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 The original of this book is in 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924025035423 
 
THE OPINIONS OF GKOTIUS 
 
mr. HUGO BE GROOT s 
 
 Raad en Pern sio> maris 
 te Rotterdam. 
 
 Trom a. Photograph in Wagena-ar's VaderlandscTie Historie 
 Swan Electric Engraving C° 
 
THE 
 
 OPINIONS OF GROTIUS 
 
 AS CONTAINED IN THE 
 
 HOLLANDSCHE CONSULTATIEN EN 
 ADVIJSEN 
 
 COLLATED, TRANSLATED, AND ANNOTATED BY 
 
 D. P. de BEUYN, B.A., LL.B. 
 
 EBDEH ESSAYIST OP THE UNIVERSITY OE THE CAPE OE GOOD HOPE ; ADVOCATE OF THE 
 
 SUPREME COURT OF THE COLONY OF THE CAPE OF GOOD HOPE, AND OP 
 
 THE HIGH COURT OF THE SOUTH AFRICAN REPUBLIC 
 
 LONDON 
 
 STEVENS AND HAYNES 
 
 BELL YARD, TEMPLE BAR 
 
 1894 
 
 8518 
 
TO 
 
 SIR J. HENRY DE VILLIEES, K.C.M.G. 
 
 CHIEF JUSTICE OF THE SUPREME COURT OF THE 
 CAPE OF GOOD HOPE 
 
 AND TO 
 
 HIS HON. JOHN GILBERT KOTZE 
 
 CHIEF JUSTICE OF THE HIQH COUBT OF THE 
 SOUTH AFRICAN REPUBLIC 
 
 THIS WOEK IS 
 
 BY PERMISSION 
 
 Dedicates 
 
 AS A TOKEN OP PEESONAL RESPECT AND ESTEEM, AND 
 
 WITH THE HOPE THAT THEY MAY LONG 
 
 GRACE THE JUDICIARY OF 
 
 SOUTH AFRICA 
 
 BY THE WRITER. 
 
INTRODUCTION. 
 
 The works of Hugo Grotius, the most eminent 
 expounder of Koman-Dutch jurisprudence, have 
 gradually been placed before an English-reading 
 public by means of excellent and accurate transla- 
 tions. Before the present work was taken in hand, 
 translations of the De Jure Belli ac Pads and of 
 the Introduction to the Jurisprudence of Holland 
 had already appeared. In addition, we have trans- 
 lations of the Commentaries on Grotius by Schorer, 
 by Van der Keessel, and, in a sense, by Van der 
 Linden. The " Consultations," or, as I prefer to call 
 them, the " Opinions " of Grotius remained untrans- 
 lated ; nor is this to be wondered at. The Opinions 
 are indiscriminately and confusedly dispersed over 
 the six volumes of the Hollandsche Consultatien. 
 Then the language is by no means easy ; it suffices 
 to state that it is the Dutch juristic language of 1600, 
 a style intelligible only with very great difficulty. 
 Lastly, the black-letter type employed in printing 
 these Consultations is sufficient to repel the ordinary 
 student, conversant though he be with modern Dutch. 
 These difficulties and obstacles have rendered the 
 valuable Opinions of Grotius useless and unintelli- 
 gible to many South African jurists, whilst to others 
 
viii INTRODUCTION. 
 
 reference to them has been vexatious and annoying, 
 or at least distasteful. 
 
 Under these circumstances, I trust that a translation 
 of these Opinions will serve a double purpose : firstly, 
 by completing the series of translations of the works 
 of the eminent Jurist and of his Commentators (the 
 Rechtsgeleerde Observatien are still awaiting a trans- 
 lator) ; and, secondly, by giving the profession an 
 opportunity to consult these scattered but valuable 
 Opinions with convenience. 
 
 Translation. — In rendering the old Dutch into 
 English, I have kept as close as possible to the 
 original text. The terseness of expression and the 
 peculiarity of style have in some places necessitated 
 free translations. The original " Advysen" are copi- 
 ously interspersed with Latin maxims and quotations 
 used by Grotius. These I have left untranslated in 
 most instances, in order to preserve them in the 
 present work. The antiquated and cumbersome 
 method of reference to the Pandects and the Code 
 has been replaced by numerical citations indicating 
 the title, chapter, &c., whilst the texts are indicated 
 by D. and C. respectively. 
 
 Arrangement. — The Opinions have been collected 
 from the six volumes of the Hollandsche Consultatien. 
 I have, however, deemed it inadvisable to present 
 them arranged according to the order of sequence 
 there followed. The result would have been a con- 
 fused collection of opinions on different subjects, 
 
INTRODUCTION". ix 
 
 without regard to order or method. To avoid this, 
 they have in the first place been grouped according 
 to the juristic questions discussed ; and, secondly, the 
 groups have been arranged according to the order 
 of treatment observed in the Introduction to Dutch 
 Jurisprudence of Grotius ; the new number of the 
 rearranged opinions being given first, then the 
 reference to the Hollandsche Consultatien, and lastly 
 the reference to Grotius' Introduction. This arrange- 
 ment is the best possible that I could devise. It is, 
 however, not absolutely perfect or satisfactory, and 
 it entailed very anxious consideration ; for it will 
 be seen that the same Opinion sometimes treats of 
 two or three different subjects. In such a case, the 
 more prominent subject decided the arrangement and 
 selection. 
 
 Annotation. — Every Opinion which treats of an 
 important question has been annotated with a view 
 of placing before the reader a brief disquisition on 
 that branch of the law, with special reference to 
 South African case and statute law. Neither time 
 nor trouble has been spared to make the references 
 to the decisions of the South African courts as com- 
 plete as possible. The regrettable want of a series 
 of reliable reports of cases decided in the High 
 Courts of the two Eepublics has been badly felt, 
 and has made my task in this respect most difficult. 
 
 I have also inserted — 
 
 (1.) An outline of the life of Grotius, which I 
 
x INTRODUCTION. 
 
 trust will prove interesting and instructive. The 
 materials at my disposal for this purpose, although 
 accurate and perfectly reliable, were unfortunately 
 somewhat meagre, and I have therefore been com- 
 pelled to confine myself to an " outline." 
 
 (2.) A list of maxims appearing in the Opinions 
 and Annotations. 
 
 (3.) A table of cases cited in the Notes and 
 Opinions. 
 
 (4.) A list of abbreviations used in the citation of 
 cases. 
 
 (5.) A table of the Opinions according to the 
 arrangement adopted in the present work, giving 
 the references to the Nos. in the Hollandsche Con- 
 sultatien, and vice versa. 
 
 No one is more conscious of the shortcomings of 
 this work than I am myself. Relying, however, on 
 the indulgence of the profession, I offer this book to 
 the public, and more particularly to the admirers and 
 students of Roman -Dutch jurisprudence, sincerely 
 trusting that it will be found valuable as a work of 
 reference, and that it will prove to be the means of 
 a closer and more intimate acquaintance with the 
 juristic writings of Hugo Grotius. 
 
 "Non potes in nugas dicere plura meas 
 Ipse ego quam dicere." 
 
 D. P. DE Bruyn. 
 
 Chambers, 
 
 March 1894. 
 
BIOGRAPHICAL SKETCH OF GKOTIUS. 1 
 
 Hugo de Groot, or, in the Latinised form, Hugo 
 Grotius, was born at Delft on the 10th of April 1583. 
 He was descended from an ancient and noble family, 
 Cornets or De Cornets by name, who for a long 
 time resided in the dukedom of Burgundy. Early 
 in the sixteenth century his great-grandfather, Kor- 
 nelis Cornets, married Ermgard, daughter of the 
 Burgomaster of Delft, Dirk Huigen de Groot, also 
 an illustrious family ; in fact, the surname De Groot 
 was conferred on the ancestors of Dirk on account 
 of the numerous and valuable services rendered by 
 them to their country. The Burgomaster had no 
 male issue, and he made it a condition precedent to 
 the marriage that Kornelis Cornets should give to 
 his children by Ermgard the surname of De Groot, 
 in order to preserve the family name. A son, Huig 
 de Groot, was born of this marriage, and he again 
 had two sons, of which Jan de Groot — the youngest 
 
 1 The materials at my disposal for this sketch have been few in number, 
 but, I am pleased to state, most reliable. The following authorities and 
 writers have been consulted by me : — Wagenaar's " Vaderlandsche His- 
 toric ;" Boel, "Ad Loenius;" " Regtsgeleerde Observatien ; " Herbert's 
 translation of Grotius — Preface ; Kent's " Commentaries," Lecture I. ; 
 Maasdorp's Introduction to his translation of the "Inleiding" of Grotius; 
 Luden's " Life of Hugo de Groot ; " Rogge's Article on " Grotius te Parijs " 
 (DeGids). 
 
xii BIOGRAPHICAL SKETCH OF GEOTIUS. 
 
 — became the father of Hugo de Groot. Jan was 
 a Doctor of Laws, Rector of the Leyden High School, 
 and Burgomaster of Delft. He was a man of ex- 
 cellent and high repute, greatly respected, and 
 an enthusiast in the cause of education. Hugo's 
 mother, Alida van Overschie, was a woman of 
 keen insight, and was imbued with a deep sense of 
 duty and piety. Both parents exerted themselves 
 most strenuously in order to promote the education 
 of their son, and the marvellous abilities of the boy, 
 which manifested themselves from infancy, induced 
 them to redouble their efforts. At the age of eight 
 he wrote Latin elegiacs, devoid for the most part of 
 originality, which was quite natural, but nevertheless 
 a marvellous production for a youth of that age. A 
 few years, later he was sent to the Hague in order to 
 be instructed in theology and thoroughly grounded 
 in the principles and doctrines of Christianity by the 
 Rev. Uitenbogaard. This step was the first link in 
 a train of events which influenced the whole life of 
 Grotius, and in later years altered and bedimmed 
 the illustrious career of him who had no contem- 
 porary compeer in the civilised world, and who, 
 under more favourable circumstances, would have 
 shone forth with dazzling brilliancy and in all his 
 splendour as the leading light of the later Middle 
 Ages. Grotius had been brought up in all piety 
 with the ardent and religious exhortations of a pious 
 mother. No wonder then that the teachings of 
 Uitenbogaard on what was afterwards known as 
 Remonstrantism and the doctrines of Arminius found 
 
BIOGEAPHICAL SKETCH OF GROTIUS. xiii 
 
 eager and enthusiastic consideration at the hands of 
 young Grotius. The nature and result of these 
 teachings will be discussed presently. 
 
 Before Grotius was twelve years of age (1595) he 
 was deemed fit for the University of Leyden. During 
 his stay there he became first a pupil, and later a 
 close friend of the world-renowned Joseph Scalig-er. 
 At the age of fourteen (1597) Grotius had made 
 such progress in general study and elocution that he 
 was able to debate publicly several juristic and 
 scientific questions, with such good result that he 
 received the unanimous applause and congratulations 
 of those who had heard him. Verily he was an 
 " adolescentem sine exemplo ; juvenem portentosi 
 ingenii." It was of him at this epoch that BARLiEUS 
 wrote — 
 
 " Et puer hsee dixit, quas stupuere senes," 
 
 and Heinsius — 
 
 " . . . . Grotius vir natus est." 
 
 In the following year he accompanied Johan van 
 Oldenbarneveld and Justinus van Nassau on an 
 embassy to France. He was heartily welcomed by 
 the men of learning in Paris, whither his reputa- 
 tion had preceded him. He was also introduced 
 to Henry IV. of France, who extended to him a 
 gracious and warm reception. At this time he took 
 his degree of Doctor of Laws at Orleans, and upon 
 his return he immediately began to practise as an 
 advocate at the Courts of Law. Previous to his 
 departure for France he had finished a new, amended, 
 
xiv BIOGKAPHICAL SKETCH OF GROTIUS. 
 
 and revised edition of the philosophical works of 
 Martiantjs Capella, an almost incredible perform- 
 ance for a youth of fourteen summers. The work 
 was published upon his return. During his practice 
 as an advocate he occupied all his leisure time in 
 writing and publishing several works, of which an 
 account is given later. 
 
 In 1608 Grotius married Maria, daughter of 
 Burgomaster Van Reigersbergen of Veere, in Zee- 
 land, and a better choice could never have been 
 made by him. She had a dogged perseverance, 
 indomitable courage, and shrewd common-sense 
 (carissima et fortissimo), so much needed in times 
 of danger and oppression. The events which 
 followed bear excellent testimony to her various 
 good qualities. 
 
 It must here be noted that two ruling passions 
 guided, governed, and influenced the whole life of 
 Grotius. A patriotic love for his country ruled all 
 his actions as a dutiful and loyal citizen ; but, above 
 all, a deep-rooted devotion to the religious creed of 
 his younger days, coupled with a passionate love and 
 sympathy for his co-religionists, and a conviction, 
 never shaken, that the doctrines of Christianity, as 
 expounded by his party, were correct and true, altered 
 entirely his whole aim and object in life, chequered 
 his career, and made Grotius, as we know him, not 
 as we might reasonably have expected from acquaint- 
 ance with his antecedents that he would have been 
 — a religious enthusiast, and not the profoundest 
 philosopher and scholar of his time ; a devotee of 
 
BIOGRAPHICAL SKETCH OF GEOTIUS. xv 
 
 a certain sect, not a leader of men ; an unfortunate, 
 disappointed, and migratory fugitive and exile from 
 his fatherland, not the brilliant and illustrious pole- 
 star of early modern times, the laurel-bedecked hero 
 and champion of justice, science, and civilisation, the 
 admired of all nations. 
 
 As regards the first, little need here be said. He 
 was born at a time when the Provinces of the Nether- 
 lands had already partially succeeded in breaking 
 their bondage and subjection to the tyrannous yoke 
 of Spain. Upon severance of their allegiance to 
 Philip II., the Provinces formed the Union of 
 Utrecht in 1579 ; the sovereignty vesting for the 
 most part in the States of each separate Province, 
 but, as regards matters concerning the general wel- 
 fare of the Union, the States-General had jurisdic- 
 tion. Patriotism at such an epoch and under such 
 circumstances becomes a common attribute, fluc- 
 tuating and evanescent with the weak, but strong, 
 lasting, and pervading with men of courage and 
 stability. Patriotism, as a rage, was the order 
 of the day, and it would have been wonderful if 
 Grottus, a man of keen sensibilities and broad 
 sympathies, had not been affected thereby along 
 with the rest. With him it became a lasting in- 
 fluence. These circumstances, and the then exist- 
 ing order of things, imbued him with a deep love 
 and devotion for justice, for freedom, and for 
 fatherland. 
 
 The religious controversies of the time require 
 more than a passing reference. If we wish thoroughly 
 
xvi BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 to understand the character and the life of Geotius, 
 we must grasp the origin and effects of the different 
 Christian doctrines which influenced the whole civi- 
 lised world of that time. Trifling as these differences 
 and discussions may appear, when viewed in the 
 light (or perhaps darkness would be more correct) 
 of modern times, they were of vital importance to 
 the statesmen and public personages of those days, 
 and it is therefore unsafe to weigh the actions 
 of that time in the balance of the present; for if 
 this is done, a true and correct estimate cannot be 
 obtained. At this stage a pause must be made to 
 examine briefly the nature and consequences of these 
 religious controversies. 
 
 The seed of discord was sown during the early 
 years of the Christian Church, and had its origin 
 in the heated discussions concerning man as a free 
 agent. From this point it was but a step to the 
 controversy concerning Predestination. The heated 
 arguments frequently led to extraordinary and 
 somewhat illogical conclusions and teachings, 
 and necessarily engendered chaos where before 
 there had been light. In the fifth century 
 Pelagius attempted to elucidate the points in 
 dispute by modifying the harsh doctrines con- 
 cerning predestination and fatalism, and his at- 
 tempt proved partially successful. Augustinus vio- 
 lently opposed the theories of Pelagius, holding 
 that the salvation or condemnation of man is pre- 
 ordained and entirely dependent on the grace and 
 will of God. This controversy was continued by 
 
BIOGRAPHICAL SKETCH OF GEOTIUS. xvii 
 
 Godschalk and the Dominican and Franciscan 
 monks. At the Eeformation, Luther arose and 
 embraced the doctrines of Augustinus concerning 
 this subject. Melanchthon and Erasmus qualified 
 and modified the views of the great reformer, and 
 considerably strengthened his party by their con- 
 cessions. Calvin and Beza, on the other hand, 
 upheld the extreme views of Augustinus and 
 Luther, and proceeded to still greater lengths. 
 The two last mentioned had the most influence 
 in the Netherlands ; there was, however, always a 
 party that favoured the views of Pelagius. Shortly 
 after 1603, Jacob Arminius became Kector of the 
 University of Leyden. He followed and taught 
 Pelagianism, as it was called, in a somewhat modi- 
 fied and moderated form. At the same time Fran- 
 ciscus Gomarus, an ardent supporter of the views 
 of Luther and Augustinus, was professor at the 
 University. A heated dispute was therefore inevit- 
 able ; and since both disputants found favour with 
 different sections of the people, neither lacked sup- 
 port. For a time the opposing parties were called 
 " Arminians" and " Gomarists," after the leaders in 
 the controversy. The courts of justice intervened 
 to allay, and, if possible, to settle the dispute, but 
 to no avail. Arminius died in 1609, and Grotius 
 wrote a poem In Mortem Arminii as a token of 
 respect. Up to this time Grotius had taken no 
 part in these religious controversies, and, as he 
 himself writes in 1609, he was almost entirely 
 unacquainted with them. It might, however, have 
 
xviii BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 been safely predicted that his education at the feet 
 of Uitenbogaard, his familiarity with the heroes 
 of antiquity and classic lore, and his views on 
 philosophy and ethics, would have tended to enlist 
 his sympathies on the side of Arminitjs. His In 
 Mortem Arminii indicated this tendency, and from 
 that time he was looked upon as an Arminian. 
 Arminius was succeeded by Vorstius, a not happy 
 choice, and the breach soon widened, resulting in 
 frequent disturbances, which were checked in time 
 to avoid a civil war. From about this time Prince 
 Matjrits evinced a leaning towards the Gomarists. 
 Numerically the Arminians were inferior to their 
 opponents, and they decided, for their protection 
 against false and groundless accusations, and in 
 order to establish their doctrines on a firm basis, 
 to send a Memorial or Remonstrance to the States 
 of Holland, setting forth their teaching in extenso. 
 This was drawn up by Uitenbogaard in five Articles, 
 and submitted as decided ; hence the appellation 
 of Remonstrators given to them, whilst their 
 opponents, the Gomarists, became known as the 
 Contra-Remonstrators. 
 
 Owing to certain maritime difficulties with Eng- 
 land, Grotius was sent in 1613 as ambassador to- 
 the Court of King James I., and he was induced by 
 Oldenbarneveld, the Attorney-General (Lands-advo- 
 caat), to use his influence with the English monarch 
 on behalf of the Remonstrators. In this respect 
 his mission was of little avail. In the same year 
 he was made Pensionary of Rotterdam. This at 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xix 
 
 once brought him in closer contact with the famous 
 and highly reputed Oldenbarneveld, who was then 
 Baadpensionary, and had for nine years occupied the 
 post just offered to Grotius. But for this circum- 
 stance Grotius would perhaps not have become a 
 victim to the sad and most lamentable circumstances 
 of 1618-19. Be that as it may, the events of the 
 succeeding years after the death of Arminius indi- 
 cate that Grotius, in some indescribable manner, had 
 become the tool of circumstances ; and although he 
 at first tried to avoid all participation in the religious 
 controversies which raged around him, he seems to 
 have been unintentionally, almost unconsciously and 
 involuntarily dragged into the maelstrom. In 1613 
 he wrote a treatise on the Jurisdiction of the Tem- 
 poral Sovereign in Ecclesiastical Matters, and also 
 defended the action of the States in his Religion of 
 the States of Holland and West Friesland against 
 the attacks of Lubbertus, a headstrong and vitupera- 
 tive Gomarist. Step by step Grotius found himself 
 becoming more and more involved in these disputes. 
 Although he was inclined to favour the views of the 
 Bemonstrators, yet, up to the last, his sole object 
 and desire was to see the disputes finally settled, 
 and to restore peace and concord between the parties. 
 In 1616 he was sent to Amsterdam as leader of 
 a deputation from the States, with the object of 
 obtaining the co-operation of that city in their 
 endeavours to restore peace and quiet in ecclesias- 
 tical matters. Amsterdam, with its vast majority of 
 Contra-Bemonstrators, refused, and the subject had 
 
xx BIOGEAPHICAL SKETCH OF GEOTIUS. 
 
 to be temporarily dropped. During this period 
 Grottos was subject to severe fits of melancholia, 
 but his activity and the pressure of work had a 
 beneficial effect, and the worst form of the disease 
 soon passe off. 
 
 Prince Maurits assumed an unfriendly and an- 
 tagonistic position over against Grotius and Olden- 
 barneveld, urged by self-interest and the fear that 
 their ascendency would mean the lessening of his 
 power ; for he saw that in the restoration of peace, 
 laboured for by both, lay a weakening of his in- 
 fluence with the States — in short, his influence and 
 power could be better felt and maintained in times 
 of trouble and discord than in an epoch of peace. 
 He therefore threw in his lot with the Gomarists, 
 and these openly avowed their confidence in the 
 Prince, backed up by the military. Meantime, 
 matters went from bad to worse. At Amsterdam, 
 the Hague, Utrecht, Leyden, and other places, 
 breaches of the public peace occurred. Civil dis- 
 cord throughout the young Republic became im- 
 I minent, and several of the States engaged mercenary 
 troops (Waardgelders, so called because they were 
 paid for keeping watch) for their internal protec- 
 tion and to ensure peace. Matters now assumed a 
 threatening aspect. The appointment of Waard- 
 gelders naturally met with the strongest disapproval 
 from Maurits, who wished them to be disbanded, 
 whilst the States maintained that the appointment 
 was for their safety, and for the welfare of the 
 country - 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxi 
 
 On. the 29th of August 1618, without any inter- 
 vening occurrence sufficient to serve as a cause, 
 Grotius, Oldenbarneveld, Hoogerbeets, Ledenberg 
 (Secretary of Utrecht), and Moersbergen (member 
 of the States), were suddenly, surreptitiously, and 
 illegally arrested at Utrecht upon vague charges of 
 certain members of the States-General who belonged 
 to the Contra-Bemonstrators, and were acting in 
 consort with Maurits. They were individually in- 
 formed that the Prince desired an interview, but 
 upon entering the room, first one and then another 
 was seized and hurried off to confinement. During 
 their imprisonment every artifice was tried in order 
 to extort some confession from the unfortunate 
 prisoners for the purpose of formulating an indict- 
 ment against them, but the attempts were futile. 
 After several months of close confinement and harsh 
 treatment, during which time they were not allowed 
 an interview with wife, child, or friend, they were 
 brought to trial in February 1619. The bench was 
 composed of twenty-four persons, styled "judges," 
 specially selected to try the prisoners (Grotius re- 
 fers to them in his Apology as " de his, quse vitio 
 aut inique gestae sunt in dandis judicibus"). The 
 charges against the prisoners were vague and un- 
 founded, but since their accusers sat as their judges, 
 nothing but a conviction could have been expected, 
 no matter what arguments or evidence might have 
 been advanced or adduced on their behalf. 1 Grotius 
 
 1 Was it not an insult to Justice to designate such a Bench a. 
 " Megtbank" 1 
 
xxii BIOGEAPHICAL SKETCH OF GEOTIUS. 
 
 was at first inclined to treat the matter lightly. He 
 knew that right and justice would be done by the 
 courts of law, and that he could easily satisfy them 
 that he was innocent. Never did he contemplate 
 the constitution of a special court appointed for the 
 purpose of pronouncing a verdict of guilty under 
 pretence of a trial which was a hypocritical formality 
 and a persecution. On 17th April 1619, the grey- 
 headed Lands-advocaat, Oldestbaeneveld, then in 
 his seventy-second year, was sentenced to death, and 
 was executed on the following day. Another month 
 was spent in fruitless attempts to wring some con- 
 fession from Geotius by means of ill-treatment and 
 threats. Maria, the wife of Geotius, throughout 
 this trying time, and in fact until her death, dis- 
 played the greatest fortitude and strength of mind. 
 A direct hint was sent to her by some of the judges 
 that her husband would escape the fate of Olden- 
 babneveld if he confessed and apologised, and she 
 was requested to persuade him to do so. With 
 scorn and derision she replied, " I absolutely refuse, 
 and if he is guilty, you may proceed with the execu- 
 tion." On 18th May 1619, Geotius and Hoogerbeets 
 were again brought before the court, and were sen- 
 tenced to life-long imprisonment and their property 
 confiscated, on vague charges of high treason, re- 
 ceiving bribes from the Spaniards, creating civil 
 disturbances, and inciting to rebellion and civil war. 
 Palliating circumstances, such as the uncivilised 
 times and religious enthusiasm, may be advanced 
 by patriotic writers out of respect for the fair fame 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxiii 
 
 of their country ; viewed, however, from a calm and 
 clear standpoint, the so-called trial was illegal ab 
 initio, and, as above stated, a hypocritical formality 
 and well-planned persecution ; and the fact remains 
 that a crime and unjust inquisitorial persecution, 
 which stained the national good fame for many 
 generations, and which will ever be regretted by 
 all who have made an acquaintance with the works 
 and lives of the condemned, were perpetrated by 
 those in authority. Grotius and Hoogerbeets were 
 transferred to the Castle of Loevestein, at the 
 western extremity of the Bommelewaard, on 5th 
 June, and confined separately. Here they were 
 harshly and cruelly treated. They were at first not 
 allowed to have any intercourse with their families, 
 but after a while the importunities of Maria 
 gained the day, and the wives of the prisoners 
 were allowed to reside within the prison. Grotius 
 was allowed the use of books and writing materials, 
 and he made the most of his opportunities during 
 his incarceration. His writings at this time will be 
 referred to later. A vast quantity of books were 
 left at his disposal by Vossius and other friends at 
 Oorcum with one Daatselaar. A large box was 
 employed for the purpose of conveying the books 
 between this place and the castle. At the command 
 of the officer in charge at the castle, the box was 
 at first regularly inspected and examined ; but since 
 nothing but books were always found therein, this 
 precaution was ultimately neglected. This fact was 
 noticed by Maria, and a plan of escape was there- 
 
xxiv BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 upon considered, and eventually, after sundry ex- 
 periments, put into execution on the 22nd March 
 1621. Grotitts got into the box, and his wife care- 
 fully filled up the vacant spaces with books and 
 locked the box. At her request the box was, as 
 usual, conveyed to Gorcum, and was there opened 
 by Mrs. Daatselaar two hours after Grotius had 
 entered it. As may well be imagined, there was 
 great secret rejoicing. In the garb of a mason 
 Grotius departed for Waalwijk, and thence to 
 Antwerp. He was persuaded by Du Mattrier, the 
 French Ambassador in Holland, to seek refuge in 
 France and to proceed to Paris. He followed the 
 friendly advice, and arrived there on the 13th April. 
 Maria Grotius was closely confined in prison as 
 soon as the escape of her husband became known, 
 but she was released on the 7th April. Grotius 
 was warmly welcomed at Paris by those in power. 
 Louis XIII. was then at Fontainebleau, but he 
 returned to Paris in January 1622. He was ac- 
 corded a hearty reception by the French King, 
 and was granted a pension, payment whereof was 
 however delayed from time to time, and was eventu- 
 ally made in tardy instalments obtained with great 
 difficulty. He was therefore in constant need of 
 money, and sometimes in dire straits. Congenial 
 but at the same time remunerative employment 
 seemed unobtainable in Paris. 
 
 After this Grotius began to lose heart and became 
 restless. Three great ruling desires were at war 
 against his banishment and forced inactivity : — An 
 
BIOGEAPHICAL SKETCH OF GEOTIUS. xxt 
 
 ardent longing to return to his native land, in order 
 to further her interests as far as it was in his power 
 so to do — although it must be admitted that, from 
 personal considerations, he preferred to remain 
 abroad ; an overpowering desire to have freedom 
 of religion accorded to himself and his party ; and a 
 craving for active life as a practising jurist. His 
 letters throughout this period afford ample proof 
 thereof. A man of such eminence, renown, and 
 influence as Gkotius had not long to wait for offers 
 and invitations to settle in other countries. None of 
 these offers were, however, sufficiently attractive, for 
 in no instance would he bind himself by any engage- 
 ment which precluded a chance of a speedy return to 
 Holland. Projects of change of residence to Holstein, 
 Hessen, Marburg, Steinfiirt, Venice, and other places 
 were in turn discarded, on the ground that he would 
 thus be hampered in his work in the interests of his 
 party and of his country. It must be borne in mind 
 that, after the death of Oldenbarneveld, and during 
 the continuance of the incarceration of Hoogerbeets, 
 the hopes of every one who desired and expected 
 amelioration in the home and foreign policy of the 
 Republic were centred in him, and on this account 
 he was most anxious to remain in Paris until the 
 renewal of the alliance between Holland and France. 
 For a long time, however, he seriously contemplated 
 going to Denmark in connection with an embassy to 
 that Court. He was subsequently dissuaded by all 
 his influential friends, and reluctantly gave up the 
 idea. About November 1624, he was offered the 
 
xxvi BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 professorial chair in History and Jurisprudence in 
 the University of Soroe, founded by Christian IV. 
 This he declined, and the vacancy was filled by 
 Johannes Meursius. It became evident that he 
 could not continue much longer in Paris without a 
 livelihood, for his funds were running low, and his 
 family had to be cared for. He could not commence 
 practice as an advocate, for he was handicapped in 
 respect of the language and the legal phraseology, 
 and he would further have been hampered, since he 
 would have been compelled to start ah initio. To 
 a man possessed of such powerful talents as Grottos, 
 these difficulties would have been trifling ; there was, 
 however, another obstruction that barred the way — 
 he would have to be naturalised ; and to forswear 
 allegiance to his country he stoutly refused. He 
 then contemplated going to Spiers, where Latin 
 was used in the courts of law. His friends and 
 relatives, however, urged him to remain where he 
 was, in the firm belief that he would attain such 
 success as would compensate him for the years of 
 inactivity. 
 
 As long as Maurits lived, no hope of reconcilia- 
 tion appeared on the horizon. Grotius had whilst 
 resident in Paris, and more especially during the 
 latter portion of his stay, ingratiated himself with 
 Prince Frederik Hendrik and other influential and 
 highly placed officials, with a view of obtaining 
 leave to return to Holland when a suitable oppor- 
 tunity should arrive. With this object in view he 
 gave an " Advice," setting forth in detail the steps 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxvii 
 
 that ought to be taken upon the death of Maueits 
 in order to ensure internal peace. " Ssepe me de- 
 jectum tot malis relevat conscicutia amatse patriae et 
 legum et pacis et veritatis." 
 
 After the death of Maurits, which occurred in 
 1625, Grotius would have returned under the letter 
 of " safeguard " with which he had been supplied 
 by the French sovereign ; but the feeling against 
 his party was still too strong, and, moreover, he 
 refused to solicit a pardon on the ground that it 
 would be degrading, and there existed no reason 
 for such a step. " Eogues and thieves ask for par- 
 don, but not honest folk," was Maria's curt reply 
 when questioned upon this matter. He likewise 
 steadfastly refused to sever his connection with the 
 Hemonstrators. Little hope of permission to return 
 was held out until such time as he complied with 
 these two requirements. To the honour of Grotius 
 be it said, that, notwithstanding these frequent re- 
 buffs, his devotion for his country never decreased, 
 but, on the contrary, he was ever alert to watch and 
 forward her interests and to strengthen her position 
 with foreign powers. There is, however, a limit to 
 human endurance, and when the unreasonable atti- 
 tude of the States, dictated by his enemies, was 
 forcibly brought home to him between 1631^34, 
 he decided to give up all idea of returning, and to 
 waste no more energies on behalf of an ungrateful 
 and hostile fatherland. 
 
 To imagine that Grotius, throughout the period 
 of his residence in Paris, lived the cheerless life of a 
 
xxviii BIOGEAPHICAL SKETCH OF GROTIUS. 
 
 recluse, void of all pleasurable enjoyment and happi- 
 ness, would be a mistake. Paris was then the lead- 
 ing city of the civilised world, and counted among 
 its inhabitants diplomatists, theologians, litterateurs, 
 scholars and statesmen of the highest repute. 
 
 His reputation as a scholar, divine, eminent jurist, 
 and author gained him a hearty welcome upon his 
 arrival in 1621, and he soon made the acquaintance 
 of most of the leading men in France. His activity 
 and capacity for, work was truly marvellous, and his 
 leisure time, if such it may be called, was fully 
 occupied. Eventually, towards the close of 1631 r 
 after various negotiations and promises of assistance, 
 Grotius returned to Holland. The malignity of his 
 enemies had, however, not abated, and on the 10th 
 March of the following year a rewai'd of 2000 
 guldens was offered for his apprehension, and he 
 was sentenced to perpetual banishment. With a 
 heavy heart he once more bade adieu to the country 
 of his birth, for whose welfare he had made such 
 enormous sacrifices, and to whose prosperity he had 
 devoted the energies of a lifetime. On the 17th 
 April 1632 he proceeded to Hamburg, and very soon 
 became inundated with offers of employment by 
 various powers and sovereigns, eager and willing to 
 engage his services. For a considerable time he 
 refused to bind himself absolutely by any definite 
 acceptance, for he knew that in all probability his 
 next step would be almost irrevocable and binding 
 for the rest of his life. 
 
 In 1634 he entered the diplomatic service of 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxix 
 
 Sweden, and immediately wrote to Frederik Hen- 
 drik, Prince of Orange, that henceforth he was a Hol- 
 lander no longer, that Sweden was now his adopted 
 fatherland, and that Rotterdam was free to choose 
 another Syndic or Pensionary in his stead. In the 
 early part of 1635 he left for Paris as Swedish 
 Ambassador at the French Court. His position as 
 such was a delicate and trying one. For ten years, 
 however, he continued to represent the interests of 
 Sweden, despite the malicious slanders and under- 
 hand actions of his enemies and the objectionable 
 attitude assumed by the Chancellor Richelieu. No 
 matter what difficulties or counter-inducements pre- 
 sented themselves, Geotius manfully executed his 
 duties, and succeeded in important diplomatic 
 negotiations where others under more favourable 
 circumstances had failed. 
 
 Works. — This is a fitting place to give in detail 
 a list of the various writings of Grotius. Many of 
 them have already been referred to and discussed 
 at an earlier stage. As early as 1599 he issued an 
 amended and revised edition of the philosophical 
 works of Martianus Capella. In the same year 
 he translated the technical Instructions for Seamen 
 into Latin. In 1600 he published the Phenomena 
 of Aratus. In 1602 he wrote a treatise on the 
 Comparative Merits of the Athenian, Roman, and 
 Batavian Nations. He was appointed historio- 
 grapher by the States about this time in commemora- 
 tion of the struggles of the Netherlands for freedom 
 
xxx BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 from the Spanish yoke. In 1609 he published his 
 Mare Liberum (de Jure quod Batavis competit ad 
 Indica commercia), one of the first dissertations on 
 International Law with respect to freedom of navi- 
 gation, and a work whose influence and sound 
 logical reasonings have been felt and recognised in 
 modern international jurisprudence. Another work 
 on constitutional government, The Antiquity of 
 the Batavian Republic, was written in 1610. On 
 the death of Arminius in 1609 he wrote a poem 
 In Mortem Arminii, and, as we have seen, he 
 gradually became involved in the religious contro- 
 versies, and supported the views of his party by 
 his pen in such works as The Jurisdiction of 
 the Temporal Sovereign in Ecclesiastical Matters, 
 The Religion of Holland and West Friesland, &c. 
 Yet, although so deeply engrossed in the perform- 
 ance of his duties and in attempts to bring the 
 religious parties to an amicable settlement, he still 
 found time to devote to study. His Lucanus was 
 published in 1614, and all this time he steadily con- 
 tinued his labours as historiographer. In 1616 a 
 selection of his Poems were first published (Hugonis 
 Grotii Pcemata omnia). The poems are well written, 
 instructive, and are couched in masterly language. 
 Despite all this, Grotius cannot be ranked as a true 
 poet of the first order. He was a scholar, a man of 
 delicate feeling, and an admirable writer, but his 
 poems lack the inspiration of true genius. The collec- 
 tion contains elegies, marriage songs, Silvae, patriotic 
 compositions, Epigrammata, and three dramas — The 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxxi 
 
 Suffering Christ, Sophompaneas (the history of 
 Joseph), and Adarnus Exul (first published in 1601). 
 In 1617 he wrote in Defence of the Catholic Faith 
 concerning the Sufficiency of Christ. During his 
 imprisonment at Loevestein he wrote Annotations 
 on the New Testament, The Christian Faith (in 
 six books), and Introduction to the Jurisprudence 
 of Holland. He makes mention of these works in 
 a letter addressed to his sons which accompanied 
 the last-mentioned work. Therein he solemnly pro- 
 tests his innocence, and leaves the Introduction as 
 a legacy to his children. This work was the clearest 
 and most systematic early discussion of the laws of 
 Holland. Grotius may therefore be styled the father 
 of Dutch as well as of International Jurisprudence. 
 His stay in Paris was characterised by a most 
 marvellous display of energy in writing, study- 
 ing, and teaching, the first two out of pure love 
 for work as a scholar, and the last out of neces- 
 sity to provide for his family. Shortly after his 
 arrival we find him busy with the Tragedies of 
 JEschylus, and before the end of the same year 
 he finished his Disquisition on Pelagianism, and his 
 Apology or Defence (Verantwoording) was almost 
 complete.. At the same time he was busy at an 
 epic poem commenced in Loevestein on the Evidences 
 of True Religion, in six books (already referred to). 
 His Specimens of the New Dutch Inquisition was also 
 commenced. He subsequently re-wrote this work in 
 Latin under the title of The Truth of the Christian 
 Religion, which created for him a world-wide repu- 
 
xxxii BIOGEAPHICAL SKETCH OF GKOTIUS. 
 
 tation. He then finished Extracts from the Greek 
 Poets, with copious annotations, and the Annates. In 
 1623 he commenced his masterpiece, De Jure Belli ac 
 Pads, which gained for him the proud position of 
 being the first and the most eminent expounder 
 of International Law during the seventeenth and 
 •eighteenth centuries. He has thus justly been con- 
 sidered the father of International Jurisprudence. 
 " He arose," says Kent, " like a splendid luminary, 
 dispelling darkness and confusion, and imparting 
 light and security to the intercourse of nations." 
 It is said by Barbeyrac that the works of Lord Bacon 
 first suggested to Grottos the idea of reducing the 
 laws of nations to the certainty and precision of 
 a regular science. This is possible, but unlikely. 
 "We have it on record that he was induced by Nic. 
 Peiresc to commence the work, but only after very 
 lengthy correspondence. Groups himself, in his 
 Introduction to this work, states that his object was 
 to correct and dispel the immoral tendencies of the 
 false theories prevalent in his day, by showing a con- 
 sensus of opinion among the wise and learned of all 
 nations and ages in favour of the natural law of 
 morality. " Grotius," continues Kent, " therefore 
 went purposely into the details of history and the 
 usages of nations, and he resorted to the works of 
 philosophers, historians, orators, poets, civilians, and 
 divines for the materials out of which the science of 
 public morality should be formed ; proceeding on 
 the principle that when many men, at different times 
 .and places, unanimously affirmed the same thing for 
 
BIOGRAPHICAL SKETCH OF GROTIUS. xxxiii 
 
 truth, it ought to be ascribed to some universal 
 cause. His unsparing citation of authorities, in 
 support of what the present age may consider very 
 plain and undisputed truths, has been censured by 
 many persons, as detracting from the value of the 
 work. On the other hand, the support that he gave 
 to these truths, by the concurrent testimony of all 
 nations and ages, has been justly supposed to con- 
 tribute to that reverence for the principles of inter- 
 national justice which has since distinguished the 
 European nations." 
 
 In 1623 the materials for this great work were 
 collected, and it progressed so rapidly and satis- 
 factorily, that early in 1624 he was able "to an- 
 nounce that it would extend over three volumes. 
 Dirk Graswinkel and Willem van der Velden, who 
 were deeply interested in the work, acted as most 
 willing and industrious clerks, and but for their 
 efforts the work could not have been finished till 
 considerably later. In November of that year it 
 was in the press, three separate presses being em- 
 ployed at the same time. Early in 1625 the 
 publication was completed, and the work issued 
 amidst the great and unanimous acclamation of 
 scholars, jurists, and statesmen alike. The sale 
 paid him. fairly well. 
 
 As Swedish Ambassador at Paris, Grotius had 
 little leisure for writing. He continued and finished 
 his History of the Netherlands, and on behalf of 
 the Swedes he translated the History of the Goths 
 and Vandals by Procopius. Another historical work 
 
xxxiv BIOGRAPHICAL SKETCH OF GROTIUS. 
 
 -written at this time was The Origin of the 
 American Nations. 
 
 After having served faithfully as Swedish Am- 
 bassador for ten years, he requested his recall in 
 1645. This was reluctantly complied with, but his 
 ill-health and age (Grotius was then in his sixty- 
 third year, and the severe trials and constitutional 
 shocks that he had undergone, coupled with un- 
 ending hard work, had shattered his system and 
 made him an old man) brooked no excuse or delay. 
 He left Paris for Sweden, and breaking his journey, 
 he visited the land of his birth for the last time. 
 Both Amsterdam and Eotterdam accorded him hearty 
 and triumphant receptions. On his arrival at Stock- 
 holm, his health rapidly failed, and he was forced to 
 leave again almost immediately. He intended going 
 to Liibeck, but was taken severely ill on the journey. 
 At Eostock he was confined to his bed, medical aid 
 was summoned, and it was soon discovered that his 
 constitution was completely broken down by the 
 persistent application and unremitting labours of his 
 previous life, and that his condition was hopeless. 
 On the 28th August 1645, at Eostock, Grotius 
 peacefully passed the portals of eternity, knowing 
 no pangs of conscience for an ill or misspent life, 
 and with the assurance — for he must have known — 
 that his life in the interests of his Maker, his Father- 
 land, and mankind had not been in vain. 1 Thus 
 
 1 After his death several reports were spread by his enemies that he 
 had met with a violent death, by lightning, as some have it, or by poison, 
 according to others. These stories, however, are absolutely false. 
 
BIOGEAPHICAL SKETCH OF GROTIUS. xxxv 
 
 died a noble man, patient, kindly, sympathetic, and 
 long-suffering — a " vir doctus supra exemplum rarse 
 ad modestiae." His own interests were completely 
 merged in those of his banished co-religionists, whilst 
 he was always forbearing to his opponents and his 
 enemies. 
 
 " To fairly estimate," says Sir James Mackintosh 
 in his Discourse on the Study of the Law of Nature 
 and Nations, " both his endowments and his virtues, 
 we may justly consider him as one of the most 
 memorable men who have done honour to modern 
 times. He combined the discharge of the most 
 important duties of active and public life with the 
 attainment of that exact and various learning which 
 is generally only the portion of the recluse student. 
 He was distinguished as an advocate and a magis- 
 trate, and he composed the most valuable works on 
 the law of his own country. He was almost equally 
 celebrated as an historian, a scholar, a poet, and 
 a divine, a disinterested statesman, a philosophical 
 lawyer, a patriot, who united moderation with firm- 
 ness, and a theologian who was taught candour by his 
 learning — unmerited exile did not damp his patriotism 
 — the bitterness of controversy did not extinguish 
 his charity. The sagacity of his numerous and fierce 
 adversaries could not discover a blot on his character, 
 and in the midst of all the hard trials and galling 
 provocations of a turbulent political life, he never 
 once deserted his friends when they were unfor- 
 tunate, nor insulted his enemies when they were 
 weak. In times of the most furious civil and re- 
 
xxxvi BIOGEAPHICAL SKETCH OF GKOTIUS. 
 
 ligious faction, he preserved his name unspotted, 
 and he knew how to reconcile fidelity to his party 
 with moderation towards his opponents." 
 
 The body was embalmed, and buried at Delft, 
 where he rests among his ancestors. The following 
 epitaph was written by Grotius himself — 
 
 GROTIGS HIC HUGO EST, BATAVDS, CAPTIVUS ET EXUL, 
 LEGATUS REGNI, StJECIA MAGNA TUI. 
 
LIST OF THE MORE IMPORTANT LEGAL 
 MAXIMS QUOTED. 
 
