cold Storage Co, 
Sparks v. Hart 

Spencer and Brandon ik Wilson 
Spiegel V. Eilenberg 
Spiller V. Mostert 
Sprigg & Co. V. Eraser & Sons 
Spring V. Coetzee's Executor and Others 
Springle v. Mercantile Association of Swaziland 
Staehlin, Ee 

Stainbank v. National Bank of South Africa 
Standard Bank v. Du Plooy and Another 
Standard Bank v. Union Boating Co. 
Standring, Ux parte 
Stanford v. Brunette 
Stanley v. Central News Agency 
Stanley v. Jones ... 
Stark V. Transvaal Chamber of Mines 
State V. Adam 
State V. Benson Aaron 
State V. Dyer 
State V. Jacob and Jacob 
State V. Verkouteren 
Steenberg v. Cooper 
Steenkamp v. Juriaanse 
Steer &. Co. v. Rowland 
Stephens v. Whitford 
Stewart 'h. Ryall ... 
Stewart «. Sichel and Others ... 
Stewart's Executor v. De Morgan 
Steyn, Hx parte ... 



128, 
187, 



78, 



PAGE 

313 

179 

5 

282 

477 

259, 569 

497 

277, 347 

154, 541 

435 

376 

433 

462 

107 

37, 481 

589 

529, 578 

39 

500 

158 

415 

19 

166, 167 

513, 514 

186, 237 

172, 174 

235, 362 

255 

564 

98 

169 

595 

148, 398 

274 

125, 317 

7 

659 

288 

80 

430 

600 

509 

137, 385 

435 



TABLE OF CASES. 



Steyn v. Zeeman ... 

Steyn's Trustee ■!;. Gous 

Bteytler, y.O., Ex parte 

Stiglingh V. French 

Stockham and Others v. Colonial Building Corporation, Ltd. 

Stone, Ex parte ... 

Strand "Wood Co. r. AIex;inder & Friedman 

Struben v. Capetown District Waterworks Co. 

Struben ti. Colonial Government 

Strydom ik LJniondale Licensing Court and Others 

Stuart V. Grant 

Sture V. Sture 

Sturla ('. Freccia ... 

Stutterheim Municipality v. De Beer 

Superintendent of Police, Pietermaritzburg, v. Alfred... 

Superintendent of Police, Pietermaritzburg, v. Pillay ... 

Sutton IK Livingstone and Seeker 

Swarts and Appel v. Pretoria Town Council 

Syraon «. Breckei' 

Synions ■;;. Estcourt Local Road Board 

Tait V. Wicht and Others 

Tank & Co. v. Jacobs 

Taylor, £,'■ parte ... 

Taylor t). Holland 

Taylor & Co. ». Mackie, Dunn & Co. 

Terrington i>. Simpson 

Teubes and Another -ik Lourens 

The State c. Aaron 

Theron and Dm Plessis /'. Schoombie 

Theunissen w. Theunissen 

Thima «. Kumarasamy 

Thomas v. Thomas 

Thomas' Estate v. Kerr and Another 

Thompson v. Ashington Coal Co., Ltd. 

Thompson v. Brown 

Thompson i\ Pullinger 

Thompson v. Scale 

Thomson, Watson & Co. i'. Wieting and Others 

Thornton and Others v. Hugo, JV.O., and the Mayor and Councillors 

of Graaff-Keinet ... ... ... ... 219 

Thorpe w. Municipal Council of Pretoria ... ... ... 181 

Thorpe's Executor ■«. Tliorpe's Tutor ... ... 56,74,189 

Titterton's Estate, lie ... ... ... 51, 543, 550 

Tollett ". Thomas... ... ... ... ... 564 

Tom, Ex pari f ... ... ... ... ... -t^O 

'l'or\a i'^.xploring Syndicate r. Kelly ... ... ... I'oO 



PAGE 

45 
429 
592 
44 
459 
4.35 
487 
207 
510 
346 
169 
514 
460 
74 
379 
145 
601 
603 

.. 121, 523 
386 

.. 236, 238 
128 
435 
582 
423 
539 
490 

8, 148, 398 

.. 14, 490 
470 
591 
134 

.. 202, 210 

8 

402 

385 

44 

76 



TABLE OF CASES. 



XXXV 



PAGE 

Town Council, Johannesburg, (I. The Government ... ... 465 

Tradesmen's Benefit Society V. Du Preez ... ... ... 94 

Trading Board r. Germiston Town Council ... 153,260 

Transatlantic Trading Co. of Amsterdam v. De Koock, Weekblad 

van het Recht ... ... ... .... 93 

Transvaal Chamber of Mines v. Tucker and Henderson ... 169 

Transvaal Cold Storage Co., Ltd., v. Palmer ... ... 32, 574 

Treasurer-General v. Lippert ... ... ... ... 275,431 

Treasurer-General v. South African Association ... ... 543 

Tregidga i Co. -'. Sivevvright, i\^.0. ... ... ...118,480 

Trew <fe Snow V. Crabb ... ... ... ... 372 

Trollip, ^e ... ... ... ... ... 53,527 

Truter ti. Joubert's Trustee ... ... ... ... 279 

Tuf nell. In re 

Turner v. Colville 

Twyne's Case 

Uitenhage Divisional Council v. Bovven ... 

Uitenhage Municipality ri. Colonial Government 

Ulrich v. Ulrich's Trustee ... 

Umhlebi v. Estate Umhlebi and Another 

Union Bank v. Spence 

United Building Society v. Smookler's Trustees and Golombick's 

Trustee ... ... ... 312,337,381, 

United Mines of Bultfontein v. De Beers Consolidated Mines 

United South Africa Association, Ltd., i>. Cohn 

Uys V. Le Roux ... 

Vale & Sons v. Moorgate Street and Broad Street Buildings, Ltd 

and Albert Baker & Co., Ltd. 
Valenski & Lipschitz -ik Lategan and Wife 
Van Aardt v. Hartley's Trustees 
Van Beuge v. Coetzee 
Van der Berg v. Elzbeth 

Van der Byl and Others v. Van der Byl i& Co. 
Van der Hoven v. Cutting 
Van der Merwe c. Jumpers Deep, Ltd. ... ... 1' 

Van der Mer we w. Webb ... ... ... 359,372, 

Van der Merwe's Estate v. Thorne 

Van der Poel v. Langerman ... 

Van der Poel's Executors v. Malan 

Van der Wall v. Executors of Van der Wall 

Van der Walt v. Hawkins 

Van der Westhuizen v. Glastonbury 

Van Dyk i;. Udwin 

Van Eeden and Others, Ex parte 

Van Heerden 1^ Wiese ... ... ... 230,231, 

Van Heerden's Trustees v. Wagenaar 



24 
372 
135 
464 
219 
300 
499 
189 



583, 596 

593, 605 

592 

411 

25 

484 

310 

94 

31 

371 

229 

293, 475 

384 

205 

182 

6 

495 

473 

209 

529 

138 

422 

401 



XXXVl 



TABLE OF CASES. 



Van Niekerk v. Blake 

Van Niekerk v. Fagan 

Van Niekei-k v. Van Niekerk ... 

Van Noorden v. De Jongh and Hofnieyer 

Van Pelt, Ex parte 

Van Renen's Trustee v. Versfeld 

Van Rooyen v. Werner 

Van Ryn Gold Mines Estate, Ltd., v. Frames 

Van Schalkwijk -v. Du Plessis and Others 

Van Schoor's Trustee v. Muller's Executors 

Van Vuuren v. Van Vuuren ... 

Van Wijk v. Smith & Co; 

Van Wyk and Others v. Dykerman 

Van Wyk's Trustee v. Van Wyk and Others 

Van Zyl and Another v. Graaf 

Venter, £x parte ... 

Venter v., Bex 

Vergotine v. Ceres Municipality 

Vermaak v. Palmer 

Victoria Falls Power Co. v. Colonial Treasurer 

Vinden v. Ladysmith Local Board 

Vlotman v. Landsberg 

Vorster v. Hodgson 

Vos V. Colonial Government ... 

Vos V. Marsh 

Walker v. Walker 

Walter's Estate, lie 

Ward and Salmons v. Phillips... 

Waring & Gillow v. Sherborne 

Watermeyer v. Denyssen 

Watson V. Geard ... 

Watson V. Rex 

Wayland v. Transvaal Government 

Weatherley v. Weatherley 

Webster, He 

Weight and Weight, Ex 2iarte 

Wes.sels ■!). Wessels 

Wesselton Syndicate i'. Colonial Government 

West Surrey Water Co. v. Guardians of Chertsey Union 

Westhuizen v. Velenski 

Whatmore y. Murray 

Wheeler v. Smith 

White, Ex parte ; Re Nevill ... 

White V. Harrow ; Harrow v. Marylebone District 

White V. MeUin ... 

Wliite «. Municipal Council of Potchefstroom 



Co 



256, 36 



39, 130, 131 



Ltd. 



PAOE 

284 
512 
53 
480 
605 

189, 190 

414, 419 
322 
503 

216, 329 

527 

86 

271, 321 

95 

284 

413 

46, 475 

416 

207, 231 

271, 375 
585 

186, 499 
591 
383 
301 
574 
325 

330, 404 

594 

94 

96, 116 

267 

160 

387, 455 

65, 182 

435 

1, 2, 195 
350 
548 
385 
168 
250 
171 
26 
68, 286 
168 



TABLE OF CASES. 

White & Tucker (-. Rudolph ... 

White Bros. v. Treasurer-General 

Whitnall v. Goldschmidt 

Wiarda v. Standard Banlc 

Wiener v. Van der Byl 

Wife V. Husband 

Wilcken and Ackermann v. Klorafass 

Wild V. South African Supply and Cold Storage Co., In re 

Wiley & Co. V. Mundinch ct Co. 

Wilhelm v. Beamish 

Willemse and Others v. Lategan 

Williams v. Geldenhuis Estate and G. M. Co., and Leyds, N.O. 

Williams 1). Williams 

Willis/.. Rex ... ... ... ... 1 

Wilmot V. Resident Magistrate of Alexandria 

Wilson V. Brett ... 

Wilson V. Divisional Council of Komgha ... 

Wilson, Sons & Co. v. Balcarres Brook S.S. Co. 

Wing Way and Ho Kam v. Rex 

Winterbach v. Worcester Municipality and Lindenbei-g 

Wise V. Perpetual Trustee Co. 

Witham v. Venables 

Witwatersrand Township, Estate and Finance Corporation, Ltd., 

Rand Water Board 
Wolff (k Elias v. Collector of Customs 
Wolff, iV.O., «. Solomon 
Wolfson V. Crowe 

Woolfe, Woolfe it Co. v. Central South African Railways 
Wood !>. Gilmour ... 
Wood !.. Webb ... 

Wood's Estate v. Bathurst Divisional Council 
Woodhead, Plant & Co. v. Capetown Town Council ... 
Woodhead, Plant & Co. v. Gully 

Woodhead, Plant & Co. i;. Gurm ... 62,359,3'; 

Worcester Municipality v. Colonial Government 
Wordon & Pegram v. Cantrell k Cochrane and Another 
Worthington and Others v. Central South African Railways 
Wright V. Tatham 
Wright's Executors v. Wright ... ... • 

York V. Van der Lingen 
Zeiler v. Weeber ... 



XXX vu 




PAGE 




534 


... 206, 


416 




514 




509 




119 


... 130 


133 




594 


.. 37, 


481 




127 




278 




551 




199 




215 


r9, 339, 


351 




475 




254 




550 




4 




22 




397 




no 


... 2,S1 


421 




548 




535 




341 




66 




389 




482 




158 




478 




386 




423 


■2, 384, 


592 




486 




110 




333 




491 




101 




592 


.. 38, 


160 



EREATA. 



p. 4, snb voce AnoLlTlE, 2nfl line, for vialaff read annid. 

P. 35, snh voce Allegans stjam, kc, for lurpifudittam read tit,rpitudinem. 



SOUTH AFRICAN 
LEGAL DICTIONARY. 



A contrario sensu, in the opposite sense ; on tl\e other hand. 

A fortiori, for the stronger reason ; so much the more. 

A mensa, thoro et communione bonorum, from board, bed 
and community of goods. When the conduct of a spouse is such as to 
make further cohabitation with him or her wholly insupportable, the 
other spouse is entitled to the benefit of a decree of judicial separation 
{Poggenpoel v. Poggenpoel, 15 S.C. 38). The effect of a decree of sepa- 
ration d, mensa et thoro is that, though the marriage remains in force, 
neither party can compel the other to live with him or her ; but if no 
order has been made regarding the property each party retains his or 
her rights of property unimpaired (Wessels v. Wessels, 12 S.C. 465). 
Attempts at reconciliation may always continue to be made (Grotius, 
1, .5, 20). 

A morte testatoris, from the death of the testator. A legacy 
does not vest until the death of the testator, and, therefore, if the 
legatee predeceases the testator the legacy lapses and will not go to 
the legatee's heir. The phrase is used to distinguish between rights 
under a will which vest upon the testator's death and rights of which 
the vesting is postponed to a later time. 

A parij equally; in like manner. 

A priori, from what goes before, as distinguished from a posteriori, 
from what follows. 

A tempore morae. See Mora. 

A verbis legis non est recedendiim, to depart from the words 
of a statute is not permitted. Where the language of a statute is clear 
and unambiguous, it must be read according to its necessary meaning. 
In such a case the statute is not open to construction, and the fact that 
the court might consider something else to have been the intention o£ 



A 2 AASDOMS 

the legislature will not justify an interpretation different from tlie 
meaning of the words actually employed (De Villiers v. Cape Divi- 
sional Council, Buch. 1875, p. 64 ; 2 App. Cas. 567 ; Hes8 v. The State, 
2 Off. Rep. at pp. 117 et seq. ; Robinson v. Ro-per, N.O., 3 H.C.G. at 
p. 205 ; Beedle & Co., in liquidation, v. Bowley, 12 S.C. 401 ; Moss 
V. Sisso7is and McKenzie, [1907] E.D.C. 157). See Argumentum ab 
iNcoNVEXiENTi, &e., and Ut res magis valeat quam pereat. 

A vinculo matrimonii, from the bonds of matrimony; divorce. 
The effect of a decree of divorce is to rescind the marriage contract 
altogether. The only grounds for such a decree are adultery and 
malicious desertion (Wessels v. Wessels, 12 S.C. 470). 

Aafga (D.), See Azig. 

Aanbooedt (D.), appropriation, retraction (retractus). 

Aandeel (D.), a share or portion. The term aandeel (pi. aandeelen) 
is usually, in South Africa, applied to shares in joint-stock companies. 
Aandeelen aan toonder are bearer shares ; volopbetaalde (uindeelen 
are fully paid up shares; uandeel-certificaten are share certificates; 
aandeelhouders are shareholders; at nideelschiddige is a contributory 
or a person who is liable in respect of shares that have not been fully 
paid up. 

Aanlegger (D.), the plaintiff in an action. See Eischer. 

Aanmaning (D.), demand. See Minneluke Aanmaning. 

Aanvrouwe (D.), great-grandmother. 

Aanwas (1) (D.), the equivalent of the jits accrescendi of the Roman 
law. See Van Leeuwen's Gomm. 3, 6, 7 and 8. 

(2) (D.), Alluvion. Decker in a note to Van Leeuwen's Comm. 
(Kotze's trans, vol. 1, p. 175) says: " Alluvion is of two kinds, aanwas 
and aamverp. The former is termed discretae, i.e. those separated 
from the land by a portion of the water ; and the latter alhu'iones 
continv.ae, i.e. those which are attached to the land." 

Aanwerp (D.), a form of alluvion. See Aanwas. 

Aasdoms, Aasdomsregt (D.), a term derived from aesyadoem, 
which in old Frisian law meant a decision of the Aesge or Baljuw 
(Bailiff or Sheriff) (Van Leeuwen's Comm. 1, 2, 23). Aasdomsregt 
denotes the Fiisian law of succession ab inte-'itato, having for its prin- 
ciple that "the nearest blood succeeds to the property" (liet naaste 
bloed erft het goed). Distinguished from the Schependo-ihs law of 
succession (the law of Zeeland), according to which " the property 
must return from whence it came" (goed moet gaan van waar het 
geJcomen is: Van Leeuwen's Gomm. 3, 12, 8). 



AASDOMS 3 ABAKWETA 

" The principle of Frisian law is that the nearest blood succeeds to 
the property, it being well understood that descendants are preferred 
to ascendants (for there is an old proverb that property does not 
readily clivib), and ascendants to collaterals, for the relationship of 
collaterals is derived from ascendants. The term nearest was inter- 
preted strictly, so that no representation was allowed, and the children 
of a deceased child could not inlierit as long as there were any children 
in the tirst degree to be found. This law, also, took no account of 
the soui-ce from whence the property came ; but if a child who had 
inherited from his father died before his mother, the property so 
inherited went to the mother, and remained thenceforth on that side " 
<Grotius' Introduction, Maasdorp's trans. 2, 28, 3; see also Kerste- 
man's Woordenboek, vol. 1, p. 10). 

Ab initio, from tlie beginning. 

Ab intestato, from a person dying intestate. If a person dies 
without leaving a valid will his property devolves according to a 
certain line of succession fixed by law. Those of this line who 
acquire the property, called in Roman law heredes legitimi, oi- legal 
heirs, as distinguished from heirs appointed such by will, are said 
to succeed ab ivtestato. 

Ab irae impetu, under the impulse of anger. See In rixa. 

Ab origine, from the origin or beginning. 

Abak'weta Dance, a dance common among natives throughout 
South Africa to celebrate the circumcision of the young men. The 
ceremony commences by the young men being removed from the kraal 
to a neighbouring kloof or other convenient and secluded .spot, in 
•charge of a selected man, who performs the rite of circumcision ; 
there a hut is built for their accommodation during the continuance 
of the ceremony, which extends over three or four months, and some- 
times even longer. The dance is held at the kraal in celebration of 
the occasion ; it is also a feast, and friends of the parties concerned 
attend it from long distances. The dance is more pronounced and 
lively on the days of the commencement and the termination of the 
■ceremony. After the young circumcised men have remained in seclu- 
sion for the appointed period they emerge from their reti'eat, but 
without any clothing or blankets; the hut and all it contained, in- 
cluding clothing, and blankets, is burnt; they are then regarded as 
men. The abakweta dance has ceased to be a custom among the 
Zulus, but among other native tribes it is a confirmed custom and 
an important occasion. In the Cape Colony the abakweta dance is 
prohibited in certain districts proclaimed and to be proclaimed by 
the Governor under Act 16 of 1891 (C.C); this Act is extended to 
the district of Elliott by Proclamation 396 of 1896. 

a2 



ABANDON 4 ABOUT 

Abandon, to relinquish one's interest in some person, thing or 
right ; to give up. In the Natal Mines and Collieries Act (43 of 1899, 
sec. 4), the term abandon, " when used in reference to a claim or hold- 
ing, shall mean to summarily determine the right to and interest in 
such claim or holding." 

Abatement, mitigation ; removal ; allowance. See Without 
ANY Deduction or Abatement Whatever. 

" By common law [in England] where one of two joint contractors 
was sued alone, the defendant had the right to compel the joinder of 
the otlier by means of a plea in abatement " {per Lord EsHER, M.E., 
in Wilson, Sons & Co. v. Balcarres Brook S.S. Co., [1893] 1 Q.B. at 
p. 426) ; but "under the Judicature Act pleas in abatement are abolished" 
(ibid, at p. 427). 

Abatement of a nuisance means the removal of the nuisance. 

Abattoir, a public slaughter-house. See Slaughter-House. 
Abbreviation, a shortened form ; a contraction. 

Abduction, the taking away of a girl under the age of twenty-one 
years without the consent of her parents or guardians ; such taking is a 
crime {Queen v. Schut, 1 A.C. 37). See Native Territories' Penal Code 
(Act 24 of 1886 (C.C.)), sec. 169 ; Queen v. Buchenroeder (13 S.C. 175); 
Queen v. Wilderman (6 S.C. 295); Rex v. Njova ([1906] E.D.C. 71); 
Barnard v. Rex ([1907] T.S. at p. 271). 

The common law crime of abduction " consists in the taking away 
of an}- female under the age of twenty-one jears from the custody of 
her parents, guardians or tho.se liaving charge of her against their wilL 
The object of the taking away need not necessarily be unlawful carnal 
connection ; but of course it maj' be — and as a matter of fact it gene- 
rally is. But under the common law, to take a girl away for the pur- 
pose of marrying her would be abduction" (per InnE8, C.J., in Rex v. 
Roberts, [1908] T.S. at p. 283). 

Abolitie (D.) is a technical term in old Roman-Dutch practice, 
derived from the Latin word abolitio, and signifies to violate ; to 
destro}' ; to make completely void. It was understood by lawyers 
to be a means of pardon wherebj' a criminal sentence, though already 
pronounced, could be cancelled, with the result that tlie condemned 
person bj- virtue thereof was reliabilitated and restored to his former 
state (see Kersteman's Woordenboek, vols. 1 and 2). Van der Linden 
in his Institutes (Juta's trans. 3rd ed. p. 242), vspeaking of the different 
kinds of pardon granted in criminal cases, says: "Abolition . . . 
takes place in all sorts of crimes, and operates as a complete acquittal 
by reason of a concurrence of very favourable circumstances either in 
respect of the per.son committing the act or of the act committed." 
See also Van Leeuwen's Comvi. 4, 43, 2. 

"About." "The word a6oiii must be rea.sonably construed. The 
construction of the word must largely depend upon the circumstances. 



ABOUT 5 ABSOLUTION 

One might be entitled to construe the word about much more liberally 
in one case than in others" {per Bale, C.J., in Bergl t& jCo. v. Trott 
Bros., 24 N.L.R. at p. 510). 

As to use of about in connnercial transactions, see Benjamin on 
Sales, 4th ed. pp. 699 et seq., wliere a number ol' cases are referred 
to. See also Societe Anonyme I'lnditstrielle Riisso-Belge v. Scholefield 
(7 Com. Cas. 114); Frangopulo A Co. v. Lomas cfe Co. (18 T.L.R. 461). 

As to use of about in Workmen's Compensation Acts, see Pattison 
V. Wliite & Co., Ltd. (20 T.L.R. 775) ; Fenn v. MiUer ([1900] 1 Q.B. 788 : 
69 L. J. Q.B. 439 ; 82L.T. 284; 16 T.L.R. 265); Owens v. Campbell, Ltd. 
([1904] 2 K.B. 60; 78 L.J. K.B. 684; 90 L.T. 811; 20 T.L.R. 459). 

Abrogate, to repeal ; to annul hy competent authority ; to become 
obsolete by disuse. "Any Dutch law which is inconsistent with .such 
well-established and reasonable custom [referring to South African 
usages], and has not, although relating to matters of frequent occur- 
rence, been distinctly recognised and acted upon by the Supreme 
Court, may fairly be held to have been abrogated \>y disuse " {per 
De Villiers, C.J., in Seaville v. Colley, 9 S.C. at p. 44). See also 
Salisbury Reef G. M. Co. v. British South Africa Co. (15 S.C. 875); 
Parker v. Reed (21 S.C. 496). 

Absent, not present in a given place at a given time. See Garlicke 
l(.- Holdcroft V. Carrie (27 N.L.R. 154). 

In the Transvaal Payment of Members of Parliament Act (12 of 
1907, .sec. 2) "absent in respect of a member shall mean absent from 
the House of Parliament, or a committee of which he is a member, 
during the whole of a working day for any cause other than his own 
sickness or injury." For the same definition see Act 21 of 1908 
(O.R.C.), .sec. 2. 

"Absent himself." Altliough there is a difference between the 
act of '■ absenting oneself," which is purely voluntary, and the fact of 
" being absent," which is voluntar^r or involuntary as the case may be, 
yet the fact that a person is absent under some strong compulsion, 
which does not amount to physical necessity, does not necessarily 
negative the voluntary aspect of his act, or show that he has not 
" absented him.self " (Londo7i, and Northern Bank, Ltd. ; McConnell's 
Case, 84 L.T. 557; [1901] 1 Ch. 728; 9 Maason, 91). 

Absolutie van de instantie (D.), absolution from the instance. 
See Van der Linden's Institutes, 3, 1, 2, 15. A form of judgment 
granted, where the plaintiff has not established his claim to the .satis- 
faction of the court, enabling him, on obtaining better evidence, to 
institute proceedings de novo. See Absolution from the Instance. 

Absolution from the instance. " By long practice in the courts 
of South Africa ohsolution from the instance has acquired a wider 
range than it possessed in the Dutch courts. The latter courts con- 
fined this form of judgment to tlio.se cases in which a plea in abatement 



ABSOLUTION- 6 ACCEPTOR 

would be successfully pleaded according to the practice of the English 
courts. In this [Cape] Colony, however, and I believe in the neigh- 
bouring States, it has been a constant practice to grant absolution 
in cases where the plaintiff has not established the facts in support 
of his case to the satisfaction of the court. At first it was treated 
as equivalent to a nonsuit, and confined to cases in which evidence 
had been given for the plaintiff' only. In course of time, however, 
it was extended to cases in which evidence for the defendant had 
also been given. It was found convenient to have a form of judg- 
ment whicii would enable the plaintiff to take fresh proceedings 
without exposing himself to a plea of lis finita. But it has never 
been understood that a defendant is bound to accept absolution from 
the instance if tlie evidence given at the trial is of such a nature as 
to entitle him to judgment in his favour. In such a case he would, 
in my opinion, be quite entitled to object to absolution. But the 
objection should be taken at the time of judgment. In most case.s 
a defendant is perfectly satisfied with absolution, and the judge who 
grants it would reasonably conclude that the defendant is satisfied if 
no objection is taken " (per De Villiers, C.J., in Corhnndge v. Welch, 
9 S.C. at p. 279). See Act 39 of 1896 (N.), sec. 53. 

Acceptance means an acceptance completed by delivery or noti- 
fication (sec. 1 of the English Bills of Exchange Act, 1882). The 
acceptance of a bill is the signification by the drawee of his assent 
to the order of the drawer. An acceptance is invalid unless it com- 
plies with the following conditions, namely : (a) It must be written 
on the bill and be signed by the drawee (the mere signature of 
the drawee without additional words is sufficient) ; (6) it must not 
express that the drawee will perform his promise by any other 
means than the payment of money (sec. 17 of English Bills of 
Exchange Act, 1882). Both .sections above quoted have been taken 
over in the Bills of Exchange Acts of the South African colonies; 
see Act 19 of 1893 (C.C), .sees. 1 and 15 ; Law 8 of 1887 (N.), sees. 1 
and 16: Proclamation 11 of 1902 (T.), sees. 1 and 15; Ordinance 28 
of 1902 (O.R.C.), sees. 1 and 15. 

Acceptilatio, the release of the debtor from the debt b}^ the 
creditor without any consideration (Grotius' Introduction, 3, 41). 
An agreement to release a debt, when clearly established, is a good 
defence to an action brought by the executors of the creditor against 
the debtor for the recovery of the debt (Van der Peel's Executors 
v. Malan, 15 S.C. 70; see also Duncker v. Paddon & Brock, Ltd., 
[1903] T.S. 463). 

Acceptor. Under the Bills of Exchange Acts an acceptor is a 
person who accepts a bill {see Bill of Exchange), and by accepting 
it (a) engages that he will pay according to the tenor of his acceptance ; 
and (6) is precluded from denying to a holder in due course : (1) the 
existence of the drawer, the genuineness of his signature, and his 
capacity and authority to draw the bill; (2) in the case of a bill 



ACCEPTOR 7 ACCIDENT 

payable to drawer's order, the then capacity of the drawer to indorse, 
but not tlie genuineness or validity of his indorsement ; (3) in the 
case of a bill payable to the order of a third person, the existence of 
the payee and his then capacity to indorse, but not the genuineness or 
validity of his indorsement. See Act 19 of 1893 (C.C), sec. 51 ; Law 8 
of 1887 (N.), sec. 53; Proclamation 11 of 1902 (T.), sec. 52; Ordinance 
28 of 1902 (O.R.C.), sec. 52; Bills of Exchange Regulations, 23 of 
1895 (R.), sec. 52. 

Access, approach, or means of approach or admission. Where in 
granting a decree of judicial separation, the custody of the minor 
children being given to the mother and the father to have reasonable 
accf.svs' to the children, the Supreme Court of the Transvaal, on appeal, 
intimated its opinion that tlie right of rea.sonable access included the 
right to take the children for drives under reasonable conditions 
{Mitchell V. Mitchell, [1904] T.S. 128). 

Accession, Accessio, or Accessie (D.), takes place when the more 
valuable of two things wliich are joined together takes to itself the 
less valuable (Grotius' Introdxictioni, 2, 9, 1 ; see also Van Leeuwen's 
Comm. Kotze's trans, vol. 1, p. 175). "Accessiov is the process by 
whicli one thing accedes or becomes added to or incorporated with 
another in such a way tliat it is regarded as forming part and parcel 
of the latter, and becomes by such process the property of the owner 
of the same" (Maasdorp's Institutes, vol. 1, p. 41). It takes place 
either by the action of nature or by the act of man. As examples 
of the former class may be mentioned tlie offspring of animals, 
alluvion, and formation of islands in rivers. Examples of the latter 
class are specificatio, confusion, building, planting, sowing, writing, 
painting. 

Accessory. (1) The lesser object or thing which accedes to a 
principal object or thing; when these are joined together they cause 
what is called " accession." See Accession. 

(2) In criminal law the expression accessory signifies some person 
who was not present at the commission of a crime, but who in some 
way aided, or was concerned in its perpetration, either before or after 
the act. 

No one can be found guilty as an accessory to a crime unless it is 
first proved that such crime has actually been committed either by 
a known or an unknown person as principal wrong-doer {State v. 
Verkouteren, 1 Off. Rep. Webber's trans, p. 192). 

Accident, a fortuitous and unexpected happening. But an effect, 
although fortuitous and unexpected as regards one person, may as 
regards another be the result of negligence. For, "suppose a man 
were to go blindfold along the street and to run against something, 
could any one say he met with an accident? He would do an act 
that would be very likely to lead to a mischief. It is different with 
the person who might suffer by such act ; he might fairly say that he 



ACCIDENT 8 ACCOUNT 

met with an accident — a peril whicli is liable to every iiiaii wJio goes 
out in the road and meets with negligent people " (per Bkamwell, B., 
in Lloyd v. Gen. Iron Screw Collier Co., 33 L.J. Ex. 269). 

It is not an accident within the meaning of sec. 1 of the Work- 
men's Compensation Act, 1897 (E.), if injury or death results from 
the rupturing of a blood-vessel through internal weakness {Henry 
V. White, [1900] 1 Q.B. 481; 81 L.T.R. 767; 69 L.J. Q.B. 188); or 
from a_ stiain caused by unusual exertioji (Roper v. Greenwood, 
83 L.T.R. 471) ; but it is an accident where a minei- dies from 
blood-poisoning brought about by a piece of coal working into his 
knee while he was hewing coal {Thoiri'pson v. Ashinr/toii Coal Co., 
Ltd., 84 L.T.R. 412). 

Accident Insurance "is a l)ranch of life assurance by which 
persons are enabled to provide against loss to themselves or their 
families in case they are injured or disabled for a time or perma- 
nently, or killed by some one or otlier cause opeiating on tliem 
from without. . . A policy of insurance against accidents as usually 
drawn is not a contract of indenuiity " (Porter's Law of Ivnunxnce, 
5th ed. p. 496). 

Accomplice, an associate or participator in a crime. But such 
persons as are admittedly employed by the public prosecutor for the 
detection of crime are not to be treated in law as accomplices of the 
prisoner (per De Villiers, C.J., in Queen v. Mary Pound, 2 S.C. 
at p. 4). See Particeps Criminis. 

Accord, an agreement or settlement. 

Account stated. " Wliat shall constitute, in the sense of a court 
of equity, a stated account, is in some measure dependent upon the 
particular circumstances of the case. An account in writing, examined 
and signed by the parties, will be deemed a stated account, notwith- 
standing it contains the ordinarj' pi-eliminary clause tliat errors are 
excepted. But in order to make an account a stated account, it is not 
necessary that it should be signed by the parties. It is sufficient if it 
has been examined and accepted by both parties. And this acceptance 
need not be express ; but may be implied from circumstances. Between 
merchants at home, an account which has been presented, and no 
objection made thereto, after tlie lapse of several posts, is treated, 
under ordinary circumstances, as being, by acquiescence, a stated 
account. Between merchants in different countries, a rule founded 
on similar considerations prevailed. If an account has been trans- 
mitted from the one to the other, and no objection is made after 
several opportunities of writing have occurred, it is treated as an 
acquiescence in the correctness of the account transmitted ; and, there- 
fore, it is deemed a stated account. In truth, in each case, the rule 
admits, or rather requires, the same general exposition. It is, that an 
account rendered shall be deemed an account stated, from the presumed 
approbation or acquiescence of the parties, unless an objection is made 



ACCOUNT 9 AOOUSATIO 

tliereto vvitliiii a reasonable time. Tliat reasonable time is to be judged 
of, in ordinary cases, by tiie habits of business at home and abroad ; 
and the usual course is reciuired to be followed, unless there are special 
■circumstances to vary it, or to excuse a departure from it" (Story's 
Equity Jurisprudence, sec. 526). 

Accusatie (D.), a term employed in criminal practice in the 
Netherlands, signifying a complaint or charge. 

Accusatio suspecti tutoris, the accusation of a suspected tutor. 
This was the name given in the Roman law to the action foi- the 
removal of a tutor, arising out of certain circumstances. According 
to Voet, the action also lies in the Roman-Dutch law, and, ({noting 
Montanus, he reduces the grounds upon which it may be brought to 
the following heads: if the tutor bears or has borne enmity to the 
ward's father ; if after the death of the testator the tutor shows an 
•evil character which was previously unsuspected ; if the tutor through 
prodigality begins to waste his own goods and to make away with 
his own property, so that he liimself stands in need of a guardian ; 
if inconsiderately or fraudulently he causes his wai'd to abstain from 
.an inheritance; if he procured the guardianship by bribery or schemed 
to obtain it in any other way or forced himself into it; if he does not 
frame an inventory ; if he robs or embezzles the estate or acts meanly 
•or injuriously towards his ward ; if he fraudulently sells the ward's 
property without an order of court; if he fails to present himself in 
•order to have a certain amount of maintenance tixed for the ward; if 
he refuses to share the administration conjointly with a, co-guardian ; 
if, when he is appointed tutor, he does not appear, and upon being 
publicly summoned by edict he does not present himself (Voet's Gomm. 
26, 10, 2). Negligence, dilatoriness, rusticity, laziness, stupidity and 
folly are also grounds of removal (Voet's Comm. 26, 10, 7). 

In addition to those common law grounds for the removal of a 
tuto)-, .several others have been introduced by statute. In Gape 
■Colony, Transvaal and the Orange River Colony a tutor wiiose 
•estate has been placed under sequestration as insolvent is ipso facto 
removed from office (Ordinance 105 (C.C), sec. 17 ; Administration of 
Estates Proclamation, 1902 (T.), sec. 87 ; Administration of Estates 
Ordinance, 1905 (O.R.C.), sec. 81). In the Transvaal and the Orange 
River Colonj' it is in addition provided that an executor, tutor 
or curator is liable to be removed from office where the court is 
■of opinion that by reason of his absence from the colony, other 
.avocations, failing health or other sufficient reason the interests of 
the estate would be furthered by his removal (Administi-ation of 
Estates Proclamation, 1902 (T), sec. 88 ; Administration of Estates 
-Ordinance, 1905 (O.R.C.), sec. 82). By sec. 19 of Ordinance 105 (C.C.) 
failure of a guardian to frame an inventory is a ground for his removal, 
•and as in the Transvaal and the Orange River Colony such conduct 
renders the guardian liable to a fine (Administration of Estates Pro- 
-clamation, 1902 (T), sec. 96 ; Administration of Estates Ordinance, 
1905 (O.R.C.), sec. 83), it would probably be held a sufficient ground 



AOCUSATIO 10 ACT 

for liis removal there also. Failure of a guardian to pay over to 
the Master of the Supreme Court moneys belonging to the person or 
estate under guardianship is also another "t^atutory ground of removal 
(Ordinance 105 (C.C.), sec. 25 ; Administnuion of Estates Proclamation, 
1902 (T.), sec. 95 ; Administration of Estates Ordinance, 1905 (O.R.C.), 
sec. 87). 

The effect of the accusation of a suspected guardian is that while 
the case is pending he is removed from the administration and another 
is appointed temporarily in his place (Voet's Gomm. 26, 10, 7). The 
application for removal may be made by the Master of the Supreme 
Court, or by any relative of the ward, or any person interested in his 
welfare ( Voet's Gomm. 26, 10, 4). 

Achte (D.), a royal sentence ; a considered judgment. 

Achterborg (D.), rear surety ; suretj- for an indemnity, a person 
who gives .security for the deficiency after the excussion of the debtor 
or other surety (Muller v. Meyer, 1 Menz. 302). 

Acqueste (D. — Lat. acqv.isitum, from quaero), a gain or acquisi- 
tion. Hence acquesteren, in Roman-Dutch law, means to acquire or 
obtain sijmething (see Meyer's Woordenschat, sub voce). 

Acquests, (1) property- acquired by purchase or donation ; (2) pro- 
perty acquired by a spouse during marriage by virtue of community 
of propertj'. 

Acquiescence. " If a party, having a right, stands by and sees- 
another dealing witli the property in a manner inconsistent with that 
right, and makes no objection while the act is in progress, he cannot 
afterwards complain. That is the proper sense of the word acqui- 
escence" (per CoiTENHAM, L.C., in Duke of Leeds v. Earl of Amherst r 
2 Phillips, at p. 123). 

"There can be no acquiescence without knowledge of the facts ' 
{per Solomon, J., in Buck v. Palmer, [1908] T S. at p. 1106). 

As to acquiescence of a servant in notice of dismis.sal, see Bowling 
V. Kingvnlliamstown BorougJi Council (19 S.C. at p. 327). 

Acquittance, a release or discharge from a liability. 

Act, (1) As to whether the term Acts includes Ordinances see 
Fitzpatrick v. Dawes ([1907] E.D.C. at p. 323). 
(2) See Event. 

Act of Deliberation (beneficium deliberandi), a privilege granted 
by the praetorian law, by which an heir was allowed a certain time 
to deliberate whether he would undertake the representation of the 
deceased (Mackenzie's Roman Law, 7th ed. p. 286; see also Benefit 
OF Inventory). This privilege was also introduced into Dutch law. 
" Before the heir determined to accept or repudiate the inheritance 



ACT 11 ACTIO 

he obtained a judicial act of deliberation, which enabled him to do 
certain necessaiy acts of administration without being on that account 
deemed to have accepted the inheritance. If after obtaining the act of 
deliberation and inquiring into the solvency of the estate, the heir still 
remained in uncertainty, he might apply to the Court of Holland for 
the writ of benefit of inventory" (per De Villiers, C.J., in Fischer 
V. Liquidators of Union Bank, 8 S.C. at p. 51). 

In considering the extent to which the Dutch law has been modi- 
fied by the Cape legislature, and in more particularly referring to 
Ordinance 104 of 1833 (C.C), De Villiers, C.J., said : " The act of 
deliberation i.s whoUj' in disuse, and there is not a recorded case, at 
all events after the passing of the Ordinance, of anjr application to the 
Court for the writ of benefit of inventory." 

Act of Superscription, the written statement indoi-sed by a 
notary on the envelope containing a closed will, to the effect that 
the testator declared the cover to contain his last will ; this act of 
superscription is signed by tiie testator, the witnesses and the 
notary. See Van Leeuwen's Comm. 3, 2, 5 : Maasdorp's Institutes, 
vol. 1. p. 121. 

Acten (D.), a public document or writing which is made use of in 
the administration of justice. It was also understood in the Nether- 
lands to mean all kinds of instruments employed in tlie judicial and 
notarial practice. In South Africa acten generallj^ means deeds or 
formal documents. 

Actie (D.), a judicial proceeding in a court of law. 

Actio ad exhibendum, action for production of property. 
" Where the thing or property cl&imed is hidden or detained by a 
third party, or is joined to some other thing or property (in such a 
waj' that a separation can be legally demanded), [a plaintifi'] may 
have recourse to an action for production of the property which is 
the .subject of the vindicatory or possessory suit, this subsidiary 
action being known as the actio ad exhibendum. It is a personal 
action, and onlj' movables can be the subject thereof. . It lies in 
favour not only of those who assert a right of ownership, but of those 
who claim a right of possession, or who claim a right of pledge, or a 
right of usufruct" (Nathan's Comfnoii Law, sec. 638). See Actio de 

TIGNO JUNCTO. 

Actio aestimatoria, see Actio quanti minoris. 

Actio aquae pluviae arcendae, tlie action of obstructing the 
course of rain-water. The law against the diversion of rain-water 
by artificial means is of ancient origin. The remedy was the actio 
aquae pluviae arcendae for removal of the obstruction, oi' caution, 
for possible damage. In arid districts, such as those of Africa, this 
remedy lay against the defendant, not for directing the rain-water on 



ACTIO 12 ACTIO 

tlie property of auotlier, but for diverting in his own favour, which is 
looked upon as an injury (Colq. sec. 2180). In LiuMph and Others v. 
Wegner and Others (6 S.C. 197) De Villiers, C.J., refers to th\9, actio: 
" The action aquae pluviae arcendae is as old as tlie laws of tlie Twelve 
Tables, and rests upon the broad principle that no one lias a right to 
do any acts for the improvement oi- benefit of his own land to the 
prejudice of his neighbour, unless there is an obligation in the nature 
of a servitude upon his neighbour's land to submit to such acts." 

Actio calumniae, action for damages for malicious prosecution. 
Under the civil law a person against whom a false accusation had 
been maliciouslj' laid could sue the caluvvniator, as the false accuser 
was called, either in the action calmnniae or in tlie action injwi'tarura. 
The actio calumniae " seems to have fallen into disuse in the Nether- 
lands. The actio injwriariMft, however, remained in full vigour'' (j)er 
De Villiers, C.J., in Lemiie v. Ztvarfbooi, l-S S.C. 406). 

Actio commodati, action upon loan for use. The direct action 
{actio commodati directa) is employed by the lender to recover his 
property and compensation for damages done to the property, or 
damages sustained by reason of the non-delivery thereof at the 
agreed time. The actio commodati contraria lies in favour of the 
borrower for the recovery of damages for being obstructed by 
the lender in the use of the property, for a refund of extraordinary 
expenses to which he has been put, and for compensation if the 
property had some defect known to the lender which has occasioned 
damage. 

Actio communi dividundo, the action for division of joint pro- 
perty. A person who holds property jointly with others in undivided 
shares may ask for a division and tfhe performance of obligations due 
by the others in respect of his .share. It is by this action that a 
partner can claim a division of the partnership pi'operty, and not by 
the actio pro -vocio. 

Actio conducti, action of hiring: the lessee's action against the 
lessor upon tlie contract of letting. By this action the lessee claims 
that the lessor shall give proper ;i-nd undisturbed use of the property 
hired from him. 

Actio confessoria, the declaratory action instituted by the owner 
of the dominant tenement. The object of this action is that the defend- 
ant .shall be compelled to respect the servitude, and give securitj? against 
disturbing the right for the future. 

Actio de constituta pecunia, an action brought against any one 
who has engaged to pay money, either for himself or for another, 
without any .stipulation coming in. If promised by stipulation the 
promisor's liability was determined by the jus civUe. This procedui-e 
is obsolete in Roman -Dutch law. 



AOTIO 13 ACTIO 

Actio de recepto, the action open to a person against an innkeeper. 
The reception of the person, or goods, or animal suffices to create an 
implied contract on the part of the hotel-keeper to answer for safe 
custody. 

Actio de tigno juncto (or injuncto). If a person builds on his 
own ground with materials belonging to another, he is liable to the 
owner of the materials in the action known in the Roman law as the 
actio dc tigno juncto. Under the term tignmn (beam) are included 
all materials used for building purposes. Although the owner of the 
materials does not cease to be owner, the TwelVe Tables, which in- 
troduced the action, in forbidding the needless destruction of property, 
suspended his right to reclaim them by the real action ad exhibendttm 
so long as the building stood. When the building was destroj'ed and 
the materials were separated such an action could be brought. In the 
meantime the owner of the materials might, if he preferred, recover 
double their value by the actio de tigno juncto, in which case he lost 
his right of eventually reclaiming them. That was the law if the builder 
bad used the materials in good faith. If he had acted in bad faith, 
the owner of the materials was in addition permitted to bring an action 
ad exhibendttm. The effect of that action in Roman law was that the 
defendant was condemned in such a sum as the judge thought tit as a 
punishment for his having put it out of his power to produce the 
materials: but according to Voet the action lies for the value of the 
materials (ad aestimationem tigni). In addition, when the building 
was pulled or fell down the owner of the materials could reclaim 
them (Sandars' Institutes of Jtistinian, 10th ed. p. 105 ; ^^oet's 
Covim. 47, 3, 1). 

Actio depositi, action upon deposit. It is either direct or in- 
direct. The axtio depositi directa is open to the person who makes 
the deposit against the person who has accepted the same for the 
redeliver}' of the property deposited, and for damages occasioned by 
his fault. The actio depositi contrarin lies in favour of the deposi- 
taiy against the depositor for a refund of money expended in pre- 
serving the propertj^ and for damages sustained by him without any 
fault on his own part. 

Actio directa, direct actioii (also called legitima) — an action 
which flows from the words and intention of a statute, or from 
direct, manifest and established law (Sande's Cession of Actions, 8, 1 ; 
Justinian's Institxites, 4, 6). The direct actions were those remedies 
which the civil law prescribed (Col(|. sec. 2022). See Actio IJtclis. 

Actio empti. See Actio ex empto. 

Actio ex empto or actio empti, the xendee's action upon the 
purchase. " Under the Roman-Dutch law a purchaser of goods is 
entitled, in an actio ex empto, to recover damages where there has 
been no delivery at all of the goods " {per De ViLLiERS, C.J., in 



ACTIO U ACTIO 

Irvine & Co. v. Berg, Bucli. 1879, p. 188). In the action e.v empto 
the delivery of the thing sold is sued for, if the thing is corporeal ; 
and cession or other quasi-delivery if the thing is incorporeal ; together 
with the fruits gathered subsequently to the sale and all accessions 
(Voet, 19, 1, 3). If the seller has knowingly deceived the buyer, by 
selling him an article of which he was not the owner, or an article 
possessing a latent defect, the purchaser is allowed to bring an action 
ex empto against the seller to make good all damages whatsoever 
(Benjamin on Saleti, 3rd ed. p. 360 ; Theron and Du Plessis v. 
Schdombie, 14 S.C. 198 ; and O'Brien v. Palmer, 2 E.D.C 350). 

Actio ex stipulatu, action arising from a stipulation. By Roman- 
Dutch law the wife was allowed to sue upon the dissolution of the 
marriage for restitution of her dotal property by the actio ex stipulatu. 
The names of a host of the Roman actions have fallen into desuetude 
{Groenewegen, ad Inst. 4, 6, 2). 

Actio ^xercitoria, the exercitorial action. The exercitor in Roman 
law was the owner or person appointing the master of a vessel. He 
took upon himself all the expenses and risks attaching to the vessel. 
The master of the vessel has implied authority to bind the exercitor 
in reference to matters affecting the ship. This was one of the original 
forms of agency. 

Actio famiUae erciscundae, the action for the division of an 
inheritance. When certain property has been bequeathed to several 
heirs, and it is uncertain what fraction each heir is to receive, the 
court will decree a division of the inheritance upon an action being 
brought for that purpose. 

Actio flnium regundorum, action for declaration of boundaries. 
Whenever the boundaries of adjoining properties have become confused, 
either owner may bring the action for regulation or declaration of the 
correct boundaries. 

Actio, farti, action for theft. In Roman law this action looked 
only to the recovery of the penalty, whether brought for twofold or 
fourfold the loss. It was open to any one that had an interest in the 
safety of the stolen property, even though he was not the owner. The 
condictio furtiva looked to the recovery of the stolen goods, and could 
only be brought by the owner. Where one person manufactures an 
article out of the materials of another, and has acted in bad faith, an 
action will lie in favour of the latter for the value of the materials 
and for damages (actio furti et condictio furtiva,) for wrongful 
conversion. 

Actio in factum ex lege aquilia, action on the Aquilian law 
upon the (special) facts. Damage done nee corpore nee corpori 
(neither with the body nor to the body) could be i-ecovered by the 
actio in factum (Justinian's Institutes, 4, 3, 16). This action was 



ACTIO 15 ACTIO 

likewise open to the owner of materials which have been bond fide 
used by another person in manufacturing an article. 

Actio injuriarum, ■■^le Injuria. 

Actio institoria, the action in Roman law which was given against 
a person (praepo7iens) who had appointed another (institor) to manage 
a shop, business or undertaking on his behalf in order to enforce lia- 
bilities incurred by the institor to third parties in connection with the 
business. See Institor. 

Actio locati, the lessor's action against the lessee, upon the 
contract of hire, for rent, and damages for the br-each of the express 
or implied conditions or obligations incidental to the contract. 

Actio negatoria, the negatory action in servitudes, sometimes 
called cont7\iria. It is open to the owner of property over which 
a servitude is claimed to have it declared that the property is free 
from the servitude ; or, where a servitude does exist, that it is not 
the one which is sought to be exercised, or is not due to the tenement 
for which it is claimed. The action also applies where the owner of 
the praedium do'ininans wishes to exercise the servitude in a different 
manner from that to which he is entitled, as where he wishes to insert 
more beams in the wall of the praedium. serviens than its owner 
allowed from the beginning, or to put them in in a different manner. 
It lies, too, wliere tlie servitude is due from one property, and its 
exercise causes damage to another tenement which is not subject to 
the servitude, as where one owner has pipes on the public waj^ or on 
the property of another for the purpose of leading water and the pipes 
break and the water' inundates a neighbour's wall ; also, if an owner 
constructs a dung-pit or a bath against or near to his neighbour's wall 
and the wall is thereby moistened, or if the wall of one owner becomes 
bent and overhangs his neighbour's propertj?^ by half of a foot or more, 
for although in such cases (Voet explains) the act complained of has 
been done not on the property which suffers injury, but on the doer's 
own pi-operty, and any one can lawfully do on his own property that 
which may cause injury to his neighbour if it is to his own advantage ; 
yet this freedom of action is limited in so far as he cannot let any- 
thing go from his property on to that of his neighbour, whereas in 
the above cases he lets water and dampness reach his neighbour's 
wall and allows his wall to project over his neighbour's property. 
In the case of encroachment the action may contain a claim for its 
removal. The actio negoAoria may also include a claim for damages 
and an interdict against future disturbance (Voet's Gomm. 8, 5, .5). 

Actio personalis moritur cum persona, a personal action dies 
with the person. This maxim has a raucli more limited application 
in the Roman-Dutch law than that which it receives in English law 
(see Morice's English and Ronan- Dutch Laiv, 2nd ed. p. 238). In 
Roman-Dutch law the death of a person in no case affects his con- 



ACTIO 16 ACTIO 

tractual rights and obligations, which transmit to and against Jiis 
estate (Voet's Comm,. 47, 1, 3). As regards torts or delicts, the maxim 
applies only to actions for injuria and actions for homicide. In its 
special sense, as it is used here, the term injuriae denotes wrongs to a 
man in his person, dignity or reputation, involving an element of in- 
sult, and includes such cases as assault, malicious arrest, and defan)a- 
tion. Here the right of action ceases with the death of either party 
and does not transmit to or against heirs, unless the death has taken 
place after litis contestatio, i.e. after the close of the pleadings (Voet's 
Comm. 47, 10, 22 ; Meyer's Executors v. Gerricke, Foord, 14). In the 
case of homicide the heirs of the deceased have no claim against the 
person who caused the death, except for funeral expenses and any 
other special expenses caused by the crime. The widow and children, 
however, and any others who were dependent upon the deceased for 
theii- support, have an action for damages against the wrong-doer 
(Voet's Goinm. 9, 2, 11 : Grotius' Introduction, 3, 33, 2 : Van Leeuwen's 
Comm. 4. 34, 14). 

Actio pignoratitia, action upon a pledge. It is either direct 
(directa) or indirect (contraria). The direct lies in favour of the 
debtor, who has discharged his debt, against the creditor for the 
redelivery of the propertj^ pledged, for damages caused thereto by 
his negligence, and for an account of the fruits which have sprung 
therefrom. The actio pignoratitia contraria lies in favour of the 
creditor against the debtor for an indemnity in cases where t\\^ 
latter has pledged a stranger's property as his own, or where a latent 
defect is discovered reducing the value of the security, or where the 
creditor has incurred expenses in the preservation of the property. 

Actio praescriptis verbis. In Roman law the forms of action 
originally provided only for contracts falling under the well-known 
heads, such as sale, hiring, mandate and partnership. Thus, in the 
case of a sale the demoiistratio, or first part of the fcn^muLa, which 
set forth the facts, ran. Quod Auhis Agerius Numerio Negidio 
hominem vendidit, i.e. that Aulus Agerius (states he) sold a slave 
to Numerius Negidius. (For an example of a full formula, see Sandai's' 
Institutes, Introduction, p. 68.) Where an agreement did not come 
under the known forms, i.e. was innominate, but nevertheless con- 
tained definite obligations, the praetor, to enforce performance, granted 
an action, the demonstratio of which set forth, instead of the short 
title appropriate to nominate contracts, the facts or circumstances 
upon which the plaintiff relied. The action was accordinglj' termed 
an actio praescriptis verbis, or in factum, sometimes (both expres- 
sions being combined) in factttm praescriptis verbis, i.e. an action to 
meet the case, the woi-ds being set forth at the beginning. 

Actio pro socio, action at suit of a partner. It lies in favour 
of one partner against the other, and the main ground of this action 
is the securing of compensation for losses sustained, or payment of 



ACTIO 17 ACTIO 

profits withheld, or generally the rendering of an account by the 
administering partner. 

Actio pubUciana, the name given in Roman law to the action 
which lies in favour oi: a person for the recovery of property of which 
he has lost possession, where he is not yet the legal owner, but is in 
the way of becoming so through prescription (Voet's Coiiim. 6, 2). 

Actio quanti minoris, action for a return of part of the purchase 
money proportionate to the defects discovered in the thing purchased. 
By this action a purchaser claims back the amount above what he 
would have paid if he had been aware of the defect. This action is 
also termed actio aestimatoria (action for a fair valuation of the article 
purchased). If the defect is such that the purchaser would not have 
bought at all had he known of it, he may avail himself of the actio 
redhibifm-ia (qj'.): but if the defect is such that he would notwith- 
standing have bought the thing, the purchase will be binding, and he 
can within a year claim a refund of the difference between the amount 
he would have paid and the amount he actually paid (Van Leeuwen'a 
Gomm. Kotze's trans, vol. 2, p. 145, and O'Brien v. Palmer, 2 E.D.C. 
344 ; see also Irvine it Co. v. Berg, Buch. 1879, p. 183). 

Actio quod JUSSU " is a personal action given to a creditor who 
has contracted with the son on the authority of the father, whether 
such authority be general or special ; and lies against the father, 
claiming the amount for which the father gave his authority to the 
contracting of the debt" (Nathan's Common Law^ sec. 221). 

Actio redhibitoria, the action which lies in favour of a purchaser 
for the purpose of enforcing rescission of the sale on the ground of 
latent defect in the thing sold. The remedy applies whether the seller 
knew of the defect or not, provided the defect is such as would have 
deterred the purchaser from buying if he had .been aware of it before 
the sale was completed {O'Brien v. Palmer, 2 E.D.C. 344). If the 
purchaser would have bought notwithstanding the defect, his remedy 
is the actio quunti minoris, by which he claims back the excess of 
the price paid over the real value of the thing after allowing for the 
defect. According to the authorities the redhibitory action should be 
brought within six months after the sale, although the time may be 
extended by the court upon good cause being shown {Christie v. 
Etheridge, 19 S.C. at p. 370). In the Transvaal by Act 26 of 1908, 
sec. 3, one j^ear is now fixed as the period of prescription in respect 
of both the actio redhihitmna and the actio quanti mi7ioris. 

Actio tributoria. " If the father have permitted the son to trade 
with such wares as are included in his peculium profectitium, he is 
obligated by the contracts of his son, and what are equivalent thereto, 
without any preference for his own claims, and must submit to the 
son' f^ peculium profectitium being distributed pro ratd, and to taking 
his share according to the relative goodness of the wares, and extent 

B 



ACTIO 18 ACTION 

of tlie claims. Sliould any oversight liave occurred, the person damni- 
fied must seek his indemnity from him who received a surplus. If, 
however, the plaintiff charge the father with a fraudulent favouritism, 
he can take liis remedy by the actio tributoria for the damage caused 
him : the action will also lie for a fraudulent refusal to make a 
dividend" (Colq. sec. 2191 ; see also Voet, 14, 4, 1-8). 

Actio tutelae directa and Actio tutelae contraria, the direct 
and indirect actions arising from guardianship. The direct action 
lies in favour of the ward to obtain an account of the guardian's ad- 
ministration, while the indirect action is open to the guardian to 
indemnify him for his losses or expenditure during the term of 
the tutelage. These actions are available upon the termination of 
the guardianship. 

Actio utilis, an action given by the Eoman praetor in cases where 
no direct action was applicable by the jus civile. A case wherein the 
praetor gave an action was often analogous to a case where an action 
had been given by the jus civile. Hence the right of action given by 
the praetoi- was given by way of analogy, and hence also the action 
was styled utilis, derived in this sense from titi the adverb, and not 
uti the verb. The praetor gave the action, as he would have given 
it if tlie case submitted by the applicant had fallen within the pro- 
vision of the jus civile (Austin on Jurisprudence, sec. 35, p. 621). 
When the civil law prescribed an action and the praetor found it 
necessaiy to extend it to persons or cases not within its sphere, he 
granted the utilis actio (equitable action), after the pattern of the 
direct action (Sande's Cession of Actions, 8, 1 ; Justinian's Institutes, 
4, 6). For example, in early Roman law an obligation could never be 
ceded ; later on, however, the praetor gave the assignee the assignor's 
right of action, and modified the intentio in such a waj' as to instruct 
the jticlex to treat the assignee as the real creditor, and to decide 
accordingly. The assignor had the actio directa, while the assignee 
was allowed the ncfio utilis (cf. Anders' Cession of Actions, pp. 147 
and 167). 

Actio venditi or Ex vendito, the name given in the Roman 
law to the action to which a vendor is entitled for the recovery of 
the purchase-price of the thing sold (Voet's Comon. 19, 1, 16). 

Action. (1) Action is the legal remedy which a person institutes 
by means of a summons against another in order to assert or maintain 
his rights, or redress a wrong committed against him. The person 
instituting the action is called the plaintiff, in Dutch klager or aan- 
legger, and the person against whom the action is brought, the defend- 
ant, in Dutch verweerder or gedaagde. 

There are two main classes of action, viz., actions in personam or 
personal actions, and actions in rem or real actions (see Maasdorp's 
Institutes, vol. 2, p. 4). In the Cape Bills of Exchange Act (19 of 



ACTION 19 ACTORE 

1S93), sec. 1, the term a.ction is defined to include "a counter-claim, 
claim in reconvention and set-off"; see also Law 8 of 1887 (N.), 
sec. 1; Proclamation 11 of 1902 (T.), sec. 1; Ordinance 28 of 1902 
(O.R.C.), sec. 1. 
(2) See Event. 

Action of reclame. ' This action is of a real nature, and lies for 
th^ recovery of the plaintiff's property in the possession of the defend- 
ant. It is either direct or utilis. In the former case it is given to 
those to whom the actual strict ownership belongs, and in tlie latter 
to those who have the beneficiary ownership or right of possession " 
(Decker's note to Van Leeuweii's Gonim. Kotze's trans, vol. 1, p. 187). 

Active service. In the Cape Colony : " Any portion of the 
colonial forces shall be deemed to be on active service when (a) it 
has been called out under this Act for service against an enemy, or 
for service in a country or place wholly or partly occupied by an 
enemy : (b) it is in military occupation of any place outside this [Cape] 
Colony ; (c) a proclamation has been issued by the Governor, under the 
powers conferred upon liim by the 8.5th section of this Act, declaring 
that the whole of such portion of the colonial forces sliall be deemed 
to be on active service for the period mentioned in such proclamation" 
(Act 32 of 1902 (C.C), sec. 2). See Ordinance 37 of 1904 (T.), see. 1 ; 
Ordinance 35 of 1905 (O.R.C.), sec. 1. See also Military Service. 

Actor, plaintiff's antithetical to reus, defendant. 

Actor or Adjutor tutelae, a joint guardian appointed by the 
judge or by the head of the State when the guardian is prevented 
from administering the tutelage (Voet's Oomm. 26, 1, 1). 

Actor rei forum sequitur, the plaintiff follows {i.e. must institute 
proceedings in) the defendant's court (Code, 3, 13, 2; Voet's Oomm. 
5, 1, 64). "The general rule is actor sequitur forwin rei, although it 
is sometimes relaxed, as, for example, when the defendant or property 
belonging to him is found in this country " (per De Villiers, C.J., in 
Barkhuysen v. Van Huysten, 1 S.C. 27). An arrest or attachment 
ad fundandam jurisdictionem is then essential, and the court issuing 
the arrest, although previously not the proper forwin ret, becomes a 
forum in which the defendant can be sued by virtue of such arrest 
{Homhlow v. F other ingham, 1 Menz. 365). But to entitle the plaintifi' 
to arrest ad fundcinda/m, jurisdictionem, it js necessary that lie should 
be domiciled within the jurisdiction of the court: a peregrinus cannot 
make such an arrest (Einwald v. German West African Co., 5 S.C. 86 ; 
Springle v. Mercantile Association of Swaziland, [1904] T.8. 163). 

Actore non probante, qui convenitur, etsi nihil ipse praestat, 
obtinebit, if the plaintiff fails in his proof, he who is sued, although 
he adduces no evidence, will prevail. See Actori incumbit onus 
PBOBANDI. 

B 3 



AOTORE 20 ACTUAL 

Actore non probante, reus absolvitur, if the plaiutift" fails in 
his proof, the defendant is absolved. Sec. AcTORi INCUMBIT ONUS 

PROBANDI. 

Actori incumbit onus proband!, the burden of proof lies upon 
tlie plaintiff. He wlio invokes the aid of the law against another 
must advance sufficient proof to establish clearly liis own right, and, 
until he does so, his adversary- cannot be required to refute it. The 
same principle i.s variously expressed in the maxims, Actore non pro- 
bante, reus absolvitur (if the plaintiff fails in his proof, the defendant 
is iibsolved) : Semper necessitas probandi incumbit illi qui agit (the 
necessity of proof always lies upon him who takes action) ; Actore non 
probante, qui convenitur, etsi nihil ipse praestat, obtitiebit (if the 
plaintiff fails in his proofs, he who is sued, although he adduces no 
evidence, will prevail) ; Deficiente probante remanet reus ut erat 
antequam cont'eniretur (when the proof fails the defendant remains 
as he was before he was sued). Of this the maxim In obscuris 
minimum est seq^oendiim is a corollary, the application of which is 
illustrated by the case of Channes v. Pezzey (1 Camp. 8), referred to 
by Best on Evidence (10th ed. p. 243). In that case a liquor merchant 
sued for the price of goods sold and delivered, and the only evidence 
being that several bottles of liquor, of what kind did not appear, were 
delivered at the defendant's house, the jury were directed to presume 
that they were tilled with the cheapest liquor in which the plaintiff 
dealt. It may, however, happen that the burden. of proof is shifted 
to the defendant, for if, instead of denying the casd of the plaintiff, he 
relies on some new matter as an answer to it, he is bound to show at 
least a prima, facie case. Here the maxim is, Agere is videtur, qui 
e.cceptionc utitur : nam reus in exceptione actor est, he who avails 
himself of an exception is considered a plaintiff; for in respect of liis 
exception a defendant is a plaintiff (Best on Evidence, 10th ed. sec. 267). 

"Actual cost " does not include interest on capital during period 
of construction ; see Hills v. Colonial Government (21 S.C. at p. 69) ; 
conti lined on appeal to the Judicial Committee of the Privy Council, 
see Commissioner of Public Works v. Hills (94 L.T. 833 ; [1906] A.C. 
368; 22 T.L.R. 589; 75 L.J. P.C. 69). 

In an action by contractors for railway construction against the 
Government, actual cost was held to mean " the cost actually incurred 
by the contractors in constructing the work, so far as the Go\ernnient 
has had the benefit of it," and does not "include interest or good- 
will or wasted expenditure, or material of which the Government has 
not had the benefit. As an illustration of what I mean by ' wasted 
expenditure ' I may repeat the case of a culvert condemned by the 
engineers. If in consequence of faulty construction of such a culvert 
it is broken up and a new culvert is constructed, such new culvert 
alone forms part of the work taken over, and has to be paid for " 
(per De Villiers, C.J., in Hills v. Colonial Government, 20 S.C. at 
pp. 133 and 135 ; also at p. 416). In Bulawayo Municipality v. 
Bulawayo Waterworks Co., Ltd. (16 C.T.R. 941 ; [1908] A.C. 241 ; 



ACTUAL 21 ACTUS 

77 L.J. P.C. 70 ; 98 L.T. 600) B W had agreed to supply i;lectric light 
in B to the inhabitants, streets, public places and private property. 
To carry out the work they were to do certain specified things and to 
provide everything necessarj', although not specified, to supply the 
liglit to the street lamps, and the B M undertook to pay them such 
sum as would yield a return of 10 per cent, over the "actual cost of 
generating the light." Held, that actual cost did not include interest 
on capital, but did include depreciation of plant and machinery as well 
as rates, rents, taxes and insurance, and that generating the light in- 
cluded the whole process leading up to the production of the light in 
the street lamps. See also Distributing Cold Storage Syndicate v. 
Imperial Cold Storage Co. (17 C.T.R. 1085). • 

"Actual occupation." Where actiud occupation is recjuired by 
a statute relating to registration for voting purposes, it would seem 
that the personal presence of the occupier is nece.ssary, and that con- 
structive occupation will not suffice. " His personal presence may 
not be recjuired for every day of the year, but he must have been 
in personal occupation of the premises for a sufficient time during 
tlie requisite period immediately preceding the registration as to 
satisfy the registering or revising officer as to his actual and bond 
fide occupation. If during the qualifying period there is a break 
not only in his axtual occupation, but also in his right of occupa- 
tion, the 3rd section of Act 48 of 1898 (C.C.) is not complied with, 
and registration cannot be allowed " {per De Villiers, C.J., in Alheit's 
Case, 20 S.C. at p. 234). 

" It would be difficult to lay down any general rule as to' the 
number of days during whicji the personal presence of the occupier 
is required to establish his actual and bond fide occupation. An 
occasional presence merely for the purpose of giving colour to the 
claim for registration would not be enough, but there should be a 
personal occupation for such a period as would fairly entitle the 
occupier to be regarded as one of the inhabitants of the electoral 
division" (per De Villiers, C.J., in Michau's Case, 20 S.C. at 
p. 235). 

"Actual possession," discussed in Israelsons Insolvent Estate 
V. Harris I- Black and Others (^^ S.C. at p. 139). 

Actuary, a person skilled in matters connected with complex 
calculations relating to life insurance, annuities, and the like. 

Actus, a real servitude, consisting in the right of driving vehicles 
6v animals over another's land. 

Actus Dei, act of God. 

Actus non facit reum, nisi mens sit rea, the act does not make 
(the performer) a criminal, unless there be a criminal intention. The 



ACTUS 22 AD 

essence of all crime, in'ofcher words, is the criminal intention with which 
the act has been committed. The maxim, however, does not mean 
that it is always necessary to establish clearly a criminal intention, 
for there are cases in which mens rea is presumed by the law, and in 
which the defence of want of intention would Vje of no avail. Thus if 
one assaults another with a weapon likelj' to cause death, and death 
ensues, the crime is murder, even though the accused should seek to 
prove that at the time of the assault he had no intention to kill, as the 
law will presume such intention from the fact that death was the 
natural and probable result of the means of attack employed, and that 
either such result was at.the time present to the mind of the assailant or 
he was utterly regardless of the consequences of his act. Again, crime 
may consist not in any intention to do wrong, but in an omission to do 
what is right, where such neglect results in bodily injury to others ; 
for example, culpable neglect of duty on the part of a pointsman in 
allowing a tiaiu to pass at a wrong time, whereby an accident is 
caused and persons are killed or injured. Here the crime is of a 
negative character, consi.sting not in doing that which is wrong, but 
in omitting to do what is right, accompanied by injury U) others. In 
the case of statutes which expres.sly prohibit certain acts, for example, 
statutes regulating public health, such as Food and Drugs Acts, the 
comnrn'ssion of the prohibited act maj' infer punishment, although the 
doer acted in ignorance and without wrongful intention. Thus in 
Dickson v. Pretoria Municipal Council ([1906] T.S. 878), where a 
municipality in pursuance of its statutory powers made a Vjye-law 
prohibiting any person, being the owner or in pos.sesaion of diseased 
nieat. from selling the .same for human consumption, and the accused, 
a clerk in a butchery, sold on behalf of his employer diseased meat 
intended for human consumption, but without knowledge of its con- 
dition, it was held that knowledge on the part of the seller was not 
necessary to constitute a contravention, that the bye-law was not 
ultra vires and the accused was liable. So where accused were 
charged with selling hop-beer to coloured persons in contravention 
of sec. 46 of Ordinance 32 of 1902 (T), hop-beer being included in 
intoxicating liquor as defined by that statute, the accused alleged 
that although they knew what they were selling, they did not know 
that it contained alcohol : but it was held that they had knowingly 
sold what the law prohibited, and that the absence of mens rea was 
no defence ( Wing Way and Ho Kam v. Rex, [1907] T.S. 8). 

In the case of civil actions to recover damages for negligence or 
misconduct, it is not the intention, but the result, of the act that is 
looked to. Whether an act was done knowingly or not is, however, 
very often an important consideration in civil actions (see May v. 
Burdett, (1846) 9 L.R. Q.B. 101 ; Jackson v. Smithson, (1846) 15 M. & 
W. .56.5 . 15 L.J. Ex. Rll ; and Hudson v. Roberts, (1851) 6 Ex. 697). 

Ad arbitrivun, at will or pleasure. 

Ad arbitrium judicis, at the discretion of the judge. 



AD 23 AD 

Ad factuza praestandum, to perform an act. Provisional sen- 
tence cannot be granted on an obligation ad factum praestandwm 
(for specific performance). See Christie v. Kimiear (2 Searle, 272), 
overruling Borradailes c& Co. v. Maynier (1 Menz. 35). 

Ad fundandam jurisdictionem, to found jurisdiction. " Where 
a defendant is domiciled outside this colony and the Court has [not ] * 
otherwise jurisdiction, the invariable practice has been to attach the 
person or property of the defendant to found jurisdiction " (per De 
ViLLiERS, C.J., in McLeod v. Benjamin, 9 S.C. 184). "The grounds 
upon which the jurisdiction of the Court can be exercised are three- 
fold, viz., by virtue of the defendant's domicile being here, by virtue 
of the contract either having been entered into here or having to 
be performed here, and by virtue of the subject-matter in an action 
in rem being situated in the colony. If the defendant is domiciled 
here the proce.ss of attachment is wholly unnecessary " (per De 
T1LLIER.S, C.J., in Einwald v. German West African Co., 5 S.C. at 
p. 91). 

Ad medium filum, to the middle line. In English law, where a 
grant of land is made with a road or a river as the boundary, there is 
a pre.sumption that the grant extends to the middle of the road or 
river, although the presumption may be rebutted by evidence to the 
contrary. As regards at least public rivers there is no such rule in 
the Roman-Dutch law, it being held that the right of a proprietor to 
the half of the bed of the liver bounding his land must clearly appear 
from the terms of his grant {Beaufmi, West Municipality v. Wernich, 
2 S.C. 36). As the interdict of JRoman law which lay against any 
one who interfered with the navigation of a public river does not 
apply to private rivers, which are to be treated in the same way as 
other kinds of private property (Pothier on the Pandects, 43, 12, 1, 
sees. 1 and 3; Voet's Comm. 43, 12), there may be some ground for 
holding that the right of a proprietor of land bounded by a private 
river extends to the middle of the bed of the river. In Scots law, 
which also follows the Roman law, there is .such a pre.sumption (Bell's 
Primciples of the Law of Scotland, sec. 738). 

Ad valorem, according to the value. An expression used in 
statutes relating to customs, stamps and licenses, signifying that the 
duty charged or the .stamp imposed is payable according to the value 
of the goods, or according to the amount in respect of which the stamp 
or licen.se is payable. 

Ad vitam aut culpam, for life or till fault. This phrase is used 
of an office the tenure of which is determinable by the death or 
delinquency of the holder. The equivalent phrase generally used in 

* The word "not" has been evidently omitted from the report, for it is plain that 
if the Court has otherwise jurisdiction over the defendant there is no necessity for the 
arrest; this is borne out by reference to the report of the same case in 2 C.T.R. at 
p. 120, and to Einwald v. German West African Co. (5 S.C. at p. 91). 



AD 24 ADIATION 

England is, Dum se bene gesserit (so long as he conducts himself 
properly ; during good behaviour). 

Judges of the Supreme Court hold their offices upon this tenure 
(Charter of Justice (C.C). sec. 5 ; Supreme Court Act, 1896 (N.), sec. 26 ; 
Administration of Justice Proclamation, 1902 (T.), sec. 4; Adminis- 
tration of Justice Ordinance, 1902 (O.R.C.), sec. 6). 

As a rule, however, a serva.nt of the Crown holds his office during 
pleasure, and his dismissal gives no right of action, whatever may 
have been the terms of his original appointment {Malcolm, v. Com- 
missioner of Railways, [1904] T.S. 947 ; Sheard v. Attorney -General, 
[1909] T.S. 659). The only exceptions are statutory, such as the above 
{In re Tufnell, 3 Ch. D. 164 ; Grant v. Secretary of State far India,, 
2 C.P.I). 445). 

Addictio in diem. This was the name given in the Roman law 
to a condition added to a contract of sale to the effect, either that the 
sale was to become binding only if the seller did not meet with a better 
offer within a certain time, or that the sale was to be immediately 
binding, but should be dissolved if better terms were offered by 
another person within a certain time. In the former case the addictio 
is suspensive, and until the condition fails through no better offer being 
received within the time fixed, the sale does not take effect. But 
where the addictio is resolutive, as in the latter case, the sale becomes 
at once binding, and although it will be dissolved should the resolutive 
condition be fulfilled, the risk, and by delivery the ownership also, 
will in the meantime pass to the purchaser (Voet's Comm. 18, 2, 1). 

Addieeren or adieeren (D.), to adiate or enter upon or accept 
an inheritance. See Adiatjon. 

Adduce, to cite or bring forward some authority or evidence in 
support of some proposition. 

Adelbroeder (D.), a brother on the luothei-'s side. 

Adhesive stamp, a gummed stamp capable of being affixed to 
letters, parcels, documents and the like. Adhesive stamps used for 
revenue purposes require to be cancelled within certain prescribed 
periods, and usually in a specific mannei-. 

Adiation, a term adopted from tlie Roman law signifying the 
acceptance of an inheritance by the heir. The instituted heir was 
not bound to accept the inheritance ; he might repudiate it, or take 
time to deliberate, or adiate it. The adiation " consists in the inten- 
tion which may be indicated, not only by words, but by actions ; tor if 
the instituted heir, well knowing whether he has acquired a right to 
the inheritance by last will or ab intestato, disposes of any pait of the 
inheritance, he is considered as adiating, unless he declares that he 
does so merely out of kindness, or unless he has received judicial 
permission to do so" (Grotius' Introduction, 2, 21, 5). The penson 
adiating became liable for all the debts, even though they should 



ADIATION 25 ADJOINING 

€xceed the assets of tlie estate, unless such person had availed him- 
self of the right or benetifc of inventory. Adiation as understood in 
Roman and Roman-Dutcli law is now obsolete in South Africa. At 
the present time it means nothing more than the acceptance of the 
inheritance under a will by the heir. See Denyssev v. Mostert 
<Buch. 1873, p. 31). 

Adjacent. According to the n)ost modern decisions this term is 
not synonymous with " adjoining." In the judgment of the Judicial 
Committee of the Privy Council in City of Weilington. v. Borough of 
Lower HiM ([1904] A.C. 773; 91 L.T. 539; 20 T.L.R. 712) it was said 
tliat adjacent is " not confined to places adjoining, and it includes 
places close to or near. . . . What degree of pi'oximity would justify 
the application of the word is entirely a i:|uestion of circumstances." 
Cf. Kimberley Waterworks Co., Ltd., v. De Beers (Jonsolidated Miiien, 
Ltd. ([1897] A.C. 515; 77 L.T. 117), where it was held that a mine 
isituate four miles distant from another was not adjacent thereto. 
It would seem from the above that adjacent is contined to objects 
lying near to, but not necessarily in actual contact with, each other. 
See Adjoining. 

Adjoining. This term is generally used of objects which lie near 
to each other .so as to toucli in .some part. Whether, however, the 
term connotes actual contiguity is a question of interpretation depend- 
ing on the context in the document in each case. From the context a 
' wider meaning is to be extracted in some cases than in others. Thus 
in Re Bateman, (Baroness) and Parkers Contract ([1899] 1 Ch. 599, 
■80 L.T. 469) a plot of gi-ound immediately o].)p()sit-e to, but separated 
by a highway 25 ft. wide from, an existing churchyard, was proposed 
to be added to the churchyard under the Consecration of Churchyard 
Act, 1867, which contains provisions foi- the conveyance and conse- 
cration " of portions of ground adjoini'iu/ and added to existing 
■churchyards;" it was held that the plot of ground was adjoin luij 
land within the meaning of the Act. See also Coventry v. London, 
Brighton a.vd South Coast Raihvay Co. (L.R. 5 Eq. 104; 17 L.T. 368), 
where in tlie construction of sec. 128 of the Lands Clauses Consolidation 
Act, 1845, it wa.s held that land separated by a private road was im- 
mediately adjoining certain superfluous lands ; and London and South 
Western Railway Co. v. Blackmoor (L.R. 4 E. & I. App. 610; 23 L.T. 
504), where lands divided by a wall were also held to be adjoining. 
See also Haynes v. King ([1893] 3 Ch. 439 ; 69 L.T. 855). 

A contrary view was adopted in Vale d- Sons v. Moorgate Street 
and Bro'ul Street Buildings, Ltd., and Albert Baker & Co., Ltd. 
■(•80 L.T. 487), which dealt with a covenant by a lessor not to allow a 
certain trade to be carried on in the adjoining premises. Mr. Justice 
■Cozens-Hardy held that the word adjoining was confined to the two 
houses on either side of the leased premises, although the lessor was, 
at the time of the lease, the owner of a block of buildings of which 
the two houses formed part only. To the same effect was the decision 
■by the Court of Appeal in Ind, Goai)e d: Co., Ltd., v. Hamblin (84 L.T. 



s 



ADJOINING 26 ADMISSIBLE 

168). In that case the defendant in a convej^ance to hiui of a portion 
of the plaintiffs' land covenanted that he would not " in the erection 
of any buildings adjoining the hereditaments of the vendors " insert 
or permit to be inserted any lights ovn looking such hereditaments. 
The defendant constructed a number of houses, the backs of which 
were 20 ft. from the boundary fence separating the two properties; 
their yards or gardens stretched to this fence, and there were windows 
in the houses which overlooked the plaintiffs' property. The Court of 
Appeal, reversing the decision of Mr. Justice Buckley (81 L.T. 779), 
who was of opinion that premises might be adjoining though they 
were not contiguous, held that the words must be construed in their 
ordinary sense, and that the houses not being actually contiguous to 
the plaintiffs' land, did not adjoin it within the meaning of the covenant. 
See also White v. Harrow ; Harrow v. Marylebone District Co., Ltd.. 
(86 L.T. 4 ; 18 T.L.R. 228) for another decision of the Court of Appeal 
to the same effect. 

From the above two decisions of the Court of Appeal it would 
appear that adjoining in a legal writing is not to be read as equivalent 
to adjacent in the absence of some special reason to the contrary, 
See Adjacent. 

Adjunctio, the joining of one thing to another in such a way 
that they can either not be separated at all or at least not without 
detriment. In such a ease the owner of the principal thing will be 
the owner of the accessory. Thus, where new wheels were made and 
attached to another person's wagon, which was then returned to the 
owner of the wagon, the lattei- became owner of the wheels {Cooper v. 
Jordan, 4 E.D.C. 181). 

Adjutor tutelae. See Actor or Adjutor tutelae. 

Administering poison with intent to do grievous bodily 
harm is a crime known to the law of the Cape Colony (see Queen v. 
Kelaman, 14 S.C. 329). 

Administrator. '■ Our lulministrator to some extent corresponds 
to the English ' trustee ' " {per De Villiers, C.J., in Hiddingh v. 
Denyssen and Others, 3 S.C. at p. 441). An adniinistratm' is ap- 
pointed by a testator where it is necessary in accordance with the 
will to manage the estate after the testator's death and to apply the 
income thereof as directed by the will. He is generally the same 
person as the executor, but the two offices are distinct, the office of 
the executor ceasing and that of the administrator commencing when 
the estate has been liquidated clear of debts and legacies {In re Best, 
9 S.C. 488). 

Admissible, capable of being used in evidence in a judicial pro- 
ceeding ; capable of being admitted. 

Admissible evidence. See Competent Evidence. 



ADMISSION 27 ADOPTION 

Admission. (1) An acknowledgment that something is true or 
untrue. 

(2) In the ease of attorneys, notaries and conveyancers, adtnisftion 
signifies the order or authority permitting them to practise as such. 

Admitted agent, a title by which a law agent is known in the 
Orange River Colony since the promulgation of Ordinance 7 of 1902. 
See Laav Agent. 



Adoption under Roman law was of two forms, being effected 
either bj' rescript of the Emperor (by which independent persons were 
adopted), or by the judicial authority of a magistrate (by which per- 
sons subject to the power of an ascendant were adopted). When a 
child in power was given in adoption to a stranger by his natural 
father, the power of the latter was not extinguished; no right passed 
to the adoptive father, nor was the person adopted in his power, 
though Justinian gave a right of succession in case of the adoptive 
father dying intestate. But if the person to whom the eliild was 
given in adoption b}' his natural father was not a stranger, but the 
child's own maternal grandfather, or, supposing the father to have 
been emancipated, its paternal grandfatlier, or its great-grandfather, 
paternal or maternal, in such case, because the rights given by nature 
and those given by adoption were vested in one and tlie same person, 
the old power of the adoptive father was left unimpaired, the strength 
of the natural bond of blood being augmented by the civil one of 
adoption, so that the child was in the family and power of an adop- 
tive father, between whom and himself there existed antecedently the 
relationship described (Justinian's Institutes, 1, 11, 1 and 2). Roby in 
his Roman Private Law (vol. 1, p. 58) says that persons by adoption 
came into the family of a Roman, and were under his power just as 
if they were his lawful natural children. Grotius tells us (Introduc- 
tion, 1, 6, 1) that " adop)timi is unknown in this country [Holland]." 
On the other hand. Van der Keessel {Thes. 102) says: "Although the 
adoption of children has not been practised in Holland, yet there is 
nothing to prevent not only arrogation, but even adoption, properly 
so called." 

" The law of this colony [Cape Colony] does not recognise adoption 
as a means of creating the legal relationship of parent and child. 
Under the Roman law this relationship was created, but the Dutch 
law did not, in this respect, follow the Roman law " (per De Vil- 
LiERS, C.J., in Robb v. Mealey's Executor, 16 S.C. 136 ; 9 C.T.R. 94). 

Van Leeuwen in his Gotnm. (Kotze's trans, vol. 1, p. 87) says : " The 
adoption of children as it existed among the ancients is unknown and 
not practised among us, although children adopted, i.e. taken into our 
family and educated by us may, like other persons, be instituted our 
heirs, without, however, our being obliged to do so; but, unlike chil- 
dren or blood relations, they cannot inherit ab intestato." 

It is interesting, however, to note that there are several old Dutch 
plakaten, which, it is submitted, are still law in the Cape Colony, regu- 
lating the method of adoption (see Roos's article on " The Statute Law 



ADOPTION 28 A.DVOCATE 

of the Cape in Pre-Biitiuli Days, and some Judicial Decisions in relation 
tliereto," 23 S.A.L.J. at p. 243). 

Adrogation (adrofjatio), one of the two proceduies for adoption 
under Roman law. "Adrogation was effected only at Rome, and 
per papuhtm, i.e. it required the solemnity of a hill {rogatio) passed 
hy the comitia curiata under the authority of the pontifices. 
The consents of the intended fatlier and son are also formally de- 
manded " (Roby's Roman Private Law, vol. 1, p. 60). Justinian 
speaks i^f adrogation being effected by rescript of the Empeior 
{Institutes, 1, 11, 1). 

Adult, a person who has arrived at mature years and full strengtli. 
In Ordinance 19 of 1906 (T.), sec. 2, adult is defined to mean "every 
person of the age of sixteen years and upwards;" this corresponds 
with the English definition (Summaiy Jurisdiction Act, 1879, sec. 49). 
But see Ordinance 20 of 1906 (T), sec. 1, where -'adult male native" 
means an " aboriginal native apparently of the age oi eighteen years 
or over," &c. 

Adventitious property, certain property of minor cliildren. • Ad- 
ventitious property is such as is not derived from the parents or from 
third parties on their account" (Maa.sdorp's Institates, vol. 1, p. 23.5). 
See Profectitious Property. 

Adverse user, the use and enjoyment of a thing without moles- 
tation by, and in conflict with the rights of, the owner thereof; such 
use and enjoyment may by prescription become an absolute right. 
For an instance of adverse user in respect of water in a perennial 
strejini, see Xohler and Others v. Baartma/a (12 S.C. at p. 214): "It 
is clearly understood that in a servitude by prescription there must 
be adverse user for the full period of the prescription" {per De 
ViLLiERs, C.J.. in Lind v. Gihbs and Coo[ter, 12 S.C. at p. 291). 

Advocate. In Van der Linden's time no one was admitted as an 
udvvcafe who had not taken tl>e degree of Doctor of Laws at a recog- 
nised university, and who had not been sworn in as an advocate before 
the High Court of Holland. He tells us (Institutes, o, 2, 4): "The 
profession of ;in advocate consists in general in advi.sing upon all legal 
qiiestions ; in settling and signing all petitions ; in drawing the plead- 
ings which must be tiled of record by the attorney ; in drawing and 
signing all documents; in pleading orally in court; and, moreover, in 
using all legal means by which the case of the client may best be 
furthered." In the main the.se are the duties of an advocate of 
the present day. When the Supreme Court of the Cape of Good 
Hope was established by the Royal Charter of Justice in 1832, autho- 
rity was given to that Court to admit and enrol " such persons as sliall 
have been admitted as barristers in England or Ireland, or advocates 
in the Court of Session of Scotland, or to the degree of Doctor of 
Le^ws at our universities of Oxford, Cambridge or Dublin, to act as 



ADVOCATE 29 AEDIFICIUM 

barn'steis or advocates ot" our said Supreme Court''; provision was 
also made for the admission as barristers or advocates of the Court 
of an3' persons who, previously to the promulgation of fciie Charter 
of Justice, liad been actually admitted to practise as advocates in the 
Supreme Court of Justice — the highest tribunal at the Cape of Good 
Hope prior to the establishment of the present Supreme Court in 
1832. The authority to admit and enrol has since been extended 
by various Acts: see sec. 2 of Act 12 of 1858, which is now replaced 
by .sec. 20 of Act 16 of 1873, which authorised the admission of 
persons who had obtained the degree of Bachelor of Laws in the 
University of the Cape of Good Hope ; see also Act 30 of 1892 (C.C), 
sec. 1, which provides for the admission of advocates of Natal, the 
Transvaal and the Orange Free State. As regards Natal, b}' the 
rules of 14th July, 1904, applicants for admi.ssion as advocates must 
satisfy the following requirements: (1) Admission as a Natal attorney, 
and practice as such for a period of three years; (2) pa.s.sing the Natal 
advocates' preliminary and Natal advocates' iinal examinations ; and 
(3) payment of £50 to tlie Natal Law Society. The Court may also 
admit as advocates (1) English or Irish barristers ; (2) Scotch advo- 
cates ; (3) Transvaal advocates ; or (4) advocates or barristers of the 
Supreme Court of any British colony who (a) have passed an examina- 
tion in such colony approved by the Natal Supreme Court, or (h) have 
for seven years successivelj^ practised as advocates or barristers in the 
Supreme Court of such colony. Such persons must also pay a fee of 
£50 to the Natal Law Societj'. As regards the Transvaal, see sec. 10 
of the Administration of Justice Proclamation (14 of 1902); and Orange 
River Colony, .see sec. 11 of the Administration of Justice Ordinance (4 
of 1902). 

Advyzen or Consultatien (D.), verbal or written legal opinions. 
There are several collections of such Advyzen and GonsultatiHn, given 
by Dutch jurists of repute, dealing with the multifarious points of 
Roman-Dutch law and legal questions, in existence. The most widely 
known of these are De HoUandsche Consultatiett,, in six vols, (see 
Wessels' History, pp. 241 et seq.). 

Aedificium solo cedit, or Omne quod inaedificatur solo cedit 

(Justinian's Itistiivutes, 2, 1, 29). The building accedes to the .soil, or 
everything built on the .soil accedes to it. The ground is the principal 
subject and the building follows it as accessorj^ (Henwood (f- Oo. v. 
WestlakeavdCoLef<,5S.C.S4>7). 

A bojid fide possessor of land retains his ownership in materials 
affixed by him to the land until he has parted with the possession. 
Even after the owner has demanded possession such bond fide posses- 
sor may retain pos,session until he is compensated for his improve- 
ments to the extent of the enhanced value of the land, and, failing 
payment of such compensation, he may remove the materials if he 
can do .so without serious injury to the land, or he may surrender 
occupation and recover the compensation by action. A' mc^M fide 



AEDIFIOIUM 30 AERARIUM 

possessor who has affixed materials to the land, and, before demand 
made by the owner, has disannexed and removed them, is not deemed 
to have parted with his ownership in the materials. After demand 
he no longer has the right to retain the land or i-emove the materials 
from the laud, nor is he entitled to compensation except for such 
expenditure as he may have necessarily incurred for the protection 
or preservation of the land. If, however, the rightful owner has 
stood by and allowed the erection to proceed without notice of liis 
claim, the possessor will have the same rights to retention and com- 
pensation as a bond fide possessor. " In the absence of special agree- 
ment, a les.see annexing materials, not being growing trees, to the soil 
is presumed to do so for the sake of temporary and not perpetual use, 
and, as between himself and the owner of the land, does not, during 
his tenancy, lose his ownership in the materials. He may, therefore, 
before the expiration of his term, disannex the materials and remove 
them from the land, subject to the rights of the owner to be secured 
against any injury to the land and to prevent any depreciation of his 
hypothecary rights for unpaid rent. At the expiration of the lea.se, 
however, the owner of the land becomes the owner of all materials 
then remaining annexed, and even of materials which, having been 
annexed without his consent, have been disannexed, but not i-emoved 
by the lessee. The lessee has no right of retention after the expiration 
of his term, but may by action recover the value of the bare materials 
annexed by him with the landlord's consent, and the land becomes 
subject to a legal hypothec for such compensation when duly assessed " 
(per De Villiers, C.J., in De Beers Gonsoliddted Mines, Ltd., v. Lon- 
don a/nd South African Exploration Co., 10 S.C. 359). In order that 
the maxim may apply it is necessary that the building should adhere 
to the soil as an immovable. 

In deciding the question whether a structure is immovable or not, 
the main points to be considered are the nature of the structure, the 
manner in which it is fixed to the soil and the intention of the builder. 
Thus a wood and iron house which was fastened to wooden poles driven 
into the soil and projecting six inches above it, by nails six inches long, 
and which was erected as a permanent building, ha.s been held to be 
immovable {Olivier and Others v. Haarhof X- Co., [1906] T.S. 497). 
On the other hand, where a tenant had placed iron piping under- 
ground, and had connected it with a bath in the bathroom, with the 
intention of removing the piping at the end of the lease, and it was 
possible to do this without injury to the premises, the court held that 
he possessed the right of removal (Melntyre v. Johnston, 2 Off. Rep. 
(1895), 202). 

Aerarium. The early Roman emperors drew a distinction between 
fiscus and aerarium, the former belonging to the emperor and the latter 
- to the people. Afterwards the rights of the two departments of the 
Treasury became intermixed, but a distinction still remained between 
the private patrimony of the princeps and the fiscal moneys or goods, 
the ownership of the latter vesting in the Treasury as representing the 
people, although the princeps had the administration of it. 



AESTIMATORIUS 31 AFFIRMATIVE 

Aestimatorius contractus, " an innominate contract of the class 
styled bonae fidei, whereby a thing on which a valuation has been 
placed is delivered to another to be sold, on the terms that he shall 
restore either the price or the thing itself intact" (Voet's Comm. 
19, 3, 1). 

Affidavit, a statement in writing swoin to before some one who 
has authority to administer an oath. Affidavits were not used in prac- 
tice in the courts of Holland ; their introduction is from the English 
practice (Van Zyl's Judicial Practice, 2nd ed. p. 354, q.v.). In the 
Cape Interpretation of Statutes Act (5 of 1883, sec. 3) it is provided 
that '' o.jffldavit, oath and swear shall include affirmation, declaration, 
affirming and declaring in the case of persons by any law, now or here- 
after to be in force, allowed to declare or affirm instead of swearing," 
In Natal, under Act 14 of 1904, sec. 9, affidavit includes "affirmation, 
statutory or other declaration, acknowledgment, examination and 
attestation or protestation of honour." As to Transvaal, see Pro- 
clamation 15 of 1902, sec. 2. 

Affiiliation. (1) The assignment of a bastard child to its father, 
coupled with the obligation of the latter to maintain such child. The 
man's oath is entitled to preference over the woman's in an action of 
affiliation, if there is no aliunde evidence to support her evidence 
(Gleeson v. Durrheim, Buch. 1868, p. 244). " If the woman swears 
positively that the man is the father, and if the evidence of the alleged 
father is shaken on cross-examination, or any other evidence is pro- 
duced in corroboration of the woman's story, I think her oath should 
be believed " (per Smith, J., in Van der Berg v. Elzbeth, 3 S.C. 
at p. 37). 

(2) In the Natal Code of Native Law (19 of 1891, sec. 22 of seh.) the 
woi-d affiliation is used to signify " the attachment of a junior house 
to a senior or superior house for the purpose of providing against the 
failure of an heir in the senior or superior house. More than one 
house may be so affiliated. The senior or superior houses in a kraal 
to which affiliation may be made are, first, the indhlunkulu ; secondly, 
the iqadi ; thirdly, the iJwhlo." 

Affinity is the legal relationship which exists between each of the 
spouses and the blood relatives of the other ; but not also between the 
relatives of the one spouse and the relatives of the other. Thus 
the brothers, sisters, uncles and aunts of the husband are 'affines of 
the wife, and vice versa those of the wife are affines of the husband ; 
but the brothers, sisters, uncles and aunts of the husband are not 
affines of those of the wife, and vice versa those of the wife are not 
affines of those of the husband. They are only connections by 
marriage. 

Affirmative servitude. "An affirmative or positive servitude is 
one which authorises the commission of some act on the property of 
another, e.g. a jus itineris, actus, viae," &c. (Van Leeuwen's Comm. 
Kotz^'s trans, vol 1, Decker's ni)te on p. 306). 



AFFRAY 32 AGENT 

Affray. " An affray is the fighting oi' two or more persons in a 
public place to the terror of her Majesty's subjects " (Stephen's Digest of 
the Criminal Law, 5th ed. p. 54). See Native Territories' Penal Code 
(Act 24 of 1886 (C.C.)), sees. 94 and 95 ; Ordinance 18 of 1845 (N.), 
sec. 26. 

A^erssing (D.), extortion. See Knevelaeij. The Latin e(iui\'a- 

lent is concussio ; see Notaris v. Rex ([1903] TS. 484). 

AfschafBng (D), repeal — such as the repeal of a statute. 

Agent. "An agent is a person who has authority, express or 
implied, to act on behalf of another person (the ' principal '), and to 
bind that other person by his acts and defaults " {Digest of the English 
Civil Latv, book 1, sec. 121). A fuller definition is given by Manfred 
Nathan in his Common Law of South Africa (sec. 939) as follows : 
" When one person, whether authorised or not by another, represents 
that otlier in a transaction in such a manner as to create a legally 
binding obligation upon the person for whom he acts, the relationship 
between the parties is known as agencj^ and the person on wiio.se 
behalf the act is done, and the person bj^ whom the act is done, are 
known respectively as the principal and agent." See Ordinance 23 of 
1905 (T.), sec. 2 ; and Dely cC- De Koch v. Civil Cmnmissioner ([1906] 
TS. 94). 

As to good faith required, see Transvaal Cold Storage Co., Ltd., v. 
Palmer ([1903] T.S. 4), and cases there quoted. 

Agent ,of a foreign firm. Agent of a foreign firm means 
" any person other than an importer, who sells or offers for .sale, by 
sample or otherwise, goods of a firm whose place of business is not 
in this [Cape] Colony ; but shall not include a person who sells or 
offers for sale goods consigned to him by a foreign firm " (Act 38 of 
1887 (C.C), .sec. 3). See also Act 28 of 1898 (C.C), sec. 10. 

In the Transvaal the corresponding term in the Revenue Licenses 
Ordinance (23 of 1905, .sec. 2) is "agent or representative of a 
manufacturing or trading establishment carrying on business outside 
tins colony," which means "an}' person who in any way advertises 
or holds himself out as the authorised representative or agent of 
such manufacturing or trading establishment outside this [Trans- 
vaal] Colony, and who solicits, receives or takes orders for the sale 
or supply of goods by such manufacturing or trading establishment 
to persons in this [Transvaal] Colony ; but shall not include a person 
liable to take out a license as a general dealer under tiiis Ordinance, 
by whom such goods are resold out of stock." 

In the Orange River Colony agent of a foreign firm means "any 
person who sells or offers for .sale, by sample or otherwise, goods of a 
firm whose place of business is not in this [Orange River] Colony ; but 
shall not include a person who sells or offers for sale goods consigned 
to him by a foreign firm " (Ordinance 10 of 1903, sec. 2): See also 
Ordinance 10 of 1905 (O.R.C), sec. 3. 



AGER 33 AGRICULTURAL 

Ager publicus, State lands. The Romans held that State lands 
were res mdlius (no man's property), and regarded the same as lying 
outside the scope of private law altogether. The reveniie, however, 
derived from the ager' publicus, flowing into the public exchequer, 
became the national common property, though the Stnfce lands were 
not actually enjoyed by the nation at large. 

Agere is videtur, qui exceptione utitur : nam reus in excep- 
tione actor est, he who avails himself of an exception is considered 
a plaintiff; for in respect of his exception a defendant is a plaintiff. 
See AcTORi incumbit onus probandi. 

Agio (D.), rate of exchange. 

Agist, to feed or graze cattle or horsew belonging Lo others for 
reward. 

Agistment, the feeding or grazing of cattle or horses belonging to 
others for reward. 

Agistor (also agister), one who feeds or grazes cattle or horses 
belonging to others for reward. See Momsen v. Mostert (1 S.C. 185). 

Agri flscalim. See Hoflanden. 

Agriculturae promovendae causa, for the purpose of promoting 
agriculture. This phrase is used of an einphyteuta or quit-rent holder. 
As his right extends only to the surface of the ground agriculturae 
promovendae causa, he cannot impoverish the ground itself, for 
example, by extracting minerals. For the same reason, if he has 
had absolutely no benefit from the land by reason of tempests, inun- 
dation or the like, he may claim exemption from payment of his 
nominal rent or canon (Van Leeuwen's Comm,. 2, 10, 5; Decker, ibid, 
in notis; Voet's Coinm. 6, 3, 16 ; Neebe v. Registrar of Mining Rights, 
[1902] T.S. at p. 81). 

Agricultural distiller, an expression defined in the Cape Addi- 
tional Taxation Act (36 of 1904), .sec. 2, to mean "any owner or 
occupier of land who shall distil spirits exclusively from wine the 
produce of the land .so owned or occupied by him." 

Agricviltural land, in the Transvaal Local Authorities Rating 
Further Amendment Act (35 of 1909), sec. 1, "shall mean arable, 
meadow or pasture land, market gardens, poultry farms, nursery 
gardens, plantations and orchards, but shall not include (a) land 
occupied as a park together with a house thereon ; (6) land used 
as a garden other than as aforesaid; or (c) land kept or reserved for 
the purposes of sport, athletics, or recreation, or used as a racecourse." 



AGRICULTURE 34 ALIENATE 

Agriculture. This term is defined in the Cape Workman's Com- 
pensation Act (40 of 1905), sec. 4, to mean "horticulture, forestry and 
any work upon a farm or connected with farming," and in the Trans- 
vaal Workmen's Compensation Act (36 of 1907), sec. 2, to mean " any 
work connected with or incidental to the tilling of the soil, stock 
rearing or farming operations." 

Aided farm school. In the Transvaal Education Act (2.5 of 
1907), sec. 2, aided farm school means "a school at which instruction 
in accordance with regulation is given, and in aid of which capitation 
grants are made under the conditions prescribed in section seventeen 
[of the Act]." 

"Aided school," in the Orange River Colony School Act (36 of 
1908), sec. 2, means " a private school in aid of which capitation grants 
are made subject to the conditions of this Act." See Aided Farm 
School. 

Aleatory contract, a Frencli term, signifying a contract " in 
which the equivalent consists in the chances for gain or loss, to the 
respective parties, depending upon an uncertain event. . . Fi'om 
alea, a die, dice, or throw of the dice ; a woid for which our adjec- 
tives 'gaming' and 'hazardous' are not exact equivalents" (May ou 
Insurance. 4th ed. sec. 5, et in notis ; see also Holland's Jurisprudence, 
10th ed. p. 296). 

Alibi, el.sewliere. When in a criminal prosecution the accu.sed 
puts forward the defence that at the time laid in the charge or 
indictment as the time when the offence was committed he was 
not at the place specified, but at some other place, lie is said to 
set up the special defence known as an alibi. In the Cape Criminal 
Procedure Act (3 of 1861), sees. 13 and 14, it is provided that ex- 
cept where time is of the essence of the offence, if any day is laid 
in an indictment as the day upon which the offence was committed, 
proof that such offence was committed not more than three months 
before or after the day avei'red is taken to support the indictment. 
If, however, the defence is an alibi, such proof of the offence having 
been committed at any other time than that laid in the indictnjent 
may be rejected by the court if it considers that tlie accused would 
be prejudiced thereby. (See also Ordinance 1 of 1903 (T. ). sees. 147 and 
148; Law 6 of 1861 (N.), sec. 17; Ordinance 12 of 1902 (O.R.C.), 
sec. 82.) 

Alienable things " are those which by their nature may belong 
to one person as well as to another, and which may be acquired by 
every one with the consent of the owner, and may be disposed of " 
(Van Leeuwen's Comm., Kotze's trans, vol. 1, p. 153). 

Alienate, to transfer, make over, or convey some right, property 
or title from one person to another. 



ALIENATIE 35 ALLEGANS 

Alienatie (D.), an alienation or transfer. See Alienation. 

Alienation, the act of alienating ; the tranyfer or conveyance of 
some right, property, or title from one person to another. As to tlie 
rights and obligations of guardians in connection with the aliena- 
tion of the property of their wards, see Nathan's Common Law, 
sees. 329 et seq. 

Aliens, " (uit-heymen) are outlanders {aliens) who are born in 
some other country" (Van Leeuwen's Comm., Kotze's trans, vol. 1, 
p. 69). " The burden of proving that the respondent is an alien lies 
upon those who assert it" {-per De ViLLiERS, C.J., in Blignaut v. 
De Villiers, 17 S.C. at p. 380). 

Aliment or Alimony (Alimentatie (D)), money paid for the sup- 
port of any one entitled to claim it ; maintenance. " The obligation 
of parents to provide aliment for their children until the latter are 
able to maintain themselves has frequently been recognised by tliis 
[Supreme] Court. The obligation to protect a child against want may 
revive even after such child has reached an age at which he can main- 
tain himself, if he is in distress and unable to work through bad health, 
and if the parents are possessed of the requisite means. . . . But if 
parents owe tiiis duty to their children, the latter owe a reciprocal 
duty to their parents. If a father or mother is in distress and 
unable to work, liis or her children who have the means can be 
compelled to contribute towards their parents' support. It would 
make no difference that the children are minors, for the obligation 
does not arise out of any implied contract, but out of the sense of 
dutifulness which every child is presumed to entertain towards his 
parents" (per De Villiers, C.J., In re Knoop, 10 S.C. at p. 199). 
The duty to maintain children extends also to illegitimate children, 
and even children procreated in adultery or incest {Davies v. Rex, 
[1909] E.D.C. 149). 

See Maasdorp's Institutes, vol. 1, pp. 78 and 232 ; Nathan's 6'om- 
nnon Law, sees. 144 et seq. ; Van Leeuwen's Gomm., 1, 13, 7. 

Under Roman-Dutch law alimentatie could not be made over to 
third parties except with the approval of the domiciliary judge. See 
Kersteman's Woordenboek, vol. 1, p. 11 ; see also Van der Linden's 
Institutes, 1, 14, 4. 

Allegans contraria non est audiendus, he is not to be heard 
who alleges things contradictory to each other. The maxim, of which 
the law of estoppel is in great measure a development, applies when 
in consequence of a previous act or statement to whicli he has been a 
party, a person is precluded from showing the existence of a state of 
facts inconsistent with such act or statement (Broom's Legal Maxiins, 
2nd ed. pp. 132 and 238 ; Best on Evidence, 10th ed. sec. .533). 

AUegans suam turpitudinam non est audiendus, he who 
alleges his own misconduct is not to be heard (Best on Evidence, 
■ 10th ed. sec. 545). 



ALLEGATION 36 ALTERUM 

Allegation, a statement made by a party to a legal proceeding, 
and which such party asserts to be a fact. An allegation may also 
be made by a witness in a legal proceeding. 

Allodial property, any property held under freehold tenure, 
Odal or Alod denotes entirely free property. 

Alloy. See Gold Coins. 

Alluvial claim, a certain area of land, properly demarcated, and 
held under license for the purpose of working alluvial deposits of 
minerals or precious stones. In Natal an alluvial claim is of a size 
not exceeding 100 feet by 100 feet (0-229 acre)— (Act 43 of 1899, 
sec. 8). 

In the Transvaal under the Gold Law, see Law 15 of 1898,. 
sees. ()2 et seq. (now repealed) ; also Precious Stones Ordinance (66 of 
1903), sec. 50. 

In the Orange River Colony, see Ordinance 3 of 1904, sec. 5. 

Alluvial digging. In the Mining of Precious Stones Ordinance 
(4 of 1904 (O.R.C.)), sec. 5, alluvial digging means "such an area as 
may from time to time be proclaimed by the Lieutenant-Governor as 
such, and any area that has heretofore been so proclaimed under any 
previous Law and is at the date of the promulgation of this Ordinance 
being woi'ked as such." 

Alluvio, Alluvion, alluvial land ; a deposit of earth upon the 
bank of a river so gradually tliat no one can perceive how much is 
added at any one moment of time ; such deposit is inseparable from 
the native soil of the bank ; and the owner of the latter acquires 
the former by right of accession. Land reclaimed from tlie sea inten- 
tionally and by artificial means belongs to the Crown, and cannot be 
claimed as an accession by alluvion by the owner of land adjoining 
that portion of the sea which has been so reclaimed {Colonial Govern- 
ment V. Capetown Town Council, 19 S.C. 97). 

"Alluvion is of two kinds, aanwas and uamverp. The former 
is termed discretae, i.e. those separated from the land bj- a portion of 
the water ; and the latter alluviones continuae, i.e. those which are 
attached to the land " (Van Leeuwen's Comm., Kotze's trans, vol. 1, 
p. 175, Decker's Note). 

Alluviones continuae, that form of alluvion which was known in 
Roman -Dutch law as aanwerp. See Alluvio. 

Alterum non laedere, not to hurt another. This is one of 
the three maxims laid down by Justinian {Institutes, 1, 1, 3) as 
the foundation of all rules of law. The other two are honeste 
vivere, to live honourably, and suum cuique trihuere, to give to 
every man his due. 



ALTIUS 37 AMENDMENT 

Altius non tollendi, lit. of not building higlier : said of the 
servitude so called. See Servitus altius non tollendi. 

Altius tollendi, of building higher. See Servitus altius 
tollendi. 

Amailga.mation is not a legal, but a commercial expression, 
and bears no exact definite meaning. It involves the blending of 
two concerns into one : " substantially " the whole of the two under- 
takings must pass, and " substantially " all the corporators must be 
parties ; and it may take place by the transfer of two undertakings 
to a new corporation, or by the continuance of both undertakings 
on the terms that the shareholders of one shall become siiareholders 
of the other {South African Supply and Gold Storage Co.; hi re 
Wild V. South African Supply and Gold Storage <''o., [1904] 
2 Ch. 268; 73 L.J. Ch. 657; 91 L.T. 447). 

Ambacht (D.), duty, office, jurisdiction. Hence in some places, 
where a considerable number of people form a body and have chosen 
a head or superior over then), the term ambacht is applied to them. 
And the head or superior is called the amhachtsheer. AmbacJit also 
means a manor, and tlie amhachtsheer would be the lord of the manor. 

Ambachtsbe^waarder (D.), a bailiff ; a steward of a manor. 

Ambaclitsheer (D.), .<i(?e Ambacht. 

Ambignitas latens et ambiguitas patens, latent and patent 
ambiguity. A latent ambiguity is that which is not apparent on the 
face of the deed, but which is introduced by extrinsic and collateral 
matter ; while a patent ambiguity is that which appears ex facie the 
deed. In the former case, as the doubt arises from circumstances 
outside of the deed, extrinsic evidence is admissible to explain it ; but 
in the latter case no explanation of the ambiguity is allowed which 
cannot be found in the deed itself (In re Herold, 1 S.C. 1 59). 

Ameliorations, improvements. See Improvements. In refer- 
ring to the expression " amount of any ameliorations " appearing in 
sec. 104 of Ordinance 6 of 1843 (G.C.), De Villiers, C.J., said : " The 
amount of ameliorations in my opinion means no more or less than 
the amount representing the enhanced value of the land by reason of 
such ameliorations" {Parkin v. Lippert, 12 S.C. iit 191). 

Amendable, that which is capable of being altei'ed or added to. 
See Amendment. 

Amendment, an alteration or addition to some proposed law, bill, 
re.solution, indictment or pleading; an alteration or addition to an 
existing law, indictment or pleading ; an alteration or addition to any 
document .or writing. 



AMENDS 38 ANIMO 

Amends, compensation or repai'ation for some injury or loss. 

Amicus curiae, a friend of the court ; the name given to a member 
of the bar, or other bystander, who advises the court regarding a point 
of law or fact upon which information is required. 

Amman (D.), a judge, leader or captain. A term also applied to 
the Schout. 

Ammunition is defined in the Cape Firearms and Ammunition 
Act (17 of 1892) to mean "anjr explosive capable of being used in 
the explosion of tirearms, and includes cartridges, cartridge cases, shot, 
bullets, lead and percussion caps." 

For Natal, see Act 1 of 1906, sec. 3. 

For Transvaal, see Act 10 of 1907, sec. 2. 

Foi' Orange River Colony, see Act 23 of 1908, sec. 2. 

Anatocismus, accumulation of interest with capital — compound 
interest. In the absence of a special agreement compound interest 
cannot be charged {Heinenumn v. Barnes, 6 C.T.R. 107). 

Ancient customs, in Holland, '■ which were recognised during 
the sixteenth century as part of the common law of the land, were 
such as had frohi time immemorial been recognised as law. They 
were derived from various sources, from the Lex Riptiaria, the Lex 
Sahca, the Jus Saxonicum, the Jus Fnsicum, the Lex Roinana, 
the Capitulariu and other ancient bodies of law " (Wessels' History, 
p. 210). Customs were either general or particular, aifecting only 
some district or town. As to the force of custom in Roman-Dutch 
law, see Voet, 1, 3, 27 et seq.; Kersteman, sub voce "GostuTne" ; and 
Van der Linden, 1, 1, sec. 7. "By the civil law and the Roman-Dutch 
law a general custom may abrogate a written law. Such custom must, 
however, be reasonable, ancient and properly proved by acts and deeds " 
{per KoTZE, J., in Zeiler v. Weeber, 1 K. p. 18). 

Anderling, Anderzweer (D.), a relation by blood in the second 
degree. Anderzweeren, i.e. the grandchildren of brothers and sisters 
(Meyer's Woordeniscliat). 

Anderzweer (D.), see Anderling, 

Animo remanendi, with the intention of remaining. " Every 
independent person can acquire a domicile of choice, by the combina- 
tion of residence {factum), and intention of permanent or indefinite 
residence {animus manendi), but not otherwise " (Dicey 's Conflict of 
Laxvs. p. 104). "The law of the domicile of marriage will prevail to 
regulate the rights of the spouses in regard to property acquii-ed in 
this colony by persons married elsewhere, but who have subsequently 
removed to this colony animo remanendi " {per De Villiers, C.J., in 
Black V. Black's Executors, 3 S.C. 202). This rule applies even to 
immovable property (Chiwell v. Carlyon and Others, 14 S.C, 61). 



ANIMO 39 ANIMUS 

Animo revertendi, with the intention of returning. This is 
said oi" a person who leaves the country of his domicile merely 
for a temporar}' purpose or without the intention of settling in 
the country in which he has become resident. See Weathertey v. 
Weatherley (1 K. 66). 