 PAGE 
 
 Abrogationes omnes sunt odiosse et stricte accipiendse . 108 
 
 Absurdum est in alterius persona ratum esse, in alterius non . 36 
 Actio hypothecae non competit contra' tertftim, nisi eum qui 
 
 aliquid hypothecs possidet 413 
 
 Alienatione prohibita, simul prohibita censetur servitus im- 
 
 positio 413 
 
 Ambulatoria est voluntas defuncti, usque ad vitse supremum 
 
 exitum 154, 191, 205 
 
 Argumentum ab identitate rationis in materia statuaria prse- 
 
 fertur in casu omisso dispositioni juris communis 
 
 BbneficIA principum latissime sunt interpretanda . 
 Bona immobilia sequuntur consuetudinem territorii ubi sunt 
 sita 
 
 Casus qui non comprehenditur verbis statuti, relinquitur dis 
 
 positioni juris communis 
 
 Consilium fraudulentum obligat 
 
 Debitor manet dominus pignoris ... 
 
 Dissoluta negligentia prope dolum est ... . 
 
 Dolus est, si quis non exigent, quod exigere debet . 
 
 Dolus esse dicitur si quis nolit persequi, quod persequi potest 
 
 Dolus in eo preesumitur, ad quern lucrum spectat 
 
 Domicilium ibi quis habere statuitur, ubi larem favet, ubi 
 
 majorem bonorum partem possidet et assidue versatur 
 Domicilii mutatio non facile prsssumitur .... 
 Domicilium originis, secundum jus romanorum, est immutabile 
 
 et qui alibi habitat censetur duo domicilia . 
 Domicilium tota voluntate mutatur et mutato domicilio orig 
 
 non attenditur 
 
 353 
 
 108 
 
 295 
 
 352 
 300 
 
 413 
 540 
 540 
 536 
 300 
 
 54 
 55 
 
 54 
 
 25 
 
 Ex verbis precedentibus dispositio immediate subsequens debet 
 
 inteUigi 236,270 
 
 Expressio unius exclusio alterius est 187 
 
 Extra territorium jus dicenti impune non paretur ... 8 
 
xxxviii LIST OF LEGAL MAXIMS QUOTED. 
 
 PAGE 
 
 Falsa causa legato adjecta non vitiat legatum .... 155 
 
 H^breditas veniens a latere non adita, non transmittitur . 294 
 
 Heres non potest contravenire voluntati defuncti . . . 321 
 
 Id prsevalere debet quod agitur, ei, quod simulatur . . 553, 555 
 
 Idem judicium est de accessoriis quod de principali . . . 579 
 
 In alternativis sufficit alteram impleri 17 
 
 In dubio nihil praesumi mutatum 108 
 
 In dubio semper est judicandum contra non habentem testatoris 
 
 mentem, etiamsi pia causa sit 341 
 
 In dubio ubi respicitur persona, ratio habenda est domicilii, non 
 
 originis 108 
 
 In omni contractu usura habere potest locum .... 522 
 
 Is etiam heres dicitur, qui sub onere fidei commissi est heres . 396 
 
 Is praesumitur aggressor, qui creditur fuisse audacior . . 615 
 
 Is prsesumitur aggressor qui melius est armatus . . . 615 
 
 Jus habilitationis respecit personam et habet ipsam qualificare 
 
 id ese habilitare ubicunque locorum 4 
 
 Locus contractus regit actum 96 
 
 Mandatarius, accepto mandate, alienam rem seque ac suam 
 
 curare debet 300 
 
 Minans prassumitur aggressor 615 
 
 Mobilia regulantur secundum consuetudinem domicilii defuncti 295 
 
 Mobilia non habent sequelam 479, 482 
 
 Nemo aspernabitur idem jus sibi dici, quod ipse aliis dixit, vel 
 
 dici effecit 130 
 
 Non aliter a significatione verborum recedi oportet quum cum 
 
 manifestum est aliud sensisse testatorem .... 235 
 
 Non fatetur qui errat 540 
 
 Non pactis aut obligationibus sed traditione transferuntur . 501 
 
 Nubens viro, foeminamve ducens, ducit etiam nomina . . 31 
 
 Omnes prohibitiones sunt stricti juris et minime extendendse . 290 
 Omnia voluntas de successione ambulatoria est debet, usque ad 
 
 supremum vitss exitum 154, 191, 205 
 
 Plus valet quod agitur quam quod simulate concipitur 
 
 Poena prsesupponit culpam 
 
 Pro communione potius quam contra 
 
 Prohibitus alienare, non prohibetur bona fide transigere 
 
 Publice interest est delicta puniri .... 
 
 553, 555 
 . 17 
 . 42 
 . 414 
 . 608 
 
LIST OF LEGAL MAXIMS QUOTED. xxxix 
 
 PAGE 
 
 Qualitatis additio vel detractio in jure hypothecs niMl 
 
 mutat 4^3 
 
 Quod est favorabile inter vivos, in ultima voluntate reputatur 
 
 odiosum ^ 5 ^ 
 
 Quod nepotibus relictum est, non est relictum filio et Alias . 378 
 Quodnullius est id ratione naturali ocoupanti conceditur. . 130 
 Quum in verbis nulla ambiguitas est, non debet admitti volun- 
 tatis qusBstio 235 
 
 Regula correlativorum habet centum fallentias . . . 583 
 Remuneratio asquiparatur in solutum datione . . . .311 
 Reprsssentatio semper et in quocunque gradu locum habet et 
 
 est unica causa et adsequata juris succedendi . . . 352 
 Eestrictiones omnes sunt restringendse et non ampliandse . . 107 
 
 Semper enim laborandum est, turn in testamentis, turn in 
 testibus, turn in instrumentis, ut pugnantia potius con- 
 cilientur quam ut actus erroris arguatur .... 238 
 
 Sola conductio domus non constituit novum domicilium, nisi 
 
 aluid accesserit . . 55 
 
 Sponsalia de futuro mutuo consensu dissolvuntur ... 22 
 
 Statutum restringens testandi libertatem, non extenditur ad 
 
 bona sita extra territorium statuentium .... 155 
 
 Stipulationes omnes, et prsecipue servitutum stricte sunt inter- 
 
 pretandse 417 
 
 Taciturnitas consensum non operatur ubi de aliquo obligando 
 
 tractatur, nisi alius actus positionis interveniat . . . 302 
 Testator potest disponere de re heredis et collationem inter 
 
 collaterales introducere .... . . 321, 373 
 
 Testibus duobus negantibus maleficium magis credendum est 
 
 quam mille affirmantibus 615 
 
 Tutor domini loco est, cum tutelam administrat non cum 
 
 pupillum spoliat 595 
 
 Ubi in statuto ratio pro expressa habetur, facienda est extensio, 
 
 etiam in correctoriis 353 
 
 Ubi uxor ibi domus ... 67 
 
 Utile per inutile non vitiatur ... ... 266 
 
 Uxor omnino sequitur mariti conditionem . . . 323 
 
 Verba generalia generaliter sunt interpretanda . . . 107 
 Verba quantumvis generalia restringuntur, ut absurdus intel- 
 lects vitetur 37 
 
 Verbum in dubio debet intelligi secundum vim suam maxime 
 
 propriam 107 
 
TABLE OF CASES CITED. 
 
 A. 
 
 PAGE 
 
 ACUTT, Blaine & Co. v. Col. 
 
 Marine Assur. Co 98 
 
 Adams v. Adams .... 67, 94 
 Albertus v. Albertus' Executors 33 
 Albertyn v. Van der West- 
 
 huyzen 451 
 
 Alexander & Co. v. Lioni . . 101 
 Allison v. Pretorius . . 438, 444 
 Anderson v. Thwaites . . . 206 
 
 v. Van Niekerk . . 449 
 
 & Murison v. Col. 
 
 Government 135 
 
 Aschen's Executrix v. Blythe 89, 153 
 Assue v. Curator of Assue . . 473 
 Auret v. Hind .... .48 
 
 B. 
 
 BAILIE v. Hendriks . 438, 439 
 Bank of Africa v. Hare . . 98 
 Barnard v. Col. Government . 450 
 Barnes, In re ... 43, 89, 451 
 
 Barret, In re 633 
 
 Barret v. O'Neil's Executors 386 
 & De Kock v. Meyer's 
 
 Executors 225 
 
 Barrington v. Col. Government 
 
 449, 560 
 Barry v. Kunhardt's Executor 215 
 Barry's Trustee v. Hodgson . . 472 
 
 Bate v. Hunt 592 
 
 Batt v. Batt 183, 206 
 
 Beaufort West Municipality v. 
 
 Wernich .... 428, 429, 450 
 Beck, Re Insol. Est. of . . . 211 
 
 Beckett v. Morris 444 
 
 Behr v. Morrison's Executor . 231 
 
 Bekker v. Meiring 174 
 
 Beneke v. Schoeman .... 535 
 Benjamin v. Benjamin . . 98, 593 
 
 Beresford, In re 194 
 
 Berridge v. Ward 429 
 
 Bethell, In, re 86, 95 
 
 PAGE 
 
 Beukes v. Van Wijk .... 626 
 
 Biccard v. Biccard 153 
 
 Black v. Black's Executors . 89, 152 
 Blackburn v. Meintjes . . . 592 
 
 v. Webb .... 624 
 
 Blackwell v. Crabb .... 126 
 Blanckenberg v. Bond's Exe- 
 cutors 473 
 
 Blatchford v. Blatchford's Exe- 
 cutors 43, 89, 90, 96, 140, 153, 535 
 Blignaut's Trustee v. Cellier's 
 
 Executor 225 
 
 Blommestein, In re ... 471 
 
 Board of Executors v. Morgan . 189 
 Booysen v. Col. Orphan Chamber 
 
 214, 222 
 
 Botha, Ex parte 633 
 
 Botha v. Kinnear . ... 448 
 
 Bouwer v. Fergusson .... 568 
 Boyes v. Verzigman 43, 44, 145, 148 
 Braham v. Bustard . . . 126 
 
 Brand v. Brand 215 
 
 v. Neethling's Executor 209 
 
 Breda's Executor v. Mills . . 424 
 Bresler v. Executors of Kotze 
 
 211, 230, 233, 235, 238 
 
 Brider v. Wills 592 
 
 Brink, In re 211 
 
 v . Gough . . . . 627 
 
 v. Meyer .... 389, 390 
 
 v. Oliviera .... 33, 149 
 
 q.q. v. Voigt & Breda . 551 
 
 Brink's Trustees v. Mechan 386, 387 
 Brissac v. Rathbone .... 98 
 Brits v. Brits' Executor 175, 195, 215 
 Brittain v. Col. Government . 422 
 Broekman v. Rens . . . 631, 632 
 Bronn v. Frits Bronn's Exe- 
 cutors .... 43, 85, 87, 225 
 Brook v. Brook . . . 80, 81, 82, 84 
 Brown v. Dyer & Dyer . . 44, 550 
 
 v. Rickard 223 
 
 v. Smith 66 
 
 v. Van Niekerk . 569 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 PAHE 
 
 Buchanan v. Swemmer . 549, 551 
 Buissinne v. Mulder et uxor 145, 146 
 Bull & Co. v. Col. Government 533 
 
 Bury t: Bedford 127 
 
 Buskes v. Gov. of S. A. R. . . 425 
 Buyskes v. Russouw's Trustees 149 
 
 CAFFIN et uxor v. Heurtley's 
 
 Executors 237, 238 
 
 Calf v. Jarvis 599 
 
 Cammack v. Murray . . . 548 
 
 Campher, In re 467 
 
 Cape Commercial Bank v. 
 
 Fleischmann 451 
 
 Liquida- 
 tors v. Porter 473 
 
 Cape of Good Hope Bank in 
 
 liquidation, Be 106 
 
 Cape Town Commissioners ■». 
 
 Truter 569 
 
 Carter, In re 511 
 
 Castleman v. Stride's Executor 
 
 222, 229 
 Cerfonteyn's Executors v. 
 
 O'Haire 180 
 
 Chabaud & Sons v. Mackie, Dunn 
 
 & Co 535 
 
 Chapman v. Trustee of Braham 
 
 & Shilling 494 
 
 Chester v. Chester 613 
 
 Chiappinni, In re 151 
 
 v. George . . . 550 
 
 & Co. v. Jaffray's 
 
 Trustees 552 
 
 Cholwick v. Penny . . . 519, 555 
 
 Christie v. Gilbert's Executor . 234 
 
 Clan william, C. C. of v. Low . 555 
 
 Clarence v. Reid 225 
 
 Cleeweek v. Berg 209 
 
 Cloete v. Cloete's Trustees . . 224 
 
 v. Colonial Government 482 
 
 v. Ebden 429 
 
 Coaton v. Alexander .... 494 
 Cock v. C. of G.H.Marine Assur- 
 ance Co 601 
 
 Coetzee v. Higgins 31 
 
 Cohen v. Wessels 569 
 
 Coleman v. Lynch 444 
 
 Collings v. Hartogh's Executors 239 
 Collins & Co. v. Brown . 120, 128 
 
 ■ v. Reeves . . . 128 
 
 Colonial Government v. Fryer 452 
 
 v. Fryer & 
 
 Huysamen 452 
 
 v. Hart . 7 
 
 ■ v. Robb . 549 
 
 PAGE 
 Colonial Secretary v. Davidson 547 
 Combrinck & Co. v. De Kock 
 
 122, 125, 127 
 
 Condy v. Mitchell 128 
 
 Connolly v. Woolrich .... 87 
 Consolidated Diamond M. Co. v. 
 
 C. of G. H. Diamond M. Co. . 550 
 Cookney v. Anderson .... 97 
 Corbridge v. Haybittel . . . 486 
 Cornelissen v. Equitable Fire In- 
 surance Co 550 
 
 Craven v. Reinach . . . 104, 106 
 Croll q.q. Kerr v. Brehm . . 535 
 Crompton v. Bearcroft 80, 81, 82, 83 
 Crookenden v. Fuller .... 71 
 Crossley v. Lightowler . . . 453 
 Crowley v. Domony .... 150 
 Cruse v. Executors of Pretorius 
 
 211, 229, 236 
 Cruywagen v. Oliviera . . . 625 
 Cunningham v. Cunningham . 94 
 
 D. 
 
 DALBY v. India and London 
 
 Fire and Life Insurance Co. . 599 
 Dall v. Registrar of Deeds . 143 
 Dalrymple v. Dalrymple ... 80 
 Daneel's Trustees v. V. d. Bijl 
 
 & Co. ... 505, 506, 507, 511 
 Daniels v. Cooper . . 483, 484, 488 
 Dantu v. Hart's Executors . 238 
 Davies v. South British Fire In- 
 surance Co 534, 599 
 
 Dawson v. Dawson 153 
 
 De Barros v. De Barros . . 81, 83 
 De Bouley v. De Bouley . . . 121 
 De Bruyn v. De Bruyn . . 185, 188 
 
 De Geest, In re 421 
 
 De Jager, In re 45 
 
 v. Muller's Executors 
 
 230, 235 
 
 ■ v. Scheepers . . . 207 
 
 De Smidt v. Burton 177, 209, 211, 238 
 De Villiers v. De Villiers . . 551 
 
 v. South African 
 
 Association 210, 394 
 
 De Villiers' Tutor v. Stukeris . 470 
 De Waal v. Mostert .... 548 
 De Wet, In re Estate of . . 182, 191 
 
 o). Hiscoek . 434, 438, 439 
 
 v. Manual .... 570 
 
 De Wet's Trustee D.Krynauw 506,508 
 Deschamps v. Van Onselin . . 578 
 Dickens v. Eastern Province 
 
 Herald 124 
 
 Dickinson v. Levy q.q. V. d. 
 Chys 549 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 PAGE 
 
 Dickson q.q. Ellis v. Biddulph . 421 
 
 Diering, In re 438 
 
 v. Furney 482 
 
 Dietz v. Pohl 535 
 
 Discount Bank v. Crous' Heirs . 626 
 Dobie v. Schickerling .... 456 
 
 Doe v. Hiscocks 176 
 
 Drew v. Drew's Executor . 229, 238 
 Dreyer v. Ireland . . 420, 431, 439 
 Dreyer's Trustee v. Lutley . 451 
 Drysdale u. Union Eire Insur- 
 ance Co 550, 600 
 
 Du Plessis v. Sinallberger . . 230 
 Du Plooy's Trustees v. Draper 
 
 & Plewman 508, 509 
 
 Du Preez v. Du Preez . . . 211 
 Dunell v. Van der Plank . . 97 
 
 Ebden & Co. v. Colonial 
 
 Government ... . 488, 489 
 
 Durr v. Bam 568, 570 
 
 Dusing, In re 472 
 
 Dutch Eef ormed Church Consis- 
 tory v. The Master and South 
 African Association. . . . 234 
 Dwyeri;. O'Elinn's Executor 202, 204 
 Dyason v. Ruthven .... 515 
 
 E. 
 
 EATON v. Moller 604 
 
 Eaton's Executor v. Eaton . 182, 191 
 Ebden, Be Will of ... . 189, 190 
 
 v. Anderson .... 425 
 
 Edelsten v. Edelsten .... 125 
 
 Edmeades v. Mostert .... 456 
 
 v. Scheepers . . . 456 
 
 Einwald v. German W. African 
 
 Co 97 
 
 Elliott v. Elliott's Trustees . . 386 
 
 Elliott's Trustees v. Sutherland 493 
 
 Enhoin v. Wylie 94 
 
 Erasmus v. De Wet .... 439 
 Esterhuyzen's Executrix v. Ver- 
 
 meulen 449 
 
 Eston v. Hitzeroth 625 
 
 Evans v. V. d. Plank & Cleghorn 534 
 
 E. 
 
 PASS & Co. v. Stafford ... 99 
 
 Eaure v. Low 547 
 
 v. Van der Merwe . . . 448 
 
 Fazibooy v. Short .... 484, 488 
 
 Eehrzen's Children v. Horak . 392 
 
 Eenton v. Boyle 486 
 
 Eerguson v. Stanton .... 102 
 
 Fergusson v. Wood Bros. . . 569 
 
 PAGE 
 Ferreira v. Reg. of Deeds . . 31 
 
 Fick v. Bierman 548 
 
 Fisher v. Liquidators of Union 
 
 Bank 200, 208 
 
 Fivaz v. Boswell .... 487, 489 
 
 Forbes v, Forbes 71 
 
 Still & Co. v. Sutherland 
 
 543, 549 
 Foster v. Foster & Berridge. . 80 
 Fourie's Executrix v. Erasmus . 444 
 Friisw. British United D.M. Co. 492 
 
 Fry v. Reynolds 560 
 
 Fryer and Others v. King . . 535 
 
 G. 
 
 GEARE & Son „. Butler & 
 
 Reddle 570 
 
 Gnade, In re 214 
 
 Goldberg v. Phoenix Fire Insur- 
 ance Co 601 
 
 Goldschmidt v. Adler .... 566 
 
 Goosen's Trustee v. Froneman . 511 
 
 v. Goosen . 494 
 
 Gous v. De Kock 125 
 
 Gray v. Rynhoud 24 
 
 Greef v. Verreaux . . 24, 78, 79, 96 
 
 Green v. Beveridge .... 593 
 
 Greenshields v. Cbisholtu . . 568 
 Griqualand West D. M. Co. v. 
 
 London and S. A. Exp. Co. . 454 
 
 Groenewald v. Smith .... 535 
 Guardian Insurance and Trust 
 Co. v. Lovemore's Executors 
 
 590, 593 
 Guest v. Trustee of Le Roex 
 
 482, 495, 519, 556 
 
 Guites v. Queen Fire Ins. Co. . 600 
 
 H. 
 
 HAARHOFF v. Cape of Good 
 
 Hope Bank 592 
 
 Hall v. Barrows 125 
 
 ■ v. Compagnie Francaise . 454 
 
 v. Hall's Trustee & Mitchell 387 
 
 Hamilton, Ross & Co. v. Bam & 
 
 Co 568, 569 
 
 Hare v. Heath's Trustee . . . 495 
 Harford v. Higgins .... 83 
 Harris v. Buissinne's Trustee . 496 
 Harrison v. Harrison .... 101 
 
 Harvey v. Farnie 91 
 
 Haupt v. Van den Heever . 221, 233 
 Hawes& Co. j;.Meintjes& Dixon 533 
 Hawkes v. Hawkes ... 66, 94 
 Hawkins v. Munnik 424, 429, 431, 445 
 
 Hay v. Codrington 625 
 
 Heartley.'!/. Poupart .... 548 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Heatlie v. Colonial Government 569 
 Heineman v. Jenkins .... 97 
 Henning, In re . . . 230, 233, 238 
 Henning's Executor v. The 
 
 Master 65 
 
 Henwood & Co. v. Westlake & 
 
 Coles 591 
 
 Herbst's Trustee v. Herbst . . 32 
 
 Herold, In re 176, 177 
 
 Heydenreich v. Curator of San- 
 
 denberg 470 
 
 Heyn v. Tonkin 229 
 
 Hiddingh v. Norden .... 511 
 
 v. Topps .... 426, 428 
 
 Hiddingh's Executor v. Hid- 
 
 dingh's Trustee .... 210, 394 
 Minors v. De Rou- 
 
 baix . . 214, 216, 219, 221, 233 
 Trustee v. Colonial 
 
 Orphan Chamber . 
 Higgins v. Higgins. 
 Hiscocks v. Hiscoeks . 
 Hjul Brothers v. Lyons 
 Hodgson & Co. v. Nefdt 
 Hoffman, In re . . . 
 ■ • v. Grassman 
 
 46, 
 
 234 
 
 153 
 
 240 
 
 626 
 
 626 
 
 474 
 
 31 
 
 428, 445 
 
 175, 195, 215 
 
 Hofmeyr v. De Waal 
 
 v. De Wet 
 
 Hollander & Co. v. Royal Insur- 
 ance Co 599 
 
 Hollet v. Nisbet & Dickson . . 598 
 
 Hope, In re . 102 
 
 Horak's Heirs v. Horak 190, 192, 209 
 Hornblow v. Fotheringham . . 97 
 Hough v. Van der Merwe . . 438 
 Howse Sons & Co.'s Trustees v. 
 Trustees of Howse Sons & Co. 
 
 101, 102, 105 
 Hunt v. Rousmaniere .... 548 
 
 Hurley v. Palier 152 
 
 Hutcheon v. Registrar of Deeds 
 
 of Kaffraria 142 
 
 Hyde v. Hyde .... 84, 85, 87 
 
 I. 
 
 IRVINE & Co. v. Berg ... 569 
 Israel Brothers v. Northern 
 Union Fire Insurance Co. . 600 
 
 J. 
 
 JAMESON v. Irvine's Exe- 
 cutors 591 
 
 Janion v. Watson 31 
 
 Jansen v. Eincham. . . 445, 448 
 Jefferson, Executor of Stewart 
 v. De Morgan 491 
 
 PAQE 
 Jennings v. Van Wijk . . . 214 
 Jenssen v. Commercial Insur- 
 ance Co. 600 
 
 Jocelyne v. Shearer & Hine 101, 106 
 Johnson v. Mclntyre .... 21 
 
 v. Roux' Executors 237, 238 
 
 Jonker's Trustees v. Jonker's 
 
 Executor 234 
 
 Jooste v. Jooste's Executor 210, 394 
 Joosten v . Grobbelaar .... 24 
 Jordaan v. Winkelman 438, 440, 456 
 Judd v. Eourie 446 
 
 K. 
 
 K AFERARI AN Colonial Bank 
 v. Grahamstown Eire Insur- 
 ance Co 599, 601 
 
 Kaufmann v. Griesemer . . . 434 
 
 Keech v. Hall 452 
 
 Keet v. Benjamin . . . . 578 
 
 v. Zeiler 589 
 
 Kemp, In re 174 
 
 Keyter v. Barry's Executors . 488 
 KirtonV Trustee v. Rogers . 505, 506 
 
 Klopper v. Smith 219 
 
 Konitsky v. Freeman .... 632 
 Kowie Boating Co. v. East Lon- 
 don Landing and Shipping 
 
 Co 550 
 
 Kriel v. Kriel 234 
 
 Krynauw v. De Marillac . 186, 348 
 
 LABUSCHAGNE, Re . . . 202 
 Laingi). Zastron's Executrix 147, 493 
 
 Lamb Bros. v. Brenner 
 Landman v. Daverin . 
 Landsberg v.. Marchand 
 Lange v. Liesching 
 v. Scheepers 
 
 590 
 
 432 
 
 44, 147 
 
 . 221 
 
 221 
 
 185, 188 
 
 431 
 
 523 
 
 Laubscher v. Basson's Exor. 
 
 v. Reve and Others . 
 
 v. Vigors & Fryer 
 
 Lawson v. Pritchard & Lawson 185 
 Le Neve v. Le Neve .... 445 
 Le Riche v. Van der Heuvel . 487 
 
 Le Roux, In re 189 
 
 Le Sueur v. Le Sueur. 92, 184, 188 
 
 Lea v. Donlon 21 
 
 Lean's Trustee v. Cerruti . 484, 487 
 Leather Cloth Co. v. American 
 Leather Cloth Co. . . . 119, 127 
 
 Leftley v. Mills 624 
 
 Leigh's Trustee v. Leigh . . . 153 
 Levisohn v. Williams .... 632 
 
TABLE OE CASES CITED. 
 
 xlv 
 
 PAGE 
 
 Levy v. Calf 551, 600 
 
 & Co. v. Smith .... 548 
 
 Liesbeek Munioip. v. Partridge 425 
 Liesching, In re. . . . . . 472 
 
 Linde v. Beyers 45 
 
 Lint v. Zipp 230, 239 
 
 Lipman & Herman v. Kohler . 98 
 
 Lippert v. Adler 566 
 
 v. Town Council, Port 
 
 Elizabeth 534 
 
 Lolly v. Gilbert 91, 591 
 
 Lond, In re 482 
 
 London and S. A. Explor. Co. v. 
 
 Rouliot 454 
 
 Long v. Randall . . . 484, 486 
 Long, Ebden & Co.'s Trustees v. 
 
 Holmes 592 
 
 Loots v. Loots 93 
 
 Lord v. Colvin 71 
 
 Louw v . Louw 46 
 
 Loxton v. btaples 456 
 
 Lucas v. Hoole . . . 216, 217, 219 
 
 Luck v. Chabaud 592 
 
 Ludolph v. Wegner . . . 432, 456 
 Ludwig v. Ludvvig's Executors 
 
 192, 195, 223 
 Lutgens Trustees v. Neethling 
 
 175, 203 
 
 M. 
 
 MACFARLANE v. De Beer's 
 
 Mining Board . . 
 MacKellar v. Bond 
 Magmoet v. Registrar of Deeds 
 Mahadi v. De Kock . 
 Malcher & Malcomess v. K 
 
 Win. Tn. Insur. Co. 
 Mallac v. Mallac . . 
 Manning v. Manning . 
 Marais v. Eloff . . . 
 Marcus' Guardian v. Jacobsohn 
 Marnitz & Campher, Ex parte 
 Marsh v. Billings . . 
 Martin v. Rive . . . 
 Mason v. Hill . . . 
 v. Mason . . 
 
 Mathyssen v. Sandenberg 
 Maxwell v M'Clure . 
 Maynard v. Malan . . 
 McAlister v. Raw & Co. 
 McAndrew v. Basset . 
 McCarthy v. De Caix . 
 McDonald v. Hart 
 
 185, 188, 202, 203, 238 
 
 & Co. v. Goodman 
 
 &Co 535 
 
 McKerry v. Francis .... 500 
 
 454 
 49 
 43 
 
 48 
 
 600 
 
 82 
 
 92 
 
 425 
 
 549 
 
 467 
 
 121 
 
 547 
 
 436 
 
 66 
 
 473 
 
 71 
 
 515 
 
 48 
 
 124 
 
 91 
 
 PAGE 
 Mechau v. Jaarsveld .... 515 
 Meeser v. Combrinck .... 625 
 Meintjes v. Oberholzer . 423, 424 
 & Co. v. Simpson 
 
 Bros 592 
 
 ■ & Dixon v. Deare & 
 
 Dietz 569 
 
 Meiring v. Meiring's Exor. . . 187 
 
 Melck v. David 386 
 
 Mentz, He Est. of 190 
 
 Meyer v. Johannesburg Water 
 
 works Co 439, 441, 444 
 
 v. Kok 175 
 
 Miller, In re 43 
 
 Mills v. Salmond 121 
 
 v. Trustees of Benjamin 
 
 Bros 491,493 
 
 Milner v. Gilmour 438 
 
 Minaar, In re 472 
 
 Mitchell v. Howard, Farrer & 
 
 Co .569 
 
 & Dore v. Lamjee 
 
 Dharsey & Co 104 
 
 Moolman, In re . . . . 142, 143 
 Morkel v. Holm . . . 147, 493 
 
 ■ v. Morkel 632 
 
 Morkel's Executors v. Morkel's 
 
 Heirs 30 
 
 Morrisson v. Morrisson's Exe- 
 cutors 234, 237 
 
 Mostert v. Fuller . ... 604 
 
 ■ v. Noach 569 
 
 v. S. A. Assoc. . . . 175 
 
 v. The Master. 21, 42, 178 
 
 Mostert's Trustee v. Mostert . 150 
 Mouton v. Van der Merwe . 439, 450 
 Mulder v. Mulder's Executors . 234 
 . . 473 
 . 568, 569 
 . . 569 
 . 230 
 . 422, 456 
 .440,456 
 
 Munnik v. Neethling . 
 Murray v. De Villiers 
 Murtha v. Von Beek . 
 Mutery, In re . . . 
 Myburgh v. Jamison . 
 v. Van der Bijl 
 
 N. 
 
 NAMAQUA Mining Co. v. 
 
 Com. Marine and Fire Ins. Co. 599 
 Nanto v. Malgass .... 43, 86 
 
 Nathanson v. Comm. Ins. Co. . 601 
 
 Naude v. Naude's Trustee . . 473 
 
 Neethling v. Taylor .... 548 
 
 Nel v. Nel's Executors . . . 230 
 
 Nelson, In re 43 
 
 v. Currey and Others . 192 
 
 Nettleton v. Kilpatrick . . . 470 
 
 Newberry v. Newberry ... 93 
 Niboyet v. Niboyet ... 91, 92 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Niebuhr v. Joel 550 
 
 Norden v. Solomon, Assignee of 
 
 Charke 103 
 
 Nortje v. Nortje 218 
 
 Norton v. Speck 625 
 
 0. 
 
 OAK v. Lumsden .... 48, 49 
 
 O'Brien v. Palmer 570 
 
 O'Callaghan's Trustees v. Cava- 
 
 nagh 482,489 
 
 O'Reilly v. Lucke 422 
 
 Ohlsson's Cape Breweries v. 
 
 Whitehead 427 
 
 Oliphant v. Grootboom . . 385, 389 
 Oliver v. Oliver & Oloete . . 230 
 Onkruyd v. Haupt . . . 591 
 
 Oosthuyzen, In re 45 
 
 v. Moeke . . . 213, 238 
 
 v. Moffat 
 
 214, 216, 221, 233 
 
 v. Oosthuyzen 
 
 175, 195, 206, 215, 223 
 Oosthuyzen, Wessels v. Ren- 
 burg's Executors .... 209 
 Oriental Bank v. Shaw . . . 625 
 
 Orlandi v. Pope 627 
 
 Orpen, In re 153 
 
 Orson v. Reynolds . . . 486, 491 
 Otto's Trustee v. Brister ... 386 
 
 PAARL Bank, Re Liquidators of 591 
 
 Page n. o. v. Ross 549 
 
 Painter v. Painter 46 
 
 Parkin v. Titterton . . 426, 445 
 
 Paterson, In re 152 
 
 Paulsmeier v. Lanhain . . . 593 
 Peacock v. Hodges . . . 425, 456 
 Phillips & King v. Ridwood . 625 
 Pike v. Hamilton, Ross & Co. . 422 
 Pohl v. Auret & Van Heerden . 233 
 Poppe, Russouw & Co. v. Kitch- 
 
 ing 548 
 
 Porter v. Phillips 429 
 
 Potchefstroom Municipality v. 
 
 Cameron 430 
 
 Poultney v. Van Santen ... 97 
 Preston & Dixon v. Biden's 
 
 Trustee 496, 549 
 
 Pretorius v. Executors of Pre- 
 
 torius 211 
 
 Prince q.q. Dieleman v. Ber- 
 
 range (Anderson) 
 
 44, 147, 212, 474, 547 
 Proctor, hire .. . . 187, 188, 190 
 
 PAGE 
 
 Pukler v. Russouw .... 33 
 
 Pullen v. Gilfillan 202 
 
 Purchase and Wife, Ex parte . 142 
 
 Pyer v. Carter 453 
 
 Q- 
 
 Queen v. Brampton .... 80 
 
 v. Chadwick .... 81 
 
 v. K 15 
 
 v. Nkalayi 523 
 
 v. Piet Arends . . 15, 16 
 
 • • v. Richards .... 547 
 
 v. Robertson .... 523 
 
 v. Thesen & Co. . . . 591 
 
 Quirk's Trustee v. Assignees of 
 
 Liddle & Co 488 
 
 R. 
 
 RADEMEYER, Ex parte 
 
 176, 177, 236, 240 
 Rahl v. De Jager 
 
 207, 216, 218, 219, 223 
 Randall's Trustees v. Haupt . 625 
 
 Ratcliffe, Ex parte 230 
 
 Rathfelder v. Rathfelder . . 208 
 Raubenheimer v. Executors of 
 
 Van Breda . 363, 364, 366, 367 
 
 Read v. Crooks 511 
 
 Redelinghuys v. Theunissen . 627 
 
 v. Watermeyer . . 472 
 
 Trustee v. Morkel 
 
 508, 511 
 ■ Trustee v. Rus- 
 
 souw's Trustee 511 
 
 Reed's Trustee v. Reed . . . 451 
 
 Reeves v. Reeves 93 
 
 Reiners, Von Laer & Co. v. Pehr 126 
 Reis v. Galloway's Executor 
 
 209, 387, 388 
 
 Reitz v. Kock 627 
 
 Rens v. Barn's Trustee 
 
 484, 486, 489, 491 
 
 v. Horak 515 
 
 v. Van der Poel .... 625 
 
 Retief v. Louw . 435, 437, 438, 439 
 Reynolds v. Howse & Early . 102 
 Richards v. Doveton's Trustees 
 
 103, 106 
 
 v. Nash . . . 446, 447 
 
 Richert's Heirs v. Stoll & 
 
 Richert 213, 393 
 
 Roche Blanche v. Pass . . . 209 
 
 Roos, In re 98 
 
 Rose & Co. v. Miller . 123, 126, 128 
 Roselt & Inglis, lie .... 473 
 Ross v. Matthews 625 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 PAGE 
 
 Ross v. Page 543 
 
 Priest & Page v. Saber 
 
 Bros 105 
 
 Roux v. Bezuidenhout . . . 450 
 
 Ruding v. Smith 83 
 
 Ruperti's Trustee v. Ruperti . 150 
 
 Russouw, In re 495 
 
 i>. Burgers . . 440, 456 
 
 SAAYMAN v. Le Grange . . 496 
 Sandenbergh, In re .... 473 
 
 v. Zibee's Executors 
 
 224, 229 
 Saul v. his Creditors . . . 9 
 
 Schaffner v. Myburgh .... 626 
 Scheepers v. Munioip. of Oudts- 
 
 hoorn 456 
 
 v. Scheepers' Execu- 
 trix 393 
 
 Schlemmer, In re 233 
 
 Schmidt v. Erancke .... 534 
 Schoeman v. Goosen .... 604 
 Schoombie v. Schoombie's 
 
 Trustees 142, 143 
 
 Scrimshire v. Scrimshire ... 80 
 
 Seaville v. Colley 578 
 
 Seixo v. Provitzendi .... 121 
 
 Selby v. Eriemond 44 
 
 Selkrig v . Davis 101 
 
 Shaw v. Gould 91 
 
 Shield v. Arndt 434 
 
 Shrimpton v. Laith .... 126 
 
 Sichel v. De Wet 32 
 
 Silberbauer v. Van Breda 439, 440 
 Silver v. Silver's Exor. ... 198 
 Simon v. Equitable Insur. Co. 
 
 550, 551, 600 
 Simonin v. Mallac . . 80, 81, 82, 83 
 
 Simpkins v. Penny 519 
 
 Sinclair v . Meintjes .... 146 
 Singer Manuf. Co. v. Wilson . 121 
 Sivewright v Green .... 578 
 
 Smit, In re 190 
 
 Smith v. Carpenter . . 506, 508 
 
 v. Sayer's Executor 196, 222 
 
 v. Standard Bank . . 548 
 
 Smuts v. Neethling .... 511 
 
 v. Stack .... 493, 495 
 
 Louw & Co. v. Goetzer . 48 
 
 Snook v. Bosnian 44 
 
 Solomon v. Cumming .... 519 
 Sottomayer v. De Barros . . 81, 83 
 South African Assoc, v. Mostert 
 
 195, 199, 209, 214, 215 
 
 ■ Bank Trustees v. 
 
 Chiappinni 33, 152 
 
 PAGE 
 
 Southey v. Schombie . 434, 435, 438 
 Spengler v. Executor of Higgs 211 
 
 Spies v. Spies 364 
 
 State v. Manoko 87 
 
 Steer's Executor v. The Master 
 
 182, 191 
 Stellenbosch Municip. 0. Lin- 
 
 denberg 568 
 
 Stenhouse v. Cressy .... 548 
 
 Stephens v. Peel 126 
 
 Stewart v. Ryall 566 
 
 v. Sichel 566 
 
 Stewart's Trustees & Marnitz v. 
 Uniondale Municip. 416, 448, 450 
 
 Steyn, Ex 'parte 230 
 
 v. Steyn's Trustee . 146, 152 
 
 Steytler v. De Villiers 625, 626, 627 
 
 Streicher, Ex parte 213 
 
 Stringer v. Gardner .... 240 
 Struben v. C. Town Dist. Water- 
 works Co. . . 435, 440, 441, 444 
 Strydom, Ex parte . . 230, 233, 238 
 
 Sture v. Sture 45 
 
 Suffield v. Brown 453 
 
 Sunley's Trustees v. De Wet . 511 
 Sutherland v. Elliot Bros. . 515 
 
 Swanepoel v. Stroh, Re Gouws . 225 
 
 T. 
 
 TAYLOR v. Carpenter ... 128 
 Theunissen v. Fleischer . . . 592 
 Thompson v. Malgas .... 388 
 Thorpe's Executors v. Thorpe's 
 
 Tutor 386 
 
 Thurburn v. Steward 
 
 33, 90, 151, 152, 507 
 
 Tier v. Tonkin 626 
 
 Torbet v. Attwell's Executors . 591 
 Treasurer-General 0. Bosman . 609 
 
 v. Lippert 
 
 519, 555 
 Tredgold's Executors v. Colonial 
 
 Orphan Chamber .... 499 
 
 Trollip v. Harper 473 
 
 Troost v. Ross 189 
 
 Tucker v. Austen's Trustee . . 511 
 Twentyman v. Chisholm . 534, 535 
 
 and Another v. Hewit 
 
 142, 145 
 
 and Another!). Norden 
 
 625, 626 
 & Co. v. Butler . . . 627 
 
 U. 
 
 TJDNY v. TJdny . . 
 Union Bank v. Spence 
 
 147, 387 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Union Bank Liquidators v. Kiver 591 
 Upton v. Upton .... 216, 217 
 
 V. 
 
 VAN Dijk v. Executors of Van 
 
 Dijk 229 
 
 Van Eeden v. Kirstein ... 41 
 Van Heerden v. Marais . 210, 393 
 
 v. Weise . 434, 435 
 
 Van Niekerk v. Van Niekerk 
 
 472, 474, 511 
 
 v. Wimble 423, 431 
 
 Van Reenen v. Board of Exe- 
 cutors 184, 188, 202 
 
 v. Neethling's Exe- 
 cutor ........ 209 
 
 Van Rooyen v. Gorman . . . 199 
 
 v. McColl 214, 216, 221 
 
 Van Schoor's Trustees v. Miller's 
 
 Executor 225 
 
 Van Vuuren v. Van Vuuren . 189 
 
 Van Wijk, In re 191 
 
 • — v. Van Wijk's Exe- 
 cutor 388, 389, 556 
 
 Van der Bijl's Assignees v. Van 
 
 der BijI 96, 140 
 
 Van der Brock v. Registrar of 
 
 Deeds 30 
 
 Van der Merwe v. Burgers . . 559 
 
 v. Turton & Juta 152 
 
 ■ v. Webb 482, 483, 486 
 
 Curator of v. V. d. 
 
 Merwe 33, 152 
 
 Van der Spuys v. Maasdorp . 174 
 Van der Walt's Minors, Re . 467 
 
 Venter v. Green 552 
 
 Vermaak v. Palmer . . 434, 439 
 
 Verwey v. Abo 548 
 
 v. Hannay Bros. & Dell 626 
 
 — v. Malcomess & Co. . . 489 
 
 v. O'Reilly 626 
 
 Vijfer v. Ubsdell . . . . 523 
 
 Viljoen v. Snyman .... 535 
 
 Villiers v. Kock 627 
 
 Visser v. Du Toit . . . 449, 560 
 Vlotman v. Landsberg . 567, 570 
 Von Ludwig v. Van Reenen . 570 
 
 W. 
 
 WALKER, Re Estate of . . 190 
 Walker v. Walker's Executors. 190 
 
 PAGE 
 
 Ward v. Bank of Africa . . .. 571 
 Warrender v. Warrender . . 87 
 Watermeyer v. Denyssen . . 627 
 
 v. Kerdell's Trustees 590 
 
 Waters & Herron v. Philips & 
 
 King 568 
 
 Watson v. Burchill . . 198, 209 
 Watson's Executors v. Watson's 
 
 Heirs 208, 234 
 
 Weatherley v. Weatherley 67, 93, 613 
 Wehr's Tutrix v. South African 
 
 Association .... 210, 394 
 Weinert v. Meyer & Kohl . . 591 
 Weise's Trustee v. Weise's Exe- 
 cutors 189 
 
 West v. Carpenter 67 
 
 Wethmar v. Lombard .... 625 
 Wheeldon v. Munnik .... 592 
 Wheeltonu. Hardisty. ... 599 
 Whitnall v. Goldschmidt . . 49 
 
 Wicht, In re 470 
 
 Wilhelm v. Francis .... 97 
 Wilhelmina v. Robertson . . 190 
 
 Wilken v. Ritchie 624 
 
 Williams Re Insolvent Estate of 147 
 Willmot v. Schalkwijk ... 548 
 Wilson v. Wilson .... 91, 92 
 & Glym's Trustees v. 
 
 Wilson 506 
 
 Wium, In re 212, 214 
 
 Woeke, In re . . . . . 482 
 
 Wolmerans v. Cloete .... 473 
 Wolvaardt v. Pienaar . . 430, 431 
 
 Wood v. Dersley 550 
 
 Wood v. Gilmour 535 
 
 Woodhead, Plant & Co. v. Gunn 483 
 Wood's Trustees v. S. A. Mutual 
 
 Society 599 
 
 Wright v. Barry et uxor . . . 142 
 
 v. Williams .... 552 
 
 Wylde, Re Will of Sir John 202, 205 
 Wynberg Valley Railway Co. v. 
 
 Eksteen .... 534, 535 
 
 Z. 
 
 ZEEDERBERG „. Norton & 
 
 Co 593 
 
 Zeederberg's Natal Trustees v. 
 Trustees of Zeederberg's Cape 
 
 Town Estate 103 
 
 Ziedeman v. Ziedeman ... 33 
 Ziervogel v. Bekker .... 625 
 Zipp, In re 216 
 
LIST OF ABBBEVIATIONS. 
 
 A. I. and II. 
 
 Appeal Court Keports. 
 
 Buc. 1868, &c, or Buchanan's Supreme Court Eeports. 
 simply 1868, &c. 
 
 . Cape Law Journal — Digest of Cases. 
 . " Cape Times " Law Eeports. 
 
 . Eastern Districts Court Eeports, by 
 Buchanan & Dulcken. 
 
 Foord's Supreme Court Eeports. 
 
 Griqualand High Court Eeports, by 
 Laurence & Collinson. 
 
 Juta's Supreme Court Eeports. 
 
 High Court of Transvaal Eeports, by Kotze. 
 
 Menzies' Supreme Court Eeports. 
 
 Law Eeports, Supreme Court, Natal. 
 
 Orange Free State, High Court Eeports. 
 
 Eoscoe's Supreme Court Eeports. 
 
 Searle's Supreme Court Eeports. 
 
 South African Eepublic, High Court Cases. 
 
 Shiel's " Cape Times " Law Eeports. 
 
 Watermeyer's Supreme" Court Eeports 
 (1857). 
 
 c. 
 c. 
 
 L. 
 T. 
 
 J. . 
 
 L. E. . 
 
 E. 
 
 D. 
 
 C, 1, &c. 
 
 F. 
 
 
 
 G. 
 
 
 
 J. 
 
 
 
 Kotze 
 
 
 M. 
 
 or 
 
 Menz. 
 
 Natal L. E. . 
 
 0. 
 
 F. 
 
 S. . 
 
 E. 
 
 or 
 
 Eos. 
 
 S. 
 
 s. 
 
 Sh 
 
 A. E. . 
 
 . or Shiel 
 
 w. . 
 
 xlix 
 
 d 
 
TABLE OF OPINIONS. 
 
 (No. I.) 
 
 No. of 
 Opinion. 
 
 Holl Cons. 
 . 3, b. 341 
 
 No. of 
 Opinion. 
 
 Holl. Cons. 
 
 No. of 
 Opinion. 
 
 Holl. Cons. 
 
 —1 . 
 
 -30 . 
 
 3, b. 152 
 
 -" 60 . 
 
 . 3, b. 300 
 
 ~2 . 
 
 3, b. 149 
 
 -r 31 .. 
 
 . 3, b. 198 
 
 - 61 . 
 
 . 3, b. 170 
 
 , 3 
 
 ( 3, b. 183 
 
 * 32 .. 
 
 . 3, b 189 
 
 ~- 62 . 
 
 . 5, 133 
 
 ' 1 5, 128 
 
 -< 33 .. 
 
 . 3, b. 151 
 
 -63 . 
 
 . 3, b. 302 
 
 - 4 
 
 • % (2), 53, 
 
 - 34 .. 
 
 . 3, b. 308 
 
 -64 . 
 
 . 3, b. 174 
 
 - 5 . 
 
 . 5, 129 
 
 - 35 .. 
 
 3, b. 305 
 
 -65 . 
 
 . 3, b. 173 
 
 
 ( 3, b. 313 
 ' i 5, 132 
 . 3, b. 146 
 
 — 36 .. 
 
 . 3, b. 191 
 
 ^66 . 
 
 . 3, b. 176 
 
 -"-6 
 
 — 1 . 
 
 , 37 . 
 - 38 .. 
 
 . 3, b. 161 
 . 3, b. 190 
 
 »-67 . 
 
 ( 3, b. 144 
 ' I 6, (2), 55 
 
 -s 8 . 
 
 3, b. 182 
 
 ► 39 .. 
 
 . 3, b. 154 
 
 - 68 . 
 
 . 3, b. 147 
 
 -. 9 . 
 
 3, b. 196 
 
 - 40 . 
 
 . 3, b. 195 
 
 -69 . 
 
 . 3, b. 171 
 
 -JO • 
 
 3, b. 340 
 
 - 41 . 
 
 . 3, b. 153 
 
 - 70 . 
 
 . 3, b. 169 
 
 - 11 . 
 
 . 3, b. 187 
 
 - 42 . 
 
 . 5, 131 
 
 • 71 . 
 
 . 3, b. 179 
 
 - 12 . 
 
 . 3, b. 178 
 
 - 43 . 
 
 . 3, b. 160 
 
 - 72 . 
 
 . 3, b. 180 
 
 -13 . 
 
 . 3, b. 306 
 
 c 44 . 
 
 . 3, b. 186 
 
 -- 73 . 
 
 . 3, b. 27 
 
 L - 14 . 
 
 (4, 22 
 ' 1 3, a,. 106 
 
 - 45 . 
 * 46 . 
 
 . 3, b. 158 
 . 5, 134 
 
 - 74 . 
 - 75 . 
 
 . 3, b. 177 
 . 6, 2, 56* 
 
 _ 15 . 
 
 .. 3, b. 185 
 
 - 47 . 
 
 . 3, b. 157 
 
 — 76 . 
 
 . 3, b. 145 
 
 ^16 . 
 
 . 3, b. 307 
 
 <: 48 . 
 
 3, b. 192 
 
 - 77 . 
 
 . 3, b. 150 
 
 -17 . 
 
 . 5, 130 
 
 - 49 . 
 
 . 3, b. 156 
 
 - 78 . 
 
 . 3, b. 301 
 
 - 18 . 
 
 .. 3, b. 184 
 
 «, 50 . 
 
 . 3, b. 155 
 
 - 79 . 
 
 . 3, b. 148 
 
 -19 . 
 
 .. 3, b. 310 
 
 -~ 51 . 
 
 . 3, b. 197 
 
 - 80 . 
 
 . 3, b. 143 
 
 - 20 . 
 
 .. 5, 127 
 
 -52 . 
 
 . 3, b. 311 
 
 V 81 . 
 
 .. 3, b. 303 
 
 -.21 . 
 - 22 . 
 
 .. 3, b. 163 
 .. 1, 231 
 
 -53 . 
 
 t 3, b. 312 
 
 ' 1 1, 86 
 
 « 82 . 
 - 83 . 
 
 .. 3, b. 175 
 .. 3, b. 168 
 
 _ 23 
 
 .. 3, b. 39 
 
 - 54 . 
 
 . 3, b. 159 
 
 — 84 . 
 
 .. 3, b. 165 
 
 - 24 . 
 
 .. 3, b. 188 
 
 < 55 . 
 
 . 3, b. 339 
 
 -« 85 . 
 
 3, b. 166 
 
 t 25 
 
 .. 3, b. 162 
 
 ^ 56 . 
 
 . 3, b. 314 
 
 -. 86 . 
 
 .. 3, b. 342 
 
 - 26 
 
 .. 3, b. 164 
 
 ^57 . 
 
 ■ 6, (2), 56 
 
 -v 87 . 
 
 .. 3, b. 167 
 
 *. 27 
 
 3, b. 194 
 
 -* 58 . 
 
 . 3, b. 316 
 
 - 88 
 
 .. 3, b. 199 
 
 - 28 
 
 .. 3, b. 193 
 
 _ 59 . 
 
 . 3, b. 142 
 
 -89 . 
 
 .. 3, b. 304 
 
 - 29 
 
 .. 3, b. 309 
 
 
 
 
 
TABLE OF OPINIONS. 
 
 (No. II) 
 
 Holl. Cons. 
 
 N°-. of Ho 
 Opinion. 
 
 11. Cons. 
 
 No. of 
 Opinion. 
 
 Holl. Cons. 
 
 No. of 
 Opinion. 
 
 I. 86 . 
 
 .. 53 III. 
 
 b. 169 
 
 .. 70 
 
 III. b. 304 
 
 . 89 
 
 231 . 
 
 .. 22 
 
 , 170 
 
 .. 61 
 
 „ 305 
 
 . 35 
 
 
 
 , 171 
 
 .. 69 
 
 „ 306 
 
 . 13 
 
 III. a. 106 . 
 
 •■ Will. , 
 
 , 173 
 
 .. 65 
 
 „ 307 . 
 
 . 16 
 
 III. b. 27 
 
 .. 73 
 
 , 174 
 
 .. 64 
 
 „ 308 
 
 . 34 
 
 
 39 
 
 .. 23 
 
 , 175 
 
 .. 82 
 
 „ 309 
 
 . 29 
 
 
 , 142 . 
 
 .. 59 
 
 , 176 
 
 .. 66 
 
 „ 310 
 
 . 19 
 
 
 , 143 . 
 
 .. 80 
 
 , 177 
 
 .. 74 
 
 „ 311 
 
 . 52 
 
 
 , 144 . 
 
 .. 67 
 
 , 178 
 
 .. 12/4 J. 
 
 - ,, 312 
 
 . 53 
 
 
 , 145 
 
 .. 76 
 
 , 179 
 
 .. 71 
 
 „ 313 
 
 6/ 
 
 
 , 146 . 
 
 .. 7 
 
 , 180 
 
 •• 72 , i 
 
 , „ 314 . 
 
 . 56 
 
 
 , 147 . 
 
 .. 68 
 
 , 182 
 
 .. 8'^ 
 
 „ 316 . 
 
 . 58 
 
 
 , 148 
 
 .. 79 
 
 , 183 
 
 .. 3 ':''r 
 
 " ff 
 
 . 55 
 
 
 , 149 
 
 .. 2 
 
 , 184 
 
 .. 18^ 
 
 - ihff 340 
 
 . 10 
 
 
 , 150 
 
 .. 77 
 
 , 185 
 
 .. 15/£/& 
 
 „ 341 . 
 
 1 
 
 \ 
 
 f 151 . 
 
 .. 33 
 
 , 186 
 
 .. 44/(5) 
 
 & „ 342 . 
 
 . 86 
 
 
 , 152 
 
 .. 30 
 
 , 187 
 
 .. 11 '.'- 1 
 
 ' IV. 22 
 . V. 127 
 
 
 , 
 
 , 153 
 , 154 . 
 
 .. 41 
 .. 39 
 
 , 188 
 , 189 
 
 .. 240"/ 
 .. 32/6'f 
 
 . 14 
 . 20 
 
 - 
 
 , 155 . 
 , 156 . 
 
 .. 50 
 
 .. 49 
 
 , 190 
 , 191 
 
 • 38 '-v„ 
 .. 36 U 
 
 .. «'" 
 .. 28*"* 
 .. 27/^1 
 
 0,9 » 128 . 
 
 rtf/ „ 129 . 
 
 . 3 
 5 
 
 
 , 157 . 
 
 .. 47 
 
 , 192 
 
 >'*„ 130 . 
 
 . 17 
 
 
 , 158 . 
 , 159 . 
 
 .. 45 
 .. 54 
 
 , 193 
 
 , 194 
 
 „ 131 
 1 „ 132 
 
 . 42 
 6 
 
 •' 
 
 , 160 . 
 
 , 161 . 
 
 .. 43 
 .. 37 
 
 , 195 
 , 196 
 
 .. 40>6 't 
 
 t- 1 i 
 
 " 
 
 „ 133 
 
 „ 134 . 
 
 . 62 
 . 46 
 
 
 , 162 . 
 
 .. 25 , 
 
 , 197 
 
 51 * 
 
 
 
 
 , 163 . 
 
 .. 21 
 
 , 198 
 
 
 
 
 , 164 . 
 
 .. 26 
 
 , 199 
 
 .. 88 
 
 VI. (Pt. 2)53 ■ 
 
 4 
 
 
 , 165 . 
 
 .. 84 
 
 , 300 
 
 .. 60 
 
 ,, 54 see 
 
 p. 137 
 
 
 , 166 . 
 
 .. 85 
 
 , 301 
 
 .. 78 
 
 „ 55 
 
 . 67 
 
 
 , 167 . 
 
 .. 87 
 
 , 302 
 
 .. 63 
 
 » 56 
 
 . 57 
 
 
 , 168 . 
 
 .. 83 
 
 , 303 
 li 
 
 .. 81 
 
 „ 56" . 
 
 . 75 
 
OPINIONS OF GEOTIUS. 
 
 OPINION No. 1. 
 
 HOLL. CONS. III. B. 341. 
 [GROTTOS I. 3. 1, & II. 17. 11, 13, 17 & 18.] 
 
 Laws concerning persons, things, or actions — Personal, real, and 
 mixed statutes — Jurisdiction — Comity of nations — Inter- 
 national law — Ambassadors — Jus gentium — Jus naturcB — 
 Testamentary disposition allowed by these — Formalities for 
 making testaments — Reason why two witnesses are required 
 to prove the commission of a crime. 
 
 1. Every law treats either of persons, things, or 
 actions (formalities). 
 
 2. A law treats of persons if it makes him in- 
 capable who was formerly capable, or makes him 
 capable who was formerly incapable, either abso- 
 lutely or under certain conditions. 
 
 3. Such a law retains its force although the 
 person to whom it refers be outside the State : the 
 reason therefor. 
 
 4. A law treats of things when it lays down that 
 a certain thing, as a piece of land, for instance, 
 cannot be alienated except in a certain manner, and 
 
 •L A 
 
2 OPINIONS OF GEOTIUS. [No. 
 
 laws of this kind retain their force no matter where 
 the act be done. 
 
 5. The third kind of laws is that which prescribes 
 certain formalities in connection with certain acts, 
 and in that case the place where the act is done 
 is referred to. 
 
 6. Testamentary laws belong for the most part 
 to the third class of laws. 
 
 7. Not only ambassadors, but also their attendants 
 are exempt from all laws of the place where they 
 reside. 
 
 8. Testamentary disposition is allowed by the 
 Civil Law. 
 
 9. A person can naturally alienate his own pro- 
 perty even before delivery. 
 
 10. He who alienates his property can do so in 
 a certain manner, under certain conditions, for a 
 certain time, or even with power of revocation. 
 
 11. The right of alienation can be continued 
 even beyond the death of the alienor. 
 
 12. The power of testamentary disposition is 
 granted by natural law ; and some persons are, by 
 way of penalty, deprived of this right : et num. 13. 
 
 ,*- 14. According to the jus gentium, a testament 
 can be made in the presence of two witnesses, and 
 this rule applies also to testaments ad pias causas. 
 - 15. According to the jus natures, no particular 
 form of testament is required, but merely the ex- 
 pression of the intention. 
 
 16. According to natural law, the only reasons 
 which render an act void are (1) want of capacity, 
 
1-J OPINIONS OF GKOTIUS. 3 
 
 (2) inaptness of the subject-matter, and (3) the 
 inevitably immoral consequences of the act. 
 
 17. The jus gentium prescribes no particular form 
 of making a testament. 
 
 18. According to both the jus gentium and the 
 jus natures, the proof required for testaments is 
 virtually arbitrary, varying according to the position 
 of persons and the nature of the case. 
 
 20. The good character of the accused is of the 
 same effect as the presence of one witness, and thus 
 cannot be rebutted save by a greater number of 
 witnesses. 
 
 21. Concerning the judge's duty in cases where 
 he is in doubt as to the good character of the 
 notary. His duty where the testator or the notary 
 had not been sufficiently acquainted with this or 
 that language. 
 
 22. According to the jus gentium, the formalities 
 which suffice for the making of codicils are likewise 
 sufficient for the making of wills. 
 
 23. If any one is subject to the laws of the place 
 where he lives, his testament will be valid if made 
 according to the laws of that place. 
 
 (1) In deciding this case, the main question to be 
 considered is whether the law or custom of France 
 is to be observed outside France by any one who 
 wishes to make his will. In connection with this 
 matter we must note what Baldus says,(a) viz., that 
 
 (a) Baldus ad C. 1, 1, 1. 
 
4 OPINIONS OF GEOTIUS. [No. 
 
 every law treats either of persons, things, or actions 
 (formalities). (2) A law treats of persons if it makes 
 him incapable who was formerly capable, or makes 
 him capable who was formerly incapable, either abso- 
 lutely or under certain conditions. (3) Such a law 
 retains its force although the person to whom it refers 
 be outside the State ; (b) for, as Baldus says, " jus 
 habilitationis respicit personam et habet ipsam quali- 
 ficare, id est habilitare ubicunque locorum." It may 
 be added that this result depends rather upon a sub- 
 jection which follows residence than upon a subjec- 
 tion inactu, which depends upon territory. (4) A 
 law treats of things if it is laid down that a cer- 
 tain thing — a piece of land, for instance — cannot be 
 alienated except in a certain manner, and laws of 
 this class, since they refer directly to things, always 
 retain their force wheresoever the transaction takes 
 place. The authority generally quoted in support of 
 this is Code 5. 71. 16. (5) The third kind of laws 
 is that which prescribes certain formalities in con- 
 nection with certain acts ; and with regard to these 
 laws it is decided that the place where the act is 
 done is referred to.(c) It may be remarked that 
 this effect depends upon actual subjection, and not 
 upon subjection arising from residence. Most testa- 
 mentary laws belong to this class. (6) Assuming, 
 for instance, that we are discussing the customs of 
 the Franks, it does not follow that this act ought to 
 be governed by such custom. 
 
 (5) Baldus d. loco, num. 13. 
 (c) Baldus d. loco, num. 20. 
 
1.] OPINIONS OF GROTIUS. 5 
 
 From what has been said above it would follow 
 that acts of this class must be governed by the law 
 of the place where they are done. But in my opinion 
 this rule does not hold where it is alleged that the 
 testator has been in the retinue of an ambassador. 
 (7) For I submit that not only ambassadors, but 
 also their attendants are not subject to any of the 
 laws of the place where they reside, on the grounds 
 advanced by me in the chapter on the laws relating 
 to ambassadors in my work De Jure Belli ac Pads. 
 Therefore_acts of this kind must be decided accord- 
 ing to the jus natures or the jus gentium. 
 
 (8) In order to arrive at this decision, the first 
 question which arises is whether the power of making 
 wills arises from the jus natures ac gentium or from 
 the Civil Law : that is, whether, apart from the Civil 
 Law, testamentary disposition is allowed. (9)1 hold 
 the affirmative ; for according to the jus natures any 
 one can alienate his property even before delivery : 
 
 (10) and any one who alienates his property can do so 
 either in a certain manner, under a certain condition, 
 for a certain time, and even with power of revocation. 
 
 (11) Now the power of alienation can be prolonged 
 even beyond the death of the alienor: (12) hence 
 it follows that the power of making testaments is 
 granted by natural law ; (cl) and this is the general 
 opinion. (e) (13) This contention is borne out by the 
 fact that this power existed even in the original 
 
 (d) Videri possunt quae diximus. De Jwe, Belli ac Pads, lib. 2, c. 7, n. 14, 
 et o. 8, num. 25. 
 
 (e) Ut docet Julius Clarus de Testamento, quasst. 2, citans Bartolum, 
 
 Jasonem, et alios. 
 
6 OPINIONS OF GEOTIUS. [No. 
 
 state of natural law, as appears from Genesis xxv. 
 5 and 6 (/) ; and further by the fact that this right 
 was sometimes taken away by way of penalty, as 
 was formerly the case among the Saxons. The laws 
 of Solon provided that every one could dispose of his 
 own goods as he chose (to. eavra Sia6eaS(^ hai o-TTteg av 
 efleXj;), and thence originated the Roman rule that 
 each one could dispose of his property by will (uti 
 legasset). 
 
 (14) It remains still to be seen in what manner 
 one can make a testament according to the jus 
 gentium. It seems that it can be made in the 
 presence of two witnesses, as Clarus says with refer- 
 ence to testaments ad pias causas.(g) (15) But 
 the formalities required for the execution must be 
 distinguished from the proof. As far as the for- 
 malities are concerned, the jus natures requires only 
 what is dictated by nature — that is, an expression of 
 the intention. (h) (16) To this may be added that 
 according to the jus natures no acts are invalid 
 except by reason of [l] want of capacity, [2] in- 
 aptness of the subject-matter, [3] the inevitably 
 immoral consequences of the act. (17) No par- 
 ticular formalities for the making of testaments can 
 be pointed out as having been prescribed by the jus 
 
 (/) The period here referred to by Grotius is about 1853 B.C., and the 
 passage quoted alludes to the manner in which Abraham disposed of his 
 property. The text reads as follows : — " And Abraham gave all that he 
 had unto Isaac. But unto the sons of the concubines which Abraham 
 had, Abraham gave gifts and sent them away from Isaac his son." — 
 [Ed.] 
 
 {g) Clarus, qusest. 6, n. 2, et de Testamento inter Liberos, quKst. 8, n. 2. 
 
 (A) Ut diximus, lib. 2, cap. 6. 
 
1.] OPINIONS OF GROTIUS. 7 
 
 gentium — that is, by the general concurrence of the 
 human race.(i) 
 
 I have laid down this particular rule for myself, that 
 I will uphold the wishes of deceased persons as bind- 
 ing (legally perfect) although expressed in a deficient 
 manner.(&) This, if you consider the law, is void, — 
 if the will of the deceased, it is sound and valid. 
 For my part, I prefer the will of the deceased, which 
 I respect, the jurisconsults, as I will show, holding 
 that it is prior to law. 
 
 (18) As regards the proof, this, according to both 
 the jus natures and the jus gentium, is virtually 
 arbitrary, varying according to the position of the 
 persons and the nature of the case. (19) The allega- 
 tions from the law of Moses concerning two or three 
 witnesses are not opposed to this.(Z) for this indeed 
 is the number of witnesses naturally required as re- 
 gards crimes, (20) because the good character of the 
 accused is of as much value as the testimony of one 
 witness, and it cannot be disproved except by a 
 greater number. But in other cases, especially in 
 those in which there is nothing conflicting, the same 
 reasoning is not required, (m) The law must take 
 notice of the will of the deceased ; consequently, if 
 the notary who has signed the deed appear to have 
 been sufficiently acquainted with the transaction, his 
 good faith is upheld. (21) If such good faith be 
 wanting, the judge may interpose in order that the 
 
 (i) Plinius refers to this matter in lib. 2, Bpist. ad Annianum. 
 
 (k) Et lib. 5, Bpist. ad Calvisium. 
 
 (1) Quod respioit C. cam esses de testamentis. 
 
 (m) Idem Plinius, lib. 4. 
 
8 OPINIONS OF GKOTIUS. [No. 
 
 testimony of witnesses who were present may be 
 given. So, too, if it be doubted whether the testator 
 understood sufficient Italian, or the notary sufficient 
 French, and proof thereof may be demanded. 
 
 (22) It seems that the codicillary clause is not of 
 much use, for by the jus gentium the formalities 
 which suffice for the making of codicils are likewise 
 sufficient for the making of wills. 
 
 (23) But if any one holds that the attendants of 
 ambassadors are subject to the laws of the place 
 where they reside, it follows also that he must con- 
 sider a testament made by one of them in accordance 
 with the law of that place to be valid, as Ferd. Vas- 
 quius proved and established by arguments. (n) And 
 this appears to me correct. 
 
 Ad §§ 6, 8-19, 21-23, see Chap, and Opinions on " Testaments" 
 pp. 168 et seq. 
 
 Ad § 7, see Article on "Domicile," pp. 71, 72. 
 Ad § 20, see Opinion No. 87, pp. 620, 621. 
 
 THE DIVISION OP LAWS IN RELATION TO THEIR 
 EXTRA-TERRITORIAL FORCE. 
 
 Extra territorium jus dicenti impune non paretur is 
 
 the rule laid down by Paulus with reference to the force of 
 statutes,(a) and it must not be lost sight of in discussing 
 the extra-territorial operation of laws. The necessary con- 
 sequence is that, as a matter of absolute right, no law can 
 have any operation or binding effect outside the territory 
 of the lawgiver. (6) 
 
 (m) Lib. 4, contr. cap. 3, num. 19. 
 
 (a) Digest, 2, 1, 20. 
 
 (5) Voet ad Pandectas, 1, 4, pt. 2, 6. 
 
l.J OPINIONS OF GEOTIUS. 9 
 
 Let us now consider the circumstances under which this 
 rule is by common consent departed from. 
 
 In discussing this subject, the civilians divided laws into 
 three classes, which they called personal, real, and mixed 
 statutes (the latter are called " laws relating to actions or for- 
 malities " by Grotius in the present Opinion). By " statutes," 
 as used by these writers, was not meant the enactments of 
 legislative bodies, but the whole municipal law of a State, 
 from whatever source arising, (c) 
 
 The civilians generally are agreed as to the effect of the 
 different classes of statutes. It is when we come to the 
 definitions of, and distinctions between, these several classes 
 that we meet with differences almost verging on disorder. 
 " The moment," says Mr. Justice Porter, " we attempt to 
 discover from the jurists what statutes are real and what 
 are personal, the most extraordinary confusion is presented. 
 Their definitions often differ, and when they agree on their 
 definitions, they dispute as to their application."^) The 
 subject itself is full of intrinsic difficulties, but the subtle- 
 ties and metaphysical niceties introduced by argumentative 
 writers have rendered it vastly more perplexing. 
 
 Austin in his treatise on Jurisprudence, after a lengthy 
 argument, briefly states the distinction as follows : — The law 
 of persons is the law of status or condition ; the law of things, 
 the law of rights and obligations.(e) 
 
 Voet (/) defines the several classes as follows : — 
 
 Personal statutes are those in which the provisions prin- 
 cipally concern the universal or quasi-universal condition, 
 quality, capacity or incapacity of persons, whether no mention 
 is made at all of things, or whether such mention is made ; 
 but the main intention of the lawgiver was not to dispose 
 concerning any thing, but concerning a person. 
 
 (o) Hertii Opera, de Collisione Legum, § 4, art. 5. Story, Conflict of Laws, 
 Introduction, § 12. Paul Voet, de Statut., 1, 1, 4. Merlin, Repertoire, art. 
 
 Statut. 
 
 (d) Saul v. his Creditors, 17 Martin, 590-6. 
 
 (e) Lecture 13, in fine. 
 
 (/) Ad Pand., 1, i (2), 2, 3, 4. 
 
10 OPINIONS OF GEOTIUS. [No. 
 
 Real statutes, on the contrary, principally affect a thing and 
 dispose as to a thing, whether mention be made of a person 
 or not, provided the primary intention of the lawgiver be to 
 dispose concerning things and not persons. 
 
 Mixed statutes are those which neither treat principally of 
 persons or things, but define the form, manner, or solemnities 
 of acts done by persons concerning things either judicially or 
 extra-judicially. 
 
 On reference to the Opinion given above, it will be found 
 that this definition bears out the classification and distinc- 
 tions made by Grotius. 
 
 Le Brun is almost to the same effect, for he bases the dis- 
 tinction between personal and real laws on the fact whether 
 the statute in question governs the condition of the person 
 universally, independent of things, or not.(#) 
 
 Voet's view in most respects receives the approval of Van 
 der Keessel,(&) who defines these laws as follows : — 
 
 Personal statutes are not only those which define the status 
 of a person, but those also which by reason of such status 
 pronounce any one qualified or unqualified for the performance 
 of any personal act. 
 
 Real statutes are those which treat of things, or which 
 treat of them in such a manner that, though mention is 
 made of the person also, yet the enactment is intended to 
 affect the thing, and not the person. 
 
 Mixed statutes are those which prescribe the solemnities, 
 formalities, and mode of acts and transactions. 
 
 In order to obviate the difficulties and perplexities of the 
 subject, Story has adopted the terms " personality of laws " 
 and "reality of laws." By the former he means all laws 
 which concern the condition, state, and capacity of persons ; 
 by the latter, all laws which concern property or things — 
 quce ad rem spectant. 
 
 As to the effect and operation of foreign laws, it is univer- 
 sally agreed that real laws do not extend or operate beyond 
 
 (g) Traiti de la Comm/wnwuM, 2, 3, S, n. 20-48. 
 (h) Thes. Sel., 26-29. 
 
I.J OPINIONS OF GEOTIUS. 11 
 
 the territorial jurisdiction of the lawgiver, or beyond the 
 limits of the territory from which they derive their authority. 
 Personal laws, on the other hand, follow and govern the per- 
 sons subject to them wherever they may go. In this respect 
 the personal statute of one country governs and controls that 
 of another country. It is, however, subject to a real statute, 
 or to directly contrary legislation of the place whither the 
 person subject to the personal law may go or where the 
 property in question is situated. 
 
 As regards mixed statutes, all contracts, testaments, and 
 other acts duly executed in accordance with the laws of the 
 place where they are done, are valid everywhere, unless con- 
 trary to an express law of such place, or unless the execution 
 took place to evade the restrictions and penalties of the law 
 of such other country, (i) 
 
 It must be noted that, as regards movables, these are, by a 
 legal fiction, presumed to be at the place of domicile of the 
 owner, and are therefore subject to the laws of his domicile, 
 and not to the laws of the place where actually found.(ft) 
 
 Huberus has thus summed up the results of the various 
 teachings of the jurists on this subject : — (1.) The laws of 
 every empire operate only within the limits of its govern- 
 ment, and bind all subjects thereof, but do not extend beyond 
 those limits. (2.) All persons within the limits of a govern- 
 ment, whether resident for a time or permanently, are deemed 
 subjects thereof. (3.) The rulers of every empire oy comity 
 admit that the laws of every people in force within its own 
 limits ought to have the same force everywhere, in so far 
 as they are not prejudicial to the rights or powers of other 
 governments or of their citizens.(Z) 
 
 Hertius, in commenting upon this passage, elucidates the 
 third axiom just mentioned, proceeds to state under what 
 circumstances foreign laws should be recognised and ad- 
 mitted, and lays down the following rules : (m) — 
 
 (i) Voet, 1, 4 (2). Van der Keessel, Thes. Sel., 30-44. 
 (fc) Voet, 1. 4 (2), 11. Van der Keessel, Thes., 36. 
 \l) Be Conflictu Legum, 1, 3, 2. 
 (to) Hertii Opera, de Collis. Legum, § 4, n. 3, 4. 
 
2 OPINIONS OF GEOTIUS. [No. 1. 
 
 (1.) When a law has regard to the person, we must refer 
 ) the laws of the country to which he is personally 
 ibject. 
 
 (2.) When a law bears directly upon things, it is local, 
 t whatever place and by whomsoever the act is done. 
 
 (3.) If a law prescribe formalities for a certain act, then 
 le place of the act, and not of the domicile of the party 
 r of the situation of the thing, is to be regarded. 
 
 The recognition of foreign laws is based upon the comity 
 I nations, and has its origin in considerations of convenience 
 r utility. 
 
 This subject is further discussed in the article of Domicile 
 ppended to Opinion No. 9, pp. 59-106. 
 
OPINION No. 2. 
 
 HOLL. CONS. III. B. 149. 
 [GROTIUS I. 5, 12 & 13.] 
 
 Incest juris civilis — Punishment — Widower carnally knowing his 
 deceased wife's half-sister — Father carnally knowing his ille- 
 gitimate child. 
 
 1. A widower who carnally knows his deceased 
 wife's half-sister commits incest juris civilis. The 
 punishment for this crime, especially when both 
 parties are unmarried, is of no greater magnitude 
 than in the case of adultery. 
 
 2. Adultery, under the Political Ordinance, was 
 punished with privation of office and a fine of a 
 hundred guldens. 
 
 Having been asked what punishment should be 
 inflicted on a widower who had carnally known his 
 deceased wife's half-sister, and had thus caused her 
 pregnancy — 
 
 (1) I am of opinion [salvo meliori judicio) that the 
 said crime is that of incest juris civilis, (a) which 
 cannot be more severely punished than adultery, 
 
 (a) Digest, 23, 2, 68. 
 13 
 
14 OPINIONS OF GEOTIUS. [No. 
 
 especially where, as in the present case, both parties 
 are unmarried ; (6) (2) and since, according to the 
 Political Ordinance of the States, adultery was not 
 more severely punished than with privation of office 
 and a fine of a hundred guldens, it therefore follows 
 that no greater punishment can be inflicted for the 
 said delict. 
 
 The question as to whether incest is a crime or not seems 
 to bear a close relation to the religious views in Yogue during 
 different periods, and it assumes different aspects according 
 to the epochs considered. 
 
 Under English law there is no such crime as incest. It is 
 true that during Cromwell's reign both wilful adultery and 
 incest were made capital offences ; likewise fornication (upon 
 a second conviction) was declared a felony without benefit of 
 clergy. At the Eestoration it was deemed undesirable to 
 countenance these ultra-Puritanical views, and, to counteract 
 what people considered the hypocrisy of the late times, a 
 contrary extreme of licentiousness was indulged in. 
 - The above offences were then relegated to the juris- 
 diction of the Ecclesiastical courts, and ceased to be crimes 
 under the Common Law, nor have they been revived 
 since.(c) 
 
 Under the Civil and Koman Dutch jurisprudence, incest 
 was always considered an offence punishable by the temporal 
 courts, as well as by the spiritual. The punishment during the 
 time of Grotius was the same as that for the crime of adultery, 
 viz., loss of office and a fine of a hundred guldens. (See 
 also S. van Leeuwen, H. H. Recht, iv. 37, 9.) Van Leeuwen 
 {supra) suggests that incest ought to be more severely 
 punished, and quotes the 18th Art. of the Pol. Ord. At a 
 
 (6) TJt patet Digest, 48, 5, 38 ; et ibi Bart, et DD. 
 (c) Stephens, Oomm. on Laws of Eng., iv. 258. 
 
2.] OPINIONS OF GROTIUS. 15 
 
 more recent date Van der Linden (ii. 7, 8) states that this 
 offence is punished in many instances with death when 
 committed between parents and children; when between 
 persons related collaterally or by marriage, corporal punish- 
 ment, banishment, &c, is inflicted. He adds, however, that 
 the punishment varies according to the degree of relation- 
 ship in which the parties stand to each other. It is inter- 
 esting to compare with this the punishment inflicted during 
 his time for the crime of adultery. He says (ii. 7, 2), " The 
 punishment for adultery by two married persons is banish- 
 ment for fifty years and a fine of a thousand guilders, 
 besides which the married man is declared infamous, and 
 incapable of holding office." If one party was unmarried, 
 the punishment was considerably less. At the present 
 day the punishment inflicted depends entirely upon the 
 degree of guilt of the perpretators, and the judge will 
 always exercise his discretion. The sentence may there- 
 fore vary from nominal imprisonment to seven years' hard 
 labour, (d) or more, with or without corporal punishment. 
 Adultery, on the other hand, has ceased to be considered a 
 criminal offence. 
 
 The popular idea of incest is carnal knowledge between 
 persons related closely by blood. The Eoman Dutch law, 
 however, according to the best authorities, includes the inter- 
 course between relations by marriage. It is a sexual union 
 of two persons who cannot intermarry because they are 
 too closely related by blood or marriage (8chwagerschaj?),(e) 
 and therefore carnal intercourse between persons within 
 the forbidden degrees of marriage is punishable by law as 
 incest ; (/) the test, according to the authorities, as to whether 
 incest has been committed, being whether intermarriage 
 between the parties is, on the ground of relationship, pro- 
 hibited by law.(#) For this reason sexual union between 
 
 (d) Kotze's translation of Van Leeuwen, iv. 37, 9, in notis. 
 
 (e) Van Leeuwen, S. II. Recht, iv. 37, 9. 
 
 (/) Q- v. K., Buch 1875, p. 98, and authorities there quoted. 
 (g) Q. v. Piet. Arends, per de Villiers, C.J., 8 Juta, 176. 
 
16 OPINIONS OF GROTIUS. [No. 2. 
 
 a father and his illegitimate daughter constitutes the crime 
 of incest, (A.) and likewise in those countries where the 
 marriage with a deceased wife's sister is prohibited, inter- 
 course between the husband and the wife's full or half 
 (as in the present Opinion) sister would be incest.^) 
 
 {h) Q. u. Piet. Arenas, 8 Juta, 176. 
 (i) Voet, 23, 2, 35. 
 
OPINION No. 3. 
 
 HOLL. CONS. III. B. 183, & V. 128.* 
 [GROTIUS I. V. 14, & II. XI. 8.] 
 
 Marriage of minors — Consent — Penalty — Placaat of 1540. 
 
 1. The requirements of the Placaat of the Emperor 
 Charles V. of 1540 regulating the marriage of minors 
 were complied with when the friends and relatives 
 of the minor or the magistrate had consented thereto. 
 The penalties prescribed by the law were avoided 
 when such consent had been given. 
 
 2. In alternativis sufficit alterum impleri. 
 
 3. In pcenam legis non incidit, qui legi paret. 
 
 4. Vide 1. 
 
 5. Poena prsesupponit culpam. 
 
 I have seen a certain recommendatory note by 
 the Schout and Court of Berkel with reference to 
 the petition of Trijntge Simons, spinster, and Peter 
 Jacobsz. van de Hoog, bachelor, and have been asked 
 whether the said Peter Jacobsz., who subsequently 
 married the afore-mentioned Trijntge Simons, is 
 
 * Like many another, this opinion occurs in more than one place in the 
 Holl. Cons. I have selected the present because the headnote is somewhat 
 fuller.— [Ed.] 
 
 17 B 
 
18 OPINIONS OF GEOTIUS. [No. 
 
 debarred from participating in the property of his 
 wife by virtue of the Placaat of the Emperor of the 
 year 1540. 
 
 (1) I am of opinion that since the Placaat lays 
 down with reference to minors who have no father 
 or mother that they cannot contract a marriage 
 without the consent of their relations or of the 
 judicial officer who has local jurisdiction, the re- 
 quirements of the Placaat are complied with if 
 the marriage of minors is contracted either with the 
 consent of the relatives or otherwise of the local 
 magistrate. (2) In alternativis enim sufficit alteram 
 impleri.(a) 
 
 The said marriage received the consent of the 
 Schout and Schepenen, and it therefore follows that 
 the provisions of the Placaat were not contravened 
 when the marriage was contracted ; and further, that 
 the penalties laid down by the Placaat cannot be 
 enforced against Peter Jacobsz. ; (3) cum in pcenam 
 legis non incidat, qui legi paret. This is not ren- 
 dered untenable by the afore-mentioned recommen- 
 datory note, which limits the consent with a special 
 clause, stating that the rights of the relations of 
 Trijntge Simons, claimed by virtue of the said 
 Placaat, over her property should remain in full 
 and unprejudiced ; for, firstly, the Court did not 
 concede any rights to the relations, but merely 
 allowed the rights to remain in full, should they 
 be entitled to any under the Placaat, and we have 
 just seen, after mature consideration of the case, 
 
 (a) C. in alternativis de reg. juris in sexto, Dd. in D. 34. 5, 14. 3. 
 
3.] OPINIONS OF GEOTIUS. 19 
 
 that no rights whatever accrued. If the intention 
 of the Court had been otherwise (which it is difficult 
 to believe), the clause above referred to would be 
 null and void, as it conflicts with the Placaat. 
 Although the Court was allowed by the Placaat 
 to give or refuse consent, it was not in its power, 
 when it had consented, to order that the penalties 
 should be enforced which were enacted by the 
 statute in cases where consent had not been ob- 
 tained. Poena enim prsesupponit culpam, which in 
 the present case does not exist. 
 
 Rotterdam, 10th Feb. 1617. 
 
 Marriage, as defined in Menzies' Reports, in the prefatory 
 remarks relating to that subject/ft) is understood, in a legal 
 sense, to be the union and cohabitation of one man with one 
 woman, until the death of the first dying, with the inten- 
 tion of having and rearing legitimate offspring. Marriage 
 is therefore clearly a contract, and as such it has this in 
 common with consensual contracts generally, that it is 
 created by consent of the parties, testified and confirmed by 
 certain solemnities required by law ; but it differs from them 
 in the essential particular that it can never be dissolved 
 by such consent. Persons entering into this state in- 
 dividually contract with each other, and jointly contract 
 with society; and society alone has the power, on fixed 
 principles of justice and policy, of dissolving the contract 
 before the period of its natural dissolution by the death 
 of either of the consorts. Among persons, therefore, who 
 cannot enter into the contract of marriage are those who 
 are unable to give the requisite consent. Under these fall 
 
 (6) Menzies' Rep., i. 143. 
 
20 OPINIONS OF GROTIUS. [No. 
 
 minors, who are incapable of entering into any contract 
 without the consent of their parents or guardians. Under 
 the old Koman-Dutch law the consent of parents or of the 
 survivor of them was required before banns were published, 
 and a marriage contracted without such consent was void 
 per se;(c) although Grotius in his Be Jure Belli ac Pads 
 1. 1, c. 5, § 10, n. 1, 5, argues that since the consent of 
 parents is not required according to natural law, however 
 much it may be demanded as a matter of filial piety, there- 
 fore a marriage contracted without such consent is not void, 
 nor are the children illegitimate. By the Plaeaat of Charles 
 V., art. 17, such marriages were prohibited under a penalty. 
 The consent of parents may, however, be given tacitly and 
 per ratihabitionem.(d) Grotius states in i. 5, 14, that where 
 there are no parents the consent of the ascendants was 
 required. Voet, however, says that during his time such 
 consent was not required. («) 
 
 By the Plaeaat of 1540 the marriage of minors without 
 the consent of their guardians is prohibited, but not void 
 per se.(f) At the Cape of Good Hope the consent of parents 
 or guardians is essential, and the marriage officer is pro- 
 hibited from celebrating the marriage of minors without 
 such consent, (g) So also in the Transvaal, (h) In case the 
 parents or guardians cannot or refuse to give their consent, 
 application may be made in the Cape Colony to the court, 
 and in the Transvaal to the Landdrost for leave to marry, 
 and upon such consent being obtained a marriage may be 
 
 (c) Political Ordinance, Arts. 3 and 13. Van Leeuwen, E. H. R., i. 
 14, 6. 
 
 {d) C. 5. 4, 5, Pec. ad Testam. Conjug., lib. i. cap. 5. Cujac. lib. 16 r 
 observ. cap. ult. Voet, xxiii. 2, 19. Groenewegen, Cod., lib. 5, tit. 4, 1. 8. 
 Van der Keessel, Thes., 75. Grotius, however, i. 5, 14, states that since 
 times of old such marriages, though punishable, were not void. 
 
 (e) xxiii. 2. 13, 14, 15. 
 
 (/) Sande, lib. 2, tit. 1, del 7. Grotius, i. 8, 3. Schorer's Notes, 35. Van 
 der Keessel, Thes., 125 and 126. Van Leeuwen, R. H. R., i. 14, 9. Van der 
 Linden, i. 3. 
 
 {g) Marriage Order in Council of Sept. 1838, sects. 13 and 17. 
 
 (ft) Huwelijk's Ord. 3 of 1871, sects. 8 and 17 (S. A. R.). 
 
3.] OPINIONS OF GEOTIUS. 21 
 
 celebrated, and will be valid and effectual. When the 
 marriage has been solemnised clandestinely and without 
 the requisite consent, it is voidable, and neither party can 
 derive any benefit from the estate of the other, (i) or, in 
 other words, such marriage will not bring about a community 
 of property between the spouses, although there may be 
 certain exceptions. — Vide Mostert v. The Master (infra). In 
 the case of Lea v. Donlon (decided in the Supreme Court of 
 Natal on 13th September 1884), the plaintiffs, parents of 
 Emily Lea, instituted an action against the defendant to 
 have his marriage with Emily, who was a minor, and had 
 not obtained the plaintiffs consent, set aside as invalid and 
 void. The defendant and Emily Lea had never lived to- 
 gether as man and wife. The court set the marriage aside 
 as invalid. (Natal Legislature, Law 13 of 1883.) 
 
 Mention has been made of the marriage law of the Transvaal, 
 and it may not be out of place to refer to that section of the 
 Ord. (3 of 1871, § 9) which regulates the marriage of widowers 
 and widows. Widowers are not allowed to marry within three 
 months of the death of the wife (a curtailment of the annus 
 luctus), widows within 300 days of the death of the husband, 
 unless special dispensation be obtained from the Government. 
 This law was evidently passed to conform to the spirit of the 
 old rule, viz. that a widow is prohibited from marrying during 
 the period of probable pregnancy by her deceased husband, (k) 
 
 (i) Mostert and Another v. The Master, 3 Ros., p. 59. This same rule is 
 •distinctly laid down by Grotius in his Introd. II. xi. 8. The mother's 
 consent without that of the father is insufficient, and he is entitled to 
 have the marriage declared void. Johnson v. Mclntyre, Sup. Court, Nov. 
 1893. 
 
 (h) Grotius, i. 5, 3. Schorer ad Grotium, i. 5, 3. Bynkershoek, Quaest. 
 Jur. Priv., lib. 2, cap. i. 
 
OPINION No. 4. 
 
 HOLL. CONS. VI. Part 2, 53. 
 [GROTIUS I. V. 15, & I. VIII. 3.] 
 
 Espousals may be broken off by mutual concurrence — Sponsalia 
 defuturo mutuo consensu dissolvuntur. 
 
 Two free persons, a bachelor and spinster, both 
 without father or mother, became engaged without 
 the consent or knowledge of their relations. Love 
 between them had cooled and their vows had become 
 weakened, either through lapse of time, the evil 
 talk of slanderers, or from some other cause or 
 occurrence (except unchastity). Can such persons, 
 through the intervention of certain good people, 
 release one another from their betrothals'? Will 
 these people who have intervened and effected a 
 separation, as well as the witnesses called for the 
 occasion, render themselves liable to be fined, and 
 ought they to have expected any difficulty and 
 obstruction 1 Can such release be granted under- 
 hand, or must it be before a notary and witnesses ? 
 All without prejudice. 
 