Animus contrahendi, an intention of entering into an agree- 
ment. The basis of a contract is the intention of producing an 
engagement by virtue of promises and of giving the party to whom 
they are made a right of demanding tlieir performance (Spiegel v. 
Eilenberg, 20 S.C. 250). 

Animus domini, the intention of owner. This was in Roman 
law the element which distinguished legal possession from mere 
physical possession or detentio. Legal possession exists where the 
possessor has both detentio and animus domini, or, as it is some- 
times called, animus possidendi, i.e. where he not only holds the 
thing physically, but does so with the intention of keeping it for 
himself and not for another. Thus true owners and bond fide, and 
even maid fi-de, possessors who intend to hold as owners, have legal 
possession in this sense ; while usufructuaries, borrowers or lessees, 
who hold subject to a recognition of the rights of others, have mere 
detentio. It was only legal possession that received the protection 
of the possessory interdicts (see Holland's Jurisprudence, 10th ed. 
pp. 190 et seq.). 

Animus ftirandi, the intention of stealing. To constitute the 
crime of theft there must be proof of animus furandi. Tlius in 
Rex V. Murphy and Another ([1906] E.D.C. 62), where two persons 
while under the influence of liquor took each a horse, and after 
riding some distance left the horses in a paddock, it was held that 
in the absence of proof of anivius furandi this did not constitute 
theft. So where a person whose dog had been caught in a jackal 
trap, took the trap and hid it in a hole with the intention not of 
depriving the owner of his property, but of putting him to some 
trouble in finding it, a conviction for tlie theft of the trap was 
quashed on appeal {Leasing v. Rex, [1907] E.D.C. 220). See also 
Rex v. Rossouw, 20 S.C. 409 and Rex v. Sumango, 18 E.D.C. 173. 

Animus injuriandi, intention to injure. The existence or absence 
of the animus injuriandi must be gathered from the circumstances 
of each particular case {Mackay v. Philip, 1 Menz. 463). " The ground 
upon which the action for defamation rests is the injuria, the personal 
insult or contumely to which the plaintiff has been exposed. No action 
lies for such injury, as such, unless the defendant was actuated by the 
animus injuriandi" (per De Villiers, C.J., in Bennett v. Morris, 
10 S.C. 226). The mere use of defamatory words affords presumptive 
proof of malice, but the presumption may be rebutted by the fact that 
the communication was privileged or by such other circumstances as 
satisfy the court that the animus injuriandi did not exist {Botlia 
V. Brink, Buch. 1878, at p. 130). See De Villiers' Roman and 



ANIMUS 40 ANNUS 

Roman-Butch Law of Injuries, p. 27, wliere the subject of (cniinus 
injuriandi is ably and fully f^'scussed ; also article by the same 
author in 26 S.A.L.J., p. 512, on ' Malice in tlie English and Roman 
Law of Defamation." 

Animus possidendi, intention to possess. Tl)e lequisitea of 
legal possession are (1) detention, the physical element ; and (2) 
intention, the mental element. See Animus DOMINI. 

Anni Continui, continuous or successive j'eai-s. 8ee Anni utiles. 

Anni utiles, years that can be used. As thii principle under- 
lying prescription is, that those who have been negligent or careless 
of their rights should be penalised hy their forfeiture, it does not 
hold good of those who are under some legal oi- physical incapacity 
to exercise them, as, e.g. minors or married women under the marital 
control of their husbands, and persons of unsound mind or absent 
from the country. While the incapacity remains the period of pre- 
scription does not consist of anni utiles to such per.sons, and the 
time in their case is accoi'dingly reckoned without counting the 
period during which they wei-e unable to exercise their rights. On 
the other hand, to those who are fully able to assert their claims,, 
the years of prescription are said to be <i/iini continui, i.e. con- 
tinuous or uninterrupted years. This is the sense in which these 
terms are used in the Roman law (Digest, 38, 15, fr. 2 pr.). 

In the Roman-Dutch law an annus utilis sometimes means a 
year and a day with the addition of six weeks. An annus utilis 
in this sense, e.g. was fixed by the statutes of some places in 
Holland as the period within which the right of retraction (jus 
retractiis) had to he exercised (Voet's Comm. 18, 3, 25). 

Annuity, the payment of a yearly sum of money of fixed amount. 
The person who is entitled to receive the annuity is called the 
"annuitant." 

Annus luctus. The year of mourning. 'For fear of mixing 
the blood, a woman may not enter upon a new marriage within the 
year of her widow's grief under pain of infamy. . . . She will also 
enjoy no benefit out of the goods of her first husband by whatsoever 
title they may have been left to her " (Schorer's Notes to Grotius, 10). 
A widow may not marry within the period of probable pregnancy by 
her deceased husband (Grotius' Introduction, 1, 5, 3). 

Van der Keessel says that the Roman definition of the wnnus 
luctus has been abrogated, but the duration of it is left to the just 
discretion of an hone.st judge. The Colonial Ordinance of De Mist 
declared it to be the law that a widower shall not marry within three 
months, and a widow not within five months, after the death of the 
other spouse. This Ordinance was enacted o?n der eerbaarheid wille 
(for decency's sake). No penalty, however, is prescribed for the 
breach of this law, and there is presumably nothing to prevent a 



ANNUS 41 ANTIOIPATIE 

widower or widow from remarrying witliiii tlie aforesaid period. 
Multa prohiberi in jure fieri quae tamen facta tenent (many things, 
the performance wliereof is prohibited in law, nevertheless are valid 
when done). Ward, in his Marriage. Laws (pp. 5, 6) points out that 
the De Mist proclamation has not been incorporated in the statute 
book of the Cape Colony, and contends that the provisions of that 
proclamation ai-e therefore inapplicable in that colony. 

In the Transvaal, by sec. 9 of Law 3 of 1871, a widower may not 
marry within three montlis of his wife's death, and a widow not 
within 300 days of hei- imsband's death, unless dispensation is granted 
her by tlie liead of the State. 

In the Orange River Colony, by Law 26 of 1899, sec. 13, a widower 
must wait three months and a widow 280 days before they may re- 
spectively remarr3^ 

Anonymous partnership is a partnei-ship " where several per- 
sons agree to participate in the profits of a certain business which 
is to be carried on by one or a certain number of the partners in his 
or their own name " (Nathan's Cornmov. Law, sec. 928). See also 
Guardian Insurance and Trust Go. v. Lovemore's Executors, 5 S.C. 
205; Davison 1^ Esta.te v. Av/ret, 22 S.C. at p. 19; Shapiro v. Shapiro 
and Ketz's Trustee, [1907] T.S. at p. 474. 

Antenuptial contract is an agreement made by two intending 
spouses regarding the rules by which their future marriage is to be 
governed, and regulating the disposal of the property acquired by 
them before marriage, or of that which they may subsequently acquire 
(De Bruyn's Opinions of Grotius, p. 141). As a rule an antenuptial 
■contract excludes community of property and profit and loss, as also 
the marital powei-. The contract must be executed before marriage 
in the pre.sence of a notary (except in Natal), and must be duly 
registered in the office of the Registrar of Deeds of the colony or 
teri-itorj? in which it is executed. The intending husband frequently 
avails himself of this opportunity to make a settlement upon his 
futui-e wife and the children of the man-iage ; such settlement is then 
incorpoi-ated in the antenuptial contract. On good cause shown the 
•court will decree the registration of an antenuptial contract after the 
marriage has been solemnised, saving, however, the rights of creditor.s 
during the interim. 

Antichresis (wri-x/o^o-ty,), in consideration of use. The pledgee 
is obliged to return to the pledgor the fruits or profits of the property 
pledged, or carry them to account in reduction of the debt, unless 
•otherwise stipulated. It is often stipulated that the creditor shall 
have the fruits or profits of the article pledged in lieu of interest, and 
this is called a pactum antichreseos (Grotius' Introduction, 3, 9, .5). 

Anticipatie (D.), anticipation. A mandament van anticipatie 
•(writ of anticipation) was, in Holland, granted upon the request of 
the defendant to enable him to anticipate the return day of a penal 



ANTIOIPATIE 42 APPEARANCE 

infceidict when such return day would otherwise have been too far 
off; or, in the case of a trial, the action became in a manner privileged 
as though its hearing could brook no delay, and by the nnandatnent 
van anticipatie an early date was fixed i'.H- the hearing. 

Antwoord (D.), a plea or answer of a defendant in an action. 
Formerly also called condusie van antwoord. 

"Any cause whatever," for a discussion as to the effect of these 
words in a bill of lading, see Cl'in Line of Steamers v. Alcock & Co., 
13 S.C. at pp. 113 and 115. 

"Any debt." The words any debt appearing in sec. 71 of Ordi- 
nance 6 of 1843 (C.C.) must be restricted to debts provable against 
the insolvent's estate, for " a debt not provable in his insolvency has 
no connection with the estate under administration, and a person who 
has contracted such a debt, even without reasonable expectation of 
being able to pay it, cannot be convicted of culpable insolvency " (per 
De ViLLiERS, C.J., in Queen v. Louis Klein, 8 S.C. at p. 42). 

Apocha, a receipt or acquittance. In one respect a receipt is more 
effectual than a written ackuowledgmeijt of debt, for while the excep- 
tion non nnmeratae pecuniae can be pleaded against a receipt only 
within thirty days frorn its date, it may be taken to a document of 
debt at any time within two years. The creditor upon receiving pay- 
ment of his debt is bound to give a receipt to the debtor, and it is not 
enough that he should return to him the instrument of obligation can- 
celled or ei-ased or torn, as the production of the bond torn or cancelled 
is not sufficient proof of payment unless the debtor shows that the 
bond was given back to him by the creditor in this cancelled condition,, 
a fact which circumstances may often render it difficult or impossible 
to prove (Voet's Gomm. 46, 3, 15). 

Apocha trium annonim, receipt or acquittance for three years. 
• If in the case of pa^'uients which are made annually the debtor can 
produce receipts for three consecutive years he will be presumed to 
have paid the sums due for previous years, and the burden of proving 
otherwise will be upon the creditor unless the debtor has acknow- 
ledged the contrary in writing or unless the creditor has in his receipt 
resers ed his right to payment of the sums previously due. The same 
applies to half-yearly, and probably also to any other termly or 
periodical, payments (Voet's Gomm. 46, 3, 14). 

Apparent servitude, " is one the existence of which is shown by 
external works, such as a door, a window, watercourse and the like" 
(Van Leeu wen's Comvi., Kotze's ti-ans. vol. 1, translator's note on. 
p. 306). 

Appearance, the coming before the court by a defendant in re- 
sponse to a summons issued against him. This is usually done in the 
superior courts by the defendant oi- his attorney noting appearance- 



APPEARANCE 43 APPRENTICE 

with tlie registrar in the prescribed mannei-, and serving notice of 
such appearance on the plaintiff's attorney. This is termed "entering 
appearance." In inferior courts the defendant or his attorney appears 
personally on the return da}'. 

Speaking of the appearance of an attorney' in the magistrate's 
court in terms of sec. 14 of schedule B of the Magistrates' Court 
Proclamation (T.), Wessels, J., said : " By an appearance is not meant 
that the attornej' should exhibit his face in court, or that he should 
put a piece of paper before the magistrate to the effect that he is 
appearing before the court. It means that the attorney who repre- 
sents his client shall in person conduct the case entrusted to him. 
He cannot conduct the case by his clerk or by his office boy" {Cootnans 
V. N'elson, [1907] T.S. at p. 625). 

Appel (D.), appeal to a superior court. Also termed Hooger (or 
hoger) beroep. 

Appraisers (sworn appraisers), persons appointed by the Master 
of the Supreme Court for the valuation of all estates and property, 
the appraisement of which shall become necessary, or shall be had 
for the better ascertaining the amount of the shares thereof which 
ma3' belong or be due to anj' persons who, or to anj' estates which, 
shall at the time be under the guardianship of the Master, or of 
any tutor, either testamentary or dative, or curator nominate or 
dative or boms. These appraisers, who are commonly known as 
sworn appraisers, may charge a reasonable fee ; thej' are duly 
sworn on appointment ; and their valuations are generally received 
by the Master in connection with all matters relating to the valua- 
tion of property in estates. 

Apprehend, to arrest and take into custody, under a legal 
warrant, a person charged with the commission of a crime, or the 
commission or omission of .some act or thing which has rendered 
him liable to apprehension. 

Apprehensio, the laj'ing hold or taking of a thing. Possession 
is acquired by the taking of a thing with the intention of retaining 
it to the exclusion of all others. Actual physical contact with the 
thing is not nece.ssarily required as long as the person acquiring it 
places himself in a position to deal with it freely. See Maasdorp's 
Institutes, vol. 2, p. 19. 

Apprentice, one who is bound under contract to serve some 
person, known as the master, for a fixed period for the purpose of 
learning some trade or occupation carried on or conducted by the 
master; and which trade or occupation the master is bound under 
the contract to teach or instruct the apprentice. In the Masters 
and Servants Act (15 of 1856, sec. 2) of the Cape Colony an appren- 
tice is defined as being " any person indentured or bound by any 



APPRENTICE 44 APPULSIO 

contract of approiticesliip, made according to law, as apprentice to 
any otlier person." A similar definition is found in Ordinance 2 
of 1850 (N.), sec. 2. See also Law 13 of 1880 (T.), sec. 2. 

"Approach to the river," s(3e "Right of free approach to 

THE RIVER." 

Approach to water {watergang), a form of servitude, - is the 
right of going over another's land to draw water from .some public 
water, or from another's well, and this includes the right-of-way" 
Van Leeuwen's Oomm. Kotze's trans, vol. 1, p. 297). 

Appropriation Act. In the Transvaal Audit and Exchequer Act 
{14 of 1907) Appropriation Act means "any law appropriating public 
moneys for services as in such law specified." 

Appropriation of pasnnents. ' It is for the debtor, and failing 
him for the creditor, to indicate at the time of payment to which of 
more^items than one such payment shall be imputed, and it is only on 
failure of both that the law steps in to make the appropriation. The 
debtor, and failing him the creditor, must declare his intention before 
or at the time of payment, in order that it maj' still be open to the 
creditor not to accept it upon the debtor's terms, and to the debtor not 
to make it upon the creditor's terms (Voet, 46, 3, 16). If the debtor's 
intention had been declared before payment and not withdrawn, the 
■creditor would be quite justified in acting upon it, and if he did so act 
upon it there would be no necessity for any declaration of his inten- 
tion. If the course of dealing between the parties has been such that 
the creditoi- has been reasonably led to believe that any payment was 
intended to be imputed to a particular item, and has acted upon that 
belief, tlie debtor cailnot afterwards claim that the law shall step in to 
make the appropriation " (per De Villiers, C.J., in Stiglingh v. French, 
i1 8.C. at p. 411). 

Approval, see Sale on Approval. See also Thmnpson v. Seak 
(19S.C. 294). 

Approved diagram, a term used in the Transvaal Mining Rights 
Amendment Ordinance (6 of 1902, since repealed), where it means " a 
•diagram approved by the Surveyor-General without publication." On 
the other hand a " confirmed diagram " requires confirmation by the 
.Surveyor-General and publication in the Gazeftc [See CONFIRMED' 
Diagram. 

Appulsio, appulsion. This term equallj^ with o/vulsio is applied 
to the case of a quantity of earth being torn from an estate by the 
force of a stream or river and carried to another estate situate along. 
the banks of such stream or I'iver. Tiie ownership of such ground re- . 
mains with the owner of the formerj_ estate until the ground has , 
become firmly attached to the latter estate. See AvULSi o. 



AQUAEDUCTUS 45 ARBITRATEUR 

Aquaeductus, the servitude of water-leadinir. It is the right of 
leading water through or out of anotlier man's landed property either 
from the fountain head or any other place according to agreement 
(Voet's Comm. 8, 3, 6). A servitude of aquaeductus acquired by pre- 
scription b3^ a lovjrer farm over an upper property on a perennial 
stream, by which the right is obtained to take all the water which 
collected in a dam situated on the upper farm for the use of the lower 
property, does not of itself deprive the upper proprietor of his riparian 
rights to the use of water out of the stream above the dam {De Klerk 
v. Niehaus, 14 S.C. 302). A servitude of aquaeductus does not give 
the owner of the dominant tenement the right to take materials 
from the servient tenement for the pui-poses of repairing and main- 
taining the aqueduct and of enabling him to better enjoy his servitude 
(Steyn v. Zeeman, 20 S.C. 221). 

Aquaehaustus, a rural servitude entitling the owner of th& 
dominant tenement to draw water from a well, pond or stream on 
the servient tenement. In the Roman law, which required a causa 
perpetua for all praedial servitudes, the servitude aquaehaustus could 
exist only with regard to a running body of water, but by the Roman- 
Dutch law it has been extended to water in a tank or cistern (Voet's 
Gomm. 8, 3, 7 ; Van Leeuwen's Comm. 2, 21, 13; Grotius' Introduc- 
tion, 2, 35, 13). The servitude includes a right-of-way to the water 
in favour of the dominant owner, and where the dominant and 
servient tenements are on different sides of a river forming the boun- 
dary between them it also includes a right to a footbridge over the 
river (Hawkins v. Munnik, 1 Menz. 465). 

Arbiter (D.), arbitrator. A person chosen by parties to settle or 
decide a dispute between them. An arbiter must be a person of full 
age and capable of managing his own affairs (Kersteman's Woorden- 
6oeA, vol. 1, p. 22). 

Arbitrage (D.), arbitration. See Aebitbation. 

Arbitrage operations. "This is the name given to the trans- 
actions of certain bankers and mercantile houses who can draw upon,, 
or be drawn upon by, a foreign house or agent. Profits can be made 
by buying bills in one centre and selling them in another, if there is 
sufficient difference in the rates ruling at these centres. It is a form 
of speculation in differences. There are arbitrage transactions in bills, 
in bullion, in stocks and shares, but in each case the operations ai"e 
similar and the profits are made through the differences in price which 
may exist in various centres " (Sykes' Banking and Currency, p. 200). 

" Arbitrarily." " The word arbitrarily does not necessarily imply 
all want of restraint, for it has been defined to be a discretion to act 
at pleasure, only to a certain extent " (per Barry, J.P., in Donian v. 
Kingwilliamstown Borough Council, 2 E.D.C. at p. 29).; 

Arbitrateur (D.), an arbitrator. 



ARBITRATION 46 ARRAIGNMENT 

Arbitration, the reference, by agreement, of a matter in dispute 
to one or more impartial persons for their decision. Tlie agreement 
under which the reference is made is called a " submission " or " deed 
of submission " ; the persons chosen to decide the dispute, if one or 
two only, are called " arbitrators " ; if a third is chosen, for the purpose 
of deciding in case the two arbitrators cannot agree, he is called an 
"umpire"; the decision of the arbitrators or umpire, as the case may 
be, is called an "award." See Act 29 of 1898 (CO; Act 24 of 
1898 (N.); Ordinance 24 of 1904 (T.). 

Arbitrium boni viri, the decision of a good man ; a reason- 
able decision. Where anything is left to a person to decide he 
must make a reasonable decision {Digest, 50, 17, 22, 1). Thus 
where a wife's father undertakes to give a dowry, and the amount 
to be given is left to his discretion, he must exercise a reasonable 
discretion {Digest, 31, 1,1). 

Arglist (D.), deceit, fraud; equivalent to the Roman law dolus 
imihis. See Dolus Malus. 

Argumentum ab inconvenienti plurimum valet in lege, an 

argument drawn from inconvenience is of much force in law. This 
maxim lias an important application in the construction both of private 
deeds and of Acts of Parliament. Although no departure can be per- 
mitted from the strict letter of a deed or statute, where the words are 
plain and admit of no ambiguity, yet where these are doubtful and 
have not a necessary meaning, the construction may be decided by 
considerations of convenience. Thus if in a will there be expressions 
of doubtful meaning and great inconvenience will result from the 
adoption of one construction, it will go far to show that such a con- 
struction was not according to the true intention of the te.stator, and 
will justify another construction which -will not be followed by such 
inconvenience. If, however, the words are not equivocal, but can 
have only one meaning, arguments of inconvenience will not be 
allowed to induce a construction opposed to such meaning. So in 
the construction of an Act of Parliament, if the language is of doubt- 
ful meaning that con.struction will not be adopted which would result 
in great inconvenience, but another construction not attended with 
such inconvenience will be considered as more in accordance with the 
true intention of the legislature, and will be preferred {Venter v. Rea; 
[1907] T.S. 910). 

Arms. In Act 10 of 1907 (T), sec. 1, the term arm or arms 
includes " any gun, rifle, revolver, pistol or other firearm not being a 
cannon, or any material part of any a^-m, as herein [in the Act] defined, 
but shall not include any arm bond fide kept as a curio." See also 
Act 28 of 1908 (O.R.C.), sec. 2. 

Arraignment. " In its usual and ordinary acceptation the 
arraignment of an accused, person means putting him on his 



ARRAIGNMENT 47 AS 

trial" (per KoTZE, J.P., in Kerr v. Rex, [1907] E.D.C. at p. 332, 
and see autliorities there quoted ; also judgment of Graham, J., at 
p. 348). 

Arrha, earnest. Arrhae may consist either of money or other 
things. An arrlia is often given as a token of a purchase and to 
knit the bargain ; but sometimes it is given as a proof of an inchoate 
purchase to be further perfected in writing or otherwise in tern)8 of 
an agreement of the pai-ties. In the latter case the inchoate purchase 
may be receded from at the loss to the one party of the earnest given, 
or on restitution by the other of double the amount which he has 
received. In the former case all poenitentia is disallowed (see Voet's 
Comm. 18, 1, 25; Brest and Ladon v. Heydenrych, 13 S.C. 21 : and 
Joseph V. Ralkett, 19 S.C. 293). 

Arrhae sponsalitiae, the earnest or present in Roman law which 
was given by the sponsus to the sponsa or her father, or by the 
sponsa to the sponsus, at the time of making the betrothal. If the 
marriage were for a good reason broken ott' the arrhae had to be re- 
turned ; if without good reason it was forfeited to the innocent party. 
If the sponsa were to blame she had to restore the gift along with a 
penalty of fourfold its value, afterwards, however, reduced to a penalty 
of the value of the gift (Hunter's RoTnan Law, 4ith ed. p. 696). 

Arson. "This crime is committed wlien a person, with the wilful 
intent of injuring others, has set fire to buildings or other immovable 
property, whereby such property has caught lire and damage has been 
occasioned " (Van der Linden's Institutes, Juta's trans. 3rd. ed. p. 207). 
But where a man married in community of property set fire to a house 
which originally belonged to his wife, and thus burnt a house forming 
portion of the joint estate of himself and liis wife, it was held that, as 
the sole administrator and part owner of such joint estate, he could not 
properlj?^ be convicted of the crime of arson [Regina v. Van Vliet, 9 
S.C. 273). See the Native Territories' Penal Code (Act 24 of 1886 
(CO), sees. 236 et seq. See also Inoendium. 

Art unions, voluntary associations established for the purpose of 
encouraging the arts, and for the purchase of paintings, drawings or 
other works of art to be afterwards allotted and distributed by chance 
among the members, subscribers or contributors, forming part of such 
association ; or for raising money by subscription or contribution to be 
allotted or distributed by chance or otherwise as prizes among such 
members, subscribers or contributors on condition that such moneys so 
distributed be expended solely in the purchase of paintings, drawings 
or other works of art. Art unions were legalised in the Cape Colony 
by Act 28 of 1860. 

"As one with," the phrase "to be read as one with" discussed 
in Rex v. Mason,, ([1907] E.D.C. at p. 21), where KoTZ^, J.P., said, 
"' The expression as one ivith is an objectionable phrase ; it has 
not, so far as I am aware, received any authoritative judicial 
interpretation." 



AS 48 ASSIGN 

"As they stood." As to sale of bricks iu kilns as they stood, see 
Elliott V. McKillop (19 S.C. 350). 

Ascendants, anceHtors; persons related to one another in the 
ascending line ; opposed to " descendants." 

Asiatic. The term Asiatic is defined in the East London Muni- 
cipality Amendment Act (12 of 1895 (CO.), sec. 25) to mean "any 
member of any aboriginal race of the continent or islands of A.sia, 
and any person descended from any such race." In Act 1 of 1899 
(N.), sec. 5, it i.s defined to " include all aboriginal natives of Asia and 
their descendants." See also Act 1 of 1906 (N.), sec. 3. 

For the Transvaal, see Ordinance 29 of 1906, sec. 2, and Act 36 of 
1908, sec. 1. 

Assault, "an assault is (a) an attempt unlawfully to apply any 
the least actual force to the person of another directly or indirectly; 
(b) the act of using a gesture towards another giving him reason- 
able grounds to believe that the person using that gesture meant 
to apply such actual force to his person as aforesaid ; (c) the act 
of depriving another of his liberty; in either case without the 
consent of the person assaulted, or with such consent if it is obtained 
by fraud " (Stephen's Digest of the Criminal Law, 5th ed. p. 202). 

In the Native Territories' Penal Code (Act 24 of 1886 (C.C), 
sec. 155) assault is thus defined : " An assault is the act of inten- 
tionally applying force to the person of another, directly or indi- 
rectly, or attempting or threatening by any act or gesture to apply 
such force to the per.son of another, if the person making the threat 
has or causes the other to believe upon reasonable grounds that he has- 
the present abilitj' to effect his purpose." 

Assessment, the estimate of the value of property upon which 
a tax or charge is payable to a Governnient or local authority; 
also the tax or charge so payable ; an estimate of the amount payable 
as damages, or by way of compensation by one person to another. 
Defined in the Cape Additional Taxation Act (36 of 1904), sec. 42, 
to mean " an estimate of the value of the amount of any income 
liable to taxation under this Act as well as the amount of tax 
imposed thereon respectively, and includes all matters comprised in 
any return required by or under this Act." 

Assets, the property owned by a person. 

Assign. (1) To make over or transfer a right or thing from one 
person to another. 

(2) The person to whom some right or thing is made over or 
transferred. 

Under the Cape Copyright Act (2 of 1873, sec. 9) the word assigns 
is construed to mean and include every person in whom the interest 
of an author in copyright shall be vested, whether derived from such 
author before or after the publication of any book, and whether 



ASSIQ-N 49 ASSIGNMENT 

acquired by sale, donation, legacy, or by operation of law or other- 
wise ; see also Act 46 of 1905 (C.C), sec. 1. A similar definition is 
to be found in the Natal Copyright Act (17 of 1897), ser:. 3. For 
definition in Natal Play Eights Act, 1898, see Act 44 of 1808, sec. 2. 

Assignatie (D.), an assignation whereby some person in writing 
requests his correspondent, or his debtor in matters of trade, to pay 
a certain sum of money on his account to the holder of the assignatie. 
An assignatie resembled a bill of exchange in some respects, while it 
differed in others ; for instance, Van der Keessel tells us that in Eoman- 
Dutch law there was no real exchange unless the bill was drawn at 
one place and was to be paid at another, which in an assignation was 
not necessarj^ Moreover, in exchange there was a sale and a purchase 
between the I'emittent and the drawer, whilst in an assignation there 
was only a simple mandate to pay money to the assignee (see Van der 
Keessel, Thes. 837-52). 

Assignatus utitur jure auctoris, a cessionary exercises the right 
of his author or cedent. On the one hand, the cessionary is entitled 
to all the privileges of his cedent where these are not merely personal, 
as, for example, the privileges of the Treasury and of minors, but are 
real, attaching to the debt, such as the preference for funeral expenses 
and medical fees ( Voet's Gomm. 11, 4, 12 ; Matthaeus, Be Auctionibus, 
1, 21, 7). So also where security has been given for the payment of 
the debt, the cedent's right to sue the sureties or to realise the pledges 
will pass to the cessionary. On the other hand, the cessionary has no 
greater rights than his cedent, and is liable to all exceptions and 
defences which may be pleaded against the latter. An exception to 
this principle, however, lies in the case of bills of exchange, payment of 
which may be enforced by a holder in due course notwithstanding 
defects of title of prior parties and of personal defences which may be 
available to prior parties amongst themselves. If, however, a bill is 
jiegotiated after it is overdue, the indorsee acquires no better title 
than the person had from whom he took it. The same applies where 
a bill, which is not overdue, has been dishonoured and a person takes 
it with notice of dishonour : he takes the bill subject to any defect of 
title attaching to it at the time of dishonour. 

Assignment. (1) The transference of a right or interest. In 
speaking of the word assignment as applied to leases Innes, C.J., in 
Kolfes, Nehel &■ Co. v. Zweigenhaft ([1903] T.S. at p. 189) said : " I have 
used the word assignment because it is used in the plea, though no 
such term with respect to leases is kno.wn to the Roman or Roman- 
Dutch law. It belongs purely to the terminology of English and 
Scotch law. The word assignment is derived from assignare, to point 
out, to mar-k out, and there is no derivative of that word used by the 
Dutch lawyers in connection with lease or cession. . . The technical 
distinctions of the English law regarding the assignment of leases are 
nowhere to be found in the Roman or Roman-Dutch law." 

There must be strict proof that an absolute assignment has been 



ASSIGNMENT 50 ASSOCIATION 

made, and that uotice of such assigmrvent has been given to the lessor 
{Parkins v. Lippert, 12 S.C. at p. 187). 

(2) The transference of the assets of an estate by the debtor to an 
assignee or trustee in trust for his creditors. Such assigniments in 
favour of creditors are recognised by statute law in Natal (see sees. 
158-164 of Law 47 of 1887) and in the Orange River Colony (see 
Ordinance 3 of 1906). 

Assist at a crime. " Everybody who, in the opinion of the 
judge, does something to further the purpose of a criminal is a person 
who assists or helps at the crime. Even the person who keeps a look- 
out to see that the police do not interrupt the perpetrator of a crime 
is punishable according to our law " {per Wessels, J., in Rex v. 
Peerkhan and Lalloo, [1906] T.S. at p. 804). " Our law differs consider- 
ably from the English law in that respect. Our law is void of any 
technicality. It says that a person who assists at a crime is himself 
guilty of the oflf'ence" {per Wessels, J., ibid, at p. 803). 

Assize. (1) A judicial assembly or coui't in England held under 
the King's Commission in eveiy county to take criminal prosecutions 
and to hear cases at nisi prius. 

(2) To regulate weights and measures in accordance with statute 
law. 

Assizer, a person duly appointed to assize and mark weights and 
ineasures ; one to whom the standards of weights and measure are 
entrusted. See Act 15 of 1876 (C.C); Law 19 of 1872 (N.), sees. 66 
et seq. 

Association, an organised body of persons who have joined 
together undei- some contract, statute, regulations or rules, for the 
purpose of carrying out some common object. See Law 4 of 1892 
<O.R.C.), sec. 1 (6) ; Act 3 of 1873 (C.C), sec. 1. 

"The word association in the sense in which it is now connnonly 
used is etymologically inaccurate, for associaiion does not properly 
describe the thing formed, but properly and etymologically describes 
the act of associating together, from which act of association there is 
formed a company or partnership. But I believe that according to 
the vernacular we u.se on the.se subjects the difference which the Act 
[Companies Act, 1862 (Eng.)] intended to draw between a company or 
association and an ordinary partnership is this : An ordinary partner- 
ship is a partnership composed of definite individuals bound together 
by contract between themselves to continue combined for some joint 
object, either during pleasure or during a limited time, and is essen- 
tially composed of the per.sons originally entering into tlie contract 
with one another. A company or association (which I take to be 
synonymous terms) is the result of an arrangement by which parties 
intend to form a partnership which is constantly changing, a partner- 
ship to-day consisting of certain members and to-morrow consisting 
of some only of those members along with others who have come in, 



ASSOCIATION 51 ASSURANCE 

so that there will be a constant shifting of the partnership, a deter- 
mination of the old and the creation of a new partnership, and with 
the intention that, so far as the partners can by agreement between 
themselves bring about such a result, the new partnership shall suc- 
ceed to the assets and liabilities of the old partnership. This object 
as regards liabilities could not in point of law be attained by any 
arrangement between the persons themselves, unless the persons con- 
tracting with them authorised the change by a novation, or unless by 
special provisions in Acts of Parliament sanction was given to such 
arrangements" (per James, L.J., in Smith v. Anderson, 15 Ch. D. 
at p. 273). 

Assumed curator, a person assumed or appointed by a curator 
nominate by virtue of a special authority contained in the will or 
other deed by which the curator nominate was himself appointed. 
Such assumed curator, when duly appointed and confirmed by letters 
of confirmation granted by the Master of the Supreme Court, occupies 
the same position in law as a curator dative. 

Assumed executor, a person nominated or assumed by the 
executor testamentary in the estate of a deceased person by virtue 
of a special authority contained in the will ; the assumption takes 
place by means of a written deed, which is filed with the Mastei' of 
the Supreme Court (or, in Natal, with the Registrar of Deeds), who, on 
being satisfied that it is in order, and that it is authorised by tlie 
will, grants letters of administration to the assumed executor on his 
giving the required security. The law relating to executors dative 
is applicable to assumed executors (see sec. 24 of Ordinance 104 of 
1833 (C.C.) ; sec. 8 of Act 19 of 1894 (N.) ; sec. 30 of Proclamation 28 
of 1902 (T); sec. 27 of Ordinance 18 of 1905 (O.R.C.). The Cape 
Ordinance is also operative in Rhodesia). See Re Titterton's Estate, 
12 S.C. 1; 5 C.TR. 17; Maasdorp's Institutes, 2nd ed. vol. 1, p. 217; 
Tennant's Notary's Manual, 6th ed. pp. 141, 196 ; Van Zyl's Notarial 
Practice, p. 299. 

Assumed tutor, a person assumed or appointed by a tutor testa- 
mentary by virtue of a special authority contained in the will or other 
deed by which the tutor testamentary was himself appointed. Such 
assumed tutor, when duly appointed and confirmed by letters of con- 
firmation granted by the Master of the Supreme Court, occupies the 
same position in law as a tutor dative. 

Assum.ptie (D.), assumption. In Romaii-Dutch law assumptie 
was a right which was given by a testamentary disposition to an 
iidministrator or guardian, authorising him during his administra- 
tion or guardianship, as the case may be, to assume and appoint 
a.nother person as co-administrator or co-guardian. 

Assurance. See Insurance. 



ASSURANTIE 52 ATTERMINATION 

Assurantie (D.), assurance or insurance. See I>fSUEANCE. 

Assured. See Insured. 

Asylum, a place specially set apart for the reception and treat- 
ment or detention ot" persons suffering from mental or bodily 
infirmities or other misfortunes. In the Cape Lunacy Act (1 of 
1897) the term asylum is defined to mean " an asyluin for lunatics 
now existing or which may hereafter be declared by the Governor as 
an asylum or place for the reception or detention of lunatics." By 
the same Act (sec. 44) it is made a penal offence to receive or detain 
a lunatic or alleged lunatic in the Cape Colony in an asylum, or for 
payment take charge of, or board or lodge, or detain a lunatic or 
alleged lunatic, except under the provisions of the Act. The Trans- 
vaal has adopted the same definition for asylum, as the Cape Colony ; 
see Proclamation 36 of 1902, sec. 2 ; Ordinance 23 of 1904, sec. 2 ; and 
so too the Orange River Colony, see Ordinance 13 of 1906, sec. 2. 

"At merchant's risk," see Briscoe & Co. v. Powell <& Go. (22 
T.L.R. 128). 

Attempt to commit a crime. Mere acts of preparation, 
though done with criminal intent, do not amount to attempt to 
commit crime, and are not indictable under the common law (Rex 
v. Sharpe, [1903] T.S. 868). In Regina v. Topken and Slcelly 
(1 A.C. 471) the prisoners had gone out with the intention of way- 
laying and robbing a post-cart, but as the cart did not pass that 
way tliey did nothing, and it was held thej' were not guilty of an 
attempt to commit the crime intended. De Villiebs, C.J., said : " If 
it were impossible for them, circumstanced as they were, to commit 
the crime of robbery and murder, it was equallj^ impossible for 
them to be guilty of an attempt to commit either of those crimes." 
See also Queen v. Kaplan (10 S.C. 259); and Misnum v. Rex 
([1906] T.S. 216). See Ordinance 26 of 1904 (T.), sec. 37. 

Atterminatie (D.), a form of relief granted hj the Dutch courts 
to a defendant whereby time was allowed to him within which to 
pay his creditors their debts on security being given for due pay- 
ment on expiration of the time allowed. See Van der Linden's 
Institutes, 3, 7, 3. This security had usually to be provided within 
fourteen days. Atterminatie c(?iTld not be granted against mortgage 
or secured creditors, or against the proceeds of the sale of houses, lands 
and other effects destined to form the capital funds the yearly revenue 
of which was appropriated for the maintenance of widows and orphans, 
or in cases where aliment would be reduced (Kersteman's Woorden- 
boek, vol. 1, p. 32). Atterminatie is not now operative in South 
Africa ; see Van Leeuwen's Gomin. Kotz^'s trans, vol. 2, p. 341, 
translator's note. 

Attermination, Letters of, see Atterminatie. 



ATTESTATIEN 53 ATTORNEY 

Attestatien (D.), derived from the Latin adtestatum {adteator), are 
all such documents by which a person makes a solemn declaration. 
Attestations, which are made on oath, receive full credence in law. 
But atte.stations not made on oath have no such credence accord- 
ing to the maxim Testis non juratus nullam vieretur fidem (Kerste- 
man, Woordenboek, sub voce). 

Attestation. (1 ) Of Wills. The signing by a person of his name 
as a witness to the due execution by the testator of a will or codicil in 
manner prescribed by law. It has been held in Re Le Roux (3 S.C. 56) 
that the signing by means of a mark was a sufficient subscription 
within the meaning of Ordinance 15 of 1845 (CO.); and wliere a 
witness to a will, who was unable to write, held the pen at the top, 
whilst another person guided it and wrote the name of such witness, 
and it was proved to the satisfaction of the court that the transaction 
was bond fide, and that the witness held the pen with the object of 
thus attesting the will, it was held that his attestation was \alid 
(Van Niekerk v. Van Nielcerk, 15 S.C. 229). Wills to be valid in the 
C^pe Colony must be executed as follows : {a) they must be signed at 
the foot or end by the testator or by some other person in his presence 
and by his direction ; and (b) such signature must be acknowledged by 
the testator in the presence of two or more competent witnesses present 
at the same time ; and (c) such witnesses must attest and subscribe the 
will in the presence of the person executing the same ; and when the 
instrument is written on more leaves than one " the party executing 
the same and also the witnesses shall sign or shall have signed their 
names upon at least one side of every leaf upon which the instrument 
shall be or shall have been written" (Ordinance 15 of 1845 (C.C), 
sec. 3). In Re Trollip (12 S.C. 243), where the testator and witnesses 
duly signed at the foot of a will written on more pages than one, but 
the only signature of the testatrix to the first leaf was made by means 
of her initials just above the initials of the witnesses, apparently made 
with the view of authenticating an erasure on the second page, it was 
held by the Supreme Court (C.C.) that the will should not be rejected, 
as not complying with the Ordinance just referred to, because of the 
signatures having been made by means of initials. See SiGN. Similar 
provision is made for the attestation of wills in Natal by Law 2 of 
1868, sec. 1 ; in the Transvaal by Ordinance 14 of 1903, sec. 1 ; in 
the Orange Eiver Colony by Ordinance 11 of 1904, sec. 1 ; the law 
on the subject in Rhodesia is the same as that in the Cape Colony. 

(2) Of Power of Attorney. Evidence of its due execution. As 
to the manner in which powers of attorney in the Cape Colony nmst 
be attested, see Act 10 of 1879. 

(3) See Law 9 of 1859 (N.), for declaring the number of witnesses 
necessary to attest acts or deeds. 

(4) See Attestatien. 

Attorney (derived from O.Fr. atto^^nd ; p.p. of attorner, to assign 
or appoint) means one who has been appointed by another to act for 
him, and is the term specially applied in this country to practitioners 



ATTORNEY 54 AUDI 

ot" the Supreme Courts. It answers to the English term solicitor, but 
prior to 1875 solicitor in England denoted a practitioner in the Court 
of Chancery as distinguished from attorney, the name given to those 
who practised in the courts of common law (see Solicitor). As to 
admission of attorneys in Cape Colony, see Rules of Court 149-152, 
199, 213, 293 and 362; Charter of Justice, sees. 19-24: Act 12 of 
1858, sees. 3-7 ; Act 16 of 1873, sec. 21 ; Act 27 of 1883 ; Act 3 of 
1892, sees. 2-7 ; Act 11 of 1903, sees. 3-6 ; in Natal, see Rules of Court 
of 14th July, 1904 ; in Transvaal, see Proclamation 14 of 1902, sec. 11 ; 
Ordinance 31 of 1904, sees. 7, 8 and 12; Government Notice 92 of 
1906; Ordinance 1 of 1904; and Act 33 of 1908; in Orange River 
Colony, see Ordinance 4 of 1902, sec. 13, and Ordinance 13 of 1904. 

Attributrix. Grotius (De Jure Belli ac Facia, 1, 1, 8) divides 
justice into justitia expletrix and attributrix. Voet (Gomm. 1, 1, 10) 
thus describes the distinction : " Under expletrix are included all things 
which one is not merely bound to give and fulfil from reasons of equity, 
but which wlien unwilling he can be compelled to give or fulfil by com- 
petent legal remedies. . . . On the other hand, the term attributrix is 
applied to all those tilings wliich one may be bound to do according to 
equity and natural reason, and doing which, he may be thought worthy 
of praise among good men, yet which, if he refuse to do them, thus 
laying aside shame and spurning the bonds of equity, no public autho- 
rity can force him to fulfil." (See also Best on Evidence, see. 36.) 

Atturnatus extra-judicialis, one of the two classes of attorney 
recognised by the Lex Romana in tlie middle ages. He was a mere 
agent to as^sist in the transaction of business (Wessels' Histm^y, 
p. 195). 

Atturnatus judicialis, one of the two classes of attorney recog- 
nised by the Lex Roonana in the middle ages. He was "employed 
by a litigant to a.ssist him in the conduct of his lawsuit " (Wessels' 
History, p. 195). 

Auction, (1) an increasing; hence sales by auction. 

(2) A public sale at which the bidding increases gradually and the 
highest bidder becomes the purchaser. "In sales by public auction 
each bidder is bound by his bid, and yet acquires no right if others 
bid higher " (Grotius' Introd. 3, 14, 30).; 

Auctioneer, a person duly licensed to sell goods or property by 
public auction. " Auctioneer means any person who sells any article 
or thing at any public sale where the highest bidder, whether the 
bidding be by the rise or by the fall, becomes the purchaser" (Act 38 
of 1887 (C.C), sec. 3). See Ordinance 23 of 1905 (T.), sec. 2 ; and 
Dely ct- De Kock v. Civil CoTwinissioner ([1906] T.S. at p. 96). See 
also Ordinance 10 of 1903 (O.R.C.), sec. 2. 

Audi alteram partem, hear the other side ; a maxim of universal 
application in the administration of justice, according to which a man 



AUDI 55 AUDITOR 

is entitled to have an opportunity of being heard before he is con- 
demned in his person or property'. 

Auditor, an accountant appointed for the purpose of verifying- 
and stating the true financial position of a company, firm or in- 
dividual. In the case of companies he must see what exceptional 
duties, if any, are cast upon him by the articles of association (Re 
Kingston Cotton Co., [1896] 2 Ch. 284). 

The duties of an auditor were described by Lindlev, L.J., in Re 
London and General Bank ([1895] 2 Ch. 673) as follows : " An (tuditor 
has nothing to do with the prudence or imprudence of making loans 
with or without security. It is nothing to him whether the business 
of a company is being conducted prudently or imprudently, profitably 
or unprotitably. It is nothing to him whether dividends are properly 
or improperly declared, provided he discharges his own duty to the 
shareholders. His business is to ascertain and state the true financial 
position of the company at the time of the audit, and his duty is con- 
fined to that. But then comes the (luestion : How is he to a.scertain 
that position ? The answer is : By examining the books of the com- 
pany. But he does not discharge his duty by doing this without 
inquiry and without taking any trouble to see that the books them- 
selves show the company's true position. He must take reasonable 
care to ascertain that they do so. Unle.ss he does this, his audit 
would be worse than idle farce. Assuming the books to be so kept 
as to show the true position of a company, the auditoi' has to frame a 
balance-sheet showing that position according to the books, and to 
certify that the balance-sheet presented is correct in that sense. But 
his first duty is to examine the books, not merely for the purpose of 
ascertaining what they do show, but al.so for the purpose of satisfying 
himself that they show the true financial position of the company. 
This is quite in accordance with the decision of Stirling, J., in Leeds 
Estate Building and Investment Go. v. Shepherd (36 Ch. D. 787). An 
auditor', however, is not bound to do more than exercise reasonable 
care and skill in making inquiries and investigations. He is not an 
insurer ; he does not guarantee that the books do correctly show the 
true position of the company's affairs; he does not even guarantee 
that his balance-sheet is accurate according to the books of the com- 
pany. If he did, he would be responsible for an error on his part, even 
if he were himself deceived without any want of reasonable care on 
his part- — say, by the fraudulent concealment of a book from him. 
His obligation is not so onerous as this. Such I take to be the duty 
of the auditor: he must be honest — i.e. he must not certify what he 
does not believe to be true, and he must take reasonable care and skill 
before he believes that what he certifies is true. What is reasonable 
care in any particular case must depend upon the circumstances of 
that case. Where there is nothing to excite suspicion, very little in- 
quiry will be reasonably sufficient, and, in practice, I believe, business 
men select a few cases at haphazard, see that they are right, and 
assume that others like them are coirect also. Where suspicion is 
aroused, more care is obviously necessary ; but still an auditm^ is not 



AUDITOR 56 AUTHOR 

bound to exercise more than reasonable care and skill even in a case 
of suspicion, and he is perfectly justified in acting on the opinion of 
an expert where special knowledge is required." 

Aureus, the standard gold coin of Rome. It was the seventy- 
second part of a pound of gold (Troy), weighing 80 grains, equivalent 
to 120 grains avoirdupois, and was equal to about £1, Is. Id. (see Van 
Leeu wen's Goinm. 4, 30, 4). It derives its importance with us from 
the rule of the Roman law, which has been adopted by the Roman- 
Dutch law, that donations exceeding the value of 500 aurei in order 
to be valid must be registered. For the purpose of this rule an 
aureus is regarded by us as equivalent to one pound sterling 
{Thorpe's Executor v. Thorpe's Tutor, 4 S.C. 488). 

Authentica si qua mulier. The benefit conferred upon married 
women by Justinian in cases of suretyship for their husbands is 
known as the beneficium authenticae " si qua mulier," and the con- 
stitution appertaining to the same is found in Gode, 4, 29, 22 : " If any 
woman becomes a party to an acknowledgment of debt, or signs it, 
and binds her property or her person, for and on behalf of her 
husband, we have determined that this transaction shall under no 
circumstances have validity, whether some act of this nature be per- 
formed once only or repeatedly, whether the debt be a private or a 
public one ; indeed, it shall be accounted as never having been effected 
or signed, unless it is clearly established that the money has been 
expended for the woman's own benefit." See Graaff-Reinet Board 
of Executors v. Maasdorp ([1908] E.D.C. 431). 

Authenticae. Authenticuvi is an original writing. Into the 
Gode glossarists introduced what they called Authenticae — notes of 
the alterations made on the law by Justinian's Novels (Muirhead's 
Roman Law, p. 410). Thus appended to G. 4, 29, 22, we find an ex- 
cerpt of Novell. 134, cap. 8. 

Authenticum. See Authenticae. 

Author, generally the original wiiter or composer of some literary 
work. In the Cape Copyright in Works of Art Act (46 of 1905) 
the term author is defined to mean " the inventor, designer, engraver, 
sculptor or maker of any work of art ; provided that the author of a 
work of art made by the employ^ of any person or firm in virtue of 
his employment shall mean the person or firm under whose orders, or 
in the course of whose business, the work of art was made by such 
employe." 

In the Natal Copyright Act (17 of 1897), sec. 3, " author means 
the author, inventor, designer, engraver or maker of any woi-k, and in 
the case of a posthumous book means the proprietor of the manu- 
script." For definition in Play Rights Act, 1898, see Act 44 of 1898 
<N.), sec. 2. 



AUTHORITY 57 AUTREFOIS 

Authority. (1) Power; the right to coinmand. 
(2) A precedent. As to the binding force of text-books as 
authorities, see Ethnondson v. Edmondson (23 N.L.R. at p. 373). 

Autrefois acquit, formerly acquitted. See Autrefois Convict. 

Autrefois convict, formerly convicted. The general principle is 
netyio debet bis vexari, a man must not be put twice in peril for tlie 
same offence. Hence if he be indicted a second time he can plead as a 
complete defence his former conviction or accquittal (Cape Rule of 
Court 94), even though the conviction or acquittal took place in a 
foreign country. To determine in any particular case wliether such a 
plea is available, it is necessary to ask : — 

(1) Was the prisoner "in jeopardy" on the first indictment? A 
prisoner cannot have been in jeopardy if the indictment was legally 
invalid; for no conviction upon it would have been effectual. The 
prisoner may thus object to the jurisdiction of the court, or he may 
have the indictment quashed, but in such cases he would be amenable 
to a fresh indictment. Thus in R. v. Myers (2 S.C. 221) and R. v. 
Twaltdunga (20 S.C. 425) the prisoners were convicted, but upon 
appeal the convictions were quashed upon a technicality, whereupon 
they were again indicted and convicted, and the appeal court held 
that as the prisoners liad not been in jeopardy under the first 
indictment, they were respectively properly tried under the second 
indictment. 

(2) Was there a final verdict ? If the jury cannot agree and 
they are discharged without a verdict, thex prisoner may again be 
tried ; but not if the indictment also has been withdrawn and the 
prisoner has been discharged {Ken- v. Rex, [1907] E.D.C. 324). 

(3) Was tlie previous charge substantially the same as tlie second 
■one ? Dr. Kenny {Outlines of Criminal Laiv, p. 470) says : " They 
are stifficiently nearly identical, if evidence of the facts alleged in the 
second indictment would legally have sufficed to procure some con- 
viction on the first indictment; whether it wei'e a conviction for the 
offence actually charged in that first indictment, or even for some 
other, either of an e(]ual or of a lower degree of heinousness. Hence 
tlie two indictments must refer to the same transaction. Yet the 
intent or the circumstances alleged in the one may be more aggravated 
than those alleged in the other. Thus an acquittal or conviction for a 
common assault bars a subsequent indictment for an assault with 
intent to murder, or even for an unlawful wounding; and an acquittal 
for manslaughter bars a subsequent indictment for murder, and vice 
versa. On the other hand, an acquittal for an unlawful wounding 
■does not bar a subsequent indictment for murder [cf. R. v. Stwurnian, 
1 Roscoe, 83] ; and an acquittal on an indictment for murdering A by 
burning a house in wliich he was asleep, does not bar a subsequent 
indictment for arson. For in each of these two pairs of charges the 
pair are so dissimilar that it would not have been legally possible to 
obtain a conviction upon the first indictment by the evidence necessary 
to support the charge made in the second one." 



AVAL 58 AZING- 

Aval, a surety. A party who signs a bill otherwise than as drawer, 
acceptor or indorser becomes a surety or aval. The holder of the bill 
had by Roman-Dutch law his summary remedy against the guarantor 
jure cambiali, but the practice of giving ]'iovisional sentence against 
such indorsers has never been followed in the Cape Supreme Court 
{Nm-tmi V. Satchwell, 1 Menz. 77, and Coetzee v. Tiran, Foord, 42). 

Avarye (D.), average. See Average. 

Average. (1) In Shipping Law: Van der Keessel (Thes. 780) 
says: "Average, which is accurately treated of in the new law of 
Rotterdam, is there defined as ' the loss arising from any voluntary act 
done with the view of preserving the vessel and goods, or of averting 
gi-eater and probable damage.' Such loss is to be made good by con- 
tribution from the vessel and goods, and is termed gross average." 
See General Average ; Particular Average. 

(2) In Fire Insurance Law: Porter in his Laws of Insurance 
(5th ed. p. 277) says that conditions as to average "take two forms: 
(1) a condition declaring the property' insured to be subject to the con- 
ditions of average ; (2) a condition declaring that if any other subsist- 
ing insurance or insurances efffected by the insured or any other 
per.son, covering any property by the policy in question insured, either 
exclusively or togetlier with any other property in and subject to the 
same risk, should be subject to the conditions of average, the insur- 
ance on such propertj' under the policy should be subject to the 
conditions of average in like manner." See also McGrath v. South 
British Insurance Co. (3 S.C. 81); Kafrarian Colonial Bank v. 
Grahamstown Fire Insurance Go. (5 E.D.C 61). 

Averment, the allegation or statement of some thing as a 
positive fact. 

Avulsio, avulsion, is a violent separation of a piece of ground- 
whicli is carried by a river to the property of anotlier and there- 
annexed. Such ground continues the property of its rightful owner 
until it has become tirralj' attached to the estate to which it has- 
been carried by means of roots of trees or plants growing thereon. 
See Holland's Jurisprudence, 10th ed. p. 208. See Appulsio. 

Award, the decision of arbitrators or an umpire in arbitration 
proceedings, made by virtue of a submission or other proper reference, 

Azig (D.). " In Friesland the schepenen were called azigen^ 
Grimm tells us that azig meant lawgiver" (Wessels' History^ 
p. 160). 

Aziug or Aafga " was an ordinary judge in civil matters among 
the Frisians. He was well-born, but not noble, and had no persons 
of noble birth under his jurisdiction. He dispensed justice together 



AZING 59 BAIL 

with the ueig}ibours or inhabitants of the vicinage (gebuyren)" 
(Meyer, Woordenschut, sub voce, referred to in an article by 
KOTZE, J.P., in 26 S.A.L.J. 59). 

Azirig en gebuyren (D.). "In regard to the ordinary tribunal of 
aziiag en gebuyren in the country, which exercised jurisdiction in 
lesser crimes and in civil matters, the baljuw of Rhineland iiad from 
very early times power to appoint two sworn persons, called Azingen, 
whose duty it was, the one on the upper and the other on the lower 
side of the Rhine, to appear on special court days in all the villages 
and courts of Rhineland in order to hold a court together with the 
neighbours and tliose brought by the parties, and to pronounce 
sentence upon the demand of the sellout and tacdman in a certain 
set form of words, which could not be departed from, and also to 
discover and ascertain what tines and offences had occurred and to 
report to the baijiiw thereon. This mode of holding a court by means 
of (izing en gebuyren in the country was in the year 1291 changed 
in Kennemerland into tiie practice of proceeding hy mean.s of schout 
and .'<chepenen. But in some other parts of Rhineland this change 
took place at a much later date by means of an Ordinance of the 
States of Holland in the year 1577 " (KoTZE, J.P., article on the History 
of the Roinan-Dutch Law, in 26 S.A.L.J. 59). 



Baargericht (D.), one of the forms of ordeal employed in early 
Dutch criminal procedure. " If a murder had been committed, aud 
one or more per.sons were strongly suspected, they could be compelled 
to approach the corpse and touch it. If it began to bleed afresh at the 
touch of the suspected person he was declared guilty. This ordeal was 
used in the middle ages, and .survived until the fifteenth century " 
(Wes.sels' History, p. 182). 

Bail, the releasing of a pi-isoner fi'om custody upon his entering 
into an undertaking or recognisance by himself alone, or by himself 
and one or more .sureties according to the nature and circumstances of 
the case ; the condition of the obligation being that the prisoner shall 
appear and answer to any indictment that may be presented against 
him, in any competent court, for the crime or offence wherewith he is 
charged, at any time within a specified period from the date thereof, 
and that he will accept service of any indictment and summons 
thereon at some certain place by him elected and expressed in the 
obligation. On the completion of such an obligation (which is only 
permitted and accepted in respect of bailable offences) the prisoner is 
released from custody and is said to be liberated on bail or admitted 
to bail. See Ordinance 40 of 1828 (CO.), sees. 45 et seq. The rule of 
law " requires that there shall be a strict construction put on such 
recognisances as against the Crown " (per Barry, J.P., in Queen v. 
Long and Others, 3 E.D.C. at p. 6). 



BAIL 60 BAKER 

See Ordinance 18 oi 1845 (N.), sec. 54; Ordinance 1 of 1903 (T.), 
sees. 84, 97 et seq.: Ordinance 12 of 1902 (O.R.C.), sees. 52 et seq.; 
Ordinance 6 of 1905 (O.R.C.), sees. 6 et seq. 

Bail bond, a wi-itten obligation or recognisance entered i))to by 
a prisoner either by himself oi- jointly with one or more sureties in the 
manner prescribed by law, and on the due execution of which he be- 
comes entitled to be liberated on bail. See Bail ; Recognisance. 

See Ordinance 18 of 1845 (N.), sec. 63; Ordinance 1 of 1903 
(T.), sec. 105; Ordinance 12 of 1902 (O.R.C.), sec. 52. 

Bailable offence, an offence in respect of wliich a prisoner is 
entitled to claim that he may be admitted to bail. See Ordinance 40 
of 1828 (C.C), sees. 46 to 52 ; Ordinance 18 of 1845 (N.), sec. 57. 

Bailee, an English term, meaning the person to whom goods 
are delivered in trust upon a contract, express or implied, that the 
trust shall be faitlifully executed on the part of the person to 
whom the goods are so delivered. See Bailment. 

Bailluw (D.), an old form of spelling baljinv. See BALJU^v. 

Bailment, an English term denoting " a delivery of goods on 
a condition, express or implied, that they shall be restored by the 
bailee to the bailor, or according to his directions, as soon as the 
purpose for which they are bailed shall be answered " (Jones on 
Bailmevtn, 4th ed. p. 1). "To constitute a bailment of goods the 
actual or constructive possession of a specific chattel must be trans- 
ferred by its owner, or his agent duly authorised for that purpose, 
to another person, in order tliat that other person may perform 
some act in connection therewith for which such physical or con- 
structive pos.session of the chattel is necessary, upon the understand- 
ing, eitlier express or implied, that when the act is performed or 
the service rendered the recipient of the chattel shall redeliver it 
in specie to its owner or his nominee" (Paine on BaAlment-v, p. 1). 
The nearest approach to bailments in Roman-Dutch law is that 
group of contracts which is regarded as being concluded by delivery 
of a thing re, and not by mere consent. On the question of differ- 
ence between the English and Roman-Dutch law on the subject, 
consult Morice's English and Rovum-Dutch Law, 2nd ed. p. 115. 

Bailor, an English term, signifying the person who delivers 
goods to another person, called the bailee, in trust upon a contract, 
express or implied, that the trust shall be faithfully executed on 
the part of the bailee. See Bailment. 

Baker. In the Orange River Colony baker, as defined by Ordi- 
nance 10 of 1903 (O.R.C.) means " every person who keeps a shop and 
exposes baked bread, cakes or pastry for sale, whether such person 



BAKER 61 BANKER 

shall have baked such bread, cakes or pastrj'- himself or not ; provided 
that the holder of a general dealer's license who exposes for sale baked 
bread, cakes or pastrj' obtained from a licensed halcer shall not be 
deemed to be a halcer under this Ordinance." 

Baliow (D.). See Baljuw. 

Baljuw ; Baliow ; Ballif (drossaart, ruwaart) (D.), in medijeval 
Latin bajulus, a substituted or sub-count, whose duty it was to 
assemble the court in the first instance in criminal cases in regai'd to 
persons who were not of noble birth, and in appeal in civil matters, 
to prosecute and conduct the proceedings. This officer held in his 
hand a red staff or rod, or a drawn sword in order to indicate that he 
had summoned a criminal court, in the proceedings of which the well- 
born men took part. (See 26 S. A.L.J. 57, note). 

Ballif (D). See Baljuw. 

Ballot, a method of secret voting by means of a little ball, or 
ticket, 01' slip of paper with writing or printed matter thereon. If 
it be by ticket or slip of paper, such ticket or slip of paper is usually 
called a ballot-paper. The ballot by means of the little balls is usually 
conducted with white and black balls ; hence the use of the expression 
"black ball" in club elections. Parliamentary, municipal and divi- 
sional council elections in South Africa are now conducted on the 
ballot system. 

BaUot-box, a receptacle in which ballot papers or balls are placed 
at an election, where such election is conducted on the ballot system. 
See Ballot ; Ballot-paper. 

Ballot-paper, a ticket or slip of paper bearing the names of can- 
didates at an election, and having spaces opposite each name in order 
that the elector or voter may put his mark against the name of that 
one of the candidates for whom he wishes to vote. When the ballot- 
paper has been so marked it is folded by the voter and placed by him 
in a receptacle prepared for the purpose, called a " ballot-box." 

Ban (D.). (1) Formerly denoted jurisdiction. 

(2) A public notification of any command or order. Hence han- 
nen — to publish or proclaim, e.g. banns of marriage. 

Banishment, enforced expulsion from a country ; a form of 
punishment, now obsolete in South Africa. 

Banker. In the Cape Bills of Exchange Act (19 of 1903) the 
word banker is defined to include a " body of persons, whether incor- 
porated or not, who carry on the business of banking." See also 
Law 8 of 1887 (N.), sec. 1 ; Proclamation 11 of 1902 (T.), sec. 1 ; Ordi- 
nance 28 of 1902 (O.R.C.), sec. 1. 



BANKER 62 BANNS 

In tlie Transvaal Diamond Trade Ordinance (63 of 1903), sec. 43, 
hanker means "any manager, cashier or other oflicer of a joint-stock 
bank, acting in his capacitj' as such." See also Ordinance 40 of 
1904 (T.), sec. 9. 

In the Orange River Colony Mining of Precious Metals Oi'dinance, 
(3 of 1904), sec. 124, hcmker includes "any manager, cashier or other 
officer of a joint-stock bank acting in his capacity as such." 

Bank note. " A hank note may be defined as a promissory note 
issued hy a banker payable to bearer on demand. It differs from an 
ordinary note in that it may be reissued after payment " (Chalmers 
on Bills of Exchange, 6th ed. p. 267). " Bank notes are payable to 
bearer and circulated freely from hand to hand ; besides which they 
are in many cases legal tender. It may be years before they are 
presented for payment at the bank which issues them" (Sykes on 
Banking u.nd Currency, 2nd ed. p. 58). The issue of bank notes is 
now generally regulated and restricted by statute. See Act 6 of 
1891 (C.C.) ; Law 2 of 1893 (T.). 

As to stolen hank note, see Woodhead, Plant A Co. v. Gunn (11 
S.C. at p. 9). 

Bankroetier (D.) (formei-ly hmqueroiitier), a bankrupt; an insol- 
vent person. 

Bankrupt, a term used in England to signify' an insolvent or a 
state of insolvency. See Insolvent. It is sometimes used in South 
African statutes ; see Law 8 of ] 887 (N.), sec. 1. 

Banks of loan, otherwise called " Lombard," were institutions in 
the fifteenth and sixteenth centuries, " where any one may pawn and 
pledge his pioperty at a reasonable sum by the day or the week, as 
high as the value of the article pawned will fairly admit, for which 
the pawnbroker may enjoy a reasonable profit for his trouble and the 
use of his money. For this purpose certain persons are appointed by 
the Government, besides whom no one is admitted to such lending 
out on pawn ; and in order that the profit may not be placed too high 
it is fixed at a certain sum " (Van Leeuwen's Cointn. Kotze's trans, 
vol. 2, p. 65). Formerly the supervi.sion of these banks of loan was 
entni.sted to the bishops, but in 1578 and 1584 this duty, by Resolu- 
tion of the States of Holland, was vested in the magistrate of each 
town. In some places these banks were established by or on behalf of 
the town and managed by paid persons appointed for the purpose. 
See Mnller v. Chadwick & Go. ([1906] T.S. at pp. 34 et seq.), where 
banks of loan are fully discussed. 

Banns, the publication of an intended marriage duiing public 
divine service on a Sunday, in an audible )nanner by some person 
duly authorised by law to do so in order that persons knowing of any 
lawful objection to such intended marriage may have an opportunity 
of declaring their objections (see Marriage Order in Council of 7th 



BANNS 63 BEACON 

September, 1838, sec. 2, which, subject to cei'tain amendments, is of 
force in Cape Colony, Natal and Rhodesia ; for the Transvaal see 
Law 3 of 1871, as amended by Proclamation 34 of 1901, Ordi- 
nance 40 of 1903, Ordinance 39 of 1904 and Act 13 of 1909; and for 
the Orange River Colony see Law 26 of 1899). 

Banns become void if the marriage is not celebrated within three 
months of their publication. 

Ban-werk (D.). Compulsory service or labour performed by those 
living on adjoining lands, for the purpose of maintaining the public 
roads or higliways and public waters. (See Van Leeuwen's Comm. 
Kotz^'s trans. 2, 21, 7 and 9.) 

Barrator, " a common barrator is one who habitually moves, 
excites or maintains suits or quarrels, either at law or otherwise " 
(Stephen's Digest of the Criminal Law, 6th ed. p. 112). 

Base metals. See Mineral. 

Base minerals. In the Mineral Law Amendment Act (16 of 
1907 (C.C.)), sec. 33, base minerals is defined as " asbestos, building 
stone, cinnabar, clay, coal, cobalt, copper, crocidolite, gypsum, iron, 
lead, manganese, magnesite, nickel, natural gas, oil, salt, slate, tin and 
such other minerals, not being gold, silver or platinum, as may from 
time to time be declared to be base m,inerals by Proclamation by the 
Govei-nbr." See Mineral. 

Bastard, a person born of parents not legally married. In South 
Africa the term bastard is usually applied to the offspring of a native 
woman by a European, or to certain coloured persons whose origin it 
is difficult to trace or describe. See Queen v. Kirsten (16 S.C. 510); 
Rex V. Stern (20 S.C. at p. 566). 

Bazaar, a sale of fancy work, other articles, stock or produce in 
aid of some charitable object; the things so sold being, as a rule, 
supplied by the promoters of the bazaar or their friends gratuitously. 
To hold a bazaar it is not neces.sary that a license be taken out or 
auction duty paid. Wliere, however, the goods are put up to auction 
and sold to the bidder, the person acting as auctioneer must have a 
license. But see O.R.C. Law Book, ch. 107, sec. 10, according to which 
no auction duty or license is required in such cases. 

Beacon, a natural or artificial object or erection, used as a land- 
mark or distinguishing point for the purpose of defining or describ- 
ing the division of land into portions ; such as beacons defining the 
boundaries of farms, lots, erven, claims or water-rights. Beacons are 
also used for defining the boundaries of territory, or sections or areas 
-of country. The size of beacons is frequently defined by statute. 



BEARER 64 BEING 

Bearer. Under the Bills of Exchange Acts bearer means the per- 
son in possession of a bill or note which is payable to bearer (sec. 2, 
English Bills of Exchange Act, 1882). See also Act 19 of 1893 (C.C), 
sec. 1 ; Law 8 of 1887 (N.), sec. 1 ; Proclamation 11 of 1902 (T.), sec. 1 ; 
Ordinance 28 of 1902 (O.R.C.), sec. L 

Bedriegelijke insolventie (D.), fraudulent insolvency. See In- 
solvent (D.) ; Fraudulent Insolvency. 

Bedriegerij en (D.), cheating; deceit; fraudulent practiee.s. 

Bedrog (D.), fraud. Defined by Grotiu.s (hitroduction, Maas- 
dorp's trans, p. 343) as " wicked deceit practised for the purpose 
of defrauding a person." 

Beer is defined in tlie Cape Excise Beer Duty Act (11 of 1884), 
sec. 2, as follows: "Beer includes ale, porter, spruce beer and black 
beer, and any other description of bee?-, and shall be taken to mean 
any liquor made from infusion or decoction of malt, grain or saccha- 
rine matter whicli contains spirit, and to which anj' bitter flavour 
has been communicated by the addition of hops, herbs or other in- 
gredients capable of being used as a bitter; and any fermented 
liquor which shall contain not less than" two [see Act 36 of 
1904 (C.C), sec. 2] " per centum of proof spirit, although the 
same shall not be included under the foregoing definition, or cannot 
be regarded as sweets or made wines, shall, for the purposes of 
the revenue, be deemed beer, and be subject to all regulations applic- 
able to beer." See also Act 19 of 1908 (C.C), sec. 11. 

In Natal, in Act 37 of 1901, beer is defined to mean and include 
" ale, porter, spruce beer, lager beer, black beer, and every other 
spirituous liquor coming within the ordinary appellation of beer, and 
containing more than two per cent, of spirit." 

In the Tiansvaal, in Act 9 of 1907, sec. 1, beer means and in- 
cludes "ale, porter, spruce beer, lager beer, black beer, and every 
other spirituous liquor coming within the ordinary appellation of 
beer and exceeding three per cent, of proof spirit, but shall not 
include Kafir beer." 

Bees. In the Cape Colony nests or hives of bees whether wild 
or domesticated are vested in the occupier of the land on which such 
nests or hives are located. See Act 9 of 1869 (C.C), and Act 24 
of 1886 (C.C), sec. 178. 

" Being thereunto required." This phrase appears in sec. 4 of 
Ordinance 6 of 1848 (C.C), which was taken over from the former 
Insolvency Ordinance of the Cape (Ordinance 64 of 1829, sec. 4). 
In detailing the circumstances constituting insolvency the following 
occurs in the section referred to : " or having against him the sentence 
of any competent court being thereunto required shall not satisfy the 
same, or shall not point out to the officer charged with the execution 
thereof sufficient disposable property to satisfy the same," &c. In Re 



BEING 65 BENEFIOIUM 

Webster (3 Menz. 220) the Cape Supreme Court lield that the words 
" being thereunto reqvAred shall not satisfy the same," as contained in 
sec. 4 of Ordinance 64 (C.C.)— now sec. 4 of Ordinance 6 of 1843 (C.C.) 
— constituted a distinct act of insolvency; and that the words being 
thereunto required had no connection whatever with the clause "or 
shall not point out," &c. The words being thereunto required also 
aippear in sub-sec. (h) of sec. 4 of Law 47 of 1887 (N.) ; and in sub- 
sec. (6) of sec. 8 of Law 13 of 1893 (T.). 
See Required. 

Bekentenis (D.), confession ; acknowledgment. 

Belasting^ (D.), tax ; taxation. 

Beleening (D.), a mortgage; a loan on pledge. 

Belofte, (D.). According to Van Leeuwen {Cotnim. Kotz^'s trans, 
vol. 2, p. 4) belofte is a gratuitous promise, as wliere a person of his 
own accord, without having been asked to do so and without any debt, 
offers to do or give something to another, as opposed to toezegging (a 
promise upon request). A promise seriously and deliberately made 
gave rise to an action, according to the maxim belofte maaJct sehuld. 

Benedicta est expositio quando res redimitur a destructione, 

an exposition (or a construction) is to be approved by which the matter 
is rescued from destruction. See Ut RES MAGIS VALEAT QUAM pereat. 

Beneficiary, one who is in possession of a benefice ; a person who 
is in receipt of some gift, benefit or advantage. In English law 
beneficiary seems to be replacing the term cestui que trust. See 
Trust. 

Benefiei\iin cedendarum actiomun, the benefit of cession of 
actions. Bjj- raising this benefit one of several sureties, who is pre- 
pared to pay the whole debt, and does not or cannot avail himself of 
the benefit of division, may demand that the actions which the creditor 
has against the co-sureties and principal debtor shall be ceded to him 
by the creditor. The benefit may be claimed both before and after 
payment. Cession of action need not be tendered in the summons 
against a surety, it being sufficient that the creditor shall make such 
cession on being thereunto required {Lippert & Go. v. Van liensburg, 
1877, Buch. p. 42; Horn v. Loedolff et Uxor, 1 Menz. 405) 

Beneflcium de duobus vel pluribus reis debendi, the benefit 
of being sued together ; the benefit of division. Where several prin- 
cipal debtors are bound jointly, but not severally, each is liable only 
for his pro raid share of the debt, and if sued for the whole amount 
may plead this benefit. The exception of the benefit, however, cannot 
be raised where it has been expressly renounced by the joint debtors. 
According to Grotius it also fails if one of the debtors is notoriously 



BENEPIOIUM 66 BENEFIT 

insolvent or is absent from tlie country (Grotius' Introduction, 3, 3, 11), 
but it has been held that in such cases the benefit does not cease (Alcock 
V. Bu Preez, 1875, Buch. p. 132). 

BeneflciTim divisionis, the benefit of division. It is available 
where several persons have intervened for payment of tlie same debt, 
without specifying their respective shares of liability. By means of 
this benefit, when pleaded, one of several sureties, who is called upon 
to pay the whole amount, claims that he shall not be condemned to 
pay more than his proportionate share of the debt. The other sureties 
must be solvent at the time of joinder of issue. Tlie benefit may be 
renounced either expressly or tacitly. 

Beneficium ordinis seu excussionis, the benefit of order or 
excussion. It is the right of defence given to a surety, when called 
upon for payment by the creditor, whereby he claims that the prin- 
cipal debtor shall first be excussed. The benefit may be renounced 
tacitly or specially. It must be pleaded before joinder of issue 
{Mason * Go. v. Booth, 20 S.C. 645; 13 C.T.R. 1154). Funds belong- 
ing to the principal debtor, but outside the jurisdiction of the court, 
cannot be excussed, nor can their non-excussion be pleaded in defence 
by sureties (Rogerson, N.O., v. Meyer and Berning, 2 Menz. 38 ; 
Wolfson V. Crowe, [1904] T.S. 682). The insolvency of the prin- 
cipal debtor is a sufficient excussion {Rogerson, N.O., v. Meyer and 
Berning, ibid.). 

Benefit of clergy, exemption of clerical persons from arrest or 
punishment by the civil authority. Every one " for whatever offences 
he might be pursued, could take free refuge in the churches, monasteries, 
churchyards, and other ecclesiastical precincts, being places consecrated 
to God ; nor could he be removed therefrom, nor suffer any molestation 
or restraint as regards his person " (Van Leeuwen's Comin. Kotz^'s 
trans, vol. 1, p. 75). Van Leeuwen then proceeds to say that, as this 
privilege was much abused, an agreement was made between Rolloff^ 
van Diephout, Bishop of Uti-echt, and Duke Philip of Burgundy, in 
his capacity of Count of Holland, on the 28th February, 1434, whereby 
the benefit of clergy was considerably restricted and modified and 
confined to ecclesiastical persons only. 

Benefit of inventory, a privilege in Roman law, granted to an 
heir for the purpose of protecting himself from liability for the debts 
of the person to whose estate he was heir. " Any one entitled to the 
succession, either under a testament or by law, was accountable as 
heir, as soon as he declared his acceptance, or dealt with the property 
as heir. By the praetorian law the heir was allowed a certain time to 
deliberate whether he would undertake the representation of the 
deceased, and this was fixed by Justinian as a period not exceeding 
nine months if granted by the magistrates, and a year if granted by 
the emperor. A still more important privilege was conferred upon 
heirs by Justinian, when he intt-oduced the principle of limited repre- 



BENEFIT 67 BETIOHTEN 

sentation by the benefit of inventory. An lieir who accepted with 
benefit of inventory protected himself from all liability for the debts 
of the ancestor beyond the value of the inheritance " (Mackenzie's 
Roman Law, 7th ed. p. 286). See also Justinian's Institutes, 2, 19, 6 ; 
Hunter's Roman Law, 4th ed. p. 754). 

In Fischer v. Liquidators of Union Bank (8 S.C. at p. 50), after 
referring to the passage in Justinian's Institutes (2, 19, 6) on this 
subject, De Villiebs, C.J., said: "The privilege here referred to is 
what the commentators have termed the benefit of inventory. Within 
thirty days after the heir became acquainted with the rights, an inven- 
tory of the property might be begun which was to finish within ninety 
days from the same. The inventory was to be made in the presence 
of a notary or else of three witnesses. If the heir chose to avail him- 
self of this privilege he entirely separated the estate of the testator 
from his own, he could deduct anything that might be owing to him 
from it, and had to paj? to it anything he might owe. He first paid 
the expenses of the funeral and of the inventory, and then the credi- 
tors in order in which they sent in their claims. If there was any 
surplus, he took it ; if any deficiency, he was not liable. As has been 
justly remarked by Hunter (Roman Law, p. 755), the heir who took 
the benefit of inventory ' was now a mere executor, with the privilege 
of being residuary legatee and, if the testator did not forbid it, of 
retaining the Falcidian fourth.' " 

The benefit of inventory was also introduced into Roman-Dutch 
law (ibid, at p. 51); see also Act of Deliberation. There is no 
" recorded case, at all events after the passing of tlie Ordinance [Ordi- 
nance 104 of 1833 (C.C.)], of any application to the court for the writ 
of benefit of inventory" (per De Villieks, C.J., ibid, at p. 52). 

Bequest, something left by will ; a legacy. 

Beraad or Berading (D.), deliberation. The regt van beraad in 
Roman-Dutch law was the right of deliberation which was allowed 
to an heir before he accepted the inheritance. See Grotius' Introduc- 
tion, 2, 21, 4 ; Benefit of Inventory. 

Beschlildigde (D.), the accused person in a criminal prosecution. 
See Van der Linden's Institutes, 3, 2, 1, 1. 

Beschuldiger (D.), the complainant in a criminal prosecution. 
See Van der Linden's Institutes, 3, 2, 1, 1. 

Besluit (D.), pi. besluiten, a resolution. See Resolutien ; Volks- 
BAAD Besluit. 

Betaaling (D.), payment or satisfaction of a debt. 

Betichten (D.), to accuse, impeach, inform against. See Tichte. 

b2 



BETROTHAL 68 * BEZIT 

Betrothal, a promise of marriage. " The Germans did not, liice 
the Romans, allow a solemn betrothal to be lightly set aside at the 
defire of one of the parties (Hein. Jus. Germ. bk. 1, tit. 8, sees. 179, 184), 
and the refractory party could be compelled to complete his contract. 
This German custom prevailed in Holland, and became one of the 
important ancient customs of the country. In 1656 it obtained statu- 
\iOry recognition in the Echtregelment of that year, and the courts 
were empowered to compel the marriage to take place whatever might 
be the' difference between the wealth or dignity of the parties. . . . 
In South Africa the action for specific performance of marriage has 
been abolished, and the only redress left to the injured party is to 
sue for damages for breach of promise to marry " (Wessels' History, 
p. 433). 

The action for an order compelling the refractory party to com- 
plete the marriage was abolished in the Cape Colonj^ by the Marriage 
Order in Council of the 7th September, 1838. 

Better. " Better [referring to goods] means better as regards 
the purpose for which they are intended, and the question of better or 
worse in many cases depends simply upon one or two or three issues 
of fact. If an action will not lie because a man says that his goods 
are better than his neighbour's, it seems to me impossible to say that it 
wi).l lie because he says that they are better in this or that or the other 
respect " (per Lord Herschell, L.C, in White -v. Mellin, [1895] A.C. 
at p. 165). 

Beunhaazen (D.), persons wlio carried on tlie busine.ss of brokers 
in Holland without being duly admitted or licensed as such. See Van 
der Linden's Institutes, 4, 1, 9. 

Bewaargeving (D.), equivalent to the Latin depositum ; a con- 
tract whereby a person entrusts .some movable property to the care 
of another, who undertakes the care thereof gratuitously, and binds 
himself to return such pi'operty when required to do so. See Grotius' 
Introduction, 3, 7, 2 ; Van der Linden's Institutes, 1, 15, 5; Kerste- 
man's Woordenboek, vol. 2, p. 78. 

Bewaarplaats (D.), a depositorjr. Under the Transvaal Gold Law 
(15 of 1898) certain areas of land were given out by Government to 
claim-holders as storage sites, or for the purpose of depositing tailings 
or other refuse from the batteries, or for erecting settling tanks or 
pans, dams or reservoirs or for storing ores ; the areas so given out 
were called bewaarplaatsen ; the holder of a bewaarplaats acquired 
only a right to use the surface of the land. The Gold Law 15 of 
1898 (T.) has been repealed by Act 35 of 1908 (T.). 

Bewijs (D.), evidence. As to bewijs in Roman-Dutch law, see 
Van Leeuwen's Comm. 5, 20 et seq. ; Van dei' Linden's Institutes, 
1, 17 1. 



Bezit 



(D.), possession ; equivalent to the Latin possessio. 



BEZITRECHT 69 BIGAMY 

Bezitrecht (D.). (1) Tlie vij^ht of possession, see Grotius' In- 
troduction 2, 2, 1 et seq. 

(2) A certificate of title granted by the Government of the Tians- 
vaal confirming and assuring the title, then already held by the 
registered owner, of a mijnpacht, claim, water-right or other des- 
cription of mining right, upon a proclaimed public diggings, under 
sec. 110 of Law 15 of 1898 (T.) or sec. 54 of the Precious and 
Base Metals Act (35 of 1908 (T.)), which lias repealed the former 
statute. Sec. 54 (1) of the latter Act provides that " any person 
in possession of ground held under mining title, or of a water-right, 
machinery site, or other right necessary or incidental to the develop- 
ment of a public digging, may at any time apply in writing to 
the Mining Commissioner for a certificate of bezitrecht in respect 
thereof." See sub-sees. 2-7 of the same section for form of application 
and conditions of grant. Sub-sec. 8 provides that " a certificate of 
bezitrecht shall include every right shown by the diagram trans- 
mitted with the application, whether such right was obtained under 
permission, contract or license under this Act or any prior law, 
and such certificate may be transferred, either wholly or in part, 
by the holder thereof; such certificate shall be conclusive evidence 
that the person to whom it was issued was, at the date of its issue, 
the lawful liolder of the rights included therein, and shall further 
be indisputable and unassailable unless the same has been obtained 
by fraud on the part of the possessor thereof." 

Bigamous marriage, a marriage entered into between two 
spouses, one of wliom is at the time married to another person. A 
bigamous marriage is void (see Hatch v. Hatch, 9 S.C. 1 ; Schorer's 
Notes, note 8). See Bigamy. 

Bigamy. The crime of bigainy is committed when a person, 
being already lawfully married, marries any other person during the 
lifetime of his or her wife or husband. " Although the words of Van 
der Linden [hist. 2, 7, 3), taken literally, would imply that under 
Roman-Dutch law bigamy was a crime whethei- or not the accused 
believed that the previous spouse was dead, the rule followed in South 
Africa is that laid down by the majority of the English judges in 
R. v. ToUon (23 Q.B.D. 168). The ruling in that case was that if 
the jury are satisfied of the prisoner's bona fides, and that he or she 
had reasonable grounds for believing in the death of his or her wife 
or husband, the prisoner ought to be acquitted. Probably also in 
South Afi-ica a court would follow the English rule that if a seven 
years' absence is pi-oved the onus is on the prosecution to show that 
the prisoner knew that his or her previous wife or husband was alive 
when he entered on the second marriage. In Roman-Dutch, as in 
English law, to constitute the crime of bigamy it is necessary that the 
first marriage should have been a valid one (Mclntyre v. Rex, [1904] 
T.S. 804) " (Moi-ice's English and Roman-Dutch Law, 2nd. ed. p. 365). 

" By our law a person, whether husband or wife, is not punishable 
as for bigamy if he or she reasonably and bond fide believed that his 



BIGAMY 70 BILL 

or her spouse was dead at the time of the subsequent marriage. 
Whether the belief is reasonable and entertained in good faith is a 
question for the jury, but as a general rule it may be broadly stated 
that such belief is neither unreasonable nor inald fide if the spouse 
has been absent for seven years or more and, notwithstanding due 
inquiries, has not been heard of or from during that period" (per 
De Villiees, C.J., in Ee Booysen, Foord, at p. 190). See Act 24 of 
1886 (C.C), sec. 168; Law 46 of 1887 (N.), sec. 13. 

Bill, under the Bills of Exchange Acts the term hill means a bill 
of exchange. See Bill of Exchange. 

Bill of exchange is an unconditional order in writing, addressed 
by one person to another, signed by the person giving it, requiring the 
person to whom it is addressed to pay on demand, or at a fixed or 
determinable future time, a sum certain in money to, or to the order 
of, a specified person, or to bearer (sec. 9 of the Englisli Bills of 
Excliange Act, 1882). This has been taken over in the Bills of 
Exchange Acts of the South African colonies; see Act 19 of 1893 
(C.C), sec. 2. ; Law 8 of 1887 (N.), sec. 2 ; Proclamation 11 of 1902 (T.), 
sec. 1; Proclamation 12 of 1902 (T.), sec. 20 (1); Ordinance 40 of 
1904 (T.), sec. 9; Ordinance 28 of 1902 (O.R.C.), sec. 2. 

In Natal there are certain restrictions on contracts of natives 
founded on hills of exchange, promissory notes and the like (see 
Law 44 of 1887, sec. 8); also in respect of similar obligations 
executed by Indians (Act 48 of 1904). 

Bill of lading. " In the case of goods sent from abroad bj' ship 
to a person resident in this country [England], or vice versa, the 
transfer of the property therein is commonlj/ authenticated, or (as the 
case may be) originally efi'ected, by an instrument (not under seal) 
termed a hill of lading, which is in its form a receipt from the captain 
to the shipper (usually termed the consignor), undertaking on special 
conditions to deliver the goods (on payment of freight) to some person 
whose name is therein expressed, or indorsed thereon by the con- 
signor. The delivery of this instrument (equally with the actual 
delivery of the goods) will suffice to pass and transfer to the party so 
named (usually termed the consignee), or to his indorsee for value, the 
property in such goods; and that so as even to put an end to the 
unpaid consignor's right to stop the goods in transitu " (Stephen's 
Comm. 14th ed. vol. 2, p. 50). 

" The general rule for construing the conditions of a hill of lading 
is that a stipulation that the shipowners shall not be accountable for 
any specified cause of damage does not exempt them from responsi- 
bility for a loss by such cause when it arises from negligence" (per 
Buchanan. J., in Clan Line of Steamers v. AlcocJc & Co., 13 S.C. at 
p. 112). 

The law in the Cape Colony on this subject is similar to that in 
force in England ; see Act 8 of 1879 (C.C), sec. 2. 



BIRTH 71 BODEMERY 

Birth. In the Cape Births and Deaths Registration Act (7 of 
1894 , sec. 2, the term birth is defined to mean and include " the 
birth of an}' viable child, whether such child shall be living or dead 
at the time of birth." For similar definitions see Ordinance 19 of 
1906 (T.), sec. 2 ; Proclamation 15 of 1902 (O.R.C.), sec. 4. 

Blackmailer. " The word blackmailer has been extended to in- 
clude any one who, by threats of exposure or disclosure or adverse 
criticism, endeavours to extort money from another" {per Innes, C.J., 
in Kernick v. Fitzpatrick, [1907] T.S. at p. 391). To charge a person 
with being a blachnailer is highly defamatory (ibid.). 

Blackmailing scoundrel. "If a man is a blackmailer, I do 
not know that to call him a blackTnailivg scoundrel makes any 
difference" {per Innes, C.J., in Kernick v. Fitzpatrick, [1907] T.S. 
at p. 391). 

Blended whisky. "Blended whisky means whisky containing 
not less tlian 25 per cent, of malt whisky" (the Wine, Brandy, 
Whisky and Spirits Act, 42 of 1906 (C.C), sec. 14). See Malt 
Whisky ; Whisky. 

Block of claims. In the Transvaal Precious Stones Ordinance 
(66 of 1903 (T.)), block of claims or block means " any number of con- 
tiguous claims"; so also in Ordinance 3 of 1904 (O.R.C), sec. 5; and 
Ordinance 4 of 1904 (O.R.C), sec. 5. 

Bloedristen (D.), drawing of blood ; a crime against the person. 
Decker in a note on Van Leeuwen's Gomm. (4, 35, 1, Kotz^'s trans.) 
says : " This word bloedristen will doubtless appear unintelligible to 
most readers. We must bear in mind that quetsen is even yet com- 
monlj' used as synonymous with wovden (wounding), which is, pro- 
perly speaking, the plural of the noun een wonde (a wound) or vulnus, 
derived from the Saxon verb verwonden {inferre vulnus vel plagam). 
So, on the other liand, the word Uoedreysen or bloedrysen denotes, 
according to Kiliaan, effundere sanguinem, infligere cruentuvi vul- 
nus, and therefore its meaning is the infliction of a bloody wound, 
hence called bloedreese ; wherefore our author mentions it before 
wounding and the like, as being a more seiious crime against the 
person of our neighbour." 

Bloedverwantschap (D.), relationship by blood. Formerly spelt 
bloedverwandschap. As to degrees of relationship, see Grotius' Intro- 
duction, 2, 27. 

Bode (D.), a messenger. See Gerechts-Bode. 

Bodemery or Bodemry (D.), bottomry. 



BODEMERY-BRIEF 72 BOEDEL 

Bodemery-brief (D.), a bottomry bond; a species of contract of 
assurance, or otherwise a loan upon the keel of a vessel. See Bottomry 
Bond. See also Van Leeuwen's Comm. Kotze's trans, vol. 2, p. 67. 

Body. In the Cape Births and Deaths Registration Act (7 of 
1894), sec. 2, the term body is defined to mean and include " any 
human dead body and the body of any still-born child." See also 
Ordinance 19 of 1906 (T.), sec. 2 ; Proclamation 15 of 1902 (O.R.C.), 
sec. 4. 

Boedel (D.), an estate of a person or partnership. 

Boedel erf (D.), a term used in the Boedel Erven Act (38 of 
1905 (C.C,)), where it is defined as meaning " an erf granted or 
allotted as aforesaid, or any portion thereof, which at the present 
date remains registered in the name of the grantee or his successors 
in title, or is vested in the allottee or his heirs or assigns; and of 
which the persons now claiming to be owners shall not have received 
transfer." 

The term boedel erf is not to be found in any Cape or other South 
African statute prior to Act 38 of 1905 (C.C), and, apparently, it was 
there only used as a convenient expression in connection with the 
circumstances specially dealt with in the Act. In 1836 the Governor 
at that time of the Cape Colony granted titles in freehold of defined 
portions of land to certain Hottentots in the Kat River settlement, 
in the division of Stockenstrom, Cape Colony, partly as a reward 
for their assistance in quelling q, then recent rebellion, and partly 
for the purpose of keeping them together in one location. Tliese 
Hottentots, about 100 in number, bequeathed or sold their holdings 
to their children, and in some cases those children succeeded their 
parents ab intestato. This system of succession continued until 1905, 
but no transfer was ever passed or registered in the Deeds Office to 
any one of the successors, whether by will, or by sale, or ab intestdto. 
In each instance, however, the descendants of each original grantee 
held the plot of ground and occupied and cultivated it. In course of 
time many disputes arose among the occupiers, and the allotments 
became too small for the numerous children and grandchildren of 
the original grantee,s. The difficulties that had arisen were brought 
to the notice of the Government, when it was found that the then 
occupants had succeeded to the land of their ancestors, but had never 
taken transfer of the land, so as to secure a valid title, nor had they 
complied with the provisions of the Transfer Duty Acts by paying 
transfer duty. The properties could not be transferred under the 
Derelict Lands Act of 1881 (C.C), because the land in question was 
not derelict. Those legally entitled thereto were in occupation, but 
without registered transfer. The correspondence between the magis- 
trate of the division of Stockenstrom and the Government began in 
about the year 1900, and the magistrate then, for convenience and 
brevity, described the land in question as boedel erven; and in all 
subsequent correspondence, and in the subsequent parliamentary in- 



BOEDEL 73 BONA 

quii-y, the same term, boedel erven, was applied to these plots. To 
rectify the errors and omissions of the past, to provide for the settle- 
ment of the disputes that had arisen, and to enable the occupiers to 
secure valid title to their plots, the Boedel Erven Act (38 of 1905) 
(C.C.) was passed. 

Boedelhouder (D.), estate-holder. A boedelhouder is the sur- 
vivor of persons married in community of property, whom the 
lirst-dying has by last will appointed executor, guardian and 
administrator of the joint estate during the minority of the childreu. 
In this manner community of property continues between the sur- 
vivor and the children until the majority of the children. " I have 
no doubt whatever that, where the will of the tirst-dying authorises 
such a continuation, the children are bound [by debts incurred by the 
survivor], more especially if, as in the present case, their tutors have 
consented to the continuation of the community after the death of 
the testator" (per De Villiers, C.J., in Oloete v. Cloete's Trustei'A, 
5 S.C. 68). 

Boedel-recht or Boedel-regt (D.), the right to an estate, acquired 
by inheritance. See Van Leeuweu's Comm. Kotze's trans, vol. 1. 
p. 311. 

Boedelscheiding (D.), a division of an e.state. 

Boete (D.), a penalty or fine. 

Bona adventitia, adventitious property ; property acquired by 
cliildren from persons other than their parents. Such property belongs 
to the children in full ownership. 

"Bona fide lunch or dinner," in defining these words in the 
Cape Liquor Act (25 of 1891), sec. 26, De Villiers, C.J., .said: 'The 
test I would apply is this : was the food ordered and supplied merely 
as an excuse for the supply of the liquor, or was it ordered with the 
bond fide object of being taken as a fairly substantial meal with the 
liquor as a mere acce.s.sory. It is onlj- by applying a test of that 
nature that effect can be given to the term bond fide, which we must 
assume the legislature to have inserted with a definite object. What- 
ever may be the etymology of the term ' lunch,' I take its ordinary 
modern meaning to be a light meal taken about midday, as distin- 
guished from a heavy meal taken about midday, or towards evening, 
either of which would be better known as a 'dinner'" {Queen v. 
Sutton, 10 S.C. at p. 275). 

Bona fide possessor, one who possesses in the belief that he is 
the legal owner or that no one has a better title. 

Bona profectitia, profectitious property ; property derived by 
■children from theii- patents directly or indirectly. Such property 
belongs in full ownersliip to the parents. A parent may, however, 



BONA 74 BOOK 

in an open and bond fide manner make a valid gift to his or her 
child (Elliott's Trustees v. Elliott, 3 Menz. 86; Thoiye's ExeciUors v. 
Tlior-pes Tutor, 4 S.C. 488; Russell v. Vnn Grossouw, 1 Kotz6, 112; 
Slabber's Trustee v. Neezer's Executor, 12 S.C. 163). 

Bona vacantia, unowned property, unappropriated by the Trea- 
sury. Such property is capable of acquisition by prescription. 

Bond. See Bml Bond; General Mortgage; Mortgage. For 
the purposes of the Cape Company Debenture Act (43 of 1895), the 
term bo^id is defined to mean " a mortgage bond or deed of hypothe- 
cation executed in conformity with the regulations and practice of the 
Deeds Registry of this [Cape] Colony." 

In Natal the renunciation of the benefit of legal exceptions (bene- 
ficia) is rendered unnecessary by Law 40 of 1884. 

Boni judicis est jurisdictionem ampliare, it is the duty of a 
good judge to extend his jurisdiction. Broom {Legal Maxims, cli. iii) 
points out tliat this maxim is erroneous, and that Lord Mansfield 
once suggested that tlie word justitiam, should be substituted for 
jurisdictionem. "The true maxim is 'to amplify its remedies, and, 
without usurping jurisdiction, to apply its rules, to tlie advancement of 
substantial justice ' (joer Loi'd Abinger, Russell v. Smyth, 9 M. & W. 
818). The principle upon which our courts act is, to enforce the per- 
formance of contracts not injurious to society, and to administer 
justice to a party whf) can make liis claim to redress appear, by 
enlarging the legal i-emed}-, if necessarj', in order to do justice" 
(Broom's Legal Maxims, 7th ed. p. 64). See Stutterheim Munici- 
jyality v. De Beer (18 S.C. 288). 

Bonorum possessio, possession of the goods. In the Roman law 
the equitable rules of the praetorian edict admitted to the succes- 
sion to a deceased's estate many persons who would have been ex- 
cluded by the strict and rigid rules of the jihs civile. The praetor 
could not give the qualities of lieirs to .such persons, but he gave 
them bononon possessio or tlie beneficial possession of tlie estate, 
and tliis possession in course of time ripened into ownership by 
usucujjio. Bonorum possessio was of three kinds, viz. : (1) secun- 
dum tabulas, (2) contra tabulas, and (3) ab intestaio. The first 
admitted the heirs named in a will notwithstanding the omission 
of the formalities prescribed by the early law, provided that the 
will was produced duly sealed with seven unbroken seals ; the second 
recogni.sed the claims of children who had been passed over in their 
father's testament; and the third enlarged the order of succession 
ab iiitestato fixed by the XII Tables. 

Book. Under the Cape Copyright Act (2 of 1873), sec. 9, a 
book is construed to mean and include every volume, part or divi- 
sion of a volume, paniphlet, sheet of letter-press, sheet of music, 
and map, chart or plan separately published ; for same definition 



BOOK 75 BOTTOMRY 

see Natal Copyright Act (17 of 1897). By Act 4 of' 1888 (CO.), 
sec. 1, it is further provided that the term book "shall not include 
any publication which consists merety of a price list, sale catalogue, 
annual report, trade circular or trade advertisement, or any volume, 
pamphlet, sheet of letter-press, sheet of music, map, chart or plan 
intended for private circulation and not for sale, and of which not 
more than 50 copies shall be printed." For the purposes of the 
Cape Copyright Protection and Books Registration Act (18 of 1895), 
the term book is defined to mean and include " every volume, part 
or division of a volume, sheet of letter-press, sheet of music, and 
map, chart or plan separately published." 

Booth, see Polling Booth. 

Borg (D.), surety ; security; pledge; bail. See Surety. 

Borgtogt (D.), suretyship ; a guarantee ; a contract whereby a 
person binds himself for a debtor, for the benetit of the creditor, to 
pay him, the creditor, the whole or a part of that which the debtor 
owes liim, and in this waj^ becoming a party to the debtor's obligation 
(Van der Linden's Institutes, 1, 14, 10). 

Borough, a town having a municipal organisation. See Law 19 
of 1872 (N.), sees. 3 et seq. 

Borrowing powers. A term applied to the power of a company, 
corporation or society to raise or borrow money. A trading company 
has u.sually an implied power to borrow money for the purposes of its 
business {General Auction, &c., Co. v. Smith, [1891] 3 Cli. 432) ; but 
such a power is not implied in the case of a non-trading company or a 
school board (Regina v. Sir Charles Reed, 5 Q.B.D. 483 ; 49 L.J. Q.B. 
600; 42 L.T. 835). Borroiving powers are generally provided for in 
the articles of association of a companj^ 

As to the borrowing powers of a building society, see Langford v. 
Moore and Others (17 S.C. at p. 19). 

A deposit of money made with a building society is a borrowing 
(ibid, at p. 20). 

Bottomry "is a contract wliereby, in return for a loan of money 
to be expended on a ship or for the use and benefit of the owner in 
and about the ship, the master pledges the vessel as security. It is 
so called from the Dutch word bodem, meaning the keel of the vessel. 
Not merely the master, but the owners or part-owners, may effect a 
bottoinry bond on a vessel. The bond remains in force on the vessel 
until the same is lost or destroyed " (Nathan's Common Law, sec. 950). 

' In order to entitle the creditor to recover in full it is not sufficient 
that the keel of the vessel has been preserved ; but it is necessary 
that the whole amount should be recoverable out of the vessel and its 
tackle and rigging; otherwise the master is discharged by delivering 
up the vessel to the creditor, who will thus have as mucli as can be 
realised from the vessel, according to the terms usually inserted in the 



BOTTOMRY 76 BRANDY 

contract — zo verve deze hodem zo veel te land brengt — so far as tliis 
bottom shall bring so much to shore" (Van der Keessel, Thes. 561). A 
higher rate of interest was allowed on money lent on bottomiy than 
on money lent in the oi-dinary course of business. 

As to the duties of a master before pledging goods on bottomry, 
see Thomson, Watson & Go. v. Wieting and Others (2 S.C. 197). 

Bottomry bonds may be the subject of insurance, see Arnould's 
Marine Insurance, 7th ed. sec. 242. 

Brand. In the Cape Brands Registration Act (12 of 1890) the 
term brand is defined to mean " the impression of any letter, sign or 
character branded upon any horse, cattle or ostrich ; " and by Act 4 of 
1897 (C.C), sec. 3, it is extended to "include the impression of any 
letter, sign or character branded or tattooed on the body of any sheep 
or goat, or any pitch, paint or tar brand impi'essed on the wool of 
any sheep or goat." See sec. 3 of the Fertilisers, Farm Foods, Seeds 
and Pest Remedies Act (20 of 1907 (C.C.)). 

For brand in Transvaal, see Ordinance 15 of 1904, sec. 1. 

In Orange River Colony, see Ordinance 15 of 1903, sec. 1. 

Brand directory. In the Cape Brands Registration Act (12 of 
1890) the expression brand directwy is defined to mean " the list 
of brands of horses, cattle or ostriches, compiled by the Registrar [of 
Brands] and published by the Government printers, whether in the 
shape of a book or of quarterly lists in the Gazette." 

For Transvaal definition, see Ordinance 15 of 1904, sec. 1 ; for that 
in the Orange River Colony, see Ordinance 15 of 1903, sec. 1. 

Branding instrument. In the Transvaal Great Stock Brands 
Ordinance (15 of 1904), sec. 1, branding instrument means "any 
other instrument [see Branding Iron] or tool by which any mark or 
symbol can be impressed, imprinted or cut on any portion of any horse 
or cattle." 

Branding iron. In the Transvaal Great Stock Brands Ordi- 
nance (15 of 1904), sec. 1, branding iron means " the instrument 
prescribed for imprinting a brand or mark on great stock by this 
Ordinance or the regulations made under it." 

Brandstigter (D.), (modern spelling, bra ndntichter), an incen- 
diary ; a peison who maliciously and for the purpose of injuring others, 
sets fire to some building or other immovable property. Under old 
Dutch law brandstigters were on conviction burned alive. 

Brandy. " Brandy means the distillate resulting from the distilla- 
tion solely of (a) wine or must; (6) must and grape husks; (c) grape 
husks and water" (the Wine, Brandy, Whisky and Spirits Act (42 of 
1906 (C.C.)), sec. 14). See Dop Brandy; Pure Grape Brandy ; Pure 
Wine Brandy. 



BREACH 77 BREVIARIUM 

Breach of promise of marriage. Tlie injured party is entitled 
to an action for damages arising from the breacli. " I cannot iind 
that our law makes any distinction between the case of a man suing 
for damages for breach of promise of marriage and a woman suing 
for bi-each of promise of marriage. In either case damages are recover- 
able, if there has been a deliberate breach of the promise to marry and 
consequent damages sustained by the party " {per De Villiees, C.J., 
in Mocke v. Fom-ie, 3 C.T.R. at p. 315). 

Breach of trust. See Trust. 

Bread. In the Cape Ordinance amending the law relating to the 
baking trade (10 of 1846), wherein the sale of bread is regulated, it is 
provided in sec. 8 that " the term bread shall not extend to sweetened 
or spiced bread or cakes or any species of confectionery." See also the 
Cape Sale of Bread Act (29 of 1895). 

Break. In the Transvaal Crimes Ordinance (26 of 1904), sec. 3, 
break means " the obtaining of entrance into or exit from any build- 
ing by means of force, threat, fraud, stealth, or trick, or bj^ the 
unfastening or opening of any door or wiadow, or by the removal 
of any thing used to cover any opening into or within or from 
such building." 

Brevi manu, by short hand ; . summarily. This expression is 
sometimes used in Englisli and Scots law of an act done by a person 
of his own authority, without legal warrant, a practice somewhat 
equivalent to the parate executie of the Roman-Dutch law. In 
the earlier law both of England and Scotland it appears to have 
been permissible for a creditor to take at short hand property be- 
longing to his debtor and to hold it as a pledge until the debtor 
paid the debt or found security for paj'ment. Such a practice has 
for long been discouraged, and having been dealt with by statute^ 
now survives in only one or two forms, e.g. in England in the law 
of distress. See PaKATE executie. In Roman law the expres- 
sion hrevi manu is used with reference to a kind of constructive 
delivery {traditio). In order that the doviinium in the subject to 
be transferred should pass from one person to another delivery 
was essential. If, however, a thing before being sold to a person 
was held by him upon .some other ground, such as hire, pledge, loan, 
or deposit, no fresh deliverjr was necessary when the sale took 
place, the property being considered to pass by the mere intention 
of the holder, now the purchaser, to retain the thing as his own 
(Voet's Comm. 41, 1, 34). 

Brevi manu traditio. See Brevi manu. 

Breviarium Alaricum, the collection of laws made by Anianus, 
formerly called Breviariwm Aniani, but after the tenth century 
usually called the Breviarium Alaricum {W^saois History, p. 98). 
" This Breviarium contained not only a summary of the Codex 



BREVIARIUM 78 BRIEVEN 

Theodosianus, but also extracts from the Institutes of Gaius and 
the Sentences of Paul " (ibid. p. 99). 

Bre"wer. Under the Cape Excise Beer Duty Act (11 of 1884), 
sec. 2, a bretver is defined to mean a brewer of beer for sale ; and 
in sec. 10 of the same Act it is provided that " every person who 
brews beer for sale, whether by wholesale or retail, or for any 
purpose of trade, shall be deemed to be a brewer within the mean- 
ing of this Act, whether the said person be licensed to deal in or 
retail beer or not." See Act 37 of 1901 (N.), sec. 1 ; Act 9 of 1907 
(T.), sec. 1. 

Bribery, the taking or giving, or procuring the taking or giving, 
of any money or valuable consideration ; or office, place or employ- 
ment ; or gift,, loan or promise of such, or of an advance of money; 
for the performance or non-performance of any public duty, or for 
false judgment or evidence, or for the performance of some unjust or 
illegal act. To bribe or attempt to bribe an official is a crime by 
Roman-Dutch law (The State v. Aaron, H. 146 ; 10 C.L.J. 238). 

For definitions of bribery at elections of members of Parliament in 
Cape Colony, see sees. 1 and 2 of Act 21 of 1859 ; sec. 2 of Act 9 of 
1883 ; and Act 26 of 1902. 

As to bribery and cori'uption of witnesses, juroi-s, assessors or inter- 
preters in Native Territories of Cape Colony, see Act 24 of 1886, 
sec. 113. 

For statute law on bribery in Natal, see Law 13 of 1893, sec. 20. 

In Transvaal, see Law 10 of 1894; Ordinance 38 of 1903, sec. 72; 
Act 20 of 1909, sec. 30. 

Brief, originally an abridgment of the pleadings in a cause, together 
with concise instructions for counsel on the facts and law relating 
thereto. Generally, a copy of the pleadings, evidence of witnesses, and 
documents in a cause, together with special instructions by the solici- 
tor to the counsel, for the use of the counsel engaged in the action, 
so that he may be fully instructed therein ; or a copy of the petition, 
affidavits and instructions for the use of counsel in an application to 
the court. 

Brieven van evocatie (D.), letters ordering the removal of a case 
from a lower to a higher court, granted in Holland upon the appli- 
cation of a litigant who could prove that either through impartiality 
or some other cause justice was being denied to him, or unreasonably 
delayed, in an action which he had pending in a lower court (Van der 
Linden's Institutes, 3, 3, 9; Van Leeuwen's Comm., 5, 11, 4). 

Brieven van inductie (D.), a legal remedy granted in Roman- 
Dutch law, whereby the debtor obtained time wherein to pay his debt 
on giving proper security. See Brieven van respeyt. " The appli- 
cation for letters of induction is usually made to the court, as the 
common superior tribunal ; and all the creditors are cited by the 



BRIEVEN 79 BRITISH 

court, to answer before the judge of the debtor's domicile, concerning 
the grounds on whicli the delay is applied for, or sufler themselves to 
be induced to allow this indulgence. If the majority of the creditors 
consent to it, the judge by virtue of his office decrees the confirmation 
of the mandate" (Van der Keessel, Thes. 892). 

Brieven van respeyt (D.), (modern spelling respijt), a legal 
remedy in Roman-Dutch law whereby the debtor was allowed time for 
the payment of his debt, also called brieven van inductie. In order 
to obtain letters of respite or induction it was required that the debtor 
should give good personal or other security to the satisfaction of his 
creditors for the payment of all his debts. The cautio juratoria, or 
security of his oath, was not sufficient (Van der Keessel, Thes. 890). 
See Wessels' History, p. 663. 

Brieven van surete de corps (D.), a legal remedy granted in 
Roman-Dutch law, whereby the debtor obtained the benefit of safe 
conduct, or freedom of his person for a period of three, five, six 
or more months in order not to be troubled as to his person by his 
creditors within that time (Van Leeuwen's GoTmn. Kotze's trans, 
vol. 2, p. 339). Brieven van surete de corps " may be obtained from 
the States by debtors who are in concealment or residing in a foreign 
country, under apprehension of arrest, and who believe that they are 
able to effect an equitable arrangement witli their creditors. It is not, 
however, granted except with the consent of the majority of the credi- 
tors ; nor as against a sentence of the Supreme Court, or any other 
sentence which has passed into a res judicata" (Van der Keessel, 
Thes. 894). 

British consular court " means any British court having juris- 
diction under an Order in Council made in pursuance of the Foreign 
Jurisdiction Acts (1843 to 1878) or any of them" (Act 8 of 1888 
<C.C.), sec. 1). 

British medical register. These words appearing in sec. 3 of 
Proclamation 1 of 1902 (T.) were held not to include the medical 
register of any British possession, but that the word " British " was 
u.sed with reference to the United Kingdom of Great Britain and 
Ireland, and in contrast with "colonial and foreign" {Colonial Secre- 
tary V. Grice, [1903] T.S. 361). 

British possession is defined in the Interpretation Act, 1889 
(Eng.), sec. 18, sub-sec. 2, as meaning "any part of her Majesty's 
dominions exclusive of the United Kingdom, and where parts of sucli 
dominions are under both a central and a local legislature, all parts 
undei' the central legislature .shall, for the purpo.ses of this definition, 
be deemed to be one British possession." See also Act 26 of 1906 (N.), 
sec. 30; Ordinance 1 of 1906 (T.), sec. 30 of schedule; Ordinance 30 of 
1906 (T.), sec. 1 ; Act 7 of 1907 (T.), sec. 1 ; Willis v. Rex (27 N.L.R. 
at p. 374). 



BRITISH 80 BRUIKLEENING 

British subject. " Many modern jurists . . . maintain that the 
mere fact of annexation does not create the relation of sovereign and 
subject, but that tliere must be either an express or tacit submission 
for the purpose, and that remaining within the sphere of the new 
dominion and fulfilling the duties of subjects would amount to tacit 
submission" (pe?- Dk Villiers, C.J., in Queen v. Jizwa, 11 S.C. at 
p. 395). 

Broker, an agent or middleman who, in consideration of a certain 
commission, is employed to negotiate and make purciiases and sales on 
behalf of principals. He is obliged to buy or sell in the name of his 
principal. There are various kinds of brokers, such as share-brokers, 
stock-brokers, ship-brokers, and insurance-brokers. A brolcer of the 
present day is somewhat different to the broker of the seventeenth 
century. Decker in a note to Van Leeu wen's Covim. (Kotze's trans, 
vol. 2, p. 222) says: "A brolcer is a sworn and qualified person, who 
inquires in all legitimate transactions concerning the will and inten- 
tion of the contracting parties, and (if possible) brings them to an 
agreement and closes the bargain." 

"Broker" means every person (other than an importer or an agent 
for a foreign firm) who shall in this [Cape] Colony carry on the trade 
or business of making bargains and contracts between other persons 
in matters of trade, commerce and navigation for a remuneration, 
commonly called a brokerage (Act 38 of 1877 (C.C.), sec. 3); see also 
Queen v. Plockers (.5 H.C.G. at p. 371). As to the penalty for a broker 
in the Cape Colony using an unstamped note, see Act 38 of 1887, 
sec. 7. 

As to Natal, see the Stock or Share Brokers' Admission Law of 
1888 (Law 31 of 1888). 

As to Transvaal, .see Ordinance 23 of 1905, sec. 2, and Act 34 of 1909. 

As to the Orange River Colonj^ .see Ordinance 10 of 1903, sec. 2. 

Brokerage, the remuneration or commission to wiiich a broker 
becomes entitled for services rendered. 

As to brokerage on sale of a lease, see Steer & Co. v. Rowland (14 
S.C. 358). 

Broker's note, a written or partly printed and partly written 
memorandum issued by a broker and signed by him, setting out the 
terms of a contract which he, as broker, has entered into on behalf of 
his principal or principals. In Proclamation 12 of 1902 (T.), sec. 26 (1), 
and for the purposes of that Proclamation, the expression broker's note 
means " a note sent by a broker or agent to his principal advising him 
of the sale or purchase of any marketable security." A brokers note 
when completed by the broker is handed to the principal, and affords 
him evidence of tlie bargain or contract. 

Bniikleening (D.), the loan of the use of a thing. " Whenever the 
loan concerns such things as do not perish by use it is called bruik- 
leenmg, being a contract whereby one person gratuitously hands over 



BRUIKLEENING 81 BUILDING 

to another a certain thing to make use of it in a certain manner, and 
wliereby he who receives it binds himself to return that thing after it 
has served the fixed purpose " (Van der Linden's Instituta, 1, 15, 4). 
Botli movable and immovable property can be the subject of bruik- 
leening (ibid.). See also Van Leeiiwen's Gomm. 4, 10, 1 ; Kerste- 
man's Woordenboek, vol. 2, p. 108; Grotius' Introductiov , 8, 9, 1. 

Builder's Hen, a tacit hypothec given to builders of new houses 
to secure the due payment to them of the balance of the contract 
price. Retention of possession of the building is necessary to secure 
the lien. In Brown's Assignee v. Pote (4 E.D.C. 50) it was held that 
a builder who retains possession of a house built by him has a lien on 
the house for the payment of his labour and of tiie value of the 
materials supplied ; and that such lien is proferent to the claim of 
a mortgagee, wlio advanced his money upon the property after its 
value had been enhanced by the building. See Act 5 of 1861 (C.C.), 
sec. 8 (5) ; Proclamation 28 of 1902 (T.), sec. 130 (10). See also Maas- 
dorp's Institutes, vol. 2, p. 251 ; Nathan's GoTrvmon Law, sec. 1020 ; 
Voet's Gomm. 20, 2, 28. 