 I assume that the betrothals afore-mentioned re- 
 ferred to a marriage in the future, and not to one 
 to be celebrated immediately and at present. I am 
 
No. 4.J OPINIONS OF GEOTIUS. 23 
 
 therefore of opinion that the contracting parties can 
 freely release each other, since this is allowed by 
 the Civil as well as the Canonical Law, (a) and is 
 not prohibited by the Political Ordinance of the 
 States-General. Hence it follows a fortiori that 
 those who intervened cannot be charged with any 
 wrong on that account. But if the contracting 
 parties had engaged to get married outright, they 
 might by mutual consent postpone the solemnisation 
 of the marriage, and their subsequent cohabitation, 
 without either being at liberty to marry another. 
 
 Those persons who allowed themselves to be 
 called in to intervene will nevertheless not be 
 liable to any penalty, if they did not know that 
 the marriage between the said persons had been 
 fully arranged. 
 
 Sponsalia — Espousals (trouvibeloften) are a mutual agree- 
 ment and promise of a future marriage. It is a contract 
 which is confirmed or ratified, like all other transactions 
 completed by mutual consent, (b) Under the law of Holland, 
 they were attended with considerable ceremony, which is now 
 no longer observed, and has been lost to a very great extent. 
 It was generally confirmed by giving an express token on 
 either side, — as a rule, a small and insignificant coin — the 
 "marriage-penny " or trouw-penning,(c) — as an earnest of good 
 faith. Espousals were divided, as a rule, into two classes : 
 (1) de prcesenti, or those that were to be celebrated at once, 
 and (2) de futuro, or those which were to be celebrated at 
 some distant time. These could, however, not be postponed 
 
 (a) C. 5, 1, 6, and 5, 2. 
 
 (6) D. 23, 1, 1 and 2. 
 
 (c) Van Leeuwen, R. H. E., iv. 25, 1. 
 
24 OPINIONS OF GROTIUS. [No. 4. 
 
 indefinitely except by mutual consent, and had to be cele- 
 brated within reasonable time, as to which the court had to 
 judge.(d) In some places a subsequent promise of marriage 
 de prcesenti was preferred to a previous one de futuro.(e) 
 This distinction, Van der Keessel says, was never received 
 into the law of Holland.(/) The consequences of espousals 
 once contracted were that they gave rise to an action for 
 specific performance,^) and the contract could not be dis- 
 solved except by mutual consent, (h) The Colonial law at 
 the present time follows the Eoman law more closely, for by 
 the 19th and 20th sections of the Order in Council, specific 
 performance can no longer be decreed, but the forsaken 
 party retains his or her right to institute an action for 
 damages sustained by reason of the breach of the pro- 
 mise. In the case of Joosten v. Chobbelaar, the Supreme 
 Court of the Cape Colony decreed the defendant to marry 
 the plaintiff in respect of a promise of marriage sequente 
 copwla.(i) A promise of marriage by minors, without the 
 consent of their parents or guardians, is invalid and clan- 
 destine,^) and subject to the penalties prescribed by the 
 Placaat of the Emperor Charles.(^) 
 
 Among the authorities that may be conveniently consulted 
 on this subject are — 
 
 Grotius, I. v. 15., I. viii. 
 
 Groenewegen, De Leg. Ab., c. 5, 4, 8. 
 
 V. d. Keessel, Thes., 47-61, 75, 76-82, 83-86, 125, 126. 
 
 Van Leeuwen, Oen. For., 1, 11, 12, 13; R. H. R, iv. 25. 
 
 Voet, 19. 1, 14, 23. 1-4. 
 
 Brouwer de Jure Connubiorum. 
 
 V. d. Linden, 1, 3. 
 
 (d) Echtr. of the States-Gen., § 23. Schorer ad Grot., i. 8, 3. 
 
 (e) Leon. Decis. Cas., 43. 
 (/) V. d. Keessel, Thes., 49. 
 (g) Voet, 23, 1, 12. 
 
 (A) Voet, 23, 1. V. d. Keessel, Thes., 49. Holl. Cons., Opinion above, 
 (t) 1 Menz., 149. 
 
 (k) Gray v. Eynhoud, 1 Menz., 150. Greef v. Verreaux, 1 Menz., 151. 
 {I) Plao; of Kaiz. Karel of Oct. 4, 1540, Art. 17, and Polit. Ord. of 1580, 
 Art. 3. 
 
OPINION No. 5. 
 
 HOLL. CONS. V. 129. 
 [GROTIUS I. V. 16.] 
 
 Marriage — Publication of banns when contracted in a foreign 
 country — Lex loci contractus. 
 
 A person residing in Holland is not bound to 
 have his banns published there if he "intends to 
 marry outside the Province, and_to_live in such 
 place. 
 
 Cajus, who lives in Holland, gave his daughter 
 in marriage in Germany, with the intention that 
 she should remain there. Quceritur, whether a 
 marriage contracted under these circumstances is 
 void by reason of non-publication of banns in the 
 place where the daughter was born ? 
 
 I am of opinion that the person of whom mention 
 is made above, and who has resolved to get married 
 in Germany and to take up his or her residence 
 there, is released from all laws and ordinances of 
 Holland, notwithstanding the fact that his or her 
 parents had always lived in Holland. Nam moribus 
 nostris jdomiciliumi tota voluntate mutatur et mutato 
 
26 OPINIONS OF GKOTIUS. [No. 5. 
 
 domicilio origo non attenditur, which rule was 
 observed in Holland, and also in other places, with- 
 out considering what the Civil Law may lay down 
 to the contrary, (a) Hence it follows that the said 
 person was no^ longer a subject of the States of 
 Holland. Et cum omnis potestas statuendi debeat 
 fundari vel in loco ubi actus celebratur, /quorum 
 neutrum hie obtinet, quod proinde leges Hollandise 
 in celebratione matrimonii extra Hollandiam contracti 
 locum non habeant. The publication of the banns in 
 Holland was therefore unnecessary, since such was 
 laid down by the Political Ordinance only in respect 
 of those remaining subject to the Government of 
 Holland, or who contract a marriage in Holland, 
 but not in respect of those who alter their intention 
 bona fide. 
 
 The celebration of marriage by aliens in a foreign country, 
 and the recognition of such marriages by the courts where 
 the spouses may subsequently be domiciled, constitute a most 
 important element of international comity, and is of the 
 titmost importance to married people settling outside the 
 locus contractus. The decisions referring to " Domicile," and 
 the attitude of the South African Courts thereanent, are 
 discussed in the Note on Opinion No. 9, where will be found 
 a short note on " Foreign marriages." 
 
 (a) Videatw Gaillius, lib. 2, obs. 36. 
 
OPINION No. 6. 
 
 HOLL. CONS. III. B. 313, and V. 132. 
 [GROTITJS I. V. 19.] 
 
 Husband guardian of the wife — His powers — Election of ' 
 the wife. 
 
 Accoeding to the custom of Holland, the husband 
 is the guardian of his wife and of her property, and 
 in case of necessity, or for the sake of profit, he can 
 sell such property, unless the contrary were especially 
 stipulated by ante-nuptial contract. After the de- 
 cease of the husband the wife has an action against 
 his heirs for a return of the value of the property 
 alienated, should she prefer this to half the estate. 
 
 I have seen a certain ante-nuptial contract en- 
 tered into on the 25th November 1614 between 
 Michiel Isaacs and Anneke Adriaans, whereby it was 
 stipulated that upon the death of Michiel Isaacs 
 the said Anneke Adriaans shall be entitled to re- 
 ceive back the property brought in by her, and if 
 the estate be worth more, the property is to be 
 divided equally. 
 
 I have been asked whether the afore-mentioned 
 
 27 
 
28 OPINIONS OF GEOTIUS. [No. 6. 
 
 Michiel Isaacs may alienate any of the property 
 brought into the estate by Anneke Adriaans. 
 
 Since, according to the custom of Holland, the 
 husband is the guardian of his wife and of her 
 property, and since such guardianship extends so far 
 that, in case of need or for profit, the husband can 
 sell or otherwise alienate the property of his wife, and 
 that this can always take place unless the ante- 
 nuptial contract specially stipulates to the contrary, 
 which has not been done in the present case, I am 
 therefore of opinion that the said Michiel Isaacs can 
 sell or alienate the property of his wife brought into 
 the estate. Anneke Adriaans, after the death of her 
 husband, has an action against his heirs for the 
 return of the value of the property, if she prefers 
 this to a half of the estate. 
 
 EOTTERDAM. 
 
 See Opinion No. 8 for a discussion of the marital power. 
 
OPINION No. 7. 
 
 HOLL. CONS. III. B. 146. 
 [GROTIUS I. 5, 22 & 23.] 
 
 Husband — Wife — Debts— Engagements — Ratification. 
 
 1. A husband who does not oppose or object to 
 the actions of his wife is taken to have ratified them 
 directly and absolutely. 
 
 2. Such ratification made by a husband with re- 
 spect to an action of his wife is of like effect as 
 if the husband had originally consented thereto, 
 and any damage caused by such act must be borne 
 by the joint estate. 
 
 The facts are briefly as follows : — A. and B. are 
 married in community of property. A. (the wife) 
 lends a sum of money to her step-daughter, C, and 
 obtains a receipt. B. alleges that he did not know 
 of this transaction. Later, a bond is passed by the 
 husband of C. in favour of A. This bond is accepted 
 by B. The pledges are insufficient to cover the 
 sum advanced. A. dies. The question now arises, 
 whether, in case of any loss, it must be borne by 
 the heirs of A. or by the joint estate of A. and B. ? 
 
 (1) I am of opinion that since B. did not object to 
 
 29 
 
30 OPINIONS OF GEOTIUS. [No. 
 
 the bond, but afterwards accepted it, he must be 
 taken in law to have ratified the transactions of 
 his wife directly and absolutely, secundum ea qua 
 tractat. Bartol. in 1. quo enim § rem haberiss. 
 Kern ratam haberi. D. 14, 6, 16, and C. 2, 13, 1. 
 
 (2) Moreover, it is an accepted legal principle 
 that such confirmation by a husband of the acts 
 of his wife is of like effect as if he had originally 
 consented thereto, (a) Since, in the case of money 
 lent by the husband and wife together, the joint 
 estate must bear the loss, therefore the same 
 rule must obtain here on account of the subsequent 
 ratification. 
 
 The legal status of the wife after marriage, and the more 
 important relations between husband and wife, will be found 
 discussed in Opinion No. 8, infra. 
 
 The present text treats more particularly of the liability 
 of husbands and wives for the engagements, obligations, and 
 debts of each other. 
 
 By virtue of the position which the law forces upon all 
 married women, she cannot, being a minor in the eye of 
 the law, bind her husband or his estate by any transaction 
 or agreement entered into without his consent, and such 
 agreement is ipso jure null and void ; (&) nor do such acts 
 revive upon a dissolution of the marriage.(c) The present 
 opinion to a certain extent indicates how such required 
 consent must be construed. {Vide also V. d. Bock v. Reg. 
 
 (a) Tiraq. in 1. Conn, in fine in verbo cons. glos. i, num. 34. 
 
 (b) Executors of Morkel o. Heirs of Morkel, 1 Menz., 177. Arg. ex 
 opinione, supra. Van Leeuwen, B. H. R., i. 6, 7, and ii. 7, 8. Sande de 
 Prohib. Alien. 
 
 (e) Stokman, Decis. 52. Van Leeuwen, R. H. R., i. 6, 7. 
 
7.] OPINIONS OF GROTIUS. 31 
 
 of Deeds, 3 J. 296, and Ferreira v. Beg. of Deeds, 5 J. 387.) 
 Two salient exceptions to the rule just quoted are: (1.) 
 that the husband is liable for all debts contracted by the 
 wife for household expense,^) and (2.) when the woman 
 carries on a public trade, she can bind both her husband 
 and herself with regard to matters associated with such 
 trade, (e) 
 
 In connection with this question an important point 
 arises, namely, the liability of spouses for each other's 
 debts. It will be best to consider, in the first place, the 
 liabilities under a communio bonorum, and, secondly, under 
 an ante-nuptial contract, which does away with such com- 
 munity. Community of property brings about a qualified 
 partnership. (See Opinion No. 8.) Hence it follows that 
 husband and wife become liable for each other's debts 
 contracted stante matrimonio, and since there is to be a 
 joint account of all property brought in and acquired, 
 they are also liable for the debts contracted before 
 marriage.(f) Nubens viro, fceminamve ducens, ducit etiam 
 nomina. The creditor can only recover the full amount 
 of his claim from the estate if it was incurred before 
 marriage, when he enforces it matrimonio adhuc constante; 
 and should he fail to do this, he cannot, upon dissolution 
 of the marriage, recover the amount, or any portion thereof, 
 from the other spouse.^) For debts contracted stante 
 matrimonio, the spouses are liable for one moiety upon 
 dissolution of the marriage, (h) If the wife is sued after 
 dissolution of the marriage for debts contracted durante 
 matrimonio, the declaration should aver that the joint 
 
 (d) Hoffman v. Grassman, 3 J. 282. Coetzee v. Higgins, 5 E. D. C. 352 ; 
 a,nd compare Janion o. Watson (Natal, Sept. 12, 1885), C. L. J. ii. p. 
 349. 
 
 (e) Van Leenwen, i. 6, 8. Grotius, i. 5, 23. 
 
 (/) Burge's Col. Law, o. vi. § 3. A. Wesel, Damni inter Conjug., Com. 
 tr. 2, 3, 1. Voet, 23, 22. V. d. Keessel, Thes. Select., 222. 
 
 (g) Voet, 23, 2, 53. Grot., ii. II, 12. V. d. Keessel, 222, 224. Van 
 Leeuwen, R. H. E., iv. 23, 6. 
 
 (A) Grot., i. 5, 22. V. d. Linden, i. 3. 7. Hoffman o. Grassman, 3 J. 
 282. 
 
32 OPINIONS OF GKOTIUS. [No. 
 
 estate cannot satisfy the claim, (i) The wife is not liable 
 for any pecuniary penalty or fine inflicted by judicial decree 
 for a crime committed by the husband, and such penalty 
 is chargeable to his estate alone. (f) In case of eonfiscatkm, 
 the wife's interest in the joint estate will be protected. (k) 
 To the rule that the spouses are each only liable for one- 
 half of all debts contracted during marriage upon dissolu- 
 tion thereof, there is one exception: when the husband 
 has mortgaged his wife's property, the creditor can proceed 
 against her estate for the full amount of his claim. (!) 
 When either party has been compelled to pay the debts 
 contracted by the other and to discharge the liabilities 
 incurred, he or she can claim the amount paid or the 
 damnum sustained from the joint estate, but this damnum 
 is only " quod ex causa societas et juris maritalis. non 
 aliunde accidit." 
 
 "When the communio bonorum is excluded, but the com- 
 munio qucestuum aut damni et lucri remains, the spouses will 
 not be liable for any debts contracted before the marriage, 
 but must meet all claims incurred durante matrimonio.(m) 
 Upon termination of the marriage the qualified partnership 
 is dissolved, and either spouse will only be liable for one- 
 half of the debts contracted whilst the marriage was in 
 existence. 
 
 When the parties are married by ante-nuptial contract, the 
 ' liability will vary with the terms of the contract. If the 
 community of property has been excluded, there will still 
 be a community of profit and loss, unless this too has been 
 specifically excluded. If this is done, each spouse will only 
 be liable for his or her own debts.(w) 
 
 (i) Sichel v. De Wet, 5 E. D. C. 58. 
 
 (j) Goris Advers. tr. de Sooiet. Conjug., 4, 12. Van Leeuwen, v. 3, 13. 
 Burge's Col. Law, vi. 3. 
 
 (fc) Sande, lib. 2, tit. 5, def. 8. Grotius, i. 5, 22. V. d. Keessel, Thes., 
 92-94. Schorer ad Grot., i. 5, 22. 
 
 (Z) Kesp. Jur. Holl., p. 1, eons. 151, qujest. 2. 
 
 (to) Burge's Col. Law, c. vi. § iii. 
 
 («) Trustee of Herbst v. Herbst (0. F. State, Oct. 20, 1878, and April 17, 
 1879). 
 
7.] OPINIONS OF GEOTIUS. 33 
 
 If by marriage settlement the husband settles any property 
 upon the wife, or passes any mortgage bond in her favour as 
 a dower or benefit, she cannot claim payment of such dower 
 or benefit upon the death or insolvency of her husband until 
 the claims of all other creditors have been discharged, (o) If 
 the wife incurs any debt with the assistance of her husband, 
 and she has property outside the community, the property can 
 be attached to satisfy the judgment-creditor, (p) The court, 
 in giving judgment against the husband, will sometimes take 
 into consideration the financial position of the wife ; for in- 
 stance, where a decree for civil imprisonment was prayed 
 against the husband, who alleged nulla bona, the court 
 granted the order on the ground that the wife had offered 
 to give security, and that she had the means to satisfy the 
 debt, (q) Upon a separation of bed and board, either spouse 
 will be freed from liability for debts contracted by the other 
 subsequent to such separation, for it amounts, for the time 
 being, to a dissolution of the societas conjugorum ; but this 
 separation, to be valid and effectual against creditors, must 
 be by judicial decree, and cannot be done by an underhand 
 deed inter partes.(r) 
 
 Under the Old Eoman-Dutch law, according to the cus- 
 toms of certain places, the wife could, upon the death of her 
 husband, renounce the inheritance and refuse to take any 
 benefits from his estate, the effect whereof was that she was 
 freed from the claims of her husband's creditors and from debts 
 contracted by him during marriage ; (s) but this does not 
 apply to those debts which she herself had contracted during 
 marriage with the authority of her husband,(£) nor to those 
 
 (o) Thurburn v. Steward, Buc. 1869, p. 95 ; 7 P. C. (N.S.), 333. Trustees 
 S. A. Bank v. Chiappinni, Buc. 1869, p. 143. Curator of Van der Merwe's 
 Estate v. V. d. Merwe (S. A. E., Kotze, 148). Placaat of Emp. Chas. of 1540, 
 § 6. V. d. Keessel, 258. 
 
 {p) Brink v. Oliviera, S. 1, 270. 
 
 (q) Pukler v. Russouw, R. 2, 74. 
 
 (r) Van der Linden, i. 3, 8. Ziedeman v. Ziedeman, 1 M. 238. Of. Al- 
 bertus v. Albertus' Exors., 3 S. 202. 
 
 (s) Grotius, ii. 11, 8. Van Leeuwen, v. 3, 13. 
 
 («) V. d. Keessel, Thes., 226. 
 
 C 
 
34 OPINIONS OF GEOTIUS. [No. 
 
 arising from a trade carried on by her.(w) This rule was 
 founded on several old charters granted to various places, 
 and is of high origin, and followed by the Dutch Countesses 
 with every solemnity, (a;) G-rotius states that the wife had to 
 walk alone in her every-day dress before the hearse at the 
 funeral. Van Leeuwen, in his Eoman-Dutch Law, gives a 
 more detailed account. The wife must before the burial re- 
 nounce the estate in the presence of the Sheriff and two 
 judicial officers (Schepeneri), after which she must depart in 
 her ordinary clothes, and this is commonly called " placing 
 the key upon the coffin." He adds, that according to the 
 Statutes of Eotterdam, the widows of citizens who wish to 
 free themselves from the debts of their husbands must place 
 the keys of the house upon the coffin, and cause them to be 
 publicly carried to the church, and themselves proceed from 
 the house in their daily clothes with the dead body to the 
 church, with ten stivers in money, and for the future remain 
 out of the house.(y) Schorer, in his Notes to Grotius, ii. 11, 
 18, relates an instance of such renunciation. " When Albert 
 of Bavaria, Count of Holland, died at the Hague on December 
 12, 1404, his widow, Margaret of Cleves, repudiated the in- 
 heritance with the following solemnity : — She was compelled 
 by judicial decree to walk in front of her husband's funeral 
 procession, not only stripped of all ornaments, but even 
 dressed in borrowed clothes, and holding in her hand a reed 
 which she had to throw down, showing that she in the same 
 manner repudiated the inheritance of the deceased and ab- 
 stained from community of goods." (s) This local custom 
 was, however, never accepted as a rule of the Common Law, 
 and is referred to here merely as a matter of history. 
 
 The following table will give at a glance the position of the 
 wife in respect of her liability for the debts of the joint estate : — 
 
 (u) Grotius, ii. 11, 19. V. d. Keessel, Thes., 226. 
 
 {%) Van Leeuwen, v. 3, 13, in notis. 
 
 (y) Kotze's Van Leeuwen, vol. ii. p. 371. 
 
 (s) Maasdorp's transl. 
 
7-] 
 
 OPINIONS OF GEOTIUS, 
 
 35 
 
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 W 
 H 
 
 PR 
 
 O 
 H 
 
 <1 
 
 5P 
 
 5 
 
 
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 03 
 
 f4-P ft 
 
 osd 
 
 J J § 
 
 SH o 
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 T3 
 
 a 
 
 r<3 
 
 I 3 
 
 « g s 
 §e.§ 
 
 -2 o «r 
 
 £-1 'o ^ 
 
 o 3 o 
 
 £h!zi 
 
 O <D 
 
 .s « ■»" 
 
 hr2d 
 O d O 
 
 ■P L4J 
 
 £ So 
 
 a 
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 CI 
 
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 T3 
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 o^» 
 
 3k 
 
 £ 
 
OPINION No. 8. 
 
 HOLL. CONS. III. B. 182. 
 [GROTTOS I. 5, 24, & II. 11, 12 & 13.] 
 
 Marriage — Ante-nuptial contract — Relation between husband 
 and wife — Equal shares — Lex hoc edictali — Kinderbewijs — 
 Boedelhouderschap — Community of property — Marital power 
 — Senatusconsultum Velleianum — Authentica si qua mulier. 
 
 1. With respect to marriage, the declaration 
 and promises which appear in the name of the 
 husband only must also be taken to have been 
 made in the name of the wife, and to have been 
 done reciprocally. 
 
 2. As regards marriage relations, husband and 
 wife are correlative!,. 
 
 3. Regula correlativorum est regula parium, et 
 quod in uno statuitur, censetur etiam in alio 
 statutum. 
 
 4. Absurdum est in alterius persona ratum esse, 
 in alterius non. 
 
 5. According to the customs of Holland and 
 Zeeland, marriage gives rise to a qualified partner- 
 ship. 
 
 6. In societate quod in una parte expressum est, 
 id nisi alitur convenerit, etiam in altera expressum 
 intelligitur. 
 
 36 
 
No. 8.] OPINIONS OF GEOTIUS. 37 
 
 7. An ante-nuptial contract, wherein it is stipu- 
 lated that the survivor shall remain in possession 
 of the estate after having paid out to the heirs of the 
 
 first dying whatever he or she has brought into the 
 estate, without any further obligation, excludes not 
 only community of property of all goods acquired 
 during marriage, but also all ' property inherited 
 stante matrimonio; the fruits of such property, 
 however, and any property otherwise acquired, are 
 not included thereunder. 
 
 8. Verba quantumvis generalia, restringuntur, ut 
 absurdus intellectus vitetur. 
 
 9. When no shares are mentioned, equal shares 
 must be presumed to have been intended. 
 
 10. Everything not clearly stipulated in an ante- 
 nuptial contract falls under community according 
 to the customs of Holland and Zeeland, but the 
 inheritances and their burdens are not included 
 therein. 
 
 11. According to the afore-mentioned customs, 
 the fruits of the property also fall under community, 
 unless these are specifically included. 
 
 12. The lex hac edictali de sec. nupt. does not, 
 even where an ante-nuptial contract has been made, 
 affect the property which, according to customary law, 
 remains in community, whether such community is 
 general, or only over specific property. 
 
 Having seen the copy of a certain deed reading 
 . . . etc., and having been asked how such deed 
 must be construed, and what its effect would be 
 
38 OPINIONS OF GROTIUS. [No. 
 
 in case of the predecease of the husband or wife, 
 leaving children or not — 
 
 (l) I am of opinion that the deed must be con- 
 sidered as an ante-nuptial contract, since it was signed 
 by the intending spouses, and also by the father of 
 the bride, which clearly shows that they intended to 
 make an underhand contract ; nor does the fact that 
 the declaration and promises appear in the name of 
 the husband only conflict therewith, since the wife 
 had an even greater interest in the promises than the 
 husband. The whole matter must be considered as 
 if the said promises also appeared in the name of 
 the wife and were made reciprocally, for, as regards 
 marriage relations, husband and wife are correlative/,. 
 (2)Regula autem correlativorum est regula parium,(a) 
 et quod in uno statuitur, (3) censetur etiam in alio 
 statutum.(fr) (4) Absurdum enim est in alterius 
 persona ratum esse, in alterius non.(c) To the pre- 
 sent case can therefore also be applied the law as 
 laid down in the Digest : — Cum emptor venditori, vel 
 emptori venditor acceptum faciat, voluntas utriusque 
 ostenditur id agentis, ut a negotio discedatur, et 
 perinde habetur, ac si convenisset inter eos, ut 
 neuter ab altero quicquam peteret ; (d) and again in 
 the Code : — Quemadmodum in feminis sustulimus, 
 ita et in masculis esse sublatam, pertinere quidem 
 ad sensum nostrse legis, non est incertum.(e) (5) 
 
 (a) Bald, ad C. 4, 2, 9. 
 
 (5) Dd. in D. 19, 1, 19 ; et D. 18, 5, 5. Prases Everhardus loco a oorre- 
 ativis, No. 10. 
 (c) L. si cum dies, § pen. D. 12, 1. 
 {d) D. 18, 5, 5. 
 (e) C. 6, 40, 3. 
 
8.] OPINIONS OF GKOTIUS. 39 
 
 And this is of still greater force since by the customs 
 of Holland and Zeeland all marriages give rise to a 
 qualified partnership. (6) In societate autem quod 
 in una parte expressum est, id nisi alitur convenerit, 
 etiam in altera expressum intelligitur.(/) 
 
 (7) Since the aforesaid deed stipulates that the 
 wife should remain in possession of the estate, 
 paying out to the heirs of the husband whatever 
 he had brought into the estate, without any further 
 obligation, it follows that the husband intended to 
 exclude community of property, not only of every- 
 thing that the wife possessed at the time of marriage, 
 but also of whatever she acquired by inheritance, 
 especially by reason of the last words, "without any 
 further obligation," which are very significant. This 
 must be taken to be equally applicable to the other 
 side. The wife or her heirs can lay no claim to the 
 property possessed by the husband at the time of 
 marriage or subsequently inherited, idque ne claudicet 
 contractus. The fruits of this property, however, and 
 all property otherwise acquired, cannot be included 
 under this general clause. 
 
 (8) Nam verba quantumvis generalia, restringuntur 
 ut absurdus intellectus vitetur. Id enim sequum 
 habetur, cujus contrarium est absurdum.(^) Now 
 it would be absurd and unreasonable that the hus- 
 band should have no share in the property acquired 
 and laid by during the marriage, partly through his 
 instrumentality, if not by means of his property. 
 
 (/) D. 17, 2, 29 in Pr. Instit. 3, 25, 1 and 3. 
 (g) Prses. Everhardus in loco ab absurdo, No. 9. 
 
40 OPINIONS OF GROTIUS. [No. 
 
 Esset enim eatenus leonina societas, si sociorum 
 alter nihil lucri faceret.(/i) (9) No shares are men- 
 tioned in the deed, and equal shares must therefore 
 be presumed to have been intended.(t) (10) This 
 is beyond dispute, since by the general customs of 
 Holland and Zeeland everything not clearly stipu- 
 lated in an ante-nuptial contract is held to fall under 
 community, so that when the community of property is 
 excluded, community of profit and loss remains, but in- 
 heritances and their burdens are not included therein. 
 
 (11) According to the same customary law, the 
 fruits of such property also fall under community 
 unless specially excluded. From this it follows that 
 in case of the predecease of the husband or wife, 
 with or without children, all profit and loss during 
 the marriage, including the fruits of the property, 
 must be divided equally ; but the property brought 
 into the marriage, and such as was inherited during 
 marriage, will remain with the side whence it comes. 
 
 (12) The fact that the wife had children by a 
 previous marriage need not be taken into considera- 
 tion, since from several authorities it is quite clear 
 that the lex hac edictali de secundis nuptiis does not 
 affect the property, which, according to customary 
 law, falls under community, whether such community 
 embraces the whole or part thereof, even though an 
 ante-nuptial contract has been made. 
 
 April 1628. 
 
 (h) D. 17, 2, 29, last §. 
 
 (i) D. 17, 2, 29, in Pr. and Instit., 3, 2, 3, 1 and 3. 
 
8.] OPINION'S OF GROTIUS. 41 
 
 CONSEQUENCES OF MARRIAGE. 
 
 The relationship which subsists between husband and wife 
 varies somewhat according as the marriage is one pure and 
 simple, or is contracted subject to certain conditions — in other 
 words, according as the parties are married in community of 
 property, or by an ante-nuptial contract. The former creates 
 a partnership between husband and wife, under the sole ad- 
 ministration of the husband, in all property, movable and 
 immovable, belonging to either of them before the marriage, 
 or coming to either during the marriage, until the date of its 
 dissolution. The idea of separate property is entirely ex- 
 cluded, and a perfect community exists. The wife's position 
 is assimilated to that of a minor, her husband being her 
 guardian. She cannot sue or be sued; (A;) she cannot contract 
 except on the principles on which minors are sometimes per- 
 mitted to contract. But the husband's power over the pro- 
 perty brought by his wife into the community is far greater 
 than that of a guardian over the property of his ward. As 
 the sole administrator of all, both his and hers, he may stante 
 matrimonio alienate and encumber at will, without her con- 
 sent, all property, movable and immovable, vested in her 
 before the marriage, or which she may have acquired during 
 the marriage, in like manner as he may encumber or alienate 
 what had belonged to him before the marriage, or had come 
 to him during its subsistence. In effect, the partnership is 
 carried on in the sole name and under the sole control of the 
 husband. (0 Upon marriage, a community of property or 
 partnership (in the words of the present Opinion) is established 
 between the parties. This communio bonorurn is either uni- 
 versal or particular. The former comprises all the property 
 which belonged to the parties before marriage, as well as 
 that which they acquire during coverture ; whilst the latter 
 
 (k) A married woman, however, carrying on a, public trade, may sue or 
 be sued in regard to all transactions connected with such trade; and 
 further, she may sue her husband or be sued by him. (Kotze's High Court 
 Reports, p. 184, Van Eeden v. Kirstein). (I) 1 Menzies, pp. 144-145. 
 
42 OPINIONS OF GEOTIUS. [No. 
 
 (communio particularis) comprises only the property acquired 
 by them during coverture, and is known as communio quces- 
 tuum aut damni et lucri. 
 
 The communio omnium bonorum is a consequence of the 
 marriage, and takes effect immediately upon the celebration 
 of the marriage in facie ecclesice or otherwise, unless an ante- 
 nuptial contract has been passed between the intending 
 spouses excluding it, and stipulating that there shall be 
 merely a communio qucestuum, or no community of property 
 or of profit and loss whatsoever, (m) 
 
 There are two exceptions to this, for community of 
 property does not take place between the married couple, 
 firstly, if the marriage is contracted by a minor without the 
 consent of the parents or guardians ; (n) and secondly, where 
 the marriage has originated in the abduction of one of the 
 parties.(o) In case of doubt, the legal presumption is pro 
 communione potius quam contra eam.(p) The community takes 
 place not only in the first, but also in second and subsequent 
 marriages, (q) The community embraces every description of 
 property which, from its nature and the interest of its owner, 
 is the subject of his uncontrolled and absolute alienation, (r) 
 Such property, however, as cannot be alienated by the owner, 
 or in which he has a determinable or contingent interest, is 
 excluded. But the annual rents and profits thereof fall under 
 the community, (s) Under the community must also be in- 
 cluded all losses and debts incurred before or during marriage. 
 For full treatment of this subject see Opinion No. 7. 
 
 The difference between the communio qucestuum and the 
 communio bonorum consists in the fact that from the former 
 are strictly excluded all such property as belonged to the 
 
 (m) Grotius, ii. 11, 8. Groen., n. ad Grot. V. d. Keessel, Thes., 217, 
 218. In Thes. 217, V. d. Keessel attempts an hypothesis as to the origin 
 of this community. (n) Mostert v. The Master, E. 359. 
 
 (o) Placaat of Emperor Charles of 1540, art. 17. Political Ord., art. 13. 
 Van der Keessel, Thes., 218. (p) Coren, Obs. 38, n. 66. 
 
 (q) Grotius, ii. 11, 9. Van der Keessel, Thes., 219. 
 
 (r) Burge, Colonial Law, c. 6, 1. 
 
 (s) Van der Keessel, Thes., 220, 221. 
 
8.] OPINIONS OF GROTIUS. 43 
 
 spouses previous to their marriage. Therefore the property 
 which the husband or wife acquires during marriage by any 
 title which existed at the time of the marriage is excluded 
 from the community. Among property of this class are 
 bequests, legacies, and inheritances db intestato.(t) 
 
 If a marriage has been contracted in a foreign country 
 where there is no community of property, the removal of 
 the spouses to a place where community obtains animo 
 remanendi does not introduce a community of property or 
 acquests.(w) On the dissolution of the marriage, the sur- 
 viving spouse will be entitled to one-half of the estate, and 
 the court will allow the wife her share of the estate moneys 
 when her husband has been long absent and the presumption 
 is that he is dead.(V) 
 
 Exclusion of the communio qucestuum can be inferred from 
 the wording of the ante-nuptial contract : thus, if the contract 
 contains a clause to the effect that neither of the spouses 
 shall be answerable for the debts of the other, this is sufficient 
 to exclude community of loss during the marriage, (w) 
 
 The court will not recognise marriages not celebrated 
 according to recognised Christian rites, (x) and therefore 
 community of property will not be introduced. 
 
 Thus far as regards the consequences of marriage in respect 
 of the property of the spouses. 
 
 The personal consequences of marriage affect the relation- 
 ship between the spouses and the status of the wife as a 
 femme sole. The husband is vested with many of the rights, 
 privileges, and powers which were under the Eoman law 
 conceded to the paterfamilias, unless specially excluded by 
 ante-nuptial contract. The rights, privileges, and powers are 
 known as the "marital power." In conformity with this 
 
 («) Grotius, ii. 12, 11. Van der Keessel, Thes., 252. 
 
 (m) Blatchford v. Blatchford's Executors, E. D. C. 1, p. 365. In re Estate 
 of Barnes, E. D. C. 1, p. 5. 
 
 (v) In re Wilhelmma Miller, Buch. 1874, p. 28. In re Nelson, Buch. 1876, 
 p. 130. 
 
 (w) Boyes v. VerzigmaD, Buch. 1879, p. 229. 
 
 (x) Arg. Magmoet v. Registrar of Deeds, 5 Juta. 179. Nanto v. Melgass, 
 5 Juta. 108. Bronn v. Frits Bronn's Executors, 3 S. 313. 
 
44 OPINIONS OF GKOTIUS. [No. 
 
 view, the wife becomes a minor and the husband her 
 curator. (a) She is upon marriage in tuteld aut curateld 
 mariti, and consequently has no locus standi in judicio.Q)) 
 The husband therefore appears for her in court, and when 
 the wife is summoned, she must be cited " assisted by her 
 husband." Women and minors are liable to make civil 
 reparation, and therefore in such cases the wife can be sued 
 personally, assisted by her husband.(c) If the woman is 
 married out of community of property, she must be sued 
 " assisted by her husband," and the summons must also be 
 served on him.(rf) The sole administration and management 
 of her property is vested in the husband,(e) and unless she 
 has his authority, either express or implied, she is excluded 
 from the administration in every case. She can in no way 
 bind herself by contract without express or implied authority, 
 and such contracts will be void as against her except in 
 so far as she has benefited by them. The husband will, 
 however, be bound when the wife is a public trader or 
 incurs debts for domestic purposes.(/) During the absence 
 of the husband, the wife can act in his stead and as his agent, 
 and he will be bound by her acts.(#) Therefore, if a wife 
 sells goods in her husband's shop in the ordinary course of 
 business, it is not lawful for her after he has absconded, and 
 thus committed an act of insolvency, to pay one creditor in 
 preference to the body of creditors, for this will be construed as 
 an undue preference. (h) The wife will be liable for the debts 
 of her husband. (See Opinion No. 7.) 
 
 As guardian, the husband's powers are wider and more 
 extensive than those of ordinary tutors or curators, for he 
 need not give an account of his administration nor make 
 
 (a) Grotius, i. 5, 19. Voet, 23, 2, 41. Sande, 2, 4, 1. 
 (6) V. d. Linden, i. 3, 7. Voet, 2, 4, 10. 
 
 (c) Boyes v. Verzigman, 1879, p. 229. Prince qq. Dieleman v. Anderson 
 and Others, 1 Menz. 177. Grotius, i. 5, 23. Snook v. Bosnian, E. D. C. 2, 201. 
 
 (d) Landsberg v. Marchand, 1 Menz. 200. 
 
 (e) Grotius, i. 5, 22. 
 (/) Grotius, i. 5, 23. 
 
 (g) Selby v. Friemond, J. 5, 266. 
 
 (A) Brown v. Dyer & Dyer, E. D. C. 3, 267. 
 
8.] OPINIONS OF GEOTIUS. 45 
 
 any inventory of his wife's estate. He has absolute power 
 to dispose of the personal, movable, and immovable assets 
 of his wife, whether she is married to him in community of 
 property or not.(i) He can hypothecate it, burden it with 
 servitudes, and sell it without the consent and in opposition 
 to the will of his wife.(^) In like manner he has the free 
 disposition over the rents and fruits of her property, even 
 when the property itself forms no part of the community.(7) 
 The husband may also interfere with the interests of his 
 wife in a negative manner, for he can refuse to adiate a 
 succession devolving on her.(m) If there is sufficient evi- 
 dence that the husband is abusing his marital power and 
 will bring poverty upon his wife, the lnw will afford her 
 redress, and will restrain him within proper bounds.(m) In 
 the same manner the court will restrain the husband from 
 alienating the joint estate whilst an action for judicial 
 separation is pending between the parties.(o) In the ease of 
 Linde v. Beyers (1 J. -411), the question was discussed whether 
 the husband would be considered to have defrauded his 
 wife by wilfully, and with the intention of prejudicing her, 
 alienating" her property ; but no decision was given on the 
 point. 
 
 As a minor, the wife cannot become the curator of her 
 lunatic husband, (p) but the court will allow her the manage- 
 ment of the joint estate, either during prolonged absence (q) 
 or during his derangement, (r) 
 
 The wife owes the husband fidelity and obedience, (s) and 
 upon a divorce being granted by reason of the adultery of 
 
 (i) Grotius, i. 5, 22. 
 
 (k) Grotius, ib. Voet, 23, 5, 7. 
 
 (I) See the present Opinion. 
 
 (m) Rodenburg, De Potest. Alien., c. 3, tit. 2, n. 8, 9, 10 et seq. Voet, 
 23, 2, 55. 
 
 (n) V. d. Linden, i. 3, 7. 
 
 (o) Sture v. Sture, R 1, 51. 
 
 (p) In re De Jager, Buch. 1876, 228. Grotius, i. 11, 7. V. d. Keessel, 
 Thes., 168. 
 
 (j) In re Oosthuyzen (S. A. K.), Kotze's Rep. 98. 
 
 (r) In re De Jager, supra. 
 
 (s) Grotius, i. 5, 20. 
 
46 OPINIONS OF GEOTIUS. [No. 
 
 one of the parties, the court in its discretion may decree 
 that the guilty spouse shall forfeit the benefits derived from 
 the marriage.(i) Likewise it is in the discretion of the court, 
 upon a decree of divorce, to allow the custody of the children 
 to the more competent and fitter parent, although under the 
 general rule of law the father is the natural guardian.(w) 
 
 If there is collusion between the spouses, a curator ad litem 
 will be allowed to intervene on behalf of the children.(w) 
 
 Although the wife is, therefore, to a very great extent, 
 under the power of the husband, she is afforded a certain 
 amount of protection in the shape of extraordinary " benefits" 
 for, in addition to the usual benefits allowed by law, two 
 special beneficia have been made in her favour. 
 
 The first is the beneficium Senatusconsulti Velleiani, 
 which forbad women to become sureties for others. The 
 benefit can also be exercised in the case where a woman 
 binds herself as principal debtor for another or takes another's 
 debt upon herself as her own (w). During the time of 
 Augustus and Claudius, enactments had been made prevent- 
 ing women to enter into any obligations on behalf of their 
 husbands; subsequently, about the time of Vespasian and 
 during the Consulship of Velleus Tutor and Marcus Silanus 
 (circa 43 A.D.), this Senatusconsultum was passed.(a;) The 
 policy of the enactment is thus given by Paulus : — Custom 
 refuses to women not only offices of state (munera publico) 
 but business duties (officia civilia), that is, which imply their 
 going from home into the company of men. It was therefore 
 fit that they should be prohibited from undertaking business 
 responsibilities and exposing their property to danger. — The 
 Senatusconsultum, with this object in view, was made sweep- 
 ing. It forbad every woman to make any contract, or give 
 any of her property as security on behalf of any person to 
 
 (t) Higgins v. Higgins, E. D. C. 5, 344. 
 
 («) Painter v. Painter, E. D. C. 2, 147. 
 
 (v) Louw v. Louw, Buch. 1874, 41. 
 
 (w) Van Leeuwen, R. H. R. iv. 4, 2. 
 
 (x) D. 16, 1, 2, Pr. Kotze's Van Leeuwen, iv. 4, 2, in notis. 
 
8.] OPINIONS OF GEOTIUS. 47 
 
 any creditor, (y) In like manner, the wife is restrained from 
 becoming surety for her husband by the Authenticum (Cod. 
 iv. 29, 22). She can, if sued on such engagement, plead the 
 beneficium Authentica si qua mulier. "Women and wives were, 
 however, allowed to renounce these benefits, (a) but as long 
 as this had not been done, they would not be liable as sureties. 
 After the Senate had passed the Senatusconsultum Velleianum, 
 considerable divergence arose among the lawyers as to its 
 operation. Doubts at first arose whether the suretyship 
 of a woman was not absolutely void, but it was finally de- 
 cided that, although prohibited by law, a woman could only 
 take the benefit of the Senatusconsultum by pleading it. 
 " I have never," says de Villiers, C. J., " found any satisfactory 
 explanation for the passing of the new law known as the 
 Authentica si qua mulier, whereby married women are 
 specially protected against their contracts of suretyship for 
 their husbands, seeing that they were already protected under 
 the general terms of the Senatusconsultum Velleianum. The 
 explanation which I would venture to give, in default of 
 any better, is that the Emperor Justinian wished — to use an 
 English law phrase — to make the suretyship of a wife for 
 her husband not only voidable, but absolutely void. Be this 
 as it may, the jurisconsults very soon applied to the new 
 imperial law the principles which they had successfully 
 applied to the enactment of the Senate. 'Every person,' 
 they said, ' who is sui juris may renounce benefits introduced 
 for his benefit and not for the public good ; the new law was 
 enacted to protect wives against the undue influence of their 
 husbands and against their own supposed weakness, and not 
 upon any ground of public policy ; if in any case the court 
 is satisfied that a woman who has become surety for her 
 husband did so with her eyes open and with a full knowledge 
 of her rights, she ought not to be allowed to evade her 
 liability; and if she has effected the renunciation of the 
 privilege conferred on her by the new law, by means of a 
 public instrument, such as is required in the case of other 
 
 (y) Hunter's Eom. Law, p. 393. (z) Grotius, iii. 3, 18. 
 
48 OPINIONS OF GROTIUS. [No. 
 
 women becoming sureties, she ought not afterwards to be 
 allowed to plead the privilege." (a) A woman cannot, how- 
 ever, effectually plead the Senatusconsultum Velleianum or the 
 Authentica si qua mulier if they have attempted to practise 
 a fraud ; if and in so far as they have benefited by the trans- 
 action; if they have become surety for a creditor: if they 
 have become surety for their husbands' debts in order to get 
 them out of prison ; if, as public traders, they have become 
 sureties for matters connected with such trade; if they 
 become heirs to the principal debtor ; if, after a lapse of two 
 years, they have confirmed their suretyship by a renewed 
 promise ; (V) if in their testaments they desire their heirs to 
 pay what they owe. The Senatusconsultum Velleianum and 
 the Authentica si qua mulier apply to all obligations of women, 
 including promissory notes signed by them as sureties ; and 
 although public female traders are not entitled to the benefit 
 of the Senatusconsultum Velleianum in their trade obligations,' 
 they are entitled to that of the Authenticate) Huberus (d) 
 says that judgment will be given against a woman unless 
 she pleads the benefit of the Senatusconsultum Velleianum or 
 Authentica ; (e) but even after judgment she may still claim 
 the benefit against execution thereof. 
 