Building. " A building may not require masonry, but the word 
implies some degree of trouble, skill and elaboration in fixing or 
removing tlie structure " {per De ViLLlERS, C.J., in Ex parte Greef, 
24 S.C. at p. 524). Bee Canvas Houses ; Tent. 

Building society, a societj^ mainly formed for the purpose of 
aiding those who de.sire to build. The shares are generally of a 
nominal aniount, say £50 or £100, and are payable by means of small 
subscriptions weekly, fortnightly or monthly, according to the rules; 
fines of varying amounts are imposed if the subscriptions are not 
punctually paid. In addition to these subscriptions, which are placed 
to the credit of the member's liability on his shares, he usually receives 
credit for his proportion of .such annual profits as may be divisible 
among the members. The funds accumulated from subscriptions are 
advanced on the security of mortgages of landed property ; usually a 
member becomes entitled to a loan of £100' for each share of £100 
value, so that if a member required a loan of £1000 he must hold ten 
shares of £100 each or twenty shares of £50 each; the shares are 
held by the society as additional security, and when the shares are in 
process of time fully paid the amount of the loan is also paid by a 
set-oiT against the shares. The rules of the society usually give limited 
borrowing powers to the directors. These societies frequently accept 
deposits of money from members at interest in the same manner as a 
savings bank. Generally speaking, building societies are not regis- 
tered with limited liability. The question of the liability of the 
members of a building society for payment of the debts of the society 
arose in the case of In re Gape of Good Hope Bank PerTnanent Build- 
ing Society (15 S.C. 323 ; 8 C.T.R. 360), where, after referring to the 
law regarding similar societies in England and Scotland, which are 
regulated by statute, De Villiebs, C.J., said : " The decisions proceed 



BUILDING 82 BURGESS 

upon the giound that the contract itselt' is not of such a nature as to 
establisli a partnership. It is a contract sui generis, which does not 
fall within any of the well-detined classes of contracts known to our 
law. Persons dealing with such societies know that they are English 
in their institution and constitution, and that thiC powers of the direc- 
tors and the liabilities of the members are necessarily of a very limited 
nature. The directors are the agents of the members to carry out the 
rules of the society, and those rules furnish the only criterion by which 
the liability of the members inter se and towards outsiders can be ascer- 
tained. The status, then, of such a society in our law is that of an asso- 
ciation of persons subscribing to a common fund for the assistance of 
one class of members by another class to the mutual advantage of both, 
and carrying on their business through the agency of a board of direc- 
tors with certain limited powers, which powers persons dealing with 
the society must make themselves acquainted with. For the transac- 
tion of the necessary business of such an association .some expenses must 
be incurred by the directors, and for the payment of such expenses all 
the members are personally liable. It is not, however, a necessary part 
of the business to borrow money. The rules provide for the con- 
tribution by the members themselves of funds t<j be lent to the advanced 
members. In fact, borrowing powers are conferred upon tlie directors, 
but those powers are limited, and cainiot be exceeded so as to impose 
a personal liability upon the nsiembers to pay the excess." See defini- 
tion of building society in Transvaal Companies Act (81 of 1909), 
sec. 202. 

See also Natal I/aw for Regulating Building Societies (12 of 1858). 

As to the nature of deposits made with a building society, see 
Langford v. Moore and Others (17 S.C. at p. 18). 

As to deposits with a building society being a borrowing (ibid, at 
p. 20). 

Burgerlijk recht (D.), municipal law, corresponding to the Jus 
Civile of the Romans. " Municipal law is that which derives its 
origin from the will of tlie supreme power of a state. It is either 
peculiar to one nation — for instance, the power of husbands over their 
wives, which is almost peculiar to Holland ; or held in common with 
all or nearly all nations, but in such a manner that it may neverthe- 
less be altered without the consent of other nations, as not affecting 
the mutual intercouise of nations — such are many laws with respect to 
trade and succession. Municipal law is either written or unwritten" 
(Grotius' Introdxiction, Maasdorp's trans. 1, 2, 13, 14, 15). 

Burgermeester (D.) (modern spelling Biirgemeester), the burgo- 
master or mayor of a town or place ; he was entrusted with the 
government and direction of the town or place to which he was 
appointed. 

Burgess, a person resident in a borough. See Law 19 of 1872 (N.), 
sees. 15 to 19. 



BURG-GRAVEN 83 BUSINESS 

Burg-graven or Burgh-graven (D.), or Burg-graves, were judj/es 
over certain villages called vryheden (manors), or custodians of certain 
canals and castles in Holland (Van Leeuwen's Com'm. Kotze's trans, 
vol. 1, p. 63). See Graaf. 

Burial. In the Cape Births and Deaths Registration Act (7 of 
1894), sec 2, the term bui-ial is defined to mean and include " not only 
any burial in earth, interment or other form of sepulture, but also the 
cremation of any body." 

In the Transvaal (Ordinance 19 of 1906, sec. 2) burial means 
" burial in earth, interment or any other form of sepulture, or the 
cremation or any other mode of disposal of a body." 

In the Orange River Colony, in Proclamation 15 of 1902, see. 4, 
the definition of burial is similar to that in the Cape Act 7 of 1894. 

Burial ground. In the Cape Public Health Amendment Act 
(23 of 1897), sec. 2, the term burial ground is defined to mean " any 
burial groiond, whether public or private, or any place whatsoever 
wherein is buried or intended to be buried one or more human bodies." 
See Burial Place. 

Burial place. In the Cape Births and Deaths Registration 
Act (7 of 1894), sec. 2, the expression burial place is defined to 
mean and include "any burial ground whether public or piivate, or 
any place whatsoever wherein is buried or intended to be buried 
one or more bodies." See also Ordinance 19 of 1906 (T.), sec. 2, 
where the definition is somewhat more extended and refers speci- 
fically ti> cremation. In the Orange River Colony the definition 
in Proclamation 1.5 of 1902, sec. 4, is similar to that in the Cape 
Act 7 of 1894. 

Bushel, the old measure of a bushel was abolished in the Orange 
River Colony by Law 2.5 of 1898 (O.R.C.), sec. 15. 

Bushel of malt. It is provided in the Cape Excise Beer Duty 
Act (11 of 1884) that "forty-two pounds weight of malt or corn 
of any description, or twenty-eight pounds weight of sugar, shall 
be deemed the equivalent of a bushel of malt; and the expression 
bushel of tnalt shall include either of its equivalents or any quanti- 
ties of malt, corn and sugar, or any two of those materials, as by 
relation to such equivalents shall be equal to a bushel of vuUt." 

Business. "Business itself is a word of large and indefinite 
import. I have before me the last edition of Johnson's Dictionary, 
edited by Dr. Latham, and there the first meaning given of it is, 
' employment, transaction of affairs ' ; the second, ' an affair ' ; the third, 
'subject of business, affair, or object which engages the care.' Then 
there are some other meanings, and the sixth is, ' something to be 
transacted.' The seventh is, ' something required to be done.' Then, 
taking the last edition of the Imperial Dictionary, which is a very 



BUSINESS 84 BUTCHER 

good dictionaiy, we find it a little more definite, but with a remark 
which is worth reading: '5'i/,S'i7?ess, employment ; that which occupies 
the time and attention and labour of men for the purpose of profit or 
improvement.' That is to say, anything which occupies the time and 
attention and labour of a man for the purpose of profit is husineas. It 
is a word of extensive use and indefinite signification. Then, ' business 
is a particular occupation, as agriculture, trade, mechanics, art, or pro- 
fession, and when used in connection with particular employments it 
admits of the plural, that is, bu.sinesses.' Therefore the legislature 
could not well have used a larger word " {per Jessel, M.R., in Smith 
V. Anderson, 15 Ch. D. at p. 258. It must be noted that on appeal 
the judgment of the Ma.ster of the Rolls, from which this extract is 
taken, was discharged, ibid. pp. 273 et seq.). 

Business day. For purposes of the Bills of Exchange Laws 
business days are any days other than those defined as non-business 
days. 

In Cape Colony (sec. 1, Act 19 of 1893) non-business days include 
[a) Sunday, New Year's Day, Good Friday, Easter Monday, Whit 
Monday, Ascension Day, Queen's Birthday [now called Victoria Day, 
see Act 15 of 1902], Christmas Day; (6) any day appointed by pro- 
clamation bj' the Governor as a solemn fast day or day of thanks- 
giving, or as a public holiday under the " Public Holiday Act, 1889," 
or any other law ; see Blanks v. Pliilip ([1906] E.D.C. at p. 312). ' 

In Natal (sec. 91, Law 8 of 1887, as amended by Act 18 of 1901) 
non-business days are : (a) Sunday, New Year's Day, Good Friday, 
Easter Monday, Whit Monday, the 24th May (known as Victoria Day), 
Michaelmas Day, (29th September), King's Birthday (the 9th Novem- 
ber), Christmas Daj' ; (b) any da}' appointed bj- proclamation of the 
Governoi- as a public holiday. 

In Rhodesia (sec. 1, Government Regulations 23, 1895) non-busi- 
ness days include same as (a) of the Cape Act (as above), and {b) any 
day by law appointed as a solemn fast or day of thanksgiving or as a 
public holiday. 

In the Transvaal (sec. 1, Proclamation 11 of 1902, as amended by 
Ordinance 37 of 1903) non-business days include (a) Sunday, New 
Year's Day, Good Friday, Easter Monday, Whit Monday, Victoria 
Day, first Monday in August, King's Birthday, Dingaan's Day, and 
Christmas Day ; (b) any day appointed bj' the Governor under the 
authority of any law as a solemn fast or day of thanksgiving or as a 
public holiday. 

For the Orange River Colony, see Ordinance 28 of 1902, sec. 1 ; 
Ordinance 31 of 1902 ; and Ordinance 37 of 1903. 

Butcher. " If we look at the original derivation of the word 
butcher, it meant a man who killed what he sold. That is the case 
whether we take the derivation of the English word, which comes 
from the French, or whether we look at the derivation of the Dutch 
word slachter. The case of Cleaver v. Bacon (4 T.R. 27) was quoted 



BUTCHER 85 BUUREN 

to us, ill which a dictum of Mr. Justice Kekewich supports the view 
that a man who sells wliat he does not kill is not a butcher. But 
there ai-e earlier Englisli cases to the contrary ; and after considering 
those cases and also the Cape cases, I come to the conclusion that 
what may be called the original meaning of the word butcher is a 
meaning not consonant with tlie usage of modern times. At the 
present time in large cities the butcher who sells meat does not 
always kill it himself. Sometimes he has not the right to do so. 
The killing is done for him in certain places set apart, and the meat 
may be bought by the butcher after the killing has taken place. I 
do not think that modern circumstances allow one to restrict the 
word butcher to its original meaning and to its strict derivative 
signiticance. Take the case of a company which imports or buys 
livestock, and has, somewhere in this colony or in the neighbouring 
colonies, a dep6t where that stock is slaughtered and is preserved by 
means of ice, and purchased by other people for sale. I think both 
those who buy such meat for the purpose of resale, and the company 
which sells it after having slaughtered it, come under the term 
butchers. Neither of them could escape the obligation of taking out 
a butchers license " (per Innes, C.J., in Imperial Cold Storage and 
Supply Co., Ltd., v. Civil Gommissioiier, [1904] T.S. at p. 694). In 
the Cape Colony, sec. 20 of Act 3 of 1864, after providing that per- 
sons exercising the trade or calling of a butcher must take out a 
butchers license, goes on to say " that every person keeping a shop 
and exposing flesh meat for sale shall, whether he shall or shall not 
have himself slaughtered the same, be deemed to be a butcher for 
the purpose of requiring to have a butcher s license." As to whether 
a butcher should take out a general dealer's license, see Papert v. Rex 
{[1906] T.S. at p. 553). 

See Act 15 of 1907 (CC). sec. 1. 

As to the Orange River Colony, see Ordinance 10 of 1903, sec. 2. 

Butter. In the Cape Sale of Food and Drugs and Seeds Act 
(5 of 1890) the term butter is defined to mean " the substances usually 
known as butter, made exclusively from milk or cream, or both, with 
or without salt or other preservative, and with or without the addition 
of colouring matter." A similar definition is found in the Natal Food 
and Drugs Act (45 of 1901). For further definition, see Ordinance 32 
of 1906 (O.R.C), sec. 1. 

Butterine. In the Cape Sale of Food and Drugs and Seeds Act 
(5 of 1890) butterine, margarine or other similar articles are defined to 
mean "all substances, whether compounds or otherwise, prepared in 
imitation of butter, and whether mixed with butter or not." 

Buuren (D.), the inhabitants living in the country (ten platten 
lande), who had the right of sitting in the court held by the Schout 
or Azing ; neighbours. 



BUURWEG «6 BY-ROAD 

Buurweg (D.), neighbour's road. Buurwegen are roads belong- 
ing Lu several neighbours in common, and may not be closed except 
by common consent (Grotius' Introduction, 2, 35, 10; Van Leeu wen's 
Comm. 2, 21, 9). See also Via Vicinalis, which is tlie Latin name of 
this class ot" roads. 

"Buyer to pay all expenses in connection with the com- 
pleting of transfer." "In my opinion everything that is necessary 
to be done for the purpose of completing the diagram which formed 
part of the transfer ,is an expense in connection v^ith the complet- 
ing of the transfer. The preparation of the diagram itself is such 
an expense, and I am inclined to go further, and say that the 
cost of a survey made for the special purpose of enabling the sur- 
veyor to prepare such a diagram would be part of such expenses. 
But I cannot accept the view that the costs of a survey made before 
the sale for the purpose of a general subdivision form part of such 
expenses" {per De Villiers, C.J., in Van Wijk v. SmitJi & Co., 
19 S.C. at p. 286). 

By-law or bye-law, a standing rule or regulation made by a 
legislative body, a corporation, council, companj' or society for the 
management of its internal organisation and the conduct of its 
business. A by-law must be made in accordance with the con- 
stitution of the legislative or other body making it, and must, if 
the constitution so provides, be duly published. See Cape Inter- 
pretation of Statutes Act (5 of 1883), sec. 7. 

" We have a distinction between crimes and quasi-crimes, but I 
think under our law this particular offence [a breach of a munici- 
pal by-law] would be a crime, and that breaches of by-lcnvn would 
be called crimes under our law, and not quasi-crimes " {per Bale, C.J., 
in L'lwes <(■ Co. v. Pietermaritsburg Corporation, 27 N.L.R. at 
p. 305). 

Bylbrief (D.), is a mortgage of a ship. A person who has a ship 
built, or buys one, and has not sufficient money to pay for it, may 
mortgage the vessel to his creditor in security of the loan. If the 
ship is lost the mortgagor still remains liable for the money, by 
virtue of the " general hypothecation " (Van der Linden's Institutes, 
p. 427). A bylbrief does not rank pi-eferent to a bottomry bond later 
in date, the reason being that money advanced upon bottomry 
preserves the ship, which benefits the holder of the bylbrief. See 
Grotius' Introduction, 2, 48, 13 ; Van Leeuwen's Comm. 4, 13, 19. 

By-road is defined in the Natal Road Boaids Act (35 of 1901), 
sec. 17, as follows: "(a) A road or right-of-way, whether public or 
private, .which has been established, or the right of which has been 
created, by prescription, or by deed, or in any other valid manner; 
(6) a way of necessity, including a reasonably necessary means of 
access to a public road or a railwaj'' station, stopping place or siding; 
and (c) foot or bridle path." 



CADIT 87 OANCELLARir 

Oadit quaestio, the question falls to the ground ; the dispute is 
at an end. 

Oaeteris paribus, other things being equal. 

"Call or other sum due." Where the articles of association of 
a company provide that aftei- forfeiture of shares for non-payment 
of calls the company shall be entitled to recover the calls from the 
original liolder, and also that no member shall have a vote so long 
as an}- calls or other sums are due and paj^able in respect of any 
share, the calls upon a forfeited share are " sums due in respect 
thereof," and the purchaser from the companjr of forfeited shares 
cannot vote so long as the calls have not been recovered from the 
former shareholder (Rand Gold Mining Co. v. Wainwright, 8 Manson, 
61 ; 17 T.L.R, 29). 

Cambiaal-recht (D.), the law of ejcchange. 

Cambiale jus, the law of exchange. Van der Linden's defini- 
tion of a contract of a bill of exchange is as follows : " By a con- 
tract of a bill of exchange is meant a transaction by which I give 
you, or bind myself to give you, a certain sum, at a certain place, 
for and in exchange of a sum of money which you bind yourself 
to pay to me at another place. In order to carry out this contract, 
and to briiig it into operation, a bill of exchange is drawn, i.e. a 
letter, fiamed in a certain form defined by law, by which you re- 
quest youi- correspondent at a certain place to pay me or my order, 
at that place, a certain sum of money or the value thereof, which 
you leceived from me here, either in cash or account" (Van der 
Linden's Institutes, Juta's trans, p. 470). The holder of a bill was 
entitled to proceed by the summary law of bills of exchange (by 
the cambial process or paraat wissel-regt), that is, by applying to 
the court for an order against the debtor, and an attachment of his 
goods. The law of bills of exchange is governed by statute law in 
the South African colonies. See Bill of Exch.4NGE. 

Cambist, one who has knowledge of exchanges; one who deals in 
bills of exchange. 

Camera. See In camera. 

Camp followers, defined in the Natal Militia Act (36 of 1903) 
sec. 3, t(j mean "sutlers, servants, and all others who accompany 
the force, or any portion of the force when in camp or on military 
.service." The same definition is found in Ordinance 33 of 1902 (T.), 
sec. 1, which is repealed by Ordinance 37 of 1904 (T.). 

Cancellarii, a term sometimes applied to notaries in the middle 

ages. See VVessels' History, p. 198. 



CANCELLATION 88 CAPAX 

Cancellation, the act of cancelling, eliminating, striking out, or 
making void. As to cancellation of a bill of exchange and its effects, 
see Act 19 of 1893 (C.C), see. 61; Law 8 of 1887 (N.), sec. 62; 
Proclamation 11 of 1902 (T.), sec. 61; Ordinance 28 of 1902 (O.R.C.), 
sec. 61. 

Candidate " .shall mean any person elected to serve in Parliament, 
and any person who lias i-eeeived and accepted a requisition as in the 
34tli section of the [Cape] Constitution Ordinance mentioned, and any 
person who has been nominated as a candidate at an election, with his 
consent " (Act 9 of 1883 (CO.), sec. 2). See also Act 26 of 1902 (C.C), 
sec. 2. 

Cannon. In the Transvaal Arms and Ammunition Act (10 of 
1907), sec. 2, cannon is defined to mean and include "any firearm 
which is ordinarily moved by vehicular or animal transport, and is 
ordiriaiily fired from the ground or a fixed platform ; but shall not 
include a cannon bond fide kept as a curio." The same definition is 
given in Act 23 of 1908 (O.R.C.), sec. 2. 

Canton. The tribes of early Germans were "divided into 
hundreds (centena) and into thousands (canton or gau)." See Wessels' 
History, p. 19. 

Canvas houses, such as frame tents, may be considered to be 
" houses or other buildings" {Ex parte Greet, 24 S.C. at p. 525). 

Capax doli, capable of wrong-doing. As regards crimes children 
under seven years of age are absolutely free from criminal responsi- 
bility {R. V. George, 2 E.D.C. 392 ; R. v. Lourie, 9 S.C. 432). Between 
seven and fourteen they are presumed to be doli incapax, but the 
presumption may be set aside by evidence to the contrary, as where the 
circumstances or the nature of the crime are clearly such as to show 
that the offender was actuated by evil motives (per De Vilhers, C.J., 
in R. V. Lourie). Where a child between seven and fourteen com- 
mits a crime in conjunction with his father it will be presumed that 
he was acting in obedience to his father's orders, and he will be held 
free from responsibility, unless the crime was so heinous as to absolve 
him from obedience (R. v. Albert, 12 S.C. 272). For the Roman-Dutch 
law on the subject see Van Leeuwen's Gomm. Kotze's ti-ans. vol. 2, 
ti-anslator's note, pp. 252 et seq. 

Where the case is not one of crime, but of delict or tort, it is not 
clear whether the same rules would in all cases apply. According to 
Voet a minor would be liable for damage caused under the Lex Aquilia, 
i.e. fraud or culpa lata, but not for culpa levissiwia. But if the rule 
as to freedom from responsibility, which holds good in the case of 
crime, should apply a fortiori to the case ot tort or delict, a child 
between seven and fourteen 5'ears of age would not in all cases be 
liable even for dolus or culpa lata, while a child under seven would be 
free from responsibility for any degree of culpa. 



CAPAX 89 CAPITAL 

In Enj^lish law, wliere questions have arisen regarding a child's 
capacity to be guiltj' of contributory negligence so as to affect a claim 
for damages arising out of the injury to wliich tlie fault has contri- 
buted, the tendency lias been to distinguish between wiiat in an adult 
would be mere carelessness (culpa levis or levissi-ina) and the commis- 
sion of a wholly unlawful act, such as wilful and intentional trespass 
(culpa lata) ; it being held in the former case that contributory 
negligence will not avail as a defence, and in the latter case that 
it will disentitle the plaintiff to succeed. Thus in Gardner v. Grace 
(1 F. & F.), where a child, aged three and a half years, ran out into a 
road and was knocked down by the defendant's cart, the plea of 
contributory negligence was overruled. See also Lay v. Midland 
Railway Co. (54 L.T. N.S. 30), where the court laid down that what 
amounts to contributory negligence must have reference to the age 
of the child. Where, on the other hand, the cliild has been guilty of 
an act amounting to wilful misconduct (culpa lata) the plea of contri- 
butory negligence will afford a good defence. Tlius in Abbott v. 
Macfie (33 L.J. Exch. 177), wliere the plaintiff, aged seven years, got 
upon the cover of a cellar left leaning against a wall by the defendant, 
and the cover fell and injured the cliild, it was held that tlie defendant 
was not liable. In Mangan v. Alberton (L.R. 1 Ex. 239; 35 L.J. Ex. 
161 ; 14 L.T. 411) an oil-cake crushing machine was exposed for sale 
by the defendant in a public place, and left unguarded. The plaintiff, 
a child of four, at the suggestion of his brother, aged seven, put his 
fingers into the machine, while anothei- turned the handle and crushed 
the plaintiffs fingers. It was held that the plaintiff was not entitled 
to succeed. The authority of this ease, however, has been questioned, 
on the ground that a machine of this kind left unguarded and with- 
out the handle being secured is a dangerous instrument, to be treated 
in the same category as spring-guns (Clark v. Chambers, (1878) 
3 Q.B.D. 327; 47 L.J. Q.B. 427; 38 L.T. N.S. 4.54). This view is 
supported by the Scotch case of Campbell v. Ord (Court of Session, 
5th November, 1873, 1 Rettie, 149), where the facts were similar, the 
case being decided in favour of the plaintiff. See Clerk and Lindsell 
on Torts, 4th ed. pp. 507 et seq. For a South African case on con- 
tributory negligence of a child, see Eagleson v. ArgiLS Printing and 
Publishing Co., 1 Off. Rep. 264 et seq. (per KoTZ)^, C.J.). 

Capital, the estate of a per.son or corporation ; an accumulation of 
money or property or both, capable ,of being employed in a business or 
undertaking for the purpose of carrying on the same for profit. As to 
what is profit and what capital, se^ Palmer's Company Precedents, 
8th ed. vol. 1, pp. 737 et seq. 

" The word capital as used in the Acts 1867 and 1877 (E.) does not 
mean the capital assets of the company ; it means share capital " 
(Rawlins and Macnaghten on Companies, p. 138). See Subscribed 
Capital. 

For definition of capital in the Profits Tax (Gold Mines) Proclama- 
tion, 1902, see Proclamation 34 of 1902 (T.), sec. 4. See also Knights 
Beep, Ltd., v. Colonial Treasurer ([1905] T.S. 689). 



CAPITAL 90 CARRIER 

Capital crime, a crime for which the penalty is death. 

Capital offence. See Capital Crime. 

Capital punishment, the penalty of death by hanging. Prior to 
1869 prisoners sentenced to death were hanged in public, but in that 
year an Act waw passed in the Cape Colony (3 of 1869) by which it 
became lawful for the Governor, if he were satisfied that fitting 
arrangements could be made for the execution within the gaol in 
wliich the prisoner was confined, to order by warrant under his hand 
that the sentence of death should be carried into effect within the 
walls of such gaol. This procedure has since become universal 
throughout Brilish South Africa. As to capital punishment in 
Cape Native Territories, see Act 24 of 1886, sec. 7. 

Capitis deminutio, loss of status, or change in one's previous 
civil rights in Roman law. This may happen in three ways: it may 
be the greatest, tiie less and the least. The greatest loss of status is the 
simultaneous loss of citizenship and freedom, as when a man becomes 
a slave. The less is loss of citizenship unaccompanied by loss of 
libert}', as when any one is forbidden the use of tire and water or 
is deported. The least form of loss of status occurs when citizen- 
ship and freedom aie retained, bat a man's domestic position is 
altered by anogation and emancipation {Inst. lib. 1, tit. 16). 

Capitularia " were the ordinances oi- statutes of the Carolingian 
monarehs. They were called capitularia either because thej' were 
divided into chapters or because tiiey were made by the emperor 
in council ; for capittdum means either the chapter of a book or a 
body of persons. . . . They constituted the body of laws passed by the 
Great Council under the presidency of the king" (Wessels' History, 
p. 42,. 

Caput. In Roman law capvA. signified all the rights that a man 
can possess, comprehended in the enjoyment of freedom, of citizenship, 
and the relation he bears to his family. 

Carelessness. " It is new to me that carelessness, even if it be 
gross, is fraud, though I think it is laid down in the books that culpa 
lata is akin or near to iv&.\i6.,proxiina dolo" {per Bale, C.J., in Natal 
Loind and Colonisation Co.. Ltd., v. Rycroft, 27 N.L.R. at p. 217). 

Cargadoor (D.), a shipbroker, a shipfreighter. 

Carriage, under the Roads Ordinance (9 of 1846 (C.C.)), sec. 45, 
is defined to comprehend ■ everj' description of vehicle whether upon 
two wheels or more, or whether drawn by one horse or more, except 
when there is something in the context to restrict the meaning of 
the said term." 

Carrier, see Common Carrier. 



CARRYING 91 CASUS 

"Carr3dng on business." This phrase is found iu the Cape 
Additional Taxation Act (36 of 1904), sec. 42, where it is defined 
as meaning " conducting any operation by means of which any income 
is derived." See Colonial Govervmevf v. National Life Assurance 
Society (16 S.C. 2,54) : Smith v. Anderson (15 Ch. D. 247) ; lie Cape- 
town Club (19 S.C. 424). 

Case, a lawsuit ; a term frequently applied to an action in a court 
of law. See " One Unbroken Case." 

Casting' vote, the vote of a chairman or presiding officer of an 
assembly or council, when authorised by the regulations of such 
assembly or council, given by him for or against the resolution under 
consideration where the votes of the members at such assembly or 
council are equally divided. "If the number of votes at a general 
meeting is equal, the chairman has no casting vote by common right" 
(Pahuer's Company Precedents, part 1, 8th ed. p. 594). 

Casual conditions, an expression emploj'ed in connection with 
the institution of an heir. Casual conditions are such as depend 
upon the occurrence of some uncertain event ; they can be fulfilled 
either during the lifetime of the testator or after it (Maasdorp's 
Institutes, vol. 1, p. 139). 

Casual employment. In Act 38 of 1901 (N.), sec. 3, casual 
employment means "employment for the purpose of gain in streets 
or other places in vending any article, and employment of any 
other kind outside the child's home which, in the opinion of the 
magistrate, may be detrimental to a child's health " (the Act referred 
to is one making provision for the support and training of destitute 
cliildi-en and juvenile offenders). 

Casus fortuitus, fortuitous or unavoidable accident. This has 
been defined as an accident which no ordinary care or foresight 
could prevent. Such an accident gives rise to no right of action 
on the ground of either contract or tort. " This, however, must, 
of coui-se, be understood with the qualification that even in respect 
of inevitable accident liability may, according to the civil law, 
arise where the person owing the duty is in mora, or has by ex- 
pre.ss contract assumed liability, or has admitted negligence" (per 
Shippard, J., in Hume v. Cradock Divisional Council, 1 E.D.C. 122). 
Nor from its essential nature will fortuitous accident in the case 
of contract include anything which was known when the contract 
was executed (Jervis v. Tompkinson, 26 L.J. Ex. 41). See Vis 

MAJOR. 

Casus omissus, omitted case; a contingencj' not provided for 
by statute. The Cape In.solvency Ordinance (6 of 1843) lays down 
that when there is a competition for the office of trustee, the choice 
shall fall upon the candidate who receives the votes of the majority 
of creditors present and entitled to vote, and who represent not 



CASUS 92 CATTLE 

only tlie greater number among tliemselves, but also the greater 
value ; but no creditor whose debt is below £30 tshall be reckoned 
in number, the debt being computed in value only. In the case Re Bu 
Toil's Estate (12 S.C. 162) the Master moved for the confirmation 
of the election of a trustee who had received two votes from creditors 
who proved for £28 and £7 respectively, while another creditor for 
£26 voted for another candidate. Strictly, therefore, according to 
the Ordinance tliere was no election. The magistrate, however, 
had declared elected as trustee the nominee who had the majority 
in value. De Villiers, C.J., said : " As this is a casus omissus in 
the Ordinance, the most convenient course seems to be to uphold 
the magistrate's decision, and confirm the election of as sole trustee 
of the estate." Casus omissus et oblivioni datus dispositioni com- 
Tnunis juris relinqiiitur (a case omitted and consigned to oblivion is 
left to the disposal of the common law). "A casus omissus can in no 
case be supplied by a court of law, for that would be to make laws" 
(per BuLLER, J., Broom's Legal Maxims, 7th ed. p. 32). 

Casus-positie (D.). In the judicial practice of the Netherlands 
a casus-positie was a document annexed to the inventory or list of 
documents in a case which was to be argued orally ; it contained a 
history of t)ie case and of the pleadings ; it also contained a statement 
of the questions at issue as thej' appeared from the pleadings. See 
Van der Linden's Institutes, 3, 1, 8, 3. 

Cattle. Under the Roads Ordinance 9 of 1846 (C.C), sec. 45, 
the " term cattle shall comprehend all animals used for draught." 

" Cattle shall include bulls, cows, oxen, horses, mares, geldings, 
mules, asses, pigs, ostriches, sheep, goats, and generally all domesti- 
cated animals" (the Cape Forest Act, 28 of 1888, sec. 2). See also 
Law 22 of 1882 (N.), sec. 5; Law 21 of 1891 (N.), sec. 1 ; Act 1 of 
1899 (N.), sec. 5: Act 42 of 1898 (N.), sec. 3; Ordinance 15 of 1904 
(T.), sec. 1 ; Ordinance 31 of 1907 (O.R.C.), .sec. 1. 

Cattle killing, an expression employed in tlie Natal Cattle Steal- 
ing Act (1 of 1899), where it is provided ''cattle killing and kindred 
words shall include killing of cattle, and any stabbing, wounding, 
maiming, poisoning, or the infliction of any physical injury on cattle." 

Cattle road. Where a road called a cattle road was reserved 
in the grant of a farm, it was held that the narrowest road that 
could have been in contemplation of either party at the time of grant 
was at least 8 feet wide; that such a road would have been quite 
wide enough for vehicles to have passed over ; and that it did include 
the right of going in vehicles over the i"oad (Breda's Executors and 
Another v. Mills, 2 S.C. 189). 

Cattle stealing, an expression used in Act 1 of 1899 (N.) — the 
Cattle Stealing Act, 1899 — where it is provided that "cattle stealing 
and kindred words shall include the stealing, theft or robbery of cattle 



CATTLE 93 CAUSA 

or an}- portion thereof, wliether flesh, skin, horns, head, hooi's or carcass, 
or any other part, or osti'ich feathers; as also receiving cattle, or any 
portion thereof as aforesaid, or ostrich feathers, knowing the same to 
have been stolen." 

Caupo, innkeeper. An innkeeper is liable in every ease of loss or 
damage, although happening without any default or neglect on his 
part, unless it happened by inevitable accident. 

Causa, a term used in Roman law, in which it has a great variety 
of meanings, which will be found collected in Dr. Heumann's excellent 
Handlexicon su den Quellen des Romischen Reckts. 

Causa plays au important part in the Roman law of contracts, and 
here too it has more than one shade of meaning. Its chief meaning in 
the law of contract is that which gives a binding legal effect to a 
promise. Thus Ulpian defines causa as ratio suffi,ciens a lege appro- 
bate, oh qua.m conventio actionem producit (Dig. de Pact. 7, 4). An 
agreement which did not give rise to any action was called nudwm 
pactum, and hence the maxim ex nudo pacto non oritur actio. Causa 
must, however, not be identified with the English " consideration." 

See COKSIDEEATION. 

Causa is also a term of the Roman-Dutch law, and its Dutch 
equivalent is oorzaak. In the Roman-Dutch law of contract causa 
or oorzaak denotes the ground, reason, motive or object for a promise, 
giving such promise a binding effect in law. It is, therefore, a term of 
much wider meaning than the English " consideration." The maxim 
ex nudo pacto non oritur actio, as understood in the English law, has 
no application in Roman-Dutch law, according to which any promise 
seriously and deliberately made and founded on a reasonable cause, 
e.g. tlie liberality which one of the parties desires to exercise towards 
the other (Grotius' Introduction, 3, 1, 53) will give rise to an action 
for its performance. Any cause is reasonable, which is not contra 
legem uut bonos mores. The present law of the Netherlands is still 
the same, in this respect, as the Dutch law in the time of Grotius 
{Burgerl. Wetbvel; sees. 1356, 1371-73 ; Transatlantic Trading Co. 
of Amsterdarn v. De Roock, Weekblad van het Recht, I7th November, 
1905; 23S.A.L.J. 102). 

Tlie ancient Germans attached the greatest importance to the 
faithful performance of a promise, and hence the above rule of 
Rouian-Dutch law, as has been stated, which does not require a 
quid pro quo to give a promise a binding effect. A similar rule 
prevails in Germany. Thus Mackeldey (Lehrbuch, sec. 104, 6, and 
note) observes; "Those precepts of the Roman law are inapplicable 
which rest on principles that have never been acknowledged in 
Germany, e.g. the principle that a nude pact does not produce an 

action." 

In South Africa there are some lawyers who hold that the causa 
of the Roman-Dutch law is the equivalent of the English considera- 
tion, but the opinion of a large number is decidedly opposed to this 
view. Judicial decisions are likewise conflicting on the point. So far 



CAUSA 94 CAUSATION 

as tlie Cape Colony is coiicenied the earlier cases iu the Supreme 
Court adopted the rule of the Dutch law. Thus in Louisa v. Van den 
Berg (1 Menz. 472) it was held that a gratuitous promise, if accepted, 
gave a good right of action ; and in Jacobson v. Norton (2 Menz. at 
p. 221) tliat a promise by the defendant to pay a debt due by K re- 
quired no consideration to support it. In the more recent cases, how- 
ever, of Alexander v. Perry (Buch. 1874, p. 61) ; Mahin and Van der 
Menve v. Secretan, Boon ffc Go. (Foord, 94) ; Tradesmen's Benefit Society 
V. Du Preez (5 S.C. 269); e^nd Mtemb a v. Webster (21 S.C. 323), De 
ViLLlERS, C.J., held that by Roman-Dutch law, and, therefore, by the 
law of the Cape Colony, a binding contract must be founded on some 
valuable consideration. But in the Transvaal, KoTz:^, C.J., in Van 
Beuge v. Coetzee (1 Off. Rep. 314) and INNES, C.J., in Rood v. Wullach 
([1904] T.S. at p 198), held the contrary view. In the latter of these 
two cases it was authoritatively laid down by the full court that 
by Roman-Dutch law consideration in the sense of the Englisli law 
is not essential to give an agreement a binding legal effect. Chief 
Justice Maasdorp of the Orange River Colony (Institutes of Cape 
Latv, vol. 3, pp. 35 et seq.) and Dr. M. Natlian (Coiavion Laiu of South 
Africa, sec. 757) agree in the opinion expressed by KoTz:^, C.J., and 
Innes, C.J. It seems that all the Roman-Dutch writers of authority 
agree that ex 7iudo pacto noii oritur actio is not a rule of Roman- 
Dutch law. In Ceylon the Supreme Court has in the recent case of 
Liptoih V. Buchanan likewise decided in accordance with this view 
(22 S.A.L.J. 169) and in the colony of British Guiana, where the 
Roman-Dutch law is also in force, a similar opinion seems to have been 
entcT-tained by the Supreme Court of that colony (21 S.A.L.J. 347). 
See further on the subject Kotze's Note to Van Leeuwen's Comm. 
2, 4, 2 ; and Wessels' History, pp. 571 et seq. 

Causa cadit, he falls from the case, i.e. loses his suit. 

Causa causans, the inducing or immediate cause as distinguished 
from a cause which, although proximate, is not the inducing cause. 
See Pollock on Torts, 8th ed. p. 464, where he suggests the adoption of 
the term " decisive " instead of " proximate " cause to describe the act 
of negligence which fixes a defendant with liability or debars a plain- 
tiff from recovering damages. See also Proximate Cau.se. ' 

Causa debiti (or debendi), the cause or ground of debt. A pro- 
mis.sory note need not express its cau.se of debt, nor is it necessary for 
the plaintiff to prove it {Watermeyer v. Denyssen, 1 Menz. 26; Low 
V. Oberholzer, 1 Menz. 43). The causa debiti must be specifically set 
forth in the declaration when such is tiled (Jacohson v. Norton, 
2 Menz. 218). 

Causation, the doctrine that one event is the unconditional result 
of .some other event which preceded it. The term is not uncommon 
in American text-books, such as Labatt's Master and Servant, at 



CAUSATION 95 CAVEAT 

sees. 802(X et seq., where, in treating of the liabiHty of a master for 
injury to liis servant, lie discusses tlie proposition tliat the negligence 
proved was the legal cause of the injury received. 

Cause. (1) An action in a court; a judicial proceeding. In the 
Natal Courts Act (49 of 1898), sec. 5, the term cause is defined as 
meaning " any action, suit, motion, application or other judicial 
proceeding." 

(2) Reason ; that which produces or contributes to an effect. 

Cautio daroni infecti, security against apprehended damage. In 
the Roman law a person whose property was threatened with damage 
owing to some act done by his neighbour on his own land, could claim 
from the latter the security de damno infecto. If the security were 
refused the praetor gave him a viissio in possessionem, of the neigh- 
bour's property {Digest, De dainno infecto, lib. -i. sec, 1 ; Grotius' 
Introductioii , 3, 3, 39; Schorer's Note .58). The procedure of the 
caiUio dciTnni infecti and of tlie missio in possessionem is obsolete 
in the Roman-Dutch law ; it is now sufficient that the person who 
apprehends damage from his neighbour should serve him with a pro- 
testatio, which has the same effect as the cautio of the Roman law 
(Voet's Comm. 39, 2, 15; Burnett and Taylor- v. De Beers Consolidated 
Mines, Ltd., 8 H.C.G. at p. 19: Central Soutk African Railways v. 
Geldenhuis Main Reef G. M. Co., Ltd., [1907] T.H. at p. 291). 

Cautio de sistendo. " Securities given by litigants under the 
Dutch system of procedure were of two kinds, viz., the cautio de 
sistendo and the cautio judicatuin solvi. By the former he under- 
took to stand to, and abide by, the judgment of the court, by the 
latter he undertook to perform it" {per De Villiers, C.J., in Schimke 
V. Taylor and Syinonds, 8 S.C. 105, which case contains an exposition 
of the law on the subject of security for costs). 

Caveat, "let him beware;" a notice to an official objecting for 
good rea.sons to the dealing by another person with his property. For 
example, a creditor may lodge a caveat against the surrender of his 
debtor's estate {In re McLeod & Co., Buch. 1876, p. 1), or an objection 
to the transfer of certain property may be lodged with the Registrar 
of Deeds {Van Wyk's Trustee v. Van Wyk and Others, 13 S.C. 481). 
The term is borrowed from the English law, but the Cape statute law 
has made no provision for careats. In Natal, however. Deeds Office 
Notice, 21st June, 1882, established the following practice: "II is 
hereby notified that anj' caveat or interdict against dealings with 
property which sliall be lodged with this office must be followed up 
by the production of an order of the Supreme Court, confirming such 
prohibition, within forty-eight hours, as a general rule, of the delivery 
of such caveat or interdict, or within such other reasonable time as in 
the discretion of the Registrar of Deeds the circumstances of any 
special case may seem to warrant or require." 



CAVEAT 96 CERTE-PARTYE 

Caveat conductor, let the lessee beware. By English law, 
just as in the case of a purchaser of a business the rule is caveat 
emptor, so in the ease of taking the lease of property the rule is 
caveat lessee, he must take the property as he finds it [per Mellish, 
L.J., in Erskine v. Adeane, L.K. 8 Ch. App. 761), unless the lessor 
fraudulently concealed tlie defect from the lessee (Gott v. Gandy, 
2 E. & B. 845). Caveat conductor is not the rule of South African 
law ; but the lessor's knowledge of a material defect in the demised 
premises maj' affect his liability (Watson v. Geard, 3 E.D.C. 417). 

Caveat emptor, let the purchaser beware. In English law the 
presumption, where there is .no fraudulent concealment of defects 
on the part of the .seller, is that the principle of ca.veat eirvptor 
applies. In other words, in English law warrant}' must be express, 
and will not be implied or inferred except in certain excepted cases. 
In Roman-Dutch law, on the other hand, the seller must expre.ssly 
state that he does not warrant the things sold by him, otherwise 
warranty is presumed {O'Brien v. Palmer, 2 E.D.C. 344). There 
is, however, an exception to this rule of the Roman-Dutch law in 
the case where an article of a definite nature is ordered. In such 
a case the manufacturer warrants no more than that the article is 
as fit as any answering the description in the order (Halt c& Go. v. 
Keurns, 10 S.C. 155). 

Cedent, the person wlio has ceded, assigned or transferred .some 
propeity, right or thing to anotlier, the latter being called the ces- 
sionary. 

Censor morum, censor of morals. " But a judge is not a censor 
morinn" {per Buch.^nan, J. P., in Preston & Dixon v. Biden's Trustee, 
1 A.C. 333). 

Census. (1) The Roman land tax, imposed in respect of citizen- 
ship and of ownership of land. In Roman-Dutch law census means 
the right to receive a certain irredeemable annuity reserved by a 
person when he transfers the ownership in his property (see Van 
Leeuvven's Comm. 2, 12, 1). 

(2) An enumeration of tlie inhabitants of a country or district, 
dulj- made under legislative authority, showing the number of persons 
in such country or district on a fixed day, their nationalities, sexes, 
ages, occupations, &c. 

Census (D.), see Cynsen ; Cyus. 

Certain, fixed ; definite. See Logan ct Co. v. Colonial Govern- 
ment (17 S.C. at p. 291). 

Certe-partye or Ohertepartije (D.) (modern spelling Charter- 
partij), a charter-party; a contract made between a merchant and a 
shipowner for the hire of a ship. See Charter-pakty. See also Van 
der Linden's Institutes, 4, 4, 3. 



CERTIFICATE 97 CESSIE 

Certificate of citizenship, a certificate granted by a resident 
magistrate to certain Fingoes, Kafirs and native foreigners in the 
Cape Colony, by virtue of Act 17 of 1864 (C.C), certifying that the 
bearer, whose description is given in the certificate, is an inhabitant of 
the Cape Colony and a subject of his Majesty the King, and is not to 
be obstructed or impeded by any person upon the ground or supposi- 
tion that he is a Kafir without a pass. As to the administration of 
the estate of a holder of such a certificate of citizenship, see Act 18 of 
1864 (C.C.) ; also Act 22 of 1867 (C.C), sec. 7. 

Certification. The expression certification, is employed in con- 
nection with the transfer of shares. Where a certificate of shares 
comprises other shares than those the transferor desires to transfer, 
the transferor usually lodges such certificate with the company, and 
then, at his request or at the request of his broker, the secretary 
certifies tlie transfers (before they are handed over to the transferees) 
by stamping in the margin the form of certification and signing the 
same (Palmer's Company Precedents, 8th ed. p. 575). 

A certification by a secretary of a company on a transfer of shares, 
while it does not warrant the title of the transferor, does warrant that 
the certificates lodged are right on the face of them. If, therefore, a 
transfer which purports to deal with fully paid shares is " certificated," 
when in fact no certificate has been lodged, the company is estopped 
from afterwards saying that the shares in question are not fully paid 
up {In re Concessions Trust, 3 Manson, 274). 

Cessante ratione legis cessat ipsa lex, when the reason of a 
law ceases, the law itself ceases. " If the sole and acknowledged reason 
of the law ceases entirely, the law must be considered as obsolete, 
because the intention of the legislator has ceased to' exist; hence 
laws which apply only to war cease in time of peace, even without 
being repealed" (Grotius' Introduction, 1, 2, 23). "For instance, a 
member of parliament is privileged from arrest during the session in 
order that he may discharge his public duties and the trust reposed 
in him ; but the reason of this privilege ceases at a certain time after 
the termination of the parliamentary session, because the public has 
then no longer an immediate interest in the personal freedom of 
the individuals composing the representative body" (Broom's Legal 
Maxims, 7th ed. p. 126). 

The maxim does not, however, mean that when the circumstances 
which rendered necessary the passing of a law cease to exist the law 
itself will cease to exist in the sense that it cannot again become 
operative,: for if the circumstances again arise the law, if still in 
force, will apply once more. Thus, although laws which apply to 
war cease in time of peace, they will revive when war breaks out 
again; and the privileges which a member of parliament loses at 
the end of a parliamentary session will again attach to him when 
parliament reassembles. 

Cessie van actie (D.), cession of action. On this subject, see 
Anders' Cession of Actions. 



OESSIO 98 CHAMPERTY 

Oessio bonorum, cession of goods or of an estate. It is a volun- 
tary surrender of all one's property for the benefit of creditors in order 
to escape imprisonment, and not to be liable beyond this for the debts 
above one's means. Those who were guilty of fraud, or concealed 
their property with evil intent, or incurred debt through crime, were 
not accorded the privilege of ceding their estate. See Van Leeuwen's 
Go'inifn. Kotze's trans, vol. 2, p. 336. 

By the insolvency laws prevailing throughout South Africa, cessio 
bonorum is specially abolished. It is, however, competent in an action 
by reason of fraudulent alienation by the in.solvent to pi-oceed not 
merely under the Insolvency Ordinance, but also under the provisions 
■of the common law. " I can find nothing in the [Insolvent] Ordinance 
from which it would appear that it was intended to deprive creditors 
or tru.stees of any right thej' might have under the common law con- 
sistently with the provisions of the Ordinance " {per De ViLLlEBS, C.J., 
in Smith's Trustees v. Smith, Foord, 21). 

Cessio fori, the giving-up of the market. Cedere foro in the 
Roman law is the equivalent of the expression to stop payment or 
become insolvent (see Digest, 16, 3, 7, 2). 

Cessionary, the person to whom some property, right or thing, 
has been ceded, assigned or transferred. 

Cestui que trust, a person who has the equitable and bene- 
ficial interest in property, the legal interest in which is vested in 
a trustee. " As a rule the trust property is not merely held for 
the benefit of the cestui que trust; but he is also entitled in equity 
to it. This, however, is not the case always. In what are known 
as ' illusory trusts,' or ' trusts of imperfect obligation ' (such as trusts 
for the payment of the settlor's creditors and trusts for the benefit 
of animals) the cestui que trust has no claim in law or equity to 
the beneficial interest in the trust property (Stephen's Comm. 1.5th 
■ed. vol. 3, p. 453). See Trust. 

Cestui que use is he to whose use land is held. 

Cestui que vie is he for whose life land is granted. 

C.F.I. See C.I.F. 

Champerty, " the unlawful maintenance of a suit, in considera- 
tion of some bargain to have part of the thing in dispute or some 
profit out of it " (per TiNDAL, C.J., in Stanley v. Jones, 7 Bing. at 
p. 377), quoted with approval by Kotzj^, C.J., in Hugo and Moller 
V. Transvaal Loan, Finance and Mortgage Co. (1 Off. Rep. (Eng. 
ed.) at p. 339). See Schweizer's Glaimholders' Rights Syndicate, 
Ltd., V. Rand Exploring Syndicate (3 Off. Rep. (Eng. ed.) 140)j 
Anders' Cession of Actions, p. 48. 



CHAMPERTY 99 CHEMIST 

An agreement to contribute towards the costs of a lawsuit in 
consideration of receiving a share in the result of the suit is not 
per se champertous; see Patz v. Salzburg ([1907] T.S. at p. 526). 

Character, the moral qualities of a person ; a verbal or written 
statement of the qualities, reputation or standing of a person. " No 
master is bound to give a character to any servant or apprentice, 
who is or has been in his service, or to assign any reason for refusing 
to give it" (Act 15 of 1856 (C.C), ch. 6, sec. 1). 

Charge-sheet. " When a criminal prosecution in a court of 
resident magistrate is instituted in respect of a statutory offence, the 
charge-sheet, which takes the place of the indictment in a superior 
court, should set out the particulai- section of the law which is 
alleged to have been broken, and should state shortly and distinctly 
the nature of the offence alleged to have been committed" (per 
INNES, C.J., in Bada Qia v. Rex, [1906] T.S. at p. 26). "I think, 
following, and perhaps somewhat extending, that [just quoted] rule 
we should hold that in a charge like the present the accused should 
be informed of the grounds upon which the Crown relies for its 
contention that they [the appellants] are liable to be removed, and 
upon which it is alleged that they are prohibited immigrants" {per 
Innes, C.J., in Ismail and Others v. Rex, [1908] T.S. at p. 1093). 

Chattels, an English term, meaning things which in law are 
deemed personal property. " The words ' goods and chattels,' at the 
time when these terms were introduced into English law, were 
used to embrace all property not comprised under one or other of 
the terms, 'lands, tenements and hereditaments'; and they are 
used in that sense to the present day as equivalent to personalty " 
(Goodeve's Personal Property, 5th ed. p. 14). 

Check, a means of comparison or verification for the purpose of 
proving correctness. See Not checked. 

Cheese, in Ordinance 32 of 1906 (O.R.C.), sec. 1, means " the sub- 
stance usually known as cheese, containing no fat derived otherwise 
than from milk." 

Chemist. (1) A person versed in the science of chemistry. 

(2) A person licensed to deal in drugs and medicines. In the 
Cape Medical and Pharmacy Act (34 of 1891) the terms chemist and 
druggist are defined to mean " every person duly licensed in this 
[Cape] Colony on the day before the taking effect of this Act as an 
apothecary or chemist and druggist, and also every person duly 
licensed under this Act as a chemist and druggist and holding an 
annual license as a chemist and druggist under tariff 15 of the Act 20 
of 1884." The Natal Act (35 of 1896, sec. 3) is almost identical with 
that of the Cape; the reference to the Act is of course different. See 



OHEMIST 100 CHILD 

Ordinance 29 of 1904 (T.), see. 3; Ordinance 1 of 1904 (O.R.C.), 
sec. 1. 

As to when a chemist may be considered as practising as a medical 
practitioner, see Boyd v. Rex ([1906] E.D.C. 65). 

Cheque. " By construing sec. 73 with sec. 3 [of the English Bills 
of Exchange Act, 1882], which defines a bill of exchange, we get the 
following definition of a cJieque: 'A cheque is an unconditional order 
in writing addressed by one person to another, being a banker, re- 
quiring the person to whom it is addressed to pay on demand a sum 
certain in money to or to the order of a specified person or to bearer 
(Watson on Cheques, 3rd ed. p. 1). Sec. 73 of the English Bills of 
Exchange Act, 1882, reads as follows : "A cheque is a bill of exchange 
drawn on a banker payable on demand," and this definition is identical 
with that given in sec. 71 of the Cape Bills of Exchange Act, 1893, 
and the Cape Bank Act (6 of 1891), sec. 2; sec. 72 of the Natal Bills 
of Exchange Law, 1887 ; sec. 74 of the Rhodesian Bills of Exchange 
Regulations, 1895; sec. 71 of the Transvaal Bills of Exchange Pro- 
clamation, 1902 ; and sec. 71 of the Orange River Colony Bills of 
Exchange Ordinance, 1902. 

" A cheque paid into a bank may be accepted in two ways — either 
for collection or as cash. If it is taken for collection it remains the 
propertjf of the customer, and the bank in obtaining payment of it act 
merely as the customer's agents. If it is taken as cash the bank 
become holders of it for value. They place the amount of it to- the 
customer's credit as cash, and they obtain the right to sue the drawer 
in their own name " {per Bristowe, J., in Freeman v. Standard Bank 
of South Africa, Ltd., [1905] T.H. at p. 31). The payment must be 
made either (1) to the payee himself, or (2) to the person who presents 
the cheque with the indorsement of the payee upon it ; a payment, 
therefore, to a person who presents the cheque (who is not the payee) 
without an indorsement by the payee is not a payment in the ordi- 
nary course of business ; nor is a variance by the bank of the cus- 
tomer's order to pay within the ordinary course of business {per 
Wessels, J., in E. & J. Burke, Ltd. v. Standard Bank, Ltd., [1905] 
T.H. at p. 127). 

Chertepartije (D.). See Ceete-partye. 

Chief, tlie head of a native tribe. In the Natal Code of Native Law 
(Law 19 of 1891, sch., sec. 9) the word chief is used to denote " any 
per.son who by virtue of the acknowledgment or appointment of the 
Supreme Chief is in charge of a tribe or section of a tribe of natives 
in this [Natal] colony, and entitled to have, use and possess the juris- 
diction, powers and privileges conferred by this Code upon such per- 
sons. The term chief shall also include the persons appointed by the 
Supreme Chief to have charge over natives living upon or connected 
with mission stations." See Native Chief ; Supreme Chief. 

Child. See Children. See also Act 37 of 1904 (C.C), sec. 1; 
Act 24 of 1906 (N.), sec. 3; Act 24 of 1909 (T.). 



CHILD-BEARING ^ loi OHIROGRAPHARII 

Child-bearing age. " No fixed rule of lawi^cau be laid down as 
to the age at which a woman must be conclusively presumed to be 
past child-bearing age. After a woman has reached the age of fifty 
the Court would not require the same degree of evidence as when she 
is under that age, but some further evidence would be required to 
support the presumption that she will not bear children " {per 
De Villiers, C.J., in Re Meyers Estate (13 S.C. at p. 4). See also 
Ex parte Francis (13 C.T.K 147), where the woman was seventy 
years of age, and the court held it was still possible she might remarry 
and liave lawful issue; and Ex parte Kolc (13 C.T.K 213), where the 
woman was fifty-two years of age and the court was satisfied that 
there was no probability of further issue (see Best on Evidence, 
10th ed. sec. 338, note (t)). 

Children is a "flexible term, used sometimes to signify only sons 
and daughters and sometimes all descendants. . . The signification 
to be given to this term in any particular case is not a question of 
law, but of fact, namely, with what intention did the maker of the 
deed use the term ? " {Sequestrator v. Guardian of Slaves and Beck, 
1 Menz. at p. 333). See also Pretorius v. Executors of Pretorius 
(2 S.C. 293); Re Bergh (7 S.C. at p. 308); Wright's Executors v. 
Wright (18 C.T.R 846); and Van Leeuwen's Comm. Kotz^'s trans. 
3, 6, 7, and 3, 8, 11 and 12. There is no presumption in the law of 
Cape Colony that the word "child" or "children" occurring in a 
statute refers to legitimate children only {per KoTZ:^, J.P., in Davies 
V. Rex, [1909] E.D.C. 149). 

"Children and grandchildren." Where a testator had by his 
will appointed his children and grandchildren to be his sole and uni- 
versal heirs, the Supreme Court of the Cape Colony held that, in the 
absence of any other indication to the contrary in the will, they wei'e 
not all called together to the inheritance, but the children before the 
grandchildren, and on failure or predecease of one the other comes in 
his place by substitution {Human v. Human's Executors, 10 S.C. 
172). 

Child-steahng is a punishable oft'ence. See Man-stealing; also 
Queen v. Buchenroeder (13 S.C. at p. 178). 

Chirograph, a Roman law term meaning a note of hand ; a 
written acknowledgment of debt. 

Chirographarii, " creditors who have the security of ' private ' 
writings under the hands of their debtors, as distinguished from 
those who are secured by ' public ' instruments ; but the term is also 
used to include all who have only a right to a personal action, and no 
hypothec, Matthaeus, Be Auct, lib. 1, cap, 20, sec. 1 ; Van Leeuwen's 
Gensura Forensis, part 1, lib. 4, cap. 11, sec. 15 ; all of whom rank 
pari passu and without reference to priority of date ; the only distinc- 
tion being that preference is given to such of them as are 'pi-ivileged '" 
(Berwick's Translation of Voet, p. 320, in notis). 



CHOSE-IN-AGTION 102 CIRCUIT 

Chose-in-actiofi» "any right, vested in a definite person or per- 
sons, to obtain from another, by legal proceedings, any money or 
money's worth, or any right in the nature of property, whether the 
aim of the proceedings be to get possession of a specific material 
object, or not" (Jenks' Digest of English Civil. Law, bk. 1, sec. 41). 
Ghose-in -action is an English legal term ; it has not been adopted in 
South Africa. 

Christian name, defined in the Cape Interpretation of Statutes 
Act (5 of 1883, sec. 3) as being "any name prefixed to the surname, 
whether received at Christian baptism or not." See also Proclamation 
15 of 1902 (T.), sec. 2 ; Ordinance 3 of 1902 (O.R.C.), sec. 8. 

Cider vinegar. In the Cape Wine, Brandy, Whisky and Spirits 
Act (19 of 1908), sec. 16, " ' Cider vinegar' or ' Apple vinegar ' means 
the product made by the alcoholic and subsequent acetous fermentation 
without distillation, of the juice of apples." See Vinegar. 

C.I.P., a commercial abbreviation of the words "cost, insurance 
and freight." 

" The terms, at a price, ' to cover cost, freight, and insurance, pay- 
ment by acceptance on receiving shipping documents,' are very usual 
and are perfectly well understood in practice. The invoice is made 
out debiting the consignee with the agreed price (or the actual cost 
and commission, with the premium of insurance and the freight, as 
the case may be), and giving him credit for the amount of the freight 
which he will have to pay the shipowner on actual delivery, and for 
the balance a draft is drawn on the consignee, which he is bound to 
accept, if the shipment be in conformity with his contract, on having 
handed to him the charter-partj^, bill of lading, and policy of insur- 
ance. Should the ship arrive with the goods on board he will have 
to paj' the freight, which will make up the amount he has engaged 
to pay. Should the goods not be delivered, in consequence of the 
perils of the sea, he is not called on to pay the freight, and he will 
recover the amount of his interest in the goods under the policy. If 
the non-delivery is in consequence of some misconduct on the part of 
the master or mariners not covered by the policy, he will recover it 
from the shipowner. In substance, therefore, the consignee paj'^s, 
though in a different manner, the same price as if the goods had 
been bought and shipped to him in the ordinary way " (Benjamin on 
Sales, 4th ed. p. 574). The transaction described in the foregoing 
quotation is commonly known by the abbreviations " c.i.f." or " c.f.i." 
See also Hughes & Rogers v. White, Ryan & Co. (17 S.C. 236). 

Circuit courts, courts of record established in the Cape Colony 
in 1832 by the Charter of Justice, to be holden at least twice a year, 
and to be presided over by the Chief Justice or one of the puisne 
judges of the Supreme Court, for the purpose of visiting each of the 
circuit districts into wliich the colony has been apportioned. Circuit 
courts have both civil and criminal jurisdiction. This system of 



CIRCUIT 103 CIVIL 

circvyit courts has been extended to the other South African colonies. 
See Act 39 of 1896 (N.), sees. 11 et seq. ; Ordinance 10 of 1903 (T.) j 
Ordinance 4 of 1902 (O.R.C.), sees. 19 et seq. 

Circuit district, a district within which a circuit court is held. 
Under sec. 37 of the Charter of Justice of 1832 (CO.), the Governor 
of tlie Cape Colony was authorised to apportion the colony into 
districts in such manner as may appear to be best adapted for en- 
abling the inhabitants to resort with ease and convenience to the 
circuit courts to be established in such districts. These districts are 
called circuit districts, and circuit courts are held therein at more 
or less regular intervals. A similar system has been adopted in 
the other South African colonies. See Act 39 of 1896 (N.), sees. 11 
et seq.; Ordinance 10 of 1903 (T.); Ordinance 4 of 1902 (O.R.C.), 
sees. 19 e^ seq. 

Circiilation. In Colonial Government v. Bank of Africa (4 S.C. 
477) it became necessary to construe the term circulation in reference 
to bank notes, as appearing in the Bank Note Duty Act {6 of 1864 
(C.C.)). .sees. 3 and 4. In doing so De Villiers, C.J., said: "The 
company by allowing any of its offices to issue its own notes, confers 
on sucli office to that extent a certain individuality of its own. The 
notes are payable onlj' at the office which issues them, and although 
tlie company may allow its other offices to pay those notes, it is not 
bound to do so. There is much force, therefore, in the argument 
that, in the absence of any interpretation clause defining the term 
circukdioii, and independently of the- provisions of the 9th section 
of the Act, notes once issued are to be deemed to be in circulation 
and consequently liable to duty until they come back to the very 
office which first issued them. This argument acquires additional 
force in the case of notes which the issuing office has, for the purposes 
of Act 19 of 1865, represented as being in circulation, although in 
the possession of other offices of the same company. The argument 
is further strengthened, it certainly is not weakened, by the terms 
of the 9th section of Act 6 of 1864." See also Colonial Government 
V. Standard Bank (5 S.C. 43). 

Citatie (D.), a summons. In Roman-Dutch law the citatie was 
the initial proceeding in a court of law whereby civil or criminal 
proceedings were instituted. A lawful citation had the effect of 
(a) bringing the defendant into court; (6) perpetuating jurisdiction ;. 
(c) interrupting prescription ; and {d) transmitting the process to the 
heirs of the defendant. See Kersteman's Woordenboek, vol. 1, p. 62; 
Van Leeuwen's Comm. 5, 13. 

Civil commissioners, officers appointed in the Cape Colony to 
perform the duties, or some of them, of the landdrosts upon the aboli- 
tion of the office of landdrost in 1827. The duties were more parti- 
cularly defined by Ordinance 77 of 1830 (C.C). Civil commissioners 



CIVIL 104 CIVIL 

•at the preseut time are almost entirely confined to matters connected 
with the revenue and expenditure in their respective districts in the 
Cape Colony. 

Civil fruits {fructus civiles), fruits that do not owe their origin 
to nature, but are merely the product of something ; they include rents 
and interest. 

Civil imprisonineilt, the confinement of a person in a public gaol 
or lock-up under a judgment of a competent court for not paying a 
judgment debt or any other sum of money he is ordered to pay; or for 
not doing any other act, thing or deed ordered by the court (Van Zyl's 
Judicial Practice, 2nd ed. p. 226). " At a comparatively early stage 
of its development the Dutch law gave the right to the creditoi-, if his 
debtor was unable to pay, to claim the custody of the debtor's person, 
in order that he might serve out his debt " {per KoTZ:^, J.P., in Bold & 
Stone V. Wilson, [1908] E.D.C. 480). Prior to 1813 there was no limited 
time for the duration of the imprisonment in the Cape Colony of any 
person or persons against whom an execution for debt, process of 
court, or precept or warrant of any court or competent authority was 
issued, but such persons were committed to prison until they could pay 
or satisfy such debt, &c. On the 5th February, 1818, a Proclamation 
was promulgated by Sir John Cradock, limiting the periods of civil 
imprisonment. See also Ordinance 6 of 1839, sec. 2 ; Act 20 of 1856, 
sec. 20 ; and Act 8 of 1879, sec. 6, of Cape Colony. 

Civil jurisdiction, the jurisdiction granted to a court by law in 
civil matters- — that is, matters relating to property and rights main- 
tainable in law at the suit of the owner or claimant, as opposed to 
criminal jurisdiction, or to jurisdiction in ecclesiastical and naval or 
military matters. 

Civil law, the municipal law of a state. It is also used to denote 
that portion of the municipal law of a country which deals in the 
civil rights and remedies as distinguished from the criminal law. It 
is sometimes employed as opposed to ecclesiastical law. When used 
without any qualification it is generallj^ understood to mean the 
Roman law as contained in the Corpus Juris Oivilis. "Among the 
primary systems the civil law holds the most prominent place. It is 
the great source from which most other .systems of jurisprudence 
have been derived, and they still recognise the influence of its prin- 
ciples and doctrines. Servatur ubique jus Romanura non ratione 
imperii sed rationis imperio. The most important texts of the 
Roman law were collected and revis( i between 529 and 534 a.d., 
under the Emperor Justinian. This c jllection, known as the Corpus 
Juris Civilis, consists of (1) the Institutes, an educational text-book; 
(2) the Digest, or Pandects, a compilation of dicta, opinions, &c., from 
the writings of the most eminent Roman lawyers ; (3) the Code, a 
chronological collection of Imperial statutes; and (4) the Novels, or 



CIVIL 105 CLAIM 

new laws made subsequent to Justinian's codification" (Renton and 
Philhmore's Colonial Laws and Courts, p. 1.3; and Burge's Comm. 
new ed. vol. 1, p. 13). 

Civil Service, that branch of the public service that is not military 
or naval. In the Cape Civil Service and Pensions Fund Act (32 of 
1895), sec. 2, the term Civil Service is, for the purpose of that Act, 
defined to "include and consist of all persons continuously employed 
in the discharge of duties other than purely police or military in any 
department of the public service ; not being ministers of the Crown, or 
judges of the Supreme Court, or their clerks, or private secretaries to 
the Governor, or aides-de-camp to the Governor, or officers of parlia- 
ment; provided (a) that such persons are not remunerated solely by 
fetes or allowances; (6) that their whole time is devoted to the public 
service, except in the cases of the Solicitor-General, the Crown Prose- 
cutor at Kimberley, the Assistant Law Adviser to the Crown, and any 
other person to whom a retiring allowance may be granted under the 
provisions of the 47th section of this Act." 

In the Natal Civil Service Act (21 of 1894), sec. 2, the term Civil 
Service is defined as " The body of persons, other than judges of the 
Supreme Court, who have been heretofore appointed and regarded as 
members of the permanent civil sei-vice of the colony, and all persons 
who may become members of such permanent civil service in terras of 
this Act." In the Transvaal the term used is Public Service ; see the 
Pensions Ordinance (30 of 1906), sec. 1, which defines public service as 
" service in a department of the Government of this colony," and the 
Public Service and Pensions Act (18 of 1908), sec. 1, where the defi- 
nition given is " the system of employment of persons of European 
descent by the Government of this colony in the discharge of public 
duties in a department or office of such Government." 

Civiliter modo, in a reasonable manner; a phi-ase applied in 
Roman law to the exercise of servitude rights. The owner of the 
dominant tenement nuist exercise his light in the way least burden- 
some to the servient tenement, and with a due regard to the comfort 
and convenience of its owner {Digest, 8, 1, 9). Thus the holder of a 
jus itineris must keep the path, and cause no damage to the servient 
property. 

Claim. (1) A right in a holding under some mining law. In 
Law 15 of 1898 (T.) ckdm is defined as " that portion of the field 
on which a person or persons or companies has or have lawfully ob- 
tained the right to dig or to prospect, or the right to dig or prospect 
on such piece of land." The Precious and Base Metals Act (35 of 
1908 (T.)), which repealed the above Law, defines claim as "an area 
of ground which in accordance with this Act or a prior law has been 
lawfully pegged as a claim, and on which the right to prospect or dig 
for precious or base metals has been lawfully obtained." 

The tenure under which claims held under license issued by virtue 
of the Transvaal Gold Law "is one sui generis specially created by 



CLAIM 106 CLAIM 

statute, and the incidents of which must be gatliered from the terms 
of the statute which established it" {per Innes, C.J., in Neehe v. 
Registrar of Mining Rights, [1902] T.S. 6^). See Prospecting 
License. 

In the Transvaal Precious Stones Ordinance (66 of 1903), sec. 2, 
claivi means " the portion of ground assigned for mining purposes 
within any proclaimed alluvial diggings of a size fixed by this Ordi- 
nance, or the right to dig for precious stones in such portion of 
ground." See Ordinance 7 of 1905 (T.), sec. 1. 

See Act 31 of 1898 (C.C)., sec. 8; Ordinance 63 of 1903 (T.), 
sec. 43. 

See Metal Claim; Mineral Claim. 

In the Orange River Colony, in the Mining of Precious Metals 
Ordinance (3 of 1904,) sec. -5, claim signifies " an area of land 
situated on a public digging (not being a mijnpacht) assigned under 
the provisions of this Ordinance for mining purposes." And under 
the Mining of Precious Stones Ordinance (4 of 1904 (O.R.C.)) claim 
means " a portion of the land assigned for mining purposes within any 
proclaimed alluvial digging or anj' existing mine within the meaning 
of this Ordinance of a size fixed by this Ordinance, in respect of such 
existing mine or alluvial digging re.spectively. The land assigned for 
mining purposes as aforesaid with reference to existing mines shall be 
deemed to be the area respectively recognised as claims in the said 
mines at the time of the coming into operation of this Ordinance." 

(2) An assertion of a right. "An editor supervising for the press 
the writings of judges and other lawyers has a special grievance in 
regard to the verb — not the noun-substantive — claim. In addition to 
being used as the equivalent of 'allege,' 'assert,' 'protest,' 'profess,' &c., 
. . . nothing is commoner than for claim also to do duty in place of 
'contend,' 'argue,' 'urge.' In the same sentence we have often known 
it to mean, in the early part, allege, and in a later part, contend. In the 
forms of pleadings under the Judicature Act we have the proper use of 
the verb claim. — and almost the only use to which it can be intelligibly 
put in legal writings. ' The plaintiff" claiins possession,' ' claims a 
declaration,' 'claims foreclosure,' 'claims an injunction.' It seems 
possible that the substitution of ' clai'in' for 'pray' or 'pray for,' 
authorised by the forms, has paved the way for the introduction into 
Canada, and we fear into England too, of the American use or misuse 
of the verb. English judgments are not quite free from such expres- 
sions as ' clai'ms that he was misled,' ' clahns to be entitled,' and the 
like, and Canadian judgments abound in them" (26 Canadian Law 
Times, 763). It is said that in America the verb claim " has been 
so disfigured by misuse and unsuitable tasks that the original signi- 
ficance, that of asserting a right, has been hopelessly weakened, if not 
entirely lost " (ibid.). 

Claim in reconvention, a counter-claim made by a defendant 
against a plaintiff" in a pending action. 

" By looking at the text-books I think it will be found clearly laid 
down that the principle of reconventional claims was introduced into 



CLAIM 107 CLANDESTINE 

the Dutch law simply because it was for the interest of the State, ut 
finis litium. When an action was therefore brought against a defend- 
ant, if he had any kind of cross-action, of whatever nature, against the 
same party who brought the original suit, it was competent for him 
at once in pleading to make his claims in reconvention, so that the 
pleadings would go on pari passu to the day of trial, and prevent the 
plaintiff from getting judgment against the defendant when that de- 
fendant might have otherwise meritorious claims as a valid set-off. 
These reconventional claims, by being thus pleaded at once, prevented 
the necessity of defendant taking out fresh summonses, or beginning 
other proceedings which really might lead to very great injury " (^Jer 
Cloete, J., in Brunette v. Stanford, 3 Searle, at p. 225). 

Claim inspector, an official appointed by Government to inspect 
and report upon claims, their beacons, &c., upon proclaimed diggings 
in certain South African colonies. As to claim inspectors in the 
Transvaal, see Law 15 of 1898, sec. 12 (since repealed). 

Clairoholder, the person who is entitled to a claim bj^ license or 
otlier legal title on any proclaimed gold oi- other mineral- bearing field, 
or in a mine under the Precious Stones Acts. The tenure under which 
claims are held under the Transvaal Gold Law is one sui generis 
specially created by statute, and the incidents of which must be 
gathered from the terms of the statute which established it {Neebe v. 
Registrar of Mining Rights, [1902] T.S. at p. 83). As to the tenure 
in diamond mines in the Cape Colony, see South African Loan and 
Moi^tgage Agency v. Gape of Good Hope Bank (6 S.C. at p. 182). 

In the Cape Precious Minerals Act (31 of 1898), sec. 3, the term 
claimholder is defined to include " partnership and joint-stock com- 
panies and any public body or body corporate to wliom any portion 
of ground has been or may be assigned for mining purposes whether 
by way of absolute ownership, lease or otherwise." A similar defini- 
tion is to be found in sec. 3 of the Cape Precious Stones Act 
(11 of 1899). 

In the Transvaal Precious Stones Ordinance (66 of 1903), sec. 2, 
claimholder means " the registered holder of the right to dig for 
precious stones in a claim." And so also in Ordinance 4 of 1904 
(O.R.C.), sec. 5. 

Clandestine marriage, a secret marriage ; a marriage contracted 
secretly without the consent of parents or in defiance of the will of 
parents or guardians. 

" The Church recognised the validity of a marriage of minors 
where no parental consent had been obtained. . . . By the civil law 
the marriage was void, but the reason of that law did not apply to 
Holland, for the prohibition arose from the law regarding patria 
potestas, and this peculiar power of the Roman ancestor did not form 
part of the law of Holland. Public opinion was therefore the only 
influence which restrained clandestine mar^-iages. In the sixteenth 
century, however, public opinion seems to have lost its restraining 



CLANDESTINE 108 CLAY 

influence, and we find Charles V in 1540 attempting to check clandes- 
tine marriages by imposing severe penalties upon the parties. Not- 
withstanding that tlie parties could be punished, and that they 
forfeited the benefits arising from community, the number of claTides- 
tine ma.rriages increased. In 1580, however, the State.s of Holland 
boldly broke away from the Canon law, and pronounced all marriages 
of minors void unless the consent of parents had been obtained, even 
though the marriage had been duly celebrated by an officer of the 
Church. The law was therefore brought into accord with that public 
opinion which had prevailed in the Netherlands from the earliest 
German period. 

" Though the legal age has been reduced to twenty-one years, 
the requirement of the Political Ordinance that the parents must give 
their consent to the marriages of children under the age of majority 
has been retained (Order in Council, 7th September, 1838, sec. 10), 
and a marriage of minors without the consent of parents is as void 
with us as it was in Holland" (Wessels' History, pp. 442-43). 

Olausvila derogativa, the derogatory or derogative clause in a 
will. See Ci>ausule derogatoir. 

Olausule derogatoir (D.), a clause inserted in a testament or will 
whereby the testator expressly provided that whatever disposition he 
should afterwards make should not take effect except by special revo- 
cation and insertion of certain or particular words (Van Leeuwen's 
Comm. 3, 2, 17). Grotius says {Introdtiction, Maasdorp's trans, p. 117) : 
" There is another cause which may render a will invalid ab initio, 
natnely, if a previous testament contains a clause (clausula derogativa) 
to the effect that t!:e testator does not wish any wills subsequently 
made by him to be valid ; by which clause the testator does not indeed 
deprive himself of the right to alter his will (for that the law does not 
allow, even if a person imposes a penalty on himself in case he should 
subsequently make a will), but rather gives ground for suspecting that 
such subsequent will was extorted from him by compulsion or undue 
influence, and is consequently no indication of the testator's intention. 
If, therefore, a testator wishes to make a valid subsequent testament, 
he ought in such subsequent testament to refer to the clause contained 
in the previous one, and to revoke it. The lapse of ten years, however, 
after the making of the first will, the execution of the second will 
before the authorities, and such-like indications are also held as an- 
nulling such clause." See also Van der Keessel, Thes. 328. Kersteman 
{Woordenboek, vol. 1, p. 65) speaks of this clause with disapproval, and 
describes it as a corruption received into the Roman-Dutch practice. 

Clausule reservatoir (D.), reservatory clause in a will. See 
Reservatory Clause. 

Clay. ' It is clear that absolutely pure clay is a mineral, even in 
the narrow sense. It is called kaolin, but, scientifically speaking, it is 
hydrosilicate of alumina. When mixed with a proportion of basic 



OLAY 109 CLOSED 

metals it becomes a compound, and when hard and compressed it is 
called a rock. If the proportion of basic metals mixed with the pure 
kaolin is comparatively small then the substance is called fire-clay; 
and, not being easily fusible, it is used for purposes for which great 
heat-resisting properties are required. If, on the other hand, the pro- 
portion of basic metals is large, then the compound is comparatively 
easily fusible and is used as ordinary cUiy for making bricks for build- 
ing purposes and such like " {per Innes, C.J., in Blue Sky G. M. Co., 
Ltd., V. Marshall, [1905] T.S. at p. 26, q.v.). See Donovan v. Turffontein 
Estaie Go. (2 Off. Rep. Webber's trans. 218) ; Brick and Potteries Co. v. 
Registrar of Deeds ([1903] T.S. 473) ; Ordinance 7 of 1905 (T.), sec. 1 ; 
Mineral, 

Clean certificate, an expression used in the Scab Acts. In the 
Cape Scab Act (20 of 1894), sec. 4, clean certificate is defined to mean 
" a certificate granted by a veterinary surgeon or inspector for and in 
respect of sheep, to the effect that such sheep are not infected." See 
Ordinance 14 of 1903 {O.R.C), sec. 1. 

Cleansed. In the Cape Cattle Cleansing Act (31 of 1908), sec. 2, 
"cleansed shall mean dipped, sprayed or otherwise cleaned in manner 
provided by regulations under this Act." 

Clear days' notice, means a notice extending over a period of 
days, so that it does not include the day on which the notice is 
given or the day on which the thing or event, to which the notice 
refers, shall happen; thus seven clear days' notice convening a meet- 
ing means seven days' notice exclusive of the day on which the notice 
is given or that on which the meeting is held (see Caldecott and 
Others v. Botha's Reef G. M. Co., 5 H.C.G. 249). In Natal "seven days' 
notice " has been held to mean seven clear days' notice {Craig v. 
Tatham, Lyon and Thorrold, 20 N.L.R. 29 ; and Johnson v. Johnson, 
26 N.L.R. 142). See also Maxwell's Interpretation of Statutes, 4th ed. 
p. 519. See Day. 

Cloaca, sewer or drain. See Servitus CLOACAE. 

Closed. In the Natal Shop Hours Act (36 of 1905), sec. 4, closed 
means " closed against the admission of any person for the purpose of 
buying or doing any shopping business, either for the whole day or 
for the remainder of the day, as the case may be." See also Act 32 
of 1908 (T.). 

Closed (or Close) will. " Written (otherwise called close) wills 
are those whereby the testator has expressed his intentions in writing; 
and having subscribed and sealed it, has handed the same, closed up, 
to a notary in the presence of two witnesses, together with a declara- 
tion that whatever is contained in the writing is his complete last will. 
The document is then superscribed by the notary, and an act thereof 
made, subscribed by the testator and the witnesses. It should, how- 
ever, be specially observed with reference to this point, that a close 



CLOSED 110 COERCION 

will made by two spouses, whereby the one has conferved a benefit 
upon the other, must be written by a third person; for no one can 
write a will in his own favour" (Van Leeuwen's Cormn. Kotz^'s 
trans, vol. 1, p. 319). See also Van Zyl's Notarial Practice, p. 265; 
Maasdorp's Institutes, vol. 1, p. 121. 

Club. " Clubs are associations of a peculiar nature. They are 
societies the members of which are perpetually changing. They are 
not partnerships ; they are not associations for gain ; and the feature 
which distinguishes them from other societies is that no member as 
such becomes liable to pay to the funds of the society or to any one 
else any money beyond the subscriptions required by the rules of the 
club to be paid so long as he remains a member. It is upon this 
fundamental condition, not usually expressed, but understood by every 
one, that clubs are formed ; and this distinguishing feature has been 
often judicially recognised. It has been so i-ecognised in actions by 
creditors and in winding-up proceedings" {per Lord LiNDLEY, in 
Wise V. Perpetual Trustee Co., 87 L.T. at p. 571). See Re Panmure 
Club (5 E.D.C. 170: 3 C.L.J. 213); Reid and Stewart v. Rex ([1904] 
T.S. 260). 

As to what may not be a boiid fide club, see Goldman and Others 
v. Hex ([1908] T.S. 895). 

As to club being a descriptive word used in connection with a 
trade- mark, see Wordon d- Pegrain v. Gantrell & Cochrane and 
Another (18 S.C. 142). 

As to whether a club is a sliop in Natal, see Ladysmith Corpora- 
tion V. Cheeseman (27 N.L.R. at p. 496). 

Coasting trade is defined in the Cape Colony (sec. 2 of Act 26 of 
1872) as being all trade by sea from any one part, port or place in the 
colony to any other part thereof, with certain exceptions mentioned 
in the Act, principally referring to ships arriving from or proceeding 
to ports beyond colonial limits. In Natal, coasting trade is defined 
as being "trade by sea from one poi't to any other port of the colony" 
(Act 13 of 1899, sec. 117). 

Codicil, an instrument by which a testator makes some addition 
or alteration to his will by virtue of the reservatory clause. See 
Maasdorp's Institutes, vol. 1, p. 115; Eras'mus v. Erasmus' Guar- 
dians and Executors ([1903] T.S. 843) ; Joseph v. Joseph's Estate and 
Others (17 C.T.R. 169). 

Coercion, compulsion. " There is a rule of law that ' he is free 
from blame who is bound to obey' {Big. 50, 17, 169). This rule, 
as pointed out by Matthaeus {Be Grim. 1, 13), must be accepted with 
the limitation that the offence is not so heinous as obvioasly to 
absolve the person ordered to commit it from the duty of obedience. 
No assistance can be derived from the English law, which, in regard 
to crimes committed under compulsion, is most un.satisfactory. Ac- 
cording to Stephen {History of Criminal Law, vol. 2, p. 106) ' As the 



COERCION 111 COGNOSCEMENT 

law stands it produces this result : a husband and wife of mature 
age, and their daughter of fifteen, commit a theft. It is proved that 
the girl acted under actual threats used by her father. Nothing 
appears as to tlie wife's part in the matter, except that her husband 
was present when she committed the offence. The wife must be 
acquitted on account of the presumed coercion of her husband ; the 
daughter must be convicted, notwithstanding the actual coercion of 
her father.' Even in England, however, there are, according to Sir 
M. Hale (P.O. 44), various crimes, such as those which are mala in se, 
from the punishment of which the wife is not privileged on the 
ground of coercion. As to our own law, I am not prepared to adopt 
the English rule that a wife who commits a theft in the presence 
of her husband must be presumed to have acted under his coercion. 
That rule was referred to, but not accepted by the majority of the 
court, in Queen v, Barker (2 S.C. 9). The Court has now to deal 
with the case of a child of eleven years assisting his fatlier in 
committing a theft. It cannot be reasonably expected from a child 
under fourteen that he will disobey the illegal order of the father 
unless the offence he is ordered to commit is of an atrocious kind. 
If he has I'eached the age of fourteen he is presumed to have sufficient 
discernment between right and wrong, and sufficient strength of will 
to disobey unlawful orders. If he is under seven he is absolutelj^ 
free from criminal responsibility. But between seven and fourteen, 
although he is presumed to be doli incapax, that presumption may, 
as was held in Queen v. Lowrie (9 S.C. 432), be rebutted by evidence 
to the contrary" (per De Villiers, C.J., in Queen v. Albert, 12 S.C. 
272). See also Queen v. Slinger and Klaas (4 E.D.C. 279). 

Whether a wife is acting under the coercion of her husband 
is a question of fact {per Smith, J., in Queen v. Farley, 2 S.C. at 
p. 229). See also Queen v. Bruintjes (4 E.D.C. 281). 

Cogitationis poenam nemo patitur, no one suffers punishment 
for his thought. The mere intention to commit an offence or crime is 
not punishable. If, however, the intention has been manifested in 
some overt act, as in the case of an attempt to commit a crime, 
then the act, although unsuccessful, is punishable (Van Leeuweu's 
Gomm. 4, 32, 2 ; Decker, ibid, in notis). According to Van Leeuwen 
(Gomm. 4, 33, 1) an exception to this principle obtains in the case of 
hio-h treason, intention alone being sufficient to constitute the crime. 
As regards English law. Act 36, Geo. Ill, cap. 7, in defining treason, 
strikes at mere intention to commit the crime ; but it is nevertheless 
settled that such intention must be proved by so!ne overt act, and it 
would appear that the same view must now be taken as regai'ds this 
crime in Roman-Dutch law (Rex v. Boers, 21 N.L.R. 116). 

Cognisable, that which is capable of being tried in, or adjudicated 
upon by, a court of law. 

Cognoscement, (D.) (also spelt cognossement or connossement), 
bill of lading. 



OOGNOSSEMENT 112 COLLATION 

Cognossement (D.), see Cognoscement. 

Cohabitatie (D.), cohabitation ; the living together of spouses aa 
man and wife. 

Cohabitation, the state of a man and woman living together as 
husband and wife ; generally implying sexual intercourse. 

Coin. " Coin is metal used for the time being as money, and 
stamped and issued by authority of some state or sovereign power 
in order to be so used. Coin stamped and issued by authority of 
the Queen or any Government in the Queen's dominions is the 
Queen's coin " (Native Territories' Penal Code, Act 24 of 1886 (C.C), 
sec. 228). 

In the Cape Bank Act (6 of 1891) the term coin is defined to 
mean " gold, silver and bronze coin of British coinage current in 
the [Cape] Colony, and all gold coin coined by lawful authority in 
any of the colonies of the Crown, and such other coin as the 
Governor may bj' proclamation from time to time determine." 

Coinage, pieces of metal stamped and issued by authority of 
some state or sovereign power in order that they may be used as 
money. 

Coining, the crime of counterfeiting or knowingly performing 
any part of the process of counterfeiting coin. See Stephen's Digest 
of the Criminal Law, art. 409 ; see also the Native Territories' 
Penal Code (Act 24 of 1886 (C.C.)), .sees. 228-30: Ordinance 26 of 
1904 (T.), sec. 18. 

Collateral relationship, a term denoting the relation of persons 
descended from the same stock or ancestor, but in a side or branch 
line ; commonly known as " collaterals." Succession by representation 
among collaterals only extends to the fourth degree. 

CoUatie, (D), collation. See Collation. 

Collation, " the duty incumbent on all descendants who wish 
to share in the succession to an ancestor or ascendant, either by 
will or ab intestato, of bringing into hotchpot or massing with the 
inheritance of the deceased any property acquired from or on account 
of such ancestor during his lifetime " (Maasdorp's Institutes, vol. 1, 
p. 152). 

" A brief glance at the history of our law relating to collation 
will be useful to assist us in arriving at a decision upon the ques- 
tion now raised. By the ancient civil law emancipated children 
had no rights of succession ah intestato to their father or other 
ascendant, but the praetor in the exercise of his equitable jurisdic- 
tion gave them the bonorum possessio, just as if they had been in 
the ascendant's family at the time of his death. This right, how- 
ever, was conditional upon their bringing into collation their own 



COLLATION 113 COLLUSION 

property, which was reckoned as part of the inheritaace for the 
purpose of dividing it between them and tlieir brothers and sisters 
living under their father's potestas. This was the oiigin of the 
doctrine of collatio bonorum, which was afterwards extended by 
statute and by judicial interpretation far beyond its (niginal appli- 
cation. The Eniperor Pius Antoninus extended it to ihe dos which 
a daughter had received from her father, and a similar extension 
was made by subsequent emperors to any substantial advancement 
made by a mother as well as by a father beyond the ordinary 
maintenance and education which a parent, according to his means, 
owed to his children. Justinian laid it down generally that what- 
ever could be reckoned for the purpose of the legitimate portion 
should be brought into collation (God. 6, 20, 20), and he afterwards 
by his 18th Novel (c. 6) extended the principle still further by 
directing that it should apply to the testamentary succession as well 
as succession ab intestato of descendants. The right of the testator, 
however, to forbid its application was expressly reserved. It would 
serve no useful purpose to follow the applications and modifications 
of the doctrine which have been made in the law of the Nether- 
lands. The 29th article of the Political Ordinance of 1680 .substan- 
tially adopts the later Roman law on the subject, but contains no 
precise statement as to what benefits conferred on children or other 
descendants must be collated. Treatises have been written by Dutch 
•lawyers upon the question whether or not a simple donation made 
to a child should form the subject of collation, and no agreement 
was ever arrived at by them. Vinnius (De Coll. c. 16, par. 15), 
after discus.sing the question at great length, comes to the conclu- 
sion that a simple and absolute gift made to a child by either 
parent need not be brought into collation except in two cases, 
namelj-, where the gift was made on condition that it should be 
brought into collation, and where the necessity of creating equality 
among the children gives occasion for applying the principle. The 
conclusion is a very lame one. If the gift was a conditional one 
it could not at the same time have been simple and absolute. The 
second exception must in many cases neutralise the rule, for if 
some only of the children obtained substantial gifts there must be 
an inequality requiring to be redressed, and if all the children re- 
ceived gifts, collation would not affect the ultimate result" (Per 
De Villiers, C.J., in Jooste v. Jooste's Executor, 8 S.C. at p. 290). 
See Meyer v. Estate Meyer, 19 S.C. 227 ; Re Correy's Estate (27 
N.L.R. 544). 

Collusion. This term does not necessarily connote anything 
morally wrong, as literally it means nothing more than agreeing 
together, but it is generally applied in law to a secret agreement 
between two or more persons for the one to do or abstain from doing 
something in order that the other may by action obtain a remedy to 
which he would not otherwise be entitled. In divorce proceedings 
collusion is fatal if it is proved or even if the court has reason to 
believe in its existence. 



COLONIAL 114 COLOURED 

Colonial forces is deBned in the Cape Colonial Forces Act (32 of 
1892) to include "the permanent forces as hereinafter [in the Act] 
defined, any volunteer corps, any colonial commissariat or transport 
force, attached to a field force, any corps of native levies, and any 
other corps raised and enrolled under the provisions of this Act." 

Colonial legislature is defined in the Interpretation Act, 1889 
(Eng.), sec. 18, sub-sec. 7, as follows: "The expression colonial legis- 
lature and the expression ' legislature ' when used with reference to a 
British possession, shall respectively mean the authority, other than 
the Imperial Parliament or her Majesty the Queen in Council, com- 
petent to make laws for a British possession." 

Colonus partiarius, a farmer whose land is leased to him at a 
rent which consists in a share of the produce; see Oosthuizen v. Estate 
Oosthuizen ([1903] T.S. 688). 

Colony, a distant possession or dependency of a parent State. 
" Colonies are either gained by conquest or cession, or else they are 
acquired by right of occupancy only, tliat is, by finding them desert 
and uncultivated, and peopling them from the mother country. In 
conquered or ceded countries which have already laws of their own, 
those laws remain in force until changed by competent authority ; the 
common law of England, as such, having no authority there. But it" 
has been held that if an uninhabited country be discovered and planted 
by English subjects, all the English laws then in being, which are the 
birthright of every subject, are immediately thei-e in force. But this 
must be understood with very many and very great restrictions. The 
colonists cany with them only so much of the English law as Ls 
applicable to the condition of an infant colony ; such, for instance, 
as the general rules of inheritance and of protection from personal 
injuries" (Stephen's Comm. 15tli ed. vol. 1, p. 62). 

The expression colony is defined in the Interpretation Act, 1889 
(Eng.), sec. 18, sub-sec. 3, as meaning " any part of her Majesty's 
■dominions exclusive of the British Islands and of British India, and 
where parts of such dominions are under both a central and a local 
legislature, all parts under the central legislature shall, for the pur- 
poses of this definition, be deemed to be one colony" In Re Koch 
<[1902] T.S. 197) the Supreme Court, of the Transvaal held that the 
definition contained in the Interpretation Act, 1889 (Eng.), just quoted, 
was not applicable to South African statutes. 

Coloured person. Ordinance 39 of 1904 (T.), sec. 1, repealing 
the definition given in sec. 18 of Law 3 of 1897, regulating the mar- 
riage of coloured people, defines coloured person as " any person who 
is manifestly a coloured person and whose marriage on that account 
cannot be solemnised under the provisions of Law 3 of 1871.'' In the 
Precious and Base Metals Act 35 of 1908 (T.), sec. 3, coloured person 
means " any African or Asiatic native or any other person who is 
manifestly a coloured person." 



COLOURED 115 COMMITTEE 

In the Mining of Precious Metals Ordinance 3 of 1904 (O.R.C.), 
sec. 5, coloured person signifies "any African, Asiatic, or Polynesian 
aboriginal native, any coloured American person, Arab, Coolie or 
Chinaman, and all persons who in accordance with law or custom 
are called coloured persons or are treated as such, of whatever race 
or nationality they may be." 

In the Poll Tax Consolidation Ordinance 2 of 1904 (O.R.C.), 
coloured person includes "Arabs, Chinese and other Asiatics, and also 
all other persons who are by law or custom in South Africa regarded 
as coloured." See also Ordinance 28 of 1907 (O.RC), sec. I. 

See Salugee v. Rex ([1903] T.S. 13); Bosch v. Rex ([1904] T.S. 
at p. 56). 

Combined drain. The term combined drain is defined in the 
Capetown Municipal Act Amendment Act (25 of 1897 (C.C.)), sec. 1, 
to mean " any private drain used or intended to be used for the drain- 
age of two or more houses or premises." 

Commandeer. From the Dutch word comtnandeeren, to com- 
mand. A term commonly applied to the requisition of property for 
the necessities of war in the late South African Republic and Orange 
Free State, where commandeering was carried out bv virtue of the 
Krijgswet. In Alexander v. Pfau ([1902] T.S. 155) it was held that 
it was not in conflict with the principles of international law for a 
State to requisition the property of resident aliens, and a fortiori that 
of hostile resident aliens, in order to supply the necessities of war. 

Commando (D), a collection of armed burghers called together or 
commandeered for military purposes under the statute law of the late 
South African Republic and Orange Free State. A voet commando 
was an infantiy commando as above ; a paarde commando was a 
commando of mounted infantry; and when a person had gone out 
with a commando he was said to be op com,mando. 

Commit, to consign a person to prison, under warrant, for exami- 
nation, further examination, trial or some other purpose. 

Commitment, the act of consigning a person to prison under 
warrant. See Commit. For instance, one may speak of a " wari'ant 
for cornmiinnent for trial " or a " commitment for examination." 

Committee. " A coTnmittee is a person or body to whom the 
discharge of certain duties is committed or delegated by another or 
others" (per Innes, C.J., in Macintosh v. Pretoria School Board, 
[1908] T.S. at p. 874). 

See Act 3 of 1907 (T.), sec. 2 ; Act 6 of 1907 (T), sec. 1 ; Act 12 
of 1907 (T.), sec. 2. 

Committee room, an expression used in statutes regulating 
parliamentary and other elections, and signifying the room oflficially 

h2 



COMMITTEE 116 COMMON 

used by the committee of a candidate for the purposes of an election. 
See Act 26 of 1902 (C.C.), sees. 2 and 11. 

Commixtio, commixture ; the term commixtio is used with 
reference to solids. See CONFUSIO. 

Commodatum, a loan for use. Commodatuvi is a transaction 
wliereby something is, without any gain, lent for a certain use, on 
condition that the same thing shall after the use be returned. The 
borrower must return the thing lent to him in the .same state in 
which it was, and is liable for damage or injury caused to the 
property by his smallest neglect. He is, however, not liable for 
accidents. See also Actio Commodati. 

Oomnaodus usus, comfortable use. One of the duties of a 
lessor is to afford his lessee the use and comfortable enjoyment of 
the property let. Thus he is bound not to interfere with the lessee's 
use and enjoyment of the thing himself, and to guarantee the lessee 
against interference by way of legal process on the part of others 
{Watson V. Geard, 3 E.D.C. 422). Where during the currency of 
tlie lease the lessee has suffered eviction, without just cause, he can 
claim to be reinstated (Diamond v. Gill, 7 E.D.C. 194), or he may 
cancel the lease and claim damages {Levy v. Rose, 20 S.C. 194). 
So if the property has been leased for a certain definite object 
the lessor must afford the lessee the coiamodus usus of the property 
for such object. He will therefore be liable for any interference 
with the le.ssee's use of the propertj^ for that purpose, as where he 
himself has caused a nuisance or is responsible for it. But he will 
not be liable for an3^ interference caused by third parties for which 
he is not responsible, e.g. where he has let the adjoining premises 
to a third party for a legitimate object, and they have been mis- 
used for the purpose of a nuisance, such as the keeping of a brothel 
(Baum v. Rode, [1904] T.S. 66). The lessor, again, is bound to 
keep the thing let in a proper state of repair. If he fails in this 
duty, the lessee will be entitled to an abatement of the rent to the 
extent to which he has been deprived of the means of enjoying 
the use and occupation of the thing or has himself incurred ex- 
penditure in placing it in a proper state of repair (Bensley v. Clear, 
Buch. 1878, p. 89). In certain circumstances the lessee will even be 
entitled to abandon the lease, in which event he will be liable for 
rent only for the time during which he has actually been in occu- 
pation of the premises. The lessee may also recover compensation 
for damage caused to him by reason of the disrepair of the thing 
let, if the lessor was aware of the disrepair, or from the nature of 
liis trade or calling ought to have been aware of it {Bensley v. 
Clear, ibid.; Arinstrong v. Arinstrong, Buch. 1879, p. 23). 

Common carrier. " A common carrier is one who makes carry- 
ing his business — who holds himself out to the world as prepared to 
transport the goods of any other person from place to place for hire. 



COMMON 117 COMMON 

It is not essential that he should hold himself out as ready to carry 
goods of all sorts. He may profess only to carry small parcels, and 
then he could not be required to carry large and bulky things. He 
may profess to carry one description of goods, as, for example, corn, 
in which case he would be a common carrier of corn, and could not be 
required to carry anything else. Again, he probably only professes to 
carry goods to certain places, or, perhaps, even only between two par- 
ticular places. If this were the case, he would be entitled to refuse 
goods ofiFered to him for carriage to places to which he did not profess 
to extend his operation.s. The essential part of the definition of a 
common carrier is that he holds himself out to the public as being 
ready to cai-iy for any one whatsoever who wishes to engage his 
services and is prepared ti) pay his charges " (Disney's Carriage by 
Railway, p. 1). 

" In England the well-established rule is that a coinm,on carrier is 
respon.sible for all losses, except those occasioned by the act of God or 
the king's enemies, but even then such responsibility does not extend 
to losses occasioned by some internal defect or some inherent tendency 
to damage in the goods carried. In this [Cape] Colony the liability of 
cominon curriers is not quite so wide as in England. It lias never 
been expressly decided whether the praetor's edict relating to inn- 
keepers, shipmasters and stablekeepers applies in this colony to carriers 
by land as well as by water. In the Netherlands the dearth of 
authority on tliis point may be accounted for by the fact that most of 
the carrying trade has always been done by water ; but it is strange 
that in this colony, where there is no internal transport by water, the 
question has never been distinctly raised. The edict of the Roman 
praetor extended in terms to carriers by water only, but the reasons 
stated for the rules which it lays down are equally applicable to car- 
riei'S by land. The praetor declared that if shipmasters, innkeepers 
and stablekeepers did not restore what they liad received to keep safe, 
he would give judgment against them {Dig. 4, 9, 1). The reasons 
given by Ulpian for this edict are that it is for the most part necessary 
to place confidence in such persons and to commit the custody of things 
to them, and that unless this rule were thus established an opportunity 
would be afforded to them to combine with thieves against those who 
trusted them, whereas they now have an inducement to abstain from 
such frauds. The construction placed on this edict was that the bailees 
named were liable in every case of loss or damage occasioned by theft, 
injury or otlierwise, although happening without any default on their 
part, unless it happened by superior force, or by what was called ' fatal 
damage,' as, for instance, by shipwreck or by the act of pirates. Among 
instances of superior force being used, Voet mentions the cases of an 
inn or a stable being broken into by burglars and the property of the 
guest or the horse of the bailor being stolen, but he adds that if the 
theft was facilitated by the negligence or default of the innkeeper or 
stablekeeper, he would be liable, and that the burthen of disproving 
negligence lies upon him (Voet, 4, 9, 2). Voet does not mention the 
case of carriers by land, but in the Utrechtsche Go7isultatien (vol. 1, 
c. 21), such carriers appear to be placed on the same legal footing as 



COMMON 118 COMMON 

carriers by water. Among French writers on the civil law, Domat 
(1, 16, 3 and 4) holds a similar view, which has been adopted in the 
Code Civile of France (art. 1782). In Naylor v. Munnik (3 Searle, 
181), which was a case of a carrier by land, remarks were made by the 
then Chief Justice of this Court, and were concurred in by his three 
colleagues, which tend to show that in their opinion the principles of 
the edict were equally applicable to carriers by land. ' It appears to 
me.' said HoDGES, C.J., ' that a carrier who undertakes to carry goods 
is bound to take faithful care of those goods, and is answerable for 
their loss even in the case of theft. It is for the interest of the public 
that this rule should be enforced, as otherwise a door would be opened 
for the perpetration of gross frauds when goods are handed over by 
their owners for the purposes of transit,' " {per De Villiees, C.J., in 
Tregidga & Co. v. Sivewriffht, N.O., 14 S.C, at p. 80). It should be 
added that in the same case Maasdokp, J., was of opinion that "the 
responsibilities of the defendants are not to be tested by the principles 
which have been founded on the rule of the civil law, but are similar 
to those of depositaries for hire. In that case they were bound to use 
ordinary diligence, and are liable for damage caused by their negli- 
gence," {ihid. at p. 86); but Buchanan, J., concurred with the Chief 
Justice {ihid. at p. 84). 

See Carrier Law 11 of 1884 (N.) : also Law 5 of 1891 (N.); and 
Law 21 of 1891 (N.). 

Common employment. " Much objection has from time to time 
been taken to the expression common em.ployment, and Mr. Joseph 
Brown, Q.C., has gone the length of saying that it is an expression 
incapable of definition {Parlm. Com. 1876, Q. 502). To give a precise 
definition, which will be applicable to every case that may occur, may 
be next to impossible ; but that is no objection to the use of the terms 
in the absence of something better. . . . The difficulty suggested has 
arisen, not so much from the use of the expression common einploy- 
m.eni, as from its most unreasonable application and extension by 
different judges to wholly distinct departments of duty, and to persons 
in entirely different grades of service, under a common master or 
employer. . . . The mere fact of the servant injured and the servant 
injuring being fellow-servants — i.e. having the same master — is not 
enough to exempt the master from liability. It must be shown that 
the service which each servant performed was in some waj'' connected, 
or that they were employed on what the law considers the same work 
or department of duty. This for practical purpases is well enough 
expressed by the words com.7non employment" {per KoTZ^, C.J., in 
Lewis and Salisbury G. M. Co., 1 Of}'. Rep. Webber's trans, at p. 5). 

Common fief, is a fief that is held without any noble titles 
or dignities attached, and without any incidents of nobility (Van 
Leeuwen's Comm. Kotze's trans, vol. 1, p. 256). 

Common form, see " Usual Common Form." 



COMMON 119 COMMUNIS 

Common law. " Custom exists as law in every country, though 
it everywhere tends to lose its importance relatively to other kinds of 
law. It was known at Rome as the jus mmHbus constitutwm. It is 
known in England as the comvion law, or ' the custom of the realm,' 
the existence of which is now usually proved by showing that it has 
been affirmed by the courts, or at least has been appealed to in the 
writings of great judicial sages " (Holland's Jurisprudence, 10th ed. 
p. 57). This definition is equally applicable to Soutli Africa. In 
Ordinance 3 of 1902 (O.R.C.), sec. 1, it is specifically provided that 
" The Roman-Dwtch law shall be the com'nwn law of the colony 
in so far as it has been introduced into, and is applicable to South 
Africa." See also Proclamation 14 of 1902 (T.), sec. 17. 

Common "wall, a wall between two properties, and in which the 
owners of both such properties have equal or common rights. (See 
Maasdorp's Institutes, vol. 2, pp. 177-80). 

" The rights to a party wall partake of tlie nature of a servitude, 
but the wall itself is also regarded, in many important respects, as 
common property. The neighbouring proprietors are not co-owners, 
in the true sense of the term, of the wall, because the land on which 
the wall stands is not their common property, but they have the 
rights of co-owners to this extent, that each is entitled to the main- 
tenance of the wall encroaching on his neighbour's property, as well 
as of the part standing on his own property. Such a wall is conse- 
quently termed in our law a common wall " {per De Villiers, O.J., in 
Wiener v. Van der Byl, 21 S.C. at p. 26). 

Commonage, town lands adjoining a town or village, and over 
which the inhabitants of such town or village have the right of 
grazing cattle, subject usually to municipal regulations or bye-laws. 

Communal tenure, that form of title by which immovable or 
real property is held on behalf of a community, such community 
being so formed and organised as to protect and promote its general 
interests. As an example of such tenure, see sec. 26 of the Cape Glen 
Grey Act (25 of 1894). 

Communis error facit jus, common error sometimes passes 
current as law. " It has been sometimes said," observed Lord Ellen- 
borough (Isherwood v. Oldknow, 3 M. & S. 396) " that communis 
error facit jus ; but I say that communis opinio is evidence of what 
the law is — not where it is an opinion merely speculative and theo- 
retical, floating in the minds of persons ; but where it has been made 
the groundwork and substratum of practice." This maxim must be 
applied with great caution, for it is apt to set up a misconception of 
the law in destruction of a law. " But where a decision of the courts, 
originally wrong, or an erroneous conception of the law, especially of 
real property has been made, for a length of time, the basis upon 
which rights have been regulated and arrangements as to property 
made, the maxim communis error facit jus may be applied. Indeed, 



COMMUNIS 120 COMPANY 

this is strictly in accordance with the above cited view of Lord 
Ellenborough, and it will be found that, where the courts of justice 
have declined to correct misconceptions of long standing, the reluct- 
ance has been due to a wholesome fear of interference with rights 
based upon them" (Broom's Legal Maxims, p. 114; and cf. Mtembu v. 
Webster, 21 S.C. 345). 

Community of goods, same as community of property. See 
Community of Property. 

Community of property. (1) According to Roman-Dutch law 
the property of every description of the spouses becomes on marriage 
the common property of both, and this is known as community of 
property. This consequence can be avoided by the due execution 
of a contract, called an antenuptial contract, between the parties 
prior to the marriage providing for the exclusion of cotnmunity of 
property and of profit and loss. See Antenuptial Contract. 

As to the law in Natal relating to parties married outside South 
Africa, see Law 22 of 1863, sec. 2. 

(2) A real right belonging to two or more persons over the 
same thing (Grotius' Introd., 2, 28, 2). 

Commutative contract, a contract " in which the thing given 
or act done by one party is regarded as the exact equivalent of 
the money paid or act done by the other " (May on Insurance 
4th ed. sec. 6). 

Commutative justice, " treats of tilings ivi cominercio. Things 
in commercio or patrimonio are those wliich are capable of indi- 
vidual possession and enjoyment, divided into res corporales, or 
such as are capable of corporeal possession (which might be tnobiles 
or im/inobiles), and res incorporales, or such as are incapable of 
corporeal enjoyment. In commutative justice what is called the 
arithmetical proportion is observed, when there is only a comparison 
of thing with thing, and the equality of the things compared is re- 
garded, not the equality of the persons between whom the transac- 
tions stand and the agreements are entered into (i.e.), whether nobles 
or plebeians, magistrates or private persons) '' (Nathan's Comrnxm 
Law, sec. 5). See Grotius' Introd. 1, 1, 10; Van Leeuwen's Comm. 
Kotze's trans. 1, 5, 3, et in notis. 

Company, is defined in the Cape Companies Act (25 of 1892) to 
mean " every partnership whereof the capital is divided, or agreed to 
be divided, into shares, and so as to be transferable without express 
consent of all the partners ; and also any partnership which at its 
formation or by subsequent admission shall con.sist, or have at any 
time consisted, of seven or more than .seven members." As to the 
formation of a company, see sec. 23 of the same Act. See Joint 
Stock Company ; Limited Company ; see also the Cape Railways 
Extension Act (28 of 1895), sec. 1 ; Act 43 of 1895 (C.C), sec. 1. 



COMPANY 121 COMPONENT 

In the Transvaal, in Act 31 of 1909, company means "a limited or 
unlimited company which is incorporated and res^istered under chap, i 
of this Act, and shall include every company to which, by chap, vi, 
this Act is expressed to apply," i.e every existing company and every 
company, not being a foreign covipajiy. which was incorporated under 
Law 6 of 1874. In the Estate Duty Act 28 of 1909 (T.), sec. 2, 
company is defined as "any company incorporated or registered 
undei- the law for the time being of this colony relating to the in- 
corporation or registration of companies, and shall include also a 
company which, though not so incorporated or registered, carries on 
business in this colony." 

See O.R.C. Law Book, chap. C, sec. 1 ; Law 2 of 1892 (O.R.C.), 
sec. 1 ; Law 4 of 1892 (O.R.C.), sec. 1 (a). 

Compensatie or Schiild-vereffening (D.), compensation; the 
payment and satisfaction of a debt or obligation ; set-off. " Com- 
pensation is the setting off of one debt against another of equal 
amount and subsisting between the same parties" (Grotius' Introd. 
Maasdorp's truns. p. 333). See also Van Leeuwen's Comm. 4, 40 ; Van 
der Linden's Institutes, 1, 18, 4; Kei'steman's Woordenboek, v<jl. 2, 
p. 118. See CoMPENSATio; Set-off. 

Compensatio, set-off. It is the extinguishment of debts which 
two persons mutually owe each othei- by means of the claims which 
they mutually have against each other (Van der Linden's Institutes, 
Juta's tran.s. p. 168). In order that debts may be set off, it is neces- 
sary : (1) That they be of the same kind; (2) that they be due; 
(3) that they be liquidated ; and (4) that they be due by the parties 
to the set-off in their personal capacities. 

" By our law, set-off, whether admitted to be a set-off or not, 
extinguishes the debt pro tanto against which it is opposed. This 
extinguishment takes place ipso jure, and does not depend upon any 
admissions made by the parties" (^Jer De ViLLlERS, C.J , in Kruger v. 
Va7i Vuuren's Executrix, h 8.C. 166). See also Symon v. Brecker 
([1904] T.S. at p. 747). 

Compensation, (1) set-off. See Compensatio. 
(2) That which is given or received as an equivalent for services 
rendered or as amends or reparation for injuries done. 

Competent evidence. " By competent (or admissible) evidence 
is meant that which the law requires, as the fit and appropriate 
proof in the particular case — .such, for instance, as the production 
of a writing, where its contents are the subject of inquiry " (Taylor 
on Evidence, 10th ed. sec. 2). 

Component part, a constituent portion or piece, such as a com- 
ponent part of machinery. See Collector of Customs v. De Beers 
Consolidated Mines, Ltd. (9 S.C. at p. 148). 



COMPOUNDING 122 COMPULSORY 

Compounding a crime, an arrangement wliereby, for a con- 
sideration, a person injured agrees to refrain from prosecuting, or if 
possible to discontinue a prosecution. " Where the punishment pre- 
scribed is merely a tine and no other punishment, the person injured is 
not criminally liable if, before a criminal suit has been instituted at all 
events, he compounds the offence, but . . . where the law provides 
any other punishment than a mere pecuniary penalty, no such private 
composition may be made " {per De ViLLiERS, C.J., in Queen v. 
Thomas, 1 A.C. at p. 207). 

Comipounds. This term is defined in the Cape Excise Spirits 
Act (18 of 1884), sec. 2, and in the Cape Additional Taxation Act 
(36 of 1904), sec. 2, as follows : " Compounds means spirits redistilled, 
or which have had any flavour communicated thereto, or ingredient or 
material mixed therewith." 

Compromis (D), in Roman-Dutch law, was (1) an instrument 
usual!}' passed before a notary and two witnesses, whereby the 
parties, in order to avoid the cost and trouble of a lawsuit, agreed 
to refer their differences to arbitration (see Kersteman's Woordenboek, 
vol. 1, p. 73). 

(2) An agreement between litigants for the settlement of matters 
in dispute (see Grotius' Introd. 3, 4 ; Van Leeuwen's Comm. 5, 23). 

Compromise, a mutual arrangement made between two or more 
persons for the settlement, by means of concessions, of the differences 
or disputes existing between them. 

Compulsion. "An act which if done willingly would make 
a person a principal in the second degree and an aider and abettor 
in a crime, may be innocent if the crime is committed by a number 
of offenders, and if the act is done only because during the whole 
of the time in which it is being done, the person who does it is 
compelled to do it by threats on the part of the offenders instantly 
to kill him or to do him grievous bodily harm if he refuses; but 
threats of future injury, or the command of any one not the hus- 
band of the offender, do not excuse any offence " (Stephen's Digest 
of the Gri-ininnl Law, 5th ed. art. 32). See also the Native Terri- 
tories' Penal Code (Act 24 of 1886 (C.C), sec. 29). See Coeecion. 