 Although these benefits are conferred jointly on the wife, 
 and although the benefit of the Authentica si qua mulier 
 is practically included in the general terms of the wider 
 Senatusconsultum Velleianum, yet, in the renunciation of 
 these benefits they must be treated separately, and each 
 
 (a) Per De Villiers, C. J., in Oak v. Lumsden, 3 J. 144. 
 
 (b) Grotius, iii. 3, 15, 16, 17. V. d. Keessel, Thes., 495. Voet, 16, 10. 
 Neostad, de Pact. Ant., Obs. 18. Fab. ad Cod., 4, 21. Des. 16 and 17. 
 Wassenaar, Jud. Praot., vol. ii. c. 10, § 13, 15, 17. Kersteman, Regts. W. 
 boek, "Beneficie." 
 
 (c) Auret v. Hind, 3 E. D. C. 354, and 4 E. D. C. 283. M'Alister o. Raw 
 & Co., 6 Natal L. E. (N.S. 10). 
 
 (d) Heeden. Regts., 3, 27, 10. 
 
 (e) Smuts, Loirw, & Co. v. Coetzer (Bueh. 1876, 55). Compare this with 
 M'Alister v. Raw Sc Co. (6 Natal Law Rep. N.S. 144), where provisional 
 judgment was refused against the wife, who had signed a promissory note 
 jointly and severally with her husband, and with Mahadi v. De Kock (1 G. 
 W. 344). 
 
8.] .OPINIONS OF GEOTIUS. 49 
 
 benefit must be specially renounced. (/) Moreover, when 
 the wife gives a general power of attorney, her agent has no 
 power to renounce the beneficia in any deed signed by him 
 under the power, unless such power of renunciation is given 
 to him in express words in the power of attorney, or unless 
 it may be fairly inferred from the words employed that the 
 woman signing it had in view the renunciation of her 
 privileges.^) 
 
 The manner in which the renunciation of the benefits of 
 the Senatusconsultum Velleianum and of the Authentica si qua 
 mulier is to be made has not been definitely settled by any 
 definite case or cases directly referring to this subject in South 
 Africa. We have, however, two very distinct and hardly re- 
 concilable dicta on this point. In the case of Whitnall 
 v. G-oldschmidt,(K) Shippard, J., who delivered the judgment 
 in the Eastern 'Districts Court, gives as his opinion that 
 by Roman-Dutch law the benefit of the senatusconsultum 
 Velleianum, in order to be effectual, must be made either 
 judicially on oath, or extrajudicially by a public or notarial 
 instrument duly attested, without which, by Dutch as well as 
 by Eoman law, the engagement itself was null and void ; and 
 it is scarcely necessary to add that these rules applied with 
 far greater force to the case of a married woman who 
 becomes surety for her husband, and with that object 
 renounces the benefit of the authentica si qua mulier. 
 Numerous authorities were quoted by the learned judge 
 in the course of his judgment to substantiate his view. 
 Tn the case of Oak v. Lumsden,(i) on the other hand, De 
 Tilliers, C.J., maintained that a public or notarial instru- 
 ment is not absolutely required for the renunciation of the 
 above benefits, thus upholding the doctrine of Groenewegen (k) 
 and Voet.(£) 
 
 (/) Grotius, iii. 3, 19. 
 
 (g) Mackellar v. Bond, in Privy Council (L. E. 9 App. Cas. 715). 
 
 {h) '3 E. D. C. 314. 
 
 {i) 3 Juta. 144. 
 
 [k) Groen., Cod. 4, 29, 23, § 2. 
 
 (Z) Voet ad Pand., 16, 1, 9. 
 
 D 
 
50 OPINIONS OF GROTIUS. [Noi 
 
 Kotze, C.J. (S. A. E.), in his Appendix to his translation 
 of Van Leeuwen's Boman-Dutch Law, vol. ii. p. 620, says, 
 " As no direct decision of the South African courts on the 
 point under consideration is to be found in the Eeports, the 
 probability is that, if the issue should at some future time 
 be definitely raised, the result will be in accordance with 
 the strict rule of law, that the renunciation Ben. Sc. Veil. 
 and Auth. si qua mulier can only be made publico inslru- 
 menlo." 
 
 For a fuller account of the last point, reference should 
 be had to Van Leeuwen's Bom.-Dut. Law, by Kotze, vol. ii., 
 Appendix. 
 
 LEX HAC EDICTALI. 
 
 The Eomans looked with disfavour upon second marriage, 
 and tried to restrain it as far as possible. Consequently, 
 they introduced certain legal disabilities, chief among which 
 was an enactment that, upon a second or subsequent mar- 
 riage,] the survivor of the previous marriage, if there were 
 any children, could not benefit the other spouse by will, 
 donation, or otherwise, to a greater extent than the least 
 portion which comes to any of the children of the previous 
 marriage, and all that is bequeathed or given in excess 
 thereof is taken away and added to the shares of the children 
 of the former marriage.(m) This law was known as the lex 
 hac edictali C. de secundis nuptiis.(n) The law was intro- 
 duced by the Emperors Leo and Anthemius, and was first 
 introduced into Holland about the year 1529.(o) This law 
 did not, however, abrogate the community of property which 
 took place between the spouses of the subsequent marriage.(p) 
 The hereditary portion to which the subsequent spouse was 
 entitled was known as the " child's share " or filiate portie.{q) 
 The lex hac edictali was abolished at the Cape of Good Hope 
 
 (m) Grotius, ii. 16, 7. 
 
 («) Grotius, ii. 12, 6 ; ii. 16, 7. Cos on the lex hac edictali. 
 
 (o) Van Leeuwen, R. H. R. iv. 23, 5. 
 
 (p) Ibid., but see Schorer ad Grot., Not. ci., for the opposite view. 
 
 (g) Van der Linden, i. 3, 10. 
 
8.] OPINIONS OF GROTIUS. 51 
 
 by Act 26 of 1873. Tennant, in his " Manual for Notaries at 
 the Cape," gives a full account of the operation of this law, 
 pp. 63-66. 
 
 Under the Koman-Dutch law, several provisions were 
 made for the protection of the property of the children, and 
 to secure their interests after the death of one of the spouses. 
 The surviving parent was bound to maintain and educate the 
 children during their minority, and upon the dissolution of 
 the marriage by the death of the first dying, the survivor 
 had to make a proper division of the estate and to file an 
 accurate inventory.(r) According to certain local charters 
 and customs, the community was continued as a penalty if 
 the survivor failed to comply with the law.(s) This penalty 
 was not, however, adopted everywhere in Zeeland and Hol- 
 land, (t) and at the Cape of Good Hope it is customary for 
 the survivor, whether the deceased spouse died testate or in- 
 testate, to remain in possession of the joint estate in order to 
 preserve more fully to such survivor (boedelhouder) the means 
 of supporting and educating the children from the usufruct 
 until they marry or become of age ; but when that period 
 arrives, the children must be paid the share due to them.(w) 
 
 The estate is divided either by (1) " uitkoop " — that is, by 
 redemption by the survivor purchasing the interest of the 
 children in the estate, after appraisement ; (2) by sale ; (3) 
 by voluntary partition and agreement ; or (4) by casting lots 
 for separate portions (blinde lotinge).(v) 
 
 Division of the estate is effected by " uitkoop," as a rule, 
 in those cases where the assets consist for the most part of 
 merchandise, industrial pursuits, or outstanding debts ; but 
 this cannot be done until a proper appraisement has taken 
 place. (a) If the appraisement is to go to the Orphan Master, 
 
 (r) Grotius, i. 9, 6. Lybregt's Red. Vert, over't Not. Ambt., i. 13. V. d. 
 Keessel, Thes., 142-146. 
 
 (s) Grotius, ii. 13, and V. d. Keessel, 266 et seq. 
 
 (0 Van d. Keessel, Th. Sel., 271. 
 
 (u) Tennant, Not. Man., p. 212. 
 
 (i>) Grotius, i. 9, 7. Rechtsg. Obs. iii. 10. 
 
 (x) Regts. Obs. iii. 10(1). 
 
52 OPINIONS OF GROTIITS. [No. 
 
 it must be done by a sworn appraiser appointed by the Master 
 of the Supreme Court, (y) 
 
 Voluntary partition is resorted to either when there is no 
 necessity to employ the method of redemption (uitkoop), or 
 when the surviving spouse (boedelhouder) refuses to redeem 
 the children's interests. 
 
 The division of !the estate by lot (kaveling or blinde lotinge) 
 is usually done — 
 
 (1.) If the parties cannot agree as to the division by re- 
 demption (idtkoop). 
 
 (2.) If they cannot agree in the division, one or more 
 of them claiming their share in every portion. 
 
 (3.) Especially if the property to be divided consists of im- 
 movables which are susceptible of division and the parties 
 refuse to have it sold. In order to preserve an equal distri- 
 bution, those who draw the best lots must compensate those 
 who draw the worst by paying a certain amount equal in 
 value to the difference between the lots.(z) 
 
 After such division, the survivor can either pay out the 
 minors' shares, by depositing the amounts due to them in 
 the Guardian's Fund, which is controlled and administered 
 by the Master of the Supreme Court ; or he can retain under 
 his administration the monies due to the minors if he 
 passes a bond with sureties, the bond and sureties to be 
 approved by the Master, securing to the minors their re- 
 spective shares. This bond, because it secures and states 
 the minors' portion, is called a " kinderlewijs." According 
 to Colonial Law, the survivor is not allowed to remarry 
 until the paternal or maternal inheritance of the minors 
 shall have been previously ascertained and secured. Upon 
 production of proper proof that the minors' shares have 
 been paid or secured, the Eesident Magistrate issues a 
 certificate that no such impediment as above exists any 
 longer. When this certificate has been obtained, the banns 
 can be published, or a special license for the celebration 
 of the marriage issued. 
 
 (y) Tennant, supra. (s) K. Obs. iii. 10. 
 
8.] OPINIONS OF GEOTIUS. 53 
 
 The surviving spouse who remarries before^ the shares 
 due to his or her minor children have been ascertained and 
 secured or paid, forfeits one-fourth of his or her share in 
 the joint estate for the benefit of the minor children.(a) 
 
 The deed of " kinderbewijs," like any other bond, must be 
 registered in the Deeds Eegistry, and thereupon the minors 
 have the right to proceed on the bond against the property 
 of the boedelhouder and against the sureties, whilst under the 
 Common Law minors have only a tacit hypothec over the 
 property of the surviving parent.(6) 
 
 In referring to Grotius, Introduction, i. 9, 7, it was found 
 that a somewhat serious error had crept into Mr. Maasdorp's 
 excellent translation of that work. On page 29, the trans- 
 lator renders the 7th section of the ninth chapter, Book i., 
 as follows: — "Division of property is effected either by 
 redemption, i.e., by buying out at an appraised value, or 
 by lot." 
 
 Now the original reads " Boedel-seheydinge geschiet of 
 by uytkoop nae gedane schattinge, of by willige deeling, ofte 
 by kaveling, anders genaemt blinde lotinge." 
 
 Grotius does not therefore give merely two methods of 
 division of the estate, as would appear from the translation, 
 but three, that by voluntary partition having been omitted. 
 
 (a) Act No. 12, 1856. 
 
 (6) Grotius, ii. 48, 16 ; R. Obs. 1, Ob. 71. 
 
OPINION No. 9. 
 
 HOLL. CONS. III. B. 196. 
 [GROTIUS I. 13, 1, & II. 26, /2.] 
 
 Domicilium originis — Change of domicile — "What constitutes 
 domicile — Partnership and domicile — Intention to change — 
 Succession db intestate — Immovables regulated by the lex 
 loci situs, movables not. 
 
 1. In considering succession ab intestato, the suc- 
 cession to immovables was regulated according to 
 the law of the place where the same was situated, 
 but succession to movables according to the law of 
 the domicile of the person, and not according to the 
 law of the place where situated, et quare. 
 
 2. Originis domicilium secundum jus Eomanum 
 est immutabile, et qui alibi habitat, censetur habere 
 duo domicilia. 
 
 3. According to the customary law of the Nether- 
 lands, and almost of the whole world, the domicilium 
 originis was changed sola voluntate, so that such 
 person in nowise remains subject to the jurisdiction 
 of his domicile of origin. 
 
 4. Ibi domicilium quis habere statuitur, ubi 
 larem favet, ubi majorem bonorum partem possidet 
 et assidue versatur. Also No. 11. 
 
No. 9.] OPINIONS OF GROTIUS. 55 
 
 5. Sola conductio domus non constituit novum 
 domicilium, nisi aliud accesserit. This is also 
 the case with those who have another fixed 
 domicile. 
 
 6. Mutatio non facile prsesumitur. 
 
 7. In what manner the acquisition of a domicile 
 by ten years' residence is to be understood. 
 
 8. Si de voluntate appareat, uno momento domi- 
 cilium constitutum intelligitur. 
 
 9. Ilia voluntas probatur ex conjecturis et qua? 
 sint firmissimse conjecturse. 
 
 10. Difficile est quemquam sine domicilio esse. 
 
 12. According to the customs of Holland, as well 
 as of those of other places, domicile was acquired 
 after the lapse of a year. 
 
 13. Forum sortiri et legibus subjici, a pari pro- 
 cedunt. 
 
 14. In dubio ubi respicitur persona, ratio habenda 
 est domicilii, non originis. 
 
 15. A partner cannot be said to reside in a place 
 where his company is fixed, unless he himself lives 
 there. 
 
 16. The laws of the Emperors do not obtain in 
 the Netherlands pro jure communi in questions of 
 intestate succession. Such successions were always 
 regulated according to the special customs of each 
 nation. 
 
 (1) To decide this question, it must be observed 
 that when intestate succession calls for consideration, 
 the immovable property must be regulated according 
 
56 OPINIONS OF GEOTIUS. [No. 
 
 to the law of the place where it is situated, (a) The 
 movable property-is regulated not so much according 
 to the law of the place of its situation, but according 
 to that of the person, sequuntur enim persona/m.{b) 
 
 This gives rise to the question whether in this 
 respect the domicilium originis or the domicilium 
 habitationis must be taken into consideration. 
 
 (2) In answering this question, it must be premised 
 that there might have been some difficulty if we 
 refer to the Civil Law and the commentaries of the 
 jurisconsults thereon, since, according to Roman law, 
 originis domicilium est immutabile et ideo qui alibi 
 habitat, censetur habere duo domicilia.(c) (3) This 
 difficulty vanishes when we consider the universal 
 custom of the whole of the Netherlands, and even of 
 the whole world in our time, secundum quam con- 
 suetudinem domicilium originis sola voluntate muta- 
 tur, ita ut originarius nullo modo maneat subjectus 
 jurisdictioni originis ; cui consuetudini testimonium 
 etiam perhibet Gail lib. 2, obs. 36, dicens earn et in 
 Germania et ubique obtinere. For these reasons 
 Johan van Cornput must be taken to have absolutely 
 left his birthplace, since he had absented himself 
 therefrom, not for a short period, but for fully seven- 
 teen years, without any subsequent residence there 
 at a time when he had leave to absent himself from 
 his partnership. It was further stated that his part- 
 
 (a) Ut tractant doctores in C. i. 1, 1 ; Gail, lib. 2, Obs. 124 ; Prases 
 Everh., Cons. 185, et in loois legalibus, loco a nom. dignit. No. 4 ; Peckins 
 de Test. Conjug., lib. 4, c. 36, No. 4. s »'•„ 
 
 (6) Bald, in C. 4, 63, 4 ; Gail d. Obs. No. 8. ^ 
 
 (c) C. 10, 38, 4 ; D. 50, 1, 6, et ibi Bart. 
 
9.] OPINIONS OF GEOTIUS. 57 
 
 nership was at Embden, and that although he did 
 no business at Groningen, he nevertheless went to 
 live there with his whole family, and continued his 
 residence there for a period of three years, until the 
 time of his death. From this it may be inferred 
 that he had domicilium habitationis there. (d) Si 
 quis negotia sua non in colonia, sed in municipio 
 agit, in illo vendit, emit, contrahit, eo in foro, balneo 
 spectaculis utitur, ibi festos dies celebrat, omnibus 
 denique municipii commodis, nullis coloniarum 
 fruitur, ibi magis habere domicilium quam ubi colendi 
 causa diversatur (e) : (4) in qua lege (C.) domicilium 
 quis habere statuitur, ubi larem fovet, ubi majorem 
 bonorum partem possidet, et assidue versatur,(/) 
 ubi dicitur, {infra) eodem in loco singulos habere 
 domicilium nom ambigitur, ubi quis larem, rerum- 
 que ac fortunarum suarum summam constituit, unde 
 rursus non sit recessurus, si nihil avocet. 
 
 (5) The passage of the Digest: Quod sola conductio 
 domus non constituit novum domicilium nisi aliud 
 accesserit,^) is not opposed to this, for it only refers 
 to cases in illis, qui alibi domicilium aliud certum 
 habent, quia mutatio non facile prsesumitur. (6) Hie 
 autem nullum aliud dari potest domicilium ; deinde 
 non est hie sola conductio, sed habitatio continua, 
 cum familia et rebus. 
 
 (7) So also the fact quod decennio quseratur domi- 
 
 (d) Per textum egregium in 1. ejus qui § 1. D. 50, 1 , ubi ait jurisconsultus. 
 
 (e) Et C. 3, 24, 2. 
 (/) Et C. 10, 39, 7. 
 
 (g) D. 1, 3 ; D. 33. 7, 27. 3, &c. 
 
58 OPINIONS OF GKOTIUS. [No. 
 
 cilium (h) does not apply. It does not follow quod 
 minore tempore non quseratur ; sed quod in dubio 
 decennium per se sufficiat ad probandum domi- 
 cilium. (8) Alioqui si de voluntate appareat, vel 
 uno momento domicilium constitutum intelligitur.(i) 
 Ea autem voluntas ex conjecturis probatur.(&) Fer- 
 missima autem hsec est conjectura, quod prius 
 domicilium quod babuit, plane extinctum sit : unde 
 prsesumendum est, electum ab ipso aliud domi- 
 cilium. (10) Difficile enim est sine domicilio esse 
 quemquam.(Z) (ll) Accedit altera conjectura, ex 
 invectione familiee et bonorum ; et tertio, quod ea 
 in urbe non habebat temporarium negotium. (12) 
 Here must also be taken into consideration that 
 according to tbe general customs of the Netherlands, 
 as well as of other places, incolatus acquiritur anni 
 tempore, quod et in Germania obtinere ait Gail.(m) 
 And since the afore-mentioned Cornput was subject 
 to the jurisdiction of the magistrate of Groningen 
 in connection with certain contracts entered into by 
 him during his lifetime, it follows that he was also 
 subject to the customs and Keuren (charters) of the 
 place. (13) Forum enim sortiri et legibus subjici a 
 pari procedunt,(w) (14) et in dubio ubi respicitur 
 
 (A) Cyn. ad d. 1. C. 3, 24, 2 ; Gl. et Bart, ad 1. lex Cornelia § si tamen de 
 injuriis ; Ang. Cons. 20 ; Felin. ad C. dilectis 2, No. 12, vers, sed adverte 
 Extr. de rescript. 
 
 (i) Dom. a S. Gem. in C. cum nullus, No. 11, de temp. ord. in 6 ; Joh, 
 Andr. in addit. ad Spec, in § 1, de comp. jud. ad Marian. Soc. vers. 7, lib. 2. 
 
 (Tc) C. 2 Extr. de renunc. d. 1. civis, § Celsus et ibi Dd. 
 
 (I) Ut inquit jurisconsultns in d. 1. civis. 
 
 (m) Gail, lib. 2, obs. 35, No. 8. 
 
 (n) Dec. Cons. 284, No. 9 ; Alex. Cons. 157, No. 15, vol. ii. et Cons. 150, 
 No. 3 ; Can. in C. licet ratione, Ext. de foro competenti. 
 
9.] OPINIONS OF GEOTIUS. 59 
 
 persona, rationem habendam domicilii, non originis.(o) 
 (15) From all this it can be adduced that the laws of 
 Breda are not to be followed in the present case, cum 
 domicilium originis reliquerit, et satis ostenderit pro- 
 positum non revertendi. Neither could the law of 
 Leeuwaarden be applied, cum deseruerit ilium in- 
 colatum domicilio et fortunis translatis ; nor could 
 the law of Embden regulate the case ; for although 
 the business place of his partnership was there, it is 
 nevertheless stated that he himself had no residence 
 in the place, et ita hie proprie locum habet.(_p) (16) 
 The laws of the Emperors do not, in my opinion, 
 apply quia constat de domicilio per argumenta 
 superposita, and also because these laws have never 
 been received pro jure communi in matters of in- 
 testate succession in the Netherlands. Such suc- 
 cessions were always regulated according to the 
 special customs of each nation. 
 
 Rotterdam, 
 
 October 31st, 1613. 
 
 DOMICILE. 
 
 In the Note to Opinion No. 1, reference was made to the 
 different kinds of laws (statutes) and their intra- and extra- 
 territorial effect. The extra-territoral effect of laws is 
 necessarily closely associated with the domicile of the 
 persons whose jural capacities are in question, and there- 
 fore the remarks there made may be conveniently treated 
 as prefatory to what follows. 
 
 (o) Bald, ad D. 1, 5, 2, quern sequitur Imbert. in enoh. in verbo bonoium 
 diversitas. 
 
 (p) D. 1. ejus § 1. 
 
60 OPINIONS OF GEOTIUS. [No. 
 
 The subject of Domicile ^is treated of by the Eoman 
 jurisconsults, but on a very meagre basis. Before the fall 
 of the Empire the matter evidently called for very little 
 attention, for the old Eoman law affords us no instances 
 of this matter ever having received any practical applica- 
 tion. The Eomans had their Civil Law as well as their 
 jus gentium or Law of Nations, but the confusion between 
 the jus gentium and International Law is entirely modern. 
 The classical expression for International Law was "jus 
 feciale" or the law of negotiation and diplomacy. The "jus 
 naturals " or Natural Law was simply the jus gentium viewed 
 in the light of a peculiar theory. The Eoman lawyers 
 themselves had no particular respect for the jus gentium. 
 It was the fruit of their disdain for all foreign law. The 
 '■jus civile " was considered the sacred heritage of all true- 
 born Eomans, and the conservative Eoman patriot sternly 
 and strenuously refused to degrade his law by making it 
 of universal application, and to apply it to matters in dis- 
 pute between foreigners or natives and foreigners. As a 
 matter of police and in furtherance of commerce, juris- 
 diction was at last assumed in those disputes. In order 
 to adjudicate in such cases, the Eomans resorted to a 
 selection of rules and customs common among the nations 
 with which they had come in close contact, the jus gentium 
 being, in fact, the sum of the common ingredients in the 
 customs of - the old Italian tribes. It is perfectly certain 
 that during the early days of the Empire foreign laws, as 
 such, were neither respected nor followed by the Eomans, (q) 
 although Story (r) seems to think that many cases of con- 
 trariety or conflict of laws must have been embraced in the 
 antecedent jurisprudence of Eome during the earlier periods. 
 If Maine's account of the origin of the jus gentium is correct, 
 we see at once the reason why so little is to be found in 
 Eoman law concerning the principles of International Law. 
 The want of any distinct system of principles in Eoman law 
 
 (}) Maine's Ancient Law, chap. 3. 
 (r) Story's Conflict of Laws, § 2. 
 
9.] OPINIONS OF GROTITJS. 61 
 
 applicable to international cases of mixed rights is accounted 
 for by Huberus on the supposition that at the time to which 
 the Eoman jurisprudence relates the Eoman dominion ex- 
 tended over nearly the whole known world, and therefore 
 cases of contrariety could scarcely occur, (s) Be that as it 
 may, when the Lombards, Franks, Burgundians, and Goths 
 finally established themselves in the Eoman Empire, they 
 allowed , the different nations to be governed by their own 
 laws and customs, and from this condition arose the capacity 
 for civil rights, denominated personal rights or personal laws, 
 as opposed to territorial laws.(t) 
 
 International Law, as we now know it, is the slow growth 
 of modern times under the combined influence of Christianity 
 and commerce.^) For the protection and promotion of 
 commerce it has been adopted as a matter of expediency 
 and utility, and the more extended the sphere of commerce 
 becomes, the more important will the question as to jural 
 capacities of aliens become, and the greater necessity will . 
 there be for the extension and application of the principles 
 of International Law. 
 
 When in the earlier periods questions cropped up as to 
 the rights to certain property, the points in issue became 
 difficult of solution when it was found that the claimant 
 lived in one country and the goods were situated in another. 
 A way out of the difficulty (as we have seen in the Annota- 
 tion to Opinion No. 1) was to divide the statutes into per- 
 sonal, real, and mixed, and to allow the personal status 
 acquired at the place of domicile to follow the individual 
 everywhere, but in all other respects he was subject to the 
 laws of the territory in which he resided. Immovables were 
 regulated by the lex loci rei sitm, whilst? movables were 
 presumed to belong to the person of the owner, and to 
 follow him everywhere. At first no question arose as to 
 what was exactly meant by domicile, for according to Eoman 
 
 («) Huberus, 2, 31, 1. 
 
 («) Savig-ny's History of the Roman Law in the Middle Ages. 
 
 (u) Ward, Law of Nations, chaps. 6 and 3. 
 
62 OPINIONS OF GROTIUS. [No, 
 
 law originis domicilium est immutabile.(v) As soon, how- 
 ever, as the law allowed a change of domicile, the want of 
 a full and complete definition of the word was felt, for no 
 definite rules as to its acquisition, loss, or change had as 
 yet been accepted or acted upon. 
 
 The flight of years has certainly smoothed the way for 
 a full and comprehensive definition of the word " domicile," 
 thanks to the researches of many eminent writers on Inter- 
 national Law; but, nevertheless, a considerable amount of 
 difficulty has been experienced by reason of the different 
 views adopted by different writers. It is interesting to 
 follow the definition of the term as laid down by different 
 lawyers at different times. Grotius, in the opinion which 
 we are considering, gives us the definitions of the term as 
 they appear in the Code : (x) — " In eodem loco singulos 
 habere non ambigitur, ubi quis larem rerumque ac fortu- 
 narum suarum summam constituit, unde rursus non sit 
 discessurus, si nihil avocet, unde cum profectus est, pere- 
 grinari videtur, quod si rediit peregrinari jam destitit." And 
 in the Digest : (y) " Si quis negotia sua non in colonia, sed 
 in municipio, semper agit; in illo vendit, emit, contrahit; 
 eo in f oro, balneo, spectaculis utitur ; ibi f estos dies celebrat, 
 omnibus denique municipii commodis, nullis coloniarum, 
 fruitur ibi magis habere domicilium, quam ubi colendi causa 
 diver satur." 
 
 In the same book of the Digest (z) it is stated ' that he is 
 deemed an inhabitant who has his domicile in any place, and 
 whom the Greeks call irapotkov or neighbour. For those 
 are not only considered incolce who live in the towns, but 
 also those who cultivate lands near the boundaries thereof 
 in such a manner that they deem their place of abode to 
 be there: Incola est, qui aliqua regione domicilium suum 
 contulit, quern Grseci irapoucov (id est juxta habitantem) 
 
 (v) C. 10, 38, i, and D. 50, 1, 6. 
 (x) C. 10, 39, 7. 
 (y) D. 50, 1, 27. 
 (z)fD. 50, 16, 239. 
 
9.] OPINIONS OF GEOTIUS. 63 
 
 appellant. Nee tantum hi, qui in oppido morantur, incolse 
 sunt, sed etiam, qui alicujus oppidi finibus ita agrum habent, 
 ut in eum se quasi in aliquam sedem, recipiant. 
 
 Grotius condenses these into " domicilium quis habere 
 statuitur ubi majorem bonorum partem possidet, ubi larem 
 fovet et assidue versatur ; " and he adds: "Hie autem nullum 
 aliud domicilium dari potest; deinde non est hie sola con- 
 ductio, sed habitatio continua, cum familia et rebus." 
 
 Pothier, in his introduction ad lib. 50 of the Digest, says 
 that the seat of the fortune or property of a person in any 
 place constitutes his chief domicile. Domicilium facit 
 potissimum sedes fortunarum suarum, quas quis in aliquo 
 loco habet. 
 
 In his Introd. Gin. Gout. d'Orleans, c. i. § 1, art. 8, he 
 says that "it is the place where a person has established 
 the principal seat of his residence and of his business." 
 
 Voet (a) defines domicilium as follows : — Proprie dictum 
 domicilium est, quo quis sibi constituet animo inde non 
 decedendi, si non aliud avocet ; and he quotes the definition 
 as given by Alfenus, who says it is the place where a person 
 has his residence ' and account-books, and from whence he 
 orders and manages his affairs ;(&) ubi quisque sedes et tabulas 
 habet, suarum rerum constitutionem fecit. 
 
 Van Leeuwen says, " Not the bare residence of a person, 
 which often only lasts for a time, as where any one on account 
 of serious illness removes out of the town, or for other 
 reasons lives beyond the town, but the fixed resolve to be 
 and continue in a place, without intention of returning, 
 constitutes his domicile."(c) 
 
 Vattel defined it to be " a fixed residence in any place, 
 with an intention to remain there always."(<^) 
 
 With this definition Story (e) justly finds fault. Few 
 people, if any, have an intention of remaining in one and 
 
 (o) Voet ad Pand, 5, 1, 94. 
 (6) Voet ad Pand., 5, 1,92. 
 
 (c) Kozte's Van Leeuwen, iii. 12, 9. 
 
 (d) Vattel, B. 1, oh. 19, § 22. 
 
 (e) Story's Conflict of Laws, § 43. 
 
64 OPINIONS OF GEOTITJS. [No. 
 
 the same place always. He says, " It would be more correct 
 to say that that place is properly the domicile of a person in 
 which his habitation is fixed without any present intention 
 of removing therefrom." 
 
 This definition is practically adopted by Phillimore, who 
 says that "domicile" is acquired "by residence at a par- 
 ticular place, accompanied with positive or presumptive 
 proof of an intention to remain there for an unlimited 
 time."(/) In his "Private Law among the Komans," the 
 same jurist defines "domicile" as "the spot on which a 
 person has fixed his permanent residence, and which he has 
 chosen as the abode of his family and himself; to which, 
 when he has left, he means in a short time to return ; from 
 which, during the continuance of his absence, he is a guest, 
 a traveller, an inmate, or a stranger, and on the ending of 
 his absence from which he is at home." (g) 
 
 Woolsey, in his "International Law," practically adopts 
 the view of Story.(A) 
 
 Dicey considers domicile as the place or country which is 
 considered by law to be a person's permanent home.(i) 
 
 Foote asserts that domicile may be most easily considered 
 as " the relation of an individual to a particular State, which 
 arises from his residence within its limits as a member of 
 its community."(ft) 
 
 In Dalloz, Repet. de Legis., domicile is defined to be the 
 place where a person's business is situated and where the 
 centre of his interests is. A distinction is there drawn 
 between what Foote calls the relation of the individual to 
 the State and the actual place of residence. 
 
 Windscheid, in his treatise on Eoman Jurisprudence, is of 
 the same opinion. 
 
 There are two different kinds of domicile, that of origin 
 and that of choice. The former is imposed upon an individual 
 
 (/) Phillimote's Law of Domicile, p. 13. 
 
 [g) Ibid. , Private Law among the Romans, p. 75. 
 
 (A) Woolsey's Intern. Law, p. 104. 
 
 (i) Dicey on Domicile, p. 1. 
 
 (h) Foote's Private Intern. Jurisp., p. 8. 
 
9-] OPINIONS OF GROTIUS. 65 
 
 by law, and is presumed to be his domicile until such time as 
 he has acquired another. 
 
 As regards the domicilium originis, it must be noted that 
 the domicile of a child is taken to be the same as that of 
 the parents. The domicile of origin of a child born on the 
 high seas or on a journey is the domicile of his parents.(7) 
 A child born in wedlock acquires the domicile of his father ; 
 an illegitimate child that of his mother.(m) 
 
 The domicile of birth of minors continues until they have 
 acquired a new domicile.(?i) 
 
 Persons not sui juris are deemed for the most part in- 
 capable of acquiring a new domicile until they do become 
 sui juris. Minors, lunatics, &c, therefore retain the domicile 
 of their parents or curators, and if these change their domi- 
 cile, the domicile of the child or ward is changed also.(o) 
 
 On the same principle the domicile of the wife is that of 
 her husband,(p) and a widow retains the domicile of her 
 deceased husband until she has acquired another. 
 
 The doctrine that the domicile of origin remains until 
 another domicile of choice is acquired at once brings us to 
 discuss the point how a change of domicile is effected. 
 
 A domicile of choice can be acquired only animo et facto. 
 There must be a concurrence (1) of residence and (2) of 
 intention to make it one's home before a change can be 
 effected. Mere residence without an intention of making it 
 the home of the party will be inoperative either for the 
 abandonment of a former domicile or for the acquisition of 
 another ; likewise as regards an intention of making a certain 
 
 (I) Vattel, 1, § 216. 
 
 (m) Cod. 10, tit. 31, 1. 36. 
 
 («) Story, p. 57. 
 
 (o) Hennings' Exors. v. The Master, J. 3, 235. Hennings was declared of 
 unsound mind in the Cape Colony, where she as well as her parents were 
 domiciled, although she was staying at the time in the Free State, where 
 she continued to live till the time of her death. The court decided that her 
 Colonial domicile remained unchanged, since she (Hennings) could not be 
 said to have changed her domicile, the element of intention being wanting 
 in one of unsound mind. 
 
 (p) Voet, 5, 1, 101. 
 
 E 
 
66 OPINIONS OF GEOTIUS. [No. 
 
 place one's home without residence.(g) In many cases, how- 
 ever, actual residence is not absolutely required. It is suffi- 
 cient, when a domicile has been acquired, that the absence 
 therefrom is not with any intention of remaining away per- 
 manently. In the case of Mason v. Mason the husband and 
 his wife were married and domiciled in the Cape Colony, but 
 they afterwards went to Natal. The husband was unsuc- 
 cessful in business there, and he sent his wife and children 
 back to the Colony. He then proceeded to the Orange Free 
 State, where he was rejoined by his family. Thence he 
 absconded after having got into difficulties. Under these 
 circumstances the court held that there was not such a 
 concurrence of residence abroad, and an intention to make 
 any particular place his home and to abandon his former 
 domicile, as to debar the wife from instituting an action in 
 the Cape Colony against her husband for divorce on the 
 ground of malicious desertion, (r) 
 
 If there is any doubt as to the acquisition of a new domicile, 
 the court will not presume an abandonment of the previous 
 one. He who alleges such change must prove it,(s) and it is 
 not sufficient that he merely proves that he intended to 
 abandon his last domicile; he must further prove that by 
 residence he had acquired a new one, animo manendi.(t) 
 Thus in the case of Hawkes v. Hawkes,(ii) the wife sued 
 her husband for divorce on the ground of adultery. The 
 parties were married in England, and came out to the 
 Colony with the intention of settling there. After a year's 
 residence the husband suddenly left again for England, 
 leaving his wife and child in the Colony. The adultery 
 was proved, and the husband was in default at the trial. 
 
 (q) Vide Voet ad Pand., 5, 1, 98. 
 
 (r) E. D. C. 4, 330. 
 
 (s) Voet ad Pand., 5, 1, 99. Digest, 50, 1, 27, § 2. 
 
 (*) To constitute a new domicile, there must not only be the factum of 
 residence in a place, but the animus manendi and the mere declaration of 
 intention to change a domicile, without any actual change of residence, 
 is inoperative to create a new domicile. Brown v. Smith, 15 Beav. 444. 
 21 L. J. Chanc. 356. 
 
 («) 2 J. 109. 
 
9.] OPINIONS OF GEOTIUS. 67 
 
 It was held that as he did not appear to object to the 
 jurisdiction of the court, it was not bound under the cir- 
 cumstances to inquire minutely whether he was domiciled 
 in the Colony or not, and the decree was granted. Likewise 
 in the case of Adams v. Adams,(x) the court granted leave 
 to the wife to sue her husband by edict for divorce on the 
 ground of malicious desertion, the husband having left 
 her four years previously and gone to the Transvaal, where 
 he was living in adultery. De Villiers, C.J., delivering the 
 judgment of the court, said, " In the case of Adams v. Adams, 
 which was argued yesterday, the court had some doubt 
 whether the summons could be served upon the defendant, 
 and whether he could be sued in this court ; but looking at 
 the petition, I find there is nothing to prove to the court 
 that the defendant has changed his domicile. What is said 
 is that he is resident in the Transvaal, and has been there for 
 some years ; but it does not follow that he has changed his 
 domicile from the sole fact that he has remained away for some 
 time.(y) The ordinary maxim is uhi uxor ibi domus — that is, 
 the supposition is that if a man leaves his wife behind, he 
 does not intend to change his domicile. Of course, it is com- 
 petent for the defendant to come into this court and set up 
 the defence that his domicile is not in this country, but the 
 court is not bound to presume that he has changed his 
 domicile." Mere length of residence does not constitute a 
 change of domicile, nor is the abandonment of the domicile 
 of origin easily presumed.(«) 
 
 (as) 2 J. 24. 
 
 (y) See also West v. Carpenter, 1. E. 434. 
 
 (z) Per Kotze, J., in Weatherley v. Weatherley (Kotze's Eeps., p. 76), 
 where he says, " It becomes necessary, therefore, to consider whether or 
 not the plaintiff, Colonel Weatherley (for under the circumstances of this 
 case the defendant's domicile is that of her husband) is actually domiciled 
 in this country. The facts bearing on this point are the following : — The 
 parties were married at Wingfield Church, near Windsor, England, in 1857. 
 From that time until the commencement of this suit, they cohabited to- 
 gether as man and wife. The petitioner, at the time of his marriage, was 
 a lieutenant in a cavalry regiment. After their marriage, Colonel and Mrs. 
 Weatherley went to India, and afterwards returned to England. They had 
 
68 OPINIONS OF GEOTIUS. [No. 
 
 In the case of Udny v. Udny,(a) Lord Westbury said, 
 " Domicile of choice is a conclusion or inference which the 
 law derives from the fact of a man fixing voluntarily his 
 
 (a) L. E. 1 H. L. Sc. 458. 
 
 a house of their own at Brighton. The plaintiff is a director of the Eerste- 
 ling Gold Mining Company, formed in England for the purpose of carrying 
 on operations in the district of Zoutpansberg, in the Transvaal. He left 
 England in 1875 for the Transvaal, chiefly with the view of looking after 
 the affairs of the Company, and partly also with the view of economising. 
 The house at Brighton, at the time of their departure from England, still 
 belonged to Colonel Weatherley, and Mrs. Weatherley left remaining in 
 this house her Indian collection, plate, library, and other articles. They 
 arrived in the Transvaal together with their two sons, Paulet and Rupert, in 
 January 1876. The Colonel purchased a house in Pretoria, which has, how- 
 ever, since been advertised for sale. For the last three years he has been 
 residing in this territory with his family, but carried on no business or 
 occupation of his own. He has endeavoured to obtain employment in this 
 country in a military capacity, but without success, until recently. After 
 he determined to take proceedings for divorce, he was commissioned by 
 Lord Chelmsford to raise a body of volunteers for service against the 
 Kafirs. These volunteers are to serve under Colonel Weatherley for the 
 period of six months. Colonel Weatherley's intention to return to England 
 is indefinite, and he does not know what he will do at present, except re- 
 main here. This is what he says himself : ' When I left England, I came 
 here only for a few months. I had not the slightest intention of staying 
 here longer. I hope to go back, but I cannot say when exactly. I have 
 every reason to expect that I shall stay here for some time to come.' The 
 petitioner's eldest son, who is eighteen years of age, says : ' When my father 
 left England, he came out, I believe, to superintend proceedings at the 
 Eersteling mine. I believe he also came with a view to economising. I 
 believe my father intends to go back to England as soon as prospects turn 
 out favourably at home.' The view that Colonel Weatherley came out 
 partly to economise is supported by the fact that the house at Brighton 
 has since been sold, together with the heavy furniture, to pay debts. Mrs. 
 Weatherley has also stated that her husband left England for six months 
 only. She was averse to it at first, but at last consented to accompany her 
 husband to Africa. Colonel Weatherley came out, she states, to look after 
 the affairs of the Mining Company. She repeatedly expressed her wish to- 
 go back to England, and the Colonel on such occasions always replied that 
 the Secocoeni war had broken out, that he had obtained a concession for 
 the Company from President Burgers, and that when affairs got settled he 
 would be glad to go home himself. In a subsequent portion of her evi- 
 dence she says : ' Circumstances have made us stay longer than I thought 
 we had intended. The war with Secocoeni, the promised concession to the 
 Company, and various little matters, made us remain here longer than we 
 otherwise would have done.' The plaintiff left for Cape Town in May 
 
9.] OPINIONS OF GEOTIUS. 69 
 
 sole or chief residence in a place with the intention of con- 
 tinning to reside there for an unlimited time. This is a 
 description of the circumstances which create or constitute 
 a domicile, and not a definition of the term. There must 
 be a residence freely chosen, and not prescribed or dictated 
 
 1878, on a temporary visit, leaving his wife and sons in Pretoria. While in 
 Cape Town he wrote several letters to the defendant. In a letter dated 
 16th June 1878 he writes to Mrs. Weatherley: ' Don't buy a mattress for 
 me, for our movements are uncertain ; ' and in the same letter, speaking of 
 the high cost of living in the Transvaal, he says : ' A thousand a year down 
 here would go as far as three up there. All I want, dear, is our concession, 
 &c, and be off. It is not a country for a lady or gentleman either.' The 
 evidence in this case clearly establishes that Colonel Weatherley left Eng- 
 land with no intention of settling down in the Transvaal, or of making this 
 country his fixed and permanent home. Does there then exist anything 
 to show that his original intention of remaining here only for a time has, 
 since his arrival in the country, become changed into a fixed intention of re- 
 maining here permanently, of making the Transvaal his home 7 I think 
 not. The fact that he has been residing here for three years and has 
 bought a house, since advertised for sale, per se proves nothing, for mere 
 length of residence does not constitute a change of domicile, nor is the 
 abandonment of the domicile of origin for a new domicile of choice easily 
 presumed. It is true that the Colonel at one time endeavoured to obtain 
 military employment here, but in this he failed. His letters to his wife, 
 written from Cape Town, show that he also hoped to get military employ- 
 ment in the Cape Colony, but without success. He is recruiting volunteers, 
 but only to serve for the limited period of six months. His residence in 
 the Transvaal for three years, instead of six months, is explained by a 
 variety of circumstances, viz., change of Government, the war of the Kafir 
 chief, Secocoeni, the unsettled state of the country where the Eersteling 
 Gold Mining Company, whose representative Colonel Weatherley is, carried 
 on their operations, the promised concessions, pecuniary difficulties, and 
 the like. He has frequently told Mrs. Weatherley that when affairs got 
 settled he would be glad to go home ; and in the letter of June 16, written 
 before any proceedings for divorce were thought of, and consequently en- 
 titled to considerable weight, the Colonel writes to Mrs. Weatherley that his 
 movements are uncertain, and all he wants is ' our concession and be off,' 
 i.e., to depart from the country. It seems to me from this evidence that 
 circumstances have made Colonel Weatherley remain in this country longer 
 than he originally intended ; that it is not his desire to make this his home 
 or to settle down here, and although he is at present obliged to remain in 
 the country, there exists the animus revertendi, to be carried out as soon as 
 a suitable opportunity offers. I can come to no other conclusion, therefore, 
 than that Colonel Weatherley has not abandoned his English domicile of 
 origin, in will and in deed, for a new domicile of choice, freely and volun- 
 tarily chosen, in the Transvaal." 
 
70 OPINIONS OF GEOTIUS. [No. 
 
 by any external necessity, such as the duties of office, the 
 demands of creditors, or the relief from illness ; and it must 
 be a residence fixed, not for a limited period or particular 
 purpose, but general and indefinite in its future contempla- 
 tion." The case was a very strong one, and the Scotch 
 court held that under the following circumstances there 
 had been no change of domicile. The domicile of origin of 
 Colonel Udny was Scotch. In 1812 he married, and leased 
 a house for a long period in London, in which he resided 
 with his family till 1844. Although he frequently visited 
 Scotland, he never resided there. During that time he in- 
 tended completing Udny Castle in Scotland, and was also 
 appointed a Scotch magistrate. His predilection for the 
 turf was the main influence for his choice of London as his 
 residence. In 1844 he had to quit London, owing to the 
 pressure of his creditors. He went to Boulogne, in France, 
 and sold his London residence. Under these circumstances 
 the Scotch court held that Colonel Udny had never changed 
 his domicile of origin, notwithstanding his residence in 
 London for thirty-two years. In the House of Lords this 
 question was not touched upon, for it was there held that 
 even if Colonel Udny had acquired an English domicile 
 upon his leaving for Boulogne, his domicile of origin re- 
 operated. Lord "Westbury seemed to think that Colonel 
 Udny had acquired an English domicile under the circum- 
 stances as above set forth. Lord Chelmsford, on the other 
 hand, thought that during the whole of Colonel Udny's long 
 residence in England, there was always wanting the inten- 
 tion of making it his permanent home, and that residence 
 alone, however long, was wholly immaterial, unless coupled 
 with such intention. 
 