Compulsory sequestration, an order of a competent court placing 
the estate of a debtor in insolvency for the benefit of his creditors upon 
the application of a creditor. A creditor having a claim against a 
debtor amounting to not less than a certain sum (usually £50) may, if 
such debtor has committed an act of insolvency, petition the court 
that the estate of such debtor be placed under sequestration for the 
benefit of his creditors, stating in such petition the amount of the 
debt, the cause thereof, and the alleged act of insolvency ; the petition 
must be accompanied by an affidavit of the truth of the debt, and 



COMPULSORY 123 COMPUTATIO 

the secnritj' held by the creditor (if any) and the value thereof;, 
security must also be lodged for the fees and charges for the due 
prosecution of the sequestration until the choice or appointment of 
trustees. Upon proof of the allegations to the satisfaction of the 
court, and provided the necessary affidavit and certificate of security 
have been tiled, the court may order the estate of the debtor to be 
placed under sequestration in the hands of the Master of the Supreme 
Court. This is known as a provisional sequestration. The debtor 
is then summoned by the petitioning creditor to appear before the 
court on a certain day, to be appointed by the judge making the 
provisional order, to show cause why his estate should not by sentence 
of the court be adjudged to be sequestrated for the benefit of his 
creditors ; on the return day the court may either adjourn the hearing, 
or grant the final order of sequestration or dismiss the petition. On 
the final order for sequestration being granted the insolvency is 
complete and the estate of the insolvent becomes vested in the 
Master of the Supreme Court, and is subsequently administered by 
trustees under supervision of the Master. See Ordinance 6 of 1843 
(C.C), sees. 4 et seq ; Act 38 of 1884 (N.), sec. 3 ; Law 13 of 1895 (T.), 
sees. 7 et seq. ; O.K.C. Law Book, chap. 104, sec. 5, and Ordinance 3 
of 1906 (O.R.C.), sec. 9. 

Computatio civilis et naturalis, civil and natural calculation. 
A policy of insurance dated 22nd January, 1857, was issued by the 
defendant company (Cock v. Cape of Good Hope Marine Assurance 
Go. 3 Searle, 114) to plaintiflF upon the schooner Onward for a 
period of twelve calendar montlis from 14th January, 1857, to 14th 
January. 1858. It was held that the plaintiff' could not recover on 
the policy, as the risk ceased at midnight on 13th January, 1858. 
Watermeyer, J., said : " The Roman-Dutch law knows two modes of 
computation — the natural and the civil. In the natural, de momenta 
in mom,entum coniputatur (computation is made from moment to 
moment), and in this fractions of a day are recognised. In the 
civil, ultiinus dies inceptus pro completo hahetur (the last day is 
held to be completed at its commencement) fractions of a day are 
not admitted, and the term expires at the first moment of the com- 
mencement of the last day. Voet (44, 3, 1) adduces some instances 
of the application of the 'natural computation,' in the prescription 
of actions not brought within the time limited by law, in favour of 
the maintenance of a subsisting right in danger of being lost; in 
the computation of majority where the benefit of restitution on the 
ground of minority is claimed ; and in the time allowed for the fulfil- 
ment of a condition within a certain day. . . . Voet proceeds to in- 
stance the computatio civilis ; and adduces the acquisition of property 
by usucapio ; the attainment of the age of puberty, which gives the 
right of making a will. ... It is clear, looking at the policy before 
us only, we must give the contract the civil interpretation. The 
year from 14th January to 14th January in law ceased at the first 
in.stant after midnight on 13th January, 1858, and therefore the 
plaintiff has no claim on the company under the policy." 



COMPUTATION 124 OONOURSUS 

Computation of time, see Time; Computatio civilis et 

NATURALIS. 

"Concerned in," see remarks of Laurence, J.P., in Cairncross. 
and Another v. Fagan and Another (24 S.C. at p. 126). 

Concessionary, a person to whom some right in the nature of 
a concession has been granted. See the Cape Railways Extension 
Act (28 of 1895), see. 1. 

Conclusie (D.), a technical term in Roman-Dutch practice to 
denote a form of pleading which was filed of record. As soon as 
the case had been placed upon the roll tlie conclusie van eisch 
(conclusion of the claim) was filed, which set out the facts and 
claim with precision and in clear language. There were also other 
conclusies, e.g. Conclusie van exceptie (conclusion of exceptions), 
see Van der Linden'.s Institutes, 3, 1, 2, 16; Conclusie tot absolutie 
van de iiistantie (conclusion for absolution from the instance), 
ihid. 3, 1, 2, 15 ; Conclu.-iie van antivoord (conclusion of plea), 
ibid. 3, 1, 2, 16. 

Conclusive evidence. Ti'lie provision of sec. 51 of the Com- 
panies Act, 1862 (E.), that the declaration of the chairman in the 
case of a special or extraordinary resolution, that the resolution ))as 
been carried "shall be deemed conclusive evidence of the fact, with- 
out proof of the number oj- proportion of the votes recorded in 
favour of or against the same," precludes the court from inquiring 
into the question whether the requisite pi-oportion of votes was in 
fact given (Arnot v. United African Land Co., 8 Manson, 179). 
The words quoted above as being portion of sec. 51 of the Com- 
panies Act, 1862 (E.), also appear in the Cape Companies Act (sec. 110 
of Act 25, 1892); in the Transvaal Companies Act, 1909, sec. 67 (3); 
and in the Rhodesian Companies Ordinance (2 of 1895, sec. 62). 

Conclusive proof "means evidence upon the production of 
which, or a fact upon the proof of which, the judge is bound by 
law to i-egard some fact as proved, and to exclude evidence intended 
to disprove it " (Stephen's Digest of the Criminal La%v, 5th ed. p. 2). 

Concurrent creditors, those creditors who rank concurrently 
or pro rata in the distribution of an estate after the preferent 
claims have been provided for or paid. 

Concursus creditorum, gathering of creditors. " As to what 
should be the locus concursus, it was generally admitted that it 
should be the domicile of the insolvent. The assignment under the 
law of his domicile would operate as an assignment of his movable 
property wherever situate, subject, of course, to any rights which 
preferent creditors attaching any property before the date of the 
assignment may have acquired by the law of the country in which 



CONOURSUS 125 OONDIOTIO 

such property is situate " {per De Villiers, C.J., in Howse, Sons 
& Go's. Trustee v. Trustees of Howse, Sons & Co., 3 S.C. 20). 

Ooncussie (D.), concussion ; extortion. See CoNCUSSio. 

Concussio, concussion ; extortion. " Concussion or extortion " is 
tl^e extorting of a contribution or something else in an improper way 
by officials and officers of Government from the common people, above 
that which they owe " (Van Leeuwen's Gomm. Kotze's trans, vol. 2, 
p. 262). This crime, however, includes not only extortion by officials, 
but also the obtaining of money or other things by private persons by 
means of threats {State v Jacob and Jacob, 6 Off. Rep., referred to in 
Van Hoytema and Raphaely's Digest, col. 147 ; Brough v. Rex, 26 
N.L.R. 81). See also Voet's Gomm. 47, 13, 1 ; and Kersteman's Woor- 
devboek, vol. 2, p. 130; also Extortion. 

Oondictio causa data causa non secuta, an action which arises 
in respect of an innominate contract, where one person gives or does 
something with a view to receiving an equivalent in substance or deed, 
which the other party fails to give. 

Oondictio certi, the lex Silia of the Roman law introduced a 
new kind of action, termed condictio, for the enforcement of obli- 
gations binding a person to give the absolute ownership — dare — of 
a certain sum of money — pecunia certa. In course of time contracts 
dare or facere were enforced by a condictio, and this condictio was 
certi or incerti according as a definite or indefinite thing was 
demanded. 

Oondictio ex lege. If, says Paul {Dig. 13, 2) an obligation has 
been established by some new enactment, and it has not been pro- 
vided in tiie same enactment by what form of action we are to 
sue, the action must be "on the law" {ex lege). Tlie condictio ex 
lege, in other words, was the action allowed by Roman law when 
a nova lex provided a remedy, but was silent as to the mode of 
enforcing it. By nova lex some, among them Voet, understand a 
lex passed subsequent to the XII Tables, but Savigny takes it to 
mean one passed after the introduction of the formulary system. 

Voet, without saying anything as to the application of the con- 
dictio in the law of Holland, states the following cases in which it 
was given in the Roman law, viz., to the donee in respect of a gift 
which one had agreed to make ; to those to whom less was given by 
will than sufficed for their legitimate portion if they wished to claim 
suppletion ; to the master whose slave was accused of adultery and 
at the instance of his accuser was put on trial, for the price of the 
slave if he should die or be rendered less valuable during the trial 
and be acquitted; to the fisc in proceeding by virtue of its privilege 
against the debtors of its debtor in order to compel them to pay 
their overdue debts before a fixed period ; to States proceeding by 
a singular right {i.e. a right acquired otherwise than by succession) 



•CONDICTIO 126 OONDIOTIO 

■severally against each of those who possess pro rata property belong- 
ing to the debtors of the State; to more preferent mortgage cvedi- 
-tors against less preferent creditors to whom an heir who has adiated 
with benefit of inventory, has paid the amount realised from the 
■sale of goods belonging to the deceased's estate ; to defendants who 
have sustained damage from the plaintiff making an excessive de- 
imand ; and to one who wishes to recover what he has lost in gaming 
.(Voet's Gomm., 13, 2, 2). 

Gondictio ex mutuo, a personal action on a loan ; the action 
which lies against a person for the recovery of money which has been 
lent to him. The action is " personal, stricti juris and available to 
the lender and his heirs, provided the lender was the owner of the 
.money or paid money belonging to another in his own name with 
ithe consent of the owner ; in which latter case this action is not 
available to the owner of the money unless it has been ceded to 
ihim by the person who, not being the owner, paid (the money) in 
his own name; or unless provision was made in the document of 
debt that the debtor should restore the money lent to the holder 
of the writing, since in that case not only the owner of the money, 
but also any other holder of the writing without special cession will 
have a right of action against the debtor, unless it is proved that he 
holds the document in bad faith" (Voet's Gomm. 12, 1, 15). 

Oondictio fartiva (sometimes written condictio ex causa furtiva\ 
£k personal action on the ground of theft ; a personal action of Roman 
law which lay in favour of tlie owner against the thief or his heirs for 
the recovery of stolen property. In order that the action might lie, 
it was necessary that the person seeking to recover the property 
should have been owner both at the time when the theft was coia- 
mitted and the time when the action was brought. It was not 
available to a borrower (coTnmodatarius), a depositary and other 
like persons who had not the ownership at either time. A pledgee 
from whom the thing pledged had been stolen was allowed to bring 
a condictio incerti furtiva, and according to Groenewegen the 
remedy was extended by custom to all who had an interest in the 
recovery of the property (Voet's GoniTn. 13; 1, 2 and 3). See Actio 

FURTI. 

Condictio incerti, see Condictio certi. 

Oondictio indebiti, a personal action for the recovery of money 
paid which is not owing. When a sum of money has been paid 
in settlement of a debt not in fact due, it may be recovered by 
the condictio indebiti. The payment must have been made in 
ignorance of fact, and not in ignorance of law. Money paid under 
a. mistake of lavs' cannot be recovered (Rooth v. The State, 2 Sth. 
Af r. Rep. 259 ; 5 C.L.J. 304 ; Port Elizabeth Divisional Gouncil v. 
Uitenhage Divisional Gouncil, Buch. 1868, p. 223). 

"It is not every mistake of fact that will entitle a plaintiff to 



CONDICTIO 127 OONDICTIO 

relief in the action known as condietio indebiti. The plaintiff's 
ignorance should not be, as stated by Voet, supina aut affectata 
(12, 6, 7), the meaning of which expression he explains in another 
passage (22, 6, 7), to be that tlie ignorance should not be of a fact 
concerning the plaintiff's own affairs or of a fact which, although 
concerning the affairs of others, is known to everybody except a few 
solitary individuals" {per De Villiers, C.J., in Divisional Council 
of Aliwal North v. De Wet, 7 S.C. 234). " It must be Justus error, 
that is to say, a mistake which is reasonable and justifiable " (per 
De Villiers, C).J., in Logan v. Beit, 7 S.C. 216). 

Condietio ob turpem vel injustam causam, a personal action 
for the recovery of whatever one has given for a dishonourable or 
unjust cause. This action lies where there is mala fides on the part 
of the recipient. When there is dishonourable conduct on both sides 
the maxim in pari delicto potior est conditio possidentis applies, 
while mala fides on the part of the giver alone disentitles him to 
relief. 

Condietio sine causa, a personal action for recovery of what- 
ever one has paid or given to another without lawful cause. For 
instance, when something is given in contemplation of marriage, and 
the marriage does not take place (Grotius' Introd. 3, 30, 15), or when 
rent has been paid in advance and the premises are subsequently 
destroyed by fire (Wiley & Co. v. Mundinch & Co., 19 S.C. 450; 
aind Holtshausen v. Minnaar, 23 S.A.L.J. 255). 

Condietio triticaria, a personal action in tlie Roman law by 
which a claim was made for a corporeal thing, movable or immovable, 
or an incorporeal thing, belonging to any debtor, in whatever way it 
was due, whether ex contractu or ex delicto (Voet's Comm. 13, 3, 1). 

Several conjectures have been made as to tlie origin of the term 
triticaria, of which an interesting one is cited by Voet (ibid.). Ac- 
cording to Sandars (Institutes of Justinian, 10th ed. p. 427) the term 
derived its origin from triticum (wheat), one of the things to which 
the old condietio certi was extended by the lex Galpurnia of the 
Roman law, and when the principal obligation which was sought to 
be enforced was something else than the giving of a fixed sum of 
money, the condietio, whether certi or incerti, was called triticaria. 

It was the nature of the principal obligation, it is to be observed, 
that decided whether the condietio triticaria was applicable to its 
enforcement or not, for although the thing principally due had to 
be something else than coined money, yet, as every condemnatio 
under the formulary system of the Roman law was in a pecuniary 
shape, the defendant was condemned in the money value of the wheat 
or other thing due. Besides that the thing principally due liad to 
be something else than coined money, it was also necessary in order 
that the condietio might lie that the principal action which lay for 
the recovery of the thing itself should be personal like the condietio ; 
for if the principal action were in revfi the value would have to 



OONDIOTIO 128 CONDITION 

be claimed, not by the condictio triticaria, but by the action in rem 
itself. For this reason no one could regularly sue by this action 
for the recovery of his own property, save in those cases in which 
a condiction for one's property was permitted, as in the case of 
things which had been stolen or taken possession of by force, for 
the value of which the owners could properly sue by this action, 
just as if they had ceased to exist (Voet's Gomm., ibid.). 

Condiction, a Roman law term meaning "a personal action in 
which the contention is that some property should be conveyed to 
us or some service performed for us " (Justinian's Institutes, 4, 6, 15). 

Conditio van triumphe (D.). So early as the year 1659 it was 
enacted in the Netherlands (apart from the common law on the 
subject) that advocates and attorneys were prohibited from under- 
taking the conduct of an action subject to the stipulation that they 
were not to be paid any reward for their services except in the 
event of their being successful in such action. This stipulation was 
called conditie van triumphe. See Champerty. 

Conditio praepositionis servanda est, the condition of the 
appointment must be observed. A maxim of Roman law which 
applies to the English as well as the Roman-Dutch law of agency. 
Where the authority is express or special the agent is bound to act 
within it ; and where it is of a more general nature still the agent 
cannot bind the principal beyond the manifest scope of the object 
to be accomplished by it (Digest, 17, 1, 46 ; see also Story on Agency, 
sees. 70 et seq.). Thus as regards special agents an authority to sell 
does not generally empower the agent to obtain payment of the price 
(Tank & Co. v. Jacobs, 1 S.C. 289); but the latter right may be 
implied from the circumstances (Field & Go. v. Marks & Co., 12 
E.D.C. 13). So an authority to purchase will not empower the 
agent to pay the price, in the absence of an express agreement or a 
trade custom to that effect (Niebuhr and Another v. Joel, 5 H.C.G. 335; 
see also Noyce v. Gluyas, 1 Off. Rep. 197 ; Standard Bank v. Union 
Boating Co., 7 S.C. 267 ; Harris v. Ruthven, 2 Menz. 191 ; Bowhay v. 
Ward, [1903] T.S. 772). In the same way a general agent for a 
particular business is restricted in his dealings to that business, and 
cannot bind his principal by anything done beyond the scope of it. 
See Verba generalia bestringuntur ad habilitatem rei vel 

PERSONAM. 

Conditio si sine liberis decesserit, the condition if he shall 
have died without ctiildren. See Si SINE liberis DECESSERIT. 

Condition. " A condition is a term in a contract or conveyance, 
to the effect that on the occurrence or non -occurrence of an un- 
certain event, act or forbearance, a right shall arise, or cease to 
exist" (Jenks' Digest of English Givil Law, vol. 1, sec. 109). As 
to when conditions prescribed by a statute are not considered as 
being indispensable, see Craies' Statute Law, p. 238. 



CONDITIONAL 129 CONDONATION 

Conditional acceptance. See Qualified Acceptance. 

Conditional delivery of a bill of exchange is where, as between 
immediate parties, and as regards a remote party other tlnin a holder 
in due couise, the delivery has been made subject to a condition or 
for a special purpose only, and not for the purpose of transferring 
the property in the bill. See Bills of Exchange Act, 1882 (Eug.), 
sec. 21 (2) ; Act 19 of 1903 (CO.), sec. 19 (2) ; Law 8 of 1887 (N.), 
sec. 20 (2); Proclamation 11 of 1902 (T.), sec. 19 (2); Ordinance 28 
of 1902 (O.R.C.), sec. 19 (2). 

Conditional reprieve. See Reprieve. 

Condominium, joint-ownership; ownership enjoyed in common 
with others. 

Condonation. "The word condonatio is, so far as I am aware, 
foreign to Roman-Dutch nomenclature ; but condonation, being a term 
apt and convenient to express a defence recognised by both systems, 
has been borrowed in South African practice from the English law. 
As interpreted by English courts, however, the word has acquired a 
legal meaning which differs somewhat from its literary and ordinary 
one. It means something more than mere pardon or forgiveness, 
which might conceivably be accorded by the injured spouse as a 
matter of Christian duty without any idea of restoritig the status quo 
ante. It has been defined as 'a blotting out of the offence imputed, so as 
to restore the offending party to the position which he or she occupied 
before the offence was committed.' And there is high authority for 
the view that this blotting out can only be satisfactorily evidenced 
by subsequent cohabitation (see per Lord Chelmsford in Keats v. 
Keats and Montezuma (28 L.J. Mat. Cas. p. 61); Bishop on Marriage, 
Divorce and Separation, vol. 2, sec. 271 ; and Bernstein v. Bernstein 
([1893] P.D. p. 313)). Turning to our law, we find that the expression 
used to denote substantially the same idea, which in English decisions 
is conveyed by the term condonation, is reconciliatio. That is the 
word used by Voet (24, 2, 5), Sande (Decis. Fris. 2, 6, 2), Van Leeuwen 
{Genu. For. 1, 1, 5, 7) and by other writers; and it is the test approved 
of by De Villiers, C.J., in Niemand v. Nieraand. To my mind we 
shall be correctly laying down the Roman-Dutch law if we hold that 
forgiveness by an injured spouse of the infidelity of his or her partner, 
if it is to operate as a bar to subsequent proceedings, founded on the 
offence, must contemplate the restoration of the offending spouse to 
_his or her previous position, and must result in a reconciliation 
between the two. The injured spouse must have knowledge of the 
offence, must fully forgive it, and must be prepared to take back 
the guilty partner; the latter must be willing to accept forgiveness 
and to take advantage of the pardon, and a reconciliation must ensue. 
If sexual cohabitation is resumed after the injured spouse has full 
knowledge of the offence, then forgiveness and reconciliation will of 
course be implied. Indeed, there could be no better proof of full 
reconciliation than such resumption, and in the vast majority of casea 

I 



CONDONATION 130 OONFISCATIE 

where a real reconciliation has taken place it will be found to have 
been followed by cohabitation. But it is conceivable that there may 
be instances of forgiveness and reconciliation where, owing to absence, 
disease or some similar cause, the ordinary marital relationship 
between the parties has not been re-establised. Such cases, how- 
ever, must in the nature of things be extremely rare, and the evi- 
dence in support of them will always be most carefully scrutinised" 
{per INNES, C.J., in Bell v. Bell, [1909] T.S. at p. 508). "To 
•establish condonation there must be evidence that the plaintiff agreed 
to take the defendant back as his wife rectam et integrum ; mere 
Christian forgiveness of the offence is not condonation" (per KOTZ^ J., 
in Weatherley v. Weatherley, 1 K. 66). See Wife v. Husband (27 
N.L.R. 349) ; see also Consensus apertus. 

Confession, the act of admitting or acknowledging a crime, 
debt, judgment or fault. 'Any confession of the commission of any 
crime or offence, wiiich shall be proved by competent evidence to 
have been made by any person accused of such crime or offence, 
whether before or after his apprehension, whether on a judicial 
examination or after commitment, and whether reduced into writing 
or not, shall in every case be admissible evidence against such 
person ; provided always that such confession shall be proved to 
have been freely and voluntarily made by such person in his sound 
and sober senses and without having been unduly influenced thereby " 
(Ordinance 72 of 1830 (C.C), sec. 28). The same section goes on to 
provide, further, that when tiie confession is made in the course of 
a judicial examination before a magistrate the prisoner must have 
been previouslj' cautioned ; a further reservation is made in respect 
of certain confessions made on oath, and depositions made under 
the Insolvency Ordinance. A confession made by one person is not 
admissible as evidence against any other person (Ordinance 72 of 
1830 (C.C), sec. 31). See Ordinance 11 of 1902 (O.R.C.), sec. 24. 

Confinium agrorum, quorum fines confasi sunt, regulation of 
land boundaries wliich are in dispute — a quasi-contractual obligation. 

Confirmed, in the phrase " concessions confirmed by the late 
Chief Court," see Sheldon v. Registrar of Deeds ([1907] T.S. 97). 

Confirmed diagram. In the Transvaal Precious and Base Metals 
Act (35 of 1908), sec. 3, confirmed diagram is defined as " a diagram 
confirmed by the Surveyor-General after notice of confirmation has 
been published in manner prescribed by regulation." A .similar defi- 
nition is given by the Transvaal Registration of Deeds and Titles Act 
(25 of 1909), sec. 2. See Diagram. 

Confiscatie van goederen (D.), confiscation of goods. Abolished 
by placaat in the Netherlands and at the Cape of Good Hope. See 
Kersteman's Woordenhoek, vol. 1, p. 78. See also Confiscation. 



CONFISCATION 131 CONNIVANCE 

Confiscation, the forfeiting of some property or thing by lawful 
authority. All laws and usages authorising the confiscation of the 
property of criminals (including those convicted of the crimen per- 
duellionis or kesce inajestatis) were abolished in the Cape Colony by 
Placaat of the States-General of the United Netherlands, dated 10th 
August, 1778, published at the Castle of Good Hope on the 22nd April, 
1779 (Van Leeuwen's Comyn. Kotze's trans, vol. 2, p. 564, note). 

Confusie (D.), confusion. See Confusio. 

Confasio, confusion. Confusion or commixture takes place when 
materials belonging to different owners become mixed. If mixed in- 
separably — for instance, when silver belonging to two different persons 
is melted together — the united mass becomes common property, each 
partj' being entitled to a share proportionate to his original share 
in the material. If the materials are separable, as when one man's 
wheat is mixed with another man's barley, the ownership is not 
altered, unless the mixture takes place with the consent of the owners. 
Confusio is used with reference to the mixture of liquids, comvvtxtio 
witli reference to that of solids. The equivalent in Dutch is Confusie. 
See Grotius' Introd. 2, 8, 8; Maasdorp's Institutes, vol. 2, p. 45; 
Kersteman's Woardenboek, vol. 2, p. 188 ; Nathan's Common Law, 
sec. 547. 

Confusion. (1) The mixing together of materials belonging to 
two persons. See Confusio. 

(2) Or merger, is the union in one person of the characters of 
debtor and creditor (Holland's Jurisprudence, 10th ed. p. 308). 

Connivance "is an act of the mind, and implies knowledge and 
acquiescence, and as a legal doctrine it has its origin and its limits in 
the principle volenti non jit injuria" (Gwynne Hall on Divorce, 
p. 256). 

" Connivance exists where the plaintiff, by his acts and conduct, 
has either knowingly brought about, or conduced to the adultery of 
his wife; or where he has so neglected and exposed her to temptation, 
as under the circumstances of the case he ought to have foreseen 
would, if the opportunity offered, terminate in her fall. Here, then, 
if the wife commits adultery, he will be taken to have acquiesced in 
it, and, upon the principle volenti non jit injuria, he is the author 
of his own dishonour. So, where the plaintiff, having become aware 
of an improper intimacy between his wife and the co-respondent, re- 
mains passive and permits the intimacy to continue, taking no 
steps to protect his wife and to avert the coming danger, he will 
be held to have connived at her subsequent adultery "{per KoTZE, C.J., 
in Weatherley v. Weatherley, 1 K. 66). 

" Here we have to deal with an expression taken over from the 
English law. When one married person is willing that the other 
should be unfaithful, then he cannot complain of any act of infidelity 
to which he mentally assented ; he is said under such circumstances to 

i2 



CONNIVANCE 132 CONSENSUAL 

have connived at the misconduct of the other. And connivance may 
be evidenced in various ways. A married person who actually pro-- 
cures, assists or gives express consent to the misconduct of his partner 
connives at such misconduct. And one who, knowing that misconduct 
is taking place, refrains from interfering because satisfied and willing 
for his own purposes tliat it should continue, is also guilty of con- 
nivance. But the principle may also apply in cases less gross than 
either of these. It has been held by the House of Lords (Gipps v. 
Gipps and Hume, 33 L.J. Mat. Cas. 161) that where a spouse wilfully 
abstains from any attempt to prevent misconduct, which he must 
know is likely to occur, then he also is held to have connived at such 
misconduct when it actually takes place. And that, of course, will 
be so where the only possible inference under the circumstances is that 
he was willing and satisfied for his own purposes that misconduct 
should ensue. But mere knowledge, mere negligence, or mere inaction 
is not sufBcient ; all these may be present, and yet the mind of the in- 
jured spouse not have been willing that a matrimonial offence should be 
comniitted. It is this willingness, this mental assent, with full know- 
ledge of the circumstances, which lies at the root of the doctrine of 
co)inivance. The principle has been chiefly elaborated by the English 
courts ; but it was recognised in Roman-Dutch law al.so. Thus Voet 
(24, 2, 5) remarks that a husband cannot condemn morals which he 
himself has corrupted, or the corruption of which he has countenanced. 
And in support of this view he refers to Brunneman. Now that 
remark really contains the kernel of the doctrine of connivmice as 
enunciated by English decisions. For it is the acquiescence of the 
complaining spouse which is held to debar him from relief. Volenti 
non fit injuria: and a spouse who has been willing that misconduct 
should take place cannot be heard to complain of it " {per Innes, C.J., 
in Bell v. Bell, [1909] T.S. at p. 510). See Consensus apeetus. 

Oonnossement (D.) [also spelt cognoscement or cognosse'inent],. 
bill of lading. 

Consan^initeit (D.), relationship by blood or descent from a 
common ancestor; consanguinity. (See Consanguinity. 

ConsangTiinity, blood relationship. " Consanguinity consists 
in relationship by blood or by descent from a common ancestor, 
whether male or female" (Maasdorp's Institutes, vol. 1, p. 7). 

Consensual obligation " is that which takes place by agree- 
ment between two persons, in good faith and with sincere inten- 
tion, that the one shall thereby effectually bind the other, without 
any writing or delivery of the thing being necessary for the purpose. 
Of this kind are purchase, hire, partnership, mandate, and matri- 
mony or marriage " (Van Leeuwen's Comm. Kotz^'s trans, vol. 2,. 
p. 129). 



CONSENUS 133 CONSIDERATION 

Consensus ad idem, the meeting of two minds in one and the 
same intention. "The first and most essential element of an agree- 
ment is the consent of the parties" (Pollock on Contracts, Gth ed. p. 3). 
" If it appears that each party mistook the meaning of tlie othei-, and 
they intended different things by the same expression, then the basis 
of agreement fails and the contract is avoided " (Leake's Digest of the 
La%v of Contracts, p. 331). In the case of Logan v. Beit (7 S.C. 212)> 
De Villiers, C.J., said : " Tlie result was that there was no consen- 
sus ad idem; the plaintiff understood one tiling and the defendant 
a,nother, and consequently there was no completed contract." 

Consensus apertus, manifest consent. The right to a divorce 
on the ground of adulterj' is taken awaj? by a reconciliation of the 
parties. According to Voet (GomTii. 24, 2, 5) such a reconciliation 
may be evidenced by tlie manifest consent {consevsus apertus) of 
the innocent spouse or by cohabitation after knowledge of the 
adultery. In the case oi , Niemand v. Niemand (1.5 S.C. 217; 
8 C.T.R. 254), De Villiers, C.J., said : " It is somewhat difficult to 
understand Voet's remark that .such reconciliation may be evidenced 
by the ' manifest consent ' of the innocent spouse. ' C)onsent,' in the 
proper sense of the term, can only be given before the act, whereas 
'reconciliation' can only take place after the offence has been com- 
mitted. Po.ssibly Voet may have meant by the expression consensus 
apertus such a course of conduct after the commission of the offence 
as would justify the inference that the innocent spouse was a consent- 
ing party." See also Wife v. Husband (27 N.L.R. at pp. 353 et seq.) 
and Connivance. 

Consent, to agree ; to be in accord with. As to consent of lessor 
to subletting or cession of lease, see Nieuxooudt v. Slavin and Jewell 
(13 S.C. at p. 63). See Smit v. Smit's Executrix (14 S.C. at p. 147). 

As to consent of a lessor to sublet where a lease prohibits sub- 
letting except with the consent of the lessor tir.st had and obtained, 
see Bonamour v. Dunne (25 N.L.R. 138). 

See Consensus apertus. 

Consideration, a term peculiar to the English common law, 
according to which every simple or parol contract, whether written 
or verbal, requires a consideration to support it. In other words, 
according to the law of England, differing in this re,8pect from the 
law of Scotland and continental Europe, and from the Roman and 
Roman-Dutch law, a promise, however seriously and deliberately 
made, cannot be enforced unless it is founded on some consideration 
{per Skinner, C.B., in Rann v Hughes, 7 Term Rep. 350, n.) A con- 
sideration is defined as " a detriment voluntarily incurred by the pro- 
misee, or a benefit conferred on the promisor, at the instance of the 
promisee, in exchange for the promise" (Jenks' Doctrine of Considera- 
tion, p. 26). " Consideration is that which is actually given and 
accepted in return for the promise. Ulterior motives, purposes or 
expectations may be present, but in a legal point of view they are 



CONSIDERATION 134 CONSIDERATION 

indifferent. The party seeking to enforce a promise has to show 
the actual legal consideration for it, and he need not show any- 
thing beyond " (Pollock, Contracts, 6th ed. p. 165). 

Jenks in his essay on the Doctrine of Consideration attempts 
to show that the requirement of a quid pro quo, wliich had become 
connected with the proof by suit in the action of debt, was carried 
over into the proof by suit in the action of assumpsit, and that in 
this way what had formerly been a mere rule of procedure became 
embodied as a rule or principle in the incipient law of contract. 
About the middle of the sixteenth century the practical amalgama- 
tion of these two actions tended to bring the doctrine of considera- 
tion to its present condition, especially by establishing the rule 
that detriment to the plaintiff was equally .sufficient with benefit 
to the defendant. It is said by Mr. Justice Holmes that the term 
consideration was first used in the reign of Queen Elizabeth, but, 
as Jenks has pointed out, the term occurs in the second dialogue 
to be found in the Doctor and Student, published anno 1530. 
On a reference to this dialogue it will be seen that there is a 
distinction drawn between " consideration of worldly profit " and 
" cause." This should serve as a warning to the English lawj^er, 
unacquainted with the true principles of the Roman and Roman- 
Dutch law, not to confound the term causa, cause or om^zaalc with 
the notion of consideration. The dialogue also negatives the theory 
that the idea of consideration found its way into the common law 
of England through the canon law. The doctrine of the doctor or 
canonist in the dialogue is plainly that of the Roman law, and con- 
siders the circumstances of the contract, and not the bargain itself, 
as the important point (Jenks, pp. 131 et seq.). 

"The consideration must move from the plaintiff, but it must also 
move from him in contemplation of the promise, otherwise the objec- 
tions to past consideration vanish. Mr. Justice Patteson's judgment 
in Thomas v. Thonia.s (2 Q.B. 859) is valuable as helping to explode 
the unscholarly and misleading doctrine, which confuses the causa of 
the Roman law and the cause of French law with the English con- 
sideration, which is, obviously, of an entirely different character 
(Jenks, p. 28 ; see Causa). The amount or adequacy of the con- 
sideration is immaterial, except in so far as it may be an element in a 
case of fraud. Thus a single penny or even a peppercorn will be a 
sufficient consideration in support of a legally binding promise.'" 

Considerations are of various kinds: (1) Executed and Executory; 
an executed consideration is one already performed before the making 
of the promise, arid unless this was at the request of the promissor it 
will not give rise to an action. An executory consideration is some- 
thing to be done or rendered after the promise. (2) Concurrent, as 
where mutual promises are made ; (3) Continuing, that is, executed in 
part only. The last three are sufficient to support a contract, which 
is not void for other reasons (Story on Contracts, p. 71). It is only 
a valuable consideration which will support an action brought to 
enforce a promise. Such a consideration is also sometimes spoken of 
as a good consideration, as opposed to considerations of nature or 



CONSIDERATION 135 CONSOLIDATED 

blood. It is so used in Twyne's Case (1 Sra. L.C. 9). Others, again, 
use the teim good consideration as opposed to a valuable considera- 
tion. Thus, Blackstone says : " A good consideration is such as that 
of blood or of natural love and affection, and is founded on motives of 
generosity, prudence and natural affection. A valuable consideration 
is such as money, marriage or the like " (2 Comm. 297). Considera- 
tions of blood or natural affection and purely moral considerations, 
however seriously and deliberately made, and however binding they 
may be in foro conscientiae, do not, by the law of England, give a 
binding legal force to a promise. 

For the history of the doctrine of consideration in English law, 
reference may be had to Holmes' Common Law ; Pollock's Contracts, 
note E ; Jenks' Doctrine of Consideration. 

Consignatie (D.), consignation (q.v.). 

Consignation, " the custody of money or something else, i.e. 
movable and of value, in the hands of the judge or public person 
authorised tliereto, the expression being derived from consignare, to 
seal. Consignation takes place after refusal of a previously made 
oblation and offer of what we owe, and has this effect, that the debtor 
is tliereby completely absolved, and consequent!}'' (there is) a stopping 
of the course of interest, a discharge of hypothecs, and release of 
sureties" (Van Leeuwen's Comm. Kotze's trans, vol. 2, p. 81, Decker's 
note). Consignatie or consignation is classified by Grotius under the 
contract of depositum. See also Schorer's Notes, n. 331. 

Consignee, the person to whom goods ai-e transmitted by a per- 
son, called the con.signor, for sale or delivery. 

Consignor, the person who transmits goods to another, called 
the consignee, for sale or delivery. 

Consilii non fraudulenti nulla obligatio est, there is no liabi- 
lity, attaching to a person giving advice unless he acts fraudulently 
{Digest, 50, 17, 47). This legal maxim was relied upon by De 
ViLLiERS, C).J., in the case of Meyersohn v. Schmidt (1 A.C. 375). 
In that case A, a sick man, came to B's hotel, and B telegraphed 
to C, who was understood to be a relative of A, asking what he 
should do with A. C replied : " Keep him there ; do your best for 
him ; his uncle is on the road." B thereupon attended A, who sub- 
sequently died at that hotel, and B sought to recover his disburse- 
ments on A's behalf from C. The court, however, held that C's 
telegram contained mere advice, and not a mandate, and that C 
was therefore not liable. 

Consistory, an ecclesiastical court. In the Dutch Reformed 
Church it is the governing body of the local church. 

Consolidated revenue accoxint. In the Audit Act 14 of 1906 
(CO.), sec. 3 (c), the consolidated revenue account is defined to mean 



CONSOLIDATED 136 CONSTITUTION 

■" an account of tlie cash income and the current expenditure forming 
part of the said Exchequer Account." See Exchequer Account. 

Consortium omnis vitae, a partnership in the whole of life; from 
the definition of marriage given oy Modestinus {Digest, 23, 2, 1), viz., 
conjunctio maris et feminae, consortium omnis vitae. divini et 
humani juris communicatio (the union of a man and woman as 
partners for their entire life and as sharers in divine and human 
riglits). 

Conspiracy. " When two or more persons agree to commit any 
crime they are guilty of the misdemeanour called conspiracy, whether 
the crime is committed or not" (Stephen's Digest of the Criminal 
Law, art. 48). " Those persons who abet in [the commission of] a 
crime to such an extent that but for their co-operation it could not 
have been committed, are called ' accomplices.' When the complicity 
is founded in a previous agreement and engageuient to commit certain 
crimes in common, it is termed a 'complot' or 'conspiracy'" (Vau 
der Linden's Itistitutes, Juta's trans. 4th ed. p. 182 ; see also p. 183). 
A bare conspiracy to commit a crime is not an indictable offence, see 
Queen v. Kaplan (10 S.C. 2.59), where the point is fully discussed. 
See also Queen v. February and Mei (10 S.C. 382); Queen v. Solomon 
and Others (1.5 S.C. 107). 

By the Transvaal Criminal Law Amendment Act (16 of 1908), 
sec. 7, however, it is provided that " Any person wlio (1) sliall conspire 
with any other person to aid or procure the commission of any crime 
or offence; or (2) shall incite, instigate, command, counsel or procure 
any other person to commit any crime or offence; shall be guilty of 
an offence and liable on conviction to the punishment prescribed by 
law for an attempt to commit such crime or offence." 

Constable, a policeman. See Police. The term constable is to be 
found in Ordinance 2 of 1840 (C.C), sec. 6, wliere it is enacted that it 
shall be lawful for " the said Judge and Superintendent for the time 
being, subject to the approval of the Governor of this Colony for the 
time being, to nominate and appoint from time to time a sufficient 
number of lit and able men, who shall be sworn in by the said Judge 
and Superintendent to act as constables for preserving the peace, pre- 
venting the counnission of crimes, and apprehending offenders when 
crimes have been committed." The word constable has since been 
generally used in South Africa. 

Constablewick, an expression apparently tirst used in a South 
African Statute in Ordinance 2 of 1840 (C.C), sec. 6 ; see also Ordi- 
nance 25 of 1847 (C.C), sec. 4. The word constablewick is now rarely 
used ; it signifies the place or assigned district within which a constable 
is authorised to act as such. 

Constitution. " A constitution properly so called is a frame of 
political society, organised through and by law — that is to say, one in 



CONSTITUTION 137 CONSTRUCTION 

wliicli law has established perniatient institutions with recognised 
functions and definite rights " (Bryce's History and Juris-p'nMence, 
vol. 1, p. 159 ; see also Dicey 's Law of the Constitution, 6th ed. pp. 22 
et seq.). 

Constitutional law. " Constitutional law, as the term is used 
in England, appears to include all rules which directly or indirectly 
afi'ect the di.stribution or the exercise of the sovereign power in the 
State. Hence it includes (among other things) all rules wliich define 
the members of the sovereign power, all rules which regulate the rela- 
tion of such members to each other, or which determine the mode in 
which the sovereign power, or the members thereof, exercise their 
Authority. Its rules prescribe the order of succession to the throne, 
regulate the prerogatives of the chief magistrate, determine the form 
of the legislature and its mode of election. These rules also deal 
witii ministers, witli their responsibility, with their spheres of action, 
define the territory over which the sovereignty of the State extends, 
and settle who are to be deemed subjects or citizens" (Dicey 's Luiv of 
the Constitution, 6th ed. p. 22). 

Constitutum possessoriiun, possessory compact. The meaning 
of the doctrine of constitutum possessorium i.s "that a person who 
jilready has the lawful possession of a thing transfers the possession, 
or, in other word.s, effects delivery, merely by virtue of his own inten- 
tion, expressed or implied, to hold the thing in future as agent for 
anotlier" (per De Villiers, C.J., in Mills cl; Sons v. Benjamin's 
Trustees, Buch. 1876, p. 115). " The constitutuyn possessorium is 
thus a mode of acquisition by substitution through the declaration 
of tlie judicial possessor that for the future he will hold in the 
name of a third person that which lie has hitherto held in his 
own name" (per Shippard, J., in Stewart's Executor v. De Morgan, 
2 E.D.C. 220). 

" Tliat doctrine applies where a peison who is already a legal pos- 
sessor undertakes to become the posse,ssor for some one else " (per De 
ViLLlERS, C.J., in Payn v. Yates, 9 S.C. 497). "No principle is more 
clearly established than that a constitutu7n is not to be presumed 
unless its existence necessarily follows from tiie other circumstances 
of the case " (per De Villiers, C.J., in Orson v. Reynolds, 2 A.C. 105). 
"I have examined the cases and authorities (quoted during the argu- 
ment, and the conclusion to which they lead me is that by our law 
the doctrine of constitutum possessorium can' have no place in a case 
of pledge where the pledged articles are to remain with the pledgor to 
be used by him for his own benefit. And for this simple reason — tliat 
sucl) a doctrine would in practice destroy the very wholesome rule of 
tlie Roman-Dutch law, that for a pledge to be effectual against third 
parties there must be retention of possession by the pledgee" (per 
Innes, C.J., in Lighter & Go. v. Edwards, [1907] T.S. at p. 445). 

Construction. (1) Of Contracts. — "No rule of law is more 
firmly established than this, that where tlie persons have entered 
into a formal written agreement, their intention must be deduced 



CONSTRUCTION 138 CONSUMER 

from tlie writing, and from tliat alone. If the language is clear 
and unambiguous, effect must be given to it, and in such a case a 
court of law has no right to speculate w hether the real intention 
of the parties is expressed in the agreement, or to make for them 
a contract which they themselves have not made, but which it is 
believed they had intended to make. Occasionally, no doubt, we 
may feel very strongly that we are not giving effect to the real 
intention of the parties, but that after all is a small evil compared 
to the uncertainty and confusion that would be produced if we once 
allowed ourselves to depart from this well-recognised rule for the 
construction of written instruments " {per SoLOMON, J., in Van der 
Merwe v. Jumpers Beep, Ltd., [1902] T.S. at p. 210). 

(2) Of Wills. — " What the Court has to do is to endeavour to 
arrive at the intention of the testators ; and to arrive at that inten- 
tion not by considering what we think it would liave been a good 
thing if they did mean, or what they ought to have meant, but by 
ascertaining the plain meaning of the words used. If those words 
in a case like the present are capable of more than one construction, 
then of course the Court would lean towards the one most in favour 
of freedom of alienation. But if tlie testator's language admits of 
only one cmistructiou, then we must give effect to it, regardless of 
the consequences "{-per Innes, C.J., in E.r parte van Eeden and 
Others, [1905] T.S. at p. 153). 

(3) Of Statutes. — Broadly speaking, the same rules that apply 
to the construction of wills must be applied to the construction of 
statutes. To this may be added the remarks of Lord Justice Lindley 
in The Duke of Buccleiich (15 P.D. 86): "You are not .so to construe 
the Act of Parliament as to reduce it to rank absurdity. You are 
not to attribute to general language used by the legislature in this 
case, anj^ more than in any other case, a meaning which would 
not carry out its object, but produce consequences which, to the 
ordinary intelligence, are absurd. You must give it sucli a meaning 
as will carry out its objects." See A VERBIS LEGIS NON EST EECE- 
dendum; Judicjs est jus dicere non dare; Quoties in verbis 

NULLA EST AMBIGUITAS, &C. ; BeNEDICTA EST EXPOSITIO QUANDO RES 

redimitur a destructione ; Ut res magis valeat quam pereat; 
In poenalibus causis benignius interpretandum est. 

Consultatien (D.). (1) The Hollandsche Consultatien , commonly 
known as Consultatien, were opinions of eminent jurists given in the 
sixteenth and during the first half of the seventeenth century. They 
"have acquired by usage a foremost place in the legal literature of 
Holland. The opinions were given to private persons upon certain 
facts stated, and were quoted, if not before the higher courts, at least 
before the courts schout and schepenen" (Wessels' History, p. 242). 
They " have played a very important part in the development of the 
Roman-Dutch law " {ibid. p. 243). 

(2) Consultations between a professional man and his client. 

Consumer. The expression consumer is defined in the Cape Addi- 



CONSUMER 139 CONTENT 

tional Taxation Act (36 of 1904) to mean and include " any person 
who is not by law entitled to sell or deal in spirits, and every other 
person wlio uses spirits in the preparation of drugs, medicines, per- 
fumery and explosives, or in any art or manufacture." 

In the Rand Water Board Further Powers Act (22 of 1909), sec. 3 (2), 
consumer means "any person to whom water may be supplied by the 
Board, other than local authorities or mines as defined in the Rand 
Water Board Statutes, 1903 to 1906." 

Contempt of court, disobedience to the orders of a court of 
justice or conduct wilfully disregardful of its dignity or authority. 
Gontempt of court is divided into acts of contempt committed within 
.the court and those committed outside the court. Of the former kind 
are refusal of a person to obey an order addressed to him bj^ the court, 
openly abusing or obstructing the court, refusing to be sworn or to 
answer questions as a witness. Among the latter kind are disobeying 
. a subpoena; acts impeding or obstructing the course of justice, as e.g. 
detaining or corrupting witnesses, enticing them from attending court, 
preventing an officer of the court from performing his official duties, oi: 
attempting to do any of such things ; commenting in the press upon 
matters sub judice, and generally saying or doing anything which 
tends to bring the court or its proceedings into contempt. Contempts 
within the court are then and there summarily dealt with, but where 
they are committed out of the court a distinct charge must be formu- 
lated against the accused. 

See Van ZyVs Judicial Practice, 2nd ed. pp. 329 et seq.. and the 
cases there cited ; also In re Phelan, 1 K. 5 ; In re Dormer, 4 S.A.R, 
p. 64; Li Kui Yu v. Superintendent of Labourers, [1906] T.S. 181; 
and Fein and Cohen v. Colonial Government, 23 S.C. 750 ; 16 C.T.R. 
1101 (where the Li Kui Yu case is adverselj' criticised), for a full dis- 
cussion of the doctrine of contempt of court. 

Contempt of parliament. As to what constitutes contempt of 
parliament see Act 13 of 1883 (C.C), sec. 7; Act 27 of 1895 (N.), 
sec. 6 ; Act 3 of 1907 (T.), sec. 16 ; Act 1 of 1908 (O.R.C.), sec. 16. 

Content, a term used in statutes relating to Customs, signifying 
a written statement by the master of a vessel in which he sets out 
in detail the goods shipped in his vessel and some other particulars. 
It is used in the Natal law relating to Customs and Shipping (Act 
13 of 1899, sec. 33), where it is provided that " before any such 
ship shall depart, the master or his authorised agent shall bring 
and deliver to the collector or other proper officer of Customs a 
content in writing, under his hand or that of the authorised agent, 
of the goods laden, and the names and addresses of the respective 
shippers of the goods, with the marks and numbers of the packages 
or parcels of the same, and shall make and subscribe a declaration 
to the truth of such content, as far as any such particulars can be 
known." 



CONTIGUOUS 140 CONTINUOUS 

" Contiguous to." In Barrington and Others v. Colonial Govern- 
ment (4 S.C. 408), a case involving tlie construction of a grant of 
land, De Villiers, C.J. (at p. 417), said: "On the western and 
eastern sides were rivers forming the best possible natural boundaries. 
The grants of the farms describe the land granted as being con- 
tiguuus to those rivers, and in the Dutch translation the words 
streldcende aan are used. In some of the grants, it is admitted, 
these words were occasionally used in the sense of ' adjoining to,' 
and it would be preposterous to suppose that either the grantor or 
the grantees attached a different meaning to the words where they 
are used to indicate' the western and eastern boundaries. It is 
urged that the words may also mean ' in the direction of,' but 
why should this forced construction be placed upon them if their 
primary meaning is clear and intelligible. Tlie primary meaning 
of the word contiguous is sufficiently obvious when we consider 
its derivation from con and tango. When Ovid said of Pyrainus 
and Thisbe, Contiguas tenuere domos, he meant, not that they occu- 
pied houses in the vicinity of each other, but actually adjoining 
and touching each other, so tliat the lovers could converse with 
each otlier through the cliinks of the walls. It is clear also that 
Milton, in speaking of extremes that are contiguous, meant that 
they meet and touch each other. But it is not only the poetical 
meaning of the word, but the connnon-sense meaning, which the 
grantees and all subsequent owners would reasonably have attaclied 
to it." See also Reid v. Surveyor-General (14 S.C. 34) ; Adjacent and 
Adjoining. 

Contingency, the happening of some thing or event by cliance 
that would not happen of necessity or in the ordinary course of 
events. 

Contingent. (1) Depending upon a contingency. See Contin- 
gency. 

(2) In a military sense contingent is defined in the Natal Militia 
Act (36 of 1903), sec, 3, to mean " two or more troops or companies 
combined together for administrative purposes, and also bodies of 
natives, Indians, or other coloured persons called out for service 
under this Act." 

Contingent creditor, a term used in insolvency law signifying a 
person whose debt against the insolvent depends upon a contingency 
or an uncertain condition (see Ordinance 6 of 1843 (C.C), sec. 31; 
Law 47 of 1887 (K), sec. 37 ; Law 13 of 1895 (T.), sec. 63). 

Continuing contract is a contract out of which rights and 
liabilities arise from time to time after the malting of the contract 
(Jenks' Digest of English Civil Law, bk. 1, sec. .53). 

Continuous crime, a crime or offence which proceeds without 
apparent interruption. " No matter how long a time an offence 



CONTINUOUS Ul CONTRACT 

may take in its perpetration, it continues but one offence " (Wharton's 
Grimmal Law, lOtfi ed. sec. 27). A conflict of jurisdiction some- 
times arises when a continuous crime is commenced in one colony 
and continued in another. "If the theft was committed elsewhere, 
the offender could not be tried in this [Cape] Colony, unless he 
did some act here which amounts to a continuation of his original 
offence. It is not a mere legal sublety to hold that if he deals 
with the stolen property as his own in this colony he continues 
his original offence and exposes liimself to prosecution in the courts 
of this country for theft. So far from such a. rule being contrary 
to the comity of nations, it would rather tend to uphold that comity 
by preventing one country from becoming the refuge of thieves 
carrying stolen property from neighbouring territories" (per De 
ViLLiERS, C.J., in Regina v. Lepal, 9 S.C. at p. 265). 

Continuous servitude, " a continiLOUs servitude is one to the 
exercise or enjoyment of which no intervention of any act of man 
is necessary — e.g. servitus stillicidii. Such servitudes cannot be lost 
by non-user" (Van Leeuwen's Gmnin. Kotze's trans., translator's note 
on p. 306). 

Contra bonos mores, contrary to good morals; against morality. 
For the rules regarding contracts which are based upon an immoral 
consideration, see CoNDiCTio OB TURPEM VEL INJUSTAM gausam : and 

Ex TURPI CAUSA NON ORITUR ACTIO. 

Contract. " A contract is an agreement which creates, or is 
intended to create, a legal obligation between the parties to it " (Jenks' 
Digest of English Civil Law, 2, 1, 182). In Natal a writing is neces- 
sary in order to maintain actions in respect of certain contracts ; see 
Law 12 of 1884 (N.). 

"Contract in writing," see Richmond v. Crofton (15 S.C. 183). 

"Contract in writing jointly executed," an expression used in 
the Natal Ordinance 1 of 1856 (see sec. 8), meaning "any contract duly 
signed and executed before any notary public, or in the presence of 
two witnesses, by the spouses or the intended spouses duly assisted, if 
need be, by their curators or guardians." 

Contract made re "is where the agreement alone is not suf- 
ficient, but in addition the actual delivery of the thing must take 
place before it becomes fully effectual. Such are a loan for con- 
sumption (mutuum) ; a loan for use (commodatum) ; deposit {de- 
positum); and pledge (jngnus); giving that something may be 
given (do ut des) ; giving that something may be done {do ut facias) ; 
doing that something may be given {facio ut des); and doing that 
something may be done {facio ut facias)" (Van Leeuwen's Comm. 
Kotze's trans, yolj.2, p. 51 ; see also transl^itor's note, ibid.). 



CONTRACTING 142 CONTRIBUTION 

Contracting out. To contract out of a statute means to enter 
into an agreement whereby the right to a benefit conferred by the 
statute is relinquished. In the case of statutes which have been 
enacted from reasons of public policy such contracting out is not 
allowed in accordance with the maxim Privatorum conventio juri 
publico non derogat ; and, moreover, is often expressly prohibited, 
notably in the Workmen's Compensation Acts. 

Contractor, a person who engages to do or perform some work, 
act or service, or to supply some goods or things for a government, 
■corporation or person in consideration of a certain payment. In the 
Cape Divisional Councils Act (40 of 1889), sec. 4, the term contractor 
is defined as meani^ig " every person who directly or indirectly has a 
pecuniary or valuable interest in any money or other valuable con- 
sideration paid or given, or to be paid or given by any council for 
services performed, for work or labour done, or for any goods or 
things of whatsoever nature or kind bought or hired by or supplied 
to such council ; " in the Cape Railways Extension Act (28 of 1895), 
as meaning " any company or person who shall by any agreement 
undertake to tlie Governor to construct any line of railway authorised 
by this Act to be constructed by the Governor." See Searle v. Par- 
sons and Another (12 S.C. 356). 

Contractus aestimatorius. See Aestimatorius contractus. 

Contractus innominati, innominate contracts ; an expression of 
the Roman law denoting contracts having no name. See Innominate. 

Contrarie conclusie (D.), a form of pleading whereby the de- 
fendant simply denies the allegations in the plaintiffs declaration 
contained, without stating facts or reasons, and concludes to the 
contrary. 

Contrectatio fraudulosa, fraudulent dealing. Theft was de- 
fined in Roman law (Justinian's Institutes, 4, 1, 1) as a fraudulent 
dealing with property, either in itself, or in its use, or in its posses- 
sion ; and the motive must be gain {Dig. 47, 2, 1, 3). Contrectatio 
implies that without an overt act there can be no furtunn (theft), 
and fraudulosa implies unlawful intention. In Rex v. Murphy 
and Another ([1906] E.D.C. 62) the accused, when under the influ- 
ence of, drink, took horses, rode some distance upon them, turned 
them into an enclosed paddock, and continued their journey on foot. 
It was held that in the absence of proof of anijnus furandi the 
accu.sed were not guilty of theft, KOTZ^, J.P., remarking: "It is 
clear there was a taking, but it seems doubtful whether this taking 
was with a felonious or fraudulent intent. It is only contrectatio 
fraudulosa which constitutes theft in our law." 

Contribution. See Plan of Contribution. 

Contribution account. See Plan of Contribution. 



CONTRIBUTORY U3 CONVERSION 

Contributory. In the Cape Companies Act (25 of 1892), 
sec. 131, " the term contributory shall mean every person liable to 
contribute to the assets of a company in the event of the same being 
wound up under this Act ; it shall also, in all proceedings for deter- 
mining the persons who are to be deemed contributories and in all 
proceedings prior to the final determination of such persons, include 
any person alleged to be a contributory." This definition is taken 
verbatim (except for a slight transposition of words) from sec. 75 of 
the English Companies Act of 1862. See the Natal Winding-up Law 
(19 of 1866), sec. 44; Act 31 of 1909 (T.), sec. 108; Law 2 of 1892 
(O.R.C.), sec. 18. 

See Cape of Good Hope Bank, in liqn., v. Knight and Others 
(8 S.C. 221). 

Contrivance, the act of devising some ai-rangement or plan for 
some particular purpose; for example, a witness may have been 
kept away from a criminal trial " by means and contrivance of the 
prisoner." 

Contumacie (D.), contumacy. A technical teim in Dutch practice 
signifying the default made by a litigant in appearing, either in person 
or by his attorney, in court when lawfully required to do so. It also 
signifies contempt. See CONTUMACY. 

Contumacy, wilful disobedience of a lawful order of a judicial or 
legislative body, and in some cases of its regulation? or procedure. 
See Contempt of Court; Contempt of Parliament; and Ex con- 

TEMPTU VEL CONTUMACIA. 

Conventio privatorum juri publico non derogat, an agree- 
ment between individuals does not derogate from public law 
(Van der Linden, Supplement ad Voet, 2, 1, 14). See Privatorum 

CONVENTIO, &c. 

Conventional mortgage, a mortgage arising out of the consent 
of the owner, and effected in an open and public manner ; it may be a 
mortgage of either movable or immovable property. If the fonner, 
there must, as a rule, be actual delivery of the thing mortgaged ; if 
the latter, it must be duly registered against the mortgaged property 
in the office of the Registrar of Deeds. See Mortgage. 

A conventional mortgage is either general, of all the property of 
the mortgagor, otherwise known as a "general mortgage"; or of some 
special or particular property, in which case it is usually described as 
a "special mortgage." As to the questioi) of delivery in the case of 
a pledge of movables by notarial deed, see a learned judgment by 
KoTZ^, CJ., in Francis v. Savage t£ Hill, decided in the Supreme 
Court of the Transvaal in November, 1882, and quoted in extenso as 
a note to Van Leeuwen's Gomm. Kotze's trans, vol. 2, p. 107. 

Conversion, the appropriation of the goods of another. " It is 
not for me to attempt to define what is meant by conversion, seeing 



CONVERSION 144 CONVICT 

tliat eminent English judges express doubt on the subject. But I 
desire to refer to a definition in Hollins and Others v. Fowler and 
Others (7 Eng. & Ir. App. 757), which is as follows: 'Any person who, 
however innocently, obtains possession of tl)e goods of a person who 
has been fraudulently deprived of them and disposes of them, whether 
for his own benefit or that of any other person, is guilty of conver- 
sion ' " (per Bristowe, J., in Leal & Co. v. Williams, [1906] T.S. at 
p. 558). 

Conveyancer. Defined in sec. 2 of Act 11 of 1903 (C.C.) a.'* 
being " a person duly authorised by any competent court to draw 
and prepare transfer deeds and deeds of hypothecation entitled to 
registration in a Deeds Office within this colony." 

Thej'^ were unknown to the law of Holland, and do not seem 
to have appeared in South Africa until 1844 (per Innes, C.J., in 
Pienaar and Versfeld v. Incorporated Larv Society, [1902] T.S. at 
p. 18). 

Act 12 of 1858, sec. 8 (C.C), provides for admission of convey- 
ancers in Cape Colony; see also Act 11 of 1903 (C.C), sec. 3. 

In the Transvaal their admission is regulated by .sec. 15 (6) of 
Proclamation 14 of 1902 ; see also Rules of Court, and Ordinance 1 
(Private) of 1905. In the Orange River Colonj^ their admission is 
regulated by Ordinance 4 of 1902, sec. 17. 

In Natal (by sec. 1 of Act 23 of 1904) a conveyancer is defined 
to mean " any person who prepares or executes on behalf of other 
persons deeds of transfer or other deeds proper for registration in 
the office of the Registrar of Deeds, or who for reward draws wills, 
marriage contracts or similar documents, or any instrument relating 
to property, movable or immovable." The definition of convey- 
ancer is more extended in Natal than in the other colonies. 

According to a ruling in the Transvaal a seller has the right 
to appoint his own conveyancer (James v. Liqxiidators of the 
Amsterdam Township, [1903] T.S. 653). 

Convict. " Convict shall mean any convicted person under de- 
tention at a convict station " (Act 23 of 1888 (C.C), sec. 2). 

Convict prison, an expression used in the Transvaal Prisons and 
Reformatories Ordinance (6 of 1906), sec. 3; its definition is almost 
identical with that of convict station in the Cape Act. See Convict 
Station. 

Convict station is thus defined in the Convict Stations and 
Prisons Act (23 of 1888 (C.C.)): "Convict station shall mean any 
place which has already been appointed to be a station for the im- 
prisonment, detention or confinement of pei-sons con\icted of any 
offence, or which shall hereafter by notice in the Gazette signed by or 
by direction of the Minister, be appointed to be such station or place, 
and shall include all branches or outstations, buildings or places to 
which convicts may he drafted or sent from any such station or place'i 



CONVICT 145 COPYRIGHT 

for tlie purposes of imprisonment, detention, confinement, labour or 
otherwise." A somewhat similar definition of convict prison is given 
in Ordinance 6 of 1906 (T.), sec. 3. 

Conviction, the finding of any competent court thit a prisoner, 
after being lawfully tried, is guilty of the oflTence v\ ith which he 
has been charged. 

Convocation, an assembly of persons. The convocation of the 
Univ^ei-sity of the Cape of Good Hope consists of all graduates of the 
University and of the persons holding certificates in literature and 
science, granted by the Board of Public Examiners in the Cape Colony 
under Act 4 of 1858 (C.C), sec. 9. Meetings of convocation may be 
called by the vice-chancellor at his own instance or upon requisition 
signed by ten or more members of convocation (see Act 16 of 1873 
(C.C), sees. 13 et seq.). 

Oonvooibiief (D.) was, in the Netherlands, " a parcels ticket, by 
virtue of which merchandise was transported from one place to 
another. Gonvooiloopers were persons who gave such tickets " (Van 
der Linden's Institutes, Juta's trans, p. 393, translator's note). 

Convooilooper (D.), a person who gave convooibrieven. See 
CoNVOOiBRiEF. See also Van der Linden's Institutes, Juta's trans, 
p. 393, in notis. 

Co-obligors, persons undertaking a joint obligation. " The 
general piinciple of our law relating to the liability of co-obligors 
and the rights of co-obligees is that, unless otherwise agreed upon, the 
liability is joint and the rights are held in common. If, therefore, 
two or more persons incur a joint obligation, the general rule, subject 
to certain well-known exceptions, as in the case of ordinary partner- 
ships, is that each is liable only for his share, and not in solidum" 
(per De Villiers, C.J., in De Pass v. Colonial Government and 
Others, 4 S.C. at p. 390). 

Coolie, see Supenntendent of Police, Pietermaritzhurg, v. Pillay 
(26 N.L.R. 334). 

Copy. In the Natal Copyright Act (17 of 1897), sec. 3, "copy in 
reference to a work of art means also repeat, colourably imitate, or 
otherwise multiply." See also Act 44 of 1898 (N.), sec. 2, 

Copyright, the sole and exclusive liberty of printing or otherwise 
multiplying copies of any book, volume, part or division of a volume, 
pamphlet, sheet of letterpress, sheet of music, and map, chart or plan 
separately published (see the Cape Copyright Act (2 of 1873), sec. 9). 

The term copyright is defined in the Cape Registration of Designs 
Act (28 of 1894) to mean " the exclusive right to a,pply a design to 



COPYRIGHT 146 CORAM 

any article of manufacture or to any such substance as aforesaid in the 
class or classes in which the design is registered." 

In the Cape Copyright in Works of Art Act (46 of 1905) it is 
defined as meaning " the sole and exclusive right of copying, repro- 
ducing, repeating or otherwise multiplying copies of any work of art 
and of the design thereof, of any size, in the same or any other 
material, or by the same or any other kind of art." 

In the Natal Copyriglit Act (17 of 1897) " copyright means the 
sole and exclusive right of multiplying copies of any work, whether 
by printing, copying, engraving or otherwise." In the Natal Registra- 
tion of Designs Act (19 of 1899), copyright is defined in the same way 
as in the Cape Registration of Designs Act (28 of 1894), see supra. 

For Copyright Law in Transvaal, see Law 2 of 1887. 

Coram judice loci rei sitae, in the presence of the judge of the 
place where the property is situated. This is another mode of ex- 
pres.sing the same principle as that contained in the phi-ase coram 
lege loci. In the Netherlands tliere was not one particular court, 
such as the Court of Justice which existed in Cape Colony up to 
1828, but several courts, before which land could be mortgaged and 
transferred. As the phrase indicates, the proper court in each case 
was the court of the place wliere the property was situated. From 
the Ordinance of 1.529 it seems to have become the practice to 
mortgage land not before the court of the place where the property 
was situated, but before any court in the province. As purchasers 
of land were in many ca,ses defrauded and the payment of the 
proper duties evaded by the practice, the Ordinance was passed to 
stop this custom, and provided that transfers and mortgages of 
immovable property which took place before any court other than 
that within the jurisdiction of which the land was situated should 
be null and void (see Wessels' History, p. 2l7j. 

Coram lege loci, before the court of the place. This phrase is 
used of the only valid mode of creating a real right in immovable 
property, whether by way of transfer or mortgage. The rule of 
our law as to the transfer of immovable property is not derived 
from the Roman law, ■wtiich made little distinction between the mode 
of conveying movables and immovables, but has its origin in the 
customs of Holland. From an early period the rule was adopted 
in many parts of the Netherlands tliat the transfer of landed property 
should not be effective to transfer a Jus in re to the purchaser 
unless the .same was made before the court of the place in whicli the 
property was situated. This custom was by a Placaat of Charles V 
in the year 1529 declared of universal application througliout Holland 
and West Fi-iesland, and was introduced into the Cape Colony on its 
first settlement {Harris v. Buissinne's Trustee, 2 Menz. 105). 

Until 1828 all transfers and mortgages of immovable property aiid 
other acts affecting real rights in the (llape Colony were registered 
before the Court of Justice and in the presence of the Colonial 
Secretary. By Ordinance 39 (C.C.) of that year the Court of Justice 



CORAM 147 CORPS 

was abolished, and it was provided that all snch deeds were to be 
registered in future in the office of the Registrar of Deeds, by wliom 
a register was to be kept for tlie purpose (see Maasdorp's Institutes, 
vol. 2, pp. 69 et seq.). 

Co-respondent, a term used in proceedings for divorce; it 
denotes the alleged adulterer in actions for divorce on the ground 
of adultery. 

Coroner, an official presiding over an inquest. See Inquest. 

Corporation. " A corporation, or universitas personarum, then, 
in our law is a legal fiction or incorporeal abstraction, consisting 
indeed of a collection or aggregation of real or natural persons, but 
having in itself no existence in nature, and existing merely in con- 
templation of law. Fictitious, however, though it be, it is endowed 
by legi.slative authority with the capacity and power of acting and 
of acquiring and having rights in the same way in most respects 
as a real human person" (Maasdorp's Institutes, vol. 1, p. 2GS). 

Corporeal chattels, a division of chattels personal ; they are 
" those which have an actual physical existence, which are capable of 
being touched, tasted or handled, such as money in specie, furniture, 
cattle, ships, and timber or mineials when severed from the land" 
{Goodeve's Personal Property, 4th ed. p. 1). It is an English law 
terra, and is larely used in South Africa. 

Corporeal hereditaments, an English law term, signifying " land 
in the freeholder's possession" (Williams on Real Property, 20th ed. 
p. 31). 

Corporeal thing, " a physical thing, res corporalis (Sache in the 
narrower, and proper, sense of the term), is sometimes defined as ' a 
locally limited portion of volitionless nature ' ; perhaps better as ' a 
permanent external cause of sensations.' The full meaning of any 
such definition is, of course, a question not of jurisprudence, but of 
metaphysics. The jurist need not go further than to lay down that 
a physical thing is something which is perceptible by the external 
organs of sense, and is capable of being so perceived again and again. 
By the latter characteristic it is distinguished from an 'event' which, 
as a cause of sensation, is transient" (Holland's Jurisprudence, 10th ed. 
p. 97). Nathan in his Common Law (sec. 530) defines corporeal 
things as " such as are tangible, or capable of actual physical posses- 
sion." Grotius (Introd. 2, 1, 10) says: "Corporeal things are such 
as are visible to the outward sense, as this house, this book, &c., and 
are divided into movable and immovable." See Ex parte Master of 
the Supreme Court ([1906] T.S. at p. 566). 

Corps is defined in the Natal Militia Act (36 of 1903), sec. 3, to 
mean and include " a naval corps, regiments and troops of mounted 
rifles, regiments and batteries of artillery, companies of engineers, 

k2 



CORPS 148 CORRUPTION 

battalioriH and companies of infantry, transport, medical, veterinary 
and signalling corps, and any other cwps which may be formed by 
direction of the Governor for military purposes. Troops or companies 
which are parts of a regiment shall not individually be deemed to be 
a corps." For further definition see Ordinance 37 of 1904 (T), sec. 1 ; 
Ordinance 35 of 1905 (O.R.C.), sec. 1. 

Corpus delicti, the body, substance or foundation of tlie offence. 
In all criminal prosecutions it is necessary first of all to prove that an 
offence has been committed before there can be any question as to the 
guilt or innocence of the accused. "In some ofi'ences the evidence 
establishing the existence of the crime also indicates the criminal, 
while in others the traces or effects of the crime are visible, leaving 
its author undetermined — the former being denominated bj'' foreign 
jurists delicta facti tra7iseuntis, and the latter delicta facti pertna- 
nentis. Under the former — i.e. delicta facti transeuntis — are ranged 
those offences the essence of which consists in intention, such as various 
forms of treason, conspiracy, criminal language, &c., all which, being of 
an exclusively psychological nature, must necessarily be established 
by presumptive evidence, unless the guilty party chooses to make a 
plenary confession. In the other sort of cases — delicta facti perma- 
nentis, or, as they have been sometimes termed, delicta cum, effectu 
pennanevte — the proof of the crime is separable from that of the 
criminal. Thus the finding a dead body, or a house in ashes, may in- 
dicate a crime, but does not necessarily afford a clue to the perpetrator. 
And here, again, a distinction must be drawn relative to the effect of 
presumptive evidence. The corpus delicti in cases such as we are now 
considering is made up of two things: first, certain facts forming its 
basis ; and, secondly, the existence of criminal agency as the cause of 
them " (Best on Evidence, 10th ed. sees. 441, 442). 

Corrupt practices include treating, undue influence, bribery and 
personation at parliamentary, divisional council or municipal elections. 
See Act 40 of 1889 (C.C), sec. 70 ; Act 26 of 1902 (C.C.) ; Ordinance 38 
of 1903 (T), sees. 69 to 75. 

Corruptie (D.), bribery ; corruption. " With us all gifts and 
benefits which savour in the least degree of corruption and intrigue 
are entirelj' prohibited and disallowed ; and very strict provision 
has been made by the placaten botii against those who by promise 
of any gift or benefit to another seek to advance themselves, and 
those who accept such gifts " (Van Leeuwen's Coinni. Kotze's trans, 
vol. 2, p. 122). See The State v. Benson Aaron (10 C.L.J. 238; 
H. 125), where this subject is very fully dealt with. 

Corruption, the vitiation or debasement of moral rectitude. See 
Judicial Corruption. 

Corruption of public officers, the act of endeavouring by any 
means to force, persuade or induce any public officer to do or omit 



CORRUPTION U9 COUNTERFEIT 

to do any act wliicli tlie offender knows to be a violation of such 
officer's official duty (Stephen's Digest of the Criminal Law, 6tli ed. 
ait. 137). See Act 24 of 1886 (C.C), sec. 104 (Native Teiiitoiies' 
Penal Code). 

"Cost laid down." As to wiiether the expression coat laid 
down, appearing in a contract for the supply of cold stored meat, 
includes London office and Capetown administration expenses, see 
Imperial Cold Storage Co., Ltd., v. Distributing Syndicate for Cold 
Storage (24 S.C. 426), where it was held such expen.ses were so 
included. 

Cost of production, the expenditure incurred in producing or 
bringing into being any wares or products. 

For definition of cost of production in the Profit Tax (Gold Mines) 
Proclamation, 1902, see Proclamation 34 of 1902 (T.), sec. 3. See also 
Knights Deep, Ltd., v. Colonial Treasurer ([1905] T.S. 689). See 
AcTU.\L Cost. 

Costs of the day, such unnecessary or extra costs as have been 
or may be incurred, owing to a party to a suit applying for or causing 
the postponement or delay of the trial or heaiing, which costs would 
not have been incurred but for such delay (Van Zyl's Judicial 
Practice, 2nd ed. p. 78-5 ; see also Carlis v. Hay, [1903] T.S. 317). 

Oostumen or Costujrmen (D.), unwritten laws or usages ; customs. 

Co-tutor, a joint tutor; one of two or more persons who have 
been duly appointed to administer and manage any estate or property 
which may have devolved on, or come to belong to any minor, or 
to take care of the person of such minor, within a colony. 

Council, an a.ssembly of persons met together for tlie purpose of 
deliberation, consultation or advice ; an authorised body of persons 
appointed for advisory or administrative purposes. In the Cape 
Divisional Council's Act (40 of 1889), sec. 4, council ■ is defined as 
meaning " the divisional council of any division heretofore or here- 
after by law locally constituted and defined, including divisions of 
all provinces or territories annexed to and forming portion of this 
[Cape] Colony." 

Counterclaim, a claim set up by the defendant by way of cross- 
action ; generally described in South Africa as a claim in leconven- 
tion ; a claim put forward by the defendant as a set-off to the 
original claim of the plaintiff. 

Counterfeit coin. In the Transvaal Crimes Ordinance (26 
of 1904), sec. 3, counterfeit coin means " coin not current, but re- 
sembling or apparently intended to resemble or pass for curi-ent 
coiuj and includes current coin prepai-ed or altered so as to resemble 
or pass for coin of a higher denomination." 



COUPLED 150 COVERED 

"Coupled witli an interest." In discussing this phrase in Fick 
V. Bierman (2 S.C. at p. 35), Smith, J., made the following remarks ; 
" It is laid down by Story that a power of attorney, although irre- 
vocable by the party giving it, and although founded upon a valuable 
consideration or given as a security, is nevertheless revoked by the 
death, and so by the bankruptcy, of the party unless it is coupled 
with an interest (Story on Agency, sees. 477, 482). What then is the 
meaning of coupled with an interest? This is well explained by 
Chief Justice Marshall in an American case. Hunt v. Rousmaniere 
(8 Wheaton, 174). He says: 'Is it an interest in the subject on which 
the power is to be exercised, or is it an interest in that which is pro- 
duced by the exercise of the power ? We hold it to be clear that the 
interest which can protect a power after the death of a person who 
creates it must be an interest in the thing itself. In other words, the 
power must be engrafted on an estate in the thing.' An ordinary 
instance of such an interest occurs when a factor has possession of the 
goods of his principal with a power to sell. He is entitled to sell and 
indemnify himself for any advance he may have made notwithstand- 
ing the insolvency of his principal, for he has a special propertj^ in 
the goods and can sell them in his own name. He has a lien upon the 
goods, and upon the purchase-price of goods lawfully sold. On the 
other hand, a mere broker having no special property has none of 
these rights, and his authority becomes extinct upon the insolvency of 
his principal. The power of the agent to transfer in his own name is 
said by Story to be the reason why (I would rather call it a test 
whether) a power cpwpled with am interest is irrevocable after the 
death or insolvency of the principal (Story on Agency, sec. 489)." 

Courts of Request, inferior courts authorised to be established 
in the Cape Colony by sec. 48 of the Charter of Justice of 1832. The 
civil jurisdiction did not extend to &uy case in which the sum or 
matter in dispute exceeded the value of £40, nor did it extend to auy 
case wherein the title to any lands or tenements, or any fee, duty or 
office may be in question or whereby rights in future may be bound; 
the criminal jurisdiction was limited to such cases as did not involve 
an accusation of any crime punishable by deatli, transportation or 
banishment from the colony. The Courts of Request were replaced by 
courts of resident magistrate (see Act 20 of 1856). 

A Court of Request, which was otherwise known as a "Court of 
Conscience," was an English institution, wherein small debts could be 
recovered. Courts of Request in England are now superseded by the 
present County Courts, which were established by statute in 1846. 

"Covered by the policy." "The interest of the assured is 
technically said to be covered by the j^olicy, when the sum or aggre- 
gate of sums insured in the policy is sufficient to afford him full com- 
pensation for whatever loss that interest may sustain. If the value 
of his interest exceeds the sum insured, the excess of interest is said 
to be 'uncovered by the policy,' and the assured to be 'his own insurer 
to that extent ' " (Arnold's Marine Insurance, 7th ed. sec. 2). 



OOVERINO 151 CRIME 

Covering, something that overspreads or conceals. In the Cape 
Merchandise Marks Act (12 of 1888), sec. 4 (2), the expression cover- 
%ng includes "any stopper, cask, bottle, vessel, box, cover, capsule, case, 
frame or wrapper." 

Credibility, the state of being worthy of credit or belief. The 
expression is generally applied to witnesses.; one speaks of the "credi- 
bility of a witness." 

Credible witness, a witne.sa who is competent to give evidence, 
and who is worthy of credit or belief. 

Crediet-brief (D.), letter of credit ; a letter in which a banker 
or merchant directs his correspondent in another place or places to 
pay the bearer of the letter of credit such moneys as he may from 
time to time require, not exceeding in all the amount stated in the 
letter. 

Creditor, one who gives credit to another; a person to whom 
money is due and owing by a debtor; coi-relative to debtor. " Creditor 
and debitor denote respectively the person entitled to the benefit of 
an obligation and the person bound thereby. Causa debendi, there- 
fore, is ecfuivalent to causa obligandi " (Van Leeuwen's Gomm,. 
Kotze's trans, vol. 2, p. 8, translator's note). See Brink, N.O., v. Norden 
(3 Menz. 271). 

As to the term creditor being taken in a wider sense so as to 
extend to persons to whom anything for whatever cause is due, see 
MacMaster's Trustees v. Executor of Kruger (4 Searle, at p. 210). 

Creditores massae, creditors whose claims have reference to the 
costs of administration or of the liquidation and distribution of the 
estate of an insolvent or deceased debtor. These costs take precedence 
over all debts due by the debtor himself, and must be paid before 
there can be any question of a distribution of the estate among his 
creditors. 

Crime " in a general sense is every punishable violation of the 
laws, done wilfully and with an evil intention, which is taken very 
narrowly and strictly, so that whatever is not connected with some 
open fraud or evil intention, cannot be punished as a crirne. Such, 
however, that great negligence, although strictly not a fraud, and not 
to be considered as a crime, is yet punishable, although to a less extent 
at discretion "(Van Leeuwen's Comm. Kotze's trans, vol. 2, p. 247); 
to v.'hieh Decker in a note {ibid.) adds : " For this reason crime is 
thus defined by Moorman, ' Every act or neglect which is punishable 
by municipal law,' observing that just as it is a crim.e of co'inm,ission 
to do something unlawful, so it is a crime of omission to allow any- 
thing to be done by another which we might have prevented." 



CRIMEN 152 CRIMINAL 

Crimen expositiozds infantis, tlie crime of exposing or abandon- 
iiig a child to die from cold, hunger or neglect (Rex v. Adams, 
20 S.C. 556). 

Crimen falsi, the crime of falsity. Falsuvi is defined by Voet as 
"a designed perversion of the truth made with intent to deceive in 
fraud of anothei-," and by Carpzovius and Matthaeus as a fraudulent 
misrepresentation of the truth made in prejudice of another. It in- 
cludes such Climes as obtaining money under false pretences, forgery, 
perjury, coining of base money, use of false weights and measures, &c. 
In Rex V. Brandford (7 S.C. 169) it was laid down by De Villiers, C.J., 
that in order to be the .subject of a criminal prosecution the false- 
hood complained of must have caused actual prejudice to another. In 
that case the indictment alleged that the accused, having held a lottery 
under the disguise of an art union drawing, refu.sed to deliver the 
prize to the person holding the winning number. It was held that 
"inasmuch as the lottery was illegal under the Piacaat of 1787 the 
per.son holding the winning number had no legal claim to tlie prize, 
and that inasmuch as the refusal to deliver the prize, and not the false 
reason given for the refusal, constituted the prejudice stated in the 
indictment, the facts stated did not constitute the crime of fraud." It 
would, however, appear from the opinion of the .same learned judge 
in Queen v. Adelburg (8 S.C. 234), and the cases of Moolchund v. Rex 
(23 N.L.R. 76); Rex v. Jolosa ([1903] T.S. 694), and R. v. De Vos 
(13 E.D.C. 145) that besides intent to deceive it is not necessary, to 
support a conviction for an offence falling under this generic term, that 
actual prejudice should be suffered by another, but only that the act 
Was such as to be calculated to prejudice such other person. " It is not 
every fanciful, possible or remote risk of prejudice that will suffice, 
but the risk must be probable, direct or reasonably certain " (The 
King v. Firling, 18 E.D.C. 11). 

Criminal intention. " It is a commonplace remark in the ad- 
ministration of the criminal law that there can be no crime, in the 
true sense of the term, without a criminal intention. This intention, 
which was sometimes expre.ssed by the Roman jurists under the term 
voluntas, implies the existence of a power of exercising and con- 
trolling the will. This power every one is pre.sumed to po.ssess until 
the contrary is proved. Under the Roman law, as well as under 
the Dutch law, it was always admitted that no cHtnindl intention 
could be held to exist where an offence was committed by an insane 
person, but the question whether insanity did or did not exist in any 
particular case was treated, as it ought to be treated, as a question 
of fact, and not of law. Under the law of England aLsc insanity at 
the time of commission of an offence is a good defence to a criminal 
prosecution, but the test as to the existence of insanity has been 
treated as a question of law rather than of fact " {per De Villiers, C.J., 
in Qwen v. ffay, 16 S.C. at p. 297). 

Criminal jurisdiction, the jurisdiction granted to a court by 
law in criminal matters; that is, in matters relating to crime, as 



CRIMINAL 163 CROWN 

■opposed to civil jurisdiction or to jurisdiction in ecclesiastical or naval 
or military matters. 

Criminal lunatic. In tlie Cape Lunacy Act (1 of 1897) the 
term crimimd lunatic is defined to mean "any person convicted 
of any crime and certified to be insane under the provisions of tins 
Act." See Governor's Pleasure Lunatic. Tiie Transvaal has 
adopted a similar definition of criminal lunatic to tliat of the 
Cape ; see Proclamation 36 of 1902, sec. 2 ; and so too the Orange 
River Colony ; see Ordinance 13 of 1906, sec. 2. 

Orimineele zaken (D.), criminal cases. 

Criminology, the science of crime. 

Crown, kingly government; the sovereign power. 

In the Transvaal Interpretation of Laws Proclamation (1.5 of 
1902), sec. 13, it is provided that " in every Law references tn the 
Sovereign reigning at the time of the passing of the Law or to the 
Crown shall, unless the contrary intention appears, be construed as 
references to tlie Sovereign for the time being." 

As to actions against the Crown in the Transvaal, see Ordi- 
nance 51 of 1903. 

As to land iield by the Crown, see Trading Board v. Germiston 
Toivn Council ([1907] T.S. at p. 4,54). 

As to holding an office of profit under the Crown, see Hedley 
V. Celliers (20 S.C. 271). 

Crown forest, an expression used in the Cape Forest Act (28 of 
1888), where it is defined as consisting of all demarcated forest 
and undemarcated forest (q.v.). 

Crown land, land held by the Government of a South African 
British colony in its own right, and of which such Government has 
the power of disposal. The disposal of Crown lands is generally 
regulated by statute. 

In the Transvaal, in Ordinance 40 of 1902, sec. 2, Crown land 
means and includes: {a) all unalienated Crown land; and {h) all 
land the property of the Government, however acquired. The same 
•definition is found in sec. 2 of Ordinance 57 of 1903, which repeals 
tlie foi-mer statute. In the Precious and Base Metals Act (35 of 
1908), sec. 3, Crown land means " (a) all land in respect of which 
the Crown is the holder of the mineral rights ; and (h) all land 
which has or may become the property of the Ti-ansvaal Land 
Settlement Board in accordance with section fifty -two of the T)-ans- 
vaal Constitution Letters Patent, 1906, or the Land Settlement Act, 
1907, unless the Crown is not the holder of the mineral rights in 
respect of such land or has alienated or contracted to alienate such 
rights." In the Precious Stones Ordinance (66 of 1903), sec. 2, 
Crown land means "all unalienated Crown land, and all land the 
property of the Government of this [Transvaal] colony in whatever 



CROWN 154 CULPA 

way acquired ; and any land alienated by the Crown with an ex- 
press reservation to it of precious stones or minerals." 

In the Orange River Colony, see Odinance 3 of 1904, sec. 5, 
where the definition is very similar to tliat just quoted ; Ordinance 
4 of 1904, sec. 5, and Act 13 of 1908, see. 1. 

Crown Prosecutor, a person duly appointed by Government 
to prosecute in the name and on behalf of the king all crimes legally 
cognisable within a certain district or districts. See Act 39 of 1877 
(C.C), sec. 19; Act 43 of 1885 (C.C), sec. 3; Act 35 of 1896 (CO.), 
sec. 58 ; Ordinance 18 of 1845 (N.), sec. 2 ; Ordinance 18 of 1856 (N.), 
sec. 1 (where it is provided that the Grown Prosecutor of Natal should 
thereafter be designated and created the " Attorney-General of Natal" ; 
by this Ordinance the office of "Crown Prosecutm- of Natal" was 
abolished). 

Cruelty, for definition of cruelty in regard to animals in tlie 
Orange River Colony, see O.R.C. Law Book, chap. 145, sec. 2. 

Cuilibet licet juri pro se introducto renuntiare, any one 

may renounce a right made for his own benefit. See Quilibet juei 
PRO SE INTRODUCTO RENUNCIARE POTEST. At the present time this 
rule of law is not always applicable, for the legislature has at times 
enacted that certain rights for a per.son's own benefit may not be 
renounced, as, for instance, in the Workmen's Compensation Acts. See 

Jus PUBLICUM RENUNTIARI NON POTEST. 

Cujus est commodum ejus debet esse periculum, his should 
be the risk who reaps the profit or advantage. In accordance with 
this maxim the risk attaching to a thing wliich has been .sold, 
although not yet delivered, lies on the purchaser, for all fruits accru- 
ing from the thing after the time when tiie sale has been completed 
belong to him. See Periculum rei venditae nondxJm traditae est 
EMPTORis. This rule, however, does not apply in the contract of co?ri- 
modatum, or gratuitous loan for use, for although the borrower has 
the use and advantage of the thing, and is liable for the slightest 
degree of negligence, its deterioriation or accidental loss falls on the 
lender. Here the maxim is res perit domino. 

Cujus est solum ejus est usque ad coelum, the owner of soil 
is owner up to the sky vertically above it, and may lawfully build 
without any limit as to height, but in length and breath not beyond 
his own land. 

Cul de sac, a street or passage having no outlet at one end. 

A cul-de-sac is as much a public highway or public street as any 
other street which is a thoroughfare (Souch v. East London Railway 
Co., L.R. 16 E(i. 108 ; 42 L.J. Ch. 447). 

Culpa, fault, negligence. There are three degrees or classes of 
culpa, namely, (1) culpa lata, gross fault or negligence, which consists 



CULPA 155 CULPA 

in tailing to show the slightest degree of diligence {levissima dili- 
genha); this degree of negligence is treated as equivalent to dolus;: 
(2) culpa Levis, ordinary negligence, or the omission to take that care 
which a man of ordinarj' prudence would use in his own affairs 
(diligentia, sometimes termed 'media diliyentia); and (3) culpa 
levisshna, the slightest degree of negligence, which consists in the 
omission of extraordinarj- diligence {exactissima diligentia), i.e. tlie 
diligence which a most i)rudent man (bonus paterfamilias) observes 
in the conduct of his own affairs. 

The degree of diligence for which persons are liable depends upon 
the kind of contract under whicli the obligation for diligence arises, 
whether it is for the benefit of onljr one of the parties, or for the 
benefit of both. Thus in the contract of deposit, which is for the 
benefit of the depositor, and confers no advantage on the depositary, 
being undertaken bj' him gratuitouslj', the latter will be liable only 
for culpa lata, which according to Grotius {Introd. 3, 7, 9) will be 
considered to be present when the depositary " does not take equal 
care of the deposit as he is accustomed to take of his own property." 
In the contract of commodatuin, or gratuitous loan for use, as the con- 
tract is purelj^ for the benefit of the borrower, he will be liable for 
culpa levissimoj. Again, where both parties benefit by the contract — 
as in letting and hiring, where one has the use of the thing lent and 
the other the hire paid for such use — each party is liable only for 
cuhpa levis or ordinar}' negligence. 

Culpa caret qui scit sed prohibere non potest, no negli- 
gence is attributable to a person who is powerless to avoid tiie danger 
apparent to him {Digest, 50, 17, I. 17 ; Philpott v. Whittal, Elston and 
Crosby cC- Co., [1907] E.D.C. at p. 207). In Jones v. Boyce (1 Stark, 
493), wiiere an accident happened to a stage-coach, upon which the 
plaintitt' jumped down and broke his leg. Lord Ellenbobough put it 
to the jury to consider whether the plaintiffs acts were such as a 
reasonable and prudent man would have adopted, and added : " If I 
place a man in such a situation that he must adopt a perilous alter- 
native, I am i-esponsible for the consequences." Cf. Newman v. East 
London Town Council (12 S.C. 61). 

Culpa est immiscere se rei ad se non pertinenti, a person 
intermeddling with the affairs of others, which do not concern him, is 
guilty of negligence. As a rule a negotiormn gestor was not compelled 
to make good losses resulting from accident {C. 2, 19, 22) unless his 
interference was uncalled for. He was also liable for loss by accident 
when he made enterprises foreign to the habits of the principal. 

Culpa lata dolo aequiparatur, gross fault or carelessness is 
equivalent to bad intention or wrong-doing. 

Culpa praecederat casum, fault had preceded the accident. No 
one is liable upon contract for pure accident, but whenever fault or 
negligence has preceded the accident, the loss must be made good. 
(Grotius' Introd. 3, 8, 4 ; Schorer's Note 332). See Casus foetuitus. 



CULPA 156 CULPABLE 

Culpa tenet suos auctores tantum, a man is only liable for 
his own fault. This is the rule of the German law. By that law 
the master is not, as a general rule, responsible for damage to third 
parties caused by his .servant in the exercise of his employment, 
though, if he authori.ses or permits the damage to be cau.sed, or has 
notice of the careless conduct of his servants, he would be liable. 
The Roman-Dutch law, however, recognises and adopts the pi'inciple 
that a master, or employer, is liable for the injuries caused by l)is 
servants, or workmen, within the .scope of their employment (Lewis 
V. Salisbury Gold Mining Go., 11 C.L.J. 137; 1 Off. Rep. 1). 

Culpable homicide, the unlawful killing of a person without 
malice aforethought. On this subject see 19 S.A.L.J. at p. 132. In 
the Native Territories' Penal Code (Act 24 of 1886 (C.C.)), sec. 135, 
it is provided that " homicide is culpable when it consists in the kill- 
ing of anj' person either by an unlawful act oi- by a culpable omission 
to perform or observe any legal duty, , or by both combined; or by 
causing a person by threats or fear of violence, or by deception, to do 
an act whicli causes that person's death, or by wilfully frightening a 
child or sick person." See Ordinance 18 of 1845 (N.), sec. 28. 

Culpable insolvency. In the Cape Colony an insolvent whose 
estate has been placed under sequestration is deemed to be guilty of 
the crime of culpable insolvency (sec. 71 of Ordinance 6 of 1843 (C.C.)) 
if (1) he shall fail to attend before his creditors at the tirst, .second and 
third meetings or any adjournment of the second meeting, unle.ss 
authoiised not to attend by the Master or magistrate, as the case may 
be; or (2) shall, without good and lawful reason, fail to attend before 
his creditors at any meeting after having been personally served with 
a notice in writing, signed by the Master or the magistrate, as the case 
may be, requiring him to attend such meeting ; or (3) .shall not when 
thereto required by the Master or magistrate, as the case may be, 
at any meeting of his creditors account for or discover what has be- 
come of any money or valuable security or other property or effects 
which shall have been proved to have been in his posses.sion so' re- 
cently before the sequestration as to make it his duty so to do; or 
(4) shall not, when thereto required by the Master or magi.stiate, 
or when thereto required in writing by the trustee [printed as 
amended by sec. 10 of Act 38 of 1884 (C.C.)] give a true and sufficient 
explanation of the cause or causes of his insolvency ; or (5) if he shall 
have given to any of his creditors an undue preference; or (6) shall 
have contracted any debt without any reasonable or probable expec- 
tation at the time of contracting the .same of being able to pay the 
same; or ^^7) shall have incurred any debt by j'eason of any breach of 
trust; or (8) shall without having obtained his certificate and the 
allowance thereof, between the time of making the order for seques- 
tration of his estate and the time of making the decree confirming the 
account and plan of distribution, have entered into any dealing or 
business, or taken upon him the buying and selling of any goods, 
wares or, mei'cliandise, whether for himself or any otlier pergon with- 



CULPABLE 157 CURATOR 

out the authority in writing of the trustee or Master, as the case may 
be ; or (9) shall have granted, made or promised an}'- gratuity, pay- 
ment, security or other undue consideration in order to procure or 
obtain the concurrence or assent of any creditor either to any offer of 
composition or to the certificate as mentioned in the Ordinance ; 'or 
(10) sliall not have kept or caused to be kept such reasona.ble and 
proper books or accounts containing all such entries concerning and 
exhibiting the nature of his dealings and transactions as (regard 
being liad to his particular trade or calling) might reasonably be 
expected or required [this is under sec. 9 of Act 38 of 1884 (C.C.)]. 
The punishment for culpable insolvency is imprisonment with or 
without hard labour for a period not exceeding six months. 

The definition of culpable insolvency in the Transvaal is very 
similar to that of the Cape Colony ; it differs from (6) above by 
making it applicable only to debts amounting to £50 or upwards ; 
(7) and (8) are omitted. The punishment is the same as in Cape 
Colony (see sec. 147 of Law 13 of 1895). 

As to Orange River Colony, see O.R.C. Law Book, chap. 104, 
sec. 71. 

Cum nemo juri aJieno renunciare possit, since no one may 
renounce or alienate the right of another. Privileges granted to 
corporations cannot be destroyed by the renunciation of individuals, 
nor by acts done by them contrary thereto. 

"Cum rights." "The phrase cum rights must prima facie be 
taken to refer to rights accruing at or after the date of the sale, 
and not to bonus shares which had been distributed among the 
shareholders three weeks before the date of tlie sale" {-per De 
ViLLiERS, C.J., in Logan v. Beit, 7 S.C. at p. 215). 

Cumulative, increasing in force, weight, number or effect by 
successive additions. 

As to cumulative sentences, see Ordinance 1 of 1903 (T.), sec. 253. 

Curatele or curateele (D.), guardianship; curatorship; trustee- 
ship. See Curator ; Guardianship. 

Curatio funeris, the duty of burying a deceased per.son. It is 
a quasi-contractual obligation. A quasi-contractual obligation is an 
implied contract, that is, a contractual obligation which the law infers 
from the existence of a given set of circumstances, as binding upon the 
parties. 

Curator, a person duly appointed to_ manage the affairs of another 
who, from some cause or other, is him.self unable or unfit to manage 
his own affairs. " The XII Tables placed under the care of their 
agnates madmen (ficriosi) and such spendthrifts (prodigi) as had 
been formally prohibited from dealing with their own estates " 
(Roby's Private Roman Law, p. 121). Guratm^t may, in the Trans- 
vaal, al.so be appointed by pe^•sons bequeathing property, to administer 



CURATOR 158 CURATOR 

and manage such property during the minority or insanity of the 
person to whom the property is bequeathed (sec. 73 of Proclamation 
28 of 1902 (T.)). See Curator datur rei. 

Curator ad litem, curator for the purpose of a suit, i.e. a curator 
appointed by the court to protect tlie interests of some party to a 
legal proceeding who is unable, or is alleged to be unable, to protect 
his own interests. 

A minor who lias no guardian must when suing or being sued 
have a curator ad litem appointed to conduct the suit upon his behalf. 
To have a per.son declared insane or incapable of managing his affairs 
a petition to the court for the appointment of a curator ad litem 
to the alleged lunatic is necessary. The duties of a curator ad 
litem are to watch and protect the minor or alleged lunatic's interests, 
and tliey end with the completion and final settlement of the case 
or inquiry. As regards the duties of a curator ad litem in lunacy 
proceedings, Watermeyer, J., in the case of Bathgate (3 Searle, 187), 
said : " The duty of a curator ad litem (in lunacy proceedings) is this, 
to ascertain as far as he can, whether what is alleged respecting 
the individual to whom he is appointed curator is true or is not 
true, and to endeavour to prove in contradiction to what is alleged 
by the person stating it is a case of lunacy, that the alleged lunatic 
is sane and of sound mind. If he find he cannot do that, then his 
duty is to state that in court at all events." 

Curator bonis, (1) persons appointed by the court to manage 
&\v\ control the property of those persons (not being minors) who, 
for reasons satisfactory to the court, are unable to manage and control 
their own property. 

(2) Persons appointed by the Master of the Supreme Court: (a) in 
the estates of deceased persons, to take charge of such estates until 
letters of administration have been granted to executors testamen- 
tary or dative (Melass'n Estate, 13 S.C. 97); (6) in insolvent estates, to 
take charge of such e.states until the same have been finally seques- 
trated and a trustee appointed [Wood v. Webb, 4 E.D.C. 4; Sprigg tfe 
Co. V. Eraser & Sons, 15 C.T.R. 45); (c) pending letters of confirmation 
being granted to any one as tutor testamentary or dative or curator 
nominate or dative. 

Curator datur rei, a curator is given to the property. In the 
Roman law curators were appointed to tninors, lunatics and prpdigals. 
They were said to be given to the property, as their exclusive duty was 
to see that the person under guardianship did not waste his goods. 
On the other hand, tutors or the guardians appointed to persons under 
puberty were said to be given to the person, for although they ad- 
ministered the property of the pupil they were appointed chiefly to 
.supply what was wanting to complete the pupil's legal character. This 
distinction between the tutela of tTnpuberes and the cura of minors 
does not exist in the Roman-Dutch law, according to which all persons 



CURATOR 159 CURSUS 

under tlie age ot" majority are minors, whose guardians are appointed 
botli to the care of the person and the administration of the property. 
See Tutor datur personae. 

Curators dative, persons appointed by the Master of the Supreme 
Court, after observance of the prescribed formalities, to taiie care of 
the estate, or property of absent persons. 

Curators nominate, persons appointed by any one bequeatii- 
ing or giving property to a minor, or to a person of unsound mind 
or weak intellect, for the purpose of administering or managing the 
property of such minor, or person of unsound mind or weak intellect, 
during the period of minority or other disability. Curators nominate 
may not enter upon the administration or management of any 
estate or property, except for the purpose of preservation or safe 
custody, until letters of confirmation have been granted to them 
by the Master of the Supreme Court. 

Curia advlsari VUlt, the court desires to consider ; the phrase 
used when a court of law reserves its judgment; abbreviated in tlie 
reports to cur. adv. vult. and G.A.V. 

Current coin. In the Transvaal Crimes Ordinance (26 of 1904), 
sec. 3, current coin means "any coin used in any place as jnoney, 
and stamped by or under the authority of the Government of such 
place, whether within or without his Majesty's dominions in order 
that it may be so used ; coins issued by the mint of the late South 
African Republic are current coin." 

"Current value." The expression current value in found in 
the South African Customs Acts. In the Cape Customs Amend- 
ment and Tariff Act (6 of 1898), sec. 6, we find it provided : " The 
term current value, in the preceding section referred to, shall be 
taken to be the true current value in the open market for such 
goods at the place of purchase by the importer or his agent, in- 
cluding the cost of packing and packages; but not including agent's 
commission, if it does not exceed 5 per cent. : provided that in no 
case shall the true current value as above defined be less than the 
cost of the goods to the importer at the place of purchase." The 
Natal definition is precisely the same (see Act 13 of 1899, sec. 62). 

Cursus curiae est lex curiae, the practice of the court is the 
law of the court. A well-established practice must be adhered to, for 
an inveterate practice in the law generally stands upon principles that 
are founded on justice and convenience. " Every court is the guardian 
of its own records and master of its own practice" (pe?- TiNDAL, C.J., 
in Scales v. Cheese, 12 M. & W. 687). 

" Inasmuch as it is a mere matter of procedure, the maxim cursus 
curiae lex curiae must apply, and it is no argument to say that there 
was no actual contested case in which this procedure has been laid 



CURSUS 160 OYNSEN , 

down ; for a course of procedure may be adopted and hold good even 
though there has been no decision on the point" (per Wessels, J., in 
Wayland v. Transvaal Government, [1904] T.S. at p. 758). 

Curtilage, a piece of ground occupied by a dwelling-house and 
its outbuildings. It is an English law term : see 24 & 25 Vict. c. 96, 
sees. 55 and 56 ; and Stephen's Digest of the Criminal Law, art. 343. 
Probably its first appearance in South African statute law was in 
the Cape Public Health Amendment Act (23 of 1897), sec. 2. 

Custody of children. " When the couit grants a decree for the 
dissolution of a marriage or for a judicial separation, the custody of 
the children is in the discretion of the court, which must look to all 
the circumstances of the case and be chiefly guided by the considera^ 
tion of what is best for the children. Prima facie a guilty parent 
would not be a proper person to have the custody, but there might be 
circumstances that would make it desirable that the children, or some 
of them, should be brought up by him or lier " {per Smith, J., in 
Simey v. Simey, 1 S.C. at p. 176). See also Ex parte Jansen (18 S.C. 
at p. 156); Painter v. Painter (2 E.D.C. 147); Mitchell v. Mitchell 
([1904] T.S. 128); Hooper v. Hooper ([1908] E.D.C. 474); Golehy- 
Clarlce v. Goleby-Clarke ([1909] T.H. 60). 

Custom. Law is divided into wiitten and unwritten law, the 
latter consisting of custonis which have been established by long 
usage. In order that a custom may acquire the force of law there are 
several requisites. In the first place, the acts must have been done 
freely and frequently and for a sufficient length of time. As to length 
of time, that question Schorer (Note 6) states is properly left to the 
discretion of the judge, but some authorities (he adds) require the 
same length of time as is uecessarj' for prescription. Then the custom 
must be reasonable and just, and the acts which constitute it must 
be uniform (see Grotius' Introd. 1, 2, 21 ; Schorer loc. cit. ; Van 
Leeuwen's Comm. 1, 3, 10 et seq., and Decker, ibid, in notis ; Van der 
Linden's Institutes, 1, 1, 7; Zeiler v. Weeber, 1 K. 18). 

Customer. To create the relation of customer and banker there 
must be some sort of account between the parties — either a deposit or 
a current account. A person who is known tu a banker as one accus- 
tomed to coming and getting clieques casiied at the bank without 
having an account is not a customer (Great Western Railway Go. 
V. London and County Bank, 15 L.T. 152 ; [1901] A.C. 414). 

Cutting wood. See Servitude ob' Cutting Wood. 

Cynsen (D.), census. See Census. " The right to receive a cer- 
tain irredeemable annuity, reserved by a person when he transfers 
the ownership in his property" (Grotius' Introd. Maasdorp's trans, 
p. 184). 



OYNSGERIOHT 161 DAIRYMAN 

Osmsgericht (D.), a court established in Holland about the four- 
teenth century for tlie purpose of dealing with disputes about taxes 
and contributions (Wessels' History, p. 152). 

Oyus (D.), a burden or tribute imposed by a lord upon the villeins 
to whom land was given for cultivation. This was done by the lord 
at his own pleasure, without entering into any contract with his 
villeins. After villeuage was abolished land continued subject to this 
burden or tribute (Meyer's Woordenschat, sub voce " Cyus " ). Hence 
the expression Gynsbaar-land, i.e. land subject to such a burden or 
tax, continued in use after villenage ceased to exist in the Netherlands. 
Cyus is the same as census, which is defined by Van Leeuwen in his 
Commentaries (Kotze's trans. 2, 12, 1) as the right by which a yearly 
rent is perpetuallj'' and hereditably imposed by the vendor over im- 
movable property when sold, and is called by some perpetual and 
irredeemable rent; by others former or ancient ownership (oudeygen). 



Daaden (D.), to do. 

Daadigen (D.), to dispute, plead or argue*; also to approve or 
ratify ; to surrender on terms, to capitulate (daadingen). 

Dadiugsmau (D.), an arbitrator. 

Dagliedingen (D.), to sue or cite any one in law. 

DagVEiarding (D.), a summons or citation. The initial proceeding 
in an action, whereby the defendant is required to appear in or before 
a court. See Kersteman's Woordenboek, vol. 2, p. 246. 

Dairy, a place where milk is kept in quantity for the purpose of 
securing the cream, or for making butter or cheese. In the Cape 
Public Health Amendment Act (23 of 1897), sec. 2, the term dairy 
is defined to include " any farm, farm-house, cow-shed, milk-store, 
milk-shop, or other place from which milk or the product of milk 
is sold or supplied, or is kept for purposes of sale or profit." A 
similar definition is to be found in the Orange River Colony Public 
Health Ordinance (31 of 1907), sec. 1. See Hulley v. Johannesburg 
Municipal Council ([1909] T.S. at p. 119). 

Dairyman, a person who keeps a dairy, or who deals in dairy 
produce. In the Cape Public Health Amendment Act (23 of 1897), 
sec. 2, the term dairyman is defined to include "any occupier of a 
dairy, dealer in milk, or person keeping any cow for the purpose of 
selling milk." The Orange River Colony Public Health Ordinance 
(31 of 1907), sec. 1, defines dairyman as including "any cow-keeper, 
purveyor of milk, occupier of a dairy, dealer in milk or milk pro- 
ducts, and any person keeping a cow or cows who sells milk or milk 
products." 



DAKSOHAER 162 DAMNUM 

Dakschaer (D.), to sue or summon in law. 

Dam, an " aitificial storage or accumulation of water " (Act 43 of 
1899 (N.), sec. 4). 

Damntun absque (or sine) injuria, damage without legal in- 
jury — in other words, loss or damage caused by acts which do not give 
rise to any cause of action, because they do not constitute a breach of 
legal duty or an invasion of another's legal rights. Damage of this 
nature is that which is caused by an act done lawfully and without 
infringement of the rights of the injured person. Injuria, as used 
hei-e, means that which arises from dolus or culpa, without which 
mere damnum, will create no right of action. As instances of persons 
who cause damnum sine injuria, may be mentioned he who erects 
upon his own land buildings which obstruct his neighbour's light or 
prospect where the latter has no servitude in favour of his property 
entitling him to either of the.se ; he who places broken glass on a wall 
bounding his land, and the horse of another, in jumping over the wall 
in order to get into the enclosed land, is injured by the glass (Pretorius 
V. Coetzee, 1 S.A.R. 77); a person who destroys his neighbour's house 
as the only means of preventing a fire which has broken out from 
spreading to his own property ; a trader who establishes a rival bu.si- 
ness and draws away the customers from a business previously 
established (cf. Mission Trading Co. v. Ressel, Buch. 1879, p. 74) ; 
claimholders in a diamond mine who have ceased to work their claims, 
and water having found its way by gravitation to their claims over- 
flows and floods neighbouring claims (Reed v. Be Beers Consolidated 
Mines, 6 H.C.G. 179). See also Eastern and S. A. Telegraph Co. 
v. Capetotvn Tiumways (17 S.C. 95); De Pass & Co. v. Rawson 
(1 Roscoe, 108; and .5 Searle, 1). 

Damnum emergens, loss arising ; damage which has been 
actually done, as distinguished from lucrum, cessans, or " loss of 
future benefits ' with respect to the thing itself or its value, of which 
the owner may be deprived by non-payment.' " When combined these 
constitute the id quod interest, or whole damage, including loss of 
profit, sustained by breach of contract (Berwick's Translation of Voet, 
p. 82, in notis). 

Damnum fatale, inevitable loss; loss . arising from inevitable 
accident. See Casus Fortuitus, the equivalent expression more 
commonly used in the Roman-Dutch law. 

Damnum infectum, damage which has not been incurred, but 
which is anticipated, or which it is feared may be incurred. For 
instance, if a person built so high that his building threatened damage 
to his neighbour, the neighbour would be entitled to cautio damni 
infecti. See Grotius' Introd. 3, 3, 39; Schorer's Notes, n. 58; Kerste- 
man's Woordenboek, vol. 2, p. 238. See also Cautio damni infecti. 



DAMNUM 163 DAYS 

Damnum injuria datum, damage caused by an actionable wrong. 
Such damage may consist in injury to the person arising out of negli- 
gence or any other unintentional violence or injury to property, and 
is to be distinguished from damage caused by intentional wrongs 
involving the element of contumely or insult, such as assault, mali- 
cious prosecution, false arrest or defamation of character, which in 
Roman law fell under the class usually known as injurio.e. See De 
Villiers' La^v of Injuries, p. 22 ; Maasdorp's Institutes, vol. 4, p. 21 ; 
Injuria. 

Danger building, an expression used in the Transvaal Explosives 
Ordinance (4 of 1905), sec. 2, where it means " any building or part 
thereof used as an explosives factory or explosives magazine or in 
connection therewith, unless in respect of such building or part thereof 
a certificate has been granted under regulations framed under this 
Ordinance." 

Datio in solutionem, giving in order to effect discharge, i.e. giv- 
ing something else in place of that which is due. This is valid pay- 
ment if accepted by the creditor. 

Datio ob causam quae non sequitur. See Condictio cau.sa 

DATA CAUSA NON SECUTA. 

Datio ob turpem causam. See Condictio ob turpem vel in- 

JUSTAM CAUSAM. 

Datio sine causa. See Condictio sine causa. 

Day. A legal day consists of twenty-four hours, and begins 
and ends at midnight (Jenks' Digest of English Civil Law, bk. 1, 
sec. 148). See Clear Days' Notice. " When any particular num- 
ber of days is prescribed for the doing of any act, or for any other 
purpose, the same shall be reckoned exclusively of tlie first and 
inclusively of the last day, unless the last day shall happen to fall 
on a Sunday, Christmas Day, New Year's Day, Good Friday, Easter 
Monday, Ascension Day, Whit Monday, Queen Victoria Day (24th 
May) or any other day appointed by Proclamation of the Governor 
as a solemn fast or day of thanksgiving, in which case the time 
shall be reckoned exclusively of the first and of every other such 
day also " (Act .5 of 1883 (C.C), sec. 6, as amended by Act 15 of 
1902 (C.C), sec. 1); also Ordinance 3 of 1902 (O.RC), sec. 11. 

Days of grace, certain days allowed to the parties to a bill 
after its due date (unless otherwise provided in the bill), for its 
payment, and before the expiration of which a right of action does 
not accrue. In England three days of grace are allowed (English 
Bills of Exchange Act, 1882, sec. 14). 

" The number of days of grace allowed in different countries 
differs considerably. Originally, as the name implies, days of grace 
were a matter of favour, but they have [in England] long been a 

h2 



DAYS 164 DE 

matter of right. Thus, presentment for payment on the second 
day of grace is invalid. The allowance of days of grace is regulated 
by the lex loci solutionis, irrespective of tlae country where the 
bill is drawn " (Chalmers' Bills of Exchxinge, 6th ed. p. 37). 

As early as 1844 (in Randall's Trustees v. Haupt, 1 Menz. 79) 
it was held that there were no days of grace recognised in the law 
of the Cape Colony ; but days of grace were allowed in the Trans- 
vaal until the year 1902. Days of grace were formally declared not 
to exist in the Cape Colony by sec. 12 of the Bills of Exchange Act, 
1893 ; as also in Natal by sec. 13 of the Bills of Exchange 
Law, 1887 ; and in Rhodesia by sec. 12 of the Bills of Exchange 
Regulations, 1895. Bays of grace were abolished in the Transvaal 
by sec. 12 of the Bills of Exchange Proclamation, 1902; and in 
the Orange River Colony by sec. 12 of the Bills of Exchange 
Ordinance, 1902. 

Das^ime " means the period between sunrise and sunset '' (Ordi- 
nance 26 of 1904 (T.), sec. 3). 

De bonis propriis, from his own property ; out of his own 
pocket. A person suing or defending not in his own name, but 
in a representative capacity, e.g. as a trustee or executor, is not liable 
personally for the costs incurred by him unless he has been guilty 
of misconduct or has acted negligently or unreasonably. Thus, where 
a provisional trustee, without the creditors' authority, applied for an 
interdict and was unsuccessful, but the facts showed he had acted 
bond fide in order to protect the estate, and not without prirad facie 
grounds for the application, the court refused to mulct him in costs 
de bonis propriis (Shapiro's Trustee v. Livingstone and Another, 
[1907] T.S. 957). See also Re Estate Potgieter ([1908] T.S. 982); BeU 
V. Bell's Trustee ([1909] T.S. at pp. 61 et seq.). On the other hand, a 
trustee or executor who fails to file accounts of administration 
within the time prescribed by law is liable for the costs of an appli- 
cation at the instance of any interested person to compel him to do 
so, as it is the trustee's or executor's duty to apply immediately to 
the court for time to tile his accounts {Norden v. Brink, 3 Menz. 270; 
see also Kotze v. Kotze's Trustees, 2 Menz. 414, and Doornbo.ck v. 
Hofmeyr, 17 C.T.R. 1134). 

De duobus vel pluribus reis debendi. The beneficium novae 
constitutionis de duobus vel pluribus reis debendi (benefit created by 
a new constitution in regard to two or more debtors) was introduced 
by Justinian, by which, if several persons bind themselves as principal 
debtors, each is only liable for his proportionate share of the debt. 
If, however, he renounces this benefit, he becomes liable for the whole 
debt. See Beneficium de duobtjs vel plueibus reis debendi. 

De facto, according to fact; in point of fact, as opposed to de 
jure, in point of law. 



DE 165 DE 

De industria, purposely, intentionally; antithetical to per in- 
curiam, by mistake or carelessness. 

De jure, according to law ; in point of law, as opposed to de facto, 
in point of fact. 

De lunatico inquirendo, a judicial inquiry into a person's sanity, 
and his capacity of taking care of himself or of his property. Where 
the lunatic has no property it is unnecessary to have him judicially 
declared insane, but he may be placed and kept under restraint by 
order of a magistrate (Act 1 of 1897 (C.C.)). 

De minimis non curat lex, the law does not concern itself about 
trifles. A thing is not capable of being stolen unless it possesses some 
value. Otherwise it would be a crime, as Lord Macaulay says, to dip 
one's pen in another man's inkstand, or to pick up a stone in his 
garden to throw at a bird. 

De novo, afresh. When absolution from the instance has been 
granted a plaintiff, he may proceed de novo if equipped with further 
proof. 

De piano, immediately ; without formality. 