 In doubtful cases, the law will always presume in favour 
 of a retention of the domicile of origin, and slighter evidence 
 will be required to warrant the conclusion that a man in- 
 tends to abandon his acquired domicile, and to resume his 
 domicile of origin, than will be necessary to justify the 
 conclusion that he means to abandon his domicile of origin 
 
9.] OPINIONS OF GEOTIUS. 71 
 
 for one of choice; (b) and for the same reason it requires 
 stronger and more conclusive proof to justify the court in 
 deciding that a man has acquired a new domicile in a foreign 
 country than in one where he is not a foreigner, (c) But 
 the strongest intention of abandoning a domicile, and actual 
 abandonment of residence, will not deprive a man of that 
 domicile, unless he has acquired . another, (d) Where a 
 domicile is alleged to have been acquired, the onus of proof, 
 to be deduced from all the circumstances and facts of the 
 case, lies on the person who alleges the acquisition of the 
 new domicile, (e) 
 
 The change of domicile must be voluntary, or, in the words 
 of Lord Westbury above quoted, " there must be a residence 
 freely chosen, and not prescribed or dictated by any ex- 
 ternal necessity, such as the duties of office, the demands of 
 creditors, or the relief from illness." Therefore, students 
 pursuing their studies abroad retain their domicile of origin. 
 The same rule is applicable to 
 
 Prisoners. 
 
 Ambassadors. 
 
 Lunatics. 
 
 Consuls. 
 
 Invalids. 
 
 Persons in military and naval service. 
 
 Exiles. 
 
 Ecclesiastics. 
 
 Officials. 
 
 Servants. 
 
 As regards exiles, however, Phillimore thinks that an exile 
 for life loses his domicilium originis. 
 
 The position of officials is not quite settled, and the non- 
 acquisition of a new domicile will depend very much upon 
 the nature of the appointment. If the office or service is 
 of such a nature that the official's abode is rendered un- 
 certain by reason of his being liable to be removed to 
 another place, it would be inconsistent with the established 
 
 (6) Lord v. Colvin, 4 Drew, 366 ; 5 J. (N.S.) 351 ; 32 L. T. 377. 
 
 (o) Ibid. 
 
 \d) Forbes v. Forbes, Kay, 341 ; 2 Eq. R. 178 ; 18 Jur. 642. 
 
 (e) Burge on Col. and For. Laws, cap. 1, Maxwell v. M'Clure, 6 Jur. 
 N.S. 407 ; 2 L. T. N.S. 65 ; also Crookenden v. Fuller, 1 S. & T. 441 ; 5 Jur. 
 N.S. 1220. 
 
72 OPINION'S OF GROTIUS. [No. 
 
 definition of domicile to regard him as having acquired a 
 new domicile, and to have abandoned the old.(/) 
 
 Speaking of the domicile of servants, Voet thinks that 
 their domicile is the domicile of their masters, and that they 
 obtain a competent forum there ; " for," says he, " male and 
 female servants, although they may be free, and let their 
 services to us for wages, and are not completely bound 
 to us, yet we can hardly say that they retain their own 
 domicile, because experience teaches us that they usually 
 leave it with the intention of not returning to it." (5) 
 According to Phillimore, the question depends almost en- 
 tirely on the circumstances of each case. If a servant re- 
 sides for a long time in one place in the employ of several 
 masters, and collects his earnings and goods there, the legal 
 presumption would be that the domicile of origin had 
 been abandoned, and a new one acquired. If he, however, 
 returns at intervals during his term of service to the 
 place of his birth, and deposits his savings there, the con- 
 clusion must be that he has not abandoned his domicile of 
 origin. 
 
 Ambassadors and consuls retain their domicile of origin. 
 They will, however, be liable to the civil jurisdiction of the 
 foreign courts if they engage in business as merchant 
 traders, &c. (h) 
 
 We have discussed the meaning of the word " domicile," 
 and the manner in which it could be changed. We have 
 now to consider the effects of the law of domicile in relation 
 to minors, to marriage, to divorce, to testate and intestate 
 succession, to contracts, to foreign judgments, and to bank- 
 ruptcy. 
 
 "The status of a person is determined by the law of 
 his domicile" is an accepted rule of private international 
 law. In treating of the effects of the law of domicile with 
 
 (/) Voet, 5, 1,98. VanLeeuwen, Cens. Foretis., par. 1. lib. 3, c. 12. Burge 
 on Col. Laws, u. 1 . 
 (g) Voet, 5, 1, 96. 
 (h) Woolsey's Intern. Law, § 96. Vide Grotius, Opinion No. 1, § 7. 
 
9-] OPINIONS OF GEOTIUS. 73 
 
 reference to the subjects above mentioned, we shall very 
 frequently have to use the word status. It therefore 
 becomes of great importance to see exactly what is meant 
 by the term. 
 
 A definition of the word cannot easily be given, since 
 most writers on international law employ the term without 
 attempting any definition. 
 
 In Eoman law the term indicated the position of a person 
 vested with rights and duties. A full Eoman citizen had to 
 possess the status libertatis, civitatis et familial, which was 
 called the tria capita. In brief, it might have been called 
 the law of inequality, classifying men into freeborn and 
 slaves, citizens and aliens, equals and unequals. All the 
 forms of status taken notice of in the law of persons were 
 derived from, and to some extent are still coloured by, the 
 powers and privileges anciently residing in the family. If 
 then we employ status, agreeably with the usage of the best 
 writers, to signify these personal conditions only, and avoid 
 a PPlyi n g the term to such conditions as are the immediate 
 or remote result of agreement (for the word has a secondary 
 significance of some disability, which is attached to it in 
 connection with the law of contract), we may say that the 
 movement of the progressive societies has hitherto been 
 from status to contract.(i) 
 
 Savigny(y) considers the status of a person as equivalent 
 to his " capacity to have rights and capacity to act," whilst 
 Story (Jc) uses the words " capacity, state, and condition," and 
 quotes as examples, minority, emancipation, and power of 
 administration of one's own affairs. Woolsey(Z) uses the 
 expression "jural capacity," and gives citizenship, minority, 
 legitimacy, lunacy, the validity of marriage, the legal capacity 
 of a married woman, as examples. Wheaton does not employ 
 the word status, but uses in its place the words " civil con- 
 
 (i) Maine's Ancient Law, p. 170. 
 (j) Private International Law, § 362. 
 (k) Conflict of Laws, § 51. 
 (I) International Law, § 74. 
 
74 OPINIONS OF GKOTIUS. [No. 
 
 dition and personal capacity," giving as examples (m) " those 
 universal personal qualities which take effect either from 
 birth, such as citizenship, legitimacy, and illegitimacy; at 
 a fixed time after birth, as minority and majority ; or at an 
 intermediate time after birth, as idiocy and lunacy, bank- 
 ruptcy, marriage, and divorce, ascertained by the judgment 
 of a competent tribunal." 
 
 There are several very important exceptions to the rule 
 that the lex domicilii is to determine in regard to personal 
 status and jural capacity.(«) These exceptions arise from 
 the natural unwillingness of nations to allow laws to have 
 force in their courts which are opposed to their political 
 systems, or to their principles of morality, or their doctrine 
 of human rights. 
 
 (1.) One of these is, that if a person suffers in his status 
 at home by being a heretic, a country which regards such 
 a reason as immoral, and perhaps is of the same religion 
 with the heretic, cannot permit his lex domicilii in this 
 point to have any effect in its courts, but applies its own 
 law. 
 
 (2.) Where the laws forbid or limit the acquisition of 
 property in mortmain or by religious houses, the ecclesi- 
 astical foundations of another land may be affected by 
 such limitations. On the contrary, in a state which has 
 no such laws, religious corporations which at home he 
 under restrictive legislation may be exempt from it. 
 
 (3.) A man passing • from a country where polygamy has 
 a jural sanction into a state under Christian law can obtain 
 no protection for his plurality of wives; the law, not of 
 his domicile, but of the place where the judge lives must 
 govern. 
 
 (4.) " So in a state where negro slavery is not tolerated, 
 a negro slave sojourning there cannot be treated as his 
 master's property, — as destitute of jural capacity." And 
 this for two reasons: "Slavery, as a legal institution, is 
 
 (m) International Law, § 84. 
 
 (n) Woolsey's International Law, § 74. 
 
9.] OPINIONS OF GEOTIUS. 75 
 
 foreign to our polity, is not recognised by it ; and at the 
 same time, from our point of view, it is something utterly 
 immoral to regard a man as a thing." So Savigny. To the 
 same purport Foelix says : " Onne recommit pas aux Strangers 
 le droit d'amener des esclaves et de les traiter comme tels." 
 And to the same effect Heffter: "No moral state can endure 
 slavery. In no case is a state bound to allow the slavery 
 which subsists in other although friendly lands to have 
 validity within its borders." 
 
 It is to be observed, however, in regard to applications of 
 foreign law which the moral sense or political principles of 
 a nation reject, that questions growing out of a status which 
 cannot be recognised by the courts, if they do not affect the 
 personal capacity itself, may be decided according to the 
 foreign law. Thus a contract relating to the sale and 
 purchase of slaves might be held legal, if legal in the 
 domicile of the contracting parties ; and it is probable that 
 the children of a polygamist Turk by a second or third 
 wife would not be treated as bastards in all respects by 
 Christian courts. 
 
 Many disputed points would be settled if the rule that 
 status is decided by the law of the domicile were universally 
 accepted. Unfortunately this is not the case. The Continental 
 jurists insist more strongly than the English and American 
 writers on the observance of this rule; but the former 
 admit that there is a difference, as regards such observance, 
 between the actual qualities of an individual and the jural 
 effects of these qualities. Thus the question as to the validity 
 of a marriage is to be decided according to the law of the 
 domicile of the parties, but the rights and restrictions of a 
 married woman are among the juridical effects, and cannot 
 therefore be judged according to the law of the domicile. 
 
 The consequence of this is that the rule above quoted is of 
 little practical importance when we wish to apply it univer- 
 sally. A set of special rules have, however, come into exist- 
 ence to determine questions of status which arise under the 
 different heads of minority and majority, marriage, divorce, 
 
76 OPINIONS OF GROTIUS. [No. 
 
 succession, &c. It will, therefore, be more convenient to 
 consider each branch by itself. 
 
 1. MINORITY AND MAJORITY. 
 
 These subjects are of importance, but the conflicts of laws 
 regarding them have become few in number, both by reason 
 of a series of very widely accepted decisions and of the 
 unanimity of the later jurists. In deciding questions arising 
 under this head, the court generally keeps in view the 
 following three rules : — 
 
 (1.) The acts of a person done or executed in the place of 
 his domicile in respect of property there situated are to be 
 judged by the laws of that place, and will not be allowed 
 to have any other legal effect or consequence than that 
 which they have in that place.(o) The exceptions to this 
 rule are when any country has a statutory or recognised 
 customary law in conflict with the law regulating the act at the 
 place of domicile. Under ordinary circumstances, therefore, 
 if a person has a certain capacity or suffers from a certain 
 legal disability to do an act by virtue of the provisions of 
 the law of his domicile, the validity of the act will be 
 decided according to such law, if it should ever be contested 
 in any other country. Thus an act done by a minor in 
 respect of his property or a contract entered into by him, 
 if valid by the law of his domicile, will be valid everywhere, 
 and if invalid there, it will be considered invalid everywhere 
 else. In the absence, as we have before said, of any positive 
 or implied contrary municipal regulations, this principle is 
 generally recognised by all civilised communities,^) — quando 
 lex in personam dirigitur, respiciendum est ad leges illius 
 civitatis, quce personam habet subjectam. 
 
 (2.) Another rule closely connected with the preceding 
 one is that the personal capacity or incapacity attached 
 
 (o) Burge, Col. and For. Law, p. 1, ch. 4. Story, Conflict of Laws, § 64. 
 (p) Hubems, De Conflict. Leg., lib. 1, tit. 3, § 12, 13, 15. 1 Hertii Opera, 
 De Collis. Leg., § 4, art 8. Story, Conflict of Laws, § 64. 
 
9 -] OPINIONS OF GEOTIUS. 77 
 
 to an individual by the law obtaining in the place of his 
 domicile is considered to follow him in every country, as 
 long as his domicile remains unaltered, even in respect of 
 transactions in a foreign country, where they might other- 
 wise be obligatory. 
 
 Voet says, " I think that the law, not of the place where 
 the contract or transaction was executed, nor the place 
 where the question of restitution is raised, but rather of the 
 domicile should be applied, whenever, in fact, in a question 
 whether a person is a minor or a major, it is the rule to 
 follow the law of the domicile, so that a person being con- 
 sidered a minor in the place of his domicile, he should be 
 considered a minor everywhere else, ei contra.' '(q) 
 
 Therefore, if a minor is deemed to be incapable to transact 
 any business by the law of his domicile, he will be deemed 
 incapable everywhere, both as regards transactions in the 
 place of his domicile and in every other place. 
 
 Thus, if a man marries a woman of the age of twenty-two 
 at the Cape without the consent of her parents, and were to 
 change his domicile to a place where the age of majority is 
 fixed at twenty-five (France, for instance), the marriage will 
 be considered valid there.(r) 
 
 The same rule will hold in respect of dispositions of 
 personal or movable property by any person who is a 
 minor or a major in the place of his domicile, for the validity 
 thereof will depend upon the law of the domicile wherever 
 such property may be situated, (s) 
 
 The reason for this rule is based on convenience, for it 
 would be extremely inconvenient for all nations to have a 
 perpetual fluctuation of capacity, state, and condition upon 
 every accidental change of place of the person or of his 
 movable property.(i) 
 
 (3.) The other rule is that, upon a change of domicile, 
 
 (q) Voet ad Pand., iv. 1, 29, in med. 
 
 (r) Huberus, De Conflictu Legum, lib. 1, tit. 3, § 12. 
 
 (s) Story, Conflict of Laws, § 66. 
 
 (t) Rodenburg, De Divers. Stat., tit. 1, c. 3, n. i. 
 
78 OPINIONS OF GROTIUS. [No. 
 
 the capacity or incapacity of the person is regulated by the 
 law of the new domicile. 
 
 In the case of Greefv. Verreaux(u) the court held that the 
 question whether the defendant, by a promise of marriage 
 which he was proved to have made to the plaintiff, and the 
 concubitus which in consequence had taken place, at a time 
 when he was under the age of twenty-five years, had created 
 such an obligation on him to marry the plaintiff as to en- 
 title her to enforce performance of it by the judgment of 
 the court, was one which must be decided by the law of 
 this Colony, as the lex loci contractus, without reference to 
 that of France, his forum originis. 
 
 As regards the second rule above quoted, there seems to 
 be a slight difference between the English and American 
 and the Continental jurists. According to the best estab- 
 lished decisions in the English and American courts, the 
 operation of this rule is restricted, and therefore, as to 
 acts done, and rights acquired, and contracts made in other 
 countries touching property therein, the law of the country 
 where the acts are done, the rights acquired, or the contracts 
 made will generally govern in respect of the status of the 
 person. (v) Speaking of this rule, Burge (x) says, "This 
 doctrine promotes, whilst that to which it is opposed is 
 inconsistent with, those principles of mutual convenience 
 which induce the recognition of foreign laws. The obstacles 
 to commercial intercourse between the subjects of foreign 
 states will be almost insurmountable if a party must pause 
 to ascertain, not by the means within his reach, but by 
 recourse to the law of the domicile of the person with whom 
 he was dealing, whether the latter has obtained the age of 
 majority, and consequently whether he is competent to 
 enter into a valid and binding contract. If the country in 
 which the contract was litigated was also that in which 
 it had been entered into, and if the party enforcing it were 
 
 (u) 1 Menz. 153. 
 
 (v) Story, Conflict of Laws, § 102. 
 
 (x) Burge on Col. and For. Laws, p. 1, ch. 4. 
 
9.] OPINIONS OF GEOTIUS. 79 
 
 the subject of that country, it would be unjust, as well 
 as unreasonable, to invoke the law of a foreign state for the 
 benefit of the foreigner, and to deprive its own subject of 
 the benefit of the law of his own state." 
 
 In other words, the lex loci celebrati contractus is to be 
 applied in such cases. The dictum in the case of Greef v. 
 Verreaux above quoted is based on this rule, and on reference 
 to the reported case, it will be seen how aptly the argument 
 of Burge applies where he holds that it would be unreason- 
 able to apply the lex domicilii originis where it would work 
 a great hardship as against a litigant suing for justice in 
 his own country. 
 
 2. MAEKIAGE. 
 
 We now come to the most important of the branches that 
 have been set aside for separate consideration — that of 
 MAEKIAGE. It would be difficult to conceive any more im- 
 portant set of rules than those which govern the validity 
 of marriages, the legitimacy of the offspring, and the conse- 
 quences of marriage; and therefore the rules applicable to 
 and affecting marriages contracted in a foreign country are 
 deserving of the greatest consideration. If international 
 law contained no rules to meet the case of foreign mar- 
 riages, the whole fabric of civilised society would be shaken 
 to the core; for a man may find, upon going to another 
 country, and thus changing his domicile, that his marriage 
 is invalid, that his children are illegitimate, that he has 
 committed bigamy or incest; whereas in the place of his 
 former abode he had contracted a valid marriage, or had 
 obtained an effectual judicial decree of divorce. The deli- 
 cacy of the subject alone is a sufficient plea for a full and 
 decisive body of rules, universally adopted, to govern and 
 regulate it. Nevertheless, this much-desired unanimity 
 does not exist, although the English and American jurists 
 have, as far as their courts are concerned, almost succeeded 
 in laying down a series of rules, embodied in a lengthy roll 
 
80 OPINIONS OF GKOTIUS. [No. 
 
 of decided cases, which will meet every case, and do away 
 with all former doubt and uncertainty. 
 
 As regards the validity of a marriage between two domiciled 
 subjects of a state, celebrated according to the law of their 
 domicile, there can be no doubt, for such marriage is con- 
 sidered valid everywhere. The difficulty, however, arises 
 when two persons domiciled in one state leave such state 
 and contract a marriage in a foreign country. Is the validity 
 of such marriage to be decided according to the lex domicilii 
 or the lex loci contractus ? Some jurists are in favour of the 
 lex domicilii, but by far the majority hold that the lex loci 
 contractus should prevail.^/) The old Boman-Dutch writers 
 were of opinion that the law of the place where the marriage 
 was celebrated should be applied, unless the parties had 
 actually left their domicile with a view of evading the pro- 
 visions of the law obtaining there ;(z) for this would be prac- 
 tising a deceit and fraud upon the laws of their country.(a) 
 
 The English law, as gathered from the decisions, seems to 
 adopt a middle course, for as regards marriages contracted 
 by British subjects, either in Scotland or Ireland or in any 
 foreign country, they are considered valid so far as the 
 manner or formality is concerned, provided they be made in 
 such form as is sufficient by the law of the place where con- 
 tracted ; (b) and the case appears to be the same even though 
 the parties eloped to that country on purpose to evade the 
 forms of marriage prevailing in England.(c) It is, however, 
 otherwise if the marriage itself is one prohibited by the laws 
 of the country, as in the case of one contracted with a 
 
 {y) Story, Conflict of Laws, § 122, 123, 124. 
 
 (s) Voet ad Pand., 23, 2, 4 ; 23, 2, 85. Paul Voet, De Stat., § 9 ch. 2, n. 
 9. Huber, i. 3. Van der Keessel, Thes. Sel., 39. 
 
 (a) The practical result of this doctrine must necessarily be very much 
 the same as that followed by the English courts in Brook v. Brook and 
 Simonin v. Mallac. 
 
 (6) R. v. Brampton, 10 East, 282. Scrimshire v. Scrimshire, 2 Hagg. 395. 
 Eorster v. Forster and Berridge, 4 B., and Smith, 187. 
 
 (c) Crompton v. Bearcroft, Bui. N. P. 113. Dalrymple v. Dalrymple, 2 
 Hagg. 52. 
 
9.] OPINIONS OF GKOTIUS. 81 
 
 deceased wife's sister, (d) In accordance with this view, the 
 marriage contract is divided into two parts : (1) the outward 
 form or the external formalities, and (2) the capacity of the 
 contractors; or, to put it in a different way, the marriage 
 contract is composed of forms and essentials. The forms are 
 decided according to the lex loci celebrati contractus, whilst 
 the essentials must be referred to the lex domicilii. 
 
 The four most important cases in connection with this 
 matter, as setting forth the manner in which the two divi- 
 sions of the marriage contract just referred to have been 
 applied in the courts of law, are Crompton v. Bearcroft,(e) 
 Brook v. Brook,(f), Simonin v. Mallac,(g) and Sottomayer 
 otherwise Be Barros v. Be Barros.QC) In the case of Cromp- 
 ton v. Bearcroft the court recognised the validity of Gretna 
 Green marriages, i.e., those marriages contracted by domiciled 
 Englishmen who go to Scotland for their marriage in order 
 to escape from the formalities of the English marriage 
 law, for only certain formalities, and not the essentials of 
 marriage, had been evaded. 
 
 In Brook v. Brook it was decided that the forms of entering 
 into a contract of marriage are regulated by the lex loci 
 contractus; the essentials of the contract depend upon the 
 lex domicilii. If the latter are contrary to the law of the 
 domicile, the marriage, though duly solemnised elsewhere, 
 is void. And the rule that a marriage, if good in the 
 country where it was contracted, is good everywhere, is 
 subject to the qualification that the marriage must not be 
 one prohibited by the country to which the contracting 
 parties belong. On these grounds the court held that a 
 marriage contracted by a man with his deceased wife's sister 
 (both being domiciled in England) in Denmark, where such 
 
 (d) Q. v. Chadwick, 11 Q. B. 173 ; Brook v. Brook, 9 H. and L. Ca. 193. 
 Stephen's Com. on the Laws of England, ii. 275. 
 
 (e) Bull. N. P. 114. 
 (/) 9 H. L. C. 193. 
 (g) 2 Sw. and Tr. 67. 
 
 (h) L. B. 2 P. D. 81 ; L. E. 3 P. D. 1. 
 
 P 
 
82 OPINIONS OF GKOTIUS. [No. 
 
 a marriage was valid, was null and void. This case is easily- 
 distinguished from that of Crompton v. JBearcroft. 
 
 In the ease of Simonin f.c. Mallac v. Mallac, the principle 
 was laid down that a marriage duly solemnised in England, 
 in the manner prescribed by the law of England, between 
 parties of full age and capable of contracting according to 
 that law, cannot be held null and void because the parties 
 to that marriage, being foreigners, contracted it in England 
 in order to evade the laws of the country to which they 
 belonged, and in which they were domiciled at the time. 
 Briefly the facts were as follows: — A. and B., domiciled 
 Erench subjects, of the respective ages of twenty-one and 
 twenty-nine, were married by license in England in June 
 1854. On the following day they returned to Paris. The 
 marriage was never consummated. In December 1854 a 
 decree was made by the Civil Tribunal of the First Instance 
 of the Department of the Seine, whereby this marriage was 
 annulled, on the ground that it had been celebrated without 
 the publication prescribed by the French law, and without 
 the parties having sought or obtained the consent of their 
 parents; and more especially that the parties, in crossing 
 to England, had a formal intention to evade the laws of 
 France. In 1857 A, came to reside permanently in England, 
 and in 1859 he petitioned the court to annul the said 
 marriage with B. B. was personally served with the citation 
 and petition at Naples and did not appear. The court enter- 
 tained the suit and held the marriage valid. Lord Campbell 
 quotes this case in Brook v. Brook, and says with reference 
 thereto, "The objection to the validity of the marriage in 
 England was merely that the forms prescribed by the Code 
 Napoleon for the celebration of marriages in France had not 
 been observed. But there was no law of France, where the 
 parties were domiciled, forbidding a conjugal union between 
 them, and if the proper forms of celebration had been ob- 
 served, this marriage by the law of France would have been 
 unimpeachable." The ratio decidendi is therefore the same 
 as that in Crompton v. Bearcroft. 
 
9.] OPINIONS OF GROTIUS. 83 
 
 In Sottomayer otherwise De Barros v. De Barros two natives 
 of Portugal, one of whom was domiciled in England, the other 
 in Portugal, contracted a marriage in England in 1866. 
 They were first cousins, and were incapable, according to the 
 law of Portugal, to contract a valid marriage, on account of 
 consanguinity, without Papal dispensation. The petitioner 
 (the wife) filed a petition praying that her marriage with 
 the respondent might be declared null and void. Held that 
 the lex loci contractus should prevail in the matter, and 
 the marriage being valid according to the law of England, the 
 court dismissed the petition. On appeal, however, the court 
 reversed the judgment of Sir E. Phillimore, who thought 
 himself bound by the case of Simonin v. Mallac, holding that 
 the personal capacities of parties to enter into the contract 
 of marriage depend upon their domicile, and where both 
 parties had a foreign domicile, and by the law of their domi- 
 cile their marriage was invalid by reason of consanguinity, 
 a marriage which was contracted in England, and which 
 would have been valid according to the English law, was 
 invalid. 
 
 The converse to the case of Crompton v. Bearcroft, namely, 
 that a marriage invalid according to the lex loci celebrationis on 
 account of the non-observance of certain formalities required 
 there, will be considered invalid in every other country, 
 although the formalities of such other country may have 
 been observed, is not universally and generally followed. 
 Eor whenever there is a local necessity, from the absence of 
 laws, or from the presence of prohibitions or obstructions in 
 a foreign country, not binding upon other countries, or from 
 peculiarities of religious opinion and conscientious scruples, 
 or from circumstances creating exemption from the local 
 jurisdiction, marriages will be considered to be valid accord- 
 ing to the law of the native or of the fixed actual domicile.(i) 
 
 (i) Story, Conflict of Laws, § 79 and 119, where he quotes a case of 
 Ruding v. Smith, 2 Hagg. Consist. R. 390, from the Cape of Good Hope. 
 Vide also Harford v. Higgins, 2 Hagg. Consist. E. 423, and the judgment 
 there delivered by Sir George Hay. 
 
84 OPINIONS OF GEOTIUS. [No. 
 
 In the Transvaal the matter is in some respects set at rest 
 as regards the marriage in a foreign country of persons 
 domiciled there. The Marriage Ordinance (Act No. 3 of 
 1871, § 11) lays down that no marriage shall he considered 
 valid if both parties are resident within the state, and they 
 proceed to another state or country for the purpose of having 
 their marriage celebrated there before a minister of religion 
 or Government official, unless special permission has been 
 obtained to that effect from the State President, and the 
 requisite proofs of the celebration of the marriage have been 
 handed in to the Government Secretary of the state within 
 six months after the marriage has taken place. 
 
 To the established rule that a marriage validly contracted 
 in accordance with the formalities required by the lex loci is 
 valid everywhere, there is one great and important exception. 
 
 The courts of law of Christian countries will not re- 
 cognise so-called marriages which are celebrated contrary to 
 the spirit of Christianity and forbidden by Christian authori- 
 ties, amongst which are polygamous and incestuous marriages. 
 The rule as to the exception is, however, applied with diffi- 
 culty in some cases, for, as regards incestuous marriages, all 
 nations do not hold the same views, except as regards the 
 intercourse between ascendants and descendants, or between 
 brother and sister. Thus the marriage of a man with his 
 deceased wife's sister according to English law, or with his 
 half-sister (see Grot. Op. No. 2 of this work), would be in- 
 cestuous, whereas such marriage would be perfectly valid 
 according to the law of some other countries. 
 
 As regards polygamous marriages the decisions are fairly 
 unanimous. Thus in the case of Hyde v. Hyde,(k) Lord 
 Penzance in 1866 pronounced a Mormon marriage to be null 
 and void on account of the plurality of wives allowed by 
 Mormon customs. 
 
 The decision in Hyde v. Hyde seems, at first sight, to 
 conflict with the holding of the court in Brook v. Brook 
 (9 H. L. C. 193, 241), which established clearly the rule that 
 
 (lc) L. E. 1 P. and D. 130. 
 
9.] OPINIONS OF GEOTIUS. 85 
 
 a marriage contracted according to the lex loci is binding 
 everywhere. Upon examination, however, it will be found 
 that such is not the case. The difference lies in the Christian 
 interpretation of the term " marriage." According to Lord 
 Penzance — vide his judgment in Hyde v. Hyde — marriage in 
 a Christian sense must be defined " as the voluntary union 
 of one man with one wife, to the exclusion of all others." 
 Very much the same idea finds expression in the Marriage 
 Service as contained in the Book of Common Prayer — "Wilt 
 thou . . . forsaking all others, keep thee only unto her so 
 long as ye both shall live ? " 
 
 It is instructive to notice that in 1860, and therefore about 
 six years previous to the leading case of Hyde v. Hyde, the 
 Supreme Court of the Colony of the Cape of Good Hope 
 decided almost the same point of law in the same way in the 
 case of Bronn v. Frits Bronn's Uxecutors. (7) In that case 
 it was decided that a marriage celebrated according to 
 Mohammedan law, which allowed plurality of wives, is null 
 and void, and the children born during the so-called marriage 
 are illegitimate. Mr. Justice Watermeyer could not have 
 given a decision more in conformity with the rule established 
 by Hyde v. Hyde if that case had preceded instead of succeed- 
 ing the Colonial case. He says, " Marriage is said by jurists 
 to be a contract sui generis — so completely sui generis that 
 some of the most eminent have contended that it should 
 rather be called a ' status,' a civil institution, than a 
 contract. It is the union and cohabitation of one man 
 with one woman, to endure till the death of the first 
 ■dying, with the intention of having and rearing legitimate 
 offspring. It is based on consent between the individuals ; 
 it cannot be dissolved by such consent. . . . Where the con- 
 tract is cohabitation, not for life, but for a period long or 
 short, terminable at the caprice of the man, it is concubinage 
 and not marriage. Where the contract is with one woman, 
 the man so cohabiting with her having the right of in- 
 troducing three other women to his bed, with the dignity 
 
 (l) 3 s. 313. 
 
86 OPINIONS OP GEOTIUS. [No. 
 
 of equal wifehood, the intention of the first woman in 
 entering into this contract is not marriage, but likewise 
 concubinage." 
 
 The same rule was followed in the case of Nanto v. 
 Malgass, (m) where the court held that a native is not entitled 
 to damages from a person who has had carnal connection 
 with his wife, to whom he was married according to native 
 custom, which allows polygamy, for the so-called marriage is 
 merely concubinage and not binding. 
 
 The case of In re Bethell (n) was decided on the same 
 grounds. The facts of that case were, shortly stated, as 
 follows :(o) — Christopher Bethell, a domiciled Englishman, 
 took up his residence at Mafeking, in British Bechuanaland, 
 and there married a native girl named Teepoo, a member of 
 the Baralong tribe. The form of marriage gone through was 
 that which obtained among the Baralongs, which simply 
 consisted in the husband killing a sheep, buck, ox, or cow, 
 sending the hide and head to the bride's parents, and then 
 taking the girl to live with him. The marriage was then, 
 provided the consent of the bride's parents had been pre- 
 viously obtained, considered complete. According to Bara- 
 long custom a man may have more than one wife at one and 
 the same time, but the first wife is considered the principal. 
 There was at the time a Wesleyan church and minister at 
 Mafeking, but Bethell distinctly refused to be married in 
 church and expressly stated to the chief of the Baralong 
 tribe that he was a Baralong and wished to be married 
 according to Baralong custom. Bethell, in letters to his 
 friends, never spoke of Teepoo as his wife, or mentioned his 
 marriage, but he did allude to her as " that girl of mine." 
 The marriage between Christopher Bethell and Teepoo 
 according to Baralong custom took place in October 1883. 
 Bethell was killed in an engagement with the Boers in July 
 1884, and in August Teepoo gave birth to a female child of 
 which Bethell was the father. During his lifetime Bethell 
 
 (m) 5 Juta. 108. (m) 38 Ch. D. 220. (o) C. L. J. v. 182. 
 
9.] OPINIONS OF GKOTIUS. 87 
 
 was entitled to the revenue of certain estates in England 
 under his father's will, and at his death the estates were, in 
 terms of the will, either to be sold for the benefit of his child 
 or children, or, in case he left no children, they were to pass 
 to his elder brother. 
 
 Hence arose the question, to whom did the estates belong, 
 to the elder brother or the female child of Bethell? Mr. 
 Justice Stirling, before whom the case was heard, followed 
 the rule laid down in Hyde v. Hyde, and decided that the 
 Baralong union celebrated at Mafeking did not constitute 
 a marriage in accordance with English ideas, and was not 
 such a one as an English court would give effect to. 
 
 Courts of law have not yet decided whether under any 
 circumstances a marriage entered into with a man or woman 
 of a tribe which admitted polygamy and divorce at will, in 
 accordance with the customs and usages of that tribe, could 
 be recognised as valid. The intention of the parties should 
 be the test. If there is conclusive proof that the intention 
 of the husband was to take the woman as his one and only 
 wife, to the exclusion of all others, such marriage ought to be 
 considered valid and effectuaL(p) 
 
 In connection with this subject another point claims our 
 attention — the effect of a foreign marriage contract on the 
 •property of the spouses. This point is of very great import- 
 ance, for according to the different legal systems of different 
 countries, husband and wife stand in different relations as 
 regards the property possessed by them previous to or 
 acquired subsequent to their marriage. For instance, the 
 law of the matrimonial domicile may in this respect differ 
 from that of the domicile of origin, or of a subsequent 
 domicile of choice, or from that of the place where the 
 property is situated. The different claims of the matrimonial 
 
 (p) Bronn v. Frits Bronn's Exors. (3 S. 313), per Bell, J. , and Watermeyer, J. 
 Warrender v. Warrender (2 CI. and F. 488), per Lord Brougham; and see 
 the remarks of Stirling, J., in Hyde v. Hyde with reference to the case of 
 Connolly v. Woolrich. 
 
 The State v. Manoko (S. A. R.), C. L. J. x. 245. 
 

 88 OPINIONS OF GROTIUS. [No. 
 
 domicile, of the subsequently acquired domicile, and of the 
 lex loci rei sitce must be taken into consideration. 
 
 The three chief factors that have created this difference 
 are: (1.) The communio bonorum, which is recognised by 
 some legal systems and rejected by others. (2.) The exist- 
 ence of ante-nuptial and post-nuptial contracts. (3.) The 
 rule or maxim of the jurisprudence of certain countries that 
 as regards immovables the lex loci rei sitce must be followed 
 exclusively. 
 
 There is a great divergence of opinion among the jurists 
 who have treated of this subject. Story is of opinion that 
 if there is an express contract between the intended spouses 
 respecting their rights and property, present and future, the 
 contract will be valid everywhere as regards the movable 
 property. If the future rights and property were not taken 
 into consideration, the property acquired subsequent to a 
 change of domicile will be regulated according to the law of 
 such domicile. If there is no express contract, the law 
 of the matrimonial domicile will govern as to all the rights 
 of the parties to their present and future property in that 
 place, and as to all personal property everywhere. Immov- 
 able property will be regulated by the lex rei sitae. {q) Burge 
 is of the same opinion.(r) 
 
 Savigny (s) and Phillimore (t) maintain that both personal 
 and immovable property must be regulated according to the 
 law of the matrimonial domicile. The Colonial courts have 
 followed the views of Savigny and Phillimore, basing their 
 decisions on the authority of Voet,(w) who says : " If at the 
 beginning of the marriage, according to the law of the 
 domicile of the husband, universal communion of goods 
 between the spouses was introduced, or, to take the other 
 view, was excluded, and then, after a lapse of time, through 
 
 (2) Story, Conflict of Laws, § 183-186. 
 (r) Burge on Col. and For. Law, pt. 1, ch. 7, § 8. 
 (s) Savigny, § 24. 
 (t) Phillimore, § 445. 
 
 (u) VoetadPand., 23, 2, 87. See also Grotius' Opinion No. 14 (Holl. Cons, 
 iv. 22), pp. 138-140 (infra), and Opinion No. 33 (Holl. Cons. 3, b. 151 infra). 
 
9.] OPINIONS OP GKOTIUS. 89 
 
 change of mind, the spouses change their domicile to another 
 place — for instance, if they should go from Holland to 
 JFriesland, where opposite effects of marriage obtain by 
 law, and only the communion of acquisitions is intro- 
 duced by marriage — that removal of itself alone cannot 
 alter the communion of goods once introduced, but in the 
 new domicile that will remain which was introduced, and 
 that will continue excluded . which was first excluded, for 
 removal cannot change the contracts made before marriage." 
 
 Thus in the case of Blatchford v. Blatchford's Executors (x) 
 the Supreme Court of the Cape of Good Hope decided 
 that the law of the domicile of marriage will prevail to 
 regulate the rights of the spouses in regard to property 
 acquired in the Colony by persons married elsewhere, but 
 who have subsequently removed to the Colony animo re- 
 manendi and the communio acguoestuum is not introduced by 
 change of domicile to the Colony, where at the domicile of 
 marriage no community existed between the spouses. 
 
 Likewise in the case of In re Estate of Barnes, (y) Smith, 
 J., held that where by the law of the domicile of the marriage 
 no community of property between the spouses exists, the 
 subsequent change of domicile to the Colony does not in- 
 troduce community in regard to immovable property acquired 
 and situated within the Colony. Two other cases decided on 
 the same grounds are Black v. Black's Executors (z) and 
 Aschen's Executrix v. Blythe.(a) In the former case, Black 
 and his wife were married in Scotland in community of 
 property as understood by the Scotch law in 1825. Sub- 
 sequently they became domiciled at the Cape of Good Hope. 
 Mrs. Black died, intestate. Black subsequently died, leaving 
 a will in which he disposed of all the immovable property to 
 other persons than the children of the marriage. Upon the 
 children claiming one-half of the joint estate as it existed at 
 the time of the death of their mother, it was held that the 
 
 (x) R. 1, 3, and E. D. C. 1, 365. 
 (y) 1 E. D. C. p. 5. 
 (z) J. 3, 200. 
 (a) J. 4, 136. 
 
90 OPINIONS OF GKOTIUS. [No. 
 
 law of the matrimonial domicile must regulate the rights of 
 the wife, and after her death of her children as her heirs ab 
 intestato, and that by that law they were not entitled to one- 
 half of the joint estate. 
 
 Although, as above set forth, the rights of the spouses 
 acquired by the law of the matrimonial domicile will be 
 ubiquitous (as expressed by Watermeyer, J., in Blatchford v. 
 Blatchford's Executors), yet these rights will not prevail as 
 against a positive prohibition by the law of the country 
 where the property is situated and whither the parties have 
 removed. Thus the law of South Africa, where the Placaat 
 of the Emperor Charles V. of 1540, § 6, still obtains, will 
 not allow the wife to claim any preference under a deed of 
 hypothecation granted to her by her husband at the time of 
 marriage, in security of her marriage settlement over the 
 concurrent creditors on his estate, and any preference given 
 to her at the time when he contemplated the sequestration 
 of his estate will be considered an undue preference in case 
 of insolvency.(fi) 
 
 With respect to the effects of a marriage contract, it may 
 also be remarked that if a woman who has property in one 
 country marries a man in another where community of 
 property obtains, all her property will go in communionem 
 bonorum, and will be subjected, with respect to such com- 
 munity, to the laws of the matrimonial domicile. "The 
 reason for this is," says Grotius, " that the custom as to the 
 marital power primario disponit de persona et secundario de 
 bonis " (Opinion No. 14 in this work, Holl. Cons. iv. 22). 
 
 3. DIVORCE. 
 
 Having considered the law as to foreign marriages, we 
 naturally come to the subject of divorce, in order to see how 
 far the courts of one country will recognise a dissolution of 
 a marriage decreed by the courts of another, where the 
 spouses are or were domiciled in the former or had been 
 
 (4) Thurburn v. Steward, Buc. 1869, p. 95, and 7 P. C. (N.S.) 333. 
 
9.] OPINIONS OF GKOTIUS. 91 
 
 married there. The question might be treated as falling 
 under the heading of "Jurisdiction," for we shall have to 
 consider what forum ought to take cognisance of the ques- 
 tion of divorce — the forum of the matrimonial domicile, of 
 the subsequent domicile of the spouses, of the place of bona 
 fide residence, of the domicile of the husband only, or of the 
 wife only, or of either ; but it will be more advantageous to 
 treat of the matter here. 
 
 The Eoman-Dutch lawyers have not touched on the sub- 
 ject, nor have they laid down any rules of procedure for the 
 courts in decreeing the dissolution of foreign marriages. 
 
 In Lolly's case,(e) decided'in 1812, followed by McCarthy 
 v. JDecaix, decided in 1831, the English courts held that it 
 was not competent for a foreign tribunal to dissolve an 
 English marriage, although the spouses were at the time 
 actually domiciled in such foreign country. This is certainly 
 a very extreme and exclusive position to take up, and the 
 English courts have since that time modified their views 
 very much indeed. Thus Niboyet v. Niboyet,(d) Wilson v. 
 Wilson,(e) and Shaw v. Gould,(f) restrict the judgment in 
 the previous cases, and have laid down that the courts of a 
 foreign country have power to dissolve a marriage contracted 
 in England between English subjects, provided the parties 
 were at the time actually and bona fide domiciled in such 
 foreign country. In Harvey v. Farnie(g) the facts were as 
 follows : — A domiciled Scotchman married an Englishwoman 
 in England. The spouses, upon the completion of the cere- 
 mony, went to Scotland and established their home there. 
 Two years later the wife obtained a divorce in Scotland by 
 reason of her husband's adultery — a cause not recognised as 
 sufficient under English law, and yet it was held that the 
 divorce was effectual and entitled to recognition every- 
 where. 
 
 (c) 1 Buss, and Ry. 237 ; 2 Euss. and Ey. 614. 
 
 (d) L. E. 3 P. Div. 57. 
 
 (e) L. B. 2 P. Div. 442. 
 (/) L. E. 3 H. L. Cas. 55. 
 {g) L. R. 8 App. Cas. 43. 
 
92 OPINIONS OF GROTIUS. [No. 
 
 But can a. divorce be sued for in a country where the 
 spouses have a bona fide residence short of actual domicile, 
 and will a divorce granted under those circumstances be 
 recognised as effectual by the courts of the matrimonial 
 domicile ? In answering these questions the authorities are 
 certainly not consistent. The English law, as interpreted by 
 the courts of justice in England, incline to a negative 
 answer, although no direct decisions have been given on 
 this point, and the question has been left open whether 
 bona fide residence short of domicile will entitle a foreigner 
 to sue for a divorce in the English courts ; (h) but it seems 
 fairly definitely decided that if the matrimonial domicile is 
 English, and the actual domicile English, a divorce granted 
 by a foreign court will not be effectual in England.(i) 
 
 In the United States of America the courts require actual 
 domicile in such eases.(&) 
 
 There are two ways of looking at a divorce — it may be 
 considered either in the light of a personal wrong or in the 
 light of status. 
 
 The doctrine of the English law is based upon the principle 
 that divorce operates as a change of status, and that therefore 
 foreign tribunals cannot grant a divorce of English subjects 
 who have no civil domicile in such foreign country. 
 
 The Scotch law is perfectly clear. A person who has 
 remained in Scotland for a sufficient length of time (forty 
 days) to found ordinary civil jurisdiction is entitled to sue 
 for a divorce in the Scotch courts. (I) This doctrine is 
 based upon the right of the Scotch courts to redress any 
 personal wrong-. 
 
 Coming to Eoman-Dutch law, we may observe that, as 
 regards personal wrongs, it is clearly established that bona 
 fide residence is sufficient to found jurisdiction in order 
 
 (h) Le Sueur v. Le Sueur, L. R. 1 P. Div. 142. Wilson v. Wilson, supra, 
 (i) Niboyet v. Niboyet, in appeal L. R. 4 P. Div. 1. Manning v. Manning, 
 L. R. 2 P. and M. 223. 
 
 (£) Story, Conflict of Laws, § 230a. Bishop, vol. ii. § 141. 
 (I) Erskine, Instit., Bk. 1, tit. 2, § 20, m notis. 
 