De ventre inspiciendo, for inspection of the womb. This was the 
name given in Roman law to a piocedure where a husband, after 
divorcing his wife, suspected she was pregnant by him. If she refused 
to admit the fact the husband could have her summoned before the 
praetor, and if she denied it in answer to tiie praetor, the latter could 
appoint three skilled midwives de ventre inspiciendo, whose decision, 
or the decision of two of whom in the event of a conflict of opinion, 
was accepted as the truth of the matter (Voet's Comm. 25, 4, 2). 
Where the woman was found not to be pregnant she had an actio 
injuriarum against the husband if he had acted animo injuriandi 
(Voet, ibid.). A ventris inspectio might also take place if a widow 
alleged she had been left pregnant by her husband. In this case the 
persons most nearly and immediately interested in the succession could 
have her examined by Ave respectable matrons and kept under re- 
straint until the birth of the child (Voet, ibid. 25, 4, 3). Although 
no case appears to have arisen within the last centuiy in which this 
procedure has been followed in the Roman-Dutch courts, it is quite 
in accordance with English practice, which gives to the presumptive 
heir a writ de ventre inspiciendo to establish the truth or otherwise 
of the widow's pregnancy. 

So, where a woman, being sentenced to death, alleges, or the court 
has reason to believe, she is pregnant, a jury of twelve matrons is em- 
panelled to decide whether she is quick with child, and if she is found 
to be so, the court suspends execution of the sentence until she is 
delivered or it is no longer possible that she should be so delivered 
(Archbold's Criminal Pleading, 23rd ed. p. 229). 



DEALER 166 DEATH 

Dealer. In the Cape Diamond Trade Act (14 of 1885), sec. 35, 
the words dealer and deal include " buyer, seller, broker and factor, 
and anj' sort of dealing in diamonds." 

In the Transvaal Diamond Trade Ordinance (63 of 1903), sec. 43, 
dealer includes " buyer, seller, broker and factor." See Bebro v. Rex 
([1904] T.S. 387). 

Dealer in firearms is defined in sec. 23 of Ordinance 2 of 1853 
(C.C.), as amended by Act 11 of 1875 (C.C.), as : " Every person being 
the keeper either individually or as one of some number of copartners 
in trade of any store, shop or other place where wares and merchandise 
are exposed for sale who shall have in his possession any guns, pistols 
or unconnected parts thereof, or percussion caps or lead, other than 
those used by him for the defence of his person or property or for 
sporting, shall be deemed and taken, until the contrary be proved, to 
be a dealer in firearii\s within the meaning of this section." 

See Ordinance 13 of 1902 (T.), sec. 17 (2). 

Dealer in gunpowder, " any person who sells gunpowder, explo- 
sives and explosive substances " (Act 38 of 1887 (C.C3.), sec. 3). 

Dealer in old metal, in Act 11 of 1907 (N.), sec. 1, is defined as 
" any person carrying on any business of dealing in, buying or selling 
old metal, scrap metal, broken metal, or partly manufactured metal 
goods, or defaced or old metal goods, whether such person deal in 
any such articles only or together with other goods, but not including 
founders or manufacturers who buy old metal for use only in their 
business as such." 

Dealer in second-hand goods. The expression dealer in 
second-ha7id goods is defined in the Cape Second-hand Goods Act 
(10 of 1895), see. 25, to mean " every person carrying on the trade, 
business or occupation of dealing in, buying or selling second-liand 
goods." See Second-hand Goods. 

Death. As to presumption and proof of death, see Re Kirby 
(16 S.C. 245; 9 C.T.R. 217); Re Kannemeyer (16 S.C. 404; 9 C.T.R. 
440); Re^ Hoffmeister (17 S.C. 539; 10 C.T.R. 753); Re Fernandez 
(3 C.T.R. 293) ; Re Safodien (3 C.T.R. 145) ; Re Gledhill (12 N.L.R. 
43); Re Selby (13 N.L.R. 74); McGubbin v. Knox (14 N.L.R. 187); 
Re Smit ([1903] T.S. 12) ; Re Ghaddock (15 C.T.R. 373 and 597). 

As to alteration of the name of a deceased person in the Register 
of Deaths, see Re StaeJilin ([1907] T.S. 68). 

As to consent to death in Cape Native Territories, see Act 24 of 
1886 (C.C), sec. 76. 

Death notice, a written statement, required in connection with 
the administration of the estates of deceased persons, containing 
certain prescribed particulars concerning a deceased person, such as 
(a) his name and birthplace, also the names of his parents; (b) his 



DEATH 167 DEBENTURE 

age; (c) liis condition in life; (d) whether married or unmarried, 
widower or widow; (e) the day of decease; (/) at wliat house or 
where the person died; (g) names of his children, stating whether 
they are majors or minors ; (h) whether the deceased has left any 
property, and of what kind ; (i) the name of his surviving spouse, if 
S'ly ; (j) the name and approximate date of death of any predeceased 
spouse of the deceased ; and (k) whether the deceased left a will or 
not. See sees. 9 and 10 of Ordinance 104 of 1833 (C.C.) ; sec. 4 of 
Act 27 of 1895 (CO.); sch. 3 of Act 38 of 1899 (N.); sees. 5-7 of 
Proclamation 28 of 1902 (T.); sec. 3 of Ordinance 18 of 1905 (O.R.C); 
and sec. 4 of Government Notice 65 of 1896 (R). The requirements of 
the death notice vary slightly in some of the colonies of South Africa. 
The death notice is tiled in the office of the Master of the Supreme or 
High Court (as the case may be), and as it constitutes an important 
starting-point of the records of the estate of a deceased person, care 
should be taken to make it as complete as possible. It is the duty of 
the nearest relative or connection of the deceased, who shall at the 
time be at or near the place of death, to frame and file the death 
notice, or failing such nearest relative or connection, it becomes the 
duty of the person who at the time of or immediately after the death 
had chief charge of the house in, or of the place on, which the death 
occurred. Failure to perform this duty is punishable by fine or 
imprisonment, varying in the difl'erent colonies. 

Death Register. (1) A register kept in the office of the Master 
of tlie Supreme Court of the Cape Colony (see sec. 11 of Ordinance 
104 of 1833) in which he shall cause to be inserted every death notice 
transmitted to him in manner provided for in sec. 9 of Ordinance 104 
of 1833 (C.C.) See Death Notice. 

(2) An official register in which all deaths in the town or district 
are recorded. As to alteration of the name of a deceased person in 
the Register of Deaths, see Re Staehlin ([1907] T.S. 68). 

Debenture. "Taking the test of conventional or commercial 
usage, a debenture may be roughly described as an instrument under 
the seal of a company providing for the payment of a principal sum 
at a specified date, and for the payment in the meantime of interest 
half-yearly, and being one of a series of like debentures charged or 
secured on the company's undertaking. In ninety-nine cases out of 
a hundred this description of a debenture will be found fairly accurate, 
but the description cannot be treated as an exhaustive definition, for 
the term debenture is of an extremely elastic character" (Palmer's 
Company Precedents, pt. 2, 9th ed. p. 3 ; see also the authorities there 
quoted). 

In the Cape Colony, in Act 43 of 1895 (Company Debenture Act), 
sec. 1, debenture is defined to mean " a deed or document acknowledg- 
ing indebtedness in a certain sum of money, and duly executed in 
accordance with law and with the provisions of the memorandum 
and articles of association or trust deed, if any, of the company 
granting the same." 



DEBITEUR 168 DEBTOR 

Debiteur (D.), pi. debiteuren, a debtor. See Debtor. 

Debitum in diem, a debt whicjh is due, but is not yet payable. 
See DiKS cedit. 

Debt due. These words, as they appear in sec. 6 of Ordinance 
12 of 1904 (T.), which provides for attachment under a garnishee 
order, must receive their ordinary meaning, so that the garnishee 
must be under an obligation to pay the judgment debtor, and there- 
fore it is only debts actually due which can form the subject of 
attachment by garnishee order under the Ordinance (per Innes, C.J., 
in White v. Municipal Council of Potchefstroom, [1906] T.S. at 
p. 48). 

" It seems to me that for a debt to be due there must be a 
liquidated money obligation presently claimable by the debtor, for 
which an action could presently be brought against the garnishee. 
If such an obligation exists, then, to my mind, a debt is due. And 
such an obligation need not necessarily arise from contract ; it may, 
I think, be created by statute" (per Innes, C.J., in Whatmore v. 
Murray, [1908] T.S. at p. 970). 

Debt registry, a register kept in the office of the Registrar of 
Deeds for the puipose of registration of all mortgages and hypotheca- 
tions capable of registration. The fii'st debt registry in South Africa 
was established by Proclamation of the 19th June, 1714, which, after 
reciting that owing to the absence of a proper .system of registration 
" not only many difficult lawsuits are caused, but likewi.se the good 
inhabitants or the Company's servants who are inclined to put out their 
money at a proper interest are kept back, inasmuch as it can never be 
seen what may be due by any persons bj?^ kustingbrieven or obliga- 
tions before Schepenen, Orphan Masters, and writings of mortgage on 
their immovable property, which, for the welfare of the good inhabit- 
ants, ought not to be," proceeds, to provide for the production and 
registration of all existing kustingbrieven, obligations before Sche- 
penen, Orphan Masters and other writings of mortgage within a certain 
time, and for the registration of all such deeds in future under penalty 
of forfeiture of such preference as would otherwise in that respect 
be awarded before other creditors. Further proclamations dated 
22nd April, 1793, and 15th Ma3^ 1805, were issued on the same 
subject. These have been amended and improved upon from time to 
time, the result being the admirable system of debt registry which pre- 
vails in all the South African colonies. For the purpose of securing 
preference all mortgages and hypothecations must be registered in the 
office of the Registrar of Deeds. 

Debtor, one who is indebted to another ; a person by whom money 
is due and owing to a creditor. " Creditor and debitor denote re- 
spectively the person entitled to the benefit of an obligation and the 
person bound thereby. Causa debendi, therefore, is equivalent to 
causa obligandi" (Van Leeu wen's Gomm. Kotze's trans, vol. 2, p. 8, 
translator's note). 



DECIDE 169 DEED 

Decide. " To decide a matter means to take it into consideration 
and to settle it" (per Innes, C.J., in Juden v. Registrar of Mining 
Rights, Krugersdorp, [1907] T.S. at p. 1049). 

Decision, a judgment or ruling upon some matter at issue. 

As to tlie " decision of a Commissioner," see Transvaal Chamber 
of Mines v. Tucker and Henderson ([1904] T.S. at p. 521); Stark v. 
Transvaal Chamber of Mines ([1907] T.S. at p. 17.0). 

Declaratory statutes " are where, the old custom of the kingdom 
being almost fallen into disuse or become disputable, the Parliament 
has tliouglit proper, in perpetuum rei testimonium, and for avoiding 
all doubts and difficulties, to declare what the common law is and ever 
hath been " Stephen's Comm. 15th ed. vol. 1, p. 39 ; see also Craies' 
Statute Law, p. 59). 

DecUnatoire exceptie (D.), declinatory exception ; an exception 
to the person of the judge by way of recusing him. See Van Leeuwen's 
Comm. Kotze's trans, vol. 2, p. 456. 

Decreet (D.), " the judicial order declaring the property executable. 
A cumbrous procedure was necessary after judgment before the decreet 
could be obtained" (per De Villiers, C.J., in Brink, N.O., v. High 
Sheriff and Others, 12 S.C. at p. 419). The term was used in the 
old Dutch courts, and is now obsolete in South Africa. 

Decreta, the name given in the Roman law to judicial sentences 
pronounced by the Emperor in cases brought before him as supreme 
judge. The decreta formed one of three kinds of imperial constitu- 
tions, which came in time to be the only source of law. The other 
two kinds were : (1) Epistolae, answers by letter addressed to indi- 
viduals or public bodies, mandata, orders given to particular officers, 
and rescripta, instructions or answers by letter given by the Emperor 
to magistrates who had submitted questions to him upon cases which 
had come before them; (2) Edicta, rules or laws published by the 
Emperoi', and binding generally on all his subjects. 

Dedication to the public, setting aside something, such as land, 
for the use of the public. See Londovj and South African Explora- 
tion Co. v. Kimberley Town Council (1 H.C.G. 136) ; Fleming v. 
Liesbeck Municipality (3 S.C. 268); Stuart v. Grant (24 N.L.R. 
at p. 428). The dedication of a highway to the public does not 
deprive the owner of his dominium in the soil (St. Mary, Newington, 
Vestry v. Jacobs, L.R. 7 Q.B. 47, per cur. ; 41 L.J. M.C. 72 ; 25 L.T. 
800). 

Deduction. See " Without any deduction or abatement 

■WHATEVER." 

Deed. A deed, as it is known in English law, "is a writing 
if) on paper, vellum or parchment, (ii) sealed and (iii) delivered, 



DEED 170 DEPAUT" 

whereby an interest, right or property passes, or an obligation bind- 
ing on some person is created, or whir-h is in affirmance of some 
act wliereby an interest, right or propeny has passed" (Norton on 
Deeds, p. 3). There are certain peculiarities connected with a deed 
in English law which are miknown in documents called deeds in 
Soutli Africa. In South Africa the expression deed is applied to 
any formal document irrespective of its contents or the manner in 
which it is executed, 

Deedii^en, deedighen, (D.), to dispute, plead, defend. 

Deedingslieden (D.), pleaders, disputants. 

Deedingsman (D.), an arbitrator. 

Deeds Office, the office set apart in each colony, under the control 
of a Registrar of Deeds, where the Land Register is kept and cer- 
tain other deeds are registered. See Debt Registry; Land Register;. 
Registrar of Deeds. 

Deel (D.), sentence, judgment (oordeel). 

Deelen (D.), to pronounce judgment, to sentence. 

Defaillant or Defaut (D.), default, as when a defendant who- 
has been duly summoned to appear before a court does not appear 
in person or by his attorney. 

Defamation was in Roman law a species of injuria by which 
the reputation of a person was affected as a member of society, so 
that he was not thereafter regarded by his fellow-citizens with the 
same esteem. This is also the case in the Roman-Dutch law. The 
essential requisite of defamation is an injury to the reputation of a 
person. A trading corporation does not stand in the same position 
as a person. 

Defamatory libel, in England "consists in the writing and' 
publishing of defamatory words of any living person, or words 
calculated or intended to provoke him to wrath or to expose him. 
to public hatred, contempt or ridicule, or to damage his reputation,, 
or in the exhibition of a picture or effigy, defamatory of him ; and 
such a libel is an indictable misdemeanour if the publication or 
exhibition is calculated to cause a breach of the peace " (Archbold's 
Criminal Practice, 23rd ed. p. 1127). 

As to defainatory libel in Cape Colony, see Act 46 of 1882,, 
sec. 12. 

Defaut (D.), [also spelt default\ default, as when the defendantr 
duly summoned, does not appear before the court on the appointed 
day, and so makes default. 



DEFEATING 171 DELECTUS 

Defeating the course of justice is an indictable otfence in the 
Cape Colony. See Queen v. Foye Carlin (2 App. Cas. 121): Qmen 
V. Kaplan (10 S.C. 259). 

Defective ownership "is where ownership does indeed belong 
to a person, but somebody else has the use, or something is wanting, 
so that he cannot do all lie desires with the thing " (Van Leeuwen's 
Gomm. Kotz^'s trans, vol. 1, p. 155). 

Defendant. "A defendant or summoned person is he who is cited 
a^id resists the plaintiff at law" (Van Leeuwen's Gomm. Kotzes trans, 
vol. 2, p. 367). 

Deficiente probante remanet reus ut erat antequam con- 
veniretur, when the proof fails the defendant remains as he was 
before he was sued. See AcTORi INCUMBIT ONUS probandi. 

Degree. (1) A certain distance between relations in the line of 
descent ; a step in the line of direct descent from a common ancestor. 

(2) In criminal law tlie term degree is used to denote the distinc- 
tions of culpability in criminals. 

(3) A mark of distinction or honour conferred by universities on 
students and men of con.spicuous learning or distinguished rank. 

Degree honoris causa. See Honorary Degree. 

Del credere, an Italian equivalent for warranty, and applied to an 
agent who for an exti-a commission guarantees to his principal the 
solvency of the persons to whom he sells. " Like any other agent he 
is to sell according to the instructions of his pi'incipal, and to make 
such contracts as he is authorised to make for his principal " (per 
Mellish, L.J., in Ex parte White, Re Nevill, L.R. 6 Ch. at p. 403). 
Although he warrants the solvency of the customer, he is not for that 
reason a party to the contract, and cannot sue in his own name 
{Bratnwell v. Spiller, 21 L.T. 672). It is now settled that a del 
credere agent is not responsible to his principal in the first instance^ 
but that his liability arises only when the customer is found unable 
to pay (Hornby v. Lacy, 6 M. &. S. 166; Morris v. Gleasby, 4 M. & S. 
574, 57.5). 

Delectus personae, choice of person. Those are considered as 
having delectus personae who have placed others in a relationship 
towards themselves which involves mutual trust and confidence. 
Thus a person who appoints another as his agent is regarded as 
having chosen liim on account of his personal qualifications for the 
position. The latter, therefore, in the absence of a power of substi- 
tution, cannot appoint a sub-agent so as to divest himself of all 
liability to his principal, for, unless he has such authority to appoint 
another in his place, he will be liable for the acts of a sub-agent, 
except in matters in which it is customary to make such an appoint- 
ment (Qertenbach & Bellew v. Mosenthal and Others, Buch. 1876, 



DELECTUS 172 DELIVERY 

p. 88). So ill the contract of partnership, as each partner has a 
delectus personae with respect to the others, the heir of a deceased 
partner is not entitled, as such, to become a partner in place of the 
deceased (Grotius' Introd. 3, 21, 8; Van Leeuwen's Gomm. 4, 22, 11); 
nor can any new member be introduced into the firm without the con- 
sent of all the partners. 

Delegata potestas non potest delegari, a delegated power can- 
not be delegated. A person to wliom powei-s have been delegated 
cannot as a general rule delegate these powers to another so as to 
release himself from liability, unless the power to delegate has been 
expressly conferred upon him. The reason of this is that in confer- 
ring the powers there has been a delectus personae or choice of a 
particular person on account of his character or ability, and this 
choice would be defeated if the delegate could substitute another 
person who might be unknown to the principal, or if known might 
be disapproved of by him. The following cases are enumerated by 
Story {Agency, sec. 14) as those in which the power to substitute 
may be implied, viz. : " Where it is indispensable by the laws, in order 
to accomplish the end; or it is the ordinaiy custom of trade; or it is 
understood by the parties to be the mode in which the particular 
business might or would be done. Thus if a person should order 
his goods to be sold by an agent at public auction, and the sale 
could only be made bj' a licensed auctioneer, the authority to sub- 
stitute him in the agency, so far as the sale is concerned, would 
be implied. So where by the custom of trade a ship-broker or other 
agent is usually employed to procure a freight or charter-party for 
ships, seeking a freight, the master of such ship, who is authorised to 
let the ship on freight, will incidentally have the authority to employ 
a broker, or agent for the owner, for this purpose. And the same 
principle will apply to a factor, where lie is, by the usage of trade, 
authorised to delegate to another the authority to substitute another 
person to dispose of the property." 

Delegation is a transaction by which a creditor accepts one 
debtor in substitution for another (Standard Bank v. Union Boat- 
ing Co., 7 S.C. at p. 268). 

Delict, a wrong ; a tort ; a violation of a person's rights. 

Delinquanten or Misdadigers (D.), criminals; wrong-doers; 
persons who have committed crimes or delicts. 

Delivery. (1) The placing another person in legal possession of a 
thing so that he may deal with it as his own ; the ceding or giving to 
a.nother the power over a thing in such a way that the physical con- 
trol thereof is united to the legal right of disposing of it. Delivery, or 
something equivalent thereto, is essential to the transfer of ownership 
from one person to another, and without it any amount of intention 
will be of no avail. See National Bank of South Africa, Ltd., v. 
Beckett's Estate and Colonial Government (26 N.L.R. at p. 258). 



DELIVERY 173 DENTIST 

(2) Under the Bills of Exchange Acts delivery means ti"an,sfer of 
possession, actual or constructive, from one person to anotlier (sec. 2 
of English Bills of Exchange Act, 1882 ; Act 19 of 1893 (C.C), sec. 1 : 
Law 8 of 1887 (N.), sec. 1 ; Proclamation 11 of 1902 (T.), sec. 1 ; Ordi- 
nance 28 of 1902 (O.R.C.), sec. 1. 

Demarcated forest. "Demarcated forest shall include such area 
as has been surveyed or demarcated and declared by notice in the 
Gazette to be a demarcated forest, and shall include all pieces or 
portions of Crown land set aside as being forest, or the complement 
of a forest, or plantation, or intended for the site of a plantation, or 
for afforesting operations" (Cape Forest Act, 28 of 1888, sec. 2). 

Dementia, a form of insanity ; the condition of a person in whose 
mind ideas have been more or less formed, but have subsequently 
become entirely obliterated. See Natal Land Colonisation Co. v. 
Molyneux (24 N.L.R. at p. 286). 

Demurrer, an English legal term. "After the plaintiff has de- 
livered his statement of claim, it is the defendant's turn to consider 
in wliat manner it shall be encountered; and he is to address himself 
to this subject in the following manner. If the statement of claim 
appears on the face of it substantially insufficient, in point of law, to 
entitle the plaintiff to what he claims — in other words, if it does not 
show any cause of action — the defendant used to demur, that is, used 
to deliver a written formula, called a donurrer (from demorari), 
importing that he denied such sufficiency on some ground therein 
stated. But demurrers (eo nomine^ have been abolished ; and it is now 
provided that, in lieu of demurring, the defendant may raise in his 
defence the question of the sufficiency in law of the pleading. If, on 
the other hand, the statement of claim appears ex facie to show a good 
cause of action, then the defendant's course is to deliver his defence, 
the general object of which is to make answer, in point of fact, to 
the statement of claim " (Stephen's Comm. 14th ed. vol. 3, p. 575). In 
South African practice an " exception " takes the place of the old form 
of demurrer. 

Denombrent (D.), a feudal term, denoting a command of the lord 
to render him on pain of forfeiture an account of all his feudal pro- 
perty with proper particulars. 

Dentist. In the Cape Colony under the Medical and Pharmacy 
Act (34 of 1891), " dentist means every person duly licensed and bond 
fide engaged on or before the 1st June, 1891, in the practice of den- 
tistry or dental surgery in this [Cape] Colony, either separately or in 
addition to his practice as a physician, surgeon, accoucheur, apothe- 
cary, or chemist and druggist, and also every person duly qualified by 
license and registration under this Act to practise as a dentist in this 
colony." The Natal definition (Act 30 of 1896, sec. 3) is almost 
identical with that of the Cape. See Ordinance 29 of 1904 (T.), 
sec. 3 ; Ordinance 1 of 1904 (O.R.C.), sec. 1. 



DEPENDANT 174 DEPOSITARY 

Dependant, one who relies upon another for maintenance. 

In the Cape Workman's Compensation Act dependants means 
"such members of the workman's family specified in tlie first schedule 
to tliis Act, as were wholly or in part dependent upon the workman 
at the time of the injury which caused his death." The persons so 
specified are : husband, wife, father, mother, grandfather, gi-and- 
mother, stepfather, stepmother, son, daughter, grandson, grand- 
daughter, stepson, stepdaughter, brother, sister. 

In the Workmen's Compensation Act (T.), 36 of 1907, sec. 1, the 
word dependants is defined as meaning " such members of the work- 
man's family specified in the schedule to this Act as are wholly or in 
part dependent upon the workman at the time of the injury which 
caused his death." The persons so specified, in the order of preference 
in which they are entitled to compensation, are as follows : (1) a 
husband or wife and any son or daughter (legitimate or illegitimate) 
or stepson or stepdaughter of the deceased workman ; failing whom 
(2) a fatlier, mother, stepfather, stepmother of the deceased workman; 
failing whom (3) a brother, sister, half-brother, half-sister of the 
deceased workman and any children of such persons ; failing whom 
(4) a grandfather, grandmother, grandson, granddaughter of the de- 
ceased workman (whether the grandson or granddaughter be of legiti- 
mate or illegitimate birth); failing whom (5) any other relative of the 
deceased workman by consanguinity or aflSnity. 

Deposit. (1) A contract whereby a person gives some movable 
property to be taken care of gratuitously, and to be reclaimed at his 
pleasure (Grotius' Infrod. 3, 7, 2). 

(2) A sum of money paid or entrusted by one person to another 
on account, or in part fulfilment, of some undertaking or agreement 
made, or about to be made, between them. 

(3) The payment of a sum of money into a bank or corporation, 
or into the hands of some person, eitlier with a stipulation that it 
is to bear interest or otherwise. 

As to a deposit with a building society being in the nature of a 
onutuum, see Langford v. Moore and Others (17 S.C. at p. 18). Such 
a deposit is a borrowing (ibid, at p. 20). 

Deposit accounts. In the Cape Audit Act (14 of 1906), sec. 3 (J), 
deposit accounts is defined to mean " the accounts relating to funds 
of which the Treasurer is, by statutory obligation or otherwise, a 
trustee and custodian, and such accounts as those of the Guardian's 
Fund, the Harbour Boards, the South African Widows' Fund as are not 
included in the Consolidated Revenue or General Loans Accounts." 

Depositary. (1) The person to whom some movable property 
is given or entrusted to be taken care of gratuitously, and in such 
manner that it may be reclaimed by the depositor at pleasure. " The 
duty of the depositary is twofold. He must keep the thing delivered 
into his custody with reasonable care, and he must upon request restore 
it according to the original trust " {per De Villiebs, C. J., in Standard 
Bank v. Union Boating Co., 7 S.C. at p. 269). 



DEPOSITARY 175 DEPOSITOR 

" I am not prepared to say that under no circumstances can a 
depositary without the consent of the depositor sell goods deposited 
with him for safe keeping, but I am clearly of opinion that if he 
-does so sell them, the burthen lies on him of proving that he acted 
in the interest and for the benefit of the depositor. It is a primary 
duty of a depositary to return the thing deposited when it is required 
of him, and if he is unable to do so he cannot escape liability without 
proving that his inability does not arise out of his own negligence. 
If it is lost or injured through his negligence, he is responsible to 
the extent of the loss or injury. It is no valid defence to the de- 
positor's claim for the return of the goods that the depositary has 
sold them, unless it is clear that the sale was, under the circumstances, 
necessary and for the benefit of the depositor " {-per De Villiers, C.J., 
in Medallie &■ Schiff v. Roux, 20 S.C. at p. 440; see also Kerr v. 
Banti, 18 E.D.C. 277). 

Parties may vary the liability which the common law imposes 
upon a depositary ; see Central South African Railways v. McLaren, 
.([1903] T.S. at p. 733). 

As to depositary for Private Bill Documents required to be de- 
posited in accordance with the Standing Rules and Orders of either 
House of Parliament, see sec. 1 of Act 3 of 1906 (C.C); sec. 1 of 
Act 6 of 1907 (T.) ; and sec. 1 of Act 41 of 1908 (O.R.C.). 

(2) A bank, corporation or person who receives money as a de- 
posit, either with a stipulation that it shall bear interest or othei-wise. 

Depositing site. In the Mining of Precious Stones Ordinance 
(4 of 1904 (O.R.C.)),sec. 5, depositing site means "a piece of land used 
for depositing and working of ground bearing precious stones, and for 
the accumulation of washed ground." 

Deposition, either written evidence, or oral evidence reduced to 
writing, such evidence being given upon oath or affirmation before a 
magistrate, justice of the peace or other proper official. As to the 
admissibility in criminal cases of depositions taken at a preparatory 
examination of a vidtness since deceased, or who has been kept away 
from the trial by the means and contrivance of the prisoner, see sec. 41 
■of Ordinance 72 of 1830 (C.C.) ; or is too ill to travel, see sec. 5 of Act 
17 of 1874 (C.C). See also Law 16 of 1861 (N.), sec. 2 (whereby 
prisoners are entitled to inspect depositions) and Ordinance 1 of 
1903 (T.), sec. 67. 

Depositor. (1) The person who gives some movable property to 
another to take care of gratuitously, and to be reclaimed at the depo- 
sitor's pleasure (Grotius' Introd. 3, 7, 2-8). As to depositor of Private 
Bill Documents required to be deposited in accordance with the Stand- 
ing Rules and Orders of either House of Parliament, see sec. 1 of Act 3 
of 1906 (C.C.) ; sec. 1 of Act 6 of 1907 (T.); and sec. 1 of Act 41 of 
1908 (O.R.C.). , 

(2) A person who deposits or entrusts money with a bank, corpora- 
tion or other person either with a stipulation that it shall bear interest 
or otherwise. 



DERDELING 176 DESTITUTION 

Derdeling (D.), a blood-relation in the third degree. 

Derelict, anything forsaken and abandoned. The expression is 
usually applied to an abandoned vessel. Land that has been 
abandoned is spoken of as derelict land. 

Descendants, the offspring of an ancestor in any degree ; persons 
related to one another in the descending line from a common 
ancestor ; opposed to " ascendants." See Nieuwoudt v. Registrar of 
Deeds (14 S.C. 244; 7 C.T.R. 238), where the term descendant was 
extended to the husband (married in community of property) of a 
descendant of the testator. 

"Deserting." "A seaman would not be guilty of deserting, 
who was driven by the cruelty of his officers to leave his ship" 
(Maxwell's Interpretation of Statutes, 4th ed. p. 145). 

Design. The term design is defined in, and for the purpose of, 
the Cape Registration of Designs Act (28 of 1894), to mean " any 
design applicable to any article of manufacture or to any substance, 
artificial or natural, or partly artificial and partly natural, whether 
the design is applicable for the pattern or for the shape or con- 
figuration or for the ornamentation thereof, or for any two or 
more of such purposes, and by whatever means it is applicable, 
whether by printing, painting, embroidering, weaving, sewing, model- 
ling, casting, embossing, engraving, pressing or stamping, staining, or 
any other means whatever, manual, mechanical or chemical, separate 
or combined, not being a design for sculpture." 

Destitute child. The expression destitute child is defined in 
the Cape Destitute Children's Relief Act (24 of 1895) to mean "any 
child of European parentage who comes within any of the follow- 
ing descriptions, that is to say : (a) who is found habitually begging 
or being in any public place for the purpose of begging; (6) who is 
found wandering and not having any home or settled place of abode, or 
proper guardianship, or visible means of subsistence ; (c) who is found 
in a state of destitution without any means of support, and who 
shall be without father, mother or lawful guardian, or whose father, 
mother or lawful guardian shall be unable to provide for its support 
and education ; (d) who shall reside in any reputed brothel, or, being 
a female child, who shall reside with any known or reputed prostitute, 
whether such prostitute shall be the parent of the child or not; and 
(e) who shall associate or dwell with any person, not being the parent 
of the child, known or reputed to be a thief or drunkard, or with any 
such person convicted of vagrancy." 

See also Act 10 of 1896 (N.) ; and for full definition, see Act 38 of 
1901 (N.), sec. 3, also Ordinance 44 of 1903 (T.). 

Destitution, a state of poverty ; indigence ; being without means 
of subsistence. " For the prevention of destitution, and to make pro- 



DESTITUTION 177 DIAGRAM 

vision for the relief of wives and families deserted and left destitute," 
which was extended to all native territories in Cape Colony by 
Proclamation 34 of 1897 ; see Act 7 of 1895 CC.C). See also Act 10 
of 1896 (K); Ordinance 44 of 1903 (T.); and Ordinance 51 of 1903 
(O.R.C.), for similar legislation. 

Reciprocal regulations are in force in each colony for the recogni- 
tion and enforcement of the orders made by the courts of any of the 
other colonies. The regulations in Cape Colony are to be found in 
Proclamations 27 of 1899, 377 of 1903, and 46 of 1904, which establish 
reciprocity with Natal, Transvaal and Orange River Colony respec- 
tively; in the Transvaal, in Proclamations 78 of 1903 (Natal), 82 of 
1903 (Cape Colony) and 12 of 1904 (Orange River Colony); in Orange 
River Colony, in Proclamations 5 of 1904 (Cape Colony), 6 of 1904 
(Transvaal) and 14 of 1904 (Natal). 

Deurwaarder (D.), an usher. In the Netherlands a deurwaarder 
was the servant of a court of justice, and derived his name from the 
opening and keeping of the doors of the council chamber in which the 
president of the council and the court assembled (Kersteman's Woorden- 
hoek, vol. 2, p. 98). See Van Leeuwen's Comm. 5, 5. 

Development. " As ordinarily used in mining matters develop- 
ment denotes that stage of work on mineralised ground which inter- 
venes between prospecting and mining proper. First the ground is 
prospected in order to ascertain whether there are minerals in paying 
quantities. Then it is developed in order to test whether the minerals 
which have been found are such as to warrant the working of the 
property as a mining proposition. When that has been established 
the property is actually worked and the minerals are extracted. But 
the evidence given with regard to the nature of the tin deposits in 
Solomon's Temple satisfies me that in regard to that property we 
ought to give the word ' develop ' a wider meaning than the one which 
it would ordinarily bear. And I think we shall be justified in taking 
' to develop ' as meaning ' to thoroughly prospect ' " (per Innes, C.J., in 
Doiiglas v. Baynes, [1907] T.S. at p. 513). 

In Ordinance 30 of 1907 (O.R.C.) developinent is defined to mean 
"such incline ways, shafts, drives, strippings and other work necessary 
for the opening up of a mine." See also Ordinance 3 of 1904 (O.R.C), 
sec. 5, which defines developed as "opened up and prepared for the 
stoping of ore." 

Diagram. In the Transvaal Precious and Base Metals Act (35 
of 1908), sec. 3, diagram is defined as " a diagram, prepared by a 
person lawfully admitted to practise as a land-surveyor and approved 
by the Surveyor-General without publication." The same definition 
is given by the Transvaal Registration of Deeds and Titles Act (25 
of 1909), sec. 2. A diagram of a farm or piece of laud is a picture or 
representation of the area of such land. It does not per se confer any 
title to the land (Gumming v. Brown, [1909] E.D.C. at p. 63). See 



DIAGRAM 178 DIES 

" Bqyer to pay all expenses in connection with the completing 

OF TRANSFER," also CONFIRMED DIAGRAM. 

Diamondiferous, containing diamonds. See London and South 
African Exploration Co. v. Be Beers Consolidated Mines (10 S.C. 
231). 

Dief (pi. dieven) (D.), a thief. 

Diefstal (D.), theft. In Latin furtum. See Theft. 

Dienstbaarheid (D.), servitude ; vassalage. See Servitude. 

Dienstbode (D.), a servant ; a domestic. 

Dienstman (D.), a slave, a bondman. 

Dienstmanschap (D.), slavery, service, bondage. 

Dies cedit, et dies venit. These words are defined by Ulpian 
{Big. 50, 16, 1 , 213) as follows : " Cedere diein means that the money 
has commenced to be due ; venire diem means that the day has arrived 
upon which the monej' may be demanded." Voet {Comm. 36. 2, 1), 
distinguishing the case of contracts from that of legacies, explains the 
application of the maxim as follows : " In the case of contracts . . . 
where any one contracts unconditionally the obligation becomes at once 
due and exigible (statim cedat ac veniat dies obligationis) ; where he 
makes a contract for a future day (i.e. to take effect upon a future 
day), the obligation indeed becomes forthwith due (dies cedit), but can* 
not be exacted (sed non veniat), save upon the arrival of the day; 
where he contracts subject to a condition the obligation becomes neither 
due nor exigible (neque cedat neqiue veniat dies) while the condition is 
unfulfilled, but nevertheless an expectation (spes) of an obligation 
arises which is transmitted to heirs if the contracting party dies before 
the fulfilment of the condition. But in the case of legacies and^ei- 
commissa the maxim is not applied wholly in the same way (as above) ; 
for if a legacy is left unconditionally it certainly vests (dies cedit) 
immediately from the death of the testator, ... even before adiation 
of the inheritance, so that the legatee in surviving the testator trans- 
mits his legacy to heirs, but it becomes payable (dies venit) (only) 
when the inheritance is adiated, since before adiation there is no one 
who can be sued or of whom demand can be made. And it is of no 
consequence whether an heir who is burdened with an unconditional 
legacy is instituted unconditionally or subject to a condition, and 
owing to the legacy delays in adiating, as in either case the legatee is 
secui-e ; nor, whether that which is bequeathed is due to the testator 
unconditionally or subject to a condition provided that which he has 
bequeathed is (in fact) due to him. On the other hand, if anything is 
bequeathed unconditionally, but is of such a nature that it perishes 
with the death of the legatee, the legacy vests (dies cedit) only from 
the adiation of the inheritance ; since the effect of vesting (ce^ssionem), 



DIES 179 DIGGING 

namely, the tiansiiiission of tlie legacy to heirs, can liave no place 
here; as is the case where freedom (of slaves) and personal servitudes 
are bequeathed by will. But a legacy of services vests only from the 
time w^hen they are demanded. On the other hand, if the legatee dies 
during the testator's lifetime he transmits to his heirs no expectation 
at all of fi legacy which has been unconditionally made." 

Dies dominicus non est juridicus, Sunday is not a day for 
judicial or legal proceedings, "for that day ought to be consecrated 
to divine service." Parliament may in cases of necessity sit on 
Sunday, but the court cannot. Voet admits that in cases of neces- 
sity judicial acts can be done on a Sunday. In R. v. Hermxin and 
Another (1 A.C. 317) De Villiers, C.J., said: "For my own part 
I am clearly of opinion that a sentence cannot, by our law, be set 
aside by reason of its having been passed on a Sunday ; but even 
if it be essential to the validity of such a sentence that the necessity 
for its being passed on a Sunday should be proved, I am satisfied 
from the evidence that such necessity existed in the present case " 
(where the verdict of a jury in a criminal case was received at 
2"30 A.M. on a Sunday). 

Dies incertus pro conditione habetur, an uncertain day is 
regarded as a condition. Where an obligation is made payable on 
a day which it is quite uncertain will arrive or not, for example, 
on a person's marriage, it is regarded as a conditional obligation which 
will come into effect only when the condition is fulfilled. 

Dies interpeUat pro homine, the day makes demand on behalf 
of the man. The lapse or arrival of a certain day stands in the place 
of a proper demand, and places the debtor in mora (default). Interest 
runs from the day of default where this maxim applies, even if there 
is no promise to pay interest. In other cases interest runs only from 
the date of the letter of demand {Snook v. Howard, 8 E.D.C. 55). 

Dieverij or Diefstal (D.), theft. See- Theft. 

Digging, in the Transvaal Gold Law (15 of 1898, sec. 3) means 
^' the intentional extraction of the precious metals mentioned in art. 2 
[of the Law], including all work necessary for the purpose, irrespective 
of whether such extraction is effected by underground mining works, 
open cuttings, boring or otherwise." The above law is now repealed 
by the Precious and Base Metals Act, 35 of 1908 (T.), which in sec. 3 
defines dig as " intentionally to win precious metals or base metals 
(as the case may be) from the earth," and as including " all excava- 
ting necessary for the purpose, whether by underground working, open 
■cutting, boring or otherwise." See Public Diggings. In the Precious 
Stones Ordinance, 66 of 1903 (T.), sec. 2, digging or "mining" means 
" the winning of precious stones, including all work necessary for the 
purpose, irrespective of whether such mining is effected by under- 
ground mining works, open cuttings or otherwise." A similar defi- 
nition is found in Ordinance 4 of 1904 (O.E.C.), sec. 5, with the 
addition of the word " boring " after the word " cutting." 



DILATOIRE 180 DISCOVERER 

Dilatoire exceptie (D.), a dilatory exception in Dutch practice. 
(See Van Leeuwen's Comm. 6, 14.) 

Diligentia, diligence ; care. Tiiere are three degrees of diligence, 
viz., levissMmi diligentia, diligentia, and exactissima diligentia. 
They correspond respectively to tlie three degrees of negligence, 
culpa lata, culpa levis, and culpa leuissima. Wliich of these three 
degrees of diligence a person is bound to show depends upon the 
nature of the contract under which the obligation for diligence arises. 
See Culpa. 

Dipping tank. An expression used in the Scab Acts. In the 
Cape Scab Act (20 of 1894), sec. 4, dipping tank is defined to mean 
"a tank or dipping receptacle, portable or otherwise, con.structed or 
provided to the satisfaction of the inspector." 

Director, one who superintends or controls, such as the director 
of customs ; a director of a company. 

See the Transvaal Excise Act (9 of 1907), sec. 1. 

Disabilities Removal Act, 1868. An Act passed in the Cape 
Colonj' in the year 1868 (11 of 1868) to annul all laws, if any, in 
the colony whereby any religious community or order or person was 
deprived of any rights or privileges in law, or whereby any penalties 
or disabilities were imposed upon such communities, orders or persons 
by reason only of their religious belief or profession. See also Act 6 
of 1869 (C.C), and Proclamation 80 of 1890 (C.C). 

Disannexation, the act of separating after having been annexed. 
The expression is to be found in Act 34 of 1883 (C.C), which provided 
for the disannexation of Basutoland from the Cape Colon}'. 

Discharge of insolvent. (1) The effect of a discharge of an 
insolvent person under sec. 106 of Ordinance 6 of 1843 (C.C.) is as 
follows : " ((/) the insolvent, though freed from all debts proved, 
remains liable for his offer of composition ; (6) the insolvent is rein- 
vested with his estate, and is liable only for debts to the extent of his 
offer of composition " (Van Zyl's Jadicial Practice, 2nd ed. p. 682). 

(2) See Rehabilitation. 

Discontinuous servitude "is one to the exercise or enjoyment 
of which some act on the part of man is necessary, e.g. jits itineris, 
aquaed actus!' &c. (Van Leeuwen's Comm. Kotz^'s trans, vol. 1, trans- 
lator's note on p. 306). 

Discoverer. (1) In mining laws the term discoverer signifies the 
petrson who first makes a discovery of minerals or precious stones 
upon a property, and thereby secures certain statutory rights. 

In the Cape Precious Minerals Act (31 of 1898), sec. 3, the word 
discoverer is defined to mean " a duly licensed prospector who has 
discovered precious minerals, and has made the declaration referred to 



DISCOVERER 181 DISCRETION 

in this Act that he has found them in payable i^uantities ;" in tlie 
Mineral Law Amendment Act, 16 of 1907 (C.C.), sec. 38, discoverer 
means " a duly licensed prospector wlio has discovered base minerals, 
and has made the declaration referred to in the 42nd section of this 
Act that he has found them in ' workable ' quantities." In the Cape 
Precious Stones Act (11 of 1899), sec. 3, it is defined to mean "the 
prospector wlio has found precious stones while prospecting under a 
license issued under the provisions of this Act or any existing law 
dealing with Pi-ecious Stones and Minerals." 

In the Transvaal Precious Stones Ordinance (66 of 1903), sec. 2, 
discoverer means " a duly licensed prospector who has discovered pre- 
cious stones on Crown lands." The Precious and Base Metals Act (35 
of 1908 (T.)), sec. 3, defines discovei'er as "a per.son who holds a certifi- 
cate under sec. 19," i.e. the certificate granted to a prospector who, 
having notified his discovery of precious metals to the Mining Com- 
mis.sioner of the district, and having received a notice from the Com- 
missioner entitling him to peg, has complied with the terms of such 
notice. 

For the Orange River Colony, see Ordinance 4 of 1904, sec. 5, also 
sees. 37 and 38. 

See Discoverer's Rights. 

Discoverer's claims, the claims to which a discoverer is entitled 
under the statutes relating to prospecting and mining for precious or 
base minerals or metals, or for precious stones. See Discoverer. As 
to discoverer'^ cla.ims in Cape Colony, see Act 31 of 1898, sees. 3 et 
seq. ; and Act 11 of 1899, sees. 3 et seq. 

For tho.se in the Transvaal, see Act 35 of 1908, see. 19 ; Ordir)ance 
66 of 1903, sec. 41. 

For those in the Orange River Colony, see Ordinance S of 1904, 
sees. 37 and 38; Ordinance 4 of 1904, see. 65. 

Discoverer's rights, the statutory rights to which a discoverer is 
entitled on making a discovery and on compliance with the statutory 
requirements. See Discoverer. See aL«o the Precious Minerals Act, 
31 of 1898 (C.C), sees. 12 et seq., and 78 et seq. ; the Precious and 
Ba.se Metals Act, 35 of 1908 (T.), sec. 19 ; and the Precious Stones 
Ordinance, 66 of 1903 (T.), sec. 9. 

In the Orange River (Colony, see Ordinance 3 of 1904, sees. 37 and 
38 ; Ordinance 4 of 1904, sec. 65. 

Discretae, that form of alluvion which was known in Roman- 
Dutch law as aamvas. See Aanwas. 

Discretion, personal judgment. " Where a discretion is conferred 
upon a public body to decide whether or not a certain thing shall be 
done, it appears to me that that is a condition inconsistent with the 
existence of an absolute duty to do that thing in all events" (per 
Innes, C.J., in Thorpe v. Municipal Council of Pretoria. [1905] T.S. 
at p. 789). 

See Nathan Bros. v. Fietermaritzburg Gorpo'ixition (23 N.L.R. at 

p. 128). 



DISHONEST 182 DISSOLUTION 

Dishonest, lacking honest}^ ; having a disposition to deceive ; 
liaving aa element of fraud. See Brown v. Resc ([1908] T.S. at 
p. 212). 

Disposable, that can be disposed of or sold, or used. The expre.s- 
sion disposablp is found in sec. 4 of Ordinance 6 of 1843 (C.C), where 
the circumstances constituting insolvency are set forth. The para- 
graph of the section is as follows : " or having against him the sentence 
of any competent court being tliereunto required shall not satisfy the 
same or shall not point out to the officer charged with the execution 
thereof sufficient disposable property to satisfy the same, if it shall 
appear from the return made by such officer or his affidavit that he 
has not found sufficient disposable property of such person to satisfy 
such sentence," &c. In Van der Poel v. Langerman (3 Menz. 307) 
the court held that where a creditor, who prays for the sequestration 
of an estate, holds a judgment on a first mortgage bond, the immovable 
property so mortgaged is not only disposable for the satisfaction of the 
judgment, but it can be disposed of by the plaintiff' for that purpose by 
attacluiient and judicial .sale as easily and in as short a time as under 
a sequestration of the defendant's estate. In the same connection the 
word disposable appears in sub-sec. {h) of see. 4 of Law 47 of 1887 (N.), 
and in sub-.sec. (h) of .sec. 8 of Law 13 of 1895 (T). See also In re 
Webster {^ Menz. 220). 

"Dispose of," to part with; to pass over the control of a thing 
to some one else. See Queen v. Gontshe (6 E.D.C. 280); Reid and 
Stewart v. Rex ([1904] T.S. at p. 267); Platnauer v. Rex ([1904] 
T.S. 979); Rex v. Swartbooi ([1906] E.D.C. 86). 

Dissolution of partnership. " Partnerships become dissolved in 
one or other of the following ways : (1) By the death of one of the 
partners ; (2) by the insolvency of the partnership or of one of its 
members ; (3) by lapse or effluxion of time, if originally entered into 
for a limited period ; (4) by completion of the partnership undertaking; 
(5) by mutual agreement ; (6) by change in the membership of the 
tirni ; (7) by renunciation by one of the partners ; (8) by decree of the 
court " (Maasdorp's Institutes, 3, 3, 28). 

Dissolution of partnership is thus described in sec. 32 of the 
Partnership Act, 1890 (England): "Subject to any agreement between 
the partners, a partnership is dissolved (a) if entered into for a fixed 
term, by the expiration of that term ; (b) if entered into for a single 
adventure or undertaking, by the termination of that adventure or 
undertaking ; (e) if entered into for an undefined time, by any partner 
giving notice to the other or otliers of his intention to dissolve the 
partnership. In the last-mentioned case the partnership is dissolved 
as from the date mentioned in the notice as the date of dissolution, or 
if no date is so mentioned, as from the date of the communication of the 
notice." Under sec. 35 of the same Act the court may upon the appli- 
cation of a partner decree a dissolution of tlie partnership in certain 
other cases. At present there is no Partnership Act in any of the 
South African colonies. 



DISTANCE 183 DISTRIBUTIVE 

Distance. See Measurement. 

Distiller, one who extracts spirits by separating the volatile 
matters by means of heat from the substances in which they are 
contained, and then recondensing them into liquid form. A distiller 
is defined in the Cape Excise Spirits Act (18 of 1884), sec. 2, to mean 
and include "any person who conducts, works or carries on any dis- 
tillery, or who distils or manufactures any spirits, by any process 
whatsoever, either by himself, or his agent or servant." 

In tlie Additional Taxation Act, 36 of 1904 (C.C), sec. 2, tlie 
following detinition is given : " Any person not being an agricultural 
distiller, who conducts, works or carries on any distillery, oi- who 
distils or manufactures any spirits by any process whatsoever, either 
by himself or his agent or servant." 

As to Natal, see Law 14 of 1868 ; Act 25 of 1905. 

Distillery. " A distillery " is defined in the Cape Excise Spirits 
Act (18 of 1884), sec. 2, to mean and include "any place or premises 
where any process of distillation whatever of spirits is carried on, or 
where any process of rectification of spirits by redistillation or other 
process is carried on, or where any spirits are iiianufactuied or pro- 
duced from any substance whatever by any process whatever." A 
similar definition is given in the Additional Taxation Act, 36 of 1904 
(C.C), sec. 2. 

As to Natal, see Law 14 of 1868 and several amending Laws 
and Acts. 

Distinctive mark. An expression used in the Transvaal Great 
Stock Brands Ordinance (15 of 1904), sec. 1, wliere it means " a lawful 
mark (other than a registered brand) which a native is empowered by 
this Ordinance to mark upon the dewlap or head of any stock already 
bearing the brand of the location, native family or stad in which such 
native resides, to denote his ownership thereof." 

Distress, an English term .signifying the taking of the goods of 
another to satisfy some claim ; usually a seizure of movables of a 
tenant by his landlord for payment of rent. This expression is found 
in the Crown Lands Ordinance of the Cape Colony, Ordinance 9 of 
1844, sees. 4 and 5. 

Distributive justice. In describing the two kinds of justice, 
commutative and distributive, Voet (Elementa juris, lib. 1, tit. 1) says: 
" That is called distributive which deals with the rewards and punish- 
ments to be awarded according to the merits [or demerits] of each 
individual. In this that proportion which is called geometrical is 
generall}' observed, or it has respect to persons ; so that according to 
the difference in their condition, dignity, age, sex, &c., different re- 
wards and punishments are adjudged for each kind of deed." See Van 
Leeuwen'.s Coram. Kotze's trans, vol. 1, p. 38, in notis ; Grotius* 
Introd. 1, 1, 10. 



DISTRIBUTOR 184 DIVINI 

Distributor of stamps, a public official entrusted by Govevn- 
inent, under statutory authority, with the custody of revenue stamps 
and their sale, issue and distribution. 

District. In the Transvaal Interpi'etation of Laws Pioclaiiiation 
(15 of 1902), sec. 2, district means " the area subject to the jurisdic- 
tion of the court of any resident magistrate." See Ordinance 32 of 
1902 (T.), sec. 3; Ordinance 40 of 1902 (T.), sec. 2: Ordinance 45 of 
1902 (T.), sec. 1 ; Ordinance 43 of 1903 (T.), sec. 3. 

District headman, a term employed in the Natal Code of Native 
Law (Law 19 of 1891, sch., sec. 10) to denote " any person nominated 
and appointed by a chief to preside over a district under such chief, 
and duly notified to the Administrator of Native Law as a district 
headman." 

District road, in Ordinance 17 of 1905 (O.R.C.), sec. 1, means 
"a public trunk road or highway as aforesaid [i.e. as described in 
same Ordinance under ' main road '], and which has been proclaimed 
a district rcxtd in terms of this Ordinance." 

Diverse akten (D.), (1) miscellaneous deeds; (2) the name ap- 
plied to a certain register in the Deeds Office at Pretoria, prior to the 
Anglo-Boer war of 1899, in which miscellaneous notarial deeds were 
registered ; the deeds so registered were not specially registered 
against the titles of the landed property to which they might refer; 
such registration could not be regarded as notice to the world in the 
same way as would be the ca.se with registration in the land register. 
See Land Register. 

Divestitive fact, a fact through wliich a right terminates. "A 
divestitive fact puts an end to a i-ight altogether ; so the right of a 
tenant terminates with the expiration of his lease, and the right of 
a creditor is at an end when his debt has been paid" (Holland's 
Jurisprudence, 10th ed. p. 152). 

Divini juris, used in Roman law to denote things whicl\ were 
devoted to religious or quasi-religious purposes. Such things, together 
with res communes, belonged to tliat class of res nullius which could 
never become the subject of private property. Res divini juns were 
of three kinds, viz., res sacrae, res religiosae and res satictae. The 
first kind consisted of things, such as churches, which had been con- 
secrated to the service of God by a pontiff with the authority of the 
people, afterwards of the Senate, and finally of the Eraperoi-. In the 
case of movables a sale was permitted for the purpose of supporting 
the poor in a time of famine and afterwards for the purpose of paying 
the debts of the church, but the inalienability of res sacrae was never 
relaxed in the case of immovables. The second kind, res religiosae, 
consisted of places devoted to the burial of the dead. Res sanctae 
were things which, without being sacred, were protected by heavy 
penalties against injury, such as the walls and gates of a city. 



DIVINI 185 DOLUS 

TlliIlo;^s of this kind have long ceased to be res nullias (Van 
Leeuwen's Comm. 2, 1, 9). They may now be possessed in full 
owntrship by individuals oi- communities wlio may, subject to any 
restrictions imposed by law, sell and encumber tliem like any other 
kind of property belonging to them (Capetown and Districts Wider- 
works Co., Ltd., V. Elder's Executors, 8 S.C. 9). 

Divisional area. This term is detined in the Cape School Board 
Act (35 of 1905), sec. 3, to mean " the area comprised within the limits 
of anj' dnlj' constituted divisional council." 

Divisional council, a council or assembly duly elected and con- 
stituted according to law in a division of a South African colony for 
the purpose of administering the affairs of such division, and more 
especially the making, maintenance and supervision of the public roads 
and bridges therein. See Act 40 of 1889 (C.C). 

Dock. (1) The place in a court of justice where the prisoner is 
placed whilst undergoing preliminary examination or trial. 

(2) A portion of a harbour, more or less enclosed, where a ship 
may float alongside a wharf or pier whilst being loaded or unloaded. 
In the Cape Harbour Boards Act (36 of 1896), sec. 82, it is provided 
that " the words dock or docks in this or any other Act relating, to 
.any harbour shall be taken to mean the docks, rivers, basins and 
other works or areas connected therewith, which the Governor has 
heretofore proclaimed or shall from time to time proclaim to be a 
•dock or docks for the purposes of this Act." 

Document. In the Native Territories' Penal Code (Act 24 of 
1886 (C.C.)), sec. 219, a document is defined as being "any substance 
on which is expressed and described by means of letters, figures or 
marks, any matter which is intended to be or may be used in a court 
of justice, or otherwise, as evidence of such matter." See also Stephen's 
Digest of the Law of Evidence, under heading Document. 

As to deposit of Private Bill docume'nts required to be deposited in 
accordance with the Standing Rules and Orders of either House of 
Parliament, see Act 3 of 1906 (C.C), sec. 1 ; Act 6 of 1907 (T.), 
sec. 1 ; Act 41 oi 1908 (O.R.C.), sec. 1. 

Doeme (D.), sentence, judgment. 

Doemer (D.), a judge, one who pronounces judgment. 

Dolus, fraud. The term dolus is only applied to fraud in civil 
■cases, and especially in matters of contract. 

The Roman lawyers held that gross neglect (culpa, lata) was equi- 
valent to dolus. A depositary is responsible only for gross neglect 
(culpa lata), but the term dolus in this connection must be understood 
in the mitigated sense of breach of good faith, or gross breach of duty, 
operating as a constructive fraud. /See -Fraud. 



DOLUS 186 DOLUS 

Dolus bonus, as distinguished from dolus malus, is defined as 
dolwn whicli is either wholly approved of W law, as where shrewdness 
(solertia) is employed against an eneiiiy or robber, or is not so 
approved of, but is unpunished and permitted ; of this latter nature 
being an advantage which one party takes of the otlier with regard 
to the pr-ice in a contract of purchase and sale (Voet's GomTn. 4, 3, 1). 
In other words, although a vendor may not make a false statement 
upon wliich the purchaser is bound to rely, and by means of which he 
is induced to enter into the contract {dolus dans locuin contractui), 
yet one party may praise or tlie other dispraise the goods with a 
view to obtaining a higher or paying a less price (see Van Leeuwen's 
Comm. Kotze's trans. 4, 1, 5, translator's vote). 

Dolus cum dolo compensandus est, fraud is to be set off against 
fraud. An action for restitution ordinarily lies at the suit of a person 
who has been injured bj' the fraud of another, but if he himself has 
been guilty of fraud in connection with the ti-ansaction he will not be 
entitled to any action (Voet's Comm. 4, 3, 8). 

Dolus dans causam (or locum) contractui, fraud giving rise to 
a contract. " Fraud is said to give rise to a contract where one is in- 
duced to contract wlio had no intention to do so for the reason that 
he wonid not have contracted if the fraud had been absent " (Voet's 
Comm,. 4, 3, 3). In other words, it is such fraud that without it the 
contract would not have been made. The free consent of the parties 
being essential to a contract, its absence by reason of such fraud makes 
the contract ipso j^tre null and void. Thus, if a person is induced by 
fraud of this kind to enter into a contract of sale, and in pursuance 
theref)f transfers or delivers tlie thing, the ownership will not pass to 
the otlier part}^ but will remain with the party defrauded, who may 
by a real action recover the thing not only from him who committed 
the fraud, but also from any possessor of the same, whether bmid fide 
or maid fide (Voet's Comm. (ibid.) ; Vlotman v. Landsberg, 7 S.C. 301 ;. 
Standard Buvk v. Du Plooy a,nd Another, 16 S.C. 161). 

Dolus incidens, fraud incidental, that is, which does not go to- 
the esseTitials of the contract. " Fraud is considered to be merely 
incidental to a contract where any one voluntarily contracts, but is 
deceived in a term of the contract, as, for example, in the price or 
any other term " (Voet's Comm.. 4, 3, 3). A contract affected by 
fraud of this nature is not ipso jure null, but the party defrauded 
will, upon proof of the fraud, be entitled to restitutio in integrum 
(Voet's Comm. 4, 3, 4). 

Dolus latet in generalibus, fraud lurks in generalities. 

Dolus malus, one of the Roman law divisions of fraud, and 
known in Roman-Dutch law as arglist (deceit). It is an artifice 
or deceit employed for the purpose of cheating or circumventing 
some person. See Kersteman's Woordenboek, vol. 2, p. 377 ; Nathan's- 
ComTnon Law, sec. 777. 



DOMICILE 187 DOMINIUM 

Domicile " must not be coufounded witli mere residence. It is 
residence, but it is something more, its essential characteristics being 
residence combined or connected with an intention of permanently 
remaining at the place of residence {anionus remanendi) ; in other 
words, a man's domicile is the place or country in which lie lives 
and wliich he regards as his permanent home. This permanent 
home is either the domicile which he receives at birth, and which is 
spoken of as his domicile of origin, or one which is acquired by him 
afterwards by his own act, and which is known as his domicile of 
choice " (Maasdorp's Institutes, vol. 1, p. 4). Matrimonial domicile is 
the domicile of the husband at the time of his marriage, and such 
domicile on marriage also becomes the domicile of the wife. See 
Ex parte Standring ([1906] E.D.C. 169). 

As to detinitiou of domicile in Natal Immigration Acts, see Act 3 
of ,1906, see. 1. 

Domicilitun citandi et executandi, domicile for the purpose of 
serving summons and levying execution. A domicile is often chosen 
by a defendant to facilitate service of process. Domicile in this con- 
nection is sjmonymous with address. Thus an accused who enters into 
a recognisance gives a certain address where the indictment may be 
served. 

Dominant tenement, the land that benefits by a servitude, or 
that has the right of servitude over other land, called the servient 
tenement. 

Dominium, ownership, " is the right by which each person's 
thing belongs to himself exclusively, whether he is in possession of 
it or not, for there may be a bare ownership without possession, 
and a mere possession without ownership. Ownership is therefore 
divided into full (dominium plenum) and defective {dominium 
minus plenum)" (Van Leeuwen's Gomm. Kotzes trans, vol. 1, p. 154). 
Decker, in a note to the first portion of this definition, says, "or 
rather the right by means of which a person has power over a 
corporeal thing, with the ability of immediately claiming the same 
wherever he may find it" (ibid.). According to Grotius (Introd. 
2, 3, 1) dominium is " that attribute of a thing whereby a person, 
though not actually in possession of it, may acquire the same by 
legal process." 

" Ownership or property is the right to use or deal with some given 
subject in a manner or to an extent which, though it is not unlimited, 
is indefinite " (Austin on Jurisprudence, Table II, 5th ed. p. 933). 

Dominium directum, the name given to the right of the feudal 
superior in feudal law. "It is so called because at one time it was 
considered the direct and paramount right in the lands, the vassal's 
right being regarded as merely a burden upon it. This is a view 
not now entertained " (Trayner's Latin Maxims and Phrases, 4th ed. 
p. 169). In the Roman-Dutch law^ the name is applied to the right 



DOMINIUM 188 DOMINUS 

of tlie owner (dominus directits) in emphyteusis or quitrent tenure, 
as distinguished from that of the emphyteuta, wliich is termed the 
dominium utile. These terms, dominiwm, directum and dominium 
utile, invented by feudal lawyer's, were unknown to the Roman law 
(see Berwick's Translation of Voet, p. 53 and note, and p. 346 
and note). 

Domimuin eminens (sometimes written itnperium eininens), the 
power possessed by the sovereign as head of the State to compel par- 
ticular individuals in case of public necessity or utility to part with 
their propei-ty subject to the right to compensation ; " or in case of 
need to give it up without payment. But this cannot last longer than 
the necessity, for then compensation may justly be claimed " (Decker's 
note to, Van Leeuwen's Comm. 2, 2, 1). This is the right exercised in 
statutes which authorise the expropriation of lands for public purposes, 
such as I'ailways. See Decker (ibid.); Grotius' Introd. 2, 3, 2; Schorer, 
Note ().5 ; Jooste v. The Government (4 Off. Rep. 147). 

Dominivun minus plenum, incomplete ownei-ship. See Dominium 

PLENUM. 

Dominium plenum, full ownership. Ownership is of two kinds. 
The owner may be entitled to use the thing (jus utendi), to enjoy its 
fruits {jus fruetidi), to consume it entirely where it is capable of con- 
sumption (jus abutendi), and to alienate or dispose of it as he pleases 
(jus disponendi). On the other hand, the ownership may be wanting 
in any of tiiose rights owing to a real burden forming part of the pro- 
perty by way of servitude (real or personal) or fidei-commissum or 
mortgage. In the former case, wliere all the riglits of ownership are 
present, the dominium is said to be plenum, ; in the latter case, minus 
plenum (Van Leeuwen's Oomm. 2, 2, 1 ; Maasdorp's Institutes, vol. 2, 
p. 141). 

Dominium rerum a naturali possessione coepit, ownership of 
things begins from (the time when one acquires) natural possession. 
This maxim is used in connection with the mode of acquiring owner- 
ship of property by oecupatio. Things which are capable of being 
appropriated, but have never been acquired by any one, or things 
which, liaving once belonged to some one, have been abandoned by 
their owner, may be acquired by the first occupier, whose dominion 
begins fioni the moment when he takes possession with the intention 
of becoming owner. 

Dominium utile, useful, indirect or equitable ownership; the term 
applied to the right of the emphyteuta in emphyteusis or quitrent 
tenure. See Dominium directum. 

Dominus fluminum, owner of the streams. The Government 
remains doninus fiiiminis, and has the sole power from time to time 
to regulate the use of the water between all the parties through wliose 
lands the sireaui naturally flows (De Wet v. Cloete;! Menz. 410). 



DONATIE 189 DONATIO 

Donatie (D.), donation. See Donatio. 

Donatio. Donation or gift is defined by Grotius in iiis Intro- 
duction (3, 2, 1) as a promi.se whereby a person, without being bound 
to another, out of liberality binds himselt' to give that other some- 
thing belonging to iumself without i-eceiving anything from liim in 
return or stipulating for anything for liis own benefit. 

Donations may be divided into two principal classes, viz., (a) dona- 
tions mortis caitsa (donations made in contemplation of death) ; and 
(6) donations ijiter vivos (donations made otherwise than mortis causa). 

Donations require acceptance, and if the donor revokes the 
promise, or dies, before such acceptance by the donee, the obligation 
does not take effect (See Van Renen's Trustee v. Versfeld, 9 S.C. 
161 : Slabbers Trustee v. Neezers Executor, 12 S.C. at p. 167). 
Upon acceptance, liowever, before revocation the donation is complete 
and the donor is bound to make delivery. 

Donations above the value of £500 must be registered {Thorpe's 
Executors \. Thorpes Tutor, 4 S.C. 488). 

In Roman-Dutcli law when once a donation has been made it is 
irrevocable, except if the donor, who was childless at the time of the 
donation, begets children, or if the donee attempts tlie life of the 
donor, or strikes him, or attempts to ruin his estate, or maliciously 
slanders him. When the donation is so excessive that the children are 
thereby prejudiced in their legitimate portion, the whole gift is not 
annulled, but only the pars inoffixiiosa. Legitimate portions, however, 
have now been abolished throughout South Africa. 

A minor cannot make a donation of his property. 

A donation between husband and wife is of no force or effect 
unless or until the donor dies without having revoked the donation. 
If the donor becomes insolvent liis or her creditors are fully entitled 
to the property forming the subject of the gift {Union Bank v. 
Spence, 4 S.C. 339). 

A parent may donate to his child {Elliott's Trustees v. Elliott and 
Another, 3 Menz. 86 : Thorpe's Executors v. Thorpe's Tutor, 4 S.C. 488 ; 
De Koch V. Va,n de Waal's Executors, 16 S.C. 463 ; Slabber's Trustee v. 
Neezers Executor, 12 S.C. 163). 

See Donatio moktis causa; Donatio propter nuptias; Do- 
natio REMUNERATORIA. 

Donatio mortis causa, a gift made in contemplation of death. 
There are three modes in which such a gift may be effected : (1) The 
donor gives something in mere geneial contemplation of death, but 
without any fear of an early death or imminent danger, and with the 
understanding that it is not to become the property of the donee until 
l^he donor's death ; (2) when the gift is made in imminent peril of 
death, but with the understanding that the property shall only pass 
upon the donor's death ; (3) under circumstances similar to those of 
the last case, but with the understanding that the ownership in the 
property shall pass immediately, though if the donor survives the 
peril the property shall be returned to him. 



DONATIO 190 DONATIO 

A gift mortis causa rec|uii-e,s acceptance {Clarke v. Executors of 
Castray -and Beale, 19 S.C. 498). A donatio tnortis causa must be 
executed with the same formalities as a last will (Van der Keessel, 
The.s. 492, and Clarice v. Executors of Castray and Beale, 19 S.C. 498). 
It can only vest in the donee absolutely upon the donor's death. In 
Oliphant v. Gi'ootboom (3 E.D.C. 11) the requisites to every donatio 
mortis causa were discussed: (1) It must be revocable; (2) it must 
be conditional on the death of the donor ; (3) in the deed of donation 
some mention must be made of the death of the donor ; (4) posse.s.«iion 
must be given to the donee. It is sufficiently clear, however, that the 
Roman-Dutch law does not insist upon possession being given. The 
authorities cited by counsel in support of this proposition were drawn 
from English reports. 

By Act 5 of 1864 (C.C.) succession duty is payable on donations 
mortis coMsa.. 

Donatio non presumitur, donation is not presumed. "In case 
of doubt donation is not presumed as long as another construction is 
possible, and therefore he who alleges a donation, although it be by 
■way of exception, must prove it, because no one is supposed readily 
to throw away his property, giving being really nothing but tlu'owing 
away and squandering " (Voet's Com/m. 39, 5, 5). The intention to 
make a donation must therefore be cleai- and manifest from the acts 
and language of the donor, and cannot be inferred from an indefinite 
expression of a desire to make a gift [Brink's Trustees v. Mechau and 
Others, 1 Roscoe, 209 ; Van Renen's Trustee v. Versfeld, 9 S.C. 161). 
It is not; however, necessary that the gift should be made in express 
terms, as the intention may be inferred from the conduct of the 
donor. Voet (Comrn. 39, 5, 5) gives the following examples of implied 
donation, viz., if a person knowingly pays what is not due — donation 
being presumed and a claim for refund of the money being barred ; 
if a person, having entered upon the land of another, gathers the 
fruits and lays out expenditure in cultivation ; if a maid fide posses- 
sor of another's land incurs useful expenditure upon it ; if a bond 
fide possessor voluntarily restores the property to its owner without 
deducting the expenditure laid out upon it ; if a man agrees with his 
son that the latter shall, for the purpose of a.ssessment, report as his 
own property that which belongs to his father, or if the father himself 
reports the property in his son's name, unless he establishes by clear 
proofs that this was done without the intention of making a donation ; 
and the various cases in which an action negotiorum gestorum is 
refused to the administrator, the expenditure incurred bj' him in such 
cases being presumed to have been made by way of gift. See also 
Elliott's Trustee v. Elliott and Another, 3 Menz. 91 ; Pillans v. Porter's 
Executors, 5 S.C. 420; Grotius, Introd. 3, 2, 12. 

A donation, moreover, is strictly interpreted, and in such a way as 
to burden the donor least. 

Donatio perficitur possessione accipientis, donation is com- 
pleted by the possession of the donee. Although acceptance of a 



DONATIO 191 DOP 

donation gives the donee a right of action against the donor for 
specific performance of the agreement to give (Barratt v. Executors 
of O'Neil, Kotze, at p. 109), yet until the thing donated has been 
transferred or delivered to the donee the ownership ov jus in re does 
not pass to him, but remains with the donor (see Pactum Donationis). 
Mere possession of the thing, however, is no presumption of a donation, 
and if the donor denies dMimus do7iandi, the onus of proof will be 
upon the person claiming to be donee^ 

Donatio propter nuptias, a gift made in contemplation of 
marriage ; such gift must be returned to the donor in case the 
marriage does not take place. See Donatio. 

Donatio remuneratoria is a donation by way of reward. Such 
a donation is enforceable (Melck v. David avd Others, 3 Menz. 468), 
requires no registration (Slabber's Trustee v. Neezer's Executor, 12 S.C. 
168), and cannot be revoked on account of ingratitude (Grotius, 3, 2, 3 ; 
Voet's Gomvi. 39, 5, 15). See Donatio. 

Donee, one to whom a gift or donation is given or made. 

Donor, one who gives something to another person gratuitously. 

Donum matutinum or Morgengave, morning-gift. A gift wont 
to be given by the bridegroom to his bride on the day after the mar- 
riage as the reward of chastity. Van der Keessel (Thes. 258) says 
that, although from its nature the gift ought to accrue to the wife 
immediately, it is " according to our customs acquired only after the 
marriage has been dissolved and the creditors discharged." 

Doodslag (D.), homicide. Van der Linden (Institutes, 2, 5, 5) 
says there are three kinds of homicide, (a) opzettelijke doodslag, wilful 
homicide; (b) onvoorzigtige doodslag, homicide by negligence; and 
(c) toevalligen doodslag, accidental homicide. See Homicide. 

Doodstraff (D.), capital punishment. The doodstraffen that were 
in use in Holland in Van der Linden's time (Institutes, 2, 2, 2) were 
{a) breaking on the wheel with or without decapitation ; (b) the 
gallows; (c) the sword; and (d) strangling, with or without scorch- 
ing. He tells us that at that period (beginning of nineteenth century) 
quartering, burning and drowning had fallen into disuse. 

Dop brandy. "Bop brandy means the unrectihed distillate result- 
ing from the distillation solely of grape husks and water; the volatile 
■constituents of which distillate (except watei-, as provided for in sec. 15 
[of the Act]) are derived entirely from the above-named materials; 
provided that the alcoholic strength of such dop brandy be not lower 
than 25 degrees under proof " (the Wine, Brandy, Whisky and Spirits 
Act, 42 of 1906 (CO.), sec. 14). 



DOS 192 DRANKWET 

Dos, dowry. 

Dos adventitia. This was the name given in the Roman law to 
a dowry contributed by any one elae than a paternal ascendant of the 
wife, e.g. by tlie wife herself or bj- some third person for her. It could 
not be reclaimed by the donor or his heirs unless a special agreement 
to that effect had been made at the time when the dowry was consti- 
tuted, in which case it was called dos recepticia. In the absence of 
such an agreement the dowry remained with the husband until 
Justinian enacted that in such a case it should go to the heirs of 
the wife. See Do.s Profectitia. 

Dos profectitia, under Roman law, the dowry given by the 
father or other ascendant of the wife. Upon the wife's death the 
dowry could be reclaimed by the donor, but not by his heirs. 

The division of dowries into dotin adventitia e and dotes profectitiae 
has no significance in the Roman-Dutch law, for in the absence of a 
special dotal agreement all property owned by the wife forms part of 
the statutory community of goods, and if anything in the nature 
of the dos of the Roman law is given by some third party, or by the 
wife herself, it will devolve at the dissolution of the marriage not 
according to the technicalities of the Roman law, but in terms of 
the dotal agreement under which it was given. 

Douarie (D.). See Duakie. 

Double costs. Sec. 82 of Ordinance 6 of 1843 (C.C.) — the Insol- 
vency Ordinance — provides that in certain events if a debtor does not 
pay the amount due by him to the trustee of the insolvent estate, the 
court may award the trustee double costs. In Biccard's Trustee v. 
Visagie (12 S.C. 413) it was held that double costs were allowed by 
way of penalty against such debtors, but only if they do not show 
cause to the satisfaction of the court for their neglect or refusal ; and 
that due notice should be given to a debtor before the penalty is 
sought to be enforced. 

Drain, a pipe or conduit for the purpose of conveying away 
surplus water or other fluids. See Act 32 of 1893 (C.C), sec. Ir 
see also Combined Drain. 

In the Cape Public Health Amendment Act (23 of 1897), the 
term drain is defined to mean " any drain of, and used for the 
drainage of one building only, or of premises within the same cur- 
tilage or enclosure, and made merely for the purpose of communicat- 
ing therefrom with a sewer, cesspool or receptacle for drainage, 
into which the drainage of two or more such buildings or premises 
occupied by diflf'erent persons is conveyed." For further statutory 
definitions see Act 25 of 1897 (C.C), sec. 1. 

Drankwet (D.), liquor law. 



DRAWER 193 DRUG 

Drawer. Under the Bills of Exchange Acts, a drawer is a 
person who draws a bill (see Bill of Exchange). The drawer of 
a bill, hy drawing it (a) engages that on due presentniiint it shall 
be accepted and paid according to its tenor, and that if it be dis- 
honoured he will compensate the holder or any indnrser who is 
compelled to pay it, provided that the requisite proceedings on dis- 
honour be duly taken; and (6) is precluded from denying to a 
holder in due course the existence of the payee and his then capacity 
to indorse. See Act 19 of 1893 (C.C), sec. 53 ; Law 8 of 1887 (N.), 
sec. 54; Proclamation 11 of 1902 (T.), sec. 53; Ordinance 28 of 1902 
(O.R.C.), sec. 53. 

Dredging claim, see sec. 17 of the Mineral Law Amendment 
Act, 16 of 1907 (C.C). 

Dredging lease, a lease to which a prospector becomes entitled 
under sec. 20 of the Mineral Law Amendment Act, 16 of 1907 (C.C). 

Dreef (D.), a drift-way, the right to drive cattle over the land of 
another. 

Drench. A term used in the Natal Lung-sickness Prevention Act 
(30 of 1897), sec. 3, where it means " the internal administration of 
virus taken from the lung o. chest of the animal infected with lung- 
sickness." 

Droit, a French term, which expresses " not only ' a right,' but also 
' law ' in the abstract " (Holland's Jurisprudence, 10th ed. p. 80). This 
term is to be found in the Natal Escheat Law (11 of 1868), where 
" droits of the Crown " and " droits of the admiralty " are spoken of. 

Dronkenschap (D.), drunkenness ; intoxication. See Van der 

Linden'.s Institutes, 2, 1, 5. 

Drop (D.), the right of letting one's rainwater drop on to the land 
of another. 

Droppelspeet (D.), a spout or gutter used for leading off one's 
rainwater on to another's land. 

Dropright, is a servitude whereby the owner of a house has a 
right to allow the rainwater from his roof to drop on to the land of 
another person (see Van Leeuwen's Gomm. Kotz^'s trans, vol. 1, 
p. 289, where this form of servitude is fully discussed). 

Dropvang (D.), the right to catch up the rainwater of one's 
neighbour. 

Drug. Tlie term drug is defined in the Cape Sale of Food and 
Drugs and Seeds Act (5 of 1890) to include " medicine for internal 
or external use." See also Ordinance 32 of 1906 (O.R.C.), sec. 1. 



DRUGGIST 194 DRUNKENNESS 

Druggist, a person who deals in drugs. See Chemist. 

Drunkenness. " Voluntary drunkenness is not regarded as a 
■disease affecting the mind within the meaning of Article 28 [art. 28 
refers to the exception of insanity] ; but involuntary drunkenness and 
diseases caused by voluntary drunkenness fall, so fai- as they affect the 
mind, within that article" (Stephen's Digest of the Criinimd Law, 
5th ed. art. 30). 

The Native Territories' Penal Code (Act 24 of 1886 (C.C), sec. 27) 
provides that " nothing is an offence which is done by a person who, 
at the time of doing it, is by reason of intoxication incapable of know- 
ing the nature of the act, or that he is doing either what is wrong 
or contrary to law : provided that the thing which intoxicated him 
was administered to him without his knowledge or against his will." 

"Our law does not allow an accused to set \x^ drunkenness as a,n 
excuse for a crime (Matthaeus, de Grimifiibus, p. 33). It draws a 
distinction between the man who becomes drunk on Isolated occasions, 
led on by others, or by excessive indulgence at a feast or by ignor- 
ance of the strength of the liquor he has been di-inking, and the man 
who deliberately becomes drunk. The former is called e6riw,s, the 
latter ebriosus. Both are liable for their acts if drunkenness was 
caused by voluntary drinking; but the punishment of the ebrius is 
less than that of the ebriosus (Matthaeus, ibid.). Moorman {Misdaden, 
p. 21) admits that this rule is subject to exceptions, and does not think 
that a person who through drinking has lost not only his reason, but 
his will power, should be classed with those whose drunkenness is not 
so complete. . . It is perfectly clear from a series ol: English decisions 
that drunkenness cannot as a rule be set up as an excuse for a crime, 
but it may sometimes absolve an accused from a particular crime which 
requires in addition to the ordinary mens rea some special intent. 
Thus if a person kills another without lawful cause he is certainly 
guilty of homicide. If, however, he was actuated by murderous malice 
he is not only guilty of homicide, but of murder as well. [Here the 
learned judge gave several illustrations, and continued.] This, I take 
it, is a fair statement of our general law upon tiie subject. In order, 
however, that drunkenness should have this effect, the circumstances 
of the particular case must show that the accused had taken drink, 
and that the effect of the drink upon him was such as to render him 
unconscious of the nature of the act he was doing. It is no sufficient 
excuse for the accused to .say that he does not remember the act, or 
that he did not appreciate the moral import of his act. Whether the 
drink rendered an accused incapable of knowing what he was doing 
depends on many circumstances, .such as the amount of drink taken, 
the effect of drink upon him, and no doubt in some cases the nature 
of the act committed. The.se facts must be submitted to the court by 
the accused, and from these facts the court, and not expert witne.sses, 
must determine whether his drunkenness was such as to free him from 
the .special intention which the Crown may be required to prove" (per 
Wessels, J,, in Fowlie v. Rex, [1906] T.S. at pp. .507 et seq.). "It 
is an extremely dangerous doctrine to excuse a drunken man for a 



DRUNKENNESS 195 DUPLIOATIO 

criminal act, and if such excuse is to be allowed there must be clear 
proof not only of drunkenness, but of such drwrikenne^ss that the court 
must infer that there was lack of consciousness. An important ele- 
ment is the quantity of drink consumed by the prisoner" {ibid, at 
p. 510). 

Dry wine. " Dry ivine means wine produced by complete 
fermentation of the sugar contained in the juice or must of the fresh 
grapes from which it is made" (the Wine, Brandy, Whi.sky and 
Spirits Act, 42 of 1906 (C.C), sec. 5). 

Duarie or Douarie (D.) is a gift promised in an antenuptial con- 
tract by a man to the woman he is about to marry, as a provision 
against widowhood. It is validated by subsequent marriage, and is 
irrevocable. It does not constitute a preference upon the husband's 
estate. Van der Linden (Institutes, 1, 3, 4) describes it as a condition 
in an antenuptial contract to the effect that the survivor shall be 
benefited by way of gift or donation with a certain sum out of the 
estate of the deceased. Schorer (Note 130) discusses at some length 
the debatable point as to whether the legitimate portion was preferred 
to douarie ; and he points out that douarie is entirely different from 
dos, with which some jurists confuse it. See also A'^an der Keessel, 
Thes. 259. Where mutual promises have been made in an ante- 
nuptial contract by each spouse to leave to the other by way of 
gift or donation a certain sum payable on the death of tlie first- 
dying, and one of them succeeds in obtaining a decree of judicial 
separation, the injured spouse, who elects to have liis or her promise 
rescinded, can only obtain the order subject to a renunciation of the 
promise made in his or her favour (Wessels v. Wessels, 12 S.C. 468). 

Dubii juris, of doubtful law ; an unsettled point. 

Dum se bene gesserit, so long as he conducts himself properly ; 
during good behaviour. See " Ad vitam aut gulp am." 

Dummodo constet de persona, provided it be clear who is 
the person meant. A legacy is valid although an error occurs in the 
name or description of the legatee, if from other circumstances it is 
sufficiently plain who is the person meant. But the legacy will be 
void " if the person is altogether mistaken, as where the testator has 
mentioned some one who is unknown altogether or in part" (Van 
Leeu wen's Gomm. 3, 9, 5). So with regard to the thing bequeathed, 
the legacy will be valid notwithstanding that there is an error in the 
name or description of the thing, provided it is evident what was 
intended by the testator (Van Leeuwen, ibid.). 

DupUcatio, or Duplique or Duplicq. Under the Dutch system 
of pleading the defendant was bound, after the plaintiff had filed his 
replication, to insist upon his defence by way of duplique, which cor- 
responds to our "rejoinder" (Meyer's Executors v. Qericke, Foord, 17). 

n2 



DUPLIOQ 196 DYKGRAVEN 

Duplicq (D). See Duplicatio. 

Duplique. See Duplicatio. 

Duress, actual compulsion or a threat of compulsion. " It is said 
that there must be some threatening of life or member, or of imprison- 
ment, or some imprisonment or beatings itself" (Pollock on Gontracts, 
7th ed. p. 596). As to duress in connection with salvage operations, 
see Blackbwni v. Mitchell (14 S.C. 338). 

Dwelling, a place of residence. The term dwelling is defined in 
the Cape Public Health Amendment Act (23 of 1897) to mean and 
include "any house, building or premises, huur learner (hire room), 
hut, tent, caravan, ves.sel or boat, or other place, tlie whole or any part 
of which is used as a sleeping place, or habitually occupied by one or 
more persons." 

In the Transvaal Crimes Ordinance (26 of 1904), sec. 3, dwelling 
means " a building or structure or any part thereof which is for the 
time being kept by the owner or occupier thereof for the residence 
therein of himself, his family or .servants, or any of them, and whether 
or not such building or structure be from time to time uninhabited." 

Djring declaration. " Upon an indictment for murder or man- 
slaughter, the dying declarations of the decea.sed are receivable in evi- 
dence if it appears to the satisfaction of the judge that the deceased 
was conscious of his being in a dying state at the time he made them 
and was sensible of his awful situation, even though he did not 
actually express any apprehension of danger, and his death did not 
ensue until a considerable time after the declarations were made" 
(Arch hold's Criminal Practice, 23rd ed. p. 321). See also Taylor on 
Evidence, sees. 714 et seq. ; Reg. v. Glosten (16 Cox C.C. 471): and 
Rex V. Elizabeth Perry (25 T.L'.U. 676). 

" In order that a dying declaration may be admitted as evidence, 
the rule is that three things must have concurred : the person must 
ha\ e been in danger of impending death ; he must have realised the 
extent of his danger so as to have given up all hope of life ; and death 
must have ensued " (per Innes, C.J., in Rex v. Abdul and Others, 
[1905] T.S. at p. 122). See Queen v. Le Roux (14 S.C. 424). 

Dykgericht (D.), a court established in Holland in about the 
fourteenth century. It was presided over by a dyJcgraaf or dikereeve, 
and " dealt with matters affecting the boundaries of farms and their 
protection from floods " (Wessels' History, p. 152). 

Dykgraven (D.), pi. of Dykgraf, dikereeves, inspectors or judges 
of dikes (Van Leeuwen's Comm. Kotze's trans, vol. 1, p. 62). See 
also Graaf. 



EARNEST 197 EARNEST 

Earnest money. " The practice of giving something to signify 
the conclusion of the contract, sometimes a sum of money, sometimes 
a ring or other object, to be repaid or redelivered on the completion 
of the contract, appears to be one of great antiquity and vei-y general 
prevalence. It may not be unimportant to observe as evidence of this 
antiquity that our own word earnest has been supposed to flow from 
a Phoenician ,source through the a^pa^wv of the Greeks, the arra or 
arrha,oi the Latins, and the arrhes of the French. It was familiar to 
the law of Rome, and without going into the distinctions of that law 
on the subject (see Vinnius on the Institutes, 3, 24 ; Pothier, Contrat 
de Vente, 6, 1, 3), it will be enough to observe that the general rule 
appears to have been that expressed in the Institutes (Vinnius, 
8, 24, pr.): Is qui reeusat adimplere contractum siquideni est emptor, 
perdit quod dedit : si vero venditor' duplum restituere compellitur, 
' licet super arrhis nihil expressum sit. Furthermore, the earnest did 
not lose that character because the same thing might also avail as part 
payment. Datur autem arrha vel simpliciter, says Viiuiius (3, 24, 8), 
ut sit argunnentum duntaxat et probatio emptionis contractae, ^jeluti 
si annuius detur: vel ut simul postea cedat in partem pretii, data 
certa pecitnia. From the Roman law the principles relating to the 
earnest appear to have passed to the early jurisprudence of England. 
Item cuTii arrarum nomine, says Bracton (lib. ii, c. 27), aliqiiid 
datum fuerit amte traditionem, si emptorem emptionis -poenittierit et 
a contractu resilire voluerit perdat quod dedit: si aihtem vendi- 
torem, quod arrarum nomine receperit emptori restituat duplica- 
tmn. Though the liability of the vendor to return to the purchaser 
twice the ampunt of the deposit has long since departed from our 
law, the pa.s.sage in question seems an authority for the proposition 
that the earnest is lost by the party who fails to perform tlie 
contract. That earnest and part payment are two distinct things 
is apparent from the 17th section of the Statute of Frauds, which 
deals with them as separate acts, each of which is sufficient to give 
validity to a parol contract " {j)er Fry, L.J., in Hotve v. Smith, 
27 Ch. D. at pp. 101 et seq.). "In the Roman law the arrhae were 
either signs of a bargain having been struck, as, for instance, when 
the buyer deposited his ring with the seller (Digest, 19, 1, 11, 6), or 
consisted of an advance of portion of the purchase-money. They 
were also intended as a proof that the purcliase had been made. 
Justinian gave these deposits a new character by making them the 
measures of a forfeit in case either party wished to recede from 
his bargain, it being open to either party to retract if he chose to 
incur this forfeit" (Sandars' Institutes, p. 363). 

In Roman-Dutch law there was the same idea of earnest distinct 
from the purchase-price (see Grotius' Introd. 3, 14, 32; Van Leeu wen's 
Roman-Dutch Law, 4, 20, 2; Voet, 18, 3, 2). Grotius calls it hand- 
gifte, which suggests the handsschlag, or old custom of giving the 
hand as sign of the conclusion of a bargain (Holland's Jurispnudence, 
p. 205). The references of Grotius, Van Leeuwen and Voet to earnest 
or arrha, are in connection with sales under the Lex Commissoria, 
i.e. sales subject to the condition that the thing (movable oi' im- 



EARNEST 198 EESTUI 

movable) should be unbought, if the purchase-price was not paid. 
In case of non-payment the buyer forfeits the earnest ; but according 
to Voet he does not forfeit any instalment of the purchase-price that 
may have been paid. When earnest is paid on immovables it is called 
in Dutch rouwkoop " (Morice's English and Roman-Dutch Law, 
2nd ed. p. 130). 

If earnest moiiey is paid as such by a purchaser to a seller, with- 
out any further stipulation, the seller is entitled to retain it {Brest 
and Lad(m v. Heydenrych, 13 S.C. at p. 21). 

Ebriosus, a person who deliberately becomes drunk. See Drunken- 
ness. 

Ebrius, a person who becomes drunk on an isolated occasion, 
led on by others, or bj' excessive indulgence at a feast or by 
ignorance of the strength of the liquor he has been drinking. See 
Drunkenness. 

Echte (D.), anciently meant law, but its modern meaning is 
marriage. 

Echteren (D.), to slander. 

Edelen (D.), the nobles in the Netherlands. In rank they came 
next to the overlord. " Their authoritj^ and prestige dated back to 
the earlj' German period " (Wessels' History, p. 68). 

Edicta, edicts, or general laws promulgated under the civil law 
by the emperor for the decision of cases which might arise. See 
Decreta. 

Eed (D.), an oath. See Oath. See also Van Leeuwen's Comm. 5, 
22, 6; and Kersteman's Woordenhoek, vol. 1, p. 115. 

Eedelen (D.), nobles. Originally they were all the inhabitants of 
a country who possessed non-tributary lands as their own, and who 
filled or held some public office, and were accordingly obliged to 
take up arms in defence of their country. The term eedelen (nobles) 
was subsequently extended to all persons descended from them, 
although they neither possessed any land of their own nor filled 
any oiSce. At a still later stage the term was further applied to 
those who were raised to the rank of nobility by the emperor, king or 
overlord (Meyer's Wooi^denschat). 

Eeman (D.), a married man. 

Eescheidt (D.), divorce. 

Eestand (D.), the married state. 

Eestui (D.^, marriage penning. 



EEWIJF 199 ELECTION 

Eewijf (D.), a married woman. 

Eigendom (D.), property ; equivalent to dominium.. 

Eisch (D.), formerly spelt eysch, a claim ; the plaintiff's declara- 
tion. In Holland the declaration was called conclusie van eisch ; in 
the Court of Holland it was made by means of a writ, and in the lower 
courts by a statement of the case followed hy a conclusion or claim 
(see Van der Linden's Institutes, 3, 1, 2, II ; also Kersteman's Woorden- 
boek, vol. 1, p. 133). 

Eischer (D.), formerly spelt eysscher, a plaintiff in an action. See 
also Aanlegger. 

Ejus est interpretari cujus est condere, it belongs to him to 
interpret wi>ose province it is to enact. This was a maxim used of 
the emperor in the later period of the Roman Empire. Where the 
words of a law were of doubtful meaning the judges were not allowed 
to construe or interpret them, but had to submit the point to the 
emperor for explanation. The maxim has no place in Englisii or 
Scotch law or the Roman-Dutch law. When a statute has once been 
passed it admits of no explanation by the legislature, which is only 
concerned with the enactment of laws ; the construction or interpre- 
tation of any ambiguities is the prerogative of the courts. " The 
province of the legislature is not to construe, but enact ; and their 
opinion, not expressed in the form of law, as a declaratory provision 
would be, is not binding upon courts, whose dutj? it is to expound the 
statutes thej- have enacted " {j)er Parke, B., in Russell v. Ledsam, 
14 L.J. Exch. 358). Thus, where an interdict had been obtained under 
sec. 60 of the Gold Law (T.), to which the court in granting the inter- 
dict had attached a certain construction, and the legislature thereafter 
attached a different construction to the section by a resolution the 
effect of which was to deprive the person who had obtained the 
interdict of his riglits under it, it was held that the re.solution of 
the legislature was invalid, and that the proper course would have 
been for the legislature to modify the terms of the law to accord 
with its views, while accepting the court's decision {Williams v. 
Geldenhuis Estate and G. M. Co., and Leyds, N.O., 11 C.L.J. 128; 
H. 237). See Testing Right. 

Elder brethren, the Masters of Trinity House, a corporation in 
London, England, who have the control and management of light- 
houses, buoys, &c., in England ; and the licensing of pilots ; they also 
have rights of supervision in Scotland and Ireland. 

Election, the act of choosing or selecting. See General Cam- 
paign Literature. 

Election petition, a petition duly presented to a superior court 
having jurisdiction complaining of an undue return or undue election 
of a member to serve in either House of Parliament by reason of 



ELECTION 200 EMPHYTEUSIS 

•want of qualification, diS(]ualification, corrupt practices, irregularity or 
otherAviise (see Act 9 of 1883 (C.C), sec. 3 ; Act 26 of 1902 (C.C.)), 
Also, ill Cape Colony an election petition may complain that a mem- 
ber of the Legislative Council who has been elected has ceased to 
possess the qualification by law required (see Act 9 of 1883 (CO.), 
sec. 3). 

For election petition in Ti'ansvaal, see Oi'dinance 38 of 1903, 
sec. 102. 

Ellector, a person qualified, and registered within a certain area, 
to vote for a candidate at a public election ; a person enjoying the 
franchise ; a voter. See Voter. 

EU, the old measure of an ell was abolished in the Orange Free 
State by Law 26 of 1898, sec. 15. 

EUendighen (D.), to banish. The word is derived from ellendt or 
ellavdt, i.e. el, another, and landt, a country. Hence ellendighen 
signifies to send to another country, to banish (Meyer's Woordenschat). 

Emancipation, one of the means by which children, whose parents 
are alive, become of age. Emancipation "takes place either judicially 
or tacitly, for instance, when a child is permitted to live and carry on 
business by himself. When children are released from the paternal 
power by one or other of these means [i.e. either marriage or emanci- 
pation], they acquire the right to administer their own property, and 
to appear for themselves in court" (Grotius' Introd. 1, 6, 4); see 
Bosch V. Titley ([1908] G.RC. 27). As id emancipation among natives 
under the code of native law in Natal, see Law 19 of 1891, sec. 92; 
see also Beyi v. Mhwzikazi and Another (18 N.L.R. 227). 

Embarrassed circumstances. "Embarrassed circumstances 
do not necessarily include and involve insolvency, and the considera- 
tion of the principles must be fixed upon the state of such circum- 
stances immediately at the time of the payment" (per WiLDE, C.J., 
in Salom's Trustee v. Groll, 1 Searle, at p. 1.5). 

Empanel. See Impanel a Jury. 

Emphyteusis, a form of tenure in Roman law, so called be- 
cause of its being, as it were, a new or equitable ownership implanted 
or engrafted {ev <pvT€iiw) on the dominium. It was the alienable 
and heritable real right over the land of another on eonditioii of 
cultivating and improving such land, subject to the payment of a 
fixed or yearly rent, variously called eanon, pensio, veetigal or 
reditus. The owner of the land or grantor was called dominus 
directus or emphyteuseos, the person to whom the grant was made 
emphyteuta, and the subject of the grant emphyteusis or ager 
emphyteuticarvus. At first only land formed the subject of an 
emphyteusis, but Justinian extended this form of tenure also to 



EMPHYTEUSIS 201 EMPHYTEUSIS 

buildings (Nov. 7, 3, 1, 2). The emphyteuta possessed the riglit of 
tlie full and fiee enjoyment of the land or praedium and its fruits. 
He could dispose of the thing and alter it, provided he did not 
deteriorate it. He could transfer his right to anotlier and dispose 
of it by will. He could mortgage the land and create servitudes 
over it. In these respects he differed from a usufructuai-y. On 
the other hand, the emphyteuta had to pay all the taxes imposed 
on the praedium, and had to cultivate, maintain and improve it. 
On a transfer of the right the domimis directus was entitled, to 
be paid a fee or tine on alienation for his acceptance of the new 
emphyteuta. This tine consisted of a fiftieth part of the purchase 
money oi- of the value of tiie thing (quinqiiagesim,a pars pretii vel 
uestimjcttionis, also called laudemiwin). In the absence of special 
agreement this tine liad to be paid by the new emphyteuta. The 
dominus could, however, refuse his consent to the alienation. 

Emphyteusis became extinguished in various ways : e.g. by 
■effluxion of time, where the grantor had only a temporary owner- 
ship in the thing, or where the time, for which the thing was 
granted to the ernphyteuta, had expired; by surrender of his right 
by tlie einphyteuta ; by merger; by the death of tlie emphyteuta 
without heirs; by forfeiture, which might occur through waste on 
the part of the em,phyteuta or through the non-payment of the rent 
for two years in the case of an ecclesiastical, and of three years in 
the case of a secular, emphyteusis. The owner or dominus directus 
<50uld not, however, expel the emphyteuta on his own authority, 
but had to .seek judicial intervention for the purpose. 

Regard being liad to the nature of emphyteusis and the rights 
of the emphyteuta, the ancient jurists were much puzzled as to 
the tiue classification of this contract. Some considered it as a 
■contract of letting and hiiiug, others as a sale. The Emperor Zeno 
■decided that it was to be regarded as a contract sui generis, and 
was to be legulated entirely by the pacts and agreements between 
the parties. In the absence of any agreement as to the risks which 
the thing might be subject to, Zeno decided that a total loss should 
fall on the dominas and a partial loss on the em,phyteata. This 
view was approved by Justinian {Inst. 3, 24, 3). The tenure of 
the emphyteuta, regard being had to its character and extent, was 
sometimes spoken of as dom,initim honitariuin or dominium utile. 
See further on the subject of emphyteusis Voet's Gomm. 6, 3; 
Smith's Diet, of Gr. and Rovujm Antiquities, sub voce; Mackeldey's 
Systema Juris (Lehrbuch), sees. 295 et seq. 

Emphyteusis also exists in Roman-Dutch law under the name of 
erfpachtrecht and its modern equivalent of peipetual quitrent. Erf- 
pachtrecht is defined by Grotius (Tnfrod. 2, 40, 2) as " the heritable 
usufruct of another's innnovable property subject to an annual rent." 
The emphyteuta or erfpachter, unlike in the Roman law, could, in the 
absence of any agreement or special custom to the contrary, cede and 
transfer his right without the consent of the dom.inus or grantor, 
who would, however, have a jus retractus (naasting) within a year 
.after becoming aware of the alienation (Grotius' Introd. 2, 40, 7). 



EMPHYTEUSIS 202 EMPLOYEE 

The rights and duties of the e'mphyteuta, except where otherwise 
regulated by special agreement or local custom, are generally speaking 
the same as those of the eTnphyteuta in lloman law. There is, how- 
ever, this important difference, that the Roman-Dutch law leaned 
more strongly against a forfeiture in case of non-payment of the rent 
for three years. Thus KoTZE, J., observed : " There can be no doubt 
that the equitable spirit of the canon law influenced Dutch jurispru- 
dence, so far as the contract of emphyteusis or erfpacht is concerned, 
which is defined by Grotius as the hereditary' usufruct of another's 
immovable property subject to the payment of a yearly rent or canon. 
It is, therefore, what we should call a perpetual quitrent tenure. By 
the law of Holland such a quitrent grant or erfpacht could be for- 
feited, if the rent was three years in arrear, but the emphyteuta or 
grantee, says Grotius, can readily escape forfeiture or purge his de- 
fault by making payment shortly afterwards, or if he excuses himself 
on the ground of ignorance, or actually tenders the money ; and the 
right of forfeiture is barred if the grantor or owner has by his con- 
duct waived it, as where he accepts rent which has become due 
subsequently, or even rent which was due before, without any men- 
tion of his right to forfeiture. If, however, it can reasonably be 
inferred that the non-payment of rent proceeds ex contemptu' vel 
contumacia of the dominus directus, no relief will be granted (Coren, 
Obs. 22). There are several decisions of the Dutch courts dealing 
with the matter, commencing as far back as four centuries ago. 
These decisions lay down that, where the grant contains an un- 
equivocal condition that if the rent is not paid on the stipulated 
day it shall be forfeited, the court will decree a forfeiture, but not 
where no sucli forfeiture clause exi.sts" {Thomas' Estate v. Kerr, 
20S.C. 354; 13 C.T.R. 538). 

In British South Africa perpetual quitrent is a well-recognised 
form of tenure. The holder of land under this tenure has an here- 
ditary alienable right in the- land, and possesses all the powers and 
rights over it, which are enjoyed bj^ the owner of land held in 
freehold (eigendomsplaiits), except such rights as are respectively 
reserved by the Crown. By Roman-Dutch law the holder had only 
jus utendi et fruendi. He was not entitled to any minerals (Voet's 
Gonfi7)i. 6, 3, 11), but hy the Proclamation of 6th August, 1813, issued 
by Sir- John Cradock, Governor of the Cape of Good Hope, the owner 
of land held in perpetual quitrent is entitled to all mines of iron, 
lead, copper, tin, coal, slate or ironstone. The Government, however, 
reserves to itself the right to all mines of precious stones, gold 
and silver, and the right of repairing all public roads and taking 
materials for the purpose from the land held in perpetual quitrent. 
(See Maasdorp's Institutes, vol. 2, pp. 142-43.) 

Employee, in the Industrial Disputes Prevention Act, 20 of 
1909 (T.), sec. 2, means " any white person engaged by an employer 
to perform, for hire or reward, manual, clerical or supervision work 
in any undertaking, trade or industry to which this Act applies." 
See Servant. 



EMPLOYER 203 ENEMY 

Employer. The term employer is defined in the Cape Work- 
man's Compensation Act (40 of 1905) to mean " any person who 
hires or contracts with any workman in the [Cape] Colonj? or the 
territorial waters tliereof, or between whom and any such workman 
there is an existing contract for the performance of any work to 
wliicli tlie provisions of this Act apply, and shall include the legal 
personal representative of a deceased employer and the trustee of an 
estate of an employer w^hen such estate has been sequestrated." 

In the Transvaal Workmen's Compensation Act (36 of 1907) 
sec. 1, employer means " any person or any body of persons, corporate 
or unincorporate hiring or contracting before or after the date of the 
taking eflPect of this Act with any workman (as in this section defined) 
for the performance of any wprk (as in this section defined), and 
the term employer shall include his representative (as in this 
section defined)." See also Act 20 of 1909 (T.), sec. 2. 

Emplojnnent, the state of being employed. As to employment 
in connection with Bribery and Corrupt Practices Acts, see Burton v. 
Rhodes and Hill (16 S.C. 3). 

Emptio-venditio, the name given in the Roman law to tlie 
contract of sale, being a compound of the two elements of which the 
contract was composed, viz., purcha.se (emptio) and sale (venditio). 
The purchaser's rights were said to be ex empto and the seller's ex 
vendito. 

En commandite. In the French Code of Conanerce provision is 
made for partnerships in which, besides those members who are held 
out as such and who are jointly and severally responsible for the 
partnership debts, there are other members who merely provide 
capital to the concern, and whose liability, except probably in cases 
of insolvency, is limited to the amount of the capital so provided by 
them. Such partners are called commandataires or covimenda- 
taires, and the partnership is styled a partnership en commandite. 
See Morice's English and Roman-Dutch Law, 2nd ed. p. 192. 

Encroachment, the unlawful trespassing or intrusion upon the 
rights or property of another person. 

Encmnbrance, a burden or servitude affecting property. " En- 
cumbrance means a real burden on the land, a portion of the domin- 
iunn parted with by the owner " {per Innes, C.J., in Hollins v. 
Registrar of Deeds, [1904] T.S. at p. 607). But there may be an 
encumbrance on- land and yet the owner may retain all the rights 
of ownership, as where a mortgage bond has been passed and regis- 
tered against the title of the land. 

Enemy. The term enemy is defined in the Cape Colonial Forces- 
Act (32 of 1892) as follows : " The subject of any State at war with 
the [Cape] Colony and offering armed opposition to its forces ; and 



ENEMY 204 EQUITABLE 

also any armed niutiiieei-, armed rebel or armed rioter, and any 
pirate." 

Enter. In the Transvaal Crimes Ordinance (26 of 1904), sec. 3, 
enter meaiis " the insertion of any part of the body of a person, or any 
part of an instrument used by such person within a building." 

Entire contract is a term applied to building contracts. "An 
entire contract is a contract which cannot be divided up into parts, but 
must be treated and taken as a whole ; the consideration is also indi- 
visible, that is, the consideration cannot be divided up into parts; nor 
can one part of tlie work contracted for be treated as having been 
performed in respect of any specified part of the consideration. Whilst 
as to a contract which is not entire, the contrary obtains" (Macey's 
GonditionH of Contract, p. 6). An entire contract for a building implies 
that the contractor must perform all works necessary to complete that 
building before he can claim payment. 

Eo contra, on the contrary; on the other hand. 

Eo converso, conversely. 

Eo nomine, by that name. 

Epistolae, letters. In the Roman law epistoltie were letters, or 
answers to letters, addressed by the emperor to individuals or public 
bodies. See Decreta. 

Equipment is defined in the Natal Militia Act (36 of 1903), sec. 3, 
to signify " arms, accoutrements, and all articles, except clothing, worn 
or carried by a militiaman or his horse ; and includes all ordnance, 
machine guns, harness, stores, tents and anmiunition issued to militia- 
men individually or collectively." A similar definition, applicable to 
volunteers instead of militiamen, is found in Ordinance 33 of 1902 (T.), 
sec. 1. 

Equipping, "in relation to a ship, shall include the furnishing of 
a ship with any tackle, apparel, furniture, provisions, arms, munitions 
or stores, or any other thing which is used in or about a ship for the 
purpose of fitting or adapting her for the sea or for naval .service, and 
all words relating to equipping shall be construed accordingly" (the 
Foreign Enlistment Act of Natal, 26 of 1906, sec. 30). See also 
Ordinance 1 of 1906 (T), sec. 30 of schedule. 

Equitable mortgage. " There is no such thing in this [Cape] 
Colon}' as the equitable mortgage known in England created by the 
pledge of the title-deeds" (per Buchanan, J., in De Bruyn v. Banvers 
& Co.'s Assignees, 16 S.C. at p. 574). " The mere deposit of the docu- 
ments or titles, together with a letter to the manager of the bank to 
the erf'ect that these securities are handed to the bank against the 
debtor's overdraft, only shows that there was an intention to pass a 



EQUITABLE 205 ERFGRONDBRIEP 

mortgage, but it does not constitute or create any mortgage, especially 
as against the creditors of the insolvent" (per KoTZ]^, C.J., in Collins 
V. Hugo avd the Standard Bank, H. at p. 182). 

What is known in England as an equitable mortgage cannot have 
effect as against a subsequent special mortgage which has been duly 
registered; see Van der Merwe's Estate v. Thome (24 S.C. at p. 71). 

Equity. " Equity means to tlie Romans fairness, right feeling, 
the regard for substantial as opposed to formal and technical justice, 
the kind of conduct which would approve itself to a man of honour 
and conscience " (Bryce's History and Jurisprudence, vol. 2, p. 143). 
The same author (at p. 164) in speaking of the law of England says : 
" Our sj'stem of Equity, built up by the Chancellors, the earlier among 
them ecclesiastics, takes not only its name but its guiding and forma- 
tive principles, and many of its positive rules, from the Roman 
aequitas, which was in substance identical with the law of nature 
and the _^'its gentium." Sir Henry Maine derives the term equity 
from the Latin aeqxius, in the sense of "levelling," and says it was 
precisely its levelling tendency which made the jus gentium, most 
striking to a primitive Roman {Ancient Law, ch. 3). The system of 
equity as understood in England is unknown in Roman-Dutch law. 

" The Court [Supreme Court of the Transvaal] has again and again 
had occasion to point out that it does not administer a system of 
equity as distinct from a system of law. Using the word equity in 
its broad sense, we are always desirous to administer equity ; but we 
can only do so in accordance with the principles of Roman-Dutch law. 
If we cannot do so in accordance with those principles, we cannot do 
so at all " {per Innes, C.J., in Kent v. Transvaulsche Bank, [1907] 
T.S. at p. 774). 

Erf (D.), (pi. erven), term applied to plots of land held in freehold 
into which many of the villages or townships in South Africa are 
divided. They are not of uniform size. See Ex parte Myhurgh {'2^ 
S.C. at p. 670). See Act 44 of 1908 (C.C), sec. 1. 

Erfbesprek (D.), a last will or testament. 

Erffennis (D.). See Ebvenis. 

Erfgenamen (D.), heirs. There are two kinds of heirs (a) erf- 
genamen ah intestato, or heirs in intestacy ; and {b) erfgenamen ex 
testo^mento, or testamentary heirs. "By the term heirs in the institu- 
tion by will we do not understand the very nearest, but those who 
would be the nearest by succession ah intestato" (Van Leeuwen's 
Gomm. Kotze's trans, vol. 1, p. 363). 

Erfgrondbrief (D.), the first title-deed or original grant of land 
held on a tenure that formerly existed in Cape Colony, called "loan 
freehold." The ternv was also applied to the first title-deed or grant of 
such land when under Sir John Cradock's Proclamation of 1813 the 



ERFGRONDBRIEF 206 ERUMPENS 

tenure was clianged into " perpetual quitrent " (Maasdorp's Institutes, 
vol. 2, pp. 140-41 ; Be Villiers v. Cape Divisional Council, Bueh 
1875, p. .50). 

Erflating (D.), a disposition or declaration of intention as to who 
is to be heir. See Van Leeuwen's Comni. Kotze's trans, vol. 1, p. 348, 
where Chief Justice KoTZl^ points out that tlie Latin equivalent is 
relictio hcBreditatis, and explains the distinction between erflating and 
erfstelling. 

Erfpacht "is the term by which quiti-ent has always been known 
in tliis [Cape] Colony. It was used as the equivalent for quitrent in 
the Dutch ver.sion of the Proclamation (of Sir John Cradock of 1813) 
as olEcially published in the Government Gazette of the time. ... It 
is also the term invariably used by the Dutch-speaking inhabitants of 
the colony to designate the quitrent tenure " (De VlLLlERS, C.J., in 
Be Villiers v. Cape Divisional Council, Buch. 1875, p. 50). Quitrent 
is the Englisli term for emphyteusis. See Emphyteusis. 

Erfpachtrecht or Erfpagregt (D.), emphyteu.sis. See Emphy- 
teusis; Erfpacht. See also Van Leeuwen's Comm,. Kotze's trans, 
vol. 1, p. 220. 

Erfstelling (D.), appointment of heir in a testament; the insti- 
tution to the inheritance. In Latin institutio heredis. See Van 
Leeuwen's (Jomm. Kotze's trans, vol. 1, p. 361. 

Error. "'Error,' says Vinnius in his Select Questions, ' is twofold, 
being either of fact or law. An er^^or of fact takes place either when 
some fact which really exists is unknown, or some fact is supposed to 
exist w))ich really does not. On the other hand, wiien a person is 
truly acquainted with the existence or non-existence of the facts, but 
is ignorant of the legal consequences, he is under an error of law. If 
a person makes a payment knowing that he is not indebted, it is 
agreed on all hands that he has not any right of repetition; for a 
payment which is subject to repetition if made by mistake, amounts 
to a donation if made with full knowledge'" {per De Villiers, C.J., 
in White Bios. v. Treasurer-General, 2 S.C. at p. 349). A payment 
made in error of law cannot be recovered {Rooth v. The State, 2 S.A.R. 
259). See Mistake. 

Error calculi, error of calculation. An exception of error in the 
calculation may be rai.sed bj' a borrower when sued for the amount of 
the loan, unless it has been renounced by him. 

Erumpens in SUO, rising or bursting out on his own land. This 
phrase is used of water which rises on private land. In Retief v. 
Louie (Buch. 1874, p. 165) it was held that such water was the pro- 
perty of the land-owner, and that he might deal with it as freely 
as with any other part of his private property, might dispose of it 
or grant a servitude of fiquaeductus over it. See also Breyer v. 



ERUMPENS 207 ESPARGNE 

Ireland (Buch. 1874, p. 200); Silberbauer v. Breda (5 Searle, 231); 
and Erasmus v. De Wet (Buch. 1874, p. 204), in all of which cases 
the above principle was approved and followed. It is now, however, 
settled that the owner of land upon which water rises has the full 
ownership of the water and can use or dispose of it as he pleases only 
where the water has not for thirty years or more flowed beyond his 
land in a known and definite channel on to the lands of lower pro- 
prietors. If the water has so flowed beyond the limits of the land 
on which it rises, the stream is classed among public or perennial 
streams, to the accustomed use of which the lower proprietors are 
entitled {Breda v. Silberbauer, 6 Moore's P.C.C, N.S. 319; Vermaak 
v. Palmer, Buch. 1876, p. 25; Strtiben v. Capetown Districts Water- 
works Co., 9 S.C. 68 ; Meyer v. Johannesburg Waterworks Co., H. 1 ; 
Maa.sdorp's Institutes, vol. 2, pp. 106 et seq.). 

Ervenis or Erffenis (D.), inheritance ; the right to the estate 
of a deceased person either in part or as a whole. " The right to an 
estate or boedel is acquired by inheritance, which is the administra- 
tion of another's estate and heritage ; and whereby we not merely 
acquire the actual possession of the property of the deceased existing 
at the time, but also his rights of action — that is, all tlie right of 
recourse and proceeding which the deceased had to and against 
another ; and we also bind ourselves in the name of the deceased 
for everything owing by him and which another could claim from 
him" (Van Leeuwen's Comm. Kotze's trans, vol. 4, p. 311). See Heres 

*EST EADEM PERSONA CUM DEFUNCTO. 