9.] OPINIONS OF GEOTIUS. 93 
 
 to claim redress.(m) It is true that Eodenburg lends his 
 support to the view that divorce is pre-eminently a matter 
 of status, and must be referred to the lex domicilii. This 
 doctrine is, however, distinctly denied by Voet.(m) 
 
 In the case of Weatherley v. Weatherley ,{p) Kotze, C.J., 
 reviewed at great length the different authorities in con- 
 nection with this matter, and held that on the ground of 
 public policy the court of the domicilium habitationis should 
 exercise jurisdiction in matters of divorce. This case is the 
 first direct South African decision on this point. In the 
 case of Beeves v. Reeves, in 1 Menz. 246, reference is made 
 to the case of Newberry v. Newberry, not reported, by which 
 an English marriage was dissolved by the late Court of 
 Justice at the Cape, on the ground of adultery committed at 
 sea, although the parties merely touched there as passengers 
 in the course of their voyage to England. 
 
 As regards the forum domicilii of the wife, this is taken 
 to be that of the husband, whether she be at the time 
 actually resident there or not, and this for the trial of all 
 questions, not only arising between herself 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 relation as husband and wife.(_p) 
 
 If the husband deserts his wife at their domicile, and 
 there is no clear proof that he has acquired a new domicile 
 of choice, the law will not presume such change, but will 
 rather admit the presumption that his absence is temporary, 
 and that he intends to return (ubi uxor ibi domus), and the 
 wife will be entitled to sue him before the tribunal of the 
 country in which she had been thus left for a restitution of 
 
 (m) Van der Keessel, Thes. Sel., 30, 42. Huber, Prselectiones it, De 
 Conn. Leg., § 2. Bynkershoek, De Foro. Legatorum, cap. 3. Voet ad Pand. 
 de Statutis, 1. 1, 8. 
 
 (m) Ad Pand. de Stat., 1, n. 8. 
 
 (o) Kotze's Beps., p. 83. 
 
 (y) Per Menzies, J.,, in Beeves a. Beeves, 1 Menz. 249. Loots v. Loots 
 (Transvaal), in appeal, 1893. Voet, 5, 1, § 95, 101. Voet, 23, 2, 40. Codex, 
 10, 39, 1, 9. 
 
94 OPINIONS OF GEOTIUS. [No. 
 
 conjugal rights or divorce,^) or to have a bigamous marriage 
 declared null and void.(r) 
 
 4. SUCCESSION, TESTAMENTARY AND INTESTATE. 
 
 With regard to this subject, the much desired unanimity 
 among jurists is also wanting. 
 
 The German jurists hold with Savigny that succession to 
 both movable and immovable property should be governed 
 by the law of the last domicile of the deceased. 
 
 Others, again, hold that the law of the place where the 
 property is found should prevail. 
 
 The middle course is adopted by the jurisprudence of 
 England, France, and the United States,(s) according to 
 which the movable property is subjected to the law of the 
 domicile of the deceased, and the immovable to that of the 
 situs. Thus in the case of JEnhoin v. Wylie (10 H. C. L. 
 1), where an Englishman had become domiciled in Eussia, 
 where he drew up his will and died, the English courts held 
 that the administration of the personal estate of the deceased 
 belongs to the control of the country where he was domiciled 
 at his death. All questions of testacy or intestacy belong to 
 the judge of the domicile, and he can appoint the executor 
 under the will. To the court of the domicile belongs the 
 interpretation and construction of the will, and the deter- 
 mination of the next of kin, and that court is the forum 
 concursus to which the legatees under a will or the parties 
 entitled to the distribution of an intestate estate are required 
 to resort. 
 
 Voet says that, as regards movables, these should be governed 
 by the law of the domicile of the owners ; but as regards im- 
 movables, it has been handed down to us that they are only 
 governed by the law of the place of situation.(£) In respect 
 
 (q) Adams v. Adams, J. 2, 24. Hawkes v. Hawkes, J. 2, 109. 
 (»■) Cunningham v. Cunningham, Buo. 1875, p.. 99. 
 (s) .Vide C. L. J. vol. i. p. 310. 
 {t) Voet ad Pand., 1, 4, P. 2, § 12. 
 
9.] OPINIONS OF GROTIUS. 95 
 
 of immovable property, Story says that the doctrine is clearly 
 established at common law that the law of the place where 
 the property is situated is to govern as to the capacity or 
 incapacity of the testator, the extent of his power to dispose 
 of the property, and the forms and solemnities to give the 
 will or testament its due attestation and effect; and he 
 proceeds to state that the great weight of authority is in 
 favour of this doctrine, (u) The same rules apply to intestate 
 succession. Thus the succession to movable property is regu- 
 lated by the law of the domicile of the deceased, and this law 
 will decide whether primogeniture gives any right of pre- 
 ference, whether a person is legitimate and entitled to succeed 
 or not ; (v) but as regards immovables, the lex loci rei sites, 
 prevails, and all questions pertaining thereto must be settled 
 according to that law,(w) according to the maxim mdbilia 
 segiuuntur personam ; immobilia situm. 
 
 Supposing, however, there is a difference between the laws 
 of a domicile where a will was made and the last domicile of 
 the deceased, the question arises — which law is to obtain ? 
 Story decides in favour of the law of the actual domicile, 
 holding that a will validly made according to the law of the 
 place where it was drawn up, but invalid according to the 
 law of another country, will be considered invalid if, at the 
 time of death, the testator had changed his domicile to such 
 country. In support of this view he quotes Voet, ad Pand., 
 b. 28, t. 3, § 12.(a;) Foote holds a more equitable opinion, 
 and says that it will be sufficient if the will is valid by 
 either law.(y) 
 
 5. FOREIGN CONTRACTS. 
 
 When considering this subject, it becomes clear that a 
 series of well-established rules is required in order to 
 
 («) Story, Conflict of Laws, § 474, 475, and authorities there quoted. 
 (v) Voet, ad Pand., 38, 17, 34. 1 Gail, Pract. Obser. 1. 2, obs. 12, n. 18. 
 Sande, Deois. Fris., 1. 4, t. 8, def. 7. Story, 481-483. Opinion No. 33 infra, 
 (w) Cf. In re Bethell, quoted above. Voet, 1, 4, P. 2, § 3. 
 (x) § 473. 
 (y) P. 184. 
 
96 OPINIONS OF GEOTIUS. [No. 
 
 obviate all mercantile inconveniences which would other- 
 wise arise, and to promote commerce and free commercial 
 intercourse between the domiciled subjects of different 
 countries. For a contract may be drawn up in one country 
 between domiciled subjects of another, to be executed in a 
 third, whilst payment is to be made in a fourth. 
 
 It will be sufficient if the main rules are here given 
 according to which these contracts are adjudicated upon, 
 together with the best authorities, and the South African 
 cases upon the subject. 
 
 (1.) As a general rule, the validity or invalidity of a 
 contract is to be decided according to the law of the country 
 where the contract is entered into.(a) 
 
 If the performance of the contract is to take place in 
 another country, the law of the place of performance is 
 to govern, and likewise if a foreigner enters into a contract 
 in another country where the performance is to take place, 
 the lex loci contractus, and not the law of the forum, originis, 
 will govern. (6) 
 
 It is therefore absolutely necessary that the forms and 
 rules prescribed by the lex loci contractus should be com- 
 plied with, failing which the contract will be considered 
 invalid. 
 
 The nature, obligation, and interpretation of the contract 
 will be governed by the law of the place where the contract 
 is entered into. Locus contractus regit actum is the broad 
 principle on which this rule is based. 
 
 To the rule that a contract validly made according to the 
 lex loci contractus is valid everywhere, there is one exception. 
 No country will recognise as valid a contract made in 
 another country the terms of which are opposed to the 
 interests of the former or of its subjects.(e) 
 
 {a) Huberus, 2 De Confl. Leg., lib. 1, 2-3, § 3. Code, lib. 1, tit. 14, 1, 5. 
 
 (6) Story, § 280. Greef o. Verreaux, 1 Menz. 153. Grotius, 2, 11 
 5, n. 2. 
 
 (c) Huberus, 2 De Conflic. Leg., lib. 1, tit. 3, § 2. Blatchford v. Blatch- 
 ford's Exors., E. 1, 3, and E. D. C. 1, 365. Van der Bijl's Assignees v. Van 
 der Bijl, J. 5, 170. 
 
9-] OPINIONS OF GEOTIUS. 97 
 
 With regard to foreign contracts, the courts will not 
 assume jurisdiction where the forum domicilii, the forum 
 rei sitce, and the forum loci contractus are all wanting,^) 
 and no arrest ad fundandum jurisdictionem will be de- 
 creed.^) 
 
 6. FOKEIGN JUDGMENTS. 
 
 Vattel, who is followed in this respect by many Conti- 
 nental jurists, lays down that it is the province of every 
 sovereignty to administer justice in all places within its 
 own territory and under its own jurisdiction, and to take 
 cognisance of crimes committed there, and of the con- 
 troversies that arise within it. Other nations ought to 
 respect this right, and as the administration of justice 
 necessarily requires that every definitive sentence, regularly 
 pronounced, be esteemed just and executed as such, when 
 once a cause in which foreigners are interested has been 
 properly decided, the sovereign of the defendants ought not 
 to hear their complaints. To undertake to examine the 
 justice of a definitive sentence is an attack upon the juris- 
 diction of the sovereign who has passed it.(/) 
 
 The Common Law has not followed Vattel, but in spirit 
 at least the rule he laid down is adhered to. 
 
 If a foreigner has obtained in a foreign country a proper 
 judgment against a defendant residing at the Cape, the 
 Colonial courts will not allow summary execution to be 
 taken out upon the foreign judgment ; but the courts will, 
 in due course, grant provisional sentence for the amount 
 of the foreign judgment, and the plaintiff will then have 
 the same remedies for the satisfaction of the Colonial 
 
 (d) Cookney v. Anderson, 31 Beav. 452. 
 
 (e) Hornblow v. Fotheringham, 1 Menz. 365. Heineruan v. Jenkins, 2 S. 
 10. Wilhelm v. Francis, Buo. R. 1876, 216. Einwald v. The German West 
 African Company, J. 5, 86 ; and cf. Dunell v. Van der Plank, 3 Menz. 112, 
 and Poultney v. Van Santen, Buc. 1874, p. 76. 
 
 (/) Vattel, Bk. 2, ch. 7, § 84. 
 
 G 
 
98 OPINIONS OF GEOTIUS. [No. 
 
 judgment which are given to residents within the territory 
 of the Cape Colony, {g) 
 
 The court will always take cognisance of the judgments of 
 a foreign court having jurisdiction over the parties.(A) 
 
 It is usual to prove a foreign judgment by means of a 
 copy of such judgment, certified to be a correct copy of 
 the recorded judgment by the Eegistrar of the court and 
 sealed with the seal of the court, accompanied by a certi- 
 ficate signed by the Secretary of State under the public 
 seal of the state, stating that the person certifying the 
 copy of the judgment is the Eegistrar of the court.(i) But 
 the court will in certain instances dispense with the certifi- 
 cate of the Secretary of State, if it is otherwise satisfied that 
 the copy is authentic.^) 
 
 If the defendant is outside the jurisdiction of the court of any 
 country, but has property in such country, the plaintiff can, 
 by order of court, attach the property within the jurisdic- 
 tion of the court fundandce jurisdictionis causa, but care should 
 be taken that, where possible, sufficient goods are attached to 
 cover the amount of the judgments plus costs and costs of 
 writ; for although jurisdiction may have been founded by 
 such attachment, the jurisdiction will be confined to the 
 amount attached, and cannot be extended to property out- 
 side the country. The court of the domicile of the de- 
 fendant will not recognise the judgment of a foreign court. 
 The defendant must be sued before the tribunal of his 
 domicile. 
 
 Thus in the case of Acutt, Blaine, & Co. v. The Colonial 
 Marine Assurance Company, the plaintiffs, domiciled in Natal, 
 had attached certain property in Natal belonging to the de- 
 fendants, who were domiciled in the Cape Colony, in order 
 to found jurisdiction, and had obtained judgment against the 
 defendants in Natal. The amount attached was quite in- 
 
 (g) The Bank of Africa o. Hare, G. 3, 286. Lipman & Herman v. 
 Kohler, J. 5, 420. 
 (h) Brissac v. Rathbone (6 H. and N. 301). 
 (i) Benjamin v. Benjamin, E. D. C. 1, 273. 
 (£) In re Roos, Sup. Court, Jan. 12, 1893. 
 
9.] OPINIONS OF GROTIUS. 99 
 
 sufficient to cover the judgment, and thereupon the plaintiffs 
 sued the defendants in the Supreme Court of the Cape Colony 
 for the Natal judgment ; but absolution from the instance 
 was granted. De Villiers, C. J., said, " If it had been proved 
 that the defendants were residents of Natal at the time 
 judgment was given, no difficulty would arise, because the 
 court would be bound by the comity of states to give effect 
 to the judgment against persons domiciled in the state in 
 whioh judgment was given ; but in the present case the de- 
 fendants resided within this Colony, and judgment was given 
 against them at Natal. If a person in Natal wishes to sue 
 any person within this Colony, he must come into this court 
 to do so, and I cannot accede to the proposition that because 
 there had been an attachment of the defendant's property in 
 Natal, the court of Natal obtained jurisdiction over his pro- 
 perty here. By the attachment of the property in Natal the 
 court obtained a jurisdiction in respect of that particular 
 property, but the defendants not having appeared in that 
 court at all, I do not think that this court is bound to give 
 effect to the judgment." (I) 
 
 In Fass & Go. v. Stafford (Natal Law Times, Sept. 1885) 
 the defendant resided in Natal. The Standard Bank in 
 Griqualand East obtained judgment against the defendant 
 there on a certain promissory note ; certain property having 
 been attached to found jurisdiction, this attachment was 
 subsequently withdrawn. Afterwards Fass & Co. became 
 the holders of the note and sued the defendant, who pleaded 
 the previous judgment ; but the court was of opinion that 
 the foreign judgment against the defendant was no bar to 
 a suit in Natal on the original cause of the debt. 
 
 The foregoing are the main points that have come before 
 the South African courts with reference to foreign judg- 
 ments. Owing to its importance, the question of foreign 
 bankruptcies will be treated as a distinct subdivision. 
 
 (I) Juta, 1, 406. 
 
100 OPINIONS OF GROTIUS. [No. 
 
 7. FOREIGN BANKRUPTCIES. 
 
 We have seen under the preceding heading that the judg- 
 ment of the court of a country concerning a person or property 
 within its jurisdiction is respected and recognised every- 
 where. In accordance with this doctrine, the Colonial courts 
 will recognise an order for the assignment of an estate in 
 bankruptcy or the sequestration of an estate as insolvent 
 when officially brought to the notice of the court. Owing, 
 however, to the distinct and peculiar effects of insolvency, the 
 courts have from time to time, in the cases which came 
 before them, laid down certain rules of practice, which, 
 whilst recognising the comity of nations, yet aimed at a fair 
 and equitable distribution of the estate, at the security of 
 the interests of the Colonial creditors, and at as speedy and 
 inexpensive a settlement of the claims as possible. 
 
 The English doctrine with regard to an assignment under 
 the bankruptcy law of a foreign country is that it passes 
 all the personal property of the bankrupt locally situated. 
 The American courts hold an opposite view, on the ground 
 that the vesting of the personal estate in a foreign receiver 
 or trustee is prejudicial to the state and to the interest of 
 its citizens, (m) 
 
 As already stated, the movable property, fictione juris, is 
 supposed to be situated at the domicile of the insolvent, 
 and the distribution of the estate will be in terms of the 
 law of that domicile.(w) This is not only the doctrine of the 
 English courts, but also of the majority of French and 
 Roman-Dutch jurists. The principle is not recognised 
 by the preponderance of authority in the American courts, 
 but it appears to be in accord with the doctrine of the 
 Roman-Dutch jurisprudence. The object of the distribution 
 of the insolvent's effects being perfect equality among those 
 who have equal rights and no preferent claims, it was held 
 that this could only be conveniently and effectually attained 
 
 (m) Story, § 410. 
 
 (n.) 3 Burge, Commentary on Colonial and Foreign Laws, pt. 2, ch. 20. 
 
9.] OPINIONS OF GEOTIUS. 101 
 
 in one place, which was called the locus concursus creditorum, 
 and if any other place was selected by the creditor for the 
 recovery of his debt, he might be met by the plea ne conti- 
 nentia causes dividatur. As to what should be the locus 
 concursus, it was generally admitted to 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 the property is situate, (p) 
 
 Without a " process in aid " being sought from and granted 
 by a Colonial court, the foreign trustee will have no right to 
 deal with the immovable property situate in the Colony, for 
 the lex loci rei sitae will obtain. 
 
 The English case of Selkrig v. Davis (p) recognises the 
 same rule. It was held there that a bankrupt under an 
 English commission of bankruptcy could not be compelled to 
 assign his foreign real estate to his assignees. The case of 
 Harrison v. Harrison (q) is directly applicable. Unless there 
 is a personal equity affecting the owner of real estate 
 situate abroad, an English court cannot claim to control 
 such estate by acting on him, and it is quite clear that no 
 English court would recognise such a claim as to English land 
 by the trustees or assignees under a foreign bankruptcy. 
 
 The sequestration of an estate in a foreign country will 
 not, by itself, operate as a sequestration of the Colonial 
 estate. An individual whose estate has therefore been 
 sequestrated in a foreign country will nevertheless be bound 
 to meet his obligations in South Africa. 
 
 The earliest case bearing directly on this point is that of 
 Alexander <& Co. v. Lioni.(r) There the plaintiff sued the 
 defendant for the balance of the purchase price of certain 
 goods. The defendant pleaded specially that his estate had 
 
 (o) Trustee of Howse, Sons, & Co. -v. Trustees of Howse, Son, & Co.,- 
 Jooelyne v. Shearer & Hine, J. 3, 14. 
 
 (p) 2 Dow, 245. (?) L. R. 8 Ch. 342. (r) Bnch. 1875, 79. 
 
102 OPINIONS OF GEOTIUS. [No. 
 
 been compulsorily sequestrated in the province of Griqualand 
 West, and that at a meeting of creditors held in that province 
 the plaintiffs had filed their claim. To this plea an excep- 
 tion was taken on the ground that it was no defence, and the 
 court sustained the exception. Unfortunately no reasons 
 are given for the judgment, nor are the authorities set out on 
 which the decision was based. This decision was followed 
 in the case of Reynolds v. Howse & Early, (s) where it was 
 held that the mere sequestration in England of a partnership 
 estate, which had both an English and Colonial domicile, was 
 no bar to an action against the estate in the Colony. Like- 
 wise in Ferguson v. Stanton (f) it was held that a previous 
 sequestration and rehabilitation in the Free State was no 
 bar to an action on a debt contracted in the Cape Colony. 
 Ferguson applied for leave to attach certain moneys belong- 
 ing to Stanton, who was domiciled in the Free State, in 
 order to found jurisdiction in an action for debt. The debt 
 had been incurred some years before, and was for goods 
 supplied by Ferguson, a Kimberly merchant, to Stanton in the 
 Free State. Stanton alleged that subsequently to incurring 
 the debt his estate had been sequestrated in the Orange 
 Free State and he had been rehabilitated there. The court, 
 however, held that as the original contract was made in 
 Griqualand West, the Free State insolvency and rehabilita- 
 tion were no bar to the present action, and granted the order 
 for an attachment ad fundandum jurisdictionem. When the 
 debt has been incurred in the country where sequestration 
 and rehabilitation had taken place, the court has refused 
 the claim of such creditor upon subsequent sequestration 
 in another country, on the ground that debt had been ex- 
 tinguished by the previous rehabilitation.^) In the case of 
 Trustees of Hoivse, Sons, & Co. v. Colonial Trustees of Howse, 
 
 (s) E. D. C. 3, 304. 
 
 (() G. 3. 289. 
 
 («) In re Percy Hope (Transvaal), June 29, 1885, C. L. J., vol. ii. p. 274. 
 On the authority of Story, Conflict of Laws, § 338-343 ; Burge, Comm. on 
 Col. and For. Laws, vol. iii. p. 924-925. 
 
9.] OPINIONS OF GROTIUS. 103 
 
 Sons, & Co.,(v) it was decided that where a firm had two 
 domiciles, one in England, the other in the Cape Colony, 
 and the estate of the firm was sequestrated in England and 
 trustees appointed, the estate in the Colony, which consisted 
 of movables, vested in the English trustees.(w) It is difficult 
 to reconcile with this judgment the holding of the court 
 in The Trustees of the Natal Estate of Zeederberg v. The 
 Trustees of the Gape Town Estate of Zeederberg. {x) This 
 was an action by the Natal trustees of the insolvent Zeeder- 
 berg to have paid to them the proceeds of the movable 
 property of the insolvent in the Cape Colony. Zeederberg 
 was domiciled in Natal, and his estate was sequestrated in 
 both countries. The court decided against the claim of 
 the plaintiffs. The report of the case is most meagre, and 
 contains no reasons on which the judgment was based. 
 
 Notwithstanding a sequestration in a foreign country, 
 the courts of the Colony will protect the interest of a pre- 
 ferent creditor who has attached property in the Colony to 
 satisfy his judgment debt. Thus in the case of Nor den v. 
 Solomon — the assignee of Charke,(y) the plaintiff, as agent 
 of Charke, an English insolvent, brought an action to have it 
 declared that he was entitled by the law of this Colony to a 
 tacit hypothec upon the vessel Justitia, of which Charke was 
 the owner at the time of his bankruptcy, for certain sums of 
 money, which, as agent for the Justitia, he had expended for 
 the repair and otherwise of the boat, and to have the pro- 
 ceeds of the vessel adjudged to him. The defendant pleaded 
 the exception ne continentia causae dividatur in bar, on the 
 ground that the concursus creditorum was in England, and 
 that the plaintiff had to go there to assert his rights. The 
 court, however, held that if, prior to the insolvency of Charke, 
 the plaintiff had by the law of the Colony acquired a 
 hypothec of the vessel or any other property of Charke within 
 
 M J. 3, 14. 
 
 (to) See also the judgment of De Villiers, C.J., in Kichards v. Doveton's 
 Trustees, J. 3. 123. 
 (a;) E. 2, p. 3. 
 (y) Menz. 2, 395. 
 
104 OPINIONS OF GROTIUS. [No. 
 
 the jurisdiction of the court, he was entitled to make that 
 hypothec effectual by an action in this court, and that the 
 sale of the vessel and the payment of the proceeds into 
 court was equivalent to an arrest jurisdictionis fundandce 
 causa, and overruled the exception. 
 
 The court of the Orange Free State has allowed a foreign 
 trustee of an insolvent estate to institute an action for the 
 settlement of claims due by the insolvent, who was living in 
 the Free State, and whose estate had not been sequestrated 
 there. The case in point is that of Graven v. Meinach.(z) 
 The salient facts were as follows : — Eeinach was the owner 
 of a farm lying on the frontier between Griqualand West 
 and the Orange Free State. His estate was sequestrated 
 in Griqualand West, and the plaintiff, as trustee, sold the 
 farm. Before transfer could be passed, the frontier line 
 between the two countries was definitely defined, and it was 
 found that the farm was consequently divided, part falling 
 within the territory of Griqualand West, and part within 
 that of the Orange Free State. The consequence was that 
 the trustee could not pass transfer of the Free State portion 
 of the farm without an order from the court there. Eeinach's 
 Free State estate had not been sequestrated. The trustee 
 thereupon sued him before the High Court at Blomfontein 
 for transfer of that portion of the farm. Eeinach excepted 
 to the summons on the ground that the Griqualand West 
 trustee had no locus standi in judicio in the Free State 
 courts, but the court in the first instance, as well as on 
 appeal, overruled the exception and gave an order ad factum' 
 prcestandum. The same court decided in September 1890 
 that upon the sequestration in Natal of the estate of one of 
 the partners of a firm carrying on business in Natal and the 
 Orange Free State, the trustees there appointed had a locus 
 standi in the Free State courts to sue for the sequestration 
 of the partnership estate in the Free State.(a) 
 
 (2) 0. F. S. Beports, April 29, 1880. 
 
 (a) Mitchell & Dore v. Lamjee Dharsey & Co., C. L. J., vii. p. 263, and 
 see § 5 of Insolvent Ordinance. 
 
9.] .OPINIONS OF GEOTIUS. 105 
 
 If an insolvent has a foreign as well as a Colonial domicile, 
 or if he has property abroad and in the Colony, the Colonial 
 courts, upon request, will issue a process in aid when the 
 estate has been sequestrated abroad, and will then recognise 
 the appointment of the foreign trustee.(&) The application 
 or request seeking aid is made by petition to the court by the 
 trustees, setting forth in full the circumstances why they 
 desire to be recognised as such in the Colony, or, in the 
 case of a Colonial sequestration, in England. The con- 
 cluding prayer is — 
 
 1. To act in aid. 
 
 2. To declare the foreign property vested in the trustees. 
 
 3. To order that the administration shall be proceeded 
 
 with by the trustees or their lawfully appointed 
 agents. 
 
 4. For general relief.(c) 
 
 In conformity with the section quoted in footnote (&), the 
 Colonial courts, upon an order and request of the English 
 court seeking the aid of the Colonial courts, recognised the 
 appointment by the English court of a receiver and manager 
 of a firm carrying on business in London and the Cape 
 Colony, (d) The Supreme Court has even gone farther, and 
 cancelled its order for sequestration and the appointment of 
 trustees to an estate of a firm domiciled in England and the 
 Cape Colony, the estate having been previously sequestrated 
 in England, and a receiver there appointed. The case 
 referred to is that of the Trustee of Howse, Sons, & Co. 
 
 (6) Vide § 74 of the English Bankruptcy Act of 1869. This section pro- 
 vides " that British courts and their officers shall severally act in aid of and 
 be auxiliary to each other in all matters of bankruptcy, and an order of the 
 court seeking aid, together with a request to another of the said courts, shall 
 be deemed sufficient to enable the latter court to exercise, in regard to the 
 matters directed by such order, the like jurisdiction which the court which 
 made the request, as well as the court to which the request was made, could 
 exercise in regard to similar matters within their respective jurisdiction." 
 
 (c) Van Zijl's Jud. Practice, " Commissions." 
 
 (d) Ross, Priest, & Page v. Saber Brothers, G. 2, 1. In re Estate of 
 Howse & Co., E. D. C. 3, 367. 
 
106 OPINION'S OF GEOTIUS. [No. 9. 
 
 v. Trustees of Howse, Sons, & Co., — Jocelyne v. Shearer & 
 Hine.(e) The firm of Howse, Sons, & Co., domiciled in 
 London and the Cape Colony, presented a petition for 
 liquidation in London, and a receiver was appointed. Sub- 
 sequently the firm surrendered in the Cape Colony, the 
 estate consisting of movables, and the respondents were 
 duly appointed trustees of the estate in the Colony. After 
 this the English court appointed a trustee in London, and 
 an order was made requesting the aid of the Colonial courts. 
 Thereupon the Colonial court ordered the appointment of the 
 respondents and all subsequent proceedings to be set aside, 
 whilst the appointment of the English trustee was recognised. 
 
 A similar practice obtains in the Transvaal (/) and the 
 Orange Free State.(#) 
 
 The same aid will be extended upon request by one South 
 African court to another that is accorded to courts outside 
 South Africa, but the proceedings must be regular and 
 formal; for if one court were to assume jurisdiction in 
 matters of insolvency, when in point of fact no such juris- 
 diction existed, the court whose aid is sought will not 
 recognise the proceedings. Thus, where a person domiciled 
 in the Cape Colony gave a general power of attorney to 
 an agent in Griqualand "West, and the High Court there, 
 subsequent to a judgment obtained against the principal 
 on the power of attorney, sequestrated the principal's estate 
 and appointed a trustee, and the Supreme Court in the 
 Cape Colony afterwards also sequestrated the estate of the 
 principal and appointed a trustee, the Supreme Court re- 
 fused to set aside its appointment in favour of the Griqua- 
 land "West trustee, upon his request, on the ground that 
 the High Court of Griqualand West had no jurisdiction at 
 the time the first order for sequestration was granted.(A) 
 
 (e) J. 3, 14. 
 
 (/) Re Liquidation of the Cape of Good Hope Bank (1890). 
 
 (g) Arg. ex judgment Craven v. Reinaoh, supra. 
 
 (h) Richards v. Doveton's Trustees, J. 3, 123. 
 
OPINION No. 10. 
 
 EOLL. CONS. III. B. 340. 
 [GKOTIUS II. 1. 29.] 
 
 ? 
 
 The rights of His Highness the Admiral of the Sea over con- 
 quered ships — Interpretation of laws and legal phrases. 
 
 1. Verba generalia, generaliter sunt interpretanda. 
 
 2. Appellatione navis, omnes naves, atque etiam 
 rates et scaphee continentur. 
 
 3. Whenever one adjective succeeds several dif- 
 ferent substantives, it qualifies them all, unless such 
 cannot be done conformably with good reasoning. 
 
 4. Verbum in dubio debet intelligi secundum vim 
 suam maxime propriam. 
 
 5. Sicut relativorum ita et adjectivorum proprium 
 est, ut quam maxime restringant prsecedentia. 
 
 6. Qualitas rei, quae potest congruere uniformiter 
 diversis rebus, in eadem oratione positis, per, vim 
 copulse omnibus adaptatur. 
 
 7. What ships are classed among merchant vessels. 
 Cannon, ammunition, et cetera, sunt in eodem genere, 
 quatenus sunt instrumenti belli. 
 
 8. Sequentia ex collatione minuunt significationem 
 sequentem, et No. 14. 
 
 9. Restrictions omnes sunt restringendse et non 
 ampliandse. 
 
 L 107 
 
108 OPINIONS OF GEOTIUS. [No. 
 
 10. Adjectivum non extenditur ad alia, quando 
 hoc ipsum, ut non extendatur, continet favorem; 
 et quando ad omnia. 
 
 11. The post of Admiral is one of the most 
 important and honourable offices of the Govern- 
 ment. 
 
 12. Beneficia Principum lsetissime sunt inter- 
 pretenda, et latius ultimis voluntatibus, prsesertim 
 ubi princeps aliquid largitur de suo. 
 
 13. Sicut beneficia principum latissime sunt 
 interpretanda, ita strictissimse interpretanda sunt, 
 quae ejus dispositionem restringerent. 
 
 15. Why His Excellency as Admiral gets no 
 share in the ships captured in war. This rule was 
 also practised by the King of Spain. 
 
 16. Jurisconsulti Hispani naves bellicas agris 
 comparant, qui jure Eomano, nemini communi- 
 cantur, sed publici fiunt. 
 
 17. In dubio nihil prsesumi debet mutatum. 
 Omnes abrogationes sunt odiosse et stricte 
 accipiendee. 
 
 18. It cannot be presumed that the rights to 
 which an Admiral is entitled under his commission 
 are to be taken away when the desire was to favour 
 him. 
 
 I have seen a certain resolution of the States- 
 General of the United Netherlands, passed on the 
 1st of April 1602, whereby it was ordained, inter 
 alia, that His Excellency, as High Admiral of 
 the said Netherlands, should receive a tenth of 
 
10 -] OPINIONS OF GEOTIUS. 109 
 
 all prizes and spoil captured north of the Tropic 
 of Cancer, ships, guns, and ammunition of war ex- 
 cluded. 
 
 I have been asked whether His Excellency would 
 be excluded under the said resolution from a tenth 
 share in captured ships which were not fitted out 
 for war. 
 
 (1) I am of opinion, that although at first sight 
 the words of the said resolution seem to imply as 
 much, quia verba generalia generaliter sunt inter- 
 pretanda, (2) et appelatione navis omnes naves atque 
 etiam rates et scaphse continentur,(a) yet the 
 contrary must be held to be the case, namely, that 
 ships of war only, and not all others, were ex- 
 cluded. 
 
 (3) The words " ships, guns, and ammunition of 
 war," hoc est, ad verbum, naves, machinae et 
 ammunitiones bellicee, illud adjectivum bellicce, 
 postremo locum positum, ad omnia, quse prsecedunt, 
 referri debet, juxta regulam, quod quando aut 
 ponuntur diversa substantiva, et postea poniter 
 unum adjectivum, illud veint ad determinationem 
 omnium substantivorum, quando hoc potest fieri 
 salva ratione recti sermonis ; (6) ubi est textus, et 
 probatur,(c) (4) a contrario sensu. Ratio' est, quia 
 verbum in dubio debet intelligi secundum vim suam 
 maxime propriam. Proprium autem est sicut relati- 
 vorum ita et adjectivorum omnium (nam et his inest 
 
 (a) D. 14, 1, 1, 6. D. 43, 12, 1, 14. D. 21, 2, 44. 
 (6) Ita tradit Bart, in D. 4, 2, 13. 
 (c) D. 34, 2, 8. 
 
110 OPINIONS OF GEOTIUS. [No. 
 
 vis relativa) ut quam maxime restringant prsecedentia. 
 Ideo non tantum ad proximum referri debent, sed ad 
 omnia, quae in eadem oratione sunt, dummodo aliud 
 nihil obstat.(cZ) (5) The words "of war" are much 
 more significant when thus interpreted, for when 
 otherwise merely read in connection with " ammuni- 
 tion," they appear to be of no effect and superfluous ; 
 multse enim sunt naves, quae in bello usui non sunt, 
 ut piscatorise et actuarise . et quae voluptatis causa 
 parantur.(e) 
 
 (6) Nee alienum est quod dicimus qualitatem rei, 
 quae potest congruere uniformiter diversis rebus, in 
 eadem oratione positis, per vim copulae, omnibus 
 aptari.(y) These words can be aptly applied to 
 ships of war, which, in the common acceptation of 
 the term, are ships fitted out against an enemy, to- 
 gether with the armament and ammunition destined 
 for offensive warfare, as opposed to others, generally 
 called " merchant vessels." (7) The armament, &c, 
 omnia sunt in eodem genere, quatenus sunt instru- 
 menta belli. (8) Altera hue etiam pertinet regula, 
 quae dictat, quod sequentia ex collatione minuunt 
 significationem praecedentem. With reference 
 thereto, such ships must be taken to have been 
 meant as were of the same nature as the armament 
 and ammunition mentioned later. All this ought 
 to be specially applicable to the present case, quia 
 versamur in oratione restringente, ut patet per verbum 
 
 (d) Textus est apertus in D. 32, i. 100, 1. 
 
 (e) Textus est D. 49, 15, 2, ubi similiter in jure prsedse ea distinguuntur 
 quae in bello usum habent, atque non habent. 
 
 (/) Bart, in 1. Seise de fund, instr. 
 
10.] OPINIONS OF GEOTIUS. Ill 
 
 (" excluded " — " uytgesondert "). (9) Kestrictiones 
 autem omnes sunt restringendse, non ampliandse, 
 quod hie foret, si alteram interpretationem sequere- 
 mm,(g) notat similem vocem stricte intelligi, ubi 
 agitur de legato restringendo : ample, ubi de ampli- 
 ando, et magis in terminis ad Digest,(h) (10) tradit 
 adjectivum non extendi ad alia, quando hoc ipsum 
 ut non extendatur, continet favorem, scilicet benig- 
 niorem preestationem legati. Quod si deficeret, debere 
 referri ad omnia. 
 
 (11) In this matter the above should be particu- 
 larly observed. For here the States-General, both in 
 consideration of the post of Admiral, which is one of 
 the most important and honourable offices of the 
 Government, and also to honour and reward His 
 Excellency for his special merits and reputation, 
 gave him a share in the prizes as specified in the 
 resolution above-mentioned. (12) Nihil autem tarn 
 certum est, quam beneficia Principum latissime inter- 
 pretanda, et quidem latius quam ultimas voluntates 
 (de quibus loquuntur textus supra allegati) prsesertim 
 ubi Princeps aliquid largitur de suo, ut hie de prseda, 
 quae primario ad solos ordines pertinet, deinde ad 
 eos, quibus illi earn concedunt(i) Maxime vero ubi 
 tale beneficium merita respicit ejus, in quern con- 
 fertur.(&) Jason dicit, sicut ipsa beneficia latissime 
 interpretanda sunt, ita omnia ilia strictissime inter- 
 pretanda esse, quae dispositionem ejus restringerent. 
 
 (g) Ita Bart, ad 1. quibus de leg. 3. 
 
 (h) Ad D. 34, 2, 8. 
 
 (i) C. dicat aliquis 24, qusest. 5. Digest 48, 13, 13. 
 
 (£) Ut late Dd. ad Digest 1, 4, 3, ad quam Jason, num. 32. 
 
112 OPINIONS OF GROTIUS. [No. 
 
 Et sic naves hie intelligi debent duntaxat bellicse, 
 etiam juxta regulam, quod sequentia ex collatione 
 minuunt significationem preecedentium ut apparet 
 infra, (l) ne justa liberalitas in arctum redigatur. 
 
 15. All this is further borne out by the reasons 
 which prompted the States-General to make the said 
 allowance, namely, that since battle-ships and other 
 instruments of war could immediately be re-employed 
 against the enemy, and must on that account not be 
 sold, His Excellency could not share therein. This 
 is quite clear, for the same rule is also followed by our 
 enemies. (16) Nam constitutionibus Regni Hispanise 
 in cseteris navibus maris prsefectus certam partem 
 prsedse habet, sed naves bellicse soli regi acquiruntur, 
 ut expressum est in constitutionibus Eegni ; (m) ita 
 ut jurisconsulti Hispani naves bellicas agris compa- 
 rent, qui ex jure Roman orum nemini communicantur, 
 sed publici fiunt.(n) It is evident that the reasons 
 afore-mentioned do not apply to all ships, but only 
 to ships of war. The foregoing must also be taken 
 to apply, if by the said resolution some new honour 
 or remuneration was conferred on His Excellency. 
 There is less room for doubt since it is alleged that 
 His Excellency and other Admirals before him always 
 received the tenth part afore-mentioned, and if the 
 States-General had wished to alter this, they would 
 have done so in clear and express terms: (17) quia 
 
 (l) Per text in 1. nam quod, in fin. de poen. legat 1. cum quidam de sup. 
 legata 1. si cum fundum de V. S. 
 
 (m) Lib. 19, tit. 20, part. 12. 
 
 (n) Digest, 49, 15, 20, 1. Ita tradit Balth. Ayala Medious Regii exer- 
 oetus lib. i. de jure et ofiic. bellicis, num. 3. 
 
10.] OPINIONS OF GROTIUS. 113 
 
 in dubio nihil prsesumi debet mutatum, cum omnes 
 abrogationes sint odiosse et stricte accipienda?.(o) 
 
 18. Furthermore it cannot be presumed that the 
 States-General, who allege in their resolution that 
 they were desirous of favouring His Excellency, 
 should wish to take away a right to which he was 
 entitled by virtue of his commission, as stated in the 
 commencement. This is worthy of especial notice.* 
 
 The rules laid down by the courts from time to time 
 for their guidance in the interpretation of Statutes and 
 the Common Law have been collected and published by 
 Maxwell, whose "Interpretation of Statutes" has become 
 an authority of great weight. This work is so exhaustive, 
 that it will not be necessary to go over the subject here 
 by way of annotation to this Opinion. 
 
 In courts where the Boman-Dutch law obtains, the follow- 
 ing authorities on this point may prove valuable : — 
 
 Digest, 1, 3. 
 Code, 1, 14. 
 Digest, 44, 7. 
 
 Paul Voet, Tract, de Statutis. 
 
 J. Voet, Comm. ad Pandectas, I. 4, Part 2, and I. 3, especially 
 1, 3, 16-22. 
 
 Ord. Zeeland, cap. ii art. 22. 
 
 Loenius, Decis. (Boel.), 99. 
 
 Loenius, Decis. 55. 
 
 Bynkershoek, Qusest. Jur. Priv., lib. 2, cap. 1. 
 
 (o) Dd. ad C. 6, 56. 
 
 * I have found it very difficult to assign to this Opinion its proper place 
 with reference to the Inbrodwction of Orotms. The main object of the 
 opinion is of little importance, but since it contains certain rules as to 
 the interpretation of words and laws which were approved of by Grotius, 
 it was thought advisable to insert the Opinion m extenso.— [Ed.] 
 
 H 
 
114 OPINIONS OF GEOTIUS. [No. 10. 
 
 Van der Keessel, Thes. Sel., 6-25. 
 Pothier, Pand. Inst, ad tit. if. de leg., art. 4. 
 Boehmer, De Interpretationis Grammaticse fatis et usu vario 
 in Jure Romano, in exerc. ad ff. torn. 1, exerc. 3, p. 22 et seq. 
 Eckhard, Hermeneutica Juris cum Not. Walchii (1799). 
 Van der Linden, Inst, of Holland, p. 4-6. 
 
OPINION No. 11. 
 
 HOLL. CONS. III. B. 187. 
 [GROTITJS II. 3, 2.*] 
 
 Patent right— When transferable— Contravention. 
 
 1. A patent granted in respect, not of a certain 
 person, but of an invention, can be transferred to 
 another. 
 
 2. The officer of the place must stop all contraven- 
 tions by removing the instruments used. 
 
 I have seen two letters-patent granted by the 
 States-General to Klaas and Frans Dirks for a 
 certain invention in sawmills fully specified therein, 
 the one bearing date 1st August 1630, and the 
 other 16th March 1632. 
 
 I have also seen a certain notarial deed whereby 
 Klaas Dirks, both for himself and as the repre- 
 sentative of Frans, sold, ceded, and transferred his 
 right to the said patent to the Timber Merchants, 
 a body constituting a wood sawmill company formed 
 within the jurisdiction of Amsterdam, together with 
 a deed approving of the said transfer, signed by 
 Frans Dirks. 
 
 In the Introduction of Qrotms no reference is made to this subieot 
 
 115 J ' 
 
116 OPINIONS OF GEOTIUS. [No. 
 
 (1) In reply to the question asked, I am of 
 opinion that the transfer of the rights acquired 
 under the afore-mentioned patent to third parties, 
 who are to continue the work, is valid and legal, 
 since the patent was not granted as a personal 
 matter, but in respect of the invention. The afore- 
 mentioned Timber Merchants, vested with the said 
 right, can, after they have duly warned those who 
 have infringed upon the patent, apply to the officer 
 of the place should they still persist in such in- 
 fringement. (2) This officer can immediately stop 
 such contravention by removal of the instruments 
 specified in the patent, or by other adequate means 
 in protection of the said patent, and under the 
 general instructions given to all officers. More- 
 over, the officer or the Timber Merchants can in- 
 stitute an action against those who have infringed 
 the right, and sue for the confiscation of the spurious 
 work and for the penalties mentioned under the 
 said patent. 
 
 April 6, 1632. 
 
 With a rapid growth of trade comes keener competition, 
 and as a necessary consequence, a smaller percentage of 
 profits. The ordinary tradesman finds no great fault with 
 this altered state of affairs. He does a larger business, and 
 finds himself fully compensated. It is not, however, every 
 one that can be brought to look upon this change with 
 
 * This article first appeared in C. L. J., vol. ix. p. 18, but has been partly 
 rewritten for the present work. 
 
11.] OPINIONS OF GROTIUS. . 117 
 
 satisfaction. The more unscrupulous will submit with an 
 ill-grace, and will avail themselves of any opportunity to 
 keep up a record of large returns. One way out of the 
 difficulty is found in the commercial "ring," but this in- 
 volves capital, and is seldom practicable. Another device 
 is therefore resorted to, and is by no means uncommon. 
 Articles of commerce are passed off on the unwitting public 
 as the manufacture of well-known firms, when in reality 
 they are of far inferior value, and the manufacture of some 
 obscure and unknown tradesman. The growth of trade 
 affords great facilities for the practice of this kind of de- 
 ception, and such counterfeits are more numerous than is 
 thought to be the case. There is a prevalent idea among 
 the public that a trade-mark or trade-name, as such, has 
 no existence in a country where no legislation has taken 
 place for the special protection of trade-marks and devices 
 in connection with diverse trades, or where such legislation 
 has been passed, unless these marks or devices have gone 
 through the formal process of registration. The idea is, of 
 course, erroneous. Infringement of the rights of trade-marks 
 and devices occur almost daily, and, as premised above, com- 
 mercial prosperity is an extra inducement for these mal- 
 practices. It thus becomes necessary to inquire into the 
 remedies and protection which the Common Law affords to 
 the general public and to the tradesman whose articles of 
 commerce are being simulated in the market. 
 
 For the purposes of this treatise, it will be sufficient to 
 consider the nature of trade-marks, names, and devices; 
 the rights in connection with the trade symbols under the 
 Common Law and Equity, and the remedies afforded by these 
 branches of the law ; the right to assign or cede a trade- 
 mark; and lastly, the right of a foreigner to protection 
 under the Common Law of the country where his trade- 
 mark rights are invaded. 
 
 There are various ways in which title or rights in certain 
 things, personal or real, can be obtained. Firstly, by occupa- 
 tion, so amply dealt with by Grotius, and so clearly and 
 
118 OPINIONS OF GEOTIUS. [No. 
 
 well expounded by Sir Henry Maine ; then follow title by 
 discovery, title by assignment, title by contract, title by 
 will, and title by invention, and it is this last title or right 
 that at present claims our attention. Just as things real 
 include both the land itself, and also such incorporeal rights 
 as spring from them or are connected with them, so things 
 personal comprise both those tangible movable subjects of 
 property and also the incorporeal rights or interests which 
 may be incident to them. Of such kinds (incorporeal chattels) 
 are patent right, copyright, trade-mark, or trade-name and 
 design. We shall occupy ourselves more particularly with 
 the last three — trade-mark, name, and design. The in- 
 dustrial revolution effected by steam power from the time 
 of that great inventor, James Watt, aided more recently 
 by the inventive genius of Franklin and Edison, whose re- 
 searches in electricity have led to such marvellous results, 
 has created large markets all over the world by an enormous 
 supply of vendible commodities manufactured in larger 
 quantities, in shorter time, and at lower prices than before. 
 The impetus thus given to trade greatly increased the 
 number of manufactories and the varieties of articles manu- 
 factured. It therefore followed that the competition in the 
 world's markets became keener, and tradesmen were com- 
 pelled to use their best endeavours to supply the public 
 with reliable commodities. Once having established a 
 market reputation, the producer took good care to inform 
 purchasers that such and such articles came from his manu- 
 factory. The easiest way in which this could be done was 
 by labelling or printing on the articles for sale the name 
 of the manufacturer or of the manufactory, or some special 
 name by which the goods are known in the market, or some 
 distinctive device. In this way originated the system of 
 trade-marks and devices with which we are now so well 
 acquainted, since they are used in every trade in every 
 civilised country. 
 
 What shall be considered as a trade-mark in the Colony 
 is clearly set forth in the 9th Article of the Trade Marks 
 
H-] OPINIONS OF GKOTIUS. 119 
 
 Registration Act, 1877, where it says, " A trade-mark con- 
 sists of one or more of the following essential parti- 
 culars : — 
 
 " A name of an individual or firm, printed, impressed, or 
 woven in some particular and distinctive manner. 
 
 " A written signature, or a copy of a signature of an in- 
 dividual or firm. 
 
 " A distinctive device, mark, label, or ticket. 
 
 "And there may be added to any one or more of the said 
 particulars any letters, words, or figures, or combinations of 
 letters, words, or figures." 
 
 Now the manufacturer has no exclusive right or owner- 
 ship in the symbols which constitute a trade-mark or design 
 apart from their application to a vendible commodity ; yet, 
 for the invasion of the exclusive right to apply such symbols, 
 the law provided a remedy, and this right was recognised in 
 Equity and by the Common Law as founded on a quasi-right 
 of property similar to copyright.(a) When once a manu- 
 facturer has used a certain symbol in his trade to indicate 
 where, by whom, and at what manufactory the article to 
 which it is affixed was made, his right in its application 
 becomes exclusive, and will be protected by law.(&) 
 
 We see thus that, by the Common Law, the right of a 
 manufacturer who is wont to distinguish his articles by 
 some distinct mark was clearly recognised. His articles 
 acquired a certain celebrity in the market, and he chose 
 to inform the public that if they bought certain articles 
 stamped or marked in a distinctive manner, they would be 
 buying his manufactures. Once having used this original 
 distinctive mark, the law gives him a quasi-right of pro- 
 perty therein, and no one will be allowed to invade this 
 right. 
 
 It must not be thought, however, that this right is only 
 created by Statute, because nearly every civilised country 
 
 (a) Eoscoe, N. P. 764. 
 
 (6) Leather Cloth Co. Ltd. v. American Leather Cloth Co. Ltd., 11 Jur. 
 (N.S.), 513. 
 
120 OPINIONS OF GEOTIUS. [No. 
 
 has its legislation for the regulation of trade-marks and 
 designs. As already stated, it is a right recognised by the 
 Common Law and Equity, and might conveniently be con- 
 sidered as an evolution of the right derived from occupation. 
 All that the Statute law did was to lay down the method 
 of applying trade symbols to marketable articles, to grant 
 greater protection to the manufacturer and the public, and to 
 inaugurate an accurate register of all recognised trade-marks. 
 In England, the Patents, Designs, and Trade Marks Act of 
 1883 embodies all the English legislation on the subject. 
 The registration of trade-marks in the Cape Colony is regu- 
 lated by the Trade Marks Eegistration Act of 1877. It pro- 
 vides for the keeping of a complete register of trade-marks 
 by the Eegistrar of Deeds, and further lays down that regis- 
 tration shall be prima facie evidence of the right of the 
 person in whose name the trade-mark is registered to the 
 exclusive right of such trade-mark, and after five years it 
 shall be conclusive proof of his right to the exclusive use 
 thereof. Certain trade -marks, however, are not to be 
 registered without special leave of the court, viz., trade- 
 marks similar to the registered trade-marks for the same 
 class of goods ; trade-marks so nearly resembling registered 
 trade-marks for the same goods by which the public are 
 likely to be deceived, any words, as part of or in combina- 
 tion with a trade-mark, which might deceive, and therefore 
 would not be protected in a court of Equity in England, and 
 any scandalous designs, (c) This special legislation is only 
 the outcome of a right already recognised under the Common 
 Law. Thus, before the passing of the Acts in England estab- 
 lishing a register of trade-marks, it was held that a person 
 who was in the habit of using a particular name may prevent 
 other persons from fraudulently taking advantage of the re- 
 putation which his goods have acquired by using his mark in 
 order to pass them off as his, to his injury.(S) In the case of 
 
 (c) The Statutory law in the South African Republic with regard to this 
 subject is Law No. 6 of 1892. 
 
 (d) Collins Co. v. Brown, 3 Kay and J. 423. 
 
n OPINIONS OF GROTTO'S. 121 
 
 Seixo v. Provetzendi,(e) Lord Cran worth, L.C., said, "When 
 the manufacturer has been in the habit of stamping his 
 goods which he has manufactured with a particular stamp, 
 mark, or brand, so that thereby people purchasing goods of 
 that description know them to be his manufacture, no other 
 manufacturer has the right to adopt the same mark. The 
 law considers this to be a wrong towards the person whose 
 right is then assumed." The decision of the court in the 
 case of the Singer Manufacturing Co. v. Wilson(f) is to the 
 same effect, where it was laid down that when the first pro- 
 ducer of an article has identified with it a particular name, 
 whether his own or another, such name becomes a trade- 
 mark, and cannot be adopted or employed by another person 
 Again, in the case of De Bouley v. Be Bouley (2 L. E. P. C. 
 441), Lord Chelmsford in his judgment remarked, " The right 
 to the exclusive use of a name in connection with a trade or 
 business is familiar to our law, and any person using that 
 name, after a relative right of this description has been ac- 
 quired by another, is considered to have been guilty of a 
 fraud, or at least of an invasion of another's right, and 
 renders himself liable to an action, or to be restrained from 
 the use of the name by injunction." On this point we also 
 find an important decision in the American courts.^) It 
 was held there that a coach proprietor, running carriages 
 between a railway station and a town, has no right falsely 
 to hold himself out as being in the employment of a par- 
 ticular hotel-keeper, by fixing to his carriage the name of 
 the hotel, this being done to the detriment of some other 
 party lawfully entitled to the privilege in question. It was 
 a fraud on the plaintiff and a violation of his rights, for 
 which an action would lie without proof of actual or specific 
 damage. 
 
 Nor are we without South African precedents. In the 
 case of Mills v. Salmond, decided in the Supreme Court in 
 
 (e) 1 L. R. C. Ap. 196. 
 
 (/) 3 Ap. Cas. 376; 47 L. J. (Oh.), 481. 
 
 (g) Marsh v. Billings, 7 Cush. (U.S.), R. 322. 
 
122 OPINIONS OF GEOTIUS. [No. 
 
 1863 (4 Searle, 230), it was held that a person who sells his 
 own flour as that of another, in bags marked with the brand 
 of such other dealer, is liable to an action for damages. This 
 case in part served as an authority for the decision of the 
 court in the important case of Combrinck & Co. v. De Kock, 
 decided in the Supreme Court in January 1888 (5 Juta, 405). 
 The facts in this case were briefly as follows : — Gous, a trader 
 in cattle, came to Piquetburg Eoad with the intention of 
 selling some cattle he had. On his way he met an agent of 
 Combrinck & Co., a large and well-known firm of butchers 
 of Cape Town, and Gous promised him that he would not sell 
 the cattle until Combrinck's buyer had had an opportunity 
 of purchasing them. Combrinck & Co. were informed of 
 this, and another cattle-dealer (De Kock) was also told of 
 this promise of refusal to Combrinck. He intercepted Gous 
 on the road, and represented himself as Combrinck's agent. 
 Gous believed De Kock, and thinking that Combrinck & Co. 
 always paid the highest market price, sold the oxen. There- 
 upon Combrinck & Co. sued De Kock for damages, and 
 prayed for an interdict restraining De Kock from represent- 
 ing himself as a member or agent of the firm. The court 
 gave judgment for £1 damages and costs, but since there 
 was no reason to believe that De Kock would repeat the 
 offence, the interdict was not granted. Here there was no 
 real question of a trade-mark or of a trade name affixed 
 to a vendible commodity. As his Lordship, Sir J. H. De 
 Villers, C.J., said in delivering his judgment, " The simple 
 question is whether a person who, by falsely and fraudulently 
 representing himself to be the agent of a particular trades- 
 man, induces a third party to sell to him articles which have 
 been offered for sale to such tradesman (who is known to be 
 an extensive purchaser of such articles), is liable to an action 
 at the suit of such tradesman ? . . . The liability of the seller 
 is based upon the ground that it is a fraud on his part to 
 attract to himself that course of trade or custom which, but 
 for the false representation, would have flowed in the ordinary 
 course to the tradesman or manufacturer who has established 
 
n OPINIONS OF GEOTIUS. 123 
 
 a reputation as a vendor of certain articles. But the reputa- 
 tion of being a liberal purchaser of cattle may be as valuable 
 to a butcher as that of being a vendor of particular articles 
 to a tradesman, and the damage done to a butcher requiring 
 cattle for slaughter by the fraudulent representation of an- 
 other that he is a purchaser on behalf of such butcher, may 
 be as great as the damage done to a manufacturer hy the in- 
 fringement of his trade name. Fair and honest competition, 
 however active, is open to every one ; but no one has the 
 right to take an undue and improper advantage by means of 
 falsehoods, the effect of which is to benefit himself at the 
 expense of another." 
 
 Lastly comes the case of Hose & Co. v. Miller, decided in 
 the Transvaal High Court in August 1891. The plaintiffs 
 in this case prayed for an interdict restraining defendant 
 from selling a certain lime-juice cordial in bottles of the 
 same characteristic shape as that of the plaintiffs, and 
 bearing a label similar to that used by the plaintiffs. Eose 
 & Co. are the well-known manufacturers of Eose & Co.'s 
 lime-juice cordial. The distinctive greenish labels on their 
 peculiar bottles need no description. It appeared that the 
 defendant Miller of Johannesburg, S.A.E., made lime-juice, 
 and sold it in bottles of Eose & Co., and in others similar in 
 shape, and labelled these with an almost exact imitation of 
 plaintiffs' label. On it appear, however, the words " Eosen 
 & Co.'s " instead of " Eose & Co.'s," and a small representa- 
 tion of a windmill took the place of the lime twig in the 
 original. It was contended for the defence that no Eoman- 
 Dutch authorities treated of the subject, that it was therefore 
 not a Common Law right in South Africa, and that, in the 
 absence of special legislation, Eose & Co.'s trade-mark could 
 not be recognised in the Transvaal. The court, however, 
 held that such a right did exist, that Miller's representation 
 was calculated to mislead the public, and under these cir- 
 cumstances granted the interdict prayed for. Whatever 
 contentions there may have been in the past, they are now 
 done away with by the above South African decisions, 
 
124 OPINIONS OF GROTIUS. [No. 
 
 which so clearly lay down the principle of the right to 
 the use of a trade-mark. From the principles established by 
 these decisions, the elements of a right of property in a 
 trade-mark may be represented as being the fact that the 
 article is in the market as a vendible commodity with a 
 stamp or trade-mark at the time that it is imitated, and 
 that the mark must have been applied properly — that is to 
 say, that it had not been copied from any other person's 
 mark, (h) 
 
 Next in order, we must consider the kemedies that the 
 law affords against an infringement of such trade rights 
 as are above described. There is no exclusive ownership 
 to the symbols which constitute a trade-mark apart from 
 the use or application of them, yet the exclusive right to 
 use such mark in connection with a vendible commodity 
 is rightly called property, and the jurisdiction of a court 
 of equity to restrain the infringement of a trade-mark is 
 founded upon the invasion of such property, and not upon 
 the fraud committed upon the public, and also upon the 
 fact that an injunction is the only mode by which the 
 property can be protected.(i) Such an injunction may be 
 defined as a writ-remedial issuing by the order of a court of 
 Equity or of Common Law in those cases where the plaintiff 
 is entitled to equitable relief, by restraining the commission 
 or continuance of some act of the defendant. 
 
 A further remedy is suggested by Grotius in the Opinion 
 under discussion (No. 11, Holl. Cons. iii. (b) 187), namely, 
 that upon application to the legal authorities of the place 
 where the infringement is committed, such authorities can 
 destroy the counterfeits and implements used in their 
 execution. 
 
 A copyright will be protected in the same way as a trade- 
 mark or patently ) 
 
 (A) M'Andrew v. Basset, 10 Jur. (N.S.), 492-500. 
 
 (i) Joyce on Injunctions, 311. 
 
 (j) Dickens v. Eastern Province Herald, S. 4, 33 (1861). In this case, 
 Charles Dickens, the famous novelist, then residing at Gadshill House, 
 Rochester, obtained an interdict against the editor of the Eastern Province 
 
n -J OPINIONS OF GEOTIUS. 125 
 
 As was remarked by De Villiers, C.J., in Gombrinch v. 
 De Kock, " The Eoman-Dutch authorities throw very little 
 light upon this subject, nor is it to be expected that they 
 should. It is, however, perfectly clear that by an infringe- 
 ment or misuse of a trade-mark or trade-name by another 
 a wrong is committed towards the owner and the public, 
 and courts of justice will always under such circumstances 
 afford equitable relief." This is recognised by Grotius in 
 the second portion of the present Opinion, where he states 
 that such relief will be afforded by the officer of the place. 
 
 The question of patents and trade-marks is nowhere fully 
 discussed by the Eoman-Dutch law authorities. Slight 
 references to the subject, however, appear in Van der Berg's 
 Nederlansche Advijs-boek, I. Cons. 68, p. 161, and in Zurck's 
 Codex Batavus, sub voce " Wapenen," § 4, note 1 ; also sub 
 voce "Falsiteit," § 10; "Garen," § 1; " Messen," § 5; 
 " Papieren," § 2 ; " Thee," § 1 ; and in Carpzovius, Praxis 
 Eerum Crim., 2, 93, 89, 90 ; Voet, 48, 10, 30. As regards 
 patents, see Koren's Observatien op Oordeelen van den 
 Hoogen Eaad, No. 27. 
 
 The right of a manufacturer to obtain redress from the 
 court rests upon his quasi-right of property, and it is not 
 therefore necessary to prove fraud on the part of the 
 defendant ; (k) although, of course, if fraud be proved, the 
 plaintiff's claim to protection will be strengthened, and he 
 will, moreover, have an action for damages sustained, and 
 the court will compel the defendant to repay any profits 
 made by him out of his fraudulent transactions. (I) So, in 
 the same way, ignorance on the part of the defendant of 
 the existence of a trade-mark will not bar the plaintiff's 
 right to obtain an interdict from the court, (m) It is, 
 
 Herald, a newspaper published in the Cape Colony, restraining him from 
 printing in the said newspaper a work of fiction entitled Great Expectations, 
 then being published in a weekly periodical, Ml the Year Round, and the 
 copyright of which belonged to the plaintiff. 
 
 (&) Hall v. Barrows, 33 L. J. (Ch.), 204. 
 
 (i) Gous v. De Kock, 5 Juta, 405. 
 
 (m) Edelsten v. Edelsten, 9 Jur. (N.S.), 479. 
 
126 OPINIONS OF GEOTIUS. [No. 
 
 however, not necessary that a specific trade-mark should 
 he infringed to give a right to an interdict. If the court 
 is satisfied that there was, under the circumstances of the 
 case, a fraudulent intention on the part of the defendant to 
 palm off his articles as those of the plaintiff, an order will 
 be granted restraining the defendant from persisting in the 
 misrepresentation ; but then it is required that the imitation 
 should be calculated to deceive. This was the finding of 
 the court in the Transvaal case of Hose & Co. v. Miller, 
 above referred to. In the same way, the court will grant 
 an injunction where not the whole, but only a part of a 
 trade-mark had been imitated ; and where it is of opinion 
 that such imitation is likely to deceive, it will not even 
 require evidence of deception.(«) In such cases it is for 
 the court to decide whether the public would probably be 
 deceived by the alleged spurious imitation, and not whether 
 experts and manufacturers could distinguish between the 
 articles, or would have noticed the difference between the 
 original and the imitation, (o) No general rule can be laid 
 down as to what would or would not amount to an infringe- 
 ment of a patent or trade-mark, but every case must be 
 decided on its own merits.(^) But the court will not 
 restrain the use of a label on the ground of its general 
 resemblance to the trade-mark of another manufacturer, 
 if it is different in the points a customer would look at 
 in order to see whose manufacture he is purchasing.^) 
 The case of Stephen v. Peel (r) may be taken as an instance 
 of what would be considered a colourable imitation. A 
 trader produced and sold an ink which he designated 
 " Stephen's Blue Black/' and it was shown to the public 
 with a label in white capital letters of large type, and 
 the defendant sold an ink in bottles similar in size, desig- 
 nated as "Stephen's Blue Black," also in white capital 
 
 (n) Braham v. Bustard, 11 W. R. 1061. 
 
 (o) Shrimpton v. Laith, 18 Beav. 164 ; per Kotze, C.J., in Rose & Co. 
 
 (p) Reiners Von Laer & Co. v. Fehr, 9 J. (April and June 1892). 
 
 ( 2 ) Blaokwell v. Crabb, 36 L. J. (Ch.), 504. 
 
 (r) 16 L. T. (N.S.), 145. 
 
u -] OPINIONS OF GEOTIUS. 127 
 
 letters of large type. This was held by Sir W. P. Wood 
 to be a colourable imitation. 
 
 Such false representations are not confined to trade 
 symbols. They are extended to trade-names, even where 
 the articles are not branded with them. It is only an 
 extension of the principle, and is founded on the same 
 grounds as those upon which the rights to trade-marks 
 are based. This was definitely decided in the case of 
 Combrinck v. Be Kock (5 Juta, 405), to the facts whereof 
 reference has already been made. 
 
 We have seen that the right in a trade-mark is an in- 
 corporeal chattel. The public know the article in the 
 market by the device attached. A question thus arises 
 whether the manufacturer can assign or cede this right, like 
 other incorporeal matters, to another without notice to the 
 public. This question cannot be answered without reserva- 
 tion. It was laid down by Lord Cranworth in the case of 
 the Leather Cloth Co. Ltd. v. American Leather Cloth Co. Ltd. 
 that, " as an accessory of property, a trade-mark may be sold 
 and transferred upon the sale and transfer of the manufactory 
 of the goods on which the trade-mark has been used to be 
 fixed, and may be lawfully used by the purchaser." " But 
 if the goods derive their increased value from the personal 
 skill or ability of the adopter of the trade-mark, he cannot 
 give any other person the right to affix his name or mark 
 upon their goods, for the effect thereof would give them a 
 right to practise fraud upon the public," per Lord Kingsdown, 
 ibid. It is thus a question of fact, Did the public rely on 
 the skill and ability of the original manufacturer ? This 
 will be a matter for the court to decide. How far by the 
 general law a trade-mark is assignable depends greatly on 
 the nature of the mark and the mode in which it has been 
 used.(s) 
 
 Grotius says that a patent granted in respect of an 
 invention, and not of a certain person, can be transferred 
 
 (») Bury v. Bedford, 33 L. J. (Oh.), 465. Cf. Opinion No. 11, § 1. 
 
128 OPINIONS OF GKOTIUS. [No. 
 
 and ceded to another.(£) In the case of a partnership, each 
 partner has a right to use the firm's trade-mark on its 
 dissolution, (w) 
 
 There is one more point of interest to be noticed. The 
 Common Law recognises a right in a trade-mark, sets forth 
 how that trade-mark shall be applied, and affords protection 
 against an invasion of the right. This certainly holds with 
 regard to manufacturers in the country where the plaintiff 
 and defendant reside, where the article is manufactured and 
 the invasion takes place. Will the law, however, recognise 
 the rights of a foreign manufacturer, and at his suit restrain 
 an infringement of his rights of trade-mark ? This question 
 arose in the case of Rose & Go. v. Miller. There was no 
 trade-mark register in the Transvaal. Eose & Co. were 
 English manufacturers, and the imitation of their labels 
 took place at Johannesburg. The court held that the action 
 was rightly brought, and that the plaintiffs were entitled to 
 protection in the Transvaal, that an infringement of their 
 rights had taken place, and on these grounds granted an 
 interdict against the defendant. So too, in the case of 
 Taylor v. Carpenter ,(v) (U.S.), a recent case quoted by 
 Phillimore in his International Law, an alien ami manu- 
 factured in his own country goods which he distinguished by 
 a peculiar trade-mark. The defendant imitated his trade- 
 mark, and sold in England and elsewhere his own goods 
 under the copied design. The court held that the plaintiff 
 had a remedy by suit for an injunction and account of 
 profits.(w) In a case of a similar nature, it was laid down 
 that an alien can in the courts of England sue to restrain 
 the fraudulent appropriation of his trade-mark, although the 
 goods on which such mark is affixed are not usually sold by 
 him there. (a;) Alluding to this case Phillimore says, "The 
 
 (*) Opinion 11, Holl. Cons. iii. (b), 187. 
 
 (u) Condy v. Mitchell, 37 L. J. 766. 
 
 (v) 11 Paige, 292 (Amer.). 
 
 (w) Collins Co. v. Brown, 3 Kay and J. 423. 
 
 (x) Collins Co. v. Reeves (per V. C. Stuart), Ir. L. J. (Ch.), 56. 
 
11.] OPINIONS OF GROTIUS. 129 
 
 doctrine seems to be that a person on whom an injury is 
 fraudulently committed may have a remedy in the court of 
 any country where the fraud occurs, and even although he 
 be at the time an alien enemy."(y) 
 
 (y) International Law, p. 445. 
 
OPINION No. 12. 
 
 HOLL. CONS. III. B. 178. 
 [GROTIUS II. IY. 3, 5, 17-24.] 
 
 Res nullius — Rights of fishing — Reciprocity — Occupatio. 
 
 1. Quod nullius est, id naturali ratione occupanti 
 conceditur. 
 
 2. According to the Civil Law, any one can fish in 
 the open sea ; and further, the use of the beach is 
 free to any one in so far as he requires the same for 
 fishing purposes. 
 
 3. To what extent the English, Danes, and other 
 nations allow friendly countries to fish on their coast, 
 and what right other nations have to enforce the 
 same rule. 
 
 4. Nemo aspernabitur idem jus sibi dici, quod 
 ipse aliis dixit, vel dici effecit. 
 
 5. The inhabitants of a country, being in posses- 
 sion for ten years for the purpose of fishing along 
 the coast, may prevent strangers from fishing there. 
 
 I have been asked whether the inhabitants of 
 this country may prevent strangers from fishing in 
 the waters of the Island of Spitzbergen, who go 
 thither for that purpose with passes from their kings 
 
 130 
 
No. 12.] OPINIONS OF GEOT1US. 131 
 
 or princes; and how far the said inhabitants may 
 exercise their rights over both land and sea. It 
 appears that the Island of Spitzbergen, in the North 
 Sea, was first discovered by the inhabitants of this 
 country, who took possession thereof; that they first 
 joined together in small parties, and afterwards 
 formed a company to carry on the fisheries in the 
 waters of Spitzbergen, which they did for many 
 years. Subsequently they obtained a special grant 
 from the States-General. 
 
 (1) I am of opinion that the afore-mentioned Island 
 of Spitzbergen, having been first discovered and taken 
 possession of in the name of the United Netherlands, 
 necessarily falls under the ownership, sovereignty, 
 and full jurisdiction thereof — assuming that the 
 island was previously uninhabited and unappro- 
 priated, quod enim nullius est, id ratione naturali 
 occupanti conceditur.(a) Sunt, inquit Cicero, privata 
 nulla natura, sed aut venti occupatione, ut qui 
 quondam in vacua venerunt aut victoria, ut qui 
 bello potiti sunt. Et hinc jus summ. imper. Venetis 
 asserunt doctores, quod insulas vacantes primi occu- 
 paverint. (2) With reference to the fisheries, al- 
 though, according to the Civil Law, these were free 
 to anybody in the open sea, together with the use of 
 the beach in so far as he required it for that pur- 
 pose,^) (3) nevertheless the English, Danes, and 
 several other nations have adopted a law whereby 
 no stranger is allowed to fish on their coast within 
 
 (a) L. quod enim. D. de acq. rer. dom. 
 (6) D. 1, 8, i ; Inst. 2, 1, 1. 
 
132 OPINIONS OF GEOTIUS. [No, 
 
 cannon-range, and others still farther. These nations 
 may therefore be compelled to abide by this law by 
 the inhabitants of this country. Summam enim non 
 habet sequitatem et sine cujusquam indignatione 
 justam, (4) quis enim aspernabitur idem jus sibi 
 dici quod ipse aliis dixit vel dici effecit.(c) 
 
 (5) The inhabitants of this country may also pre- 
 vent all strangers from fishing in the bays and inlets 
 without reference to the customs of other nations, 
 since they have used the said fisheries for a period of 
 more than ten consecutive years. This is in accord- 
 ance with the opinion of nearly all jurisconsults.(rf) 
 
 Amsterdam, 
 March 27, 1632. 
 
 The open sea is, strictly speaking, nullius territorium. 
 By nature it is not capable of being reduced into the pos- 
 session of any particular nation, and there is no natural 
 warrant for any nation to seek to take possession thereof, 
 or to restrict its use by other nations, (e) This doctrine- 
 dates back to very early times, and traces of it are found 
 amongst the Athenians. The Ehodian laws of the sea are 
 supposed to be a collection of maritime customs which ob- 
 tained among the Mediterranean nations of that time ; a few 
 fragments are still preserved in the Digest (L. 14, tit. 2). 
 Grotius, Be Jure Belli et Pads (ii. cap. 3), quotes various 
 instances and authorities in support of his contentions. 
 In 1609 Grotius wrote his Mare Ziberum against the pre- 
 
 (c) D. 2, 2, 1. 
 
 (d) Ad 1. sane D. de injuriis, addita 1. si quisquam D. de divers, et temp, 
 praescript. 
 
 (e) Bynkershoek, De Dominio Maris, p. 134 et seq. ; Wolfli, Jus Gentium, 
 § 1277 ; Grotius, De Jure Belli et Pacis, ii. 3 ; Kliiber, § 132 ; Vattel, lib. 1,. 
 c. 23, § 279. 
 
12.] OPINIONS OF GROTIUS. 133 
 
 tensions, more especially of the Spanish and Portuguese 
 nations, for a monopoly over certain portions of the high 
 seas. The English in the seventeenth and eighteenth cen- 
 turies also claimed a qualified right of ownership or sove- 
 reignty over the seas washing the shores of Great Britain. 
 Now, however, the liberty of the sea and of navigation is 
 admitted universally. 
 
 Although the liberty of the high seas is now fully estab- 
 lished, a national jurisdiction is nevertheless claimed by 
 maritime nations over that part of the sea which adjoins 
 the shore, to a distance of a marine league seawards. The 
 reason for this, according to Vattel, is, that it is of con- 
 siderable importance to the safety and welfare of states 
 that a general liberty be not allowed to all comers to 
 approach so near to their possessions, especially with ships 
 of war, as to hinder the approach of trading nations and 
 molest their navigation. (/) Writers on public law often 
 refer to the open sea (mare vastum), within the distance of 
 a maritime league along the coasts of a nation, as its mari- 
 time territory, or See-gebiet. "With this term Twiss finds 
 fault, suggesting as a substitute the term "jurisdictional 
 waters." (g) As an amendment it has this in its favour, 
 that it avoids the confusion of ideas which might arise 
 from the use of the former expression. Treating of the 
 acquisition of property by occupation, Grotius says, " Eivers 
 may be held as by occupation, and it therefore also appears 
 that a portion of the sea may be occupied by him who 
 possesses the land on each side, although it be open at one 
 end, as a bay, or at both, as a strait."(A) Applying this 
 principle in detail, we see that nations can claim an ex- 
 clusive right, depending on the will of the sovereign, over 
 certain portions of water, such as bays, gulfs, straits, inland 
 seas, and rivers. These claims are in many cases either 
 
 (/) Vattel, Drois de Gens, 1. 1, § 288. See also Bynkershoek, 1. 2, c. 3, 
 
 §13. 
 
 (g) Twiss, Law of Nations, vol. i. p. 250. 
 (h) Grotius, De Jure Belli et Paois, ii. 3, 8. 
 
134 OPINIONS OF GEOTIUS. [No. 
 
 doubtful or to be rejected, (i) or have been greatly modified 
 by treaties. 
 
 The rights of all nations to the free use of the high sea 
 having been established, it follows that the right to fish 
 upon the high seas, or on banks and shoal places in them, 
 are open to all. This, however, does not include the right 
 to fish freely in bays and mouths of rivers, which depends 
 upon the will of the sovereign. The right to fish in the 
 open sea does not include the right to cure fish upon the 
 shore. The shore is under the jurisdiction and control of 
 the sovereign of the maritime country, and cannot be used 
 for that purpose without consent. " The liberty of the sea 
 being now admitted," says Woolsey, " there seem to be no 
 reasons of absolute right why a nation should exclude the 
 fishing vessels of another from within a marine league of 
 its coasts. There is a difficulty in ascertaining, especially 
 along a curved shore, how the line between the open and 
 the territorial sea is to run, and it is equally difficult for 
 the fishermen to know where the line runs, or to keep out- 
 side of it when it is known. We look for a time when no 
 such lines, and no restriction on the transport of fish by any 
 fisherman to any market, shall exist. And yet the right of 
 excluding foreign fishermen from certain waters is received 
 and practised — for instance, as between France and England 
 — and the same right exists, by decision of the Supreme 
 Court of the United States, in any one of the States, of 
 prohibiting by law the inhabitants of another from fishing 
 within the tide-waters of its territory. The right to pro- 
 hibit foreign fishermen from catching shell-fish seems to 
 have reasons of its own. They are caught near the shore, 
 within tide-water, and need laws for their protection at 
 certain seasons ; they may be cultivated by private persons 
 on their own lands; they need, in short, a police which 
 is not required for fish in the proper sense of the term." (k) . 
 
 The third paragraph of the above opinion of Grotius is 
 
 (i) Woolsey, International Law, § 60. 
 Ik) Woolsey, note (2) ad § 59, 
 
12.J OPINIONS OF GKOTIUS. 135 
 
 very instructive reading when reference is had to his Be Jure 
 Belli et Paris, Book II. chap. iii. §§ 8, 9-15. In § 9 (1 and 
 2) he briefly refers to this jus piscandi in mari, but it is 
 only in the present Opinion that his views are definitely 
 expressed and reasons assigned for the rule which obtained 
 during his time. 
 
 The right to use the seashore itself between high and 
 low water-marks belongs to the public,(£) and the Govern- 
 ment have no right to its exclusive use. The rights of the 
 Government in respect of the seashore are those of custodians 
 on behalf of the public, and any grants by the Government 
 are subject to the condition that they do not materially 
 interfere with the public rights, (m). 
 
 (I) Voet, i. 8, 9. 
 
 (m) Anderson & Murison v. The Colonial Government, 8 J. 296. 
 
OPINION No. 13. 
 
 HOLL. CONS. III. B. 306. 
 [GROTIUS II. V. 19.] 
 
 Diking marsh lands — Rights of the dikers — Treaty of Trefves. 
 
 The rights to which His Excellency is entitled 
 with regard to the diking of the marsh lands of 
 the Heyninge, Schuddebors, Slobbegors, and Appel- 
 aar, given out by him for drainage, which said rights 
 he had obtained by confiscation, as opposed to the 
 rights of Count Harman van den Berg, who was 
 reinstated in the Marquisate by the Treaty of Trefves. 
 
 I have seen a certain casus positio with reference 
 to the diking of the marsh lands of the Heyninge, 
 Schuddebors, Slobbegors, and Appelaar, which be- 
 longed to the Marquises of Bergen, and have been 
 asked to what rights His Excellency is entitled in 
 respect of the said diking, since he had given out 
 the marsh lands to be drained, having obtained such 
 rights by confiscation, on the one side, and Count 
 Harman van den Berg, who had been reinstated in 
 the Marquisate by the Treaty of Trefves, on the other. 
 
 I am of opinion that, by virtue of the 22nd Article 
 of the Treaty of Trefves, the dikers are entitled to 
 retain the ground drained by them, and that Count 
 
 136 
 
No. 13.] OPINIONS OF GEOTIUS. 137 
 
 Harman may enjoy during the existence of the 
 Treaty of Trefves the rents, in lieu of the capital 
 amount promised but not paid, together with the 
 ground dues and tithes,* as included under the word 
 redevances. Further, His Excellency is entitled to 
 all annuities imposed upon the Marquisate of Bergen 
 which were given in satisfaction of the rents to be 
 paid in lieu of the capital, with full right to the moneys 
 mentioned in the annuities; provided that the 
 possessors of the Marquisate be freed from all such 
 rents which may become due during the term of the 
 Treaty, or that His Excellency cede the right to 
 such rents to them for the period mentioned. As 
 regards the piece (cavel) of land stipulated for by 
 His Excellency, this came to him not as diker, but 
 on account of his issue of the marsh lands afore- 
 mentioned, and must therefore be returned to Count 
 Harman, on condition that the Count pays His 
 Excellency during the period of his possession the 
 interest on thirty pounds for the survey, should His 
 Excellency be found to have paid that amount. 
 This is both reasonable and equitable, for Count 
 Harman is not entitled to the said redevances in 
 a more free and less burdened manner than His 
 Excellency, to whom they originally belonged. 
 
 * Qrond-chijns, ground rents or dues. The word chijns also appears in 
 Old Dutch as eheyns, cheins, and chens, later cijs, cijns. Cf. accijns, meaning 
 impost or duty, and cijnzen en tijnzen. Vide Melis Stoke, Bk. i. v. s. 1138. 
 -[Ed.] 
 
 Holl. Cons. vi. (part 2) 54, treats of the draining, &c, of the Moortsche 
 Polders, and the expenses incurred in connection with the dykes. It is of 
 no importance, being entirely of local interest. — [Te.] 
 
OPINION No. 14. 
 
 HOLL. CONS. IV. 22, & III. A. 106.* 
 [GROTITJS II. XI. 8.] 
 
 Community of property — Place of marriage — Property in 
 another State. 
 
 Community of property is introduced by the custo- 
 mary law of the place where the marriage was con- 
 tracted without ante-nuptial contract, even as regards 
 property situate outside the place, and beyond the 
 operation of such custom. 
 
 A resident of Holland married a young lady of 
 Friesland at Amsterdam. She had certain property 
 in Friesland, and the marriage was contracted, after 
 the consent of the guardians of the bride had been 
 obtained, without ante-nuptial contract, and it was 
 celebrated in the usual manner. 
 
 The question now is, whether the husband can 
 sell the property of his wife and invest the proceeds 
 as he may think fit, and whether the ex-guardians, 
 should they wish to interpose, could interdict him in 
 Amsterdam, and contend that he should be restricted 
 in the disposal at his pleasure of the estate to such 
 property as was situated there ? 
 
 * This opinion occurs twice in the HoUandsche Consultation, in vol iii. 
 (a) 106, and vol. iv. 22. See footnote, p. 17. 
 
No. 14.] OPINIONS OF GEOTIUS. 13£ 
 
 I am of opinion that the husband is entitled to 
 act as above, for, according to the customary law of 
 Holland, where the marriage was c ontrac ted, com- 
 m unity of p roperty_ ensued, if there be no ante- 
 nuptial contract, and the husband is entitled to the 
 full and free disposition of such property during 
 marriage. 
 
 The fact that different customs may prevail in 
 Friesland does not affect the case, for we must con- 
 sider the custom of the place where the marriage 
 was contracted. The reason for this law is that the 
 
 custom as to the marital power, primario disponit de 
 jpersona et secundario de bonis, sicut in tutela dici- 
 mus ; (a) and also because this custom is of such a 
 nature as if in this manner it were expressly stipu- 
 lated, when the marriage was contracted, that also 
 property situate in places where community is not 
 in vogue would nevertheless come under the com- 
 munity tanquam ex contractu. In the same way a 
 woman marrying in Holland must be considered to 
 have delegated to her husband the power customary 
 in Holland. This power will be of effect everywhere, 
 without recognising any difference of place, sicut et 
 de testamento dicitur, in quo servata est loci, ubi 
 factum est, consuetudo, porrigi etiam ad bona facta 
 jam loco ubi alia est consuetudo. (6) 
 
 Amsterdam, 
 
 February 26, 1632. 
 
 (a) D. 27, 7, 12. 
 
 (6) Pres. Ever., Cons. 185. 
 
140 OPINIONS OP GROTIUS. [No. U. 
 
 The subject here discussed by Grotius is one of very great 
 importance, and has been fully commented upon in a previous 
 Opinion (Opinion No. 9 (Holl. Cons. III. (B.) 196) under 
 "Domicile" — subdivision "Marriage," p.8j£>£ seq., supra). 
 
 The reason here assigned by Grotius "tor the recognition 
 of the custom prevailing at the matrimonial domicile, viz., 
 that the marital power relates chiefly and principally to 
 persons, and only indirectly to property, coincides exactly 
 with the conclusions arrived at by Bell, J., in the case of 
 Blatchford v. Blatchford's Executors (E. D. C. 1, pp. 369 and 
 370, referred to in annotation to Opinion No. 9, p. 89, supra). 
 The present opinion is, however, not referred to in the judg- 
 ment, owing, no doubt, to the fact that the consultations of 
 Grotius in the Hollandsche Consultation cannot be readily 
 consulted, and that the original text presents a somewhat 
 uninviting appearance. 
 
 As regards movables, at all events, the law of the domicile 
 of the husband will govern the marriage contract and settle- 
 ment as to its incidents ( Van der Bijl's Assignees v. Van der 
 Bijl, 5 J. 170). 
 
ANTE-NUPTIAL CONTRACTS. 
 
 {PACTA ANTE-NUPT1ALIA) 
 
 Ad Opinions Nos. 15-18. 
 
 An ante-nuptial contract is an agreement made by two in- 
 tending 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. Pacta ante-nuptialia cum 
 latissime pateant, vix aliter definiri posse videntur, nisi ut sint 
 conventiones inter faturos conjuges, aliosve, quorum interest, de 
 legibus sive conditionibus, quibus regi debeat matrimonium,.(c) 
 
 The reasons for entering into a contract of this description 
 are twofold. The circumstances of the future spouses may 
 be very unequal, and each, or at all events one of them, may 
 desire to retain his or her property intact and free from 
 community; or the future spouses may desire to be free 
 from liability for each other's debts, or to avoid the loss 
 which may be incurred under a community of property.(d) 
 A third reason, closely connected with the last, is that the 
 husband sometimes wishes to protect his estate against his 
 lawful creditors in case of insolvency. There can be no 
 doubt that ante-nuptial contracts, if not originally expressly 
 entered into for that purpose, do in practice afford a shelter 
 to many an insolvent against the just claims of his creditors. 
 Of course, this is not due to any inherent fault in the contract 
 itself, but must be attributed to the apathy and carelessness of 
 creditors, not sufficiently vigilant to guard their own interests, 
 
 (c) Van der Keessel, Thes. Sel., 228. 
 
 (d) Van Leeuwen, Bom. Hoi. Becht., iv. 2i, 1. 
 
 141 
 
142 OPINIONS OF GKOTIUS. 
 
 and to the difficulty with which undue preferences, under 
 cover of the ante-nuptial contract, are sometimes detected. 
 
 Formerly an ante-nuptial contract could ah initio be 
 •entered into verbally,(e) but now it must be made before a 
 notary and witnesses, and must be registered. An under- 
 hand contract cannot be registered, and is therefore of 
 no effect.(/) Before the law which compels the registra- 
 tion of ante-nuptial contracts (Act 21, 1875) came into force 
 in the Cape Colony, the Supreme Court there had decided 
 that an ante-nuptial contract, in order to be valid and 
 effectual against third parties, must be in writing,(^) and 
 must be notarially executed and signed by two witnesses. 
 (Vide Van der Linden, Institutes, Book i. 3, 3, and Voet, 
 xxiii. 4, 50.) 
 
 When registered, a duplicate of the original contract must 
 be filed in the Deeds Begistry.(A) 
 
 Apart from local ordinances, the registration of an ante- 
 nuptial contract is essential to its validity, and such a contract 
 had, according to the weight of Boman-Dutch authorities, to 
 be a public instrument, and had to be registered.(i) 
 
 If the ante-nuptial contract does not fully comply with the 
 requirements of law, the courts will always grant equitable 
 relief, if such non-compliance is to be ascribed to ignorance, 
 mistake, or the force of circumstances.(/<;) Thus when, through 
 ignorance, a contract has been executed underhand, the court 
 will, upon petition, order a notarial deed of like import to 
 be executed.(Z) 
 
 When the notary to whom the execution and registration 
 
 (c) Grotius, Introd., ii. 12, 4. Van der Keessel, Thes. Sel., 229. 
 
 (/) Tennant, Notary's Manual, p. 228. Act 21, 1875, § 9. 
 
 (g) Wright v. Barry et Uxor (1850), 1 Menz. 175. Twentyman and 
 Another v. Hewitt (1833), 1 Menz. 156. 
 
 (h) § 2, Act 21, 1875. 
 
 (i) Wright v. Barry et Uxor, 1 Menz. 175, and 1 S. 6. 
 
 (k) Twentyman and Another v. Hewitt, 1 Menz. 1 56. In re Moolman, 
 J. 1, 25. Ex parte Purchase and Wife, J. 3, 84. Schoombie v. Schoombie's 
 Trustees, J. 5, 189. Hutcheon v. The Registrar of Deeds of Kaffraria, 
 E. D. C. 3, 229. 
 
 (1) Twentyman and Another v. Hewitt, mpra. Ex parte Purchase and 
 Wife, supra. 
 
OPINIONS OF GROTIUS. 143 
 
 of the contract is intrusted dies before effecting registra- 
 tion, or fails to register the contract within the prescribed 
 time, the court will allow the contract to be registered subse- 
 quently; but such registration will not affect the rights of 
 creditors who became such between the date of the marriage 
 and subsequent registration.(m) 
 
 The case of Schoomhie v. Schoombie's Trustees (J. 5, 189) 
 takes this matter a step farther, and is a very strong case 
 to show the equitable discretion exercised by the courts. 
 Schoombie and his wife signed a power of attorney on 
 February 8, 1879, in favour of a notary to enter into an 
 ante-nuptial contract. The power set forth the conditions 
 and stipulations desired. On February 11 the parties got 
 married, and subsequently, on February 15, the notary 
 executed and registered the contract. In 1883 Schoombie 
 became insolvent. Under these circumstances the court 
 held that the ante-nuptial contract as registered was valid 
 and effectual ; that the only creditors who might be heard in 
 opposition were those who became such between the date of 
 the marriage and of the subsequent registration, and that 
 creditors whose claims arose after the registration could 
 not impeach the contract, for they had notice of the con- 
 tract through its registration, and were not prejudiced in 
 their rights. 
 
 An ante-nuptial contract can be drawn up upon entering 
 a first, second, or third marriage, and the relations thus in- 