Escheat, the reversion of lands or moneys to the State; a rever- 
sion of lands to the lord of the fee or oi'iginal grantor. See the Natal 
Escheat Laws (11 of 1868, and 6 of 1869): it may be noted that these 
Laws were passed whilst Natal was a Crown Colony. Law 6 of 
1869 (N.) declares the law and practice in cases of escheats, and 
provides for the holding of an inquest in all cases of escheat to the 
Crown. 

Escrow (from the Latin scriptum through the Norman-French 
escrit), an English law term signifying a deed or agreement delivered 
to a disinterested party in trust pending the fulfilment of some con- 
dition specified therein in favour of the other party to the deed or 
agreement. If the condition is performed it becomes a binding obliga- 
tion, otherwise it fails. The term escrow is also applied to a payment 
to a disinterested party in trust pending the performance of some 
condition, such as the transfer of land. By analogy the term is some- 
times applied to bills of exchange (Chalmers on Bills of Exchange, 
5th ed. p. 56). 

Espargne (D.), treasurer of the espargne, i.e. the receiver of 
everything forfeited to the count, or which accrued to the Jiscus. 
Espargne or epargnes is a non-German or French word, denoting 
economy. In France the Royal Treasury of Francis I bore this name 
(Boey's Woordentolk). 



ESPOUSALS 208 ET 

Espousals (trouwbehften) '' are a mutual agreement and promise 
of a future marriage. Such a promise is confirmed and ratified like 
all other transactions which are completed by mutual consent" (Van 
Leeuwen's Comm. Kotz^'s trans, vol. 2, p. 209). 

"Establish themselves." "My decision in this case is baaed 
upon the meaning of the words establish themselves. To speak of a 
person establishing himself presupposes that he has independent 
freedom of action and choice, and that, of his own volition and for his 
own purposes, he comes into the Transvaal and settles there. The 
expression is not applicable to a child of tender years, nor to a boy 
of fifteen who comes in as a member of his father's family, is brought 
here by liis father, and is supported by and lives with him" (per 
Innes, C.J., in Rex v. EbruJiam, [1906] T.S. at p. 465 ; in this case the 
accused had been charged with contravening Law 3 of 1885 (T.) in 
that he settled in the Transvaal for the purpose of carrying on trade 
or otherwise without having registered himself in accordance with the 
provisions of the statute). 

Estate, the propertJ^ whether movable or immovable, of a person, 
partnership or company. 

In the Transvaal Insolvency Law (13 of 1895, sec. 180) estate 
comprises " all present and future property, whether movable or 
immovable, personal or real, and all rights of whatsoever description 
to such property, wherever they may be found to exist, belonging., 
to or due to the in.solvent at the time of the granting of the order 
of sequestration, or which shall subsequently at any time before 
rehabilitation be acquired by or become due to such insolvent." 

See Master of the Supreme Court v. Maclean's Executrix ([1904] 
T.S. 991). 

Estoppel. " I do not wish to speak against the principle of 
estoppels, for I do not know how the business of life could go on 
unless the law recognised their existence ; but an estoppel may be 
said to exist where a person is compelled to admit that to be true 
which is not true, and to act upon a theory which is contrary to 
the truth. I do not undertake to give an exhaustive definition, but 
that formula nearly approaches a correct definition of estoppel" (per 
Bramwell, L.J., in Simm v. Anglo- American Telegraph Co., 5 Q.B.D. 
at p. 202). " The term estoppel is used in a very vague sense in 
the English law, and can generally be classed under some other head 
in our law " [per De Villiees, C.J., in Collector of Customs v. Cape 
Central Railways, Ltd., 6 S.C. at p. 405 ; see also his remarks on same 
subject in Merriman v. Williams, Foord, at p. 174). See Re Reynolds 
Vehicle and Harness Factory, Ltd. (23 S.C. at p. 712). 

Et cetera, and other things. In a lease, where the subject let 
was described as " the farm K with buildings et cetera as it stands 
at present," it was held that the words et cetera must be restricted 
to things ejusdem generis as buildings, and did not include movables, 



ET 209 EX 

such as machinery, fui-niture of cattle (Van der Weathuizen v. 
Glastonbury, [1908] T.S. 836). 

Etula, a native word. See Ukwetula. 

Euvelen (D.), to be hurtful, to cause damage or injuiy. 

Event. " By an event is meant some motion or change, con- 
sidered as having come about either in the course of nature, or 
through the agency of human will ; in which latter case it is called 
'an act' or 'an action'" (Best on' Evidence, 10th ed. sec. 13). See 
'■' In the Event." 

Evictie (D.), eviction. Decker in a Note to Van Leeuwen's 
Comin. (Kotze's trans, vol. 2, p. 143) says : " Eviction consists in 
the total or partial loss of the thing sold, which the purchaser 
suffers in consequence of a right in a third party. . . . Further, 
eviction not only exists in case of sale, but the security arising 
therefrom also exists between co-heirs and in several other instances." 
See Ker.steman's Woordenboek, vol. 2, p. 466. 

Evidence "means (1) statements made by witnesses in court 
under a legal sanction, in lelation to matters of fact under inquiry; 
such statements are called oral evidence : (2) documents produced for 
the inspection of the court or judge ; such documents are called docu- 
mentary evidence " (Stephen's Digest of the Law of Evidence, 5th. ed. 
p. 2). 

For Cape Colony, see Ordinance 72 of 1830; Ordinance 14 of 1846; 
Act 4 of 1861 ; Act 13 of 1886. 

For Natal, see Law 9 of 1859; Law 17 of 18.59; Law 5 of 1870; 
Law 6 of 1884; Law 37 of 1888; Act 29 of 1899. 

For Transvaal, see Proclamation 16 of 1902 and Ordinance 21 of 
1904. 

Ex abundant! cautela, from excessive caution. 

Ex aequo et bono, in or according to equity and good conscience. 

Ex cathedra, from the chair or seat of authority — referring to 
decisions of the Popes given from their Cathedra, ; with high authority. 

Ex causa lucrativa, from a lucrative source. " Where it is clear 
that the testator knew it, and the legatee after the execution of the 
will acquires the property for valuable consideration (titulo oneroso), 
as by purchase, he may under the will claim its value from the heir, 
unless there were manifest indications of an intention on his part to 
renounce the legacy ; but where he acquires the property without 
valuable consideration (ex causa lucrativa), as by gift, he is not en- 
titled to claim either the thing itself or its value. If, therefore, pro- 
perty is bequeathed to a person under two distinct wills, he will do 
well first to obtain the value under one will, for he can then still claim 



EX 210 EX 

the tiling itself under the other; but having once ac(juired tlie thing 
itself without valuable consideration, he has no claim to its value" 
(GrotiuN' Introd. Maasdorp's trans. 2, 22, 41). 

Ex concesso, from what has been conceded. 

Ex contemptu vel contumacia, from contempt or contumacy. 
By the Roman law an emphyteusis or quitrent could be terminated 
by the dominus if the rent was for three years in arrear in the 
case of secular property and two years in the case of ecclesiastical 
property. In the same way a lease could be cancelled and the 
lessee ejected by the lessor wliere the rent had not been paid for 
two years. The Roman-Dutch law, following the Canon law, has 
modified this rule by allowing the court to inquire into the cir- 
cumstances, and unless the quitrent holder or lessee in failing to 
pay his rent has acted in detiance {ex contem/ptu vel contumacia) of 
the rights of the donninus or lessor, the default may be purged 
and forfeiture avoided by tender of payment of the arrears (Voet's 
Comxm. 6, 3, 36 ; Grotius' Introd. 2, 40, 19 ; Tfiomas's Estate v. Kerr 
and Another, 20 S.C. 354 ; 13 C.T.R. 538). See also Contumacy. 

Ex curia, out of court. 

Ex decreto judicis, by judicial decree. In Lange and Others 
V. Liesching and Others (Foord, 55) the question was discussed 
whether a sale by the trustee in an insolvent estate was, as regards 
preventing a rei vindicatio, a sale ex decreto judicis, such as referred- 
to in Voet's Comm. 6, 1, 13 ; De Villiers, C.J., said : ' The only point 
upon which there may at first sight be some doubt is whether the sale 
was authorised, in the words of Voet, ex decreto judicis. Upon a 
closer examination of the subject this doubt also vanishes. A sale in 
insolvency is the necessary result of an order of the court placing the 
estate of the insolvent under sequestration in the hands of the Master 
of the Supreme Court." As the sale ex decreto judicis thus does not 
appear to be necessarily in consequence of the direct order of a court, 
it would seem that any sale in execution of a judgment is e.>; decreto 
judicis. 

Ex delicto, from or arising out of a delict or crime. 

Ex dividend, a Stock Exchange expression in connection with the 
sale of shares or stock, signifying that the shares or stock are sold 
exclusive of the accruing or declared dividend. Frequently abbre- 
viated to " ex div." or " x. d." 

Ex figura verborum, from the form of the words ; by the form 
of words used. 

Ex mera gratia, through mere favour. 

Ex mero motu, of or from one's own free will or accord. 



EX 211 EXOEPTIE 

Ex necessitate legis, from the necessity of the law. 

Ex necessitate rei, from the necessity of tlie case. 

Ex nihilo nihil fit, out of nothing, nothing comes. 

Ex nudo pacto non oritur actio, from a nude agreement no 
action arises: a rule of the civil, but not also of the Canon or the 
Roman-Dutch law. See Causa. 

Ex ofl&cio, by virtue of office. 

Ex officio judicis, by virtue of the office or power of the judge ; 
said of tilings awarded by a judge, although not formally claimed. 
See NoBiLE officium. 

Ex parte, on behalf of; from one side. An application to the 
court ex parte is made by the applicant only in the absence of the 
respondent. 

Ex post facto, after the event ; retrospective. 

Ex quasi contractu, [arising] as if frotn a contract. See Quasi 

EX CONTRACTU. 

Ex turpi causa non oritur actio, no action arises from a dis- 
honourable cause or motive. Thus a woman cannot sue upon an unJ^ 
fulfilled promise made to her as a consideration for illicit intercourse. 
Where, however, the thing promised has been given or transferred to 
her, it cannot be reclaimed, following the maxim /?? pari delicto melior 
est conditio fossidentis {Ahurrow v. Wallis, 10 S.O. 214). The rule 
with respect to immoral contracts is as follows: if the immoral cause 
be on the side of the obligor the obligation is void, but any payment 
made under it cannot be recovered ; if on the side of the obligee alone 
the obligation is also void and may be set aside at the instance of the 
obligor, and whatever has been paid under it by him may be recovered; 
if on both sides the above maxim will apply, i.e. he who is in posses- 
sion will be in the better position. 

Exactissima diligentia, the highest degree of diligence. Where 
such i.s obligatory, the person subject to the duty is liable for 
levissivia culpa, the slightest degree of negligence. The person to 
whom a thing is lent for use (covimodatitm) is said to be liable for 
exacta diligentia, when the loan is entirely for his benefit (Voet's 
Comm. 13, 6, 4). 

Exceptie (D.), exception. Exceptions formed a prominent feature 
in Dutch practice. See Van Leeuwen's Comm. 5, 14 ; and Kerste- 
man's Woordenboek, vol. 1, p. 124. 



EXOEPTIO 212 EXCEPTIO 

Exceptio. This tei-m in Roman law does not have precisely the 
same meaning as the term " exception " in modern practice. It was a 
plea allowed to a defendant, who, though liable according to the letter 
of the law, yet alleged facts tliat would make his condemnation in- 
equitable. It was the means by which the magistrate gave effect to 
equitable defences not recognised by the jus civile. The exceptio doli, 
exceptio metus, e.rce'ptio non numeratae pecuniae, exceptio pacti con- 
vent i are examples of the Roman law exceptio. 

Exceptio litis pendentis, exception of a suit depending. It 
affords prima facie a good ground for a plea in abatement to any 
action, that another action between the same parties, for the same 
thing, and arising out of the same cause, is depending before another 
competent court. See Lis alibi pendens. 

Exceptio non numeratae pecuniae, the exception that the 
monej' was not counted out or paid. This was an exception of the 
Roman law which could be pleaded by any one who was sued upon 
a written acknowledgment of debt. Tiie exception was available 
only for a limited time — -first one j'ear, then five, and finally fixed 
by Justinian at two years — from the date of the writing. This rule 
has been adopted by the Roman-Dutch law with reference to written 
acknowledgments of a loan. " Not only is the exception in rem, 
being available to heirs and sureties, but also if opposed within two 
j'^ears reckoned from the date of the written obligation it is privileged 
to tlie effect of throwing the burden of proof upon the plaintiff, who 
saj's that payment followed, whereas generally'' a defendant in except- 
ing becomes a plaintiff and is bound to prove his exception. But if 
he who holds the writing does not sue upon it within two years, so 
that the exception cannot be opposed to him by reason of his not 
suing, the writing itself within two years can be recovered by him 
who granted it and his heir in a condictio sine causa, or causa data, 
causa non secuta, provided the holder of it is present. But if he 
is absent or in concealment, and caimot therefore be sued by those 
actions, the fact can be brought before a judge or otherwise be made 
the subject of a formal complaint; and by that course this privileged 
exception is rendered perpetual, so that the burden of proof that pay- 
ment was indeed made will continue to be laid upon the plaintiff at 
whatever time he should afterwards sue '' (Voet's Comm. 12, 1, 31). 

The exception does not lie in the case of an acknowledgment 
given to a hanker, or an acknowledgment of a previously existing 
debt, or if a pledge has been granted for a previously existing debt, 
not at the same time, but at a different time ; for in those cases 
the person who has acknowledged the debt is bound to prove that 
the money was not paid to him, and has not a privileged, but a 
bare unprivileged, exception non numeratae pecuniae. If, on the 
other hand, he grants the acknowledgment and constitutes the pledge 
at the .same time and by the same writing, the exception, as a privi- 
leged exception, will be available to him. Also if the debtor pays 
a part of the debt, or interest upon it, he cannot avail himself of 



EXOEPTIO 213 EXOEPTIO 

the exception with regard to the remaiuJer. The same principle 
applies if the parties enter into a comprouiise with regard to the 
money which was said not to have been paid. 

Tile exception also does not lie in the case of an acknowledgment 
of a deposit, or in the case of receipts for public taxes (publicariiTn 
function am); but as against receipts for private debts the exception 
is available for thirtj' days (Voet's Comm. 12, 1, 32). See Exceptio 

NON SECUTAE SOLUTIONIS. 

The exception, of course, ceases where it has been expressly re- 
nounced, the burden of proof in that ca.se being transferred to the 
defendant (Schorer's Note to Grotius' Introd. S21). 

After the lap.se of two years it is still open to the debtor to 
plead the exception, but the burden of proof will then be transferred 
to him (Voet's Comm. 12, 1, 33; see also Van der Keessel, Thes. 
523, 524). 

Exceptio non qualificatae, the exception of iion-c]ualification, 
that is, that a party has not the qualifications that he ascribes to 
himself in the case. If evidence is required on the point, the ex- 
ception is now called a plea in bar. In Aspeltng, Executor of Low, v. 
Waldpot (3 Menz. 350), after the plaintiff had closed his ca.8e, abso- 
lution from the in.stance was a.sked for, on the ground that the 
declaration alleged that the plaintiff was executor of Low, though he 
had not proved this ; but the court held that the defendant, not 
having taking the exception of non-qualification before pleading and 
issue joined, must be taken to have admitted the plaintiff's title. 

Exceptio non secutae solutionis, exception that payment did 
not follow. Somewhat like the exceptio non mimeratae pecuniae, 
which may be opposed to a bond or written obligation, is the exceptio 
non secutae solutionis, which may be taken to a receipt by the 
creditor; but whereas the former exception, in its effect of throwing 
•the burden of proof on the holder of the writing, is available at any 
time within two years, the plea of noTi-payment in the case of a 
receipt must be raised within thirty days after the date of the receipt, 
the onus of proof in that event being cast upon the debtor. After the 
thirty days, according to Schorei', the exception will not be available 
even though the creditor should be prepared to take the burden of 
proof upon himself (Schorer's Note to Grotius' Introd. 321 ; Voet's 
Gomon. 12, 1,32; 46, 3, 15). 

Exceptio probat regulam, the exception proves the rule. 

Exceptio procuratoris inhabilis. See Inhabiliteit van een 

PROCUREUR. 

Exceptio rei judicatae vel litis flnitae, the exception or plea 
that the point in dispute has already been decided by a competent 
court in a case between the same parties or their predecessors. 
See Res judicata. In Du Prez v. Rose (3 Menz. 353) the court 
held that a plea of rei judicatne et litis finitae, although in the 



EXCEPTIO 21 i EXECUTION 

language of the civil law called the exceptio rei judicatae et litis 
finitae, was not an exception in the sense in which that word is 
used in the forms of procedure in the court, but a plea on the 
merits; and before giving judgment on the relevancy of this plea, 
allowed the defendant to call evidence. 

Exchange. (1) " Is an agreement among merchants, whereby 
some one engages to pay to another, at a certain time and place, a 
sum of money received by him for a certain gain " (Van Leeuwen's 
Comon. Kotze's trans, vol. 2, p. 224). 

(2) Barter, a contract in wliich each party gives something in 
exchange for something given to him by the other. 

Exchequer account. In the Cape Audit Act (14 of 1906), 
sec. 3 (f), exchequer account is defined to mean " the account in 
whieli all taxes, duties and all other revenues, the proceeds of all 
loans raised, the surplus funds available for investment of the Post 
Office Savings Bank, the Sinking Fund Commissioners, the Pension 
Fund Deposit Account, or the Guarantee Fund shall figure on the 
one side and the issues therefrom, authorised by the auditor, upon 
the other side." 

' Exchequer account shall mean the account kept with the bank 
into which shall be paid all public revenues after deduction of any 
drawbacks, repaj^ments or discounts, and into which shall further be 
paid all other public moneys" (Audit and Exchequer Act, 14 of 
1907 (T.), and Audit and Exchequer Act, 17 of 1908 (O.R.C.)). 

Excise, an internal or inland duty or tax, imposed and levied 
on tiie consumption of a commodity or upon the manufacture or the 
sale of it. In South Africa excise duties are chiefly confined to such 
commodities as spirits and beer. 

Excise trader. The expression excise trader is defined in the 
Cape Excise Spirits Act (18 of 1884), sec. 2, as meaning " any person 
carrying on a business subject to any of the regulations of this Act, 
and includes any proprietor or occupier of an excise warehouse." The 
same definition is given in the Additional Taxation Act, 36 of 1904 
(CC), sec. 2. 

Bxecuteur (D.), an executor. See Executor. 

Execution. (1) The signing and attesting of contiacts, wills, 
powers of attorney and other documents. The solemnities to be 
observed in connection therewith are governed by the law of the 
place of execution. 

(2) The process by means of which a civil judgment of the court 
is enforced. After judgment a writ is issued and delivered to the 
sheriff" or messenger of the court, as the case may be, who proceeds to 
attach and realise as directed in the writ. It is this attachment and 
realisation that is known bj^ the term execution. 



EXECUTION 215 EXECUTOR 

(3) The performance of capital punishment upon a prisoner by the 
executioner in accordance with the sentence of a court. 

Executor. " If we look into the history of executorship we shall 
find that there always existed a difference between the testamentary 
executm- and the executor dative. The former was in olden times 
a person appointed by the testator to see that the heir carried out 
his wishes, whilst the latter was a priest appointed by the bishop to 
safeguard in particular the interests of the Church, and in general 
those of the legatees. The testamentary executor was chosen by 
the deceased to represent him, whilst the executor dative was an 
appointee of the Church. In the old wills of the fifteenth and six- 
teenth centuries the testamentary executor is often called a, procurator 
in rem suam. As' executors in early days were mostly ecclesiastics, 
and as the Churcl\ was deeply interested in the disposition of the pro- 
perty, because it always got souie gift ad pias causas or pro salute 
animae, it framed rules for the guidance of executors. Tliese rules 
formed part of tlie Canon law. . . The rules of the Canon law were 
framed in order to regulate the acts of the Ordinarius, and they no 
doubt formed the basis of the later Roman-Dutch law ; but in Holland, 
at £iny rate, the functions of a testamentary executor developed far 
beyond those of the Canon law. The executor of the Canon law could 
only pay the debts, hand over to the Church gifts made pro salute 
animae, and then place the balance in the hands of the heir for dis- 
ft-ibution. The testamentary executor under the Roman-Dutch law 
gradually acquired wider powers, and during the eighteenth century, 
amongst other duties, he had to liquidate the whole of the estate, to 
pay the debts, to paj^ out the legatees what was due to them, and then 
to hand over the balance to the heir" (per Wessels, J., in Ferguson 
and Huckell v. Langermann a.nd Lorentz, [1903] T.H. at p. 227). 
See also Fischer v. Liquidators of Union Bank (8 S.C. at p. 52). 

" It is the duty of an executor to sell the assets when he requires 
funds, but not to pass bonds on the property unless thereto authorised 
by the will or by order of court " {per De ViLLiERS, C.J., in Williains 
V. Williams, 13 S.C. at p. 203). 

Executor dative, a person elected to act as executor at a duly 
convened meeting of the next of kin and creditors of a deceased 
person who has died intestate, or having died testate the nominated 
executor testamentary is unwilling or unable to act; on such elec- 
tion being duly reported to him, the Master of the Supreme Court 
may grant lettei-s of administration to such person appointing him 
the executor dative to administer the estate of the deceased per- 
son on the required security being given ; the Master has certain 
discretionary powers in regard to such appointment; and in certain 
cases where the assets of the deceased do not exceed £100 or £200 
(varying in tlie different South African colonies) the Master may 
summarily appoint an executor dative without his being elected at 
a meeting of next of kin and creditors. See Executor. An execu- 
toi^ dative corresponds to the English "administrator" {Hiddingh 
V. Denyssen and Others, 3 S.C. 441). 



EXECUTOR 216 EXHIBITION 

Executor de son tort, executor of his own wrpng. This is 
a term of English law denoting one who, not having been duly 
appointed executor or administrator, intermeddles with tlie estate 
of a deceased person or performs any act pertaining to an executor. 
The liability of such a person is with us regulated by statute — in 
the Cape Colony by sec. 29 of Ordinance 104 of 1833; in the 
Transvaal by sec. 43 of the Administration of Estates Proclamation 
(28 of 1902) ; and in the Orange River Colony by sec. 39 of the Ad- 
ministration of Estates Ordinance (18 of 1905). These statutes provide 
as follows : if before the granting of letters of administration to an 
executor, testamentary or dative, any person takes upon himself to 
administer, distribute, or in any way dispose of any estate or part 
thereof, except in so far as may be authorised by a competent 
court or by the Master, or may be absolutely necessary for the 
safe custody or preservation thereof, or for providing a suitable 
funeral for the deceased, or for the subsistence of the family or 
household or livestock left by tiie deceased, such person shall be 
personally liable to pay all debts due by the deceased at the time 
of his death or which have thereafter become due by the estate, 
and all legacies left by the deceased in so far as the assets of the 
estate may prove insufficient to pay the same, unless when sued 
for the payment of any such debt or legacy he can prove to the 
satisfaction of the court the true amount and value of the property 
which has been unduly administered, distributed, or disposed of by 
him, and that his administration, distribution or disposal was not 
fraudulent, in which case he will only be liable for such amount 
and value and for the amount of the costs incurred by him in the 
suit as well as for the plaintiffs taxed costs. 

Executor testamentary, a person nominated and appointed as 
executor by the will of a deceased person. See EXECUTOR. Executors 
testamentary are recognised as such by lettei's of administration granted 
by the Master of the Supreme Court without being obliged to tile 
security. 

Exempli gratia, by way of example ; usually abbreviated by use 
of the initial letters only, viz. "e.g." 

Exheredatie (D.), disinherison. In Roman-Dutch law disinherison 
took place by means of testamentary disposition, but it was necessary 
that such a testament should be executed before two of the schepenen 
(magistrates) of the place where the testator resided, and thus dis- 
inherison could never be effected by codicil or a closed testament; 
moreover, it was imperative that the lawful reasons for disinherison 
should be inserted in the will and should be thereafter proved. 

Exheridation, a disinheriting. See Van Schoor's Trmtees v. 
Muller's Executors (3 Searle, at p. 137). 

Exhibition, a public display of productions whether in agiicul- 
ture, mechanics, science, art, or tlie like. See the Cape Exhibition 



EXHIBITION 217 EXPLOSIVE 

Act (11 of 1898), wliich re-enacts, witli slight ainendinent, tlie Cape 
Act 26 of 1892, regulating tlie lioldiiig of exhibitions in tlie Cape 
Colony. 

Exigency, demand ; urgency ; necessity. In the Sheriff's Ordi- 
nance (37 of 1828) of the Cape Colony the sheriff is antliori.sed, afte)- 
arresting a defendant, to take security " that the said defendant shall 
appear according to the exigency of the said process," &c. The ex- 
pression is used in .several other places in the same Ordinance, as well 
as in other statutes dealing with sheriff's duties. 

Existimatio circum colentium, the opinion of those living 
around or in the neighbourhood. This opinion is, according to Ulpian 
(Dig. 43, 12, 1), one of the tests for deciding whether a ^itream is a 
public or private stream (Port Elizabeth Bi>nsio7ial Gowncil v. 
Uitenlutge Divisional Council, Buch. 1868, p. 4<4). 

Expenditure Act. In the Cape Audit Act (14 of 1906), 
sec. 3 (('), Expenditure Act is defined to mean 'any Act, other than 
an Appropriation Act, under which any money is autliorised to be 
expended for any purpose therein specified, whether the said money 
be authorised to be raised by loan or charged against the Consolidated 
Revenue Account." 

Expenses. See Buyer to pay all expenses in connection 

WITH THE COMPLETING OF TRANSFER. 

Expert, a person skilled in some special department of knowledge, 
science or art. In the Cape Companies Act (25 of 1892), sec. 92. the 
tern) expert is defined to include " any person whose profession gives 
authority to a statement made by him." This definition is taken 
from the English Directors' Liability Act of 1890, sec. 3 (4). In 
the Transvaal Companies Act (31 of 1909), sec. 82, expert is defined 
to include "an engineer, valuer, accountant, and any other person 
whose profession gives authority to a statement made fjy liim." 

Expiration of tenancy. Where this expression appeared in a 
lease it was held tliat the tenancy terminated upon effluxion of time, 
upon default or upon forfeiture. See Bennett and, Tatham v. Koovarjee 
and Ka»tw (27 N.L.R. at p. 11-5). 

Expletrix. See Attributrix. 

Explosive. The term explosive in the Cape Explosives Act, 
(4 of 1887), has the following meaning: "(1) Means gunpowder, 
nitro-gl3'cerine, dynann'te, gun-cotton, blasting-powders, fulminate of 
mercury or of other metals, coloured fires, and every othei- substance, 
whethei- similar to those above mentioned or not, used or manufac- 
tured with a view to produce a practical effect by explosion oi- a pyro- 
technic effect; and (2) includes fuses, rockets, detonators, cartridges, 
ammunition of all descriptions, and every adaptation or preparation of 
an explosive as above defined." Explosive is defined in Natal statute 



EXPLOSIVE 218 EXPRESSIO 

law in sec. 2 of Act 23 of 1899 : in the Transvaal in Ordinance 4 of 
1905, sec. 2 ; in the Orange River Colony in Ordinance 19 of 1907, 
sec. 1. . 

Explosive factory, in the Transvaal Explosives Ordinance (4 of 
1905), sec. 2, means "anj' site licensed under this Ordinance for the 
manufacture of any explosives, together with every mound, building^ 
and work for whatsoever purpose used." 

Exporter, a merchant or other person who ships goods or produce 
to a foreign countrj-, or to some country beyond the boundaries of 
the country in which he resides or conducts his business. In the 
Natal Customs and Shipping Act (13 of 1899) vsec. 4, exporter means 
the person who actually exports the goods, and also includes any 
person who acts on behalf of the exporter. 

Express obligation " is properly described as the voluntarj- act 
of a person by which upon some reasonable ground, either by words- 
or in writing, lie promises another person something with the inten- 
tion that the latter shall accept the same, and by such acceptance 
acquire against hirn a right to performance " (Van Leeuwen's Gomm. 
Kotze's trans, vol. 2, p. 3, Decker's note). 

Expressio eoruna quae tacite insunt nihil operatur, the ex- 
pression of tho.se things which are tacitlj' implied operates nothing. 
For- example, as a bill of exchange or promissory note is presumed to- 
be made for consideration, the addition of the words "for value re- 
ceived " has no operative effect. So, if as between master and servant 
a term of the engagement is that the latter maj' be summarily dis- 
missed for fraud, .such a stipulation has no .special effect, for it is 
implied by law that a servant who is guilty of such conduct is not 
entitled to notice before dismissal. But if the master should desire to 
reserve to himself the right summarilj' to dismiss his servant for mere 
incompetence, that will require to be expressed in the agreement, as 
it is not a term that can be implied (Allnatt tt- Rhode v. Piper, 27 
N.L.R. 90). Again, if a testator leaves his property " to his heirs," i.e.- 
without indicating any particular persons who are to inherit, such a 
direction will have no operative effect, as it leaves the estate to devolve- 
according to the rules of intestate succession, and therefore does no- 
more than what the law itself provides. 

Expressio unius est exclusio alterius, a legal maxim meaning, 
that the expression of one thing implies the exclusion of the other. 
If, for example, a farm is let on condition that a rent be paid if there 
be a good harvest, the presumption would be that it was not the inten- 
tion of the parties that any rent should be paid if there was not a 
good harvest. The maxim is a rule of interpretation applicable to- 
statutes, contracts, wills and other documents. Its signification is- 
similar to that of the maxim expressum facit cessare taciturn (see- 
Broom's Legal Maxims, 7th ed. p. 491). 



EXPRESSIO 219 EXTRA 

The maxim is discussed in the case UitenJiage Municipality v. 
Colonial Oovemment (9 S.C. 375). See also Ahver Major v. John 
Makeftra (1 E.D.C. at p. 47): and Re Estate Dtuimore (5 E.D.C. at 
p. 96). 

Expresstun facit cessare taciturn, the express ousts the tacit. 
Ill contracts there are frequentlj'^ some conditions implied ; for example, 
certain points may be left for regulation b}^ the usage of trade. If, 
however, there is anything in the contract of the nature of an express 
agreement upon such points, the existence of such implied conditions 
is negatived. The maxim, which is a rule of interpretation, applies to 
statutes as well as contracts (TJiornto7i and Others v. Hugo, N.O., and 
the Mayor and Councillors of Graaff-Reinet, 3 E.D.C. at p. 304). It is 
considered by Broom to be identical with expressio uni^is est exchisio 
alterius (Broom's Legal Maxims, 7th ed. p. 491) ; but there appears to 
be ;i distinct shade of meaning in the two maxims. 

Expropriation, the dispossessing of an owner of certain of his 
propertj' or rights for some public purpo.se and by lawful authority, 
usually subject to compensation (Jooste v. Government of the S. A. 
RepiMic, 4 Oft'. Rep. 147). See Dominium eminens. 

Extend. See Renew and Extend. 

Extortion, the taking under colour of office or authority from 
anj- person, bj' means of illegitimate pressure, any monej' or valuable 
thing which is not due from him at the time it is taken. " The crime 
of extortion may be committed either bj^ a public official or by a 
private individual under colour of authority, but illegitimate pressure 
in some shape is a nece.ssary element to constitute the offence " {per 
Innes, C.J., in Notaris v. Rex, [1903] T.S. at p. 484). In Latin the 
crime is called concassio (q-v.), and in Dutch afpersing. 

See Ordinance 26 of 1904 (T.), sec. 12 : Act 8 of 1908 (O.R.C.). 

Extra cursuni curiae, outside the usual course of the court; 
applied to a judicial officer acting otherwise than in the discharge of 
his official functions. In Lambrechts v. Van der Byl (15 S.C. 402) 
De Villiers, C.J., said : " The Court has more than once decided that 
the parties cannot by agreement extend the magistrate's jurisdiction 
over any subject-matter not included by statute within his jurisdiction, 
but that they maj' refer a dispute to him as arbitrator. A proceeding 
before him as arbitrator would be extra cursum curiae, and would 
not admit of appeal to a higher court." 

Extra territorium jus dicenti impune non paretur, the sen- 
tence of one adjudicating beyond his territory is not obeyed with 
impunity. As a matter of absolute right no State can enact laws 
whicli will have anj' binding force outside the State territory. An 
exception to this rule exists in the case of what are called personal 
statutes or laws and mixed statutes or laws. The civilians divided 



EXTRA 220 FACILE 

laws into three Classen, namely, personal, real and mixed statutes, 
meaning by the term statutes not legislative enactments, but the 
whole municipal law of a State. The ditt'erence between these three 
classes of laws, which ai'e somewhat similarly delined by Voet {Comm. 
1, 4, 2, 3, 4), Grotius (Opinion No. 1), and Van der Keessel (I'hes. 
26-29), may be stated as follows: (ct) Personal statutes, whether they 
make mention of things or not, are those which are intended to define 
the condition or status of a person, such as the .|ualities of citizen- 
ship, legitimacy and illegitimacy, minority and majority, marriage and 
divorce, &c. ; or which by reason of such status or condition declare 
any one as having capacity or incapacity for performing any personal 
act. (b) Real statutes are those in which, although mention is made of 
the person also, the intention is to treat concerning things, (c) Mixed 
statutes are those which prescribe the formalities and solemnities of 
acts or deeds. 

Real laws do not operate beyond the territory of the enactiuj; 
State. Personal laws, iiowever, follow and govern the person subject 
to them even in other countries ; they, however, give place to the real 
laws of another country or to contrary legislation of the place whither 
the person subject to the personal law may go, or where the property 
in question is situated. With reference to mixed laws, the rule is 
that acts done or deeds executed in accordance with the formalities 
and solemnities of the law of the place where they are so done or 
executed are valid everywhere, unless there is an express law to the 
contraiy or they have been executed elsewhere in fraud of the law of 
the domicile (Van dei- Keessel, Thes. 39). 

Extradition, the surrender of a fugitive criminal by one State to 
another in accordance with certain treaty or other lawful obligations. 
On this subject consult Clarke's Loav of Extniditiov : also The 
Attorney-General v. Anderson (4 Off. Rep. 287). As to extradition 
in South Africa, see Bell and Nathan's Legal Handbook, 190.5 ed. 
p. -566. 

Extraordinary pension, an expression used in Ordinance 30 of 
1906 (T.), sec. 1, where it means "a pension payable to an officer 
who has become unfitted for the public service by reason of an 
injury received in the discharge of duty involving special risk and 
as a result of such risk." 

Extraordinary session. "Extraordinary session shall mean 
any session of Pailiament other than an ordinary session " (Act 12 
of 1907 (T.), sec. 2). 



Fac simile, do or make the like ; an exact copy of the original. 
Facile princeps, easily first ; eminent. 



FACTION 221 FALSA 

Faction fighting is defined in Natal in Act 11 of 1896, sec. 2, to 
mean " fighting witli or witfiout weapons, between natives, in whicf> 
not less than eiglit persons are engaged, and includes anj' breach of 
the peace, 7-iot, assault, injury or homicide, occurring in such fight." 
It is a crime cognisable in the courts of the magistrates (ibid. sec. 3). 
See also Act 9 of 1897 (N.). For further definition, where the 
minimum number of persons engaged is three, see Law 19 of 1891 
(N.), sch., sec. 31. 

Factor, an English term signifying a person who is employed to 
sell goods on behalf of his principal for a remuneration by wa^'^ of com- 
mission ; he has actual possession of the goods, and may buy and sell 
in his own name. See Chiappini & Co. v. Jaffray's Trustees (2 
Menz. 192 (as paged)). 

Factory, usually a building or combination of buildings, with 
machinery and appliances, appropriated for the manufacture of goods. 
See Act 11 of 1905 (C.C.), sec. 1. 

Facts in issue, "means (1) all facts which, by the form of the 
pleadings in an^' action, are affirmed on one side and denied on the 
other ; (2) in actions in which there are no pleadings, or in wliich 
the form of the pleadings is such that distinct issues are not joined 
between the parties, all facts from the establishment of which the 
existence, non-existence, nature, or extent of any right, liability, or 
disability asserted or denied in any such case would by law follow" 
(Steph.en's Digest of the Laxv of Evidence, 5th ed. p. 2). 

Falcidian portion, was introduced in Roman law by the Lex 
Falcidia. It conferred the right upon the heir to make such a pro- 
portionate deduction from all legacies with which he was charged, 
as to retain, over and above the debts of tlie deceased and the funeral 
expenses, a clear fourth of the estate or of that share of it to which 
he was instituted heir, the value of the estate being taken at what 
it was on the day of the death of the deceased, and debts due by the 
deceased to the heir being reckoned among the debts. 

The Falcidian portion was abolished in Cape Colony by sec. 1 of 
Act 26 of 1873, which is also operative in Rhodesia; it was abolished 
in the Transvaal by sec. 126 of Proclamation 28 of 1902 ; in the 
Orange River Colonj' by chap. 92 of Law Book, sec. 2, and Ordi- 
nance 18 of 1905; and in Natal by Law 7 of 1885, sec. 2. See 
Lex Falcidia. 

Falcidie or Falcidique portie (D.), Falcidian portion. See Falci- 
dian Portion. 

Falsa demonstratio non perimit legatum, a false description 
does not invalidate a legacy. Thus, if a te.stator bequeathed his 
house, describing it as situate in a certain place, whereas the only 
house owned by him was in another place, the legacy would never- 



FALSA 222 FARM 

theless hold good. So the legacy of a piece of laud would not be 
avoided by the fact that its extent was erroneously stated by the 
testator (Van Leeuwen's Gomm. 3, 9, 5). The same applies with 
reference to the description of the legatee. For example, if a testator 
says, " I leave to my grandson John," and his only grandson is named 
James, the legacy to the grandson will be good, the name being re- 
garded merely as descriptive. So if lie bequeathed to his niece Mary, 
daughter of his sister Jane, and sister Jane has no children, but he 
has a niece named Mary, the legacy would also be valid, there being 
no doubt as to the person intended to be benefited by the testator. 
See Ambiguitas latens et patens. 

False pretences, as to theft by means of false pretences, nee 
Theft. 

False trade description. " The expression false trade descrip- 
tion means a trade description which is false in a matei-ial respect as 
regards tlie goods to which it is applied, and includes every alteration 
•of a trade description, wliether by way of addition, effacement or 
otherwise, where that alteration makes the description false in a 
material respect, and the fact tliat a trade description is a trade-mark 
or part of a trade-mark shall not prevent such trade description being 
a false trade description within the meaning of this Act " (Act 12 of 
1888 (CO.), sec. 2). 

For Natal definitien, see Law 22 of 1888, sec. 3. For that in the 
Transvaal, see Ordinance 47 of 1903, sec. 2 (1). 

Falsiteit (D.), fraud. See Crimen falsi ; Fraud. 

Falsity. See Crimen falsi ; Fraud. 

Falsum, falseliood, falsity or fraud. See Crimen falsi ; Fraud. 

Fare, the price paid for conveyance of a person from one place to 
another by land or water; also sometimes the person so conveyed. 

In the Transvaal Railway Ordinance (60 of 1903), sec. 3 [since 
repealed], /are included "any charge or other payment for the carriage 
of any passenger." For similar detinition, see Ordinance 45 of 1903 
(O.R.C.), sec. 3 [since repealed]. 

"Fare shall indued all sums received or receivable, charged or 
chargeable for conveyance of passengers upon or along any railway 
(Act 13 of 1908 (T.), sec. 2; Act 29 of 1908 (O.R.C.), sec. 2). 

Farm foods. "Farm foods shall mean all concentrated or 
artificially prepared feeding stuffs, whether mixtures or otherwise, 
intended for feeding domestic animals, sterilised bone meal, and all 
condinienta! stock foods claimed to possess nutritive as well as medi- 
cinal properties, but shall not include dog biscuits and dog food, hays 
iind straws, the whole seeds nor the unmixed meals made directly 
from entire grains of wheat, rye, bai'ley, oats, mealies, Katir corn, 



FARM 223 FEME 

buck-wheat, dried brewers' grains, wet brewers' grains, malt sprouts ; 
nor sliall it include wheat, rye and buckwheat brans or middlings not 
mixed with other substances, but sold separately as distinct articles of 
commerce, or pure grains ground together " (the Fertilisers, Farm 
Foods, Seeds and Pest Remedies Act, 20 of 1907 (CO.), sec. 3). 

Farm labourer, in the Transvaal Native Tax Act (9 of 1908), 
sec. 2, means " an adult who resides on a farm and is bond fide, but 
not necessarily continuously, employed by the proprietor thereof in 
domestic service or farming operations ; provided that (a) if he resides 
on one farm and is employed on another farm of tlie same proprietor, 
he shall be deemed to have resided and to have been employed on one 
and the same farm ; (b) he shall not be deemed to be bond fide em- 
ployed unless ninety days' service, at least, on the farm occupied by 
the proprietor or on another and adjoining farm of the proprietor, has 
been rendered during tlie twelve months immediately preceding the 
date upon which demand is made for payment of the tax under this 
Act, and no rent is paid or valuable consideration of any kind, other 
than service, given by him to the proprietor in respect of residence on 
the farm." See Farm Servant. 

Farm servant in Act 42 of 1908 (O.R.C.) (Rights of Coloured 
Persons in respect of Fixed Property Act), sec. 1, means " any person 
who is employed under contract of service with another person to 
engage either continuously or at such times as the employer may 
require his seivices in any bodily labour in farming or in piece 
work on a farm or in the care of livestock on any land owned or 
occupied by the employer ; provided that such servant be resident 
on such land : and provided further that (a) if such contract be in 
writing it be for no longer a period than two years and have been 
signed by the parties thereto, and their signatures have been attested 
by two white witnesses; (6) if such contract be oral it be for no 
longer a period than one year and have been made in the presence 
of two white witnesses. The term farm servant shall be deemed to 
include the wife and daughters and minor sons of a, farm servant." 

Fees sometimes includes disbursements ; see Price v. Deputy- 
Sheriff, Witwatersrand ([1903] T.H. at p. 468). 

The charges made by a municipality for the use of its iire engines 
in extinguishing a fir'e may be fees ; see Lewis Bros. v. East London 
Municipality (21 S.C. at p. 161). 

Felon, an English law term signifying a person who has com- 
mitted a felony or grave crime. The term is to be found in the Cape 
statute book in Act 1 of 1860 (C.C). 

Feme covert, a term of English law denoting a woman under the 
mai'ital power of her husband. " Coverture is where a man and a 
woman are married together ; now whatsoever is done concerning the 
wife in the time of the continuance of this marriage is said to be done 
'during the coverture,' and the wife is called a woman covert" (Ternies 



FEME 224 FEUD 

de (a Ley). In English law wliere a wife commits a criminal offence 
in conjunction with, or in the presence of, her husband, she is pre- 
sumed to have acted under his coercion ; but no such rule exists in the 
Roman-Dutch law, it being settled that there must be sufficient evi- 
dence to show actual compulsion on the part of the husband {Queen 
V. Barker, 2 S.C. 9 ; Queen v. Farley, 2 S.C. 227 : Queen v. AlbeH, 
12 S.C. 272 ; Boscli v. Rex, [1904] T.S. at p. 58). See Coeeciox. 

Fence, in the Transvaal Fencing Ordinance (7 of 1904), sec. 1, 
means " a substantial stock-proof fence, with gates at places where it 
crosses public or private roads, and suitable appliances where it cresses 
otlier obstacles. Any such fence shall be deemed to be a sufficient 
fence witliin the meaning of the Stock Theft Ordinance, 1904." This 
Ordinance was repealed bj' the Fencing Act (12 of 1908), in which 
the word fence is again defined. The definition in the Act is sub- 
stantially the same as in the Ordinance. 

Feoflfer, the donor or grantor of a feud. 

Ferae naturae, of a wild nature. This phrase is used of animals 
which are natural!}' wild, and which are classed as res nullius until 
captured, when they become the property of the captor (Justinian's 
Institutes, 2, 1, 12, 13). In Graham v. Viljoen (Buch. 1878, p. 126) 
De Villiees, C.J., said that he inclined to the view of those writers 
who classed the dog with animals ferae naturae ; his reason being 
that, though this state of the law might create occasional hardship, 
"it would obviate the still greater hardship which would result if an 
injured person can have no redress unless he proves that the owner 
knew, before the injury was done, of the dog's vicious propensity." 

Fertiliser. "Fertiliser shall mean any substance containing, or 
purporting to contain, nitrogen, phosphoric oxide, potash or lime, 
manufactured, produced, or prepared in any manner, or imported 
into the colony and sold or intended for sale or distribution for the 
pui-pose of fertilising the .soil or supplying nutriment to plants, but, 
shall not include farm-yard or stable manure, kraal manure and 
kraal manure ash, town refuse or crude night-soil ; and all such 
fertilisers shall be considered to derive their entire value from the 
nitrogen, phosphoric oxide, potash or liine, as the case may be, which 
they contain" (the Fertilisers, Farm Foods, Seeds and Pest Remedies 
Act, 20 of 1907 (C.C), sec. 3). 

Feud " is a gift of certain immovable property, in an indivisible 
usufruct of inheritance, subject to the mutual condition of protection 
and homage between the lord and his vassal " (Van Leeuwen's Gomm. 
Kotze's trans, vol. 1, p. 250). Van Leeuwen explains that it is in- 
divisible, for feudal property in Holland is not divisible, and can 
only descend and rest upon one head (ibid. p. 252). As to acquisition 
and lo.ss of feuds, see Van Leeuwen's Comni. Kotz^'s trans, vol. 1, 
pp. 257-64, and 270-73. 



FEUDATORY 225 FIDEIOOMMISSUM 

Feudatory, the holder of a feud. See Feud. 

Fiat, ail order or authority authorising certain ]-)roces8. See 
Act 46 of 1882 (C.C), sec. 8, where, in the Cape Colony, tha fiat of 
the Attorney-General, Solicitor-General, or Crown Prosicutor, respec- 
tivelj', is required before a criminal prosecution for criminal libel can 
be commenced. 

Fiat justitia, ruat coelum, let justice be done though the heavens 
should fall. 

Fideicommissary heir, the heir who enjoys the benefit of a, fidei- 
commissum ; he is frequently described as the " fideicommissary." 

Fideicom m issum, a grant of property to a person subject to a 
condition that he will hand over tiie same either wholly or in part, 
and that either immediately or after a certain time, and either simply 
or conditionally, to a third party (Grotius' Introd. 2, 20, 1 ; Voet's 
CoTTim. 36, 1, 6). A fideicom'tnissu'tn is usually created by last will, 
but it may also be constituted by deed inter vivos, such as an ante- 
nuptial contract. The Roman law form of fideicom^missuvi, by 
which the heir was directed to hand over the property immediately 
to a third party, is ob.solete, the usual form in the Roman-Dutch law 
being a grant or bequest of property to a person coupled with a direc- 
tion that upon the happening of a certain event, usually the death 
of such person, the property will go to a third party. The person 
upon whom the trust is imposed of handing over the property is 
called the fiduciary; the person in whose favour it is created is 
called the fideicommissary. 

Fideicommissmn residui, a fideicommissum, of the residue or 
remainder ; a fideicommisswm, imposed by a testator, not upon the 
inheritance as a whole or upon any specific part of it, but upon what 
is left over at the death of the heir. Under Justinian's Novel (108, 
c. 1), which is incorporated in the Roman-Dutch law, a person who 
was instituted heir on condition that whatever was left over at his 
death should go to a third person was entitled to dispose of three- 
fourths of the estate during his lifetime, although he was bound to 
let whatever was left over go to the fideicommissary. An exception 
to this rule was admitted by the law of Holland, and has been recog- 
nised as of force in this country, viz., where two spouses married in 
community have by mutual will instituted each other reciprocally as 
heir with power of alienation, but on condition that whatever shall 
be left of the joint estate at the death of the survivor shall go to a 
third person or be divided equally between the heirs of the husband 
and the heirs of the wife. In that case the survivor is not hound to 
preserve even one-fourth for the fiduciary heir or heirs, but may 
spend the whole estate during his or her lifetime {Brown v. Rickard, 
2 S.C. 314; Klopper v. Smit, 9 S.C. 167; Voet's Comm. 36, 1, 56; 
Schorer's Note 156). 



FIDEICOMMITTENS 226 FINANCIAL 

Pideicommittens, lie who by a testamentary or other disposition 
of his pi-operty creates a trust or fideicommissum in favour of some 
one. 

Fidejussores, sureties. See Surety. 

Fiduciary heir, the heir who takes over property subject to a 
fideicommissum ; lie is often described as the " fiduciary." 

Fief, synonymous with feud. See Feud. 

Field-COrnetcy, the district or portion of a district over which a 
field-cornet lias jurisdiction. See Act 48 of 1899 (CO.), sec. 2 ; Act 26 
of 1902 (CO.), sec. 2 ; Act 20 of 1908 (O.R.C.), sec. 1. 

Fieri facias (abbreviated fi. fa.), in English practice, a writ of 
execution. 

Fieri feci, in English practice, the return of the Sheriff to the writ 
of fieri facias. 

Filiation, the relation of a son or daughter to his or her parent; 
the act of adoption. Correlative of paternity. 

Filius nullius, a son of no man ; nobody's son. 

Piluna fltuninis, the thread of a river; an imaginary line drawn 
down the centre of a river. See Ad medium FILUM. 

Final judgment, a judgment that finally disposes of the rights of 
the parties on a specific question. See Colonial Government v. Dundee 
Coal Co. (26 N.L.R. 346); Inglis v. Durban Navigation Collieries 
(27 N.L.R. 747); Kimherley Waterworks Co. v. Kimherley Town 
Council (19 S.C. 135). 

Final order. "A final order is one settling the dispute between 
the parties {per Innes, C.J., in Smith v. James, [1907] T.S. at p. 448) 
See Pretoria Racing Club v. Van Pietersen ([1907] T.S. at p. 694). 

Final order of sequestration, the judgment of a superior court 
placing the estate of an insolvent under sequestration for the benefit 
of his creditors. See Compulsory Sequestration. 

Financial year, the year fixed by statute, articles of association, 
agreement or otherwise for the financial purposes of any govern- 
ment, corporation or person. See the Audit and Exchequer Act, 14 
of 1907 (T.). 

In the Cape Colony, by Act 14 of 1906, sec. 3 (d), it is defined 
to mean " the period from the first day of July in one year to the 
thirtieth day of June in the next following year, both days inclusive." 



FINE ii27 FIREWOOD 

Pine (boete) " is a punishment consisting of money " (Van Leeuwen's 
Comm. Kotze's trans, vol. 2, p. 563). 

Firearms. Under the Cape Firearms and Ammunition Act (17 of 
1892) "firearms means guns, pistols and all par-ts thereof, and any 
other description of firearms and all parts thereof wherein any explo- 
sive is capable of being used." See al.so Act 11 of 1862 (N.), sec. 58 ; 
Law 16 of 1862 (N.), sec. 9; Act 1 of 1906 (N.), sec. 3. 

Fire-clay. " It is clear that absolutely pure clay is a mineral 
even in the narrow sense. It is called kaolin, but, scientiiieally 
speaking, it is hydrosilicate of alumina. When mixed with a pro- 
portion of basic metals it becomes a compound, and when hard and 
compressed it is called a rock. If the proportion of basic metals 
mixed with the pure kaolin is comparatively small, then the substance 
is csbW^di fire-clay ; and, not being easily fusible, it is used for purposes 
for which great heat-resisting properties are required. If, on the 
other hand, the proportion of basic metals is large, then the com- 
pound is comparatively easily fusible, and is used as ordinary clay 
for making bricks for building purposes and such like. Applying 
those definitions, it seems to me that though fire-clay might not 
fall within the narrow meaning of the word 'mineral,' it would 
certainlj' be included in the wider definition of that term " (per 
Innes, C.J., in New Blue Sky G. M. Co., Ltd., v. Marshall, [1905] 
T.S. at p. 367). In Dmovan v. Turffontein Estate Co. (2 Off. 
Rep. 218) it was held that a clause in an agricultural lease, to the 
effect that the appearer of the third part will be entitled during the 
continuance of the lease to all minerals, precious stones or metals did 
not include the right to dig for clay in order to make and sell bricks 
or tiles. "The fact that in other countries clay is regarded as a metal, 
or rather as a mineral, is not per se sufficient. We must interpret the 
words in the contract according to the ordinary and common meaning 
in this country, even although the scientific meaning may be different " 
{per KoTzi, C. J., at p. 223). Similarly it was unanimously held by the 
House of Lords that sandstone is not a mineral within the meaning of 
sec. 70 of the Railway Clauses Consolidation (Scotland) Act, 1845 
{North British Railway Co. v. Budhill Coal and Sandstone Co., 
26 T.L.R. 79). 

Fire-insurance, that branch of insurance business which relates 
particularly to the risk of loss by fire. See Insurance. 

Fire policy, a written contract of insurance, whereby for a con- 
sideration the person or corporation granting the policy indemnifies 
the person to whom it is granted against risk of loss by tire in 
respect of the property described in the policy, and subject to its 
conditions. The consideration so given or paid to the grantor of 
the policy is called a, pre^nium. 

Firewood. "Firewood shall include parts of trees of all species 
made up into bundles, billets or loads; or cut up in the manner it 

p3 



FIREWOOD 228 FIRSTS 

is usual to cut wood for burning, and refuse wood generally " (the 
Cape Forest Act, 28 of 1888, seer 2). 

Firm, a partnership of two or more persons for the purpose of 
carrying on business ; a commercial house ; the name or style under 
which a partnership carries on its business. " Partners who have 
entered into partnership with one another are called collectively a 
firm, and the name under which their business is carried on is called 
the 'tirm-name'" (Partnership Act, 1890, Eng., sec. 3). 

In Natal in the Registration of Firms Act (35 of 1906) firm is 
defined to mean " any two or more persons lawfullj;^ associated for the 
purpose of carrying on any business, but shall not include a partner- 
ship registered under Law 1 of 1865, or a company registered or 
incorporated within the British Dominions under, by, or in pursuance 
of anj' Letters Patent, Royal Charter, or Act of Parliament other 
than this Act." 

Firm contract, see Cambriim Collieries, Ltd., v. Sonith & Ramsay 
(23 N.L.R. at p. 343). 

Firm-name, the name by which the busine.ss of a partnership is 
known and carried on. In Natal in the Registration of Firms Act 
(35 of 1906) provision is made for the registration of the firm-name 
of firms or persons carrying on business or having any place of busi- 
ness in Natal. In that Act firm-name is defined to inean " the name 
or style under which any business is carried on, whether in partner- 
ship or otherwise." See Firm. 

Firm. oflFer, a definite ofi'er or proposal made by one person to 
another for a certain period or pending a certain contingency, and 
subject to the acceptance of such other person within that period or 
pending that contingency (see Ferguson v. Merensky, [1903] T.S. 657). 
See Offer. 

First refasal. " An agreement by an owner of laud to give to 
another person the first refiisal of the land in certain events either 
means that he must on the happening of the events give the other 
person the opportunity of refusing a fair and reasonable ofi'er, or that 
he must give the other person the opportunity of refusing the laud at 
a price acceptable to the owner offered bj^ some third person. The 
owner does not, on either view, comply' witli the condition if he ofiers 
the land to the first person at a price liigher than he would accept 
from other would-be buyers in the event of the refusal of the first 
person to buy at that price" (Mew's note of Manchester Ship Canal 
Co. V. Manchester Racecourse Co., [1901] 2 Ch. 37; 70 L J Ch. 468; 
84L.T. 436; 17 T.L.R. 410). 

Firsts. Referring to the term firsts as used in the brick trade, 
Graham, J., in Scarrott v. Grahamstown Brick and Tile Co. ([1907] 
E.D.C. at p. 285) said: "I am convinced on the evidence that the 



FIRSTS 229 FLAGRANTE 

general meaning of firsts is hard bricks, and that f|ua]ity and not 
colour is tlie test of a 'first' brick." 

Fisc. Cloete, J., in Chase, N.O., v. Du Toit'.f Trustees (3 Searle, 
78), said : "I tind that Boel, in his notes to Loenius' treatise on 
Decisions of the Court of Holland, is the first author who lays it down 
that by the word fisc, used in laws, is not to be understood the Crown 
or Government in its general sense, but only that branch of the 
Government which is expressly charged with the collection of the 
revenue." 

Fiscus, the fisc or treasury. This was the name originally given 
by the Romans to the private purse of the emperor, as distinguished 
from the aerurium, which signified the moneys or goods belonging to 
the public or the State. Latterly the term was more commonly 
used in the sense of aerariiim, to denote the public treasury. See 
Aeraeium; Fisc. 

Fish is defined in the Natal Coast Fislieries Act (31 of 1906, sec. 6) 
as follows : " Every description of fish and shell of fish and aquatic 
animal which is found in the waters to which this Act applies, together 
with the ova, spawn or eggs thereof." 

Fixed deposit, the deposit of money in a bank or similar institution 
for a definite period ; it is a loan to the banker, and is not a specific 
fund held by him in a fiduciary capacity. 

Fixed establishment of the civil service, persons perma- 
nently appointed to positions in the civil service. See the Cape 
Civil Service and Pensions Funds Act (32 of 1895), sec. 3. 

Fixed property, in Transvaal Proclamation 8 of 1902, sec. 2, 
is defined to include : (1) Land or the usufruct thereof or any 
other limited interest therein other than a lease ; (2) mynpaclits, 
claims and stands ; (3) any right to minerals or precious stones on 
any land. In Van der Hoven v. Cutting ([1903] T.S. 299) it was 
decided tliat the words limited interest therein (in the above defini- 
tion) refer only to interests ej^isdevi generis with usufruct, that is, 
to sucii interests as confer upon the possessors some real right. 
See also Van W\jk and Others v. Dykerman ([1904] T.S. at p. 9151 
See Ordinance 12 of 1906 (O.R.C.), sec. 2. 

Stands let on ninety-nine years' lease under the Transvaal Gold 
Law are fixed proj^erty ; see per our. in Collins, N.O., v. Hugo and 
the Standard Bank (H. 178); and Ismail and Amod v. Lucas' 
Trustee ([1905] T.H. at p. 81). 

Flagrante delicto, in the act of committing a crime. Correctly 
written the expression is in flagrante delicto, and is applied to a 
person who is caught in the very act of committing a crime. 



FLOATING 230 FLUMEN 

Floating capital, such portion of a company's or person's capital 
as is retained in hand for the purpose of meeting current expenditure. 

Floating policy. " A floating policy is one in which there is no 
limitation of the risk to a particular sliip, as where goods ' on ship or 
ships ' are insured for the same voyage " (Arnould's Marine Insurance, 
7th ed. see. 9 ; see also sees. 185 and 186). 

" The amount of goods covered by such a policy is ascertainable 
at the moment of loss only, and to protect the insurers, such a policy 
provides that the liability of the insurers shall be only rateable" 
(Porter's Laws of Insurance, 5th ed. p. 31). 

Flock. In the Cape Scab Act (20 of 1894), sec. 4, the term flocic 
is defined to mean " two or more sheep running together." 

Flogging. In the Native Territories' Penal Code (Act 24 of 
1886 (C.C.), .sec. 10) it is provided that "flogging shall consist of the 
infliction on a male person, who shall have attained the age of six- 
teen years, of a number of strokes, not exceeding at any one time 
fifty, with an instrument specified by the court, and in default 
of such specification with such instrument as the Governor shall 
direct." 

Flotation of a company, the act or process of forming and 
registering a company. " The term flotation is a technical one, and, 
as applied to companies, is of comparatively recent origin " (per De 
ViLLiERS, C.J., in Toi^va Exploring Syndicate v. Kelly, 15 S.C. at 
p. 141. See also report of same case on appeal, [1900] A.C. 612; 
69 L.J. P.C. 115; 83 L.T. 34; 16 T.L.R. 495, and 17 S.C. 301, where 
the term flotation is fully discussed). 

Flotsam or floatsam, goods lost by shipwreck and which are 
found floating upon the water; such goods belong to the Crown if 
not claimed within a year and a day. See English Merchant Shipping 
Act, 1894, sec. 510. 

Flumen, the name given in the Roman law to the servitude re- 
garding rainwater collected in a spout from the roof of a house, and 
led on to a neighbour's land. When the rainwater was not so 
collected, but dripped from the eaves of the roof, the servitude was 
called stillicidium. See Servitus Fluminis. 

Flumen privatum, a private river. Private rivers are rivers and 
streams which have not a perennial flow (Voet's Comni. 43, 12) and 
" streamlets which, although perennial, are so weak as to be incapable 
of being applied to the common use of the riparian proprietors" 
{Van Heerden v. Wiese, 1 Buch. A.C. 7 ; De Wet v. Hiscock, 1 E.D.O. 
at p. 257). Private streams belong to the owner of the land through 
which they flow, and in no way differ from other kinds of private pro- 
perty. See Meyer v. Johannesburg Waterworks Co. (H. at p. 10) 
See also Flumen publicum ; Public Stream. 



FLUMEN 231 FOOD 

Flumen publicum, a public river. This term includes all streams 
which have a perennial flow, whether they are navigable or not (Voet's 
Gomm. 39, 3, 1 ; 43, 12 ; 43, 13), and " all streams which, though not 
large enough to be considered as rivers, are yet perennial and capable 
of being applied to the common use of the riparian proprietors " 
(Van Heerden V. Wiese, 1 Buch. A.C. 7; De Wet v. Hiscock, 1 E.D.C. 
at p. 257). With regard to the term perennial, a stream is such that 
is always running, while a non-perennial stream is one the water of 
whicli runs only in rainy seasons. But the fact that a stream which 
is usually perennial ceases to flow during a very dry season will not 
make it non-perennial (Pothier on the Pandects, 43, 12, 1, sec. 2 ; 
VerTuaak v. Palmer, 6 Buch. 28; Be Wet v. Hiscock, 1 E.D.C. at 
p. 257). An interdict lies against any one who does anything upon 
a public river or stream or upon its banks whereby the navigation 
or mooring may be impaired (ne quid in eo ripave ejus fiat quo 
deteriw statio aut navigatio reddatur) (Voet's Comm. 43, 12). So 
if anything is attempted by any one that may change the measure or 
character of the stream from what it was in the preceding summer 
(or dry season) any member of the public may apply for an interdict 
(ne quid in flumine publico ripave ejus fiat, quo aliter aqua fluit 
atque prioi^e aestate fiuxit) to prevent the alteration, or, if it has 
already been made, for an order of court to restore the stream to its 
original condition (Voet's Comin. 43, 13). See Meyer v. Johannesburg 
Waterwm^ks Co. (H. 1). See also Ad medium filum. 

F.O.B., a commercial abbreviation of the words " Free on 
Board." When goods are sold F.O.B. the seller pays the expenses 
connected with such goods up to tiie time they are placed on board 
ship, after whicli all freight and further charges of delivery must be 
borne by the purcliaser. It seems that when the goods have been so 
placed on board the ship the}' remain at the risk of the purchaser; 
see Benjamin on Sales, 4th ed. p. 289. As to the vendor's loss of lien 
under such a contract, see ibid, at p. 838. 

Foenus nauticum, the high rate of interest claimed by persons 
who lend money on bottomry. 

Folio, in legal documents is usually a page containing a specific 
number of words; in some instances it merely indicates a page of 
written or typed matter. The term folio also signifies the number 
of a page ; or the largest size of book or volume. 

Folteren (D.), to put to the torture. 

Pons et origo, the source and origin. 

Food. In the Cape Sale of Food and Drugs and Seeds Act (5 of 
1890) the term food is defined to include " every article used for food 
or drink by man, other than drugs or water; see also Act 27 of 1906 
(C.C), sec. 1. The Natal Act (45 of 1901, sec. 3) adds the following 



FOOD 232 FOREIGN 

to the foregoing definition : " and any article which ordinarily enters 
into or is used in the composition or preparation of liuman food ; and 
also includes flavouring matters and condiments;" and so too in Ordi- 
nance 32 of 1906 (O.R.C.), sec. 1. 

Forcible entry, the actual and violent entry upon lands or pre- 
mises of another without lawful authority. A lease empowering the 
lessor, in the event of a breach of its conditions, to remove and expel 
the lessee from the premises without legal process and without liability 
for damages is illegal and void ; and a lessee forcibly ejected under 
such an agreement for failing to perform a condition of the lease 
is entitled to be reinstated, for the lessor may not take the law 
into his own hands {Blomson v. Boshoff, [1905] T.S. 429). 

Foreclosure, a term used in English law to signify the forfei- 
ture by the mortgagor of his equity of redemption upon breach of 
a condition of the bond as to payment of capital or interest. It 
also signifies the act of foreclosing. 

Foreign company is defined in the Transvaal Companies Act 
(31 of 1909), sec. 2, as "a company or other association of persons 
which has for its objects the acquisition of gain by the company 
or association, or by the individual members thereof, and is regis- 
tered or incorporated in a foreign country under the laws of 
that country." For provisions as to foreign companies, see chap. V 
of Act. 

Foreign Enlistment Acts, statutes having for their object the 
prevention of British subjects serving foreign countries in time of 
war. See statutes of the various colonies under this title. " A 
Foreign Enlist'nrtent Act makes it possible for the Ministry to check 
intervention in foreign contests or the supply of arms to foreign 
belligerents " (Dicey 's La%v of the Constitution, 6th ed. p. 356). 

Foreign judgment, see STnart v. Raymond & Smart, 24 N.L.R 
at pp. 352 et seq. 

Foreign Jurisdiction Acts, statutes in Great Britain regulating 
the exercise of the jurisdiction acquired by the Crown, whether by 
treaty or otherwise, in foreign countries. 

Foreign liquidator. In the Transvaal Foreign Trustees and 
Liquidators Recognition Act (7 of 1907), sec. 1, foreign liquidator 
means and includes "a person duly appointed in any British pos- 
session for the purpose of liquidating any company." The same 
definition is given in Act 4 of 1908 (O.R.C.), sec. 1. 

Foreign spirits. This expression is defined in the Cape Excise 
Spirits Act (18 of 1884), sec. 2, and in the Cape Additional Taxation 



FOREIGN 23.3 FOREST 

Act (36 of 1904), sec. 2, as follows: "Foreign spirits means all spirits 
and stioncr waters liable to a duty of Customs." 

Foreign State, in the Natal and tlie Transvaal Foreign Enlist- 
ment statutes (Act 26 of 1906 (N.), sec. 30, and Ordinance 1 of 1906 
(T.), sec. 30 of sell.) indudes " any foreign prince, colony, province, or 
part of any pi-ovince or people, or any person or persons exercising or 
assuming to exeicise the powers of government in or over any foreign 
country, colony, province, or part of any province or people." 

Foreign substance, see Wine, Biandy, Whisky and Spirits Act, 
42 of 1906 (C.C), sec. 7, as amended by Act 19 of 1908 (C.C), 
sees. 6 and 7. 

Foreign trustee. In the Transvaal Foreign Trustees and Liqui- 
dators Recognition Act (7 of 1907), sec. 1, foreign trustee means and 
includes " a person duly appointed in any British possession for the 
purpose of administering, liquidating and distiibuting any bankrupt 
or insolvent estate." The same definition is found in Act i of 1908 
<O.R.C.), sec. 1. 

Foreman, tlie presiding member of the jury, appointed by the 
jury to act as spokesman. 

Forensic, pertaining to courts of justice or public debate ; titted 
for legal argument. 

Forensic medicine, medical jurisprudence ; the .science which 
applies the principles and practice of medicine to the elucidation of 
doubtful (juestions in a court of justice. 

Forensis strepitus, the clamour of the forum or law courts. 

Foreshore, that portion of the beach or shore which is covered 
by the sea at an ordinary tide, and is left uncovered at low tide. 
See Colonial Government v. Town Council of Capetown (19 S.C. 87). 

Forest oflFence. "Forest offence shall mean any contravention 
of any provision of this Act [Cape Forest Act, 1888], or of any 
regulation or rule made hereunder " (Act 28 of 1888 (C.C), sec. 2). 

Forest officer. " Forest officer shall mean any person duly 
appointed to be superintendent of woods and forests, conservator, 
assistant conservator, district forest officer, inspector, forest clerk, 
ranger, forester or forest guard" (Act 28 of 1888 (C.C), sec. 2). 

Forest produce. " Forest produce shall include the following 
things when found in or when brought from a foi'est: game, fish, 
minerals, stones, earth, trees, timber, firewood, wattles, kraal-wood, 
branch-wood, slabs, chips, .sawdust, plants, grass, reeds, thatch, rushes, 
bedding, peat, creepers, fibres, leaves, moss, flowers, ferns, fruit, seeds, 



FOREST 234 FORMULARY 

roots, bulbs, galls, spices, bark, gum, resin, sap, charcoal, honey, waXj. 
shells, skins, horns, ivory, and generally everything growing or con- 
tained within the forest" (The Cape Fcu-st Act, 28 oi 1888, sec. 2). 

Forfeiture in statutes " means forfeiture to the Crown, except 
when it is imposed for wrongful detention or dispossession ; in which 
cases the forfeiture goes to the benefit of the party wronged " (Max- 
well's Interpretation of Statutes, 4th ed. p. 526). 

Forgery, the making of a false document with intent to defraud,, 
coupled with an actual or potential prejudice to some person or persons, 
" Forgery under the Roman-Dutch law is merely a species of the crime 
of falsity, and the best definition of it I know is the one given by 
Matthaeus, viz. : ' A wilful perversion of the truth with intent to 
deceive and to the prejudice of another'" (per Soi.OMON, J., in Rex 
V. Jolosu, [1903] T.S. at p. 699). In a prosecution iov forgery {crimen 
falsi) it is not necessary to prove actual prejudice sufiTered hy a third 
person, if only the act was of such a nature that in the ordinary course 
of things it was calculated to prejudice such person {Rex v. Jolosa, 
[1903] T.S. 694 ; Crowe v. Rex, [1904] T.S. at p. 583 ; see also Rex v. 
Firling, 18 E.D.C. 11 ; Rex v. Lin Yunn Chen, [1908] T.S. 634 ; and 
an article in 21 S.A.L.J. 194). See also sec. 7 of Act 3 of 1861 (C.C.);. 
sec. 130 of Ordinance 1 of 1903 (T.); and sec. 15 of Law 17 of 1859 
(N.); and Fraud. 

In the Cape Native Territories' Penal Code (Act 24 of 1886, sec. 221) 
forgery is thus defined : "Fwgery is the making of a false document, 
knowing it to be false, with the intention that it shall in any way be 
used or acted upon as genuine whether within her Majesty's domi- 
nions or not. Making a false document includes altering a genuine 
document in anj?- material part and adding to it any false date, attesta- 
tion or other thing which is material, or making any material altera- 
tion in it either bj^ erasure, obliteration, removal or otherwise. See 
also Act 16 of 1895, sec. 4. 

Form, the manner or style in which a document is drawn, apart 
from its substance ; a precedent constituting the basis of a document 
so far as its style is concerned. 

Forma pauperis, in the form of a poor man. A person who is 
authorised by the court to sue or defend in formd pauperis has, before 
such authority is granted, to satisfy the court that he is not possessed 
of means, apart from the subject of the action, above the value of a 
certain amount, the maximum being in the Transvaal, £25. The court 
then appoints an attorney and an advocate without remuneration to 
conduct his cause. If the pauper is successful in his action he will be 
entitled to the costs of suit. 

Formulary, a precise statement or form of words made according 
to a prescribed form or rule ; a precedent. 



FORTES 235 FORUM 

Fortes fortuna adjuvat, fortune favours the bold 

Forthwith. " The word forthwith is not as peremptory as " im- 
mediatelj\" This appears from the leading case of The Queen v. The 
Justices of Worcester (7 Dowl. 789). In that case it was held that 
where a statute requires that recognisances shall be entered into 
forthwith after notice of appeal, it means ' within a reasonable time ' ; 
and in giving judgment COLEBIDGE, J., said, 'I agree that the word 
forthwith is not to receive a strict construction like the word " imme- 
diatelj'," so that whatever follows must be done immediately after 
that which has been done before.' This decision has never been over- 
ruled " (per Barry, J.P., in Javiieson v. Rhind, 4 E.D.C. at p. 318). 
See Lok Jan v. Rex ([1906] E.D.C. 28). 

Fortior et potentior est dispositio legis quam hominis, the 

disposition of the law is stronger and more powerful than that of man. 
This maxim applies to those cases in which the individual is not 
allowed to vary the rules of law, any attempt on his part to do so being 
rendered void and ineffectual. For instance, by an antenuptial con- 
tract the community of property which marriage otherwise creates 
between spouses may be excluded, but if such a contract should not 
have been entered into no alteration can be afterwards made with 
respect to the community by an act inter vivos. So, a donation 
between husband and wife during marriage is null and void, and the 
don<jr cannot by any act make it effectual either as against himself or 
his or her creditors, even though the spouses may by antenuptial con- 
tract have reserved to themselves the right to make donations to each 
other {Hall v. Hall's Trustee, 3 S.C. 3). 

Fortiter in re, with tirmness in action. 

Forum, a court; especially a court having jurisdiction to try 
a certain action. See Holland's Jurisprudence, 10th ed. pp. 398 
and 412. 

Forum domicilii, the forum or court of the domicile. A married 
woman takes upon marriage the domicile of her husband and — subject 
to certain cases in which she is considered to acquire a distinct domi- 
cile for herself — afterwards follows any new domicile which may be 
acquired by him (Voet's Comm. 5, 1, 95 and 101 ; 23, 2, 40). It has 
accordingly been held that the forum domicilii of the husband is also 
that of the wife, " whether she be at the time actually resident within 
the territory of the said forum or not, and this for the trial of all 
(|uestions, not only arising between the wife and third parties, but 
between the wife and the husband, and respecting the rights and 
obligations and duties of both parties, which result from their rela- 
tion as husband and wife " (Reeves v. Reeves, 1 Menz. at p. 249 ; 
see also Bestandig v. Bestandig, 1 Menz. 280; Hawkes v. Hawkes, 
2 S.C. 109; Ex parte Atkinson, Off. Rep. 1895 (Webber's trans.), 212; 
Ex parte Standing, [1906] E.D.C. 169 ; and Hudson v. Hudson, [1907] 
E.D.C. 189). 



FORUM 236 FRAUD 

Forum originis, the court of the country of a person's domicile 
by birth. 

Forwarding agent, an agent who undertakes to receive goods 
for, and to despatch them to his principal or to his principal's order, 
in consideration of a certain commission or charge. 

"Found." As to a charge against an accused person of con- 
travening sec. 142 of Law 15 of 1908 (T.) by being found in posses- 
sion of a quantity of unwrought gold, and not being able to prove 
that he became possessed of the same by lawful means, see Rex 
V. Allen ([1907] T.S. 59). 

As to gaming appliances being found on a prisoner, see Rex v. 
Aloss ([1908] T.S. at p. 802). 

Frana (D.). See Vroon. 

Franchise, the right of voting at a public election, such as a 
parlianieiitary election. Also a privilege enjoyed by a subject of 
the sovereign by virtue of a royal grant or by virtue of prescrip- 
tion. See Voter. 

Frater consanguineus, a brother by the father's side. 
Frater uterinus, a brother by the mother's side. 

Fratricide, the act of killing a brother; or one who kills his 
brother. 

Fraud, " the act of a person by which he premeditatedly causes 
damage to another with whom he is treating and who is ignorant 
thereof" (Van Leeuwen's Coinm. Kotze's trans, vol. 2, p. 1-3, ti-anslator's 
note). 

" The word fraud as used in this [Cape] Colony is a very wide one, 
and embraces within its meaning the terms 'dolus malus' 'falsum' 
and ' atellionatus! as used by the Roman-Dutch text-writers. The 
first of these terms is only used in civil cases, and especially in matters 
of contract; the two last terms are only applied to criminal offences. . . . 
A mere lie, which is foolishly acted upon by others to whom it is 
addressed, does not constitute a fraud in the legal sense of the term, 
unless the utterer intended or must, from the mode and circumstances 
in which he uttered it, be presumed to have intended that it should 
be acted upon" {'per De Villiers, C.J., in Tail v. Wicht and Others, 
7 S.C. at pp. 165 and 164). 

' Fair and honest competition, however active, is open to every 
one, but no one has the right to talce an undue and improper advan- 
tage by means of falsehoods, the effect of which is to benefit himself at 
the expense of another" {per De Villiers, C.J., in Gous v. De Koch, 
5 S.C. at p. 409). 

" If the defendant honestly believed his representation to be true, 
it cannot be relied upon as a fraudulent representation giving rise to 



FRAUD 237 FRAUDULENT 

an action for damages. Independently of contract, a false representa- 
tion causing damage is not actionable unless it is fraudulent. If made 
recklessly without regard to its truth or falsehood, it would be fraudu- 
lent, but the defendant's honest belief in the truth of his statement 
is sufficient to iiegajtive fraud on his part" {per De Villiers, C.J., in 
Dickson ct Co. v. Levy, 11 S.C. at p. 36). 

" There is no principle more clearly established in the administra- 
tion of justice than that fraud must not only be alleged, but that it 
must be clearly and distinctl}' proved" {per De Villiers, C.J., in 
Standard Bank v. Da Plooy and Another, 16 S.C. at p. 166 ; see also 
Shauban v. Goveia, 11 C.T.R. 289). Fraud is not to be presumed 
(Voet's Comm. 4, 3, 2 and 9, 2, 20). 

" If the charges are true, the plaintiff' would not be deprived of his 
right to relief by reason of thirty years having elapsed since the fraud 
was committed, provided, of course, his action is brought within a 
rea.sonable time after discovery of the fraud " (per De Villiers, C.J., 
in Bydien v. Saviao's Estate, 13 C.T.R. 667). 

Wilful misrepresentation amounts in law to fraud (per Buchanan, 
Acting C.J., in Schoeneman v. Cape Lime Co., 7 C.T.E. at p. 361). 

An act fraudulently done with the intention of perverting the 
truth in fraud of another. See Moolchund v. Rex (23 N.L.R. 76). 

As to fraud in commercial transactions, see also Hain (h Son v. 
Elandslaagte Colliery Co., Ltd., and Young (24 N.L.R. at pp. 373 
et seq.), and Van Leeuwen's Comtn. Kotze's trans. 4, 1, 6 and notes. 
Fraud renders a contract voidable at the election of the party sought 
to be defrauded (Voet's Comm. 4, 3, 7 and 18, 1, .5, in fine). 

Fraudulent insolvency. In the Cape Colony an insolvent 
whose estate has been placed under .sequestration is deemed to be 
guilty of the crime oi fraudulent insolvency (sec. 70 of Ordinance 6 
of 1843) if (1) he shall, either before or after the making of 
the order for sequestration, have alienated, transferred, gi\en, ceded, 
delivered, mortgaged or pledged or shall have embezzled, concealed 
or removed any part of his estate or effects to the value of £10 or 
upwards; or (2) shall have concealed, removed, destroyed, falsified 
or mutilated any books of accounts, papers, writings, documents, bills 
or vouchers relating thereto with intent to defraud his creditors; or 
(3) shall have fraudulently contracted anj' debt; or (4) if he sliall at 
the second meeting of his ci'editors or any adjournment thereof wil- 
full}- lodge any inventory containing any false statement of his 
estate or effects or any part thereof, or with respect to any debt 
due to or by him, or shall produce any books of accounts, papers, 
writings, documents, bills or vouchers which are false, or on which 
any era.sure or alteration lias been made or caused to be made by 
him, or with his knowledge, with the intent to defraud his creditors ; 
or (5) if he shall at any time when examined before any court or 
commissioner, or by the Master or a resident magistrate, wilfully make 
any false answers to any lawful questions then put to him with 
intent to defraud his creditors; or (6) if he shall have connived at 
or concealed from the trustee his knowledge of the proof by any 



FRAUDULENT 238 FREEMEN 

person of a false debt against his estate; or (7) if he shall (under 
■sec. 63 of the same Ordinance) have been lawfully summoned to 
iippear before a superior court or a commissioner, and shall depart 
from the colony, or abscond or conceal himself within the colony 
with the purpose and intent to evade appearing at any such 
■examination to which he was summoned or to prevent a warrant 
under the Ordinance being executed upon him. On conviction for 
fraudulent insolvency the insolvent may be sentenced to trans- 
portation for life or for any shorter period not less than five years 
or imprisonment with or without hard labour for any period not 
exceeding five years (the penalty under sec. 63 is slightly different). 

The definition oi fraudulent insolvency in the Transvaal is almost 
identical with that of the Cape Colony (see sec. 146 of Law 13 of 
1895). The punishment on conviction is imprisonment with or 
■without hard labour for a period not exceeding seven years. 

In the Orange River Colony the definition is also substantially 
the same as that in Cape Colony, omitting (7), and the punishment 
is imprisonment with or without hard labour for a period riot ex- 
ceeding five years. 

Fraudulently. " The term fraudulently would imply the exist- 
ence of the intention" [to defraud] (per De ViLLlEBS, C.J., in Tait 
V. Wicht and Others, 7 S.C. at p. 166). 

Fraus pia, a pious fraud ; artifice employed for a good or laud- 
able purpose. 

Free occupation, discussed in Crosbie v. Crosbie's Executors and 
Another (21 S.C. at'p. 606). 

Free pass. Free jxiss shall mean an authority in writing given 
by the Administration (the Central South African Railways), or by an 
officer thereto appointed, for the person to whom it is given to travel 
as a passenger on a railway without the payment of any fare (Act 13 
of 1908 (T.), sec. 2; Act 29 of 1908 (O.R.C.), sec. 2). 

Free persons " were those who have lived of their own resources 
and have never engaged in any servile handiwork or trade " (Van 
Leeuwen's Comtn. Kotze's trans, vol. 1, p. 66). 

Freehold. Where land is described as being held in freehold, 
it signifies that the owner holds it in his own right absolutely, accord- 
ing to registered title ; opposed to leasehold title. 

Freemen. (1) Men who, in the time of the Romans, were either 
free born or made free. " A freeborn man is one free from his birth, 
being the offspring of parents united in wedlock, whether both be 
free boin or both made free, or one made free and the other free 
born. He is also free born if his mother be free, even though his 
father be a slave, and so also is he whose paternity is uncertain, 
being the oflFspring of promiscuous intercourse, but whose mother 



FREEMEN 239 FRIENDLY 

is fiee. . . . Those are freedinen, or made free, who have been manu- 
mitted from legal slavery" (Justinian's Institutes, Moyle's trans. 1, 4 
and 5). "A slave on being set free assumed tlie name of his master, 
to whom he did not cease to belong. The relation of patron and 
freedman was in fact a continuance as regards the family in a 
modified form of the relation of master and slave. But his busi- 
ness relations with the world generally, including his patron, were 
now on a different footing: he could act and was responsible for 
himself. His children born after manumission were freeborn, and 
did not stand in any such quasi-servile relation to their father's 
patron" (Roby's Roman Private Law, vol. 1, p. 82). 

(2) Freemen "(poorters) are those persons who, not having been 
born within a town, have purchased the rights of citizenship and 
of trading as citizens, which any one can obtain upon application 
and payment of a small sum, provided he takes the oath of allegiance 
Such persons, after having been for some yeai's freemen, acquire 
the full right of citizenship, and, together with other citizens can be 
appointed to all the offices and dignities of the town " (Van Leeuwen's 
Comm. Kotze's trans, vol. 1, p. 72). 

Freight. (1) In shipping law "freight is the reward payable to 
the carrier for the safe carriage and delivery of goods; it is payable 
only on the safe carriage and delivery. . . . But a sum of money 
payable before the arrival of the ship at her port of discharge, and 
payable by the shippers of the goods at the port of shipment, does not 
acquire the legal character oi freight because it is described under that 
name in a bill of lading, nor does it acquire the legal incidents of 
freight. It is in effect money to be paid for taking the goods on 
board and undertaking to carry, and not for carrying them " {Kirchner 
V. Venus, 12 Moore P.O. 361). "The term freight is ambiguous, and 
may by context be construed to mean a payment which is not strictly 
freight, but a sum of money to be paid at all events in consideration 
of the master receiving the goods on board and undertaking to carry 
them" (Andrew v. Moorhouse, 12 R.C. 369). 

(2) As to freight payable for transport on a railway: "Freight 
shall include all sums received or receivable, cliarged or chargeable 
for the transport of goods upon or along any railway " (Act 13 of 
1908 (T.), sec. 2 ; Act 29 of 1908 (O.R.C.), sec. 2). 

Friendly action, an action brought in a court of law in a friendly 
manner, for the purpose of obtaining the court's ruling upon some 
doubtful point in dispute between the parties. 

Friendly society, in the Transvaal Companies Act (31 of 1909), 
sec. 202 (from the operation of which Act such a society is excluded), 
is defined as "a society of persons formed solely or mainly for the 
purpose of raising by the voluntary subscriptions of its members, with 
or without the aid of donations, a fund — (a) for the relief or main- 
tenance of members and their relatives during minority, old age, 
widowhood, sickness, or other infirmity, mental or bodily, or for the 



FRIENDLY 240 FRUITS 

endowment at any age of members or their nominees; (6) providing 
medical attendance and pi-oeuring medicines and medical requirements 
for such members or relatives; (c) insuring a sum to be paid on the 
birth of a member's child or on the death of a member or for the 
funeral expenses of the husband, wife, child or relative of a member. 
See also sees. 2 and 3 of the Cape Friendly Societies Act (5 of 1892), 
and Natal Friendly Societies Law (20 of 1862), sec. 1. 

Frone (D.). See Vroon. 

Fructus civiles, civil fruits ; profits arising from things which 
yield no natural fruits, as rent of land and interest on mone}^ (Voet's 
'Comm. 41, 1, 28). 

Fructus industriales, industrial fruits; fruits whicli are pro- 
duced by the aid of man's labour, such as corn and vintages. 

Fructus naturales, natural fruits ; fruits produced without the 
care or cultivation of man, sucli as apples, brushwood, grass, and the 
young of animals (Voet's Comtn. 41, 1, 28). 

Fructus pendentes, fruits lianging or ungathered, which are 
considered as part of tlie soil and immovable, as distinguished from 
fructus percepti, fruits which have been cut or gathered and which 
are regarded as movable (Voet's Comm. 41, 1, 28). 

Fructus pendentes pro immobilibus habentur, ungathered 
fruits are regarded as immovables. Fruits and other things, such as 
sand, chalk or timber, which have been won or cut, do not pass to a 
purchaser of the land, but if still ungathered or adhering to the soil 
they will so pass as part of the land unless specially reserved by the 
vendor (Voet's Comm. 1, 8, 13). Upon the same principle, fructus 
pendentes on the deatli of a usufructuarj? will not pass to his heirs, 
but will belong to the dominus. 

Fruits. " The term fruits denotes whatever the property possessed 
can annually produce, as all frioitu of trees and fruits of the soil ; also 
everything produced by and out of animals, as calves, foals, lambs, 
bees, cliickens, young pigeons, geese, milk, butter, cheese and the like" 
(Van Leeuwen's Comm. Kotze's trans, vol. 1, p. 183). 

" The word fruits, as used in the authorities, has a very wide 
meaning indeed. The extensive nature of its meaning is referred to 
by Sir Henry Connor, who says it includes grain, the fruits of the 
land, hire or the work of slaves. This particular question is also dis- 
cussed by Mr. Chitty in his translation of Voet's title on Vindication, 
and he in turn refers to Burge, whose definition of the term fruits is 
exceedingly wide. It includes, according to him, ' all the profits which 
are to be deiived from property, including those which are produced 
by cultivation (fructus industriales), those which spontaneously grow 
without any industry {fructus naturales), those which do not natu- 
rally grow from the property, but are accounted profits as being 



FRUITS 241 FURTUM 

derived from the use or enjoyment of such property (fructus civiles), 
as interest, pecuniary rent or annuity'" {-per Bale, C.J., in Illinq v. 
Lawfm'd, 23 N.L.R. at p. 391). 

Fugam fecit, he iias taken to fligiit. 

Fugitive criminal is defined in the Natal Extradition Law (G of 
1892) to mean " any person accused or convicted of an extradition 
crime committed within tlie jurisdiction of tlie Orange Free State or 
the Soutli African Republic who is in, or is suspected of being in,. 
Natal." 

Fiill age, the age of majority. See Majority. 

Full ownership " is where a person, in addition to the right of 
ownership, has also the full use" (Van Leeuwen's Gomm. Kotz6's 
trans, vol. 1, p. 155). 

Functus oflficio, having discharged liis duty; said of a person 
holding an appointment when his duties have been fully performed 
or his appointment has come to an end. 

Fundi publici, public lands. Among the Romans lands be- 
longing to the State were so called, the revenues from them flowing 
to the State treasury. 

Funeral expenses, the cost of burial. The funeral expenses of 
the tirst-dying of two spouses married in community of property 
" will have to be paid out of his or her half-share of the estate, 
and are not a debt due by the joint estate " (Maasdorp's Institutes,. 
vol. 1, p. 93). 

Fungibles, things that are weighed, measured or counted out. 
As to the risk of buyer or seller of fungibles, see Nathan's Commoii 
Law, sees. 879 et seq. 

Purandi animus. See Animus furandi. 

Furtum, theft. In the Roman law theft is defined as " the 
fraudulent dealing with a thing or with its use or possession for the 
sake of gain" (Institutes, 4, 1, 1 ; Digest, 47, 2, 1, 3). In the Roman- 
Dutch law it is defined by Van Leeuwen {Gomm. 4, 38, 1) as " a secret 
and fraudulent dealing with and retention of the property of another," 
and by Van der Linden [Institutes, 2, 5, 2) as the taking of any 
movable property without the knowledge and against the will of the 
owner with the object of obtaining some advantage for one's self or 
for others. The elements of the crime are thus (1) not mere intention, 
but an actual dealing with the thing with the object of deriving a 
gain or advantage ; and (2) that the taking was without the consent 



PURTUM 242 FUSTAGES 

of tlie owner or person in lawful possession and without a belief that 
he would consent. Only movable property can be the subject of theft 
(Voet's Comm. 47, 2, 3). 

Purtum usus, theft of the use (i.e. the use of a thing). In the 
■case of R. v. Fwtuin (1 App. Cas. 290) it was unanimously decided 
tha,t fitrtum usus is not a crime by the law of Cape Colony (see also 
R. V. Dier, 3 E.D.C. 436). Kotze, C.J., who holds the contrary view 
(Van Leeuwen's Gonfiyn. 4, 38, 1, in notis), says with regard to the 
former decision : " On appeal De Villiers, C.J., and Smith, J., thought 
that as Voet and Groenewegen seem to leave the question in doubt, 
and the practice in the colony had been not to indict in such a 
case, the opinion of the court should be in favour of- the prisoner. 
Barby, J. p., while admitting that by Roman-Dutch law there could 
be the theft of the use, held that it is not an indictable offence in the 
colony. DwYER, J., and Buchanan, J.P., concurred. That there may 
be a theft of the nse by Roman-Dutch law is clear. Grotius, 3, 37, 5; 
Huber. Heed. Regis, bk. 6, ch. .5, sees. 1 and 16; Voet, 47, 2, sees. I, 5 
and 8 ; Gens. For. 5, 29, 1 ; Math, de Grim. 47, 1, 8. This being so, 
the Roman-Dutch law, which is the common law of South Africa, 
must prevail in the Cape Colony, unless some legislative enactment, 
or a uniform series of judicial decisions exists to the contrary. There 
is no legislative enactment at the Cape of Good Hope on the 
.subject, and the only judicial decision approaching the point under 
consideration is a ruling of Bell, J., in Queen v. Meyer, Risk and 
Others, A.D. 1862 ; the ruling in that case, however, is apparently 
based on the ground that sine animo furandi fwrtum non com- 
mittitur (1 Roscoe, 31). It is true the learned Chief Justice based 
his judgment in Queen y. Fortuin partly upon a written opinion of 
Porter, A.-G., that it was not the practice in the colony to indict 
in such cases. But the practice of the Attorney-General, however 
eminent in his profession, not to indict iov fwrtum usus cannot alter 
the substantive law of the land. That furtum usus, on the authority 
of Voet and Groenewegen, is no longer a crime in the case, of bailees 
and others in <i like position, .seems no sufficient ground for laying 
■down the broad proposition that in no ca.se can there be a tlieft of the 
use. Nor does it follow that because no indictment has in the Cape 
Colony been prefei-red for fwrtutn usus, an accused cannot be con- 
victed on an indictment for theft where the evidence shows a tlieft of 
the use merely was connnitted." 

Pustages. " Their lordships inquired what was meant by 
fustages, and were told that it meant ullaged wine, virhich by a 
judicious blend might possibly be made onn^nmnble. and if so would 
be a valuable as-set ; but the word is to be found in Murray's 
Dictionary, and it is there defined as ' the vats and tubs and all 
the wooden utensils used in making wine'; and a quotation is giveu 
from a South African newspaper, the Gape and Natal News of 7th 
December, 1868, which shows clearly that there at least it is a known 
word bearing that signification. The quotation is 'a large vintage in 



PUSTAGES 243 GAOLER 

prospect and no fustage in which to store it ' " (per Sir Alfred Wills 
in Hamburg v. Fickcird, decided by the Judicial Committee of the 
Privy Council, [1906] T.S. at p. 1016). 

" Future owner," discussed in KrachmaVs Trustees and Capetown 
Town Council v. Epstein (17 S.C. 317). 

Fylkisthing, an important and powerful council of the early 
Germans. See Wessels' History, pp. 19 and 20. 



Gale (a contraction of the word gavel, gahellwin), the payment of 
tribute, rent or interest. An old English law term, very rare in South 
Africa, but used ip Natal in Law 13 of 1887 (to amend the law in 
respect to tacit hypothecs), where it is defined to mean " the interval 
between any two next consecutive days for payment of rent." 

" Tiie term gale, which is foreign to our law, and which was 
adopted by CoNNOR, C.J., is defined to mean the ijiterval between 
any two next consecutive days for payment of rent" (per Bale, C.J., 
in Harwin's Estate v. Oates, 27 N.L.R. at p. 242). 

Galg (D.), gallows ; gibbet. 

Gallon, a liquid measure containing four quarts or eight pints. 
In the Transvaal Excise Act (9 of 1907), sec. 1, gallon means 
" a liquid gallon imperial measure." 

G^me. "I am aware that tlie most general definition, and in 
fact the etymological meaning, of game includes any sport, fun, 
frolic 01- pastime. But, as my brother Graham has remarked, if 
we accepted that meaning we should be going very far in curtail- 
ing the liberty of human beings " (per KoTZE, J.P., in Oehley v. Rex, 
[1908] E.D.C. at p. 43). It was therefore held that as a game is a 
contest of some kind, a person going round golf-links by liimself 
on the Lord's Day was not playing the game of golf. 

Gaming appliances, any appliances used for gaming ; see 5ent- 
stein V. Rex ([1905] T.S. 418). See Ordinance 21 of 1902 (O.R.C.), 
sec. 13. 

Gaol, see Prison. See also Ordinance 6 of 1906 (T.), sec. 3. 

Gaoler. " Gaoler shall mean the keeper of or officer for the 
the time being in chief control of any prison or lock-up" (Act 23 
of 1888 (C.C), sec. 2). See also Ordinance 6 of 1906 (T.), sec. 3; 
Ordinance 3 of 1903 (O.R.C.), sec. 1. 



GARNISHEE 244 GENEAROH 

Garnishee, tlie person who, owing money to a judgment debtor, 
is called upon bj'' order of court to pay over to an officer of the court 
(for the benefit of the judgment creditor) so much of the amount 
owing as will be sufficient to satisfy the debt of the judgment 
debtor and costs, or failing such payment to appear before the court 
on a day named in the order and show cause wliy lie shovild not pay 
such debt. See Ordinance 12 of 1904 (T.), see. 6. By the Magis- 
trates' Courts Amendment Act, 30 of 1908 (T.), .sec. 6, it is provided 
that nothing in the Ordinance of 1904 shall authorise a court of resi- 
dent magistrate to make an order garnisheeing a judgment debtor's 
wages. 

Garnishee order, the order of court granted against a garnishee. 
See Garnishee. 

Gather, to collect together. In the Natal Coast Fisheries Act 
(31 of 1906), sec. 20, the word gather includes 'destroying or disturb- 
ing." See Ordinance 1 of 1838 (C.C. ), sec. 6, and Oehley v. Rex ([1908] 
E.D.C. 38). 

Gau, see Canton. A division of the tribes of the early Germans 
into thousands ; a collection of gauen formed the tribe or nation 
(Weasels' History, p. 19). 

Gedaagde (D.), the person summoned in an action ; also called the 
defendant. 

Geestelijken (D.), the clergy. As to their influence and power in 
the Netherlands, see We.ssels' History, p. 69. 

Gemaaghtaalde (D.), related, a relation or relative. 

Gemeenschap van goederen (D.), community of property. " By 
the common law of Holland and West Friesland marriage effects 
communitj^ of property between the spouses, except in so far as the 
same has been excluded or limited by antenuptial contract; and 
excepting also that where a person marries a young man under 
twenty-five, or a young woman under twenty, without the consent 
of his or her parents or relatives or of the court, for in such a case, 
though the marriage remains valid, no community of propei-ty takes 
place" (Grotius' Introd. Maasdorp's trans. 2, 11, 8; see also Van der 
Keessel, Tlies. 217-19; Maasdorp's Institutes, vol. 1, p. 34). 

Genan (D.), of one and the same name. 

Genealogy, the history of the descent of a person from his- 
ancestor ; a statement showing descent in the order of succession. 

Genearch, the head of a family or tribe. 



GENERAL 245 GENERAL 

General acceptance. The acceptance of a bill of excliange may 
be eilher general ov qualified. A general acceptance assents without 
qualification to the order of the drawer (Bills of Exchange Act, 1882 
(Eng.), sec. 19; Act 19 of 1893 (C.C), sec. 17; Law 8 of 1887 (N.), 
sec. 18; Proclamation 11 of 1902 (T.), sec. 17; Ordinance 28 of 1902 
(O.R.C.), sec. 17). 

See Qualified Accept.wce. 

General agent " is an agent appointed to act as such : (a) in a 
course of dealing which comprises all the affairs of his principal, or 
all the affairs of his principal in a particular business or character ; or 
(6) in the ordinary course of the agent's recognised trade or profession " 
(Jenks' Digest of English Civil Laiv, bk. 1, sec. 129). See Midler 
Bros. V. Kemp and Others (3 Searle, at p. 158). 

General average. " The term general average is used indiscrimi- 
nately, sometimes to denote the kind of loss which gives a claim to 
general average contribution, and sometimes to denote such contribu- 
tion itself; in order to avoid confusion, it would have been better to 
use the term general average loss when speaking of the former, and 
general average contribiUion when speaking of the latter. A general 
average loss, and the consequent right to levy a general average con- 
tribution, can only arise out of a general average act. A general 
average act may consist either of the voluntary destruction of or 
parting with some tangible portion of the ship or cargo, or of the 
voluntary adoption of some extraordinary measure involving a sub- 
sequent loss or expenditure of money. In either case there is in 
reality a sacrifice : in the former case the sacrifice is itself the loss 
which is immediately apprehended, whilst in the latter case the 
sacrifice is in itself no present loss, but leads to loss or expenditure 
in the future. A loss of the former kind is generally called a general 
average sacrifice ; a loss of the latter kind is generally called a general 
average loss or expenditure" (Arnould on Marine Insurance, 7t}i ed. 
sec. 906). 

"General campaign literature," an expression applied by 
INNES, C.J., in Be Visser v. Fitzpatrick ([1907] T.S. at p. 375) to 
certain literature printed by a political association which was dis- 
tributed to all its branches throughout the country, and amongst 
othei-s to the branch in the town for which respondent was a candi- 
date, and to the respondent's own offices. 

General clause, a clause usually inserted in special mortgages, 
whereby the mortgagor' declares to bind generally his person and 
property of every description as a further security for the debt. To 
be effective, like a special or general mortgage, it must be i-egistered 
in the Deeds Office. A general clause has the same eft'ect as a 
general mortgage, and becomes operative on the insolvency of the 
debtor. See " Necessary Power." 

> General dealer. This term has received more than one statutory 
definition, as the following instances will show. "Any person who 



GENERAL 246 GENERAL 

carries on the trade or business of selling, or offering or exposing 
for sale, barter or exchange any goods, wares or merchandise, not 
being the growth, produce or manufacture of South Africa" (Act 38 
of 1887 (CO.), sec. 3). See Act 28 of 1898 (C.C), sec. 10, and 
Act 35 of 1906 (C.C). See also Rex v. Kulcard, 21 S.C. at p. 190 ; Rex 
V. Warner, 23 S.C. 483. 

" Any person who carries on a trade or business in any shop, 
store or fixed place where goods are sold or offered or exposed for 
sale " (Ordinance 23 of 1905 (T.), sec. 2). As to whether a butcher 
should take out a general dealer's license, see Papert v. Rex ([1906] 
T.S. 553). 

For the Orange River Colony, see Ordinance 10 of 1903, see. 2; 
Ordinance 13 of 1905, sec. 5. 

General issue, a plea which traverses the whole of the declara- 
tion or summons, as the case may be. 

General mortgage, a bond executed before a notary public or tlie 
Registrar of Deeds and duly registered in the Deeds Office, whereby 
the debtor (called the mortgagor) mortgages in favour of the creditor 
(called the mortgagee) all his estate, and effects both movable and im- 
movable as a security for a debt. What is known as the " general 
clause," usuallj' inserted in special mortgages, operates as a general 
mortgage. 

A general mortgage becomes operative upon the insolvency of tlie 
debtor. In Francis v. Salvage & Hill, decided in the Supreme Court 
of the Transvaal in November, 1882, it was held, in a learned and 
elaborate judgment (quoted in extenso in a note to Van Leeuwen's 
Comm. Kotz^'s trans, vol. 2, at p. 107), that a pledge of movables by 
notarial deed, duly registered, but unaccompanied by delivery, is valid 
not only against the debtor, but also gives the pledgee a right of pre- 
ference against concurrent creditors in insolvency. But a registered 
notarial bond over movables, which have not been delivered to the 
pledgee, is of no force against an execution creditor {Mangold Bros. 
V. Eskell, 3 S.C. 48 ; Meyer v. Botha and Hergenroder, 2 Kotze, 47 ; 
Keet V. Dell, ibid. 109; and Natal Bank v. Martinus & Co. 2 Off. 
Rep. 132). 

General nursery an expiession used in the Cape Nurseries In- 
spection and Quarantine Act (29 of 1905), where it is deftned to mean 
" any nursery that is not a local nursery." See Local Nursery ; 
Nursery. 

General poTver of attorney " is nothing more than a bundle or 
collection of special powers enumerated in one instrument. Yet if 
there are any general words which appear to govern the whole instru- 
ment, the court must so far regard the power as a whole, unless there 
is something to show that one or more clauses should be read apart 
from the rest" (per KoTz:^, J.P., in Grobbelaar v. Cockcroft, [1906] 
E.D.C. at p. 113). 



GENERATING 247 GHOEDMOEDER 

"Generating the light." Where B W had agreed to supplj^ 
electric light in B to the inhabitants, streets, public places and 
private property, and B M undertook to pay B W such sum as 
would yield a return of 10 per cent, over the " actual cost of generat- 
ing the light, it was held that generating the light included generating 
the electric current as well as transmitting the current to the lamps, 
i.e. the whole process leading up to the production of the light in 
the street lamps (Bulawayo Municipality v. Bulawayo Water- 
works Co., Ltd., 16 C.T.R. 941; [1908] A.C. 241; 77 L.J. P.C. 70; 
98 L.T. 600). See Actual Cost. 

Generic, pertaining or belonging to a genus ; of a distinctly 
characteristic kind ; relating to a large class or group. 

Genus, a kind ; a sort ; a class consisting of several species. 

Grerechtsbode (D.), messenger of the court. 

Grestation, pregnancy. 

Gretuige (D.), a witness. 

Getuigenis (D.), evidence. 

Gevangene (D.), a prisoner. 

Grevangenis (D.;, a prison. Formerly in Holland a gevangenis 
was a place set apart for the custody, and not for the punishment, 
of accused persons (see Kersteman's Woorde-nhoek, vol. 1, p. 163). 

Gheldeman (D.), a debtor. 

Ghemaal (D.), a companion. See Maal. 

Ghenachte, Ghenachtdagh (D.), the day appointed or fixed for 
the holding of the court, or pronouncing judgment. So called because 
it was the custom of the ancient Germans and Franks to count time 
by the niglit and not by the day. It is said also to have been the 
practice of the ancient Britons (Meyei-'s Woordenschat). 

Ghoedeins (D.), inheritance. 

Ghoede-luiden (D.), literally, good or honest folk. They were 
citizens or inhabitants who were qualified and entitled to be present 
and vote in the determination of cases arising either in the towns or 
in the country {ten platten lande) (Meyer's Woordenschat). 

Ghoeden (D.), to bestow or bequeath. 

Ghoeding (D.), goods, property. 

Ghoedmoeder (D.), a godmother. 



GHOEDVADER 248 GOEDEREN 

Ghoedvader (D.), godfather. 

Ghoggraaf (D.), a foot judge, one who judges without sitting on a 
judgment seat, in Latin judex pedaneus. Judges of this kind were 
chosen by the ancient Saxons to determine summarily as occasion 
arose upon an assault or violence committed. Consequently the term 
is dei'ived by some from goch, i.e. quickly, and gniaf, whicli formerly 
meant a judge. 

Ghootrecht, Gootrecht (D.), the right to have a gutter or spout 
on or over another's land. 

Ghouw or Gouw, (D.), a country, province or district. 

Ghulde (D.), toll, duty, rent. 

Gibbet, an upright post having an arm or cross-piece projecting 
at the top, from which persons were hanged; a gallows. 

Gijzeling (D.), imprisonment for debt; civil imprisonment. See 
Van der Linden's Institutes, 3, 1, 9, 15 and 16. 

Gild, an association or society formed for mutual protection or 
benefit. 

"Giving and suppl3dng," in Cape Liquor Laws, see Rex v. 
Francis (18 S.C. at p. 59). 

Glucose vinegar. In the Cape Wine, Brandy, Whisky and 
Spirits Act (19 of 1908), sec. 16, "Glucose vinego.r means the pro- 
duct made by the alcoholic and subsequent acetous fermentation of 
solutions of starch, sugar, glucose, or glucose syrup." See Vinegar. 

"God save the King." These woids are usually to be found at 
the end of Proclamations, but they do not appear to have anj' special 
virtue as affecting the validity of a Proclamation {Queen v. M'^ells, 
1 A.C. at p. 3). 

Godspenning ( D.), earnest money. 

Goederen (D. ), property, divided into movable and immovable 
property. 

Goederen ter slete gelevert (D.), goods sold in small quan- 
tities, and of such a nature that they are consumed or become 
deteriorated by use (per Wessels, J., in Loteri/vian c& Co. v. Gowie, 
[1904] T.S. at p. 601). "The noun sleet is derived from slyten, which 
means 'to consume,' as well as 'to sell in small quantities.' Koop- 
manschap ter slete gelevert signifies goods sold not only by retail, but 
sold in small quantities for consumption or to be used up. Sleet is 
equivalent to consumption, and ter slete gelevert is nothing else than 
sold for consumption (see Sewell's Lexicon; and Oudeman's Old 



GOEDEREN 249 GOODWILL 

Netherlands Diet, sub voce ' Sleet ' ) " per VioT-/±, C.J., in Little v. Roth- 
man, 2 Off Rep. (1895) 201. See Quick v. Liottey ([1908] T.S. 708). 

Gold. See Native Gold ; Unwrought Gold. 

Gold coins. " Englisli gold coins are made of standard ifold, 
which i.s an ' alloy ' or mixture of eleven parts pure gold and one part 
of copper. Standard gold is therefore said to be 'eleven-twelfths' fine 
or twenty-two carats tine, a carat being a goldsmith's term for a 
twenty-fourth part of an ounce" (Sykes' Banking and Currency, 
p. 24). 

Gold ore, in the Tiansvaal Gold Law (15 of 1908 (T.), sec. 3, since 
repealed) signifies "all auriferous ores, including concentrates, tailings 
and slimes." 

Golf. Tlie game of golf is played by two sides, each playing 
its own ball. Therefore a per.son going over golf-links by himself 
is not playing the game of golf within the meaning of Ordinance 1 of 
1838 (CO, .see. 6 {per Graham, J., in Oehley v. Rex, [1908] E.D.C. 38). 

Good faith. The expi'ession good faith is used in the Bills of Ex- 
change Acts. " A thing is deemed to be done in good faith, within the 
meaning of tliis Act, where it is in fact done honestly, whether it is 
done negligently or not" (Act 19 of 1893 (C.C), sec. 89; Law 8 of 
1887 (N.), sec. 89; Proclamation 11 of 1902 (T.), sec. 89; Ordinance 28 
of 1902 (O.R.C.), sec. 89). 

Good for, a popular and brief form of an acknowledgment of 
•debt. It is not a negotiable instrument. 

Good Friday, a public holiday. See Business Day. 

Good order and condition. " The general .statement in the bill 
of lading that the goods have been sliipped 'in good order and con- 
dition' amounts to an admission by the shipowner that, so far as he 
-and his agents had the opportunity of judging, the goods were so 
shipped " (Carver's Carriage of Goods by Sea, 3rd ed. sec. 73 ; see 
following sections as to certain qualifications ; see also Porter ((■ Co. 
v. Robinson, 2 S.C. 16; and Blaine & Co. v. Moller, 2 S.C. 133). 

Goods, merchandise. " Goods shall mean goods, luggage, or other 
movable property of any de.scription, and shall include animals and 
birds whether live or dead" (Act 13 of 1908 (T.), sec. 2; Act 29 of 
1908 (O.E.C.), sec. 2). 

As to meaning of goods in Ordinance 23 of 1905 (T.), used in 
definitions of pedlar, hawker and general dealer, see Pa,pert v. Rex 
([1906] T.S. at p. 553). 

Goodwill, ail the advantages that are acquired by a business 
owing to its reputation, position or pab'onage, and which do not arise 



GOODWILL 250 GOVERNOR'S 

from the mere capital invested. Goodwill may be a partnership asset 
on tlie dissolution of a partnership: see Sherry v. Stewart ([1903J 
T.H. 13): see also Wheeler v. Smith ([lOOfi] T.H. at p. 243). 

Goograven (D.), pi. of Goograaf, officers who ruled over small 
districts. See Gr.4AF. 

Gootrecht (D.). See Ghootkecht. 

Goudwet (D.), Gold Law. See Law 15 of 1898 (T.), since repealed, 

Gou'w (D.), See Ghouw. 

Government, the authority whicli directs and controls tlie affairs 
of a State; tlie executive power in which tlie administration of a 
State is vested. 

As to Government in Cape Native Territories, see Act 24 of 1886- 
(C.C), sec. 5 (a). 

Government Gazette, the official publication of the Government. 
In Sou til Africa Government Gazettes are published in each colony 
weekly, and in them are published Bills to be laid before Parlia- 
merit, as also Acts of Parliament as soon as promulgated: Proclama- 
tions ; Government Notices, and a variety of other matter of which 
public notice is required to be given through this medium. 

Government securities. The expression Government securities^ 
is defined in the Cape Bank Act (6 of 1891) to mean "any bonds, 
scrip, certificates, stock or debentures of the Colony of the Cape of 
Good Hope." 

Grovernor. In the Cape Interpretation of Statutes Act (5 of 
1883, sec. 3) it is provided that the term " Governor shall mean the 
officer for the time being administering the government of the colony ; 
provided that when anj? act, matter or thing is by any law directed 
or required to be done bj^ the Governor, it shall mean the Governor 
with the advice of the Executive Council." 

In the Transvaal Interpretation of Laws Proclamation (15 of 1902),. 
sec. 2, Governor means "the officer for the time being administering 
the government of this [Transvaal] Colony ; " see also Ordinance 1 of 
1906 (T.), sec. 30 of schedule. 

" Governor shall mean the officer for the time being administering 
the Government of this colony acting by and with the advice of the 
Executive Council thereof:" Act 13 of 1908 (T.), sec. 2: Act 29 of 
1908 (O.R.C.). sec. 2 : Act 4 of 1908 (T.), sec. 1 : Act 14 of 1907 (T.), 
sec. 1 : Act 15 of 1907 (T.), sec. 2. 

Governor's pleasure lunatic. In the Cape Lunacy Act (1 of 

1897), sec. 2, the expression Governw's pleasure lunatic is defined 
to mean " any person for whose detention during his pleasure thft 



GOVERNOR'S! 251 GRATUITOUS 

Governor is autliorised to grant an order." See also sees. 19 to 33 of 
the same Act. A similar definition of Governor's pleasure lunatic has 
been adopted in the Transvaal ; see Proclamation 36 of 1902 (T.), 
sec. 2. 

Graaf (D.), (1) originally signified a judge, a superior or leader; 
as if we said graanw, a grey or old man, for probablj^ at first none 
but grej'-haired men of experience were appointed judges. Hence 
in this sense graaf schap is also used to denote jurisdiction. 

(2) He who, on behalf of the public, appoints the court, prosecutes 
and executes the judgment of the court. There were numerous 
officers of the kind. Thus Burgh-graaf, who ruled over a burgh ; 
Bykgraaf, over a dike or dikes; Goograaf, over a small district; 
Landtgraaf, over a large district ; Markgraaf, over the landmarks or 
boundaries ; Paltsgraaf, over the palace ; Pluiragraaf, over fowling, &c. 
All these various kinds of graaf were called in Latin comites or 
judices. See Van Leeu wen's Covim. Kotze's trans, vol. 1. p. 62. 

(3) In its modern sense the term denotes count, and graafsclmp 
denotes county (Meyer's Woordenschat) . 

Graafschap (D.). See Graaf. 

Graduate, .p, person upon whom a degree has, after examination, 
be&ri conferred b}- a college, university or the like. In the Cape 
University Incorporation Act (16 of 1873, see. 13) the term graduate 
is defined as meaning "any person upon whom the university shall 
have conferred any degree after examination, and also any gradioate 
of another university- whom the council shall, in the exercise of the 
power in that behalf hereinbefore bestowed, have admitted to any 
degree." 

Grahven-gheding (D.), a dispute or trial held bj- the count in 
person, having in his hand a drawn sword. 

Grant. In connection with land a grant is an original title issued 
by the Crown, with diagram attached, and dul}' registered in the 
Deeds Office. A grant contains all the conditions upon which the 
land is granted to the grantee. The grant of land is the fundamental 
title upon which all subsequent transfers of such land are based. 

Grape brandy. See Pure Grape Brandy. 

Gratuitous promise (helofte) "is where a person of his own accord, 
without having been asked to do so and without any debt, offers to do 
or give something to another. If this promise be made in earnest and 
be accepted, it will bind the promisor to performance or fulfilment ; 
according to the common saying, ' a promise incurs a debt ' (helofte 
maakt schuld)" (Van Leeuwen's Gomvi. Kotze's trans, vol. 2, p. 4. 
Chief Justice KoTZE adds a note to this definition as follows : " But 
every promise must have a definite and reasonable cause (causa) in 
order to create a right of action "). See Causa ; see also Scott v.. 
Thieme (14 C.T.R. 823; 21 S.A.L.J. 364). 



GRAVAMEN 252 GRONDWET 

Gravamen, that part of an accusation which is most serious 
against an accused person ; the substantial cause of an action or com- 
plaint. 

Gravity. In the Cape Excise Spirits Act (18 of 1884), sec. 2, 
gravity is defined as meaning "the gravity as ascertained by Bates's 
saccharometer." The same definition is given in the Additional Taxa- 
tion Act, 36 of 1904 (C.C), sec. 2. 

Gray's Inn, one of the Inns of Court. See Inns of Court. Con- 
siderable inducement is offered to students by this Inn in the way of 
scholarships. It has a good library. 

Great-grandchildren, a child in the third degree of descent. 

As to whether the terra "grandchildren" includes grext-grand- 
children, .see Re Cass' Will (27 N.L.R. 262). In that case it was 
decided that it did not. 

Great stock, "horses and cattle with their offspring" (Ordi- 
nance 15 of 1904 (T.), sec. 1.). 

GrifiQer (D.), tlie registrar of a court. Formerly in Holland a 
griffuer in a political sense was a principal secretary of a Minister of 
State, whose duty it was to talce down in writing the resolutions and 
to sign the Ordinances of the States-General, as also to assist at the 
Assembly of the States {lands vergaderiiigen) and to take accurate notes 
of the proceedings and resolutions; injudicial practice the griffisr was 
the secretary or registrar of a court of justice. See Kerstemaii's 
Woordenboek, vol. 1, p. 169. 

Grondwet (D.), a written Constitution. In South Africa both the 
Orange Free State and the South African Republic (Transvaal) had 
written Constitutions. Of these, tliat of the Orange Free State is 
of earlier date. It was introduced and adopted on the 10th April, 
1864, and was subsequently revised and amended in 1866, under the 
name of Herziene Gonstitutie (Revised Constitution). It consisted 
of 62 Articles, and was divided into different headings, dealing re.spec- 
tively witli (1) the Volksi'aad or Legislature, (2) tlie President, (3) the 
Executive Council, (4) the Judiciary, (.5) the Military System, and 
(6) Miscellaneous Provisions. By sec. 26 of this Constitution it was 
provided that it could only be altered after a three-fourths majority of 
the Volksraad had in two consecutive annual sessions voted in favour 
of the proposed alteration. 

In the South African Republic (Transvaal) the Grondwet was 
introduced and adopted in February, 1858. Great disaffection and 
di.ssension had existed for some time previously in that country. 
In 1855 Mr. M. W. Pretorius, subsequently the first president of the 
Republic, and others induced the Volksraad to adopt a (h'ondwet or 
Constitution. This was done at Potchefstroom on the 9th November, 
1855. The Volksraad, however, decided that the Grondwet should 
first of all be published and submitted to the people for their con- 



GRONDWET 253 GRONDWET 

sideration and approval. Soon after tliis, difteiences unfortunately 
arose between Mr. Pretorius and Mr. Stephanus Schoeman, two 
of the four Commandants-General of tlie country. Sclioeman was 
oppo-sed to the Grondwet introduced by Pretorius, and seemed to 
think that it was the intention of Pretorius to liave himself de- 
clared President under this Constitution. Early in 1858 the people 
assembled in an armed body at Rustenburg-, but a collision was 
averted by means of a combined militaiy council (krygsraad): which 
re.solved that a Commission should be chosen to draw up and frame 
one general Grondivet. The Commission was elected by all the 
people present, and Pretorius and Schoeman were nojniiiated joint 
chairmen. On the 13th Februarj' the committee was ready with a 
draft Grondwet, and on the 18th February, 1858, the Volksraad unani- 
mously approved and accepted it as the Grondwet or Constitution of 
the South African Republic. This Grondwet consisted of 232 ai-ticles, 
and was divided into different headings similar to those of the Grond- 
wet of the Orange Free State. Several of its provisions, however, 
dealt with minor matters of detail and administration, and should have 
been omitted from tlie Constitution altogether. Two supplements 
(bylagen) were added to this Grondwet in 1859, the one dealing with 
matters which were pending at the time of the adoption of the Grand- 
wet in 1858 (overgangsbepalingen), and the other providing that the 
Introduction of Grotius to the Juris'pi'udence of Holland, the Coim- 
mentaries of S. van Leeuvien, and the Manual of Van der Linden 
should be followed by tlie courts of justice where the local laws were 
silent. Besides being open to objection in other respects, this Grond- 
wet did not, like that of the Orange Free State, contain any article or 
clause providing for its alteration ; although some provision was made 
against hastj' legislation by sec. 12, which enacted that any proposed 
law, except such as could brook no delay, must be published three 
months beforehand for the information of the people, to enable them 
to petition against it. This was, however, very inadequate, and in 
course of time this provision was very frequently departed from, so 
that what was originallj' intended as an exception often became a 
rule. 

In 1877, while Sir Theophilus Shepstone was at Pretoria, on a 
mission from her Majesty's Government, the Transvaal was in a 
somewhat disturbed state and in an almost bankrupt condition. The 
people had for some time been very remiss in the payment of their 
taxes, the treasury was empty, and the authority of the Govern- 
ment was not respected. Sir Theophilus Shepstone had frankly in- 
formed President Burgers that, unless he could bring about a change 
for the better, the country would be annexed to her Majesty's 
Dominions. President Burgers, who was opposed by Mr. Kruger 
and his party, made heroic efforts to reform the unsatisfactory state 
of things. Among the various measures which he proposed should 
be adopted was the introduction of an amended Grondwet. In 
March, 1877, he introduced this measure, consisting of five chapters, 
into the Volksraad. That -body was disposed only to adopt and 
approve two of these chapters, dealing respectively with the State- 



ORONDWET 251 GROSSE 

President and Executive Council, and the judiciary. The chapter 
dealing with the judiciary was tlie tirst attempt to establish a 
.Supreme Court and Circuit Court, such as existed in the other 
parts of Soutli Africa. The Volksraad and people did not, how- 
ever, support President Burgers in the measures which he proposed, 
in order to place the government on a more stable and satisfactory 
basis, and on the 12th April, 1877, the Republic was annexed to 
the British Dominions. On the retrocession in 1881, the Volksraad, 
by Law 3 of that year, re-enacted, with some modifications, the 
Amendments to the Grondwet introduced by President Burgers in 
1877. In 1889 a so-called new Grondwet consisting of 159 articles 
was introduced and adopted by the Volksraad, but it likewise did 
not provide for the manner in which alone the Grondwet could be 
altered. Again in 1896 the Government introduced and the Volks- 
raad adopted the Law 2 of that year, which is described to be the 
Grondwet of the South African Republic, and consists of 183 articles. 
It is obvious that it is not a Grondwet or Constitution in the sense 
generally understood by that tei-m, for, unlike the Constitution of 
1858, it did not emanate from the people in any shape or form. 
In the case of Brown v. Leyds, N.O. (4 Off. Rep. 17), it was held 
by the High Court of the Republic (KoTZ^, C.J., and Ameshoff, J.) 
that the validity and binding force of Resolutions and Laws of 
the Volksraad could be tested by reference to the Grondivet, and 
that the Volksraad could not by Resolution or an ordinary Law 
.alter the Grondivet or Constitution of 1858. See Testing Right. 

Gross, the full and entire amount or weiglit, without deduction 
for charges, tare, waste or the like. Opposed to net. 

Gross carelessness. In the Workman's Compensation Act, 40 
■of 1905 (C.C.), gross carelessness is defined to mean "any act done or 
duty omitted without safeguarding against the probable consequences, 
when such consequences are dangerous to human life or limb." Gross 
negligence or carelessness is ordinaiy negligence with a vituperative 
epithet {/per RoLFE, B., in Wilson v. Brett, 11 M. & W. 113). See also 
/per WiLLES, J., in Grill v. General Irooi Screw Collier Go. (L.R. 1 C.P. 
600). 

Grosse, sometimes spelt gross, a copy of a notarial instrument 
signed by the notary before whom the instrument is ex6euted, but 
omitting the signature of the party executing the same and of the 
witnesses; the notary merely certifying above his signature that the 
original was passed in the presence of the subscribing witnesses 
(naming them), who, together with the appearer (party executing) 
and himself (the notary), had duly signed the original of the instru- 
ment then lemaining in his protocol. See Master of Supreme Court 
v. Berrange (11 S.C. 68). 

The original Dutch word wiivS gros. Its definition then was het 
geen loit de kladde in het net gesteld is (whatever has been reduced to 
writing from the original rough draft), in other words, " a neat copy of 
tlie original." This term was in use oiBcially as early as the fifteenth 



GROSSE 255 GUARANTOR 

century. It is to be found in several plakaten ol' Holland affecting- 
notarial instructions, law and practice in 1540 and 1671. It is not a 
genuine Dutch classical word, but bastard Dutch. Frequently .such a 
bastard Dutch word was used in technical legal expressions when no 
better words were available. It appears that this term had been in 
use among legal practitioners in the Netherlands long before it was 
u.sed in the Dutch plakaten. The idea was that the first copy of 
the original draft of a notarial deed or insti-ument should be written 
neater and in larger characters, with tlie lines wider apart than those 
in the original Jdadde or Tninut in the notary's protocol. Hence fol- 
lowed the word grosseren, which means iit het net schrijven (written 
neatly). Grosse or grossere'n, also means to extend according to the 
minute of the original instrument. The original first draft was called 
the minut, because it was written in small characters, with the lines 
and words close together — -just the opposite way to tliat in which tlie 
gron was written. 

The difference between a gros and a copie authenticq (authentic 
copy) is this : the first neat copy of the original was called the gros, 
aiid copies were called " duplicate," " triplicate " and " quadruplicate." 
Prior to the year 1540 notaries could issue any number of grossen of 
a minut, but in 1671 they were prohibited from issuing more than 
one gros; they could, however, issue as many copies of the oninut as 
they desired ; such copies were to be styled and certified as the " dupli- 
cate," " triplicate," &c., as the case might be. 

Inasmuch as judicial instruments emanating from the courts in the 
Netherlands were, after having been formally recorded by the regis- 
trar igriffier) of the court, regarded as genuine, without requiring 
any further proof, so also were the different grossen i.ssued by these 
registrars, and judicial credence was given to them. The registrar 
was not restricted in the number of grossen. And because the gros 
of the registrar was accepted as true, so also was the gros of the 
notary accepted by the courts as true. Hence in practice the courts 
of Holland have, from time immemorial — -certainly prior to 1540 — 
given provisional sentence on a gros, and so it is in practice in the 
courts of South Africa at the present time. 

The Dutch word gros has been anglicised into grosse or gross ; 
and the Dutch word minut has been anglicised into minute. See 
Van Zyl's Notarial Practice, pp. 17 et seq. ; Stanford v. Brunette 
(3 Searle, at p. 111). 

Guarantee, an undertaking given by a guarantor for the due 
performance and fulfilment, by a third party, of some specific contract 
or stipulation. "The tendency of the older authorities, Roman-Dutch 
and English, was to place a strict and adverse construction np'ni a 
document of suretyship. On the other hand, later cases — in England 
at any rate — rather tend in the opposite direction " (per Innes, C.J., 
in Glenn Bros. v. Commercial General Agency, [1905] TS. at p. 741). 

Guarantor. " A guarantor is practically the same person as the 
Roman law terms a surety for an indemnity — in other words, he 



GUARANTOR 256 HABEAS 

guarantees that whatever part of the debt will not be paid by the 
principal or realised from the pledges will be made good by him (the 
guarantor)" (Nathan's Common Law, sec. 994, iv, not.). 

Guardian, the person in lawful authority over another ; one who 
has the right of exercising the powers and authority of guardianship. 
See Van Rooyen v. Werner (9 S.C. 425 ; 2 C.T.R. 295). 

Guardian's Fund, a fund formed under sec. 30 of Ordinance 105 
of 1833 (C.C.) under the control of the Master of the Supreme Court, 
in which are placed moneys coming into the hands of the Master in 
connection with persons or estates under guardianship. Moneys in 
this fund, not required for current expenditure, may be lent out on 
mortgage of immovable property within the colony after advising 
thereupon with certain officials as provided in the Ordinance (see 
sec. 33). See Proclamation 28 of 1902 (T.), sees. 100 et seq. ; Ordi- 
nance 18 of 1905 (O.R.C.), sees. 92 et seq. ; and Ordinance 8 of 1906 
(O.R.C.), sees. 3 et seq. 

Guardianship " is the lawful authority of one person over the 
person and propert3'' of another, introduced for purposes of special 
utilitj' " (Grotius' Introd. 1, 4, 5). The person over whom the 
guardianship extends is called the ward. " The relation of guardian 
and ward is an artificial imitation of that of parent and child, and is 
entirely regulated by law " (Holland's Jurisprudence, 10th ed. p. 240). 
Van Leeuwen in his Gomm. (Kotz^'s trans, vol. 1, p. 124) says: 
" Guardianship is a legal custody of the person of another who, by 
reason of his tender years or incapacity, is unable to protect himself." 
See Van Rooyen v. Werner (9 S.C. 425 ; 2 C.T.R. 295). 

As to guardianship of natives in Natal, see Law 19 of 1891, 
sec. 184 of schedule. 

Guild. See Gild. 

Guilty, indicating guilt or wrong-doing; having committed a 
crime or offence. 



Ha-arstoot (D.), puberty. 

Haarstootigh (D.), marriageable. 

Habeas corpus. " In England the right to individual liberty is 
part of the Constitution, because it is secured by the decisions of. the 
couits, extended or confirmed as they are by the Habeas Corpus 
Acts. . . . The Habeas Corpus Acts declare no principle and define 
no rights, but they are for practical purposes worth a hundred 
constitutional articles guaranteeing individual liberty" (Dicey's Con- 
stitution, 6th ed. pp. 193 and 195). For general explanation of the 



HABEAS 257 HANDVULLING 

mode ill which the law of England secures the right to persona 
freedom, sec Dicey 's Constitution, 6th ed. pp. 209 et seq. 

Habitatio, a personal servitude conferring the right to live in a 
house belonging to another. It includes the right to let the house. 
It was for long doubted whether habitatio was a disliiict servitude 
from u8Uf! until Justinian settled that it was (Justini..n's Institutes, 
2, 5, 5). 

Hac voce, under this word or phrase ; used as a means of 
reference and generally abbreviated " h.v." 

Hage-sette-rechters (D.), special judges appointed by a superior 
judge to settle a certain matter, in the same way as commissioners 
are appointed at the present day (Meyer's Woordenschat). 

Haghemunt (D.), bad or base coin. 

Hak (D.), a trader in inferior articles. 

Half-blood, the relationship Jaetween persons born of the same ' 
father or the same mother, but not of the same father and mother. 

Handelaar (D.), a dealer or trader; a merchant. A tailor who 
executes orders for garments, either supplying the material himself 
or making up cloth supplied by his customer, but who does not 
sell clotli or other articles, or make clothes except to order, is not 
a handelaar within the meaning of sec. 7 of Law 17 of 1899 (T.), 
and need not take out a license as such (Bebro v. Rex, [1904] 
T.S. 387). 

HandtUchten (D.), to restore into possession. 

HandtsteUing (D.), arrest. 

Handveste (I).), handwriting, signature. Its modern meaning 
is a privilege or charter. 

Handvesten (D.). (1) Were in Holland special orders, confir- 
mations or assurances under the count's own signature. They were 
written acknowledgments of anything that had been approved of 
by the ruler. They were thus not in their origin laws or orders, 
but an approval of what had been done in the name of law and 
then confirmed by the count's signature. 

(2) Charters. 

HandwdUng (D.), more commonly known in Roman-Dutch 
jurisprudence as provisie va.n namptissement. It was a provisional 
payment made by a defendant of the amount awarded to the plain- 
tiff by virtue of an interlocutory sentence of a court of justice, 
against proper security {cautie de restituendo) being given by the 
plaintiff for restitution of capital and interest in case the sentence 

R 



HANDVULLING 358 HARBOUR 

should be reversed in the principal case. See Kersteman's Woorden- 
boek, sub voce " Nannptissement," vol. 1, p. 300 ; 1 Menz. 6. Hand- 
vulling corresponds with the modern South African practice of 
"provisional sentence." See also Van Leeuwen's Gomm. Kotze's 
trans, vol. 2, p. 434. 

Haugdief (D.). In about the thirteenth century the special hang- 
man appointed to conduct the execution of condemned persons was 
called hangdief (^ emela' History, p. 165). 

Hangman, a public executioner. 

Harbour. In the Wrecks Removal Amendment Act, 46 of 1885 
(C.C.) " the term harbour includes harbours and ports properly i^o 
called, whether natural or artificial, roadsteads, and anchorages of 
eveiy description, estuaries, navigable rivers, piers, jetties and other 
works in or at which ships or vessels can obtain shelter, or ship or 
unship goods or passengers." See the Explosives Act, 4 of 1887 (C.C), 
sec. 36. 

Harbour boards, local boards of commissioners or persons in- 
vested with the necessary powers and authorities for the purpose of 
increasing, improving and regulating the safety and convenience of 
the several ports, harbours and roadsteads of the Cape Colony and 
Natal. Their creation was first authorised by Ordinance 21 of 
1847 (C.C), which was not applicable to Natal, and was confined to 
the ports of the Cape Colony. Since 1847 a number of Acts have 
been passed in Cape Colony dealing with the subject, until, in 1896, 
an Act was pas.sed to assimilate and amend the law relating to the 
■coi}trol and management of the harbours of Table Bay, Port Eliza- 
beth and East London (these being the principal ports of the Cape 
Colony), and to amend in certain respects the law relating to ports 
and harbours of the Cape Colony (Act 36 of 1896). This Act exempted 
the harbours of Table Bay, Port Elizabeth and East London from the 
provisions of Ordinance 21 of 1847 and several subsequent Acts. The 
control and management of the harbour, together with the docks and 
breakwater of Table Bay, and the harbours of Port Elizabeth and East 
London, together with all works of construction and maintenance con- 
nected therewith, were by Act 36 of 1896 vested in harbour boards 
constituted under the provisions of that Act. Such boards consisted 
each of seven persons, of whom two were elected in manner provided 
in the Act, three were nominated by the Governor, and the other two 
were the nominees of the Incorporated Chamber of Commerce and the 
mayor of the towns of Capetown, Port Elizabeth and East Loudon 
respectively. Each elected its own chairman, who held office for a 
yeai-. By Act 38 of 1908 (sec. 1) the above harbour boards were 
abolished and their control and management transferred to the 
Government. 

The principal statute in Natal dealing with this subject is Act 3 
of 1894. See also Law 18 of 1883; Law 8 of 1884; and Act 3 of 
1899. 



HARBOUR 269 HEERGHEWADE 

By sec. 126 of the Act of Union all ports, harbours and railways 
belonging to the several colonies at the establishment of the Union 
are to vest from the date thereof in the Governor-General-in-Council. 

Hard labour, a form of punishment usually added to the sentence 
of imprisonment. 

Hawker, a person who carries about wares for sale in small 
quantities, generally on his person (Solomon v. Rex, [1905] T.S. 216). 
" Where a person goes round about a town or country [selling wares] 
he is hawking. The nearest definition of a hawlcer is given in 
schedule 15 of Act 3 of 1864 [CO.], where it says ' hawker or travel- 
ling trader ' " {per Smith, J., in Queen v. Shortle, 5 S.C. at p. 205 ; 
see also Lezarcl v. The Queen, 4 H.C.G. 1 ; Queen v. Dickinson, 
4 C.L.J. 232; Shortle v. Uniondale Magistrate, 4 C.L.J. 286; and 
Queen v. De Kock, 3 H.C.G. 488). See Act 35 of 1906 (C.C.) ; Act 18 
of 1897 (N.), sec. 2 ; Law 19 of 1872 (N.), sec. 71. 

In the Transvaal, in the Revenue Licenses Ordinance (23 of 
1905), sec. 2, hawker means "any person who travels with a wagon 
or other vehicle (other than a hand-barrow or hand-cart propelled 
by himself) or with a pack animal or carrier, and who carries goods 
for sale." 

Hearing, the trial of an action or some other legal proceeding. 

Hearsay evidence, second-hand evidence. For history of rule 
rejecting hearsay evidence see Best's Law of Evidence, 10th ed. 
.sec. 115. 

Heefdochter (D.), a stepdaughter. 

Heefeoon (D.), a stepson. 

Heemraden (D.), anciently heimraden, persons who form the 
court or tribunal with a president to determine minor civil cases 
(see Wessels' History, p. 152). 

Heerenrecht (D.), transfer duty; a tax payable to Government 
on change of ownership of land. Probably in its old form of heere 
regt it denoted a tax or duty payable by the vassal to his lord. 
Heerenrecht has been known as. a tax in South Africa since 1686. 
See Transfer Duty. 

Heerewegen (D.), roads common to all the people, highways free 
to be used by every one. 

Heerghewade, Heergheweede, Hergheweide (D.), a feudal 
gift. The gift made by the new vassal to his lord, amounting to a 
year's income. Originally it signified the outfit presented to the lord 
by the new vassal. 

u-1 



HEIKEN 260 HBREDITAS 

Heiken (D.), father. See Hyken. 
Heimraden (D.), ancient form of heemraden. See Heemraden. 

Heir. "The expression heir in Roman-Dutcli law is used with 
regard to both intestate and testamentary succession. In regard ta 
intestate succession, the ]t,eirs are the persons wlio are entitled to 
succeed to the property of the deceased. In regard to testamentary 
succession, the ]i,eirs now mean the residuary legatees, the person or 
persons who receive what is left of the movable and immovable pro- 
perty after the debts and legacies have been paid " (Morice's English 
and Roman-Dutch Law, 2nd ed. p. 291). 

See Sole Heir ; Universal Heir. 

Heiress, a female heir. 

Heirloom is generally understood to mean some article or thing 
that passes from generation to generation in a family. Strictly 
speaking, in English law it means some personal chattel that accrues 
to the heir with the house itself by custom. 

"Held by the Crown," discussed in Trading Board v. Germiston 
Town Council ([1907] T.S. at p. 454). 

Herd is defined in the Natal Lung-sickness Prevention Act (30 of 
1897), sec. 3, to include "a single animal, or anj? number of cattle 
running together." 

Heredis institutio, the institution of the heir. In Dutch, erfstel- 
ling. See Van Leeuwen's Comm. Kotze's trans, vol. 1, p. 343. 

Hereditas, inheritance. It is defined in the Roman law as the suc- 
cession to the whole estate which the deceased had (Digest, 50, 17, 62), 
and while including things of every kind, movable and immovable, 
corporeal and incorporeal, is itself incorporeal, being a universitm 
(or collection) of the rights and also of the obligations of the deceased 
(Voet's Comm. 28, 1, 1). 

Hereditas directa, direct inheritance ; an inheritance left abso- 
lutely and without condition, as distinguished from hereditas fideicom- 
missaria, an inheritance burdened with a trust or Jideicommissum. 
(See Berwick's Translation of Voet, p. 80 in notis.) 

Hereditas fideicommissaria, a fideicommissary inheritance; an 
inheritance left subject to a, fideicommissit')n or trust. See Hereditas 
directa. 

Hereditas jacens, an inheritance or succession which has not yet 
been adiated or entered upon by the heir. " A hereditas jacens is in 
the property or possession of no one, and therefore theft cannot be 
made of a thing belonging to the inheritance unless another has some 



HEREDITAS 261 HIJPOTHEEK 

riglit ovei- it, as where the deceased had given it in pledge or lent it 
upon commodate (to some one) or a usufruct over it belonged to 
another. Still in the meantime, until it is adiated, it represents the 
persona oi the deceased as regards those things which have a legal 
aspect, but as regards those which require some act and which relate 
to the acquisition of property (it represents) rather the fersomi ol' the 
heir" (Voet's Comm. 22, 2, 1). 

Heres est eadem persona cum deflincto, an lieir is the same 
person with the deceased. In Roman law an heii' by adiating the 
inheritance stepped into the shoes of the deceased, not only acquiring 
all his rights and property, but also becoming liable for all his debts 
and obligations, although these exceeded the assets of the estate. 
Various expedients were introduced by later Roman law for the pro- 
tection of the heir. In accordance with the latest and most effectual 
remedy, viz., benefit of inventory {q.v.) the heir by making an in- 
ventory of the estate of the deceased limited his liability for the debts 
to the amount of the as.sets. The benefit of inventory is obsolete in 
South Africa. By statute law in the various colonies the administra- 
tion of the estates of deceased persons has been transferred to exe- 
cutors, and the heir is merely a residuary legatee, succeeding to that 
portion of tiie estate which is left after the debts and legacies liave 
been satisfied by the executors. 

Heres personam defuncti sustinet, an heir sustains the peison 
of the deceased. See Heres est eadem persona cum defuncto. 

Hergheweide (D.). See Heerghewade. 
Hermeneutics, the art of interpretation. 

Hertog (D.), a duke, " denoted a general of the army, chosen 
by the prince and stationed in a certain province " (Van Leeuwen's 
Gomm. Kotze's trans, vol. 1, p. 62). 

Herwissel (D.), re-exchange, "that is, the costs which the holder 
had to incur by reason of his being embarrassed by the non-pay- 
ment of the bill, in drawing for this amount upon the drawer or 
a third person, and thus to provide himself with the necessary 
funds " (Van der Linden's Institutes, Juta's trans, p. 481). 

High seas, that part of the sea that lies more than three m\\ 
oE the coast of any country. 

Hijpotheek (D.), formerly spelt hypotheecq, a mortgage, whereby, 
immovable property becomes bound as security for a debt or obli- 
gation without actual delivery. " In the Roman law, when the thing 
over which the right was given passed into the possession of the 
creditor, the right of the creditor was expressed by the word pignus ; 
when the thing remained in the hands of the debtor, the right of the 
creditor was expressed by hypothec " (Sandars' note on Justinian's 



HIJPOTHEEK 262 HOLDER 

Institutes, 2, 5, 6). Hypothec is used as equivalent to mortgage, 
which is either general or special, according as it embraces all pro- 
perty generally or only some specific property or thing belonging to 
the debtor. It is either created by contract between creditor and 
debtor, or is given hy the law. In the former case the mortgage or 
liypothec is spoken of as express or conventional, and in the latter as 
tacit or legal. Tacit hypothecs are rather numerous in Roman-Dutch 
law, but their number has been reduced in South Africa by legislation 
(Van Zyl, Judicial Practice, 2nd ed. pp. 577 et seq. See also Grotius' 
Introd. 2, 48 ; Van Leeuwen's Comm. Kotz^'s trans. 4, 12 and 13 ; 
Voet's Comm. 20, tits. 1 to 6 (Berwick's trans.) ; Kersteman's Woorden- 
boek, stib voce " HypotheeJc " ; Maasdorp's Institutes, vol. 2, pp. 222 
et seq. See Mortgage). 

Hire, to undertake to paj'^ a consideration for the use of a thing or 
for the services of a person, or the rent or wages paid or agreed to be 
paid for such use or services. 

Hire goes before sale, an English translation of the old Dutch 
maxim Hxtur gaat voor hoop (q.v.). 

Hire purchase system, a contract whereby a person lets some- 
thing to another (the hirer) on condition that the hirer shall pay the 
purchase-price of the thing by regular equal instalments in the way 
of rent, and that upon payment of the final instalment the thing shall 
become the property of the hirer. The contract generally contains 
a further condition that if the hirer fails to pay any instalment at 
maturitj' he shall forfeit his rights to the thing as well as all past 
payments. The dotniniimn in the thing remains in the owner until 
the final instalment has been paid. 

Hiring is "a contract whereby the use of a thing or the benefit of 
any service or act is promised for a certain price " (Van Leeuwen's 
Comm. Kotze's trans, vol. 2, p. 167). 

Hoc genus omne, all of this kind or description. 

Hoc titulo, under this title ; frequently used by commentators in 
referring to the Digest, and generally written " h.t." 

Hoflanden (D.), i.e. agri fiscalini, lands belonging to the State or 
the Count qua Count. 

Hogshead, a liquid measure containing 52^ imperial gallons. 

Holder, the payee or indorsee of a bill or note who is in posses- 
sion of it, or the bearer thereof (sec. 2 of English Bills of Exchange 
Act, 1882 ; see also Act 19 of 1893 (C.C), sec. 1 ; Law 8 of 1887 (N.), 
sec. 1 ; Proclamation 11 of 1902 (T.), sec. 1 : Ordinance 28 of 1902 
(O.R.O.), sec. 1. 



HOLDER 263 HOME 

"The term holder includes alike the payee, the indorsee and the 
bearer of a bill. It signifies the mercantile owner of the instrument, 
who may or may not be the legal owner of it " (Chalmers' Bills of 
Exchange, 6th ed. p. 5). 

Holder for value. Where value has at any time been given 
for a bill, the holder is deemed to be a holder for value as regards 
the acceptor and all parties to the bill who became parties prior 
to such time ; and where the holder of a bill has a lien on it, aris- 
ing either from contract or by implication of law, he is deemed to 
be a holder for value to- the extent of the sum for which he has a 
lien (sec. 27 of English Bills of Exchange Act, 1882). See also 
Act 19 of 1893 (C.C), sec. 25; Law 8 of 1887 (N.), sec. 26; Pro- 
clamation 11 of 1902 (T.), sec. 25; Ordinance 28 of 1902 (O.R.C.), 
sec. 25 ; Regulation 23 of 1895 (R.), sec. 25. 

Holder in due course is a holder who has taken a bill, com- 
plete and regular on the face of it, under the following conditions, 
namely : (a) that he became the holder of it before it was overdue, 
and without notice that it had been previously dishonoured, if such 
was the fact ; (b) that he took the bill in good faith and for value, 
and that at the time the bill was negotiated to him he had no 
notice of anj'- defect in tiie title of the person who negotiated it 
(sec. 29 of English Bills of Exchange Act, 1882). See Act 19 of 
1893 (C.C), sec. 27 ; Law 8 of 1887 (N.), sec. 28 ; Regulation 23. of 
1895 (R.), sec. 27; Proclamation 11 of 1902 (T.), sec. 27; Ordi- 
nance 28 of 1902 (O.R.C.), sec. 27. 

Holding. In the Transvaal Fencing Act (12 of 1908), holding 
is defined to mean : " (a) An area of land (not being an erf or 
stand) held by a white person under separate grant, deed of transfer, 
certificate of title, or lease ; or (b) an area of land held under a 
lease or license by any person under the Settlers Ordinance, 1902, 
the Crown Land Disposal Ordinance, 1903, the Land Settlement 
Act, 1907, or any amendment of such laws; or (c) an area of land 
reserved under section twelve of the Crown Land Disposal Ordi- 
nance, 1903, for stock, forestry or agricultural purposes ; or (d) any 
area of land used as a native location or mission station or held by 
a native under separate grant, deed of transfer, certificate of title 
or lease." 

In Ordinance 15 of 1904 (T.), sec. 1, holding means "any farm 
or other place where great stock is kept." 

HoMay. See Business Day. 

Holograph, a deed or writing written entirely by the author 
with his own hand. A holograph will is written entirely by the 
testator. 

Home Office, that branch of the Government in England in which 
the internal affairs of the State are administered. 



HOMICIDE 264 HORSE 

Homicide "is the killing of a human being by a human being" 
(Stephen's Digest of the Criminal Law, 5th ed. p. 175). Van Leeuwen 
in his CoTnm,. (Kotz^'s trans, vol. 2, p. 268) says, " Crime against life 
is homicide; which is taken in a general sense to denote every act 
whereby one person improperly causes the death of another." 

In the Native Territories Penal Code (Act 24 of 1886 (dC.)), 
sec. 134, hom,icide is defined as " the killing of a human being by 
another directly or indirectly by any means whatever." 
, See Ordinance 18 of 1845 (N.), sec. 28. 

Homing pigeon. "Homing pigeon shall mean and include all 
pigeons used as bearers of messages or as racing pigeons, and which 
have affixed or attached to either or each leg a rubber or metal ring" 
(Homing Pigeons' Protection Act, 22 of 1907 (C.C), sec. 1). 

Honeste vivere, to live honourably. This is one of the three 
precepts or maxims given by Justinian {Institutes, 1, 1, 3) as the 
basis of all i-ules of law. Honeste here has a wider significance than 
the mere legal, embracing the whole field of moral obligation, for 
Tion omne quod licet honestum est (not everything which js lawful is 
morally right). 

Honorarium, a fee or gratuity given for professional services 
rendered. 

Honorary degree. In discussing this term as it appears in sec. -5 
of Act 6 of 1896 (C.C), De Villiees, C.J., said: "Reading the section 
as a whole I can come to no other conclusion than that an honorary 
degree was intended to mean a degree conferred without examination 
on persons who have obtained an equivalent degree from another 
university, and that a degree honoris causa was intended to mean a 
degree conferred without examination on persons who are deemed 
worthy of such distinction, although they may not have obtained an 
equivalent degree from any other university " (Ex parte Mcjhvaine, 
15 S.C. at p. 269). 

Hooger beroep (D.), appeal to a superior court. Also termed 
appel, and formerly spelt Hoger beroep. 

Hoon (D.), insult, affront. Anciently the word meant favour or 
grace. 

Hoor (D.). See Om. 

Hoorigen (D.), one of the classes of people into which the early 
Germans were divided. They were also called lites, liti, or half free 
(Wessels' History, p. 21). 

Horse, in the Transvaal Great Stock Brands Ordinance (15 of 
1904), sec. 1, means " any Aorse, mare, gelding, colt, filly, a.ss or 
mule." 



HOSPITAL 265 HOUSE 

Hospital. As to whether a hospital is rateable under the (Jape 
General Municipal Act (45 of 1882), see Claremont Sanatorium v. 
Claremont Municipality (14 S.C. 236). 

Hostile witness, a witness who, when gi^'^g ''i'^ evidence, 
exhibits a hostile mind towards the party calling him. 

Hotel, a building arranged for the accommodation and con- 
venience of travellers and strangers. In Act 11 of 1905 (C.C.), sec. 1, 
hotel means ''hotels duly licensed by the licensing court; temperance 
hotels, whether requiring a license or not; and boarding-houses." See 
aLso Act 25 of 1905 (C.C), sec. 1. 

Houder (D.), the holder of a promissory note or bill of exchange. 

Houdvester en Meesterknapen (D.), a special court of Wood- 
Reeve and Companions instituted in Holland prior to 1376, whiclih 
decided matters relating to hunting and waste lands (Van Leeuwen's 
Comm. Kotze's trans, vol. 1, p. 19). 

House. In the Cape Births and Deaths Registration Act (7 of 
1894), sec. 2, the term house is defined to mean and include " the 
whole or any part of any tenement, any hut, tent, convict-station, 
prison, lock-up, hospital, asylum, public or charitable institution, cart, 
carriage, wagon, truck, van, and any other place of residence, vehicle 
or premises in or upon which any per.son may be born or die." 

In the Natal Code of Native Law (Law 19 of 1891, sec. 16) the 
word house denotes " the family and property, rights and status which 
commence with, attach to, and arise out of, the marriage of each 
woman. It also includes the dwellings used and occupied by the 
natives, commonly called huts." 

For the Transvaal, see Ordinance 19 of 1906, sec. 2 (the Birtlis, 
Marriages and Deaths Ordinance, 1906). 

In the Orange River Colonj'' the definition in the Registration of 
Births and Deaths Proclamation (15 of 1902) is the same as that in 
the Cape Act 7 of 1894. 

House of Commons, the lower House of the English Parlia- 
ment, con.sisting of elected members. " Parliament means, in the 
mouth of a lawyer (though the word has often a different sense 
in ordinary conversation), the King, the House of Lords, and the 
House of CoTnmons ; these three bodies acting together may be aptly 
described as the 'King in Parliament' and constitute Parliament" 
{Dicey 's Law of the Constitution, 6th ed. p. 37). 

" Being a representative body, the House of Coinmons contains 
persons who are presumably above tlie average in knowledge of the 
world and its affairs, as well as in intellectual capacity. Among these 
there are to be found many men (though a smaller proportion than is 
found in the American Congress or in some colonial legislatures) who 
possess a technical acquaintance with the laws of the country, and 
ought to be specially well fitted to amend them, while at the same 



HOUSE 266 HULK 

time any such tendency as professional men might have to indulge 
in mere technicalities is likely to be corrected by the presence of a 
majority of laymen. They deliberate in full publicity, and thereby 
can obtain from all quarters suggestidiis that may direct or help 
them. They are responsible to those who have sent them up, and 
who can closely watch their conduct. Ample opportunities are pro- 
vided for the discussion of every measure, and for curing any defect 
which may lurk in any Bill brought forward either by the Ministers 
of the Crown, liable through tlieir position to a fire of hostile criticism, 
or by a private member. Every Bill has to pass through seven stages 
in the House of Oomvions [now reduced to six], and six in the House 
of Lords, and at each of these stages it may be debated at indefinite 
length [now, however, subject to the power of imposing the closure of 
debate] " (Bryce's History and Jurisprudence, vol. 2, p. 324). 

House of Lords, the upper House of the English Parliament, 
consisting of lords spiritual and temporal. See House of Commons. 
" The House of Lords. . . . contains, among the fifty or sixty persons 
(out of nearly six hundred members) who habitually attend its sittings,, 
hot a few possessing intellectual power and practical experience, with 
(usually) some seven or eight distinguished lawyers, the flower of the 
legal profession" (Bryce's Histm^y and Jurisprudence, vol. 2, p.' 324). 

House property. (1) A term commonly applied to urban lands 
upon which houses are built. 

(2) An expression used in the Natal Code of Native Law (Law 19' 
of 1891, sec. 18 of sch.) denoting "all property vested in and per- 
taining specially to the several houses in a kraal. House -property 
may be acquired by donations or apportionments, and by the lobolo- 
of the girls of the house." 

Household furniture (huisraad) " includes everything which 
properly belongs to the service of the house and daily use, as chairs, 
tables, benches, chests," &c. (Van Leeuwen's Comm. Kotz^'s trans, vol. 1,. 
p. 439). 

Houtvester (D,). See Waldvester. 

Huisraad (D.), household furniture ; household goods. Formerly- 
spelt huysraad. 

Hulk, the body of a ship ; but generally the body of an old or dis- 
abled ship which is unfit for further service. ' I think a distinction 
may be drawn between a hulk and a condemned vessel. To be a hvXk 
it is not necessary a vessel should be without spars and rigging ; it is 
enough if she lies in the harbour and is used as a storehouse there, or 
for some other purpose for which she was not in the ordinary use of 
trade or commerce intended. The legislature never meant to allow 
the harbour to be used for storage purposes without payment. That 



HULK 267 HUWELIJKSOHE 

the vessel now in question is occasionally taken out of harbour in 
tow does not in mj' opinion prevent her being a hulk" {per Juta, 
Acting J., in WaUon v. Rex, [1908] E.D.C. at p. 148). 

Hunt. In Ordinance 6 of 1905 (T.), sec. 2, hunt means " shooting 
at, pursuing, taking, killing, or wilfully disturbing." 

Hush-money, a bribe given for tiie purpose of securing silence 
and so avoiding prosecution. 

Hustings, an electioneering expression, signifying the platforms 
from which candidates deliver their electioneering speeches. 

Huur (D.), the contract of hire. Huur also denotes the rent paj^- 
able in respect of such a contract. The Dutch jurisprudents speak of 
the " contract van huur en verhuuring," i.e. the contract of hiring and 
letting (see Van der Linden's Institutes, 1, 15, 11). Grotius says, 
" Letting and hiring is an agreement whereby one party binds himself 
to let another have his labour or that of some other person or animal, 
or the use of some other thing, and the other binds himself to the pay- 
ment of rent" {Introd. Maasdorp's trans, p. 260). See Kersteman's 
Wofyrdenhoek, vol. 1, p. 181. 

Huur gaat voor koop (D.), a Dutch legal maxim meaning " Hire 
goes before sale." " The contract of hire does not become void by the 
sale of the propertj^ leased, as the rule hire goes before sale prevails 
in our law " (Van der Linden's Institutes, Juta's trans, p. 145). This 
maxim means " that if a vendor sold his property, the purchaser was 
obliged to recognise leases not in longum tempus, and according to 
good authority short leases were those for periods under ten years" 
(per Innes, C.J., in Rolfes, Nehel & Co. v. Zweigenhaft, [1903] T.S. 
at p. 195). See also Canavan and Rivas v. New Transvaal Gold 
Farms, Ltd. ([1904] T.S. at pp. 141, 153). 

" I fully concur in the view contended for by Mr. Schreiner, that 
the rule ' Hire goes before sale ' applies onlj^ to leases actually in 
existence, and not to a mere right of renewal. I agree also that even 
in regard to leases actually in existence at the time when the land 
under lease is purchased, the rule giving a real right to the lessee, as 
against the purchaser, does not extend to terms exceeding ten years 
without notarial registration of the lease upon the title-deeds of the 
property " {per De Villiers, C.J., in Hite's Executor v. Jones, 19 S.C. 
at p. 244). 

Huurcontract (D.), a lease. 

Huwelijk (D.), marriage. See Marriage. 

Huwelyksche voorwaarden (D.), antenuptial contract. See 
Antenuptial Contract. 



HYKEN 268 IGNORANCE 

Hyken, heiken (D.), father. Hence pitkyken, a grandfather. 
Hypotheca, hypothec or mortgage. See Jus PiGNORis. 
Hjrpothecation. See Hijpotheek ; Mortgage ; Tacit Hypothec. 



Ibidem, also written ihid. and ih., in the same place, or in tlie 
same matter or case. 

Id certum est quod certum reddi potest, tliat is certain which 
can be made certain. For example, it is a requisite of a valid contract 
of sale that the price should be certain. If, however, the price is not 
fixed at the time by the parties, but is left to be ascertained by refer- 
ence to some standard, as, for example, the current market price, or to 
the decision of a third party, the contract is good, for id qiwi certum 
est quod certutn reddi potest (Voet's Comm. IS, I, 23). 

Id est, that is; usually abbreviated and written " i.e." 

Id genus omne, all of that kind or description. 

Id quod interest, lit. that which is of interest ; an expression 
used in the Roman law for damages, denoting not only actual loss 
suffered, but also the profit which has not been made, by reason of 
the breach of a contract. See Damnum emergens. 

Identity, .sameness of an individual, thing or event; the state of 
being the same person in all respects as- some other particular person. 
Identification, the act of identifying. This subject is fully discussed 
in Best on Evidence, 10th ed. sec. 517 ; see also Phipson on Evidence. 

Ides, a division of time among the Romans ; the eighth day after 
the nones. The Ides were on the thirteenth day of the months of 
January, February, April, June, August, September, November and 
December, and on the tif teenth daj? of the months of March, May, July 
and October. 

Idiot, a person who is deficient in, or has no intellectual faculties. 
See Natal Land and Colonisation Co. v. Molytieux (24 N.L.R. at 
p. 286). 

Idiotcy (or Idiocy), the state of being an idiot ; the mental con- 
dition of a person in whom no ideas have ever been formed. See 
Natal Land and Colonisation Co. v. Molyneux (24 N.L.R. at p. 286). 

Ignorance of law. The Native Territories' Penal Code (Act 
24 of 1886 (C.C.)), sec. 30, provides that " the fact that an offender is 



IGNORANCE 269 IMAUM 

ignorant of tlie law is not an excuse for any offence committed by 
him ; but nothing is an offence which is done by any person wlio is 
justified by law, or who by reason of a mistake of fact and not by 
reason of a mistake of law, believes himself to be justified by law in 
doing it." See also Stephen's Digest of the Criminal Law, 5th ed. 
art. 34. 

Ignorantia facti excusat, ignorantia juris non excusat, 

ignorance of a fact excuses, ignorance of the law does not excu.se. As 
every one is presumed to know the law, no one can plead ignorance 
in excuse of a breach of it. With regard to the repayment-of money 
paid by mistake, some writers, such as Voet (Comm. 12, 6, 7, and 22, 
6, 5), and Schorer (Note 457) hold that the condictio indebiti lies 
where the mistake is one of fact but not of law ; while others, such 
as Grotius (Introd. 3, 30, 6), Van Leeuwen {Cens. For. 1, 4, 14, 3) and 
Van der Keessel {Thes. 796) maintain that money paid under a mistake 
of law can be recovered. In South Africa it has been held that the 
condictio indebiti will not lie on the ground of a mistake of law. 
(See the judgment of KoTZ^, C.J., in Rooth v. The State, 2 S.A.R. 263, 
where the authorities upon the point are fully reviewed.) 

Ignorantia legis neminem excusat, ignorance of the law 
excuses no one. See Ignoranti.\ facti excusat, &c. 

Ikohlo, a native term used in the Natal Code of Native Law 
(Law 19 of 1891, sec. 21 of sch.), denoting " the chief house of the 
right-hand side of the ki"aal, as viewed from the indhlunkulu, 
looking towards the gate." 

Illegal, unlawful. In the Native Territories' Penal Code (Act 24 
of 1886) (C.C), sec. 5 (gr), it is provided that "the word illegal is applic- 
able to anything which is an offence, or which is prohibited by law, 
or which furnishes grounds for a civil action ; and a person is said to 
be ' legally bound to do ' whatever it is illegal in him to omit." 

" Illegal game," as to illegal games under the Gaming Law of 
1892 (T.), see Rex v. Moss ([1908] T.'S. at pp. 800, 802 and 803). 

Illegitimate children, persons who are not born in lawful wed- 
lock, and who have not been legitimated by the subsequent marriage 
of their parents. See Maasdorp's Institutes, vol. 1, p. 8. 

The status of an illegitimate child is derived from and depends 
upon the status of its mother. See Govu v. Stuart (24 N.L.R. at 
p. 441). 

Illicit, unlawful ; clandestine ; such as the illicit sale of gold, 
diamonds or liquor, being the sale of gold, diamonds or liquor without 
Hcense or contrary to law. 

Imaum, the chief priest of a Mohammedan church. As to 
appointment or election and powers of the imauTn, see Ian and 



IMAUM 270 IMMOVABLE 

Others V. Lsmael and Others (5 Searle, 102) ; Du, \Toit and Others v. 
Domingo (14 S.C. 126); and Salie v. Connelly and Others ([19081 
E.D.C. 97). ^ ■■ 

Imbecility, the state of being an imbecile. The state of a person 
whose condition is such that ideas have been partially formed in his 
mind and then arrested. See Natal Land and Colonisation Co. v. 
Molyneux (24 N.L.R. at p. 286). The term is also applied to bodily 
weakness or incapacity. 

Imboedel (D.), includes all that is found in a house without any 
exception, not only as regards furniture, but also silver work, clothing 
and materials, thus differing from huisraad. 

Immediately. " When a statute requires that something shall be 
done ' forthwith,' or ' iTninediately,' or even 'instantly' it would prob- 
ably be understood as allowing a reasonable time for doing it " (Max- 
well's Interpretation of Statutes, 4th ed. p. 520). See Forthwith. 

Immemorial, extending back for a lengthy and unknown period ; 
beyond the memory of man. 

Immissie (D.). The incmdament van iinmissie or writ of im- 
missie was a form of proceeding in Dutch practice, and was applicable 
where a person was ousted bj' a co-heir, who had equal rights, out of 
the possession of the estate (Van der Linden's Institutes, 1, 13, o). 

Immissio in possessionem damni infecti causa, putting in 
possession on account of (i.e. as security for) apprehended damage. 
See Miswio in possessionem. 

Immissio in possessionem legatorum vel fideicommissorum 
servandorum causa, putting in possession for the purpose of securing 
legacies ov fideicommissa. See Missio in possessionem. 

Imraoral contract, a contract that is inconsistent with or con- 
trary to law ; a contract that is against public policy and contrary to 
good morals. Such contracts cannot be enforced. 

Immovable property, land and whatever is permanently attached 
to the land. " Things in their nature movable are sometimes considered 
immovable, when they are regarded as a part of, or an accession to 
immovable things " (Schorer's Notes to Grotius, note 54). Correlative 
to movable property. May be said to be equivalent, roughly speaking, 
to the " real property " of English law. See Act 7 of 1907 (T.), .sec. 1. 

In Olivier and Others v. Haarhof & Co. ([1906] T.S. at p. 500) 
Innes, C.J., in discussing whether a wood and iron building of consi- 
derable size, having five rooms and resting on wooden posts projecting 
some six or nine inches from the ground, was movable or immovable, 
.said : " The conclusion to which I come is that it is impossible to lay 



IMMOVABLE 271 IMPERIAL 

down one general rule : each case must depend on its own circum- 
stances. The points chiefly to be considered are the nature and object 
of the structure, the way in which it is fixed, and the intention of the 
• person who erected it. And of these the last point is in some respects 
the most important." See also Victoria Falls Power Co. v. Colonial 
Treasurer ([1909] T.S. 140) ; Deputy-Sherif of Pretoria v. Heymann 
([1909] T.S. 280); Van Wyk ami Others' v. Bykerman ([1904] T.S. 
at p. 915). 

As to the lease of a stand in longu'in tennpus specially registered 
under sec. 107 of the Gold Law of 1898 (T.), see Ex parte Master of 
the Supreme Court ([1906] T.S. at pp. 564 et seq.), where the common 
law meaning of the term immovable property is fully discussed. 

Impanel a jury, to call certain jurymen who have been duly 
summoned to attend a court of justice, and to swear them in for the 
purpose of hearing the parties, their counsel, and the summing up of 
the judge, and thereafter to deliver their verdict on the issues sub- 
mitted for their decision. Sometimes spelt "empanel." See JURY. 

Impeach, to accuse; to prosecute a person before the House of 
Lords, or to charge a public official before a competent tribunal with 
some offence or misconduct ; to discredit. See Impeachment. 

Impeachment, the prosecution by the Commons before- the Lords 
of a commoner for high misdemeanours, such as treason, or of a peer 
for any crime; also the ancient method of enforcing parliamentary 
authority. " Though it may well be conceded — and the fact is one of 
great importance — that the habit of obedience to the constitution was 
originally generated and confirmed by impeachm,ents, yet tliere are 
insuperable difficulties to entertaining tiie belief that the dread of the 
Tower and the block exerts any appreciable influence over the con- 
duct of modern statesmen. No impeo,chment for violations of the 
constitution (since for the present purpose we may leave out of 
account such proceedings as those taken against Lord Macclesfield, 
Warren Hastings and Lord Melville) has occurred for more than a 
century and a half. The process, which is supposed to ensure the 
retirement from office of a modern Prime Minister, when placed in a 
hopeless minority, is, and has long been, obsolete. The arm by which 
attacks on freedom were once repelled has grown rusty by disuse; it 
is laid aside among the antiquities of the constitution, nor will it ever, 
we may anticipate, l^e drawn again from its .scabbard. For, in truth, 
impeachment, as a means for enforcing the observance of constitu- 
tional morality, always laboured under one grave defect. The possi- 
bility of its use suggested, if it did not stimulate, one most important 
violation of political usage ; a minister who dreaded impeachment 
would, since Parliament was the only court before which he could be 
in)peached, naturally advise the Crown not to convene Parliament" 
(Dicey 's Law of the Constitution, 6th ed. p. 387). 

Imperial, pertaining to an empire, an emperor, a sovereign, or a 
supreme authority. 



IMPERIAL 272 IMPRESSMENT 

Imperial officer. Tlie Supreme Court of the Cape Colony has no 
jurisdiction without an order of lier Majesty that right should be done, 
in an action brought against an oiEcer of the Imperial Government in 
his official capacity {Fraser v. Sievewright, 3 S.C. 55 ; see also Palmer 
V. HutcJdnson, 6 App. Cas. 619). 

Imperialism, the state of being imperial ; the spirit of empire. 

Imperitia culpae adnmneratur, want of skill is regarded as 
negligence (Digest, 50, 17, 182). See Spondet PERITIAM artis, &c. 

Imperium eminens. See Dominium eminens. 

Imperium in imperio, a supreme power within a supreme power, 
hence a government within a government. 

Impetrant (D.), a technical term used in practice before the courts 
of justice in Holland, synonymous with aanlegger or eischer, plaintiff. 
It WAS, however, not so frequently employed before the judges in the 
towns as the word eischer. 

Impignoration, the act of pawning or pledging. 

Im.plication, the inference that may be drawn from something 
that has been said or observed. 

Import, (1) to bring goods into a country from abroad ; (2) .signi- 
ficance; meaning. 

Importer is defined in the Cape Stamp Duties and Licenses Act 
(38 of 1887), sec. 3, as follows: "Importer means ever}' person who 
imports any goods other than the produce of South Africa for the 
purpose of trade or barter : provided that such importation shall be 
of the value of at least £1200 during the year ending 31st day of 
December." See Queen v. Poppe (9 S.C. 506) ; Queen v. Ohlsson 
(10 S.C. 22). For definition in Natal, see Act 13 of 1899, sec, 4; 
Act 45 of 1901, sec. 3. 

Impossible agreement. " An agreement is void if the perform- 
ance of it is either impossible in itself or impossible by law" (Pollock 
on Contracts, 7th ed. p. 399). 

Impotence, the incapacity of a husband or wife to procreate 
children ; complete absence of sexual power. Impotence prior to the 
celebration of a marriage is a ground for a decree of nullity of such 
marriage ; it is otherwise if impotence supervenes after marriage (see 
Maasdorp's Institutes, vol. 1, p. 80). 

Impressment is the act of seizing for public purposes. The term 
im.pressment is not in common use in South Africa, but it is to be 



IMPRESSMENT 273 IMPROVEMENTS 

found in the Natal Militia Amendment Act (30 of 1905), sec. 2. It is 
equivalent to the more usual expression " commandeer." 

Imprimatur, lit. let it be marked or printed ; a license to publish. 

Imprint, the name and address of the printer or publisher, or 
both, of any printed book, periodical, newspaper or primed sheet. In 
books the imprint of the publisher is usually placed at the foot of the 
title-page, and that of the printer at the back of the title-page or at the 
end of tlie book ; in newspapers and other printed matter the imprint 
is usually placed at Ihe end. 

Imprisoimaent. The Native Territories' Penal Code (Act 24 of 
1886) (C.C), sec. 9, provides that " the punishment of imprisonment 
consists in the detention of the offender in prison, and in his subjection 
to the discipline appointed for prisoners, during the period expressed 
in the sentence. Imprisonment shall be with or without hard labour, 
or with or without spare diet. If it is with hard labour, the sentence 
shall so direct. No prisoner shall be sentenced to, or suffer solitar}' 
confinement for any part of the term of his iynprisonment, except the 
same may be unavoidable, or necessary for the purpose of carrying 
out any sentence of spare diet. No female shall be sentenced to hard 
labour on any road, street or public place. No offender sentenced to 
imprisonment with hard labour for any period exceeding three months 
shall be sentenced to spare diet, except for offences against the dis- 
cipline of the gaol or other place at which he may be lawfully confined 
or employed." 

"Imprisonmnent shall mean imprisonmnent with or without hard 
labour as the court which passes sentence for an offence may deter- 
mine, except where iviprisonment with hard labour is expre.ssly pro- 
vided by this Act as a punishment for an offence " (Act 13 of 1908 (T.), 
sec. 2 ; Act 29 of 1908 (O.R.C.), sec. 2). 

Improvements. The question of compensation for improvements 
was fully discussed in Bellingham and Another v. Bloommetje (Buch. 
1874, at p. 38), where De Villiers, C.J., said: "All the Roman-Dutch 
authorities are agreed that, where a bond fide occupier has built upon 
land belonging to another, he is entitled to compensation for the useful 
expenses incurred by him, that is to say, for the expenses to the extent 
to which the value of the land has been enhanced by the building, and 
that he cannot be compelled to relinquish possession of such building 
until such compensation has been tendered or paid to him. As to a 
maid fide possessor, there is no doubt that under the ancient Roman 
law a person who built on land wliich he knew, or had reason to 
know, did not belong to him, lost all property in the materials, and 
was considered to have voluntarily alienated them." Proceeding then 
to discuss the Roman-Dutch authorities on the subject, the Chief 
Justice added: "It would therefore be impossible to reconcile the con- 
flicting authorities on the point under consideration, but considering 
the high respect which this Court has always paid to the opinion of 



IMPROVEMENTS 274 IN 

Groenewegen, Voet and Van Leeuwen, it is not too much to say that 
tl\e weight of authority is in favour of the right of even a maid Jide 
possessor to compensation for useful expenses." The point was again 
fully discussed in a learned judgment of De Villiers, C.J., in De 
Beers Consolidated Mines v. London and South African Exploration 
Co. (10 S.C. at p. 366). 

As to the rights of parties where the owner of land refuses to com- 
pensate the bond fide possessor, see Barnard v. Colonial Government 
(5 S.C. 122). See Parkin v. Lippert (12 S.C. 179) ; Lippert v. Parkin 
(13 S.C. 189). 

For statutory definition of improvements in Natal, see Act 44 of 
1904, sec. 3. 

In aequalL jure melior est conditio possidentis, where the 
right is equal the possessor is in the better position. See In pari 

CAUSA MELIOR EST CONDITIO POSSIDENTIS. 

In ambiguo, in doubt ; in a doubtful case. 

In articulo mortis, at the point of death. A declaration made 
by a person in articulo mortis as to the cause and circumstances of 
liis death is admissible as evidence on the trial of a person who is 
charged with his murder or manslaughter (Ordinance 72 of 1830 
(C.C), sec. 43 ; Proclamation 16 of 1902 (T.), sec. 43 ; Taylor on Evi- 
dence, sees. 714 et Seq.). To ensure the admissibility of the declaration 
it is necessary that the declarant .should have been in actual danger 
of death, that he should have been fully conscious of his danger, and 
that death should have actually ensued {State v. Dyer, 4 S.A.E. 291 ; 
R.v.Le Roux, 14 S.C. 424; Rex v. Abdul and Others, [190-5] T.S. 
119: Rex v. Rolston, [1907] T.S. 681). 

In camera, in chambers; privately; with closed doors. All pro- 
ceedings in connection with the hearing of an action must be carried 
on in open court (Charter of Justice (C.C.),-sec. 32; Proclamation 14 
of 1902 (T), sec. 18; Ordinance 4 of 1902 (O.R.C.), sec. 22). It 
would appear that the terms of these statutes will not permit of 
an application being granted to have the evidence of a case heard 
in camera on the ground that it is of such a nature that publicity 
should be avoided ( W v. W, 7 S.C. 104). 

In curia, in the court. 

In diem. The creditor or debtor in an obligation which is due, 
but not yet exigible, is called a creditor or debtor in diem. See Dies 

CEDIT. 

In dubio, in doubt ; in a doubtful case. 

In emptis et venditis potius id quod actum quam id quod 
dictimi sequendum est, in purchase and sale that which has been 
done rather than that which has been said is to be followed. For 



IN 275 IN 

example, if there is uo clear evidence of an agreement to give credit 
to a purchaser, ' and only accessories of the things sold have been 
delivered to him, while the things themselves remain in the pos- 
session of the seller, the property cannot be held to have been 
delivered on credit so as to transfer the ownership to the purchaser. 
In such a case that which lias been done rather than that which has 
been said is to be followed [Friis v. British United Diamond Mining 
Co., 7 S.C. 17). According also to this maxim the real transaction of 
the parties will be looked to, and not what they called it. Thus, 
where A wished to purchase a portion of a piece of laud, and B would 
only sell the entire land, and in order to avoid payment of transfer 
duty on the whole of the land A guaranteed to B the sale of the entire 
land in whole or in lots to one or more pui'chasers for the sum of 
£9000, retaining the sole control of such sale or sales, and for tiiat 
purpose received from B an irrevocable power of attorney " granting 
him the fullest power over the said property so as to enable him to 
deal with it as he thinks fit"; and A further guaranteed the payment 
of interest on the said sum of £9000, or so much thereof as should 
remain due, and undertook that if the land should remain unsold in 
whole or in part after a certain date he would be bound to take it 
over for £9000 or to pay the balance still unpaid, it was held by the 
Privy Council, reversing the decision of the Supreme Court of Cape 
Colony, that as the transaction was to give B every right which a 
seller could claim and A every right which a purchaser could demand, 
the word '' guarantee " could not disguise its real nature as a sale, and 
that A was liable to pay transfer duty {Treasurer- General v. Lippert, 
2 S.C. 172). 

In esse, in being ; iu actual existence, as opposed to in posse, that 
which may, but at present does not, exist. 

In extenso, at full length. 

In extremis, at the point of death. .SVe In aeticulo mortis. 

In forma pauperis, see Forma pauperis. 

In foro conscientiae, in the court of conscience. 

In foro seculari, in a secular or civil court. 

In gremio, in the body of. Any clause, term or condition con- 
tained in a deed or writing is said to be in gremio of the deed or 
writing. 

In hoc statu, in this position ; as matters now stand. 

In infinitum, without limit ; for ever. 

In initio Utis, at the beginning or outset of the suit. See In 

UMINE LITIS. 

s2 



IN :i76 IN 

In limine (or in initio) litis, at the outset of tlie suit. All 
exceptions and special pleas of which a defendant intends to avail 
himself should be raised by him in limine before pleading over on 
the merits of the action. 

In lineas, in or according to lines ; a form of intestate succes- 
sion in vv'hich the estate of the deceased person is divided into two 
equal portions, one going to the relations on the side of the father 
and the other to those on the side of the mother of the deceased. 
This takes place upon failure of descendants, parents, brothers and 
sisters and their descendants. 

In loco parentis, in tlie place of a parent. Those who have been 
entrusted by the parents with the custody and control of children 
under age are said to stand in loco parentis to the children. Where 
a person carries a child out of the possession of such custodians 
without their consent for the purpose of marriage or from motives 
of lust, he will be guilty of the crime of abduction just as if he had 
carried the child out of the possession of the parents themselves 
{Queen v. Wilder7nan, 6 S.C. 295). 

In nomine, in the name (of). 

In obscuris minimum est sequendum, in matters of doubt the 
least doubtful view is to be followed ; a maxim of Roman law {Digest, 
50, 17, 9). Thus in an action for the value of a thing or for damages, 
the court, where the evidence is conflicting, will adopt as a rule the 
lowest measure of damages, in accordance with the above maxim 
{Emslie v. African Merchants, Ltd., [1908] E.D.C. at p. 95). 
See AcTORi incumbit onus probandi. 

In omnia paratus, prepared for all things. 

In pace, in peace. 

In pari casu, in an equal or similar position. 

In pari causa melior est conditio possidentis, in an equal 
case {i.e. where both parties have an equal title) the possessor is in 
the better position. As possession of a subject is a good title against 
all not having a better title, lie who is in possession is not bound to 
give up possession to another who has only an equal title. Thus a 
hond fide purchaser who has lost possession cannot recover from 
anotiier who after such loss of possession purchased hond fide (Voet's 
Comm. 6, 2, 6). This maxim is variously rendered, In aequali jure 
inelior est conditio possidentis (where the right is equal the possessor 
is in the better position) and In pari causa, possessor potior haberi 
debet (in an equal case the possessor ought to be considered the 
stronger). 



IN 277 IN 

In pari delicto potior est conditio possidentis vel defend- 
entlS, in equal delict the position of the possessor or defendant is 
the stronger. Wliere money or property has been given or promised 
by one person to anotlier for an immoral or illegal purpose the 
law will not assist a claim for its recovery at the instance either 
of him who has handed it over for the improper purpose or of him 
who, having performed the illegal or immoral act, demands the pro- 
mised reward (Van Leeuwen's Comm. 4, 14, 4; Voet's Gomm. 12, 5, 2). 
Thus no action lies for the recovery of money wliich has been lost 
or won in gambling, for the possessor is in the stronger position 
whether lie be the loser who has not yet parted with his money or 
the winner who has received payment of his gains {Sonnenberg v. 
Flower, Buch. 1875, p. 4; Lucas v. Reston, 1 Kotze, p. 45). In 
the same way, as prize-tigliting is illegal, if two persons agree to 
meet each other and each hands over his portion of the stake to a 
third party, the loser cannot, upon the stake being paid over to 
the winner, maintain an action for the recovery of his money (Clarke 
v. Bruning, [1905] T.S. 295). 

In perpetuum, for ever. 

In persona, in person. 

In pleno, in full. 

In poenalibus causis benignius interpretandum est, in penal 
matters a more liberal interpretation is to be adopted. " No doubt it 
is a rule botli of English law and of our own that a penal enactment 
is more strictly construed than a remedial one. The observation of 
Paulus, In poenalibus causis benignius interpretandum est (Dig. 50, 
17, lex 155) is a just and sound one, for it imports that where the 
language is obscure or ambiguous the court should give the benefit of 
the doubt in favour of the defendant or of the accused. That is clear 
from what Gaius observes in lex 56 of the same title of the Pandects, 
and is a well-recognised principle of universal recognition. But tiie 
strict interpretation, in a sense more favourable to the defendant or 
the accused, is only permissible where the circumstances will justifj?- 
its application. It must not be stretched or extended beyond that. 
It cannot be applied in order to vary the plain and clear language of 
the legislature in framing the Act, and induce us to give an interpre- 
tation at variance with the obvious intention " (per KOTZIE, J.P., in 
Moss v. Sissons and McKenzie, [1907] E.D.C. at p. 167). 

In posse. See In esse. 

In potestate parentis, under the power or authority of a parent. 

In praesenti, at tlie present time. 

In propria causa, in one's own suit. 



IN 278 IN 



In propria persona, in one'w own person. 

In quantum lucratus est, to the extent to which he has profited 
or benefited. Minors who enter into contracts without the assistance 
of their guardians are liable on such contracts only to the extent to 
which they have benefited thereby. So under the Roman-Dutch law 
an heir who adiated with benefit of inventory was liable for tVie debts 
of the deceased only in so far as he had profited by the succession, 
just as now an executor to whom letters of administration have been 
granted is liable for the debts of the estate of the deceased only to 
the extent of its assets. 

Jn re, in the matter of. 

In rem suam, in one's own affair ; regarding one's own interest. 
A procurator in rem suara is an agent who has been appointed with 
regard to a matter which it is his interest or advantage to carry out. 
According to Voet {Coram. 17, 1, 17), where a person is appointed a 
procurator- in rem suam and action is ceded to him, his mandate is 
irrevocable, that is, it neither falls by death nor can be recalled by the 
mandant. In Marcus' Executor v. Maclcie, Dunn & Co. (11 E.D.C. 33) 
it was laid down that the principle that an authority coupled with an 
interest is irrevocable applies only to cases where the authority is 
given for the purpose of being a security. (See also Koch v. Mair, 
N.O., 11 S.C. 83; Fick v. Biermxin, 2 S.C. 35; Natal Bar,k, Ltd., v. 
Natoi-p and Registrar of Deeds, [1908] T.S. 1016). 

In rerum natura, in the nature of things. 

In rixa, in a quarrel or brawl. As the essence of slander is the 
o.nimus injuriaiuii, or intent to injure, defamatory words spoken in 
rixa and under the impulse of anger {ah irae im/petu) are not action- 
able. It is, however, for the defendant to show by evidence of provo- 
cation that the words were uttered by him while in a state of anger 
{per De Villiers, C.J., in Wilhelm v. Beamish, 11 S.C. 15; Foxcroft 
v. Meiring, [1907] E.D.C. 113). 

In solidum, for the whole. Where several debtors have bound 
themselves in solidum they may be sued separately for the whole 
debt, but in the absence of any special agreement to that effect 
each is liable only for his pro raid share {Alcock v. Du Preez, 
Buch. 1875, p. 132). The same applies to the liability of joint con- 
tractors for the non-fulfilment of an indivisible obligation, i.e. if 
they have not agreed to be liable in solidum they are only liable 
each for his own portion of the secondary obligation of damages 
into which the primary obligation is converted, for although the 
latter obligation is indivisible the damages are divisible {Henwood 
cfc Co. V. Westlake & Coles, 5 S.C. 341). 

In solutum, in payment or satisfaction. 



IN 279 IN 

In statu quo ante, in the condition in which it was before. 

In subsidium, in aid of. A debtor under an accessory obliga- 
tion, who cannot be sued unless the principal debtor has been excussed 
or is manifestly unable to pay, e.g. a surety who has not renounced 
the benefit of order or excussion, is said to be liable in subsidium 
of the principal debtor. 

In tali conflictu magis est ut jus nostrum quam jus aUenum, 
servemus, in case of such conflict (of laws) it is preferable to observe 
our own rather than a foreign law. As one State recognises the 
law of another State only from comity and considerations of mutual 
interest, it is not bound to grant such recognition where the foreign 
law is contrary to its own law or policy or would prejudice the interests 
of its own subjects {Paterson's Marriage Settlement Trustees v. Pater- 
son's Trustees in insolvency, Buch. 1869, at p. 111). 

In terrorem, by way of warning or intimidation. 

In testimonium, in testimonj-. 

"In the event." "The use of the phrase in the event seems to 
imply tliat the thing may or may not take place ; perhaps one might 
even go so far as to say that it implies that in the normal course it 
would not take place " {per LAURENCE, J.P., in Eastern OAid S. A. 
Telegraph Co. v. Capetown Tramways Co., 17 S.C. at p. 117). 

"In the presence" "of two witnesses, has been construed as 
meaning the actual visual pre.sence" (Maxwell's Interpretation of 
Statutes, 4th ed. p. 10). 

In totidem verbis, in so many words. 

In toto, altogether ; entirely. 

In transitu, in transit; in course of conveyance. The right of 
stoppage in, transitu, a doctrine of English law which has been 
adopted by Cape Colony (General Law Amendment Act, 8 of 1879, 
sec. 1), is the right of an unpaid seller who has delivered goods to a 
carrier for conveyance to the purchaser to recover possession of the 
goods so long as they have not yet reached the purchaser's hands. 
The right can be exercised only where the buyer has become insolvent, 
but is competent whether che sale was for cash or on credit (Truter v. 
Jaicbert's Trustee, 16 S.C. 376). 

In utero, in the womb; not yet boi-n. Although a child in the 
womb is generally regarded as only a part of the mother (portio 
mulieris), yet in all matters where its own interest is concerned it 
is treated by law as already born, i.e. as a persona, upon the maxim 
Nasciturus pro jam nato hahetur quoties de commodo ejus agitur 
(A child about to be born is considered already born in all matters 



IN 280 INOENDIUM 

which are to its advantage.) Tims, in the Roman law a father in 
making his will had to appoint a tutor or tutors not only for his 
children already born, but also for a child that might be born. 
Further, he had to disinherit or institute as heirs in his testament 
nascituri. otherwise the testament would be rendered invalid upon 
the subsequent birth of a child. So, if a man died leaving a widow 
who was pregnant, the agnates of the deceased were excluded from 
the succession so long as there was any possibilty of a child being 
born to the widow. In the Roman-Dutch law the institution of heir 
might be set aside if to the testator a posthumous child was born 
of whom no mention was made in the testament (Grotius' Introd. 
2, 18, 10; Van Leeuwen's Gomm. 1, 8, 46). Since, however, the aboli- 
tion of the legitimate portion throughout the Soutli African colonies 
a testament is no longer avoided hy the passing over of children, 
whether born or unborn. 

In the same way, if a person should die before the birth of a 
child who may be entitled to succeed him, the estate will have to 
be administered for the benefit of the unborn child until the time 
when it is born or until it is clear that no such child will be born 
(Voet's Gomm. 28, 5, 12). 

In utroque jure, in both laws, i.e. the civil and the canon 
law. 

Inaediflcatio, building; a form of acquiring ownership by 
accessio, or the acceding of one thing to another. See Aedificium 

SOLO CEDIT. 

Inaediflcatio solo cedit, building accedes to the soil. See Aedi- 
ficium SOLO CEDIT. 

Inalienable, incapable of being sold, ceded or transferred. 

Inalienable things " are those which belong to a person in such 
a manner that thej' cannot in any way be acquired by another : and 
this whether- they are altogether extra comvierciuvi, as the air, the 
sea; or only in a particular sense, as those things the alienation and 
disposal of which have been prohibited by the laws, or by the will of 
the previous owner, such as fideicommissary and mortgaged property " 
(Van Leeuwen's Gomm. Kotze's trans, vol. 1, p. 153). 

Inboorlingen (D.), aboriginal natives. 

Inbreng (D.), collation. 

Incapax doli, incapable of wrong-doing. See Capax doli. 

Incendium, arson or incendiarism ; the crime of setting fire to 
property with the intention to injure others. While incendium 
applies to immovable property generally, it is doubtful whether it 
includes movables, but a person setting fire to these may certainly be 



INOENDIUM 281 INCOME 

indicted for malicious injury to property {R. v. Enslin, 2 App. Cas. 
•69). Ifc is essential to tlie crime that there should be an intention to 
injure another. Accordingly if a person sets fire to his own house or 
to^ tiiat of his wife where he is married in community of property, 
without intending that the fire should cause injury to another, he will 
not be guilty of incendium {R. v. Van Vliet, 9 S.C. 273). Bat setting 
fire to one's own property will be criminal if it has been done with the 
object of defrauding an insurance company. 

Incest " is tlie sexual union of two persons wlio cannot inter- 
marry, because they are too nearly related by blood or affinity, whetlier 
this union takes place in the form of marriage or without it" (Van 
Leeuwen's Comrn. Kotzes trans, vol. 2, p. 308; see also Rex v. 
Delport, 18 S.C. at p. 360, where this subject was fully discussed, and 
Van Leeuwen's definition was approved ; see also Queen v. Piet 
Arends, 8 S.C. 176). According to the Native Territories' Penal Code 
■(Act 24 of 1886 (C.C), sec. 123) "incest is the carnal connection of 
persons related by consanguinity within the third degree." 

Incestuous marriage, a marriage between two persons wlio are 
related together witiiin the degrees within whicli marriage is by law 
proliibited. Under Roman law marriages forbidden by public morals 
{moribus, jure genti^om) were deemed incestuous (Roby's Private 
Roman Law, vol. 1, p. 129). 

Inchoate, incipient; incomplete. As to completing inchoate bills 
■of exchange, see Bills of Exchange Act, 1882 (Eng.), sees. 12 and 20; 
Act 19 of 1893 (C.C), sees. 10 and 18; Proclamation 11 of 1902 (T.), 
sees. 10 and 18 ; Law 8 of 1887 (N.), sees. 11 and 19 ; Ordinance 28 of 
1902 (O.R.C.), sees. 10 and 18. 

Inchoate instrument, an agreement, bill, or other document that 
is not completely formed. 

Incola, an inhabitant; the term applied to a litigant who resides 
within the country, as opposed to a peregrinus, one who resides 

■elsewhere. All except incolae must give security before they can 
sue, unless they have immovable property of sufficient value within 

■the jurisdiction {WitJiain v. Venables, 1 Menz. 291; Lumsden \^. 
Kaffrarian Bank, 3 S.C. 366). "It is very difficult precisely to define 
what was intended by the word incola, but the authorities cited 

-showed that a person who is a foreigner and who is in the colony for 
a temporary purpose, and does not intend permanently to reside 

■within the jurisdiction of the Court, must, before lie can sue in 

•court, give security" {per Buchanan, J., in Gordon v. Berliner, 

13 S.C. 300). See Peregrinus. 

Income, the payments, rents and profits to which a person or 
'Corporation becomes entitled or receives for services rendered, invest- 
ment of capital, rents of land or the like, either at stated periods or 
-annually. 



INCOME 282 INCORPOREAL 

In the Cape Additional Taxation Act (36 of 1904), see. 42, the 
term income is defined to mean " any gains or profits derived or 
received by any company or person in any year or by any means 
from any source within this [Cape] Colony, and includes profits, 
gains, rents, interest, salaries, wages, allowances, pensions, stipends, 
charges, annuities, and all profits derived from raining or quarrj'ing." 
See Ordinance 18 of 1907 (O.R.C.), sec. 1. 

Income tax, a tax levied in England and some colonies by 
statute upon the incomes of pei'sons and corporations exceeding a 
certain amount. In the Cape Additional Taxation Act (36 of 1904), 
sec. 42, income tax is defined to mean " the tax or duty imposed or 
charged in respect of income as assessed under this Act, or any Act 
amending the same." 

Inconvertible currency. See Inconvertible Paper. 

Inconvertible paper. " Speaking briefly, any system of incon- 
vertible notes is bad, and should only be resorted to in the divest 
national extremity. . . An issue of inconvertible paper, that is, 
paper money the payment of which in gold or silver cannot be legally 
enforced, may retain its value and perform all the functions of money 
so Idiig as its amount is restricted, but experience shows that the 
power of issuing an inconvertible currency can rarely be used in 
moderation for any length of time, and that the temptation to abuse 
the power of issue is so great as to be almost irresistible" (Sykes on 
Bavking and Currency, 2nd ed. p. 59 ; see also ibid. pp. 65 et seq.). 

Incorporated accountant. It has been held in England (Society 
of Accountants and Auditors v. Goodway and Another, [1907] 1 Cli. 
489 ; 23 T.L.R. 286) that the designation incorpoi^ated accountant was 
a faiicj' and not a descriptive term, and had come to denote member- 
ship of the Society of Accountants and Auditors, and that therefore 
the unauthorised use of it inflicted an injury on that society, which 
entitled it to an injunction. See Accountant. 

Incorporated La"w Society, a society of attorneys incorporated 
by statute for the purpose of exercising general control over the 
admission and conduct of attorneys, notaries and conveyancers. 
There are incorporated law societies in the Cape Colony, Natal, 
Transvaal, and Orange River Colony. 

Incorporeal, being of an intangible nature ; not having a material 
body, such as legal rights. 

Incorporeal chattels, the term applied in English law to things 
which have only an ideal existence, such as debts, shares in companies, 
patents and cop^^rights, otherwise called choses in action; as opposed 
to corporeal chattels, which are styled choses in possession (Goodeve's 
Personal Property, 4th ed. p. 1). These terms are rarely used in 
South Africa. 



INCORPOREAL 283 INDENTURE 

Incorporeal hereditaments, an English law term, signifying 
"mere rights to or over land, which is in another's possession. For 
example, a right to enjoy land in fee upon the determination of the 
interest of another, who is in possession thereof for his life or for a 
term of years, is a mere right regarded in law as an incorporeal thing " 
(Williams on Real Property, 20th ed. p. 31). 

Incorporeal things " are such as are not tangible, in other words, 
which are incapable of physical po.ssession ; and they consist in rights 
' of which exercise is the proof ' " (Nathan's Common Law, sec. 530). 
Grotius {Introd. 2, 1, 14) says: "Incorporeal things ens such as are 
not visible to the sense, as a right of way over land, for though the 
land is corporeal, the right of waj' is not." Holland, in his Jurit<- 
prudence (10th ed. p. 99), writes : " Intellectual or artificial things, 
.'bios gedachte diiige,' 'res incoijyorales' ' qiuie tangi non possunt,' 
' quae in jure consistunt ' ; as a usufruct, a hereditas, a dos, a 
peculium, an obligation ; where the ipsum jus is incorporeal, though 
it often relates to corporeal objects. This class might of course in- 
clude all Rights, though as a matter of fact the Roman lawyers abstain 
from treating under it of dominium. German writers express the 
idea b}' the term rechtsgesamiatheit. It will be observed that some 
' things ' of this class are aggregates of duties as well as of rights ; 
e.g. a hereditas, which imposes on the heir liabilities as well as profit; 
and that modern civilisation has added to the class those groups of 
rights known as 'copyright,' 'patent right,' and the like, and col- 
lectively described as ' intellectual property.' " See E,v parte Master 
of the Supreme Court ([1906] T.S. at p. 566). 

Incumbrance. See Encumbkance. 

" Incur habiUty," see Federal Supply and Cold Storage Co. v. 
Schultze (& Fly (27 N.L.R. at p. 89). 

Indebiti SOlutio, the payment of that which is not due. Money 
paid under a mistake of fact and not of law may be recovered. See 

CONDICTIO INDEBITI. 

Indecent assault. See Rape. 

Indefeasible, that cannot be set aside or made \'oid. 

Indemnity, an undertaking securing a person from loss ; .security 
given as compensation for, or guarantee against, damage, injury or 
expense that may be incurred by a person who is acting, or has acted, 
for another ; an exemption from liability. 

Indent, a commercial expression signifying a written order for 
goods sent bj'^ a merchant to another merchant or manufacturer. 

Indenture, an English legal term signifying a deed made between 
two or more parties. In South Africa indentured means that a person 
has been bound to 'another to serve him as apprentice or servant. 



INDHLUNKULU 284 INDORSEE 

Indhlunkulu, a native term signifying tlie gi-eat house. A term 
used ill the Natal Code of Native Law (Law 19 of 1891, sec. 19 of 
sch.) to denote tlie ctiief house in a native kraal. 

Indictment, a formal charge or complaint preferred against an 
accused person by or on behalf of the Crown, and upon which the 
accused is brought to trial before a jury. Two elements are essential 
to an indictment: (a) it should contain allegations which, if proved, 
would constitute the crime with which the accused is charged; and 
(6) it should set out the particulars of the offence in such detail as to 
enable the accused to know the case he has to meet {Rex v. Sckapiro 
and Saltman.. [1904] T.S. 355). 

By the Criminal Law Amendment Act (4 of 1861) of tlie Cape 
Colony it is provided that in the construction of that Act the word 
ijtdictment shall be understood to include any charge or complaint in 
any court of resident magistrate or in any other court, and also any 
plea, replication or other pleading. See Van Zyl and Another v, 
Graaf (24 S.C. at p. 75). 

As to indictment in Natal, see Law 16 of 1861, sees. 8 et seq.; in 
the Transvaal, Ordinance 1 of 1903, sees. 114 et seq. ; in the Orange 
River Colony, Ordinance 12 of 1902 (O.R.C.), sec. 76. 

"Indirectly." Tliis term was discussed in Van Niekerk v. BUh 
(10 S.C. 43) in connection with a contract in which the words "shall 
not directly or indirectly sell," &c., appeared. 

Indorsee. " The term indorsee is used to denote not only the 
person to wlioin a bill is specially indorsed, but also tlie bearer of a 
bill indorsed in blank, i.e. any person who makes title to a bill through 
an indorsement" (Chalmers' Bills of Exchange, 6th ed. p. 6). 

Indorsement, a signature or other writing on the back of a 
document. In the Bills of Exchange Acts indorsement means an 
indorsement completed by delivery (sec. 2 of English Bills of Excliange 
Act, 1882 ; see also Act 19 of 1893 (C.C), sec. 1 ; Law 8 of 1887 (N.), 
see. 1; Proclamation 11 of 1902, sec. 1; Ordinance 28 of 1902 (O.R.C.), 
see. 1). See Restrictive Indorsement. 

Indorser primarily denotes the holder of a bill who indorses it, 
but the term is also used to denote any person who backs a bill with 
his signature, and thereby incurs the liability of an indorser (Chalmers' 
Bills of Exchange, 6th ed. p. 6). Where a person signs a bill other- 
wise than as drawer or acceptor, he thereby incurs the liabilities of an 
indorser to a holder in due course (sec. 56 of English Bills of Exchange 
Act, 1882 ; sec. 54 of Cape Bills of Exchange Act, 1893 ; sec. 5-5 of 
Natal Bills of Exchange Law, 1887 ; sec. 54 of Rhodesian Bills of 
Exchange Regulations, 1895 ; sec. 54 of Transvaal Bills of Exchange 
Proclamation, 1902; sec. 54 of O.R.C. Bills of Exchange Ordinance, 
1902). It is also provided in the Bills of Exchange Acts that the 
indorser of a bill by indorsing it (a) engages that on due presentment 



INDORSEE 285 INDUSTRIAL 

it shall be accepted and paid according to its tenour, and tliat if it be 
dishonoured he will compensate the holder or a subsequent indorser, 
wlio is compelled to pay it, provided that tlie requisite proceedings on 
dishonoui- be duly taken ; (6) is precluded from denying to a holder 
in due course tlie genuineness and regularity in all respects of the 
drawer's signature and all previous indorsements ; and (c) is pi-ecluded 
from denying to his immediate or a subsequent indorsee that the bill 
was at the time of his indorsement a valid and subsisting bill, and 
that he had then a good title thereto. See Act 19 of 1893 (C.C), 
sec. 53 (2); Natal Bills of Exchange Law, 1887, sec. 54; Rhodesian 
Bills of Exchange Regulations, 1895, sec. 53; Transvaal Bills of 
Exchange Proclamation, 1902, sec. 53; Orange River Colony Bills of 
Exchange Ordinance, 1902, sec. 53. 

Induciae, days of grace allowed for the performance of a legal act, 
e.g. the number of days allowed to a defendant to appear in answer to 
a plaintiff's summons. 

Inductie (D.), a technical term in the judicial practice of Holland, 
signifying a remedy permitted to a defendant whereby he was entitled 
to apply to the High Court for an order directing that his creditors 
should be summoned before the court to show cause why payment of 
his debt should not be delayed upon his giving proper security. See 
Van der Linden's Institutes, 3, 1, 7, 4; Brieven van inductie. 

Industrial dispute, in the Industrial Disputes Prevention Act, 20 
of 1909 (T.), sec. 2, means, "Any dispute or difference between an 
employer and any of his employees in relation to («) matters affecting 
work done or to be done by such employees ; or (6) rights, privileges, 
or duties of employers or employees, not involving such a violation 
thereof as would constitute a criminal offence ; or (c) the wages, 
allowances or other remuneration of employees, or the price paid or 
to be paid to them in respect of their employment ; or (d) the hours of 
employment, the qualiffcation or status of employees, and the terms, 
conditions and manner of their employment ; or (e) tiie employment 
of any persons or class of per.sons, or the dismissal of, or refusal to 
employ, any particular persons or class of persons ; or (/) claims on 
the part of an employer or any employee that preference should be 
given, or not be given, to one class of persons over another class of 
persons (whether as members of a trade-union or not, as British sub- 
jects or aliens, or as white or coloured persons), and the circumstances 
under which such preference, if allowed, should, or should not, be 
given ; or (g) materials supplied and alleged to be bad, untit, or 
unsuitable, or damage alleged to have been caused to work ; or (/i) any 
custom or usage recognised, whether generally or in a particular 
district, or on particular industrial premises; or (i) the interpretation 
of any agreement between an employer and employee, or a portion 
thereof." 

Industrial fruits (fructus ittdustriales), fruit or crops that are 
produced by the aid or labour of man. 



INEBRIATE 286 INFRINGEMENT 

Inebriate. In the Cape Inebriates Act (32 of 1896), sec. 2, the 
term inebriate is defined to mean "a person who, though not by law 
subject to be declared a lunatic, is notwithstanding by reason of 
habitual intemperate drinking of intoxicating liquor, or habitual 
intemperate use of anaesthetics or narcotics, at times dangerous to 
himself or others, or incapable of irtanaging himself or his affairs." 

Infamous, having a notoriously bad reputation ; detestable. 

Infanticide, child murder; the killing of an infant, whether 
newly born or still wi wte.ro. See Nathan's Common Law, sec. 2627. 

Infants. " The word infants is not in ordinarj' parlance confined 
to children of very tender age. If one looks at its derivation etymo- 
logically it would apply to children so long as they are not able to 
articulate distinctly — not able to speak — and nobody would hesitate 
to refer to children, I should say, at least under two years of age as 
infants, just as much as they would to children under .six months of 
age " (per Lord Herschell, L.C, in White v. Mellin, [189.5] A.C. 157). 
In the Transvaal Infant Life Protection Act (24 of 1909), sec. 1, infant 
means a child under the age of seven years. 

Infected, tainted with disease or the germs of disease. For a 
definition of the term infected as {a) applied to a flock of sheep, 
and (h) as applied to sheep, see the Cape Scab Act (20 of 1894), 
sec. 4 See al.so Ordinance 14 of 1903 (O.R.C.), sec. 1. 

Infectious disease, in the Orange River Colony Public Health 
Ordinance (31 of 1907), sec. 25, comprises "any of the following 
diseases, namely — plague, cholera, leprosy, tuberculosis, small-pox, 
amaas, varicella (or chicken-pox), diphtheria, erysipelas, puerperal 
septicaemia, scarlatina (or scarlet fever), dysentery, and the fevers 
known by and of the following names — typhoid (or enteric), puer- 
peral, undulant (or Malta) fever, and such other diseases as the 
Governor by notice in the Gazette or the local authority by reso- 
lution may from time to time declare to be infectious diseases within 
the meaning of this part of this Ordinance within any district or part 
of the colony." 

Inferior courts, courts the jurisdiction of which is limited by 
statute and is below that of the superior courts. Inferior courts are 
subject to superior courts, and, generally speaking, are presided over 
by resident magistrates. See Superior Courts. 

Informer, a person who gives information as to the conunission of 
a crime ; generally a person who gives such information in the expec- 
tation, or on the promise, of some remuneration or reward. 

Infringement. " The infringement of a patent is the doing of 
that which the patent prohibits from being done" (Terrell on Patents, 
4th ed. p. 274). 



INGQUTU 287 INHIBITIE 

Ingqutu. See Unqoliso. 

Inhabiliteit van een procureur (D.), unskilfuluess of an 
attorney. It was a species of dilatoire exceptie that could be pro- 
posed in Dutch practice before as well as after litis contestatio. Its 
equivalent in Latin was the exceptio procuratoris inhabilis. 

Inhabitant, one who dwells or resides in a place. " The question 
is whether Mr. Dipstaple is an inhabitant householder. It is a mere 
question of fact whether he is or not. In all these cases it is a ques- 
tion of degree. There is no precise line to be drawn. A person may 
inhabit a place without sleeping there, and he may sleep there with- 
out inhabiting it. The fact that a person sleeps in a place is generally 
a very important ingredient in deciding whether he inhabits it, but it 
is not conclusive" (Dipstaple's Case, L.R 4 Q.B. 114). Where the 
applicant had only an office in a certain ward, and there was no 
evidence that he lived in his office, the court held that he was not an 
uihahitant of that ward (Rogers v. Hancock, 1 Off. Rep. 67 ; see also 
Maxwell's Interpretation of Statutes, 4th ed. p. 93). 

Inheemsch, Inheimsch (D.), inland, native. Uitheemsch, foreign. 

Inherent, inseparable ; existing as an element of something. 

Inherent vice, "some fault or defect latent in the thing itself, 
which by its development tends to the injury or destruction of the 
thing carried" (Disney's Carriage by Raihvay, p. 7). 

Inherit, to succeed to an ancestor by virtue of descent; to have 
the i-ight of succession either as to a part or the whole of the estate of 
a deceased person. 

Inheritance. " An inheritance is the net balance of the estate of 
a deceased person which is left after the debts and legacies have been 
paid, and which has to be handed over by the executor to the heir" 
(Maasdorp's Institutes, vol. 1, p. 104). It is thus defined in Nathan's 
Coinmon Law (p. 729) : " An inheritance is that collection of posses- 
sions, real and personal, movable and immovable, which belonged to a 
deceased person, and which has not yet been taken into possession, by 
way of ownership, by any living person." Inheritance is either by 
last will or ab intestato. 

"Inheritances and legacies" is an expression used in chapter 68 
of the Orange River Colony Law Book, where it is understood to mean 
"all such portions which devolve on persons according to law, either 
by will or intestacy, from the estates of their deceased relatives in the 
ascending, descending and collateral lines, as well as all testamentary 
inheritances or legacies of money or other property to persons who 
are not related by blood to the testator." 

Inhibitie (D.), inhibition ; a clause inserted in a petition for the 
prosecution of an appeal, addressed to a superior court in Hollandj 



INHIBITIE 288 INJURY 

and having for its object the prevention of any steps being taken 
in the action pending the appeal. See Van der Linden's Institutes, 
3, 1, 6, 5 ; Van Leeuwen's Comin. 5, 25, 2. 

Initial, placed at the beginning; the first letter of a name. See 

Sign. 

Injunction. An English law term. 'An injunction was under 
the old procedure a writ i.ssuing by order and under sea! of the Court 
of Chancerj^ A writ of injunction may be described as a judicial 
process whereby a party vyas required to do a particular thing or to 
refrain from doing a particular thing according to the exigency of the 
writ. . Under the present procedure no writ of injunction is 'to 
issue. An injunction is by judgment or order, and such judgment 
or order has the effect which a writ of injunction previously had" 
(Kerr on Injunctions, 4th ed. p. 1). See Interdict. 

Injuria, injury; injurie(D.). "The word injuria is derived from 
the word jus (right), and implies a negation of that which is denoted 
by the latter word. In its original and more general sense, therefore, 
it siguitied any infraction of right or wrongful or illicit act. As a 
term of law it is, however, as a rule, used in either of the two follow- 
ing senses : firstly, in the expression damnum injuria datum, damage 
done to or in respect of property, means or prospective gains (patri- 
monial loss), the term ivjuria relates to an unintentional, or not 
neces.sarily intentional wrong, and is considered to be used as signify- 
ing an act due to negligence or fault {culpa) ; and, secondly, in its 
most usual .sense when standing bj' itself, it expresses an unlawful, 
vexatious and intentional act of one person whereby another is 
assailed in respect of his absolute rights of personality " (De Villiers' 
Law of Injuries, p. 21). 

Injuria non excusat injuriam, one wrong does not justify or 
excuse another wrong. See Ix EIXA ; Retorsio INJURIARUM. 

Injuria sine damno, injury without damage. Where an action 
is brought for an injuria, not committed under circumstances amount- 
ing to contumelia, or insult, the action being solely for damage.?, and 
not to establish any right which has been violated by the injuria, the 
plaintiff must prove that he has actuallj- sustained some damage; in 
the absence of .such proof he will not be entitled to nominal damages 
{Edwards v. Hyde, [1903] I'.S. 381 ; Steenlcum'p v. Juriaanse, [1907] 
T.S. 980). 

Injury, the violation of a right or legal duty to the prejudice of 
another person. In the Native Territories' Penal Code (Act 24 oi 
1886 (C.C.), sec. 5 {g)) it is provided that " the word injury denotes 
any harm whatever illegally caused to any person in mind, reputation 
or property." 

See Hurt v. Cohen (16 S.C. 363); Injuria. 



INMATES 289 INNS 

Inmates, persons dwelling in or occupying a dwelling or place. 
In the Natal Code oi Native Law (Law 19 of 1891, sec. 15 of sch.) 
inmates is, when used in connection with a kraal, defin ^d to denote 
" the persons usually residing therein, and subject to the kraal head." 

Inner Temple, one of the Inns of Court. See Js^is OF Court. 
In common with the other three Inns it is the resort oi' students not 
only from the Universities of Oxford, Cambridge and others, but also 
from all portions of the British Empire, for the purpose of studying 
law and being called to the Bar. It is said to have now the largest 
membership of all the Inns. The library attached to this Inn is 
excellent, and so are all the arrangements connected with it. 

Innkeeper, one who keeps an inn or hotel. In the origiual Roman 
sense the word " inn " " was limited to houses of refreshment only, but 
in modern usage these houses are employed for the purpose of pro- 
viding lodging as well as board " (Nathan's Common Law, sec. 1058). 
As to liability of innkeepers, see Nathan's Common Law, sees. 1059 
et seq. 

Innominate, having no name. " When an agreement did not 
take the shape of any of the ten forms of contract recognised in the 
civil law, it was, strictly speaking, not a contract at all ; but if one 
party to it had executed it, the praetor would force the other party to 
execute it also. These contracts, as having no special name, have 
been termed contractus innominati, and as the contract sprang into 
existence by a tiling having been done or given, by the fact, that is, of 
the contract being already executed by one party to it, tliese con- 
tractus innominati may be looked on as belonging more immediately 
to the head of contracts made re " (Sandars' Institutes of Justinian, 
12th ed. p. 322). 

Inns of Court. There are in England four /71ns of Court, 
viz., Lincoln's Inn, Inner Temple, Middle Temple, and Gray's Inn. 
Formerly there were several others attached to the principal Inns, 
such as Clifford's Inn, Clement's Inn, Sergeants' Inn (from which 
the judges were selected), Old Sergeants' Inn, New Inn and Staple 
Inn. The Inns of Court are of ancient origin ; they are voluntary, 
self-governed societies possessing the exclusive privilege by pre- 
scription of admitting persons to practise at the Bar. Each Inn is 
governed by a bench of masters, who are called Benchers. They have 
control over the morals and conduct of the members, and they may 
disbar any member on sufficient cause shown. Applications are made 
to the Benchers by students who desire to be called to the Bar. The 
Benchers may refuse to call a member to the Bar. They may like- 
wise disbar a member, in which case an appeal lies to the judges. See 
H. Bellot, The Inner and Middle Temple : History and Antiquities 
of the Inns of Court and of the Nine Inns of Chancery, Lond. 1780 ; 
W. Herbert, Antiquities of the Inns of Court and Chancery, Lond. 
1804 ; S. Ireland, Inns of Court ; and Spilsbury, Lincoln's Inn and 



INNS 290 INSANITY 

its Library ; C. E. A. Bedwell, The Middle Temple, Lond. 1909). $ee 
Lincoln's Inn ; Inner Temple ; Middle Temple ; Geay's Inn. 

Innuendo (fr. Latin innuo, to nod), a term used in actions of 
defamation to signify a defamatory infer-ence to be drawn from words 
whicli are not prima facie actionable. The words may be incapable 
of the defamatory construction put upon them by the plaintiff, and if 
so an exception to the summons or declaration as bad in law will be 
upheld (Rudd v. De Vos, 9 S.C. 491). In that case Db Villiers, C.J., 
said : " There could be no defamation unless the words alleged to have 
been used by the defendant were defamatory. To decide whether 
words aie defamatory or not, their plain meaning is of course ttie 
first consideration, but the context in which, the circumstances under 
which, and the tone in which they were spoken are not to be lost 
sight of. For instance, to say that a certain individual is an 'honest 
attorney ' is at first sight perfectly harmless, but thfe words may be 
spoken under such circumstances and in such a tone as clearly to con- 
vey to the hearer the imputation of dishonesty in his profession to the 
attorney. But the language must be such as to be capable of the con- 
struction. The mere fact that the hearers understood it in a defamatory 
sense does not make it defamatory unless they were reasonably justi- 
fied in so understanding it." See also Grossman v. Lewis (10 C.T.R. 
337). If the words are capable of the meaning with which it is alleged 
they were used it is a question of fact whether they did convey such 
meaning to the persons to whom they were communicated (De ViUier^ 
V. Viljoen, Transvaal High Court, 1899, not reported ; Finlason v. 
The State, Transvaal High Court, 13th June, 1898). 

Inoculation. In the Natal Lung-sickness Prevention Act (30 of 
1897), sec. 3, the term inoculation is defined to mean "the subcutaneous 
introduction into the system of cattle of the specific virus of lung- 
sickness." 

Inquest. (1) An official inquiry in eases where persons die 
suddenly or are found dead, or are supposed or suspected to have 
come by their death by violence, or otherwise than in a natural way ; 
an inquest is presided over by a coroner. The first statute in the 
Cape Colony making provision for such inquests was Act 22 of 1875; 
see also Act 7 of 1894 (C.C), sees. 16, 26 and 27. See Act 10 of 
1897 (N.) ; Transvaal Act 8 of 1909 ; and Orange River Colony Pro- 
clamation 14 of 1901. 

(2) An official inquiry where any house, building or property is 
destroyed or injured under suspicious circumstances ; see Act 33 of 
1883 (C.C); Law .5 of 1884 (N.). 

Insanity. " Where tlie defence of insanity is interposed in a 
criminal trial the capacity to distinguish between right and wrong 
is not the sole test of responsibility in all cases; in the absence of 
legislation to the contrary, courts of law are bound to recognise the 
existence of a form of mental disease which prevents the sufferer 



INSANITY 291 INSTITOR 

from controlling his conduct and choosing between right and wrong, 
although he may have the mental capacity to distinguisti between 
right and wrong ; the defence of insanity is established if it be proved 
that the accused had, by reason of such mental disease, lost the power 
of will to control his conduct in reference to the particular act chai'ged 
as an offence ; the capacity of the accused to control his own conduct 
must be presumed until the contrary is proved " {per De Villiers, C.J., 
in Qiveen v. Hay, 16 S.C. 290). See Natal Land and Colonisation Co. 
V. Molyneux (24 N.L.K at p. 286). 

Inschult (D.), a claim which the creditor or obligee has against 
the obligor or promisor. 

Insolvency, the state or condition of being insolvent. See COM- 
PULSORY Sequestration ; Insolvent ; Voluntary Sequestration. 

Insolvent (equivalent to the English term "bankrupt"), inability 
to meet or pay one's liabilities; a person who is unable to pay his 
liabilities, and who in consequence has surrendered his estate for the 
benefit of his creditors, or whose estate has been corapulsorily seques- 
trated by a creditor or creditors. 

An insolvent person has a reversionary interest in his insolvent 
estate (Mears v. Rissik and Others, [1905] T.S. at p. 305 ; Coetzee v. 
Wentzell, 4 E.D.C. 2). 

As to the application of the term insolvent to a person whose 
estate has not been placed under sequestration, see Acwtt v. Bennett 
(27 N.L.R. at p. 723). 

The Dutch term is also insolvent. Insolventie wet is the insol- 
vency law ; insolvente boedel is an insolvent estate ; bedriegelijke 
insolventie is fraudulent insolvency ; strafbare insolventie is culpable 
insolvency. 

Insonyami, a native term used in the Natal Code of native law 
(Law 19 of 1891, sec. 27 of sch.) to denote "that portion of a slaughtered 
animal which is the perquisite of a superior person or house from an 
inferior person or house." 

" Instalment system," as to whether these words have acquired 
in trade the technical meaning of hire-purchase system, see Burroughs 
& Watts, Ltd., v. Campbell (22 S.C. at p. 231). 

Instanter, immediately ; at once. 

InsteUing (D.), the appointment in a valid written or nuncupative 
will made by a person, since deceased, as to who should succeed him 
as heir. See Van Leeuwen's Comm. Kotz^'s trans, vol. 1, p. 362. 

Institor, the name given in Roman law to the person who was 
put in charge of a shop, business or undertaking. The contracts of an 
institor bound his principal {praeponens), the action which was given 



INSTITOR 292 INTENT 

against the latter being called the actio institoria. The institor was 
the equivalent of the modern factor or agent. 

Institute. (1) A society or organisation, especially one established 
for literary or scientific purposes. 

(2) To appoint in a will, as in the case of a father instituting his 
children as heirs. See Maasdorp's Institutes, vol. 1, p. 137. 

Instruct, to impart information or directions to a person, as in 
the case of a solicitor instructing counsel ; to authorise and direct 
counsel to appear in court on behalf of a client. 

Instructions, directions; ii\formation. 

"Instrument of pledge," a term used in the Natal Share Pledge 
Act (33 of 1899), where it is defined as meaning "a document stating 
the fact of the pledge signed by the pledgor in the presence of a wit- 
ness, and dated at the time of the signature." 

Insured or assured, the party interested in some property or 
thing the subject of an insurance, or \vhose life is the subject of 
the insurance. 

Insurer, the party who indemnifies the assured against loss (see 
Arnould's Marine Insurance, 7th ed. sec. 2). 

Intendit (D.), a term employed in Dutch practice. An intendit 
was a document containing a statement of the plaintiff's case, describ- 
ing the defendant's defaults, and the reasons for the plaintiff's con- 
clusion or prayer. See Van der Linden's Institutes, 3, 1, 2, 13. As 
a rule an intendit was not allowed to be served except in cases where 
the defendant was in default in respect of four citations. The term 
inteiidit is in use in South African practice in proceedings by edictal 
citation, and is equivalent to the modern declaration. 

Intent, the intention of a person ; purpose or design ; the purpose 
of an action or of the omission to perform a duty. 

"Intent to defraud." "The words "with intent to defraud' 
seem to me to import more than a mere intent to deceive. They can 
only mean an intent to deceive to the detriment or lo.ss of another. 
They are so defined by Stephen in his History of the Criminal Law, 
where he says, ' With intent to defraud means with intent to deceive 
in such a manner as to expose any person to loss or the risk of loss' 
(vol. 3, p. 187; vol. 2, p. 121, ed. of 1883). It is true the section 
(sec. 7 of Act 3 of 1861 [C.C.]) provides that an indictment may be 
sustained without alleging or proving that the prisoner intended to 
defraud any particular person. Now in certain cases a prisoner may 
be guilty of forgery without having a fraudulent intention against 
any one in particular, and yet his intention is clearly to defraud, as 



INTENT 293 INTERDICT 

where a person forges bank-notes for circulation ; but in most cases 
an intent to defraud is generally directed against one or more par- 
ticular persons" (per KoTZ^, J.P., in Rex v. Firling, 18 E.D.C. 11). 

Intention. An important element in the construction of all written 
instruments and of all contracts is the intention of the parties. " The 
one universal principle is that effect is to be given to the intention of 
the parties collected from tlieir expression of it as a whole. It must 
be collected from the whole; that is, particular terms are to be con- 
strued in that sense which is most consistent with the general inten- 
tion. It must also be collected from what is expressed, not from a 
mere conjecture of some intention which the parties may have had 
in their minds, and would have expressed if they had been better 
advised " (Pollock on Contracts, 7th ed. p. 255). " The main object 
always is to ascertain wiiat the parties intended ; but we can only 
adopt what we think was their intention so far as the words of 
the contract permit us to do so " (per Innes, C.J., in Van der Merwe 
v. Juonpers Deep, Ltd., [1902] T.S. at p. 207. See also remarks of 
Solomon, J., ihid. at p. 210). See Anson's Law of Contract, lltli ed. 
pp. 2 and 232. 

In criminal pi-ocedure, " where a special intention has to be proved, 
and where a person is so deprived of will and reason that he cannot 
be said to have had any intention, that special intention cannot be 
said to have existed " (per Wessels, J., in Fowlie v. Rex, [1906] T.S. 
at p. 508). 

As to intention of a legislature, see Craies' Statute Law, pp. 66 and 
67 ; Salomon v. Salomon ([1897] App. Cas. at p. 38). 

Inter alia, among other things. 

Inter arma silent leges, in the midst of arms the laws are silent; 
meaning thereby that in war time martial law takes the place of civil 
law. 

Inter nos, between ourselves. 

Inter se, between themselves. 

Inter vivos, between living persons. An ordinary act or deed of 
transfer by which property is conveyed from one person to another is 
called an act or deed inter vivos, as distinguished from a will or other 
like deed transferring property to another in the event of the grantor's 
death, which is called an act or deed mortis causa. 

Interdict, a mode of procedure for the purpose of enforcing one's 
proprietary or possessory rights. " An interdict may be applied for 
with the object of either acquiring or retaining or recovering posses- 
sion. In some respects the Roman and Roman-Dutch mode of pro- 
cedure by interdict corresponds to the English remedy of injunction, 
but in the majority of cases interdicts discharge a function to which 
injunctions can lay no claim — not merely affording relief, partial or 



INTERDICT a94 INTEREST 

total, against the wrongful or tortious acts of another, but conserving 
and protecting to the fullest extent one's rights of property." Sea 
Nathan's Covimon Law, sees. 641 et seq. 

" According to our established practice a clear priind facie case 
must be made out before such an interdict can be granted " (per 
De ViLLiERS, C.J., in Anderson ct Murison v. Colonial Government, 
8S.C. at'p. 295). 

Interest. (1) " That which is stipulated for the benefit of property 
or mone}'' lent is commonly called interest or money-profit (because it 
generally consists of money) : for here, besides the return of the same 
thing of the like kind and quality, we also stipulate for what we lose 
through being deprived of the thing or money. This is also im- 
properly called by some usury {usura)" (Van Leeuwen's Gomra. 
Kotze's trans, vol. 2, p. 56). See Dyason v. Ruthven (3 Searle, 282). 

Interest is either siviple, being at the rate of so much per cent, 
per annum, or cowpound, which is a charge of interest upon interest. 

In the Cape Usury Act (23 of 1908), sec. 2, the word interest 
includes " any charges for discount, commission, expenses, inquiries, 
fines, foregift, bonus, renewals and any other charges not being tax- 
able conveyancing charges or revenue charges. It shall also include 
any valuable consideration for a loan of money, whether such con- 
sideration be in cash, in goods, in kind or in any other form 
whatsoever." 

In Natal (Law 6 of 1858) money may be lent at any rate of 
.interest, but where no special rate has been agreed upon no higher 
rate of interest may be charged than 6 per cent, per annum. This 
fairly expresses the common law in South Africa generally on this 
subject. 

Interest is unknown in native law in Natal, and natives without 
exception claiming interest as having accrued upon any debt or claim 
are obliged to prove a distinct contract to pay the same (Law 19 of 
1891, sec. 221 of sch.). 

In the Orange River Colony the rate of interest does not seem to 
be limited; see O.R.C. Law Book, chapter 98, sec. 1. 

(2) Interest in land, discussed in Bennett & Green and Bank of 
Afrwa, Ltd. (22 N.L.R. at p. 407). 

Interest in land, a phrase employed in the Johannesburg Eating 
Proclamation, 38 of 1902 (T.), sec. 2, to denote certain rights over or 
interests in land within the municipal limits as in the section speci- 
fied, which are subject to the terms of the Proclamation, and thus 
rateable property. Also found in the Local Authoiities Rating Ordi- 
nance, 43 of 1903 (T.), sec. 3, where it is used in connection with the 
definition of "rateable property." See also In re Bennett & Green 
and Bank of Africa, Ltd. (22 N.L.R. at p. 407). 

Interest policy. " An interest 'policy is one in wliich it appears 
by its terms that the insured is interested in the thing insured, or, in 
other words, runs a risk. He has something at stake, and, in case of 



INTEREST 295 INTERLOCUTORY 

loss, something to be indemniiied for. Policies are usually in this 
form, and import, unless otherwise expressed, that the assured is 
interested in the subject-matter" (May on Insurance, 4th ed. sec. 33; 
see also Arnould's Marine Inmirance, 7th ed. sec. 9). 

Interest reipublicae ut sit finis Utium, it is to the interest of 
the State that there should be an end of lawsuits (see Best on 
Evidence, 10th ed. see. 41). To this maxim may be referred the 
doctrine of res judicata and the prescription of rights of action. So 
affidavits relative to statements made by jurors as to the verdict found 
by them are not admissible to furnish grounds for an application for 
a new trial, as well on the principle of the maxim as according to the 
law of evidence {Sidman v. McLoughlin, Buch. 1879, p. 156). Upon 
the same ground a successful litigant who has taxed a bill of costs 
against tlie unsuccessful party, and obtained payment of the taxed 
amount from him, cannot afterwards bring the taxation in review 
and claim to be entitled to sums which were disallowed on taxation 
(Michaelis v. Weston. & Co. 4 E.D.C. 306). 

Interim, meanwhile ; in the meantime. 

Interim dividend, a dividend paid on account, and in anticipation 
of the ordinary or annual dividend, and prior to the ordinary general 
meeting of shareholders of a company. 

Interlocutoire sententie. See Interlocutory Order. 

Interlocutory order (in Dutch inte?iocutoire sententie), a term 
applied to a proceeding or an order made during the course or pen- 
dency of a suit ; an order which is not final and from which there is no 
appeal In Roman-Dutch law, however, a decision or order, although 
interlocutory, may be definitive and consequently appealable, e.g. where 
it is not reparable. Merula in his Manier van Procederen, bk. 4, 
tit. 91, eh. 1, distinguishes between simple interlocutory orders and 
interlocutory orders affecting the principal case and possessing the 
force of a definitive sentence. " The general rule of the Roman-Dutch 
law is that it is open to any one to appeal from sentences and judg- 
ments or other decrees by which he conceives himself aggrieved. 
There are, however, exceptions to this rule ; for instance, in the case of 
interlocutory orders and judgments, which are definitely reparable 
and can be redressed by final judgment (Van Leeuwen's Comm. 5, 25, 
13). Interlocutory judgments do not, however, always denote the 
opposite of final or definitive judgments, for it may happen that the 
former may indeed have the effect of definitive judgments. Voet 
(Comm. 42, 1, 4) gives us much the same definition which we find in 
Van Leeuwen, and proceeds to mention instances in which inter- 
locutory judgments are indeed appealable. Gail (1, Obs. 130, nn. 5 and 
6) lays down the same principle. He says that an interlocutory sen- 
tence has the force of a definitive sentence when thereby, inter alia, 
the office of the judge ceases and determines, or when the sentence 



INTERLOCUTORY 296 INTERLOCUTORY 

directs something to be given or done. An application, therefore, for 
an interdict pending action, whereby the opposite party or defendant 
shall be restrained from alienating or mortgaging certain innnovable 
property, the subject of the suit, is not of a purely interlocutory 
character. If the judge refuses the application irremediable injury 
or loss may indeed be caused to the applicant and plaintiff, for the 
opposite party would be able, pending the action, to ali«-nate or 
encumber the property, and in this way frustrate the whole object 
of the suit " [per KoTzi, C.J., in Donoghue and Others v. Executor 
of Van der Merwe (4 Off. Rep. 1); see also Middelvlei Syndicate v. 
Tucker {ibid. 10), 

" The Roman-Dutch lawyers gave to the term interlocutoire sen- 
tentie a very wide, but, regard being had to the derivation of the 
words, a very correct and logical meaning. They applied it to any 
order made at any stage between the inception and the conclusion of the 
litigation upon any incidental matter which did not finally determine 
the original dispute. According to Gail (Obs. 129), whose words are 
approved by Merula, Bicitur autem interlocutoria sententia ilia, quae 
inter principium etfinem causae super aliquo incidenti vel emergenti 
profertur. And Voet (ad Pandectas, 42, 1, 4) defines an interlocutory 
order as follows : Interlocutoria est pronunciatio aliqua de piano 
super incidenti aliquo in frincipio vel mediis litis facta, causam 
principalem non plene determinans. All orders comprised within 
these general limits are in theory merely ancillary to the settlement 
of the main dispute. But it is obvious that in practice the differences 
in degree between them must be so great as to approximate to a 
difference in kind. Some would have little or no bearing upon the 
merits of the action, others might involve consequences practically 
decisive of the ultimate issue. Tliis was fully recognised by the 
practitioners of Holland, and we find that all the authorities divide 
decisions of this kind into two classes — interlocutory orders proper 
and interlocutory orders which have the effect of definitive or final 
decrees. Various tests are suggested to determine whether any par- 
ticular order falls within the one category or the other. Some of 
them are of little practical u.se, and many of the numerous illustrations 
to be found in the books require for their correct appreciation a more 
accurate acquaintance with the intricacies of Dutch procedure in the 
sixteenth and seventeenth centuries than, it is to be feared, all present- 
day judges posse.ss. But the more important of them are intelligible 
and u.seful. When an order incidentally given during the progress of 
the litigation has a direct effect upon the final issue, when its execution 
causes pi-ejudice which cannot be repaired at a later stage, when it dis- 
poses of a definite portion of that suit, then in essence it is final, 
though in form it may be interlocutory. . . . Neither our statute law 
nor our Rules of Court draw any distinction between the two classes 
of interlocutory orders. They treat all judgments, decrees or orders as 
being either interlocutory or final. And it will be convenient in future 
to follow the same lines, and to hold that the interlocutory orders of 
our rules correspond with the simple interlocutory orders of the books; 
while what Dutch lawyers would have styled interlocutory orders 



INTERLOCUTORY 297 INTERROGATORIES 

having fclie force of definite decrees are to be classed witli all other 
definite decisions as final judgments. In that way we shall be giving 
full effect to our own terminology, while at the same time preserving 
the principles and spirit of the Roman-Dutch procedure" (pfi'?'lNNES,C.J., 
in Bell v. Bell, [1908] T.S. at p. 890). See also Pretoria Racing Glub 
Van Pietersen ([1907] T.S. at p. 694). 



V 



Intermarriage, the marriage of persons nearly related by blood. 

Intermittent stream. "Intermittent stream means a stream 
which is not a perennial stream, and into whicli the natural surface 
drainage waters flow from the lands of more than one riparian pro- 
perty. Provided that a stream shall not be deemed to be an inter- 
mittent stream above the highest point of its course at which the 
natural surface drainage waters from the laTids of more than one 
riparian property unite, or for such lower portions of its course as 
satisfy the conditions of a perennial stream " (Irrigation Act, 32 of 
1906 (C.C), sec. 3). 

Interpleader, a form of action, generally allowed in the magis- 
trate's court, to test the right to certain movable property (or its 
proceeds) attached in execution and claimed by a third party (see 
sec. 53 of Act 20 of 1856 (C.C.)). 

The interpleader action in the magistrate's court has been derived 
from the English law {per De ViLLiERS, C.J., in Beattie v. Fennell, 
5 S.C. at p. 38). 

Interpolate, to insert additional words in a written document. 

Interpret, to translate; to explain. 

Interpreter. (1) One who interprets or translates from one 
language to another. Most South African courts have an inter- 
preter attached to the court. A person appointed as interpreter of 
the Supreme Court of the Cape Colony becomes an officer of that 
court, and as such holds his office during the pleasure of the Crown 
(Faure v. Colonial Secretary, Foord, 82). 

(2) An interpreter, " otlierwise called a procurator [in the Nether- 
lands in the seventeenth century], so named because he keeps a record 
of the pleadings, acts in the prosecution of the cause in all its stages, 
sees that no delay takes place therein, and in everything assists the 
advocate, who, when the case is completed by his advice and the 
assistance of the attorney, further pleads and defends the cause at 
law, either- orally or in writing" (Van Leeuwen's Comm. Kotz^'s trans, 
vol. 2, p. 378). 

Interregnum, the period intervening between the end of the 
reign of one sovereign and the commencement of that of another. 

Interrogatories are questions in writing administered, under an 
order or authority of a competent court, to a defendant by a plain- 



INTERROGATORIES 298 INTONJANE 

tiff, or vice versd, on matters relevant to a pending action. The 
practice of taking evidence by interrogatories is not universal in 
South Africa. It is authorised in the Cnne Colony; see Rule 335 (b), 
and see. 52 of Act 20 of 1856 (C.C.) ; Rule of Court 60 (T.). 

Interventie (D.), intervention. The joinder, by leave of the court, 
of a person interested in an action, but who was not originally either 
plaintiff or defendant ; such a person, on being granted leave to 
intervene, becomes either co-plaintiff or co-defendant as may be 
directed by the court. Interventie was a term used in old Dutch 
practice, and corresponds with the modern word " intervention." See 
Kersteman's Woordenboek, vol. 1, p. 216. 

Intestate estate, the estate of a person who has died without 
leaving a valid will. "The expression intestate estate means the 
estate of a deceased person who died without a will ; or without 
having appointed an executor ; or in respect of whose will or estate an 
executor is at any time required, and no provision is made in .such will 
for the appointment of an executor " (Act 38 of 1899 (N.), sec. 2). 

Intestate succession, the succession to the estate of a deceased 
person who died without leaving a will, or who died leaving a will 
which, after death, was declared void. This form of succession is also 
known as succession ab intestato. (For a full account of the origin and 
development of this brancli of law see Wessels' History, p. 540.) 

Intimidation, the use of violence or threats for the purpose of 
compelling a person to do or abstain from doing something that he 
has a right to do oi- abstain from doing. Archbold's Criminal 
Practice, 28rd ed. p. 1161 ; Stephen's Comm. 15th ed. pp. 201 
and 214. 

Intonjane dance, " a native dance common among the South 
African native tribes, except the Zulus with whom it has ceased 
to be a custom. It is a function to celebrate the attainment of the 
age of puberty by female natives, and consists of a dance more or 
less continuous extending over a period of three or four months — the 
length depending much upon the custom of the tribe. At the com- 
mencement of the ceremony tlie girl in question joins in the dance; 
the Fingo maiden, however, does not join in the dance when she 
enters the " school " (as it is called), but only on being discharged 
therefrom. On entering the school the girl is confined in a hut in 
the kraal, and scrupulously guarded against visitors by an old and 
trusted woman ; but among the Xosa and Fingo tribes she is looked 
after by young women, and the owner of the hut is held responsible 
for her. At the termination of her period of seclusion she is 
brought forth and joins in the dance ; but on this occasion she is no 
longer regarded as a girl : she has become a woman, and has arrived 
at a marriageable state. This dance corresponds with the abakweta 
dance of the young men. In the Cape Colony the intonjane dance is 



INTONJANE 299 INVEOTA 

prohibited in certain districts proclaimed and to be proclaimed by the 
Governor under Act 16 of 1891 : this Act is extended to the district 
of Elliot by Proclamation 396 of 1896. 

Intoxicating liquor " means any spirits, wines, liqueurs, ale, beer, 
porter, cider, perry, or other fermented, distilled, spirituous, or malt 
liquor of an intoxicating nature, methylated spirits, and every drink 
with which any such liquor shall have been mixed" (Act 38 of 1896 
(N.), sec. 4 ; see also Act 36 of 1899 (N.), sec. 2). 

For definition in Transvaal, see Ordinance 32 of 1902, sec. 3. 

Intoxication. See Drunkenness. 

Intra vires, within the power or authority. 

Intruder, one who thrusts himself in, or unwarrantably enters, 
some place where he has no right or permission to be. In Law 5 of 
1888 (T.), .sec. 1, an intruder is "any person who shall have effected 
such entrance [i.e. in or upon any dwelling or enclosed place, &c.] by 
means of breaking or climbing in, or by means of skeleton or false 
keys or other implements not intended for the opening of the dwelling- 
place, or erf, the stand or werf, or by means of a forged order or dis- 
guise, or who without the previous knowledge of the person entitled 
to the property, intruded upon, or in any way other than as the result 
of mistake shall have entered upon and be found therein or thereon 
during the time intended for the night's i-est." 

Intmtu mortis, in the prospect of death. 

Inure, to take effect ; to serve to the use or benefit of. 

Invalid, of no binding force: void. 

Invalid pension, in Ordinance 30 of 1906 (T.), sec. 1, means " a 
pension payable to an officer on retirement under the prescribed age 
applicable to such officer owing to mental or bodily infirmit3^" 

Invecta et illata, things brought and carried in ; used with refer- 
ence to things brought on to leased premises. Over these the landlord 
has a lien or hypothec in security of rent due, not only where the 
things belong to the lessee, but also where they belong to others and 
have been brought on to the premises with the consent of the owner 
and with the object of their remaining, not for a merely temporary 
purpose, but for the period of the lease or indefinitely (Voet's Comm. 
20, 2, 5). In the latter case the goods will be regarded as subject to 
the landlord's lien from the fact of their having been brought on to 
the premises under such circumstances as would lead the landlord 
to believe that they belonged to the lessee. Thus it has been held that 
the lien has effect over the separate property of a wife married by ante- 
nuptial contract, who has brought such separate property into a house 
rented by the husband, and in which she resided without notifying the 



INVEOTA 300 INVENTION 

landlord that tiie property belonged to her (Crowley v. Bomony, Buch. 
1869, p. 205 ; see also Ulrich v. Ulrich's Trustee, 2 S.C. 319, and 
Russell V. Savory, [1906] E.D.C. 100). Wliere, liowever, the circum- 
stances are not such as to lead the landlord to believe that the goods 
belong to the lessee, they will not be subject to his lien. Tlius the lien 
will not attach to a hired piano brought on to the leased premises with 
the owner's name engraved upon it (Lazarus v. Dose, 3 S.C. 42); nor 
to a hired piano of which the owner has given notice of his ownership 
to the landlord (Mackay Bros. v. Cohen, 1 Off. Rep. 342). 

Inventaris (D.), an inventory. 

Inventio, discovery ; a form of acquiring title by occupation, 
consisting in the discovery and seizure of res nullius, i.e. things 
movable or immovable which have never been in the possession of 
any one, or which have been abandoned by their owners with the 
intention of no longer owning them. (See Voet's Coram. 4, 1, 9 
and 10.) 

Invention. By sec. 46 of the English Patents Act, 1883, an 
invention is defined as follows : " Invention means any manner of 
new manufacture, the subject of letters patent and grant of privilege 
within sec. 6 of the Statute of Monopolies (that is, the Act of the 
twenty-first year of the reign of King James the First, Chapter 3, 
intituled ' An Act concerning monopolies and dispensations with 
penal laws and the forfeiture thereof), and includes an alleged inven- 
tion." This definition has been taken over by the Cape Colony 
(Act 17, 1860, sec. 1), and by Natal (Law 4, 1870, sec. 1). 

In the Transvaal " the expression invention means any new and 
useful art, process, machine, manufacture or composition of matter, or 
any new and useful improvement thereof capable of being used or 
applied in trade or industry and not known or used by others in this 
colony (save as provided by sees. 23 and 53 respectively of this Pro- 
clamation) and not patented or described in any printed publication 
in this colony or any foreign country before the application for a 
patent in respect of the same and not in public use or on sale in this 
colony or any foreign country for more than two years prior to such 
application, unless the same is proved to have been abandoned" (Pro- 
clamation 22 of 1902, sec. 6); in reference to the exceptions referred 
to above it may be added that sec. 23 of the Proclamation provides 
that a gi-ant of a foreign patent is no bar if the application is made 
within twelve months of the grant of such foreign patent, and sec. 53 
provides that the exhibition at an industrial exhibition (subject to 
certain conditions) shall not prejudice the inventor in his rights. 

In Rhodesia sec. 3 of Ordinance 7 of 1904 provides: "Invention, 
save as provided by sees. 24 and 54 respectively of this Ordinance, 
[shall mean] any new and useful art, process, machine, manufacture or 
composition of matter, or any new or useful improvement thereof 
capable of being used or applied in trade or industiy and not known 
or used by others; and not (1) either patented in Rhodesia or any 



INVENTION 301 IRREDUCIBLE 

i'oreigu country before the application for a patent in respect to the 
same ; or (2) in public use or on sale in Rliodesia or any foreign 
country for more than two years prior to such application, unless the 
same is proved to have been abandoned " ; the exceptions in sees. 24 
and 54 of the Ordinance are similar to those in sees. 23 and 53 of the 
Transvaal Proclamation referred to above. 

Inventory, a detailed list of assets belonging to a person, or to 
the estate of a deceased person, or to the estate of a person under 
guardianship. See Benefit of Inventory. 

Investitive fact, a fact by means of which a right comes into ex- 
istence. " An investitive fact finds its nearest equivalents in classical 
Latin in the terms justa causa, justum initium, and titulus. In 
some, but not in all, cases, it is possible to detect two stages in the 
acquisition of a right, a more remote and a nearer, and it has been pro- 
posed to distinguish them by describing the causa remota as titulus, 
the causa proxima as modus adquirendi. Cavendum est ante 
omnia, .says Heineccius, ne confundamus titulwni et modum ad- 
quirendi, quippe qui toto coelo differunt ; and he goes on to assert 
that dominium can never be gained without the combination of a 
titulus, giving a jus in personam, and a modus adquirendi, which 
superadds the jus in rem. These two stages are undoubtedly trace- 
able in such a transaction as a Roman contract of sale followed by 
delivery, but they are by no means universally present in the 
acquisition even of real rights, and it is now admitted that the 
importance of the distinction has been much overrated " (Holland's 
Jurisprudence, 10th ed. p. 151). 

I.O.U., a popular and brief form of an acknowledgment of debt 
or undertaking to pay. Generally speaking an I.O.U. is not a 
negotiable instrument (see Chalmers' Bills of Exchange, 5th ed. 
p. 264) ; but an I.O.U. may be a promissory note (.see Vos v. Marsh, 
16 S.C. 224). 

Ipse dixit, he himself said it; a dogmatic assertion; a saying 
without proof. 

Ipsissima verba, the identical words ; the precise language. 

Ipso facto, by the fact itself ; by the mere fact. 

Ipso jure, by the law itself. 

Iqadi, a native term used in the Natal Code of Native Law 
(Law 19 of 1891, sec. 20 of sch.) denoting "the chief house of the 
left-hand side of the kraal, as viewed from the indhlunkulu, looking 
towards the gate." 

Irreducible, that cannot be reduced. 



IRRELEVANT 302 ISSUE 

Irrelevant, not relevant. The converse of relevant. See Rele- 
vant. 

Irrevocable, not capable of being revoked or annulled. 

Irrevocable power of attorney, a power of attorney given for a 
consideration, and which the grantor undertakes shall not be cancelled 
or revoked by him. ' In order to make the power irrevocable there 
must be consideration for the undertaking, or if there was no such con- 
sideration it must be shown that the agent has done such acts under 
the power that its revocation would be to his prejudice " (per De 
ViLLiERS, C.J., in Koch v. Mair, N.O., 11 S.C. at p. 83). 

Irrigation district, an expression employed in Act 8 of 1877 (C.C.) 
for the promotion of irrigation ; it there signifies an area proclaimed by 
the Goveinor as an irrigation district upon the petition of three or more 
owners of land .situate within the area for which in their opinion it 
is expedient that there should be a combined sy.stem of irrigation, or 
that recourse should be had to artificial means of storing or supplying 
water. 

Isanusi, a native term signifying a witch-doctor, witch-tinder or 
sorcerer, who is supposed to pos.sess supernatural powers derived from 
lions, leopards, elephants, boa-constrictors, alligators, and the like, 
thereby enabling him to provide and supply charms that will protect 
the natives with whom he is concerned from evil influences, and to 
" smell out" or ascertain those who exert such evil influences. As to 
penalty in Cape Colony for being by habit or repute an isa7tusi, see 
Act 2 of 1895 (C.C), sec. 2. 

Isityimiyana, a native term used in the Natal Code of Native 
Law (Law l9 of 1891, sec. 30 of sch.) to denote "an intoxicating 
liquor made of treacle or sugar mixed with water." See Act 38 of 
1896 (N.), sec. 78; Act 27 of 1905 (N.). 

Issue. (1) In the Bills of Exchange Acts means the first delivery 
of a bill or note, complete in form, to a person who takes it as a 
holder (sec. 2 of English Bills of Exchange Act, 1882 ; Act 19 of 1893 
(C.C), sec. 1; Law 8 of 1887 (N.), se'c. 1; Proclamation 11 of 1902 
(T.), .sec. 1 ; Ordinance 28 of 1902 (O.R.C), sec. 1). 

(2) In the Transvaal Law concerning banks (Law 2 of 1893, 
sec. 13) the word issue "includes, inter alia, the payment or the 
depositing as security of any bank-note by the bank responsible for 
the payment of the amount thereof, or by any other bank, or by any 
agent of a branch office or official of such bank, irrespective of such 
note ever having been issued before or not at the same or at any other 
place." 

(3) The children of a marriage. 

(4) The result of the pleadings in an action, disclosing the precise 
points on which the decision of the court is required. 



IT 303 JOINT 

" It shall be lawful." See " Shall be lawful." 

Ita est, it is so. 

Ita lex scripta est, thus the law is written. 

Iter, a rural servitude. See Servhtjs itineris. 

Izinyanga zemeti, a native expression signifying herbalists, being 
native medicine men and women allowed to practise for gain under 
the Natal Code of Native Law (Law 19 of 1891, sec. 192 of sch.); 
see also Act 21 of 1899 (N.), sec. 33. As to bad results due to 
blunders or negligence of herbalists, see Law 19 of 1891 (N.), sec. 193 
of sch. 

Izinyanga zo kvre lapa, a native expression meaning those 
skilled in healing ; native medicine men and women who, under the 
Natal Code of Native Law (Law 19 of 1891, sec. 192 of sch.) are 
allowed to practise for gain. See also Act 21 of 1899 (N.), sec. 33. 
These people are licensed by the Administrator of Native Law, and all 
"blunders or negligence of medicine men, women or herbalists entail- 
ing bad results, lay the party causing such bad results open to an 
action for civil damages, independent of any criminal charge which 
may lie against them." See also Law 19 of 1891 (N.), sec. 193 of 
sch. et seq. 



Jetsam, goods thrown overboard during a storm or time of 
danger to lighten the ship. 

Jettison, the throwing of goods overboard during a storm or 
time of danger to lighten the ship. 

Joint and several, an expression commonly used in connec- 
tion with suretyship. A person binding himself jointly and .severally 
with others is liable to a joint action against himself and all others 
bound with him, as well as to a separate action against him 
personally. 

Joint stock company. See Company. See also definition of 
joint stock company in the Cape Stamps and Licenses Amend- 
ment Act (43 of 1898), schedule ii. 

In the Natal Joint Stock Companies' Limited Liability Law 
(10 of 1864), sec. 1, the term joint stock company is defined to 
mean "every partnership whereof the capital is divided, or agreed 
to be divided, into shares, and so as to be transferable without 
the express consent of all the partners; and also every partnership 
which at its formation or by subsequent admission shall consist of 



JOINT 304 JUDICIAL 

more than ten members; provided that nothing in this law con- 
tained shall apply to any joint stock company formed for the 
purpose of banking." 

See Act 31 of 1909 (T.), sec. 1; O.R.C. Law Book, chapter C, 
sec. 1 ; Law 2 of 1892 (O.R.C), sec. 1 ; Law 4 of 1892 (O.R.C), 
sec. 1 (a). 

Juala, Katir beer. See Ordinance 8 of 1903 (O.R.C), sec. 43- 
John M'Tati v. Rex ([1908] O.R.C. 24). 

Judex damnatTir cum nocens absolvitur, the judge is con- 
demned when the guilty person escapes punisiiinent. 

Judex SUSpectus, judge suspected. Where a judge himself or 
his near kinsman has an interest in the cause, or he has been guilty of 
malice or corruption, the party to the suit who is adversely affected 
thereby may object to his trying the case by raising the eaxeptio 
judicis suapecti. Such an act of objection is known as recusation. 
For the grounds upon which a judge may be so recused, see Voet's 
Comm. 5, 1, 44 et seq. and Nathan's Common Law, sec. 1993. 

Judge, a person learned in the law appointed by the Government 
to administer justice in a court of law. He is " the recognised and 
permanent organ through which the mind of the people expresses 
itself in shaping that part of the law which the State power does 
not formally enact. He is their official mouthpiece, whose primary 
duty is to know and to apply the law, but who, in applying it, expands 
it and works it out authoritatively, as the jurists do less authori- 
tatively. He represents the legal intelligence of the nation, somewhat 
as upon one theory of papal functions the bishop of the old imperial 
See represents the religious intelligence and spiritual discernment of 
the Christian community on earth ; and therefore, like the Pope, he 
represents the principle of that development which it is his function 
to guide" (Bryce's Histwy and Jurisprudence, vol. 2, p. 272). 

" Our judges are independent, in the sense of holding their office 
by a peimanent tenure, and of being raised above the direct influence 
of the Crown or the Ministry ; but the judicial department does not 
pretend to stand on a level with Parliament; its functions might be 
modified at any time by an Act of Parliament ; and such a statute 
would be no violation of the law " (Dicey's Constitution, Qih ed. 
p. 152). See Testing Right. 

Judgment, the sentence or decision of a judge sitting in his 
court. 

A court has no power to amend its own judgment ; see Caledonia 
Landing S. and S. Co., Ltd., and Another v. East London Harbour 
Board (24 S.C 434). 

Judicature, judicial authority; a court of justice. 

Judicial, pertaining to a judge or a court of justice. 



JUDICIAL 305 JUDICIAL 

Judicial com mi ssion. (1) A commission appointed under sec. 10 
of the Articles ol' Peace, dated 31st May, 1902, for the purpose of 
inquiring into and assessing claims for compensation for losses suffered 
through the Anglo-Boer war of 1899. 

(2) In the early days of the Cape Colony the transfer of land took 
place before Judicial Commissioners. The present office of Registrar 
of Deeds is said to be the direct representative of these Judicial Com- 
missioners. See Wessels' History, p. 500. 

Judicial Committee of the Privy Council, a final court of 
appeal in England from the decisions of various courts of judicature 
in the East Indies, and in the plantations, colonies and other dominions 
of his Majesty abroad. It was established by 3 & 4 Will. IV, c. 41, 
in the year 1833. This Act has been since frequently amended. The 
members of the Committee now include the President for the time 
being of the Privy Council ; the holder of the office of Lord Keeper or 
First Commissioner of the Great Seal of Great Britain ; all members of 
the Privy Council who have been President thereof or who have held 
any of the above offices; and two other persons appointed under sign 
manual ; two judges of India or of his Majesty's dominions beyond the 
seas (being Privy Councillors) appointed for that purpose by his 
Majesty ; four Lords of Appeal in Ordinary ; past and present Lords 
Justices of Appeal who are members of the Privy Council ; every 
person holding or who has held in England the office of Lord Justice 
of Appeal, if a member of the Privy Council ; and certain chief justices 
or judges of the superior courts in certain of the colonies, not ex- 
ceeding five in number. The quorum of the Judicial Committee is 
three. 



Judicial corruption, the act of corruptly accepting or obtaining, 
or agreeiug to accept or attempting to obtain, by any person holding 
any judicial office, for himself or any other person, any money or 
valuable consideration, office, place, or employment whatever, on 
account of anything already done or omitted, or to be afterwards 
done or omitted by him in his judicial capacity; or corruptly giving 
to any person holding any judicial office, or to any other person, any 
money or valuable consideration, office, place or employment whatever 
on account of any such act or omission. See Act 24 of 1886 (CC), 
sec. 103 (Native Territories' Penal Code) ; also Stephen's Digest of the 
Criminal Law, 5 th ed. art. 136. 

Judicial mortgage, a hypothecation in favour of the creditor 
arising from attachment of the goods of the debtor by the Sheriff or 
a messenger of a magistrate's court. A judicial mortgage is only 
effective while the goods are under attachment ; encroachment may be 
made thereon by subsequent attachment within certain periods by 
other creditors; and it lapses entirely on the insolvency of the debtor 
or withdrawal of attachment. See PiGNUS peaetorium. 



JUDICIAL 306 JURIS 

Judicial proceeding. " An examination ordered by a judge to be 
taken before the registrar of the court ceases to be a judicial pro- 
ceeding as delined by Crini. Code, sec. 171 (2) of Criminal Code 
(Canada) if the registrar after administering the oath leaves the 
room and the examination is proceeded with in liis absence. A false 
statement under oath made by a witness at such an examination, but 
in the absence of the registrar as aforesaid, is not perjury as defined 
bj' sec. 170 of the Criminal Code (Canada); Queen v. Lloyd, 
(1887) 56 L.J.M.C. 119, followed" {Rex v. Rulofson, 44 Canada Law 
Journal, 712). 

Judicial separation, a judicial decree of a competent court sus- 
pending the marriage between husband and wife, and separating them 
from bed, board and cohabitation. Where the spouses are married in 
community of property the deci-ee may also include an order dividing 
their joint estate. 

Judicis est jus dicere, non dare, it is the duty of the judge to 
declare, not to give or make law. The function of the judge is limited 
to interpreting and giving effect to M'hat has already been made law 
by the legislative authority ; he cannot add to or alter the actual 
words of the law (Hess v. The State, 2 Off. Rep. at p. 118). 

Jurat, a memorandum at the foot of an affidavit or solemn 
declaration, above the signature of the justice of the peace, stating 
when and where the affidavit or declaration was sworn or declared 
to. 

Jure divino, by divine riglit. 

Jure naturae aequum est neminem cum alterius detrimento 
et injuria fieri locupletiorem, by the law of nature it is just tiiat 
no one should be enriched with the detriment and injury of another. 
See Nemo debet locupletabi cum alterius detrimento. 

Juris executio non habet injuriam, the carrying out of the law 
inflicts no wrong (Digest, 47, 10, 13, sec. 1). Upon this principle a 
person wlio sues another is not liable in an action of damages because 
his suit should be proved to be groundless or to have been taken 
against the wrong person. In such a case the Roman law maxim 
(Dig. 50, 17, 55) also applies, Nullus videtur dolo facere qui suo jure 
utitur (No one is considered to act wrongfully who exercises his legal 
right). If, however, in suing out execution upon his judgment the 
creditor should issue his writ against the goods of some other person 
than his judgment debtor — an action will lie for the recovery of 
damages. So if it can be shown that the process of the court has 
been used as a mea,ns of extortion or oppression, the fact that the 
wrong-doer has acted with legal formality will not protect him from 
liability for damages. 

The maxim also applies to exempt officials from liability for any- 



JURIS 307 JURY 

thing done by tliem while properly carrying out their official duties, 
as where a gaoler with proper authority puts a person into prison 
(Voet's Covim. 47, 10, 2). 

Jxirisconsult. "The juriscooisults at Rome were distinct from the 
pleaders of causes. They M'ere for the most part specialists, who con- 
fined themselves to the study of one particular branch of the law " 
(Nathan's Coinnnon Law, sec. 11). 

Jurisdictie (D.), jurisdiction. 

Jvirisprudence "is the science of living according to justice" 
(Grotius' Introd. 1, 1, 1). 

" The term jurisprudence is wrongly applied to actual systems 
of law or to current views of law, or to suggestions for its amend- 
ment, but it is tlie name of a science. This science is a formal, or 
analytical, rather than a material one. It is the science of actual 
or positive law. It is wrongly divided into ' general ' and ' particular ' 
or into ' philosophical ' and ' historical.' It may therefore be defined 
provisionally as ' the formal science of positive law.' The full im- 
port of this definition will not be apparent till after the completion 
of an analysis of the all-important term ' Law ' " (Holland's Juris- 
prudence, 10th ed. p. 13). 

Jurist, one versed in the law, especially the civil law ; a writer 
on law. As to the Roman jurists, see Bryce's History and Juris- 
prudence, vol. 2, p. 155. 

Juror, a duly qualified person liable to serve on a jury. In 
the Cape Colony every man residing within the colony between 
the ages of twenty-one j^ears and sixty years who is the owner 
or occupier of any immovable property of the value of not less 
than £300 according to the valuation of the divisional council 
or municipality, or is in receipt of salai-y or wages amounting to 
not less than £150 per annum, and who is not disqualified or 
exempted by the Act, is qualified and liable to serve as a juror on 
any jury empanelled for any trial or inquiry within the jury 
district in which such person resides. See Act 22 of 1891 (C.C), 
consolidating and amending the law relating to juries; also Act 2 
of 1894 (C.C), providing for the payment of persons summoned to 
serve as jurors in criminal cases. 

In the Transvaal as to jurors see Ordinance 10 of 1902 ; in 
the Orange River Colony, see Ordinance 17 of 1902. 

Jury, a body of' qualified persons (called jurors), empanelled for 
any trial or inquiry. The jurors are sworn to deliver a true verdict 
upon the facts submitted fio them during the course of the trial or 
inquiry. Trial hy jury is of early Auglo-Saxon origin, and was intro- 
duced into Cape Colony by sec. 34 of the Charter of Justice of 1832, 
which directed that in any criminal case depending before the Supreme- 



JURY 308 JUS 

Court, " the trial of any person or persons accused shall be before any- 
one or more of the judges of the said court and a jtiry of nine men, 
who shall concur in eveiy verdict to be given on the trial of any such 
accused party or parties; and every such verdict shall be delivered in 
open court by the mouth of the foreman of every such jury, and shall 
be thereupon recorded and read over to such jury before they are dis- 
charged from attendance on the said court." Trial by jury has since 
been adopted by the other South African colonies. 

The law relating to juries in criminal cases in Cape Colony was 
consolidated by Act 22 of 1891 ; payment to persons summoned to 
serve as jurors in criminal cases is provided for in Act 2 of 1894 ; and 
the trial by jury in civil cases is regulated by Act 2 of 1894. 

As to trial by jury in civil cases in Natal, see Act 39 of 1896, 
sec. 41 ; and as to trial in criminal cases see Law 10 of 1871 ; see also 
Law 24 of 1874; Law 8 of 1878; Law 14 of 1883; Law 4 of 1892; 
Act 15 of 1895 ; and Act 5 of 1899. 

For trial by jury in the Transvaal, see Ordinance 10 of 1902; 
Ordinance 1 of 1903, sees. 187 et seq. 

For the Orange River Colony, see Ordinance 17 of 1902. 

Jus. This word signifies either the law which defines a man's 
right or the right as defined by the law. In the Roman law the word is 
also used with a variety of other meaning.s. In the first place jus 
signifies the customary or unwritten law, dealt with in the writings of 
the jurists, as opposed to leges or imperial statutes. It also sometimes 
denotes secular law as opposed to fas, or law with a religious sanction, 
and sometimes it is used in the sense of strict law as opposed to equity 
(aequitas). Again, it is used to signify the presence of a magistrate, 
corresponding in this sense to the use of our word " court," as in the 
phrases in jure cessio, surrender into court ; in jus vocatio, a summons 
into the presence of a magistrate. So the proceedings in an action 
were divided into those in jure, before the magistrate, as opposed to 
those in judicio, before the judex. 

Jus accrescendi, right of accrual. In the Roman law if one of 
several instituted heirs died in the testator's lifetime, or failed for any 
reason to become heir, his share went to his co-heirs by ih.e jus accres- 
cendi. This ai'ose from the rule of Roman law that no one could die 
partly testate and partly intestate. As that rule, however, does not 
hold good in the Roman-Dutch law, the question whether a surviving 
heir takes a deceased co-heir's share is one depending upon what was 
the intention of the testator. (Voet's C'omm. 29, 2, 40; Schorer's 
Notes, 152, 163 and 182 ; Van Leeuwen's Comm. 3, 4, 4.) 

In the case of co-legatees the intention of the' testator is presumed 
from the way in which they are conjoined in the will. They may be 
named together in one of three dift'erent ways, viz., (1) re, where the 
testator leaves a certain thing to A and in another part of the will 
to B ; (2) re et verbis, i.e. the conjunction being both with regard tO' 
the subject of the legacy and by the words used, as where the testator 
says, " I leave my farm to A and B ; " (3) verbis tantum, the conjunc- 



JUS 309 JUS 

tion being by words only, as where the same thing is bequeathed to 
A and B in equal shares. In the first two cases there is a jvus accres- 
cendi, but in the third there is none. (See Nathan's Common Law, 
sec. 1876.) 

Jus accrescendi inter mercatores, pro beneficio commercii, 
locum non habet, for the benefit of commerce there is no right of 
accrual among merchants. In Englisli law where property is held 
by the form of co-ownership called joint-tenancy the presumption at 
common law, although not in courts of equity, is that the survivor is 
entitled to the wliole of the property upon the death of his joint- 
tenants. In accordance with the above maxim the presumption is 
excluded by mercantile law, the share of each partner upon his death 
going to liis heirs, and not to the other members of the partnership. 
This rigiit of accrual among joint-owners is not known in the Roman- 
Dutch law, according to which if one joint-owner dies, his share goes 
to his heirs by will or intestacy. 

Jus ad rem, the right to a thing; a personal right, as distin- 
guished from a jus in rem,, or real right. See Jus in rem. 

Jus civile, the civil or Roman law. In the sense in which the 
term is used in the Roman law jus civile means the ancient, technical 
and formal law of Rome prior to the jus honorarium,. In another 
sense civil law is the law which any State makes for its own Govern- 
ment, but when this term occurs in the text-writers I'eference is 
generally made to the Roman law. See Civil Law. 

Jus disponendi, the right of disposal ; one of the rights of full 
ownership. See DOMINIUM plenum. 

Jus eundi, the right of going. See Servitus itineris. 

Jus feciale, the law of negotiation and diplomacy ; the branch of 
Roman law which corresponded to modern international law. 

Jus gentium, the law of nations. The jus gentium was a branch 
of Roman law which arose from the increasing contact between the 
Romans and peregrine peoples. In the early Roman republic 
foreigners were denied any share in the institutions of the jus 
civile, which applied to and bound only Roman citizens. They could 
not, for example, be parties to a mancipatio, the mode used alike to 
transfer property and to effect a contract. As the Roman dominions 
extended and the commercial relations of Rome spread on every side, 
it became more and more necessai-y to devise some method of regu- 
lating and enforcing the rights and duties of foreigners. The Roman 
lawyers refused to apply to the new cases the principles of the jus 
civile, and, on the other hand, they declined to recognise the law of 
the particular State to which the foreign litigants belonged. The 
expedient adopted by them was that of selecting the rules of law 



JUS 310 JUS 

common to Rome and the different States from which the foreigners 
came. Thus, in the case of the transfer of property it was seen that 
delivery (traditio) was the common ingredient of the forms used in 
the different States as well as of mancipatio, the form of conveyance 
peculiar to Rome, and traditio was adopted as the jus gentiura mode 
of conveyance. The new law was administered throughout the Roman 
dominions by the peregrine praetors, who gradually rose to sixteen in 
number. In course of time, by means of the edict of the urban praetor 
and later through the responsa of the jurists, the rules of the jus 
gentium were grafted on to the old jus civile. Traditio in this way 
came to take the place of mancipatio, in the law of contract stipulatio 
and the consensual contracts displaced nexum and sponsio, and even 
agnatio, relationship based on the patriapotestas, made way for cog- 
natio or relationship by blood. Jus gentium does not mean inter- 
national law. It was the law common to all the nations whom the 
Romans had the means of observing, and therefore in modern law it 
is to be likened more to comparative jurisprudence. See Maine's 
Ancient Law, chap. 3. 

Jus honorarium, the law introduced by the Roman praetors 
through their edicts " for the purpose of assisting and supplement- 
ing the jus civile " or old law of Rome {Digest, 1, 1, 7). 

Jus in personam, a right against a person ; a personal as dis- 
tinguished from a real right, or jus in rem. See Jus IN REM. 

Jus in rem (or in re), a right in a thing ; a real right, as dis- 
tinguished from a jus ad rem or in personam, a personal right. 
He who has a jus in re has a right to the thing against all other 
men. and may enforce it against any one who interferes with his 
possession or control of the thing. A jus ad rem, on the other 
hand, is a mere right to oblige a particular person to give or do 
or not do something, as, for example, to give transfer of immovable 
property to a purchaser. After transfer the purchaser will have 
a jus in rem in the property, but until then his right is only a 
jus ad rem, or right against the seller to fulfil his obligation to 
pass transfer (Harris v. Buissine's Trustee, 2 Menz. 104; Van 
Aardt v. Hartley's Trustees, 2 Menz. 134). 

Jus itineris, a right of going. See Servitus itineri.s. 

Jus mariti, the right of the husband. This right includes the 
guardianship of the wife and the management and administration of 
her property. As regards the latter, the husband may alienate or 
encumber both movables and immovables without his wife's consent, 
even although community of property and of profit and loss have 
been excluded by antenuptial contract, unless the jus mariti has 
also expressly been excluded (Grotius' Introd. 1, 5, 22 and 24 ; Van 
Leeuwen's Comm. 1, 6, 7 ; Voet's Gomm. 23, 2, 52). A provision that 
the wife's property is to be secure to her will not, in the absence of an 



JUS 311 JUS 

express exclusion of the jiks mariti, deprive the husband of his right 
to alienate his wife's property. 

Jus naturale, the law of nature ; the principles which tlie highest 
reason commands to all men. Some writers adopt a threefold division 
of law, viz., civil law (jus civile), the law of nations (Jus gentium) and 
the law of nature. As, however, the jus gentiwm and the jus naturale 
are but the complement of one another, the law common to all nations 
being the indication of what right reason commands to all men, a 
twofold division of law is adopted by other jurists. See Law of 
Nature. 

Jus papirianum, a collection of the leges regiue or laws made 
during the regal period at Rome, so .styled from the name of the 
supposed compiler, Sextus Papirius, who lived during the reign of 
Tarquinius Superbus, towards the close of the sixth century B.C. 

Jus pascendi pecoris, the right of pasturing cattle; a rural ser- 
vitude entitling the owner of the dominant tenement to pasture or 
graze his cattle upon the servient tenement. The right of pa.sturing 
is limited to the stock of tlie dominant farm, and will not entitle the 
owner to graze stock belonging to strangers or stock belonging to 
himself, but used by him in connection with another farm (Voet's 
Gomtn. 8, 3, 10; Heidelberg Municipality v. Uys, 15 S.C. 156). The 
owner of the servient tenement cannot plough the pasture land or do 
any other thing which would interfere with the exercise of the right 
of the dominant owner ; but if the pasture is sufficient he may graze 
his own stock upon it (Voet, ibid. ; Heidelberg Municipality v. Uys, 
ibid.). The right may be acquired not only by express grant, but 
also by prescription {Municipality of Swellendam v. Surveyor- 
General, 3 Menz. 5t8). See Nolan v. Barnard ([1908] T.S. 142). 

Jus pignoris, the right of pledge; a real right given to a 
creditor over a thing belonging to another as .security for the pay- 
ment of his debt. The term includes pignus or pledge, properly so 
called, where the possession of the thing is given to the creditor, 
and hypotheca or mortgage, where the thing remains in the posses- 
sion of the debtor. 

Jus possessionis, the right of possession. See Possession. 

Jus postliminii, the right of postliminy or reverter. Postli- 
miny was a fiction of Roman law by which persons and in some 
cases things, captured by an enemy were, upon being again brought 
under the power of their own State, regarded as if they had never 
left it, and restored to their original legal status. The doctrine of 
postliminy is frequently applied in modern international law in the 
case of property taken by an enemy and afterwards recaptured. 
(See Taylor's International Public Law, sec. 559; Phillimore's 
International Law, 3rd ed. vol. 3, p. 615; also Mshwakezele v. 
audusa, 18 S.C. 167). 



JUS 312 JUS 

Jus publicum privatorum pactis mutari non potest, a 
public law cannot be altered by agi-eements or pacts between private 
individuals. See Privatorum conventio juri publico non debogat. 

Jus redimendi, the right of redeeming. By an agreement added 
to a contract of sale the seller may reserve to Inmself the right to 
redeem or purchase back the thing sold. See Pactum de retro- 

VENDENDO. 

Jus representationis, the right of representation; the right 
of a person to step into the place of a predeceased parent and to 
succeed to the share of an inheritance to which tlie parent would 
have been entitled if he had survived. Succession by representation, 
or -per stirpes, takes place amongst descendants ad infinitum, hue as 
regards collaterals it does not extend beyond the grandchildren of 
brothers and sisters or the children of uncles and aunts, i.e. the 
fourth degree, upon failure of which the inheritance is divided per 
capita amongst those collaterals in the fifth oi- more remote degree 
who are most nearly related to the deceased. 
« 

Jus retentionis, right of retention or lien ; the right to retain a 
thing until the owner has paid what is due to the holder in respect of 
it. Thus a .seller has a right to retain the thing sold until he has been 
paid the purchase-price. The right especially applies where goods have 
been entrusted to persons for the purpose of having work done or 
expense incurred in connection with them, e.g. workmen and artificers 
can retain goods until they have been paid the price of the work or 
labour employed by them in connection therewith. Carriers have the 
same right over the goods carried by tliem for the paj'ment of their 
charges, and innkeepers over goods brought by a guest to the inn 
until the board and lodging has been paid. So also an agent can retain 
the property of his principal until he has been reimbursed the expense 
incurred by him in connection with it, while an attorney or conveyan- 
cer has a lien upon documents for the cost of services rendered or 
expenses incurred by him in respect of them. As regards immovable 
property, one who builds or repairs a house, as well as one who builds 
or repairs a ship, has a right of retention until he has been paid for 
his labour and material {see Builder's Lien; also United Building 
Society v. Stnookler's Trustees and Golombick's Trustee, [1906] T.S. 
623). A bond fide possessor of land has also a right of retention 
until he has been compen.sated for improvements made by him upon 
the land (De Beers Consolidated Mines v. London and South African 
Exploration Co., 10 S.C. 359). See also Kersteman's Woordenb'oek, 
sub voce " Retentie." 

Jus retractus, the riglit of retraction. Tliis right is of two 
kinds, conventional and legal. Conventional retractus is an agree- 
ment annexed to a contract of sale that if the purchaser again sells 
the thing he shall sell it not to another, but to the original vendor. 
Where such an agreement is made the' purchaser before selling again 
must intimate to his vendor the price offered, so that the latter may 



JUS 313 JUSTICE 

decide whether he will repurchase the thing at tlie same price. This 
right oi; retraction must be exercised within two months, after which 
tlie purchaser will be free to sell to the third partj' who has offered 
to buy. The right applies only to the case of a sale, and not where the 
first purchaser transfers the thing by some other title than that of 
sale, such as exchange, donation, testamentary disposition, intestate 
succession (Voet's C'omm. 18, 3, 10). If the property sold under such 
an agreement is land the vendor will be entitled to have the agree- 
ment inserted in the transfer (Smuts' Executrix v. Meyer, 3 Searle, 75). 
The legal right of retraction, also called naasting, was the right belong- 
ing to the blood relations of the seller of immovable property to step 
into tlie place of the purchaser if the property should be again sold 
(Grotius' Introd. 2, 16; Voet's Gomm. 18, 3, 11-30). The light of 
ncmsting was also sometimes claimed in case of a lease of land. 
Legal retractus ov naasting does not appear to have formed part 
of tlie general law of Holland, and has been held to be of no force 
in South Africa (SeaviUe v. Colley, 9 S.C. 39). 

Justice "is the moral virtue of doing wliat is just" (Grotius' 
Introd. 1, 1, 2). 

Justice of the peace. The office of justice of the peace was 
originally created in the Cape CoJonj' by Sir Richard Bourke's 
Ordinance (32 of 1827), in which it is recited that whereas it was 
" expedient for the preservation of the public peace, the security of 
individuals and the due execution of the laws, that magistrates be 
appointed in the several districts of this [Cape] Colony, with power 
to apprehend, commit to prison or hold to bail all vagrants, rioters, 
robbers or other notorious offenders found within their sever-al juris- 
dictions, in order that such offenders may be brought to trial, and 
with power to do all other such matters and things as the said magis- 
trates may by law be appointed to do." The Ordinance then pro- 
ceeded to enact that it should be lawful for the Governor from time 
to time as occasion might require to appoint justices of the peace under 
the Great Seal of the Colony of the Cape of Good Hope, for Capetown 
and district and the several country districts respectively, who should 
take and subscribe the oath of allegiance and ' prescribed oath of 
office. Such justices of the peace wei-e authorised and required to 
preserve the public peace, and for that purpose to call to their aid and 
assistance all field -cornets, constables, and peace officers, military 
officers, and others, his Majesty's subjects, to quell all riots, brawls 
or other disturbances; and to lodge all rioters, brawlers, vagrants 
and disturbers of the peace in any pri.son within their respective juris- 
dictions to be dealt with according to law; they were also authorised 
and required to inquire of all crimes and offences committed, or 
alleged to be committed, within their respective jurisdictions, and 
for that purpose to summon and examine witnesses, and to apprehend 
criminals and deal with them iceording to law ; they were also autho- 
rised and required, upon information or complaint in writing upon 
oath made to them, or any of them, to cause to come before them all 



JUSTICE 314 JUSTUS 

those who had used any threats towards any person or persons, 
whether regarding their bodies or the firing of their houses, and to 
require adequate security for the peace and their good behaviour, 
failing which to keep them in prison. This Ordinance is still of 
force, but as a matter of fact the ordinary justice of the peace no 
longer exercises magisterial functions, although some judicial power 
has since been vested in special justices of the peace (q.v.). The 
principal duty of a justice of the peace at the present day is to ad- 
minister oaths (see an article on " Justices of the Peace in the Cape 
Colony" in 22 S.A.L.J. 179). 

As to special statute law in Natal on this subject, see Ordinance 
6 of 1846). 

Justitia attributrix. See Attributrix. 

Justitia nihil expetit praemii, justice seeks no reward. 

Justus error, reasonable error. In oi'der that a person may 
successfully plead an error of fact as a ground of obtaining relief 
from the effects of a contract entered into by him, he must show that 
his error was reasonable or justifiable. Thus, if land is purchased by 
a person under the bond fide belief that a house built on tlie land is 
included in the sale, and the circumstances are not such as to justify 
an opposite contention, the seller cannot plead Justus error and en- 
deavour to show that he did not intend to sell the house (Heatlie v. 
Colonial Government, 5 S.C. 356). So a person, who at a public sale 
has purchased certain land marked and numbered on a general plan 
exhibited at the sale, cannot afterwards refuse to accept transfer on 
the ground that he believed he was purchasing certain other lots. 
Tliis is not a Justus error, as it was the duty of the purchaser to in- 
quiie what lots he was buying (Meivington v. Davidson and Others, 
22 S.C. 148). In Logan v. Beit (7 S.C. 197) the principle was laid 
down that if the terms of a contract are unambiguous a misappre- 
hension of one of the parties as to its meaning will not found a claim 
for relief unless it is proved that the other party knew or had reason 
to know at the time when the contract was made that it was so 
misappreh ended. 

Justus titulus, a just title. In addition to the preseriptio 
longissimi tem/poris, or prescription of thirty years, the Roman law 
recognised another form of prescription, viz., usucapion, the period of 
which was three yeai's as regards movables, and as regards immov- 
ables ten years against persons present and twenty years against 
persons absent. For the purpose of usucapion, differing in this 
respect from the preseriptio longissimi tem/poris, botli bona fides and 
Justus titulus on the part of the possessor were necessary ; that is, he 
must have commenced his possession in the belief that he had a right 
to possess (bona fides), and have acquired it by some mode recognised 
by law {Justus titulus). In the Roman-Dutch law the only prescrip- 
tion recognised for acquiring ownership of property is the prescription 



JUSTUS 315 KEY 

of a tliird of a century, wliich is generally taken as applying to both 
movable and immovable property (Voet's Comm. 44, 3, 8; Van der 
Linden's Institutes, 1, 18, 8; Schorer, in notis, 80), although Van 
Leeuwen {Comm. 2, 8, 5) and Van der Keessel {Thes. 206) liold with 
Groenewegen that thirtjr years is sufficient for movable property. 
For this prescription, as in Roman law, neither hona fides nor Justus 
titulus is required. 



Kamp (D.), portion of a farm enclosed for the purpose of depas- 
turing stock therein so as to enable them to run and live there, if 
necessary day and night {Bronkhorst v. Aherfeldy Diamond Develop- 
ing Co., Ltd., [1904] T.S. 477). For a comparison between a kamp 
and a kraal, ,«ee Kraal. 

Kanonieke recht (D.), Canon law. 

Kaolin, a hydrosilicate of alumina ; a fine variety of clay resulting 
from the decomposition of feldspar. See FiRE-CLAY. 

Keeper of the Great Seal, a high State official in England. He 
was the Keeper of the Great Seal of Great Britain. Since 5 Eliz. 
c. 18, the Lord Chancellor is the Keeper. 

Keeper of the Privy Seal, now known as the Lord Privy 
Seal, is the officer in England through whose hands all charters, 
pardons, &c., pass before they come to the Great Seal. This office 
is held by a Cabinet Minister. The Keeper of the Frivy Seal is a 
Privy Councillor, 

Keeper of the Touch, the Master of the assay in the British 
Mint. 

Keuren (D.), local enactments in the Netherlands. In Friesland 
they were called Kesten. Keuren were issued by the counts, and 
were purely local laws and statutes for local purposes, issued for the 
general welfare of the people under the government of a count 
(18 S.A.L.J. 279). See Wessels' History, p. 210. 

Keurwond (D.), was in Kennemerland a statutory wound of 
the length of a nail of one of the two first-fingers (Van Leeuwen's 
CoTnm. Kotze's trans, vol. 2, p. 285). A penetrating wound in the 
fleshy part of the body was equal to nine keurwonden, and if the 
wound went right through from side to side it was equal to eighteen 
keurwonden (ibid. p. 286). 

Key plan, a small diagram or plan showing how several other 
plans on a larger scale are pieced together. As to alleged misrepre- 
sentations by means of a key plan, see Jenkins v. Durban Bay Lands 
Go., Ltd. (26 N.L.R. 455). 



KILL 316 KING'S 

"Kill or catch," in the Natal Game Act (8 of 1906), sec. 2, 
includes " intentionally disturbing, chasing, capturing, shooting or 
shooting at, injuring or destroying in whatever manner or by what- 
ever means; and also includes any attempt to do any of such things; 
and also includes aiding or being knowingly a party to any of such 
acts." 

Kin, relationship. 

Kinderbewys (D.), a deed of hypothecation or mortgage passed by 
a surviving spouse, married in community of property, for the purpose 
of securing to the minor childi-en of the marriage the portions due to 
them from the estate of the deceased spouse. Before entering upon 
a second or other marriage a surviving spouse is obliged, in South 
Africa, to pay the portions due to the minor children from the 
estate of the deceased parent to the Master of the Supreme Court or 
to secure such portions by a deed of kinderbewys. 

Kindermoord (D.), infanticide. 

Kindskinderen (D.), grandchildren. 

King, the supreme ruler of a State. Dicey, in his Law of the 
Constitution (6th ed. p. 11), throws some doubt upon this defini- 
tion, and points out " that tlie true position of the Crown, as also 
the tr-ue powers of the Government, are concealed under the fictitious 
ascription to the sovereign of political omnipotence." 

K.B., an abbreviation of King's Bench. See King's Bench. 

King's Bench, one of the divisions of the High. Court of Justice 
in England. It is the court of common law, having cognisance of 
both civil and criminal causes, and is presided over by the Lord Chief 
Justice. 

K.O., an abbreviation of King's Counsel. See King's Counsel. 

King's Counsel. The position of Queen's Counsel, which seems 
to have been the earliest appointment, was first created in the time 
of Queen Elizabeth. Lord Bacon was the first who bore that title, 
The next appointment of King's Counsel was made in the reign of 
Charles II, when Sir Francis North (Lord Guildford) was created 
King's Counsel. From that date the title seems to have grown, and 
to have gradually assumed its present significance (Dillon, The Laws 
and Jurisprudence of England and America, p. 69). King's Counsel 
occupy the first place among the members of the bar. Next came 
the sergeants-at-law, but that degree has been abolished. The 
barristers-at-law hold the lowest rank at the bar. The patent to 
a K.C. describes him as "one of our counsel learned in the law. 
A K.C. "leads" in the case, receives double the fees of an ordinary 
barrister, and does not admit pupils in his chambers. When the 
order of sergeant-at-law still existed, a member of that order, who 



KING'S 317 KRAAL 

had obtained a patent of precedence, stood on the .same footing as a 
King's or Queen's Counsel, and their relative precedence depended 
on the date of their respective appointment. A King's Counsel 
appears in a silk gown, whereas the ordinary barrister is robed in a 
black stuff gown. Hence the expression " to take silk " is equivalent 
to being raised to the dignity of a King's Counsel. A K.C. cannot 
act against the Crown except with leave of the Crown. 

King's Proctor, a public functionary representing the Crown in 
the Courts of Probate and Divorce in England to prevent collusion in 
actions for divorce. 

King's warehouse, equivalent to Queen's warehouse. See Queen's 
Warehouse. 

Klick steenen (D.). In Nijmegen, about the thirteenth century, 
the hangman's " assistants were called klick steenen ; these were 
entitled to the underclothing of the person executed " (Wessels' 
Histwy, p. 165). 

Knevelarij (D.), extortion, that is to say, " when a person with a 
view to benefiting himself by abusing his ofBce or authority, or by 
pretence of an order from the Government, frequently by threats, 
compels and forces another to submit to that which he desires " (Van 
der Linden's Institutes, Juta's trans, p. 208). The crime of extortion 
can be committed by any private person, and is not confined to officials 
(see The State v. Jacob and Jacob, 6 Off. Rep., referred to in Van 
Hoytema and Raphaely's Digest, col. 147). See also Van Leeuwen's 
Comm. 4, 33, 8 ; CoNcussio ; Extortion. 

Kohlo. See Ikohlo. 

Koop (D.), purchase ; bargain. 

Kooper (D.), a purchaser ; a buyer. 

Koophandel (D.), commerce, trade. 

Kraal (D.). (1) An enclosure used solely for confining stock. In 
deciding whether an enclosure is a kraal or a kamp the use to which 
it was put should be taken as the test ; a kraal is an enclosure used 
solely for the purpose of confining stock, chiefly at night ; whereas 
a katnp is used for enclosing stock depasturing in it so as to enable 
them to run and live there if necessary day and night (Bronkhorst V; 
Aberfeldy Diamond Developing Co., Ltd., [1904] T.S. 477). , 

(2) In the Cape Native Territories' Penal Code (Act 24 of 1886), 
sec. 5 Ik), "the word kraal denotes any hut, house or enclosure 
occupied by any single family or member of a family, or any 
aboriginal tribe, or any collection of huts, houses or enclosures 
occupied by several families of any aboriginal tribes, with a recog- 
nised head known as umninimzi." 



KRAAL 318 LAAT 

In Act 1 oil 1899 (N.), sec. 5, it includes "the hut, house, resi- 
dence, or place of abode of whatever description of any native," 
Kraals in Natal are exempt from the operation of the Mines and 
Collieries Act (43 of 1899, sec. 92 (c)). In the Natal Code of Native 
Law (Law 19 of 1891), sec. 14 of schedule, kraal is defined as " the 
domestic establishment and ordinary place of residence of natives. It 
is subject to and under the control of a ' kraal head,' and may consist 
of one or more houses. For the purposes of this Code individual 
dwellings occupied by natives on mission stations or private lands 
or elsewhere are to be deemed kraals." See Kraal Head; Kraal 
Property. 

For the Orange River Colony, see Ordinance 14 of 1903 (O.RC), 
sec. 1. 

Kraal head, an expression used in the Natal Code of Native 
Law to denote " the head of a family and the possessor or occupier 
of the kraal or ki'aals containing such family, either in his own 
right or by the right of guardianship. The term kraal head shall 
also include the heads of families living on mission stations or 
private laiids, whether living in kraals or in separate dwellings" 
(Law 19 of 1891, sec. 13 of sch.). 

Kraal property. These words in the Natal Code of Native Law 
(Law 19 of 1891), sec. 17 of schedule, "denote all tlie property in a 
kraal or kraals being the absolute pi'operty of the kraal head. They 
do not denote property specially apportioned or gifted to any of the 
houses of the kraal or kraals, nor to the pi-operty of an inmate of 
a kraal not related to or belonging to the family of the kraal head." 

Krijgswet (D.), the equivalent for martial law ; the law pertain- 
ing to war and the military. The late South African Republic and 
Orange Free State had each a krijgswet providing for the military 
estaljlishment of the State and the conduct of military operations. 

Kustingbrief (D.), a special mortgage bond over immovable pro- 
perty securing to the seller the balance of the purchase-price of such 
property. See Grotius' Introd. 2, 48, 40 ; Van Leeuwen's Gomm. 
Kotze's trans, vol. 2, p. 84. 

Kustingpenningen (D.), the balance of the purchase-price of im- 
movable pi'operty, together with interest thereon. See Van Leeuwen's 
Gomm. Kotze's trans, vol. 1, p. 114, in noti>^. See Kustingbrief. 

Kwijtschelding (D.), release. A kwijtschelding van schuld is a 
release of a debt. 



Laat (D), a farmer, a husbandman. It also denotes an inferior 
judge who decides petty cases. Laatbank, the court held by such 
oflScer. 



LABOUR 319 LAESIO 

Labour agent, a person engaged in recruiting native labour. The 
term labour agent is defined in, and for the purposes of, tlie Cape 
Native Labour Agent Act (6 of 1899) to mean and include " any person 
who shall himself or by means of runners or messengers in his own name 
or otherwise, for the purpose of work or labour beyond the borders of 
the [Cape] Colony procure or attempt to procure, ply, seek for, or 
engage natives, or shall supply or contract or undertake to supply 
natives to be employed or engaged in work or labour of any kind 
beyond the borders of the colony." See also sec. 5 of the same Acb. 

In the Transvaal labour agent is defined in sec. 2 of sch. A cf 
Proclamation 38 of 1901 to be " any person who shall himself or 
through^ agents or messengers, in his own name or otherwise, procure 
or attempt to procure, seek for, engage, conduct, take charge of, supply 
or undertake to supply natives to be employed in work or labour of 
any kind within the Transvaal; provided that the term labour agent 
shall not include any person who procures or engages or conducts 
natives for his own bond fide domestic or personal business exclusively ; 
provided that the total number of natives so employed by him does not 
exceed twenty at any one time." Sec. 1 of the schedule to the Pro- 
clamation referi-ed to makes it unlawful for any person to act as a 
labour agent within the Tiansvaal unless he is in lawful possession of 
a license issued by the Commissioner of Native Affairs or by any 
officer appointed by him thereto. In Gerandeau v. Rex ([1903] 
T.S. 458) it was held that sec. 1 did not apply to a person who, with- 
out any pecuniary or other interest in the transaction, engages a native 
servant for another. See Ordinance 6 of 1906 (O.R.C.), sec. 2. See 
Tout. 

Labour tout. See Labour Agent ; Tout. 

Laches, i-emissness ; neglect in the assertion of a right. 

Lacuna, a hiatus ; a blank caused by an omission or obliteration. 

Laesio enormis, enormous le-sion. In Roman-Dutch law contracts, 
such as sale, lease, partnership, &c., may be set aside on the ground of 
laesio enormis, which is regarded as having taken place when one of 
the contracting parties has been damnified to the extent of more than 
one-half of the subject-matter of the contract, as where a purchaser 
pays more than twice the market value of the thing sold or the vendor 
has received less than half of that value. The party who has been 
damnified may at his option hold by the contract, and claim damages 
or sue for cancellation of the contract. In determining whether Ic.esio 
enormis has taken place, the value to be considered is the value of the 
subject-matter of the contract at the time when the contract was made, 
not the value at the time when the action is raised. Laesio enormis 
does not apply to sales made by order of court, sales of a testator's 
property at a price fixed upon by his will, or sales of a chance {spes), 
such as the .sale of a crop which is still to be produced. This remedy 
of the common law has been abolished in Cape Colony by Act 8 of 
1879, sec. 8, and in the Orange River Colony by Ordinance 5 of 1902, 
sec. 6. 



LAGAN 320 LAND 

Lagan. See Ligan. 

Lager beer. Defined in the Cape Additional Taxation Act, 
(36 of 1904), sec. 2, to mean " beer the mash of which is made or 
partially made by the process of decoction, and the worts of which 
are fermented at a low temperature by means of ' low ' or ' bottom ' 
yeast." 

Laity, the people as distinguished from the Church. 

Land. In the Transvaal Municipalities Powers of Expropi-iation 
Ordinance (64 of 1903), sec. 2, land means and includes: "(a) land 
with or without buildings thereon; (b) land or the usufruct thereof; 
(c) all land held under anj- tenure or under lease or stand or claim 
license : and (d) any servitude over land." See Private Land. For 
further definition see Ordinance 44 of 1904 (T.), sec. 1 ; Ordinance 
11 of 1905 (O.R.C.), sec. 1. 

Land-graven; Landtgraven (D.), or landgraves, were the judges 
of a certain province in Holland (Van Leeuwen's Comm. Kotze's tran.s. 
vol. 1, p. 63). See Graaf 

Land Register, a special register kept in the office of the Regis- 
trar of Deeds for the registration of the title to land as well as 
servitudes and other encumbrances relating thereto. " In the Roman 
law we find nothing about registration in the transfer of land. In 
western Europe, however, a custom sprang up in many places which 
required the seller and purchaser to appear before some official and to 
state in the presence of witnesses that a sale of the land had taken 
place. The transaction was then noted in a book kept specially for 
the purpose. This custom prevailed throughout the greater part of 
the Netherlands, and was in the time of Grotius regarded as an in- 
veterate custom. In many parts of the Netherlands, in addition to 
the registration, the sale had to be publicly proclaimed on three 
Saturdays or on three cliurch days {Rechts. Obs. pt. 3, obs. 32). 
There can therefore be but little doubt that the registration coram 
judice loci rei sitae wa.s for the purpose of publicity, partly that land 
should not be sold twice over to different purchasers, and partly so 
that persons who had any claim upon the land might assert these 
claims before the purchaser took possession. In Holland the registra- 
tion took place before the schepenen of the district where the land 
was situated. The system of registration was afterwards, by various 
Placaats, extended to hypothecations, servitudes and other burdens. 
When the Dutch settled in the Cape Colony they brought over from 
Holland this system of registration, and the titles to land granted by 
the Governors were registered before the Commissioners of the Court 
of Justice. No sales of this land and no servitudes imposed thereon 
were recognised, unless these were registered against the title before 
the Commissioners. Later on in the Cape Colony the office of Regis- 
trar of Deeds was created, and he continued the functions of the Com- 
missioners as regards the registration of sales and burdens on land. 
The Registrar of Deeds therefore took the place of the Commissioners; 



LAND 321 LANDREOHT 

as tliese had taken the place of the schepenen. The only register 
kept by them which affected land was the register of titles or Land 
Register, as it is frequently called" (per Wessels, J., in Houtpoort 
Mining and Estate Syndicate, Ltd., v. Jacobs, [1904] T.S. at p. 108). 

The Cape system of land registration was subsequently intro- 
duced into the other South African colonies, each of which has a 
separate Deeds Office and Land Register. In practice the system 
works admirablj'', and it enables the transfer or conveyance of land 
to be effected with precision, expeditiously, and at little cost. Refer- 
ence to the Land Register is facilitated by means of a very complete 
index. 

The effect of a transfer of land duly registered is to divest the 
transferor of all right to the property transferred and to vest the 
same in the transferee, and this is the case whether the purchase- 
price has been paid or not. 

Landed property " means land, including houses, buildings, &c., 
upon the soil" (per Innes, C.J.. in Van Wylc, Burger and Nefdt v. 
Bykerman, [1904] T.S. at p. 915). 

Landerij (D.), portion of a farm broken up and used for agricul- 
tural purposes, whether irrigated and enclosed or not, and such land 
does not cease to be landerij merely because it has lain fallow for a 
year or two, in the absence of proof that the use of it for agricultural 
purposes has been definitely abandoned (Bronkhorst v. Aberfeldy 
Diamond Developing Co., Ltd., [1904] T.S. 477). 

Landlord, the owner of immovable property ; the proprietor of 
an hotel or boarding-house. 

Landlord's lien, the hypothec possessed by landlords over goods 
brought on to the premises let, for the use of the lessee, with the con- 
sent of the owner of the goods, and with the intention that they 
should remain there indefinitely. The landlord's lien only lasts, as a 
general rule, while the goods are on the leased premises, and the court 
will not interfere after the goods have been once removed, if a third 
person has acquired rights in the goods bond fide (Alexander v. Burger, 
[1905] T.S. 80). 

Landmeter (D.), a land surveyor. In South Africa land sur- 
veyors or landmeters are authorised by Government to practise as 
such after passing the prescribed examinations. 

Landrecht (D.). "It is clear that besides the keuren and 
handvesten there existed a kind of common law or landrecht com- 
posed of what was called the oude costumen. What these old cus- 
toms w^ere our authorities do not state, but from numerous charters 
and extracts Van der Spiegel concludes ' that it is certain that these 
old customs were nothing but the old laws and customs which had 
grown up with our forefathers; they were the mores Germanorum, 
the laws of the Franks and the neighbouring nations, and the then 



LANDREOHT 322 LATERAL 

known Lex Bomana' (Van der Spiegel, p. 95)" (Wessels' History 
p. 108). 

Landsdieverij (D.), theft of public moneys. This crime is 
committed by those who steal public money entrusted to their care. 

Landwinning (D.), a license of non-molestation, whereby a per- 
son who had killed another in necessary self-defence, or if the 
killing was attended by such slight negligence as not to merit 
punishment, was allowed to remain undisturbed in the country 
(Van Leeuwen's Comnn. 4, 43, 3) ; a su7'ete de corps. 

Lapse, to pass away ; to become void. Sec. 85 of the Gold Law 
of 1898 (T.) (now repealed) provided that in certain circumstances 
if claim licenses were not duly renewed the claims should "lapse to 
Government"; it was held by SoLOMOX, J., in Van Ryn Gold Mines 
Estate, Ltd., v. Frames ([1904] T.S. at p. 986) that in case claims so 
lapse " the original or former claimholder ceases to be the holder 
of the claims, and those claims lapse to the Government; they pass 
from the claimholder and they vest in the Government; the domi- 
nium in the claims ceases to be in the original claimholder, and the 
dominiuvfi is, by those words of the legislature, transferred to the 
Government." 

Lastbrief (D.), a warrant. 

Lastering (D.), slander. 

Lastgeving (D.). See Mandaat. 

Latent, concealed ; not apparent. 

Latent ambiguity. " The admission or rejection of parol evi- 
dence is commonly said to depend in all cases on the canon, which 
rejects it in the case of a patent ambiguity, or ' that which appears to 
be ambiguous upon the deed or instrument,' and admits it in the 
case of a latent ambiguity, or 'that whicii seems certain and without 
ambiguity for anything that appeareth upon the deed or instrument, 
but there is some collateral matter, outside of the deed, that breedeth 
the ambiguity.' In the latter case ambiguity being raised by parol 
evidence, may, it is said, be fairly removed by the same means. But 
upon examination the maxim proves not to be an universal guide; 
for, on the one hand, there are many recognised authorities for the 
admission of parol evidence to explain ambiguities appearing on the 
face of the will, while, on the other hand, the evidence of a latent 
amhigibity will certainly not, as appears sometimes to have been .sup- 
posed, warrant the admi.ssion in all case.s indiscriminately of parol 
evidence to show what the testator meant to have written as distin- 
guished from what is the meaning of the words he has used" (Jarman 
on Wills, 5th ed. p. 400). Also see full discussion of the subject in Re 
Herold; Ex parte Rademeyer (1 S.C. at p. 164). 

Lateral, pertaining to, or proceeding from the side. 



LATERAL 323 LAW 

Lateral support. See Support. 
Laundry foreman. See Servant. 

Law agent, a person o£ full age, and of good fame and character, 
enrolled in a court of resident magistrate to practise therein on pay- 
ment of a small fee. 

In Cape Colony a law agent may not be admitted in a district 
where not less than two attorneys are in practice. None can be 
admitted in Natal since the passing of Act 22 of 1896. 

In the Transvaal only law argents who were entitled to practise in 
the courts of landdrost of the late South African Republic, or who 
have passed the examinations which under the laws of tlie Republic 
would have entitled them to admission, could be admitted ; no provision 
has been made for furtlier enrolment or admission. 

In tlie Orange River Colony Ordinance 7 of 1902 authorises the 
enrolment of persons of full age and of good fame and character to 
practise in the courts of resident magistrate in districts wliere less 
than three attorneys are carrying on practice as such independently 
of one another ; in that colony they are called " admitted agents." 

In Rhodesia the same power to admit applies as in Cape Colony. 

Laiu agents are not authorised to practise in the superior courts. 
They must not be confounded with the Scotch law agent, who ranks 
as a solicitor. Before the Anglo-Boer war tlie South African Republic 
stood alone in requiring law agents to pass an examination in law. 
Now in the Transvaal, by Act 33 of 1908, law agents may at any time 
within four years from the passing of the Act be admitted as attorneys 
upon their passing any of the examinations in law prescribed by the 
Act for tlie purpose. In the Orange River Colony provision was 
made by Ordinance 13 of 1904, sec. 7, for admission of laiv agents as 
attorneys under similar conditions at anj? time within three years 
from the taking effect of the Ordinance. 

Law Lords, peers in Great Britain wlio hold or have held liigh 
iudicial office. 

Law of Nations " is that which is universally adopted by all 
nations for upholding the great society of mankind" (Grotius' Introd. 
1, 2, 11). The Law of Nations is what obtains, and is uniformly 
observed, among all nations, or at least among sucli as are more civi- 
lised " (Nathan's Common Law, sec. 8). " The body of rules regulat- 
ing those rights in which both of the personal factors are States, is 
loosely called tlie 'Law of Nations,' but more appropriately 'jus ivter 
Gentes ' or ' International Law.' It differs from ordinary law in being 
unsupported by the authority of a State. It differs from ordinary 
morality in being a rule for States and not for individuals" (Holland's 
Jurisprudence, 10th ed. p. 380). 

Law of Natxxre. " Tlie natural law of man is the dictate of reason 
pointino- out what things are in their very nature honourable or dis- 
honourable, with an obligation to observe the same imposed by God " 

v2 



LAW 324 LEAP 

(Grotius' Introd. 1, 2, 5). Tlie Law of Nature is defined by Van der 
Linden as " including all the duties, both perfect and imperfect, which 
natural reason teaches us must be observed in order to advance our 
own happiness and that of our fellow-men " (Van der Linden's 
Institutes, 1, 1, 3). "That portion of moralitj' which supplies the 
more important and universal rules for the governance of the outward 
acts of mankind is called the Law of Nature. . . . While there has 
been much difference of opinion as to the contents of the Law of 
Nature, the existence of such a law has been very generally admitted " 
(Holland's Jurisprudence, 10th ed. pp. 30, 31). 

" We owe to the theory of Natural Law far more than is usually 
imagined. We owe to it our modern International Law, and a great 
deal of the law reform of the seventeenth and eighteenth centuries. 
A correct appreciation, thei-efore, of the philosophy of law as accepted 
by Giotius and adopted by nearly all the great writers on the Roman- 
Dutch law is not unnecessary, and not the waste of time which so- 
many believe it to be. It was only after the Roman-Dutch law had 
been supplanted by the Code Napoleon that these h3?potheses were 
seriously attacked, and that the system of jurisprudence based on 
Natural Law fell into discredit. In order, therefore, to understand 
the scientific development of the Roman-Dutch law the student should 
never lose sight of the fact that Natural Law or the Law of Nature 
was the corner-stone of the whole fabric " (Wessels' History, p. 293). 

Law Reports, reports of the proceedings and judgments of the 
superior courts of law. Bryce in his History and Jurisprvxience 
(vol. 2, p. 266) points out that the Reports fill a place in English 
legal studies corresponding in a genei'al way to that which the 
treatises of the great Roman jurists filled in the Roman Empire. 

Law Society. See Incorporated Law Society. 

Lawful, conformable to law ; legitimate. 

Lawsuit, a civil action or proceeding in a court of law between 
two parties. 

Lawyer, a person learned in the law, who has been duly admitted 
to practise in the superior courts. 

Lay days, the agreed number of days allowed to the charterer 
of a ve.ssel for shipping or discharging cargo. 

Leading cases, cases decided in the superior courts containing^ 
great principles of law, or containing .some point of law of real 
practical importance. 

"Leaf." In Re Ehdens Will (4 S.C. 495) the question arose 
as to the validity of the execution of a will which w^as written 
page-wise on the three first pages of an oi'dinary sheet of folded 
note-paper, and duly signed by the testator, and attested by the 



LEAF 325 LEOTORES 

witnesses at the foot or end thereof, on the third page ; at the bottom 
of the first and second pages the witnesses signed their names, but 
not tlie testator ; and tlie body of the will was in the testator's 
handwriting, including liis name at the commencement. The point 
for decision was whether this was a sufficient compliance with the 
provisions of Ordinance 15 of 1845 (C.C.), which requires that 
where wills are written on more leaves than one, the testator and 
witnesses shall sign their names upon at least one side of every 
leaf. De Villiers C.J. (at p. 498), said: "The only requirement 
is that the testator and witnesses shall sign their names upon at 
least one side of every leaf. It is obvious that tliis requirement 
was introduced for the purpose of authenticating tl)Ose portions of 
the insti'ument which are disconnected from the signatures at the 
€nd. There is force in the argument of the applicant's counsel 
that this object could have been attained by a direction that one 
side at least of every sheet should be signed, and he follows up 
this argument by contending that by the word leaf the legislature 
really meant ' sheet.' But the meaning of the word leaf is too 
clearly establi.shed to admit of this construction. Where a sheet 
of paper is folded and written upon page-wi.se, no one would speak 
of the wliole sheet as a leaf, but the parts into which the sheet is 
divided by the folding, each consisting of two pages, would be called 
leaven. ... A leaf is a leaf, whether it forms part of a will or of 
a book." See also Re Walters Estate (9 S.C. 311). 

Leak, a breach or hole which lets in water ; also the passing of 
water or other fluid through a crack or aperture. As to whether 
an escape of electricity from rails, uninsulated, on its way to the 
earth, constitutes a leak, see' Eastern and S. A. Telegraph Co. v. 
Capetotvn Tramways Co. (17 S.C. at p. 107). As to difference 
between leaJc and leakage, see ibid. In the same case Laurence, J. P. 
(at p. 117), points out that ''a leak, so to speak, is a thing, while 
leakage is a process." 

Lease. See Leitino and Hiring. 

" Leave and bequeath." " We understand that the terms leaving 
and bequeathing {laten en maJcen), which would be deemed to amount 
to a simple bequest where tliey refer to a single thing, denote a 
complete institution to the inheritance (erfstelling) if they relate to 
the entire administration of the estate and no one else is appointed 
heir, or if used between children and parents who must be left a 
certain portion of the inheritance" (Van Leeuwen's Comm. Kotze's 
trans, vol. 1, p. 363). It must, however, be borne in mind that 
the right to claim legitimate portion has been abolished throughout 
British South Africa {see Legitimate Portion). 

Lectores, a term sometimes applied to notaries in the middle 
ages. See Wessels' History, p. 198. 



LEEN 326 LEGAL 

Leen (D.). (1) A feud or fief. 

(2) A loan. Grotius in his Introduction (Maasdorp's trans, 
p. 229) says: "In Dutch the word leenen is applied not only to the 
case where the same identical article is to be returned, but also where 
not the same article, but an equal quantity is to be returned ; but, 
as the characteristics of these two contracts are widely different, it is 
necessary to qualify this ambiguous term by some adjective." See 
Bruikleen; Verbbtjikleen. 

Leenbankhouder (D.), a pawnbroker. This term is thus used in 
Law 13 of 1894 (T.). 

Leenheer (D.), feudal lord. 

Leenrecht (D.), the Dutch equivalent of jus feudi, defined by 
Grotius {Introd. 2, 41, 1) as "an hereditary indivisible usufruct over 
the immovable property of another, coupled with the mutual obliga- 
tion of protection on the one side and the duty of homage and service 
on the other." 

Legaat (D.) [pi. legaten], a legacy ; " a voluntary gift which the 
deceased directs his heir to satisfy : and may be left by and to every 
one who may make or take bj^ last will " (Van Leeuwen's Gmwni. 
Kotze's trans, vol. 1, p. 389). 

Legacy. Justinian {Institutes, 2, 20, 1) defines legacy as a 
kind of gift left by a person deceased. Grotius (Introd. 2, 14, 13, 14) 
says: "A legacy or bequest is a declaration of intention whereby 
something is left to a person by last will, but not as heir. That is, 
not in his capacity as heir, whether instituted jointly witli others 
or not." "Donatio quaedam a defuncto relicta is a deduction from 
an inheritance for the benefit of some one. It is the creation of a 
claim upon the universal successor, and a distinction is drawn between 
the vesting of a legacy, dies cedit, and its becoming payable, dies 
venit. It may be revoked by the testator, or it may lapse. It will 
be void if inconsistent with any rule of law as to the amount of 
legacies, or as to the proportion which they may bear to the property 
which is to remain with the heir, or as to the persons who may 
receive them. A legacy must be distinguished from a donatio mortis 
causa, which, though it takes effect on the death of the donor, does 
not do so by way of deduction from the inheritance " (Holland s 
Jurisprudence, 10th ed. p. 158). 

Legal, pertaining to the law ; lawful ; having the force of law. 

Legal duty, a duty imposed upon a public body or an individual 
by the legislature. See Jordaan v. Worcester Municipality (10 S.C. 
159) ; Haarhoff's Trustee v. Frieslich (11 S.C. 339). 



LEGAL 327 LEGES 

Legal mortgage (also known as " tacit mortgage " or " tacit 
hypothecation "), such mortgage as arises by operation of law. 

Legal proceedings. In the Cape Bankers' Books Evidence Act 
(21 of 1877) legal proceedivifs means and includes all proceedings in 
courts of justice, both criminal and civil, and all proceedings by way 
of arbitration, examination of witnesses, assessment of damages, com- 
pensation or otherwise, in which there is power to administer an oath. 
The same definition is given in Ordinance 11 of 1902 (O.R.C.), sec. 1. 
See Page v. Burtwell (99 L.T. 542). 

Legal tender. See Tender. 

Legalise, to make lawful. 

Legatee, one who becomes entitled to a legacy. "It is no doubt 
quite true that besides the personal action which a legatee has under 
the will against the heir or executor, he also possesses certain real 
rights by virtue of which he may either bring au action w rem to 
recover the subject of the legacj^ itself, or may institute an hypo- 
thecary action in respect of property belonging to the estate of liis 
testator" (per De Villiers, C.J., in Booysen and Another v. Colonial 
OrpJian Chamber, Foord, 48). 

Legatum rei alienae, legacy of a thing belonging to another. If 
a testator bequeaths property believing that it is his, while in fact it 
belongs to another, the legacy is void. If, however, he knew that the 
property did not belong to him the legacy will be valid. In the latter 
case if the subject of the legacy belongs to the heir himself he will be 
bound to deliver it to the legatee. If it belongs to a third party, the 
heir must endeavour to purchase it for the legatee, and if this is im- 
possible he must pay the legatee the value of the property (Grotius' 
Introd. 2, 22, 38 and 39; Van Leeuwen's Coonm. 3, 9, 9; see also Sehorer, 
pote 161). 

Leges Barbarorum, one of the sources of law in the Netherlands 
at the time of the Carolingian monarchy. See Wessels' History, 
p. 41. 

Leges et constitutiones futuris certxim est dare formam 
negotiis, non ad facta praeterita revocari, it is a rule that laws 
and ordinances make provision for future matters and do not apply 
to past acts; that is, laws are prospective, and not retrospective in 
their effect. This maxim expresses the general principle of law that 
no statute can be applied to cases occurring previous to its operation 
unless it is clear from its terras that the statute is intended to have 
a retroactive effect. In Colonial Government v. Standard Bank 
(9 S.C. 25) this maxim was referred to. That was an action for the re- 
covery of bank-note duty alleged to be due under Act 6 of 1864 (C.C.). 
This Act had. provided that every bank should pay a yearly duty of 
1| per cent, upon the average issue of bank-notes of each year end- 



LEGES 328 LEGISLATION 

ing the 31st December, such average issues to be ascertained by adding 
together the amounts set forth in the several monthly returns of such 
bank for such year and by dividing the result by twelve. Upon the 
23rd October, 1891, Act 6 of that year came into operation, and, in 
imposing a new bank-note duty, repealed the Act of 1864. It was 
claimed that duty was due under the 1864 Act upon the issue of 
bank-notes for the nine months ending the 30th September, 1891. 
The bank contended that the effect of the repeal of the Act was to 
extinguish its liability for such duty. It was, however, held that 
although demand could not be made nor an action brought until 
after the 31st of December of any year, the liability for ^he duty 
had been incurred under the law, and that although repealed the law 
remained in force for the purpose of sustaining any action to enforce 
such liability. See also Guinsberg v. Scholtz ([1903] T.S. 748). The 
rule that new laws cannot have a retroactive effect does not apply to 
laws which are declaratory (Van Leeuwen's Comra. 1, 3, 1 ; Decker 
ibid, in notis). Remedial statutes are often given retroactive effect. 

Leges regiae, regal laws ; laws made during the regal period at 
Rome. See Jus papihianum. 

Legislature, tlie assembly or assemblies of persons in a State 
vested with the authority to make, amend or repeal laws in that 
State. Professor Dicey draws a distinction between sovereign and 
non-sovereign legislatures. He says : " We perceive without difficulty 
that the Parliaments of even those colonies, such as the Dominion of 
Canada, or the Australian Commonwealth, which are most nearly 
independent States, are not in reality sovereign legislatures. This is 
easily seen, because the sovereign Parliament of the United Kingdom, 
which legislates for the whole British Empire, is visible in the back- 
ground, and becau.se the colonies, however large their practical freedom 
of action, do not act as independent powers in relation to foreign 
States" the Parliament of a dependency cannot itself be a sovereign 
body" (Dicey's Constitution, 6th ed. p. 117). 

When used in reference to a Britisli possession the term legislature 
is defined in the Interpretation Act, 1889 (Eng.), sec. 18, sub-sec. 7, 
to mean the authority, other than the Imperial Parliament or her 
Majesty the Queen in Council, competent to make laws for a British 
possession. 

Legislation, the laws introduced into or enacted by a legislature. 
The term is also applied in a secondary sense to rules of law laid 
down by judicial authority. Professor Dicey points out that a large 
proportion of English law is in reality made by the judges; this, he 
says, is not inconsistent with the supremacy of Parliament, as the 
English judges do not claim or exercise the power to repeal a statute, 
whilst Acts of Parliament may and do override the law of the judges; 
"judicial legislation is, in short, subordinate legislation, carried on 
with tlie assent and subject to the supervision of Parliament" (Dicey's 
Constitution, 6th ed. p. 58). See Bryce's History and Jurisprudence, 
vol. 2, pp. 269 d seq. 



LEGIST 329 LEGITIMATIO 

Legist, one skilled in the laws. 

Legitima persona standi in judicio, the legal character entitling 
a person to appear in a lawsuit. This character is possessed by all 
except those who have been deprived of it by law or those who have 
not yet attained it. Thus as a general rule a married woman, wlio has 
by herself no persona standi in a lawsuit, must sue or defend with 
the assistance of her husband. In the same way a minor, unless lie 
has been emancipated from parental control, as where he is allowed to 
carry on a trade or business in his own name, cannot appear in law 
without the a.ssistance of his guardians. 

Legitimate, in accordance with law; born of pai'ents legally 
married. 

Legitimate portion " is a legal share [under Roman-Dutch law] 
of what is due to one ah intestato, which (tlie law directs) must of 
necessity be left to those who may not, on account of near relationship, 
be disinherited except for sound reasons" (Van Leeuwen's Gomm. 
Kotze's trans, vol. 1 ; Decker's note on p. 354). See Van Schoor's 
Trustee v. Muller's Executors (3 Searle, at p. 136). 

If the children were four or less in number the legitimate portion 
was one-third, but if they were five or more it was one-half of what 
they would have inherited ab intestato ; in tlie case of parents, brothers 
or sisters it was always one-third. There were, however, certain cases 
in whicli the near relation might be disinherited. 

The right to claim legitimate portion has been abolished through- 
out British South Africa. Sec. 2 of Act 23 of 1874 (C.C.) enacts that 
no legitimate portion shall be claimable of right by any one out of the 
estate of any person who may die in the Cape Colony after the taking 
effect of tliat Act. The Cape Act is operative in Rhodesia. A similar 
statutory provision has been made in the Transvaal by sec. 128 of 
Proclamation 28 of 1902 ; in Natal by sec. 3 of Law 22 of 1863 (see 
also Law 7 of 1885) ; and in the Orange River Colony by chap. 92 of 
the Law Book, sec. 3. 

Legitimated children, children who were originally illegitimate, 
but who have been made legitimate by the subsequent marriage of 
their parents. Legitimated children " are in exactly the same position 
as if they had originally been legitimate by birth; and therefore they 
succeed to both father and mother and to their relations equally 
with those who are legitimate by birth " (Maasdorp's Institutes, vol. 1, 
p. 109). 

Legitimatio per subsequens matrimonium, legitimation by 
subsequent marriage. Children born out of wedlock are considered 
in all respects legitimate if their parents should afterwards marry 
one another. This principle, although not recognised by English 
law, has been adopted in all countries which follow the Roman 
system. 



LEGITIMATION 330 LETTER 

Legitimation, the act of rendering legitimate. 

Legitime. See Legitimate Poetion ; Portio legitima. 

Legitime portie (D.), the legitimate portion. See Legitimate 
Portion ; Portio legitima. 

Leonina societas, a leonine partnership ; a partnership in which 
one receives all the profits (therefore the lion's share) and another 
bears all or a share of the loss. It is lawful to stipulate that one 
partner shall have a larger share in the profits and a less share in 
the losses, or for a share in the profits without a share in the loss, 
but an arrangement of the above nature, whereby one receives no 
share in the profits at all, was void in the civil law {Big. 17, 2, 29, 2), 
and is equally forbidden in the Roman-Dutch law (Yoet's Gomm. 17, 
2, 8; Grotius' Introd. 3, 21, 5). 

Lessee, the person to whom a lease is given or granted. For a 
more extended definition of tiie term see Barivtt v. New Oceana 
Traiisvucd Coal Co.,, Ltd. ([1903] T.S. at p. 438), where in certain 
circumstances it was held to signify the holder of a lease for the 
time being. "A lessee is a person in whom no dominium, is vested" 
{X>er Wessels, J., in Ward and Salmons v. Phillips, [1902] T.H. 
at p. 140). 

Lessor, the person who lets a property to another on lease. 

Letter of allotment, a formal written notification to an appli- 
cant for shares that the shares (or a portion thereof) for which he 
applied have been allotted to him. 

Letter of appointment. In the Non-Cape Trustees and Liqui- 
dators Recognition Act, 7 of 1907 (C.C), sec. 1, letter of appointment 
includes " every document issued and delivered, or a copy of such 
document duly certified by any lawful and competent judicial authority 
in any British colony in South Africa, other than in the Cape Colony, 
under which document any person sliall be appointed to perform in 
sucli part of South Africa, in regard to any bankrupt or insolvent 
estates, or to any company that is being wound up there, duties similar 
to those which are performed in this [Cape] Colony by trustees of 
insolvent estates or bj' liquidators under a winding-up as the case 
might be." See also Act 7 of 1907 (T), sec. 1, and Act 4 of 1908 
(O.R.C.), sec. 1. 

Letter of credit, a letter addressed by a banker or merchant in 
one place to a banker or merchant in another place or places, request- 
ing the latter for account of the former to pay to a person named in 
the letter any sums of money, not exceeding a specified amount. 



LETTER 331 LETTERS 

Letter of renunciation, a letter signed by an allottee of shares 
in a company, renouncing his light to such sliares in favour of some 
other person accepting the same. Letters of renuncioMon " must be 
signed by tlie members to whom the shares are allotted, and in cases of 
joint accounts all the persons named in such accounts must sign the 
renunciation" (Palmer's Company Precedents, pt. 1, 8th ed. p. 906). 

Letters of administration, a certificate granted by tlie Master 
of the Supreme or High Court (as the case may be) of the various 
South African colonies, except Natal, authorising some person, nomi- 
nated in a will or elected at a meeting of next of kin and creditors, or 
assumed, and after due compliance with certain other requirements of 
law, to act as executor testamentary or executor dative (as tlie case 
may be) in the estate of a deceased person and as such to administer 
the estate (see sees. 19, 20, 24, &c., of Ordinance 104 of 1838 (C.C); 
Government Notice 379 of 1893 (C.C); Act 19 of 1894 (N.); 
secs. 25-39 of Proclamation 28 of 1902 (T.); and sec. 22 of Ordi- 
nance 18 of 1905 (O.R.C.)). The Cape laws also apply to Rhodesia. 

In the Cape Foreign Letters of Administration Act (8 of 1888), 
Proclamation 28 of 1902 (T.), sec. 39, and Ordinance 18 of 1905 
(O.R.C), sec. 36, the expression letters of administration is defined 
to "include every document issued and delivered, or a copy of every 
such document duly certified by any lawful and competent judicial 
or other public authority in any State, under and by which document 
any person or body corporate shall be authorised and empowered 
to act as the personal representative of any deceased person or as 
executor or administrator, either testamentary or dative, either of 
the whole estate of any deceased person which shall be legally situate 
in such State, or of so much of such estate so situate as consists 
of immovable, movable, real or personal property, as the case may 
be." 

" Letters of administration should not be granted by the Master 
to any person who is absent from tlie [Cape] Colony at the time 
when he applies for them " [per De Villiers, C.J., in Be Schoennan s 
Estate, 10 S.C at p. 5). 

In Natal, letters of administration, instead of being granted by 
the Master, are granted by the Registrar of Deeds (see Act 19 of 1894, 
sees. 3 and 4, also 10 as to foreign letters of administration. In the 
same Act (sec. 2) letters of administration are defined to include 
"every document issued and delivered, or a copy of every such docu- 
ment, duly certified, under and by which document any person or 
body corporate shall be authorised and empowered to act as the 
personal representative of any deceased person, or as executor or 
administrator testamentary either of the whole estate of any deceased 
person which shall be legally situate in the State in which such letters 
have been granted, or of so much of such estate so situate as consists 
of immovable, movable, real or personal property, as the case may be." 
Foreign letters of administration are defined in the same section. 
In Natal letters of administration, are also granted to tutors and 
guardians testamentary or dative (ibid. sees. 5 and 6). 



LETTERS 332 LETTING 

Letters of confirmation, a certificate granted by the Master of 
tlie Supreme Coart certifying to the due appointment and authority 
to act of some person as tutor testamentary or dative, or curator 
nominate or dative. See Ordinance 105 of 1833 (C.C), sees. 3 and 4; 
Proclamation 28 of 1902 (T.), sees. 74, 76, 78 and 83. In Natal letters 
of administration are granted by the Registrar of Deeds to tutors and 
guardians testamentary and dative, in place of letters of confirmation 
as above (see Act 19 of 1894, sees. 5 and 6). 

Letters of exemption, an expression used in Law 28 of 1865 (N,). 
Under this statute male natives and unmarried female natives resident 
in Natal may, by petition to the Lieutenant-Governor, pray for a 
letter of exemption declaring the petitioner exempt from the operation 
of the Native Law (28 of 1865) ; and if the necessary formalities have 
been observed and the necessary requirements fulfilled, the Lieutenant- 
Governor, with the advice and consent of the Executive Council, may 
grant sucli letter of exemption. 

Letters patent. Edmunds in his work on Patents (2nd ed. p. 1) 
says : " The sovereign, as Llie fountain of honour, office and privilege, 
the arbiter of trade, and tlie cliief guardian of the common weal, has 
from time immemorial exercised the prerogative of making grants to 
subjects. Such grants are in general made by letters patent [litterae 
patentes), that is, according to Blackstone, 'open letters; so called 
because they are not sealed up, but exposed to open view with the 
Great Seal pendent at the bottom ; and are usually addressed by the 
sovereign to all the subjects of tlie realm.' Letters jyatent commence 
with the foimula, ' Victoria, by the grace of God of the United King- 
dom of Great Britain and Iieland Queen, Defender of the Faith : To all 
to whom these presents shall come, greeting,' and then, after such 
recitals as may be necessary, proceed to grant the privilege whicli is 
conferred, ' of Our especial grace, certain knowledge, and mere motion! 
Among grants wliich are made by letters patent we may cite as 
examples titles of honour, such as peerages and baronetcies; appoint- 
ments to offices such as those of many of the ministers of the Crown 
and of the judges of tlie superior courts; special privileges, such as 
charters of incorporation to bodies of persons ; and, vastly more 
numerous for manj- years past than all other grants by letters patent 
taken together, letters patent to the true and first inventors thereof for 
the monopoly of 'making, using, exercising and vending' new inven- 
tions. It is this last form of royal grant whicli it is the object of this 
work to discuss." See also- Terrell on Patents, 4th ed. p. 1. 

Letting and. hiring is defined by Grotius (Introd. Maasdorp's 
trans. 3, 19, 1) as "an agreement whereby one party binds liimseif 
to let another have liis labour or that of some other person or animal, 
or the use of some other thing, and the otiier binds himself to the 
payment of rent" (see also Voet's Comm. 19, 2, 1; Van Leeuwen's 
Comm. 4, 21, 1 ; and Van der Linden's Institutes, Juta's trans. 
p. 141). 



LETTING 333 LEX 

As regards t)ie lease of lands and houses, the Roman-Dutch law, 
ditten'ng in this i-espect from the Roman law, gives the lessee not only 
a personal claim against the lessor, but a real right to the subject of 
the lease enforceable against trespassers and even purchasers. 

Level-crossing, a point at which a road crosses the track of a 
railway line on the level or on the surface of the ground. "A level- 
crossing must always have a certain element of danger, and any 
person, before crossing the railway, should exercise due and proper 
care in order to see that a train is not approaching ; and neglect on 
the part of the railway officials in not giving warning of its approach 
is in my opinion no excuse whatever for neglect on the part of any 
one travelling along the road " {per SOLOMON, J., in Worthington and 
Others V. Central South African Raihvays, [1905] T.H. at p. 151). 
See also French v. Hill's Plymouth Go. and Others, 24 T.L.R. 644). 

Levering (D.), delivery. See Delivery. 

Levy, the seizure and taking into possession by the Sheriff or a 
messenger of the court, by virtue of a writ dul}?^ issued. 

Lex Anastasiana, a law of the later Roman Empire (Code, 4, 
35, 22), which enacted that he who purchased a right of action 
from anotlier could not exact from tiie debtor more than the price 
he had paid for the claim. This rule was adopted by the law of 
Holland to the effect that when a debtor was sued upon a ceded right 
of action he could within a year of the time when he became aware of 
the cession require the plaintiff to declare on oath what sum he had 
paid for it and discharge himself by paying the same amount. It lias 
been decided that this law is not of force in South Africa (Seaville v. 
Galley, 9 S.C. 39 ; Deschamps v. Van Onselin, 6 E.D.C. 22 ; MacHuitie 
V. Filmer, 1 OK Rep. 55). 

Lex Aquilia. In the Roman law an action was granted by the 
Lex Aquilia, passed about the year 286 B.C. for loss wrongfully 
(whether wilfully or onlj' negligently) caused to another (damnum 
injuria datum) for injury to his property. The first l\ead of the 
law provided for any one killing another's slave or four-footed beast, 
being one of those reckoned among cattle, i.e. horses, mules, asses, 
sheep, oxen, goats, pigs, but not wild animals or dogs; and the measure 
of damage was fixed at the greatest value which the thing possessed 
at any time within a year previously (Institutes, 4. 3, pr.). The tliird 
head (the second head being unimportant) provided for the wounding 
of any slave or four-footed beast of those reckoned among cattle and 
for the killing or wounding of any other animal or damaging any 
other thing belonging to another. Here the measure of damage was 
the greatest value which the thing possessed within the preceding 
thirty days (Institutes, 4, 3, 13 and 14). 

The a.ctio legis Aquiliae did not apply to injuries to the person. 
Under the later Roman law, however, the praetor granted an equit- 



LEX 334 LEX 

able action under the Lex Aquilia for personal injuries not involving 
the element of contumely or insult. Where that element was present 
the remedy was the actio injuriarum. 

Lex Oincia, a law passed at Rome in the year 204 B.C. It 
proliibited gifts to advocates and all gifts exceeding a certain amount. 
Gifts above the amount fixed were not null, but they were revoc- 
able during the lifetime of the donor. 

Lex commissoria. "The lex co'inynissoria, prohibited in the 
case of pledge, but allowed here (i.e. in the contract of sale), is 
simply a pact annexed to a purchase at the time when it is con- 
tracted, to the effect that unless the price be paid by a certain 
time the thing shall be considered unbought. It is probably called 
cotnmisaoria because a person wlio violates such a provision (fa) 
or pact strikes at the sale in its entirety, so that thereafter, by 
force of this pact, the whole sale is committed to the discretion of 
the vendor either to confirm or to annul it as he may think fit" 
{Voet's Gomin. 18, 3, 1). A lex commissoria may be so expressed 
as to make the sale conditional, as where it is agreed that the 
thing shall be considered as sold if tlie price is paid within six 
months, in which case the sale is in the meantime suspended. As 
a general rule, however, the effect of a lex commissoria is to make 
the sale immediately binding, so that the risk and by delivery the 
ownership passes to the purcliaser, subject to the right of the seller 
to demand back the thing sold should the price be not paid by 
the appointed time (Voet's Gomin. ibid.}. Upon the expiry of the 
time the seller must declare whether he will avail himself of the 
pact or not, and if he has once elected to waive his right he 
cannot afterwards alter his decision. He will be regarded as having 
waived his riglit if after the appointed time lie accepts from the 
purchaser the price or interest thereon (Voet's Comm. 18, 3, 2). 
An agi'eement that the seller shall be entitled in the event of non- 
payment of the price by tlie time fixed to put up the property for 
sale at the risk of the purchaser is not a lex commissoria. In 
such a case the sale remains in force notwitlistanding the lapse o£ 
the appointed time without jjayment of the price, and the seller is 
simply in tlie position of a procurator in rem- suam, empowered 
to put tlie property up for resale, which may be prevented at any 
time hy the purchaser tendering the price together with interest to 
date of tender (Port Elisabeth Town Council v. Rigg, 20 S.C. 2-57). 
See Pactum coioiissoRiuJr. 

Lex domicilii, the law of the domicile. The lex domicilii deter- 
mines all questions with regard to personal capacity and status, wliile 
the lex rei sitae, or the law of the place where the tiling is situated, 
regulates all rights to immovable property. 

Lex Falcidia. Under the Roman law it was essential to the 
validity of a testament that an lieir should be validly instituted, and, 
secondly, that he should accept or adiate the inheritance. If the iiisti- 



LEX 335 LEX 

tuted heir adiated he had to carry out the terms of the testament, and 
was in addition liable for the entire obligations of the deceased as sus- 
taining^ liis persona. Where, therefore, the testator had disposed of 
the whole or the greater part of his estate by way of legacies the heir 
had no inducement to take up the succession, for while conferring no 
benefit on himself it rendered him liable for the whole of the de- 
ceased's debts. Tlie effect of the heir's refusal to adiate was that the 
testament fell and the deceased was regarded as having died witliout 
a will, his estate being distributed according to the law of intestacy. 
To remedy this state of things several measures were passed, tlie last 
of which was the lex Falcidia. By this statute a testator was bound 
to leave at least one-fourth of his estate to his heir, and if he left him 
nothing or less than a fourth, then the heir was entitled to reduce the 
legacies pro raid so as to retain a fourtli for himself. This fourtli was 
called the portio or quarta Falcidia. It could not be deducted if 
such deduction was expressly forbidden by the will ; and, even without 
such prohibition, legacies in favour of hospitals or almshouses were 
exempted therefrom, as also was property so bequeathed that it could 
not be alienated. The heir also who was negligent in fulfilling the 
will of the deceased, or who had omitted making an inventory, lost 
this right (Grotius' Introd. 2, 23, 20). Schorer in liis Notes to Grotius 
(note 166) says that the lex Falcidia also failed where the heir had, 
either knowingly or through an error of law, paid the legatees the 
whole of the legacies ; where he had concealed the testament or 
codicils from the legatees; and M'here, knowing that the property 
bequeathed was still in existence, he had falsely stated that it had 
perislied by accident. The lex Falcidia formed part of the Roman- 
Dutcli law, but as the failure of the instituted heir no longer invali- 
dates a testament, and the administration of the estates of deceased 
persons has, further, been transferr'ed to executors, the reason for 
the enactment has ceased, and the Falcidian portion has now been 
abolished throughout South Africa (Act 26 of 1873 (C.C), sec. 1 ; 
Law 7 of 1885 (N.), sec. 2; Proclamation 28 of 1902 (T.), sec. 126; 
chap. 92 of Law Book (O.KC), sec. 2). 

Lex fori, the law of the forion, i.e. the country in which action is 
brought. Although a contract may require to be construed according 
to the law of the place where it was entered into {lex loci contractils), 
the lex fori will regulate the mode of procedure for its enforcement. 
Thus, for example, all questions of evidence and of the limitation of 
actions, which affects not the right itself, but the remedy, are governed 
by the lex fori. See Lex loci contractus. 

Lex hac edictali, an enactment of the Roman law, adopted by 
the Roman-Dutch law, which imposed a restriction on second mar- 
riages by prohibiting a widow or widower, having children by the 
first marriage, from giving or leaving to the second spouse, either by 
act inter vivos or mortis causa, more than was given or left to that 
one of the children of tlie first marriage to whom least was given 
or left by him or her. This law has now been abolished in South 
Africa. 



LEX 336 LEX 

Lex loci contractus, the law of the place of contract, i.e. of the 
place where the contract was made. "The validity of a contract 
will, as a general rule, depend upon the law of the place where it 
is concluded. Such contract will not necessarily be enforced in every 
country in which action is brought upon it, for where the lex loci 
contractus comes in direct conflict with the law of the latter place 
{lex fori), the comity of nations, which requires the observance of 
the lex loci contractus, will have to give way to the positive law of 
the place of action (Lex fori). This will, amongst other things, be the 
case where the contract sought to be enforced violates the principles 
or policy of the law of the forum, e.g. where it is usurious or 
unconscionable in character; or where the interest of third parties, 
beings citizens of the lex fori, such as creditors of the parties to 
the contract, are concerned " (Maasdorp's Institutes, vol. 3, p. 13). 
"The rights of the parties under a contract must as a general rule be 
regulated according to the law of the country where it is contracted. 
This, however, is not an absolute and universally applicable rule, but 
applies only in those cases, the circumstances of which are such as 
to give rise to a legal presumption that the parties intended that their 
contract should be regulated by that law, and ceases to apply when- 
e\er the circumstances are such as to afford stronger grounds for 
presuming that they intended it to be regulated by some other law, 
as, for example, the law of the place where the contract has to be 
carried out (lex loci solutionis)" (Maasdorp, ibid. p. 78). As regards 
the formalities required for the execution of contracts, these are 
governed by the lex loci contracttts. 

Lex loci solutionis, the law of the place of payment, i.e. the 
law of the place where an obligation is to be fulfilled. 

Lex rei sitae, the law of the place whei'e a thing is situated. 
All rights, including questions of succession, to immovable property 
are regulated by the lex rei sitae. Thus a child legitimated bj' the 
subsequent marriage of his parents, although regarded by the law 
of his domicile for all purposes as if born after their marriage, will 
not be entitled to succeed ab intestato to immovable property in 
England, the law of which country admits to intestate succession 
only those born in lawful wedlock. Upon the same principle immov- 
able property can only be conveyed in accordance with the forms 
prescribed by the lex rei sitae. 

Lex Rhodia de jactu, the Khodian law concerning property 
thrown overboard. " If goods have been thrown overboard for the 
purpose of lightening the ship, the loss should be made good by the 
contribution of all, because it has been done for the common benefit' 
(Dif/. 14, 2, 1, 1). This equitable rule, under the name of gross or 
general average, has been adopted by the Roman-Dutch law, and 
with several modifications is common to the law of all commercial 
countries in Europe. More fully stated, the rule is that where a 
ship is in imminent danger, and in order to ensure the safety of the 



LEX 337 LIEN 

ship and cargo goods are thrown overboard, or the vessel is run 
ashore, or its masts, cables, &e.,. are cut away, the loss occasioned 
has to be borne by the owners of the ship and cargo pro raid (Van 
Leeuweu's Comm. 4, 31, 1 ; Van der Keessel, Thes. 781-95 ; Grotius' 
Introd. 3, 29, 9-17). See General Average. 

Lex Ripuaria, the laws of the River P'ranks, probably compiled 
in the sixth century. See Wessels' History, p. 39. 

Lex Romaua, the Roman law. As to its introduction inta 
Holland, see Wessels' History, p. 95. 

Lex Salica, the laws of the Salii or Sea Franks, dating back to 
the sixth century. See Wessels' History, p. 37. 

Liabilities, the debts and obligations due by a person to his credi- 
tors, whether ascertained or contingent. 

Liability. See " Incur Liabilities." 

Licensable, suitable to be, or capable of being, licensed. 

License or licence. (1) An authority or permission to do, or to 
forbear from doing, some act which, without such authority or per- 
mission, it would be illegal to do or omit to do. "If people went 
outside their license, tliey were trespassers. A license must be limited, 
and it was a thing which was liable to be revoked " {per Darling, 3,, 
in French v. Hills Plymouth Cot and Others, 24 T.L.R. 644). 

(2) In the Cape Excise Spirits Act (18 of 1884), sec. 2, license is 
defined to mean " a license in the form prescribed granted by any 
distributor of stamps or by any officer duly authorised " ; and the 
same definition is to be found in the Additional Taxation Act, 36 of 
1904 (C.C), sec. 2. 

As to Transvaal, see Ordinance 32 of 1902, sees. 3 and 7; Ordi- 
nance 45 of 1902, sec. 1 ; Act 33 of 1909, sec. 2 (4). 

As to Orange River Colony, see Ordinance 8 of 1903, sec. 3. 

Licensee, the person in whose favour a license is granted. See 
Mere Licensee. 

Licentie (D.), a license. 

Lien, the right to retain possession of certain property belonging 
to another person as security for some claim in respect of that pro- 
perty, until such claim has been paid. See Landlord's Lien. See 
also United Building Society v. Smooklers Trustees and Another 
([1906] T.S. 623). See Jus Retentionis. 



LIFE 338 LIJPSTRAPPEN 

Life insurance. "The contract commonly called life assurance, 
when properly considered, is a mere contract to pay a certain sum of 
money on the death of a person, in consideration of the due payment 
of a certain annuity for his life ; the amount of the annuity being 
calculated in the first instance according to the pi'obable duration of 
the life, and when once fixed it is constant and invariable. The 
stipulated amount of annuity is to be uniformly paid on one side, and 
the sum to be paid in the event of death is always (except where 
bonuses have been given by prosperous offices) the same on the other 
This species of insurance in no way resembles a contract of indemnity'' 
{per Parke, B., in Dolby v. India and London Life Assurance Co., 
24 L.J.C.P. at p. 6). With reference to the statement that life 
insurance in no way resembles a contract of indemnity. May, in his 
work on Insurance (-ith ed. sec. 7), says: "A distinction has sometimes 
been taken between marine and other insurances and life insurance, 
on the ground that while the former have for their object to indemnify 
for loss, the latter is an absolute engagement to pay a fixed .sum on 
the happening of a certain event, without reference to any damage in 
fact suffered by the insured in consequence. But this distinction is 
superficial, and rests rather upon the mode of applying the principles 
and of determining the amount of indemnity, than upon any difference 
in the principles themselves." 

By Act 8 of 1879 (C.C.) the law of the Cape Colony having refer- 
ence to questions of life a.ssurance is assimilated to that of England, 
except where repugnant to or in conflict with Cape statute law. 

Life policy, a policy of insurance granted in respect of a person's 
life. See Life Insurance. 

In Proclamation 12 of 1902 (T.), see. 29 (1), tlie expression policy of 
life insura'nce means " a policy upon any life or lives, or upon any 
event or contingency relating to or depending upon any life or lives, 
except a policy of insurance against accident." 

Ligan, anything sunk in the sea, but tied to a buoy with a view 
to its ultimate recoverj^. 

Ligeantia trahit protectionem, allegiance brings about pro- 
tection; a maxim of constitutional law indicating the reciprocal 
obligations of subject and state, viz., allegiance on the one hand 
and pi'otection on the other. 

Lijf-eygen (D.), the same as .servants, domestics, liti, lassi. They 
were all such persons as had to cultivate the land and to render out 
of it annually a certain tax or return to the lord or owner, and to 
perform certain court or religious services. 

Lijfstraflfen (D.), corporal punislnnents. The corporal puni.sh- 
ments in use in Holland in Van der Linden's time (early part of 
nineteenth century) were (1) flogging, with or without the halter 
round the neck, and with or witliout branding; (2) confinement in a 



LIJFSTRAPFEN 339 LINEAL 

liouse of correction (tuchthius) ; (3) hard labour ; (4) waving the 
sword over the head ; (5) exposure in the pillory, with or without 
rods; (6) praying on bare knees for the forgiveness of God and the 
court; and (7) imprisonment for some days with spare diet (bread 
and water). 

Lijftochtenaar (D.), a usufructuary. 

Like. The word like appearing in the expression " like jurisdic- 
tion" in sec. 4 of the Fugitive Offenders Act, 1881 (Eng.), is "not 
equivalent to 'the same,' but means 'similar' or 'not less than,' the 
object apparently being to secure that the important powers conferred 
by this part of the Act shall only be exei-cised by certain superior 
judicial or magisterial officers" (per Bale, C.J., in Willis v. Rex, 
27 N.L.R. at p. 225). 

Lime. In the Cape Fertilisers^ Farm Foods, Seeds and Pest 
Remedies Act (20 of 1907), sec. 3, lime is defined to mean " anhydrous 
oxide of calcium." 

In Ordinance 7 of 1905 (T.), sec. 1, it includes "limestone, marble, 
chalk, dolomite and gypsum." 

Limited company. In the Cape Colony under the Companies 
Act (25 of 1892), sec. 2, a limited company is defined to mean " a 
company, the liability of the members of which is by their regis- 
tered memorandum of association limited to the amount, if any, 
unpaid on the shares respectively held by them or by the opera- 
tion of any Act of Parliament." The Transvaal Companies Act 
(31 of 1909), sec. 2, gives a similar definition. 

Limited partnership is a partnership (other than a joint stock 
company or partnership established for the purpose of banking) 
for the transaction of any mercantile, mechanical or manufactur- 
ing business in the Cape Colony duly registered in accordance with 
the provisions of Act 24 of 1861 (CO.), known as the Special Part- 
nerships' Limited Liability Act, 1861, as amended by Act 12 of 
1906 (C.C). 

Lincoln's Inn, one of the Inns of Court. See Inns of Court. 
This Inn is chiefly the Inn of Chancery barristers. It is said to 
have the best of all the Inn libraries. In tlie middle of the nine- 
teenth century it had by far the largest membership of all the 
Inns. 

Lineal ascent, direct ascent fi-om descendant to ancestor in a 
direct and unbroken line, as from grandson to grandfather. 

Lineal descent, direct descent from ascendant to descendant in a 
direct and unbroken line, as from grandfather to grandson. 

w2 



LIQUIDATED 340 LIQUOR 

" Liquidated." " An estate is liquidated when it is reduced into 
possession, cleared of debts and other immediate outgoings, and so left 
free for enjoyment by the heirs" (judgment of Judicial Committee of 
the Privy Council in Hiddingh's Heirs v. Be Villiers, Denyssen and 
Others, 5 S.C. at p. 308 ; see also In re Best, 9 S.C. 488). 

Liquidated damages, an agreed amount of damages stipulated in 
a contract to be paid by the contractor to the employer in case of 
breach, especially breach in regard to time limit for completion of the 
contract. See Capetown Town Council v. Linder (6 S.C. 410); 
Bavey-Paxman & Co. v. Langlaagte Star G. M. Co. (16 C.L.J. 57); 
Peach & Co. V. Committee of Jewish Synagogue (12 C.L.J. 69) ; and 
Clyde Engiiieerhig and ShiphuiUlmg Co. v. Castaneda and Others (91 
L.T. 666). Liquidated damages are fully discussed in an article in 
23 S. A.L.J. 14.5, where the writer sums up tlie result of the decisions 
as follows: "(l) The question whether the stipulation was for a 
penalty or for liquidated damages is one of intention, to be gathered 
from the agreement between the parties and from the circumstances; 
(2) if the payment or payments are made proportionate to the ex- 
tent to which the defaulting party may fail to perform his obligation, 
the presumption is that the stipulation is for liquidated damages and 
not a penalty; (3) the burden of proving tliat the sum agreed on as 
liquidated damages is excessive lies on the party in default who has 
to pay such sum; (4) where the amount stipulated is not exorbitant 
with reference to the circumstances of the case, it will be regarded 
as liquidated datnages, and not as a penalty ; (5) where the stipulation 
is clearly a penalty, it will not be enforced." 

Liquidated demand. " It may perhaps be said that a liquidated 
debt is one whose exact amount can be finally determined by the 
creditor without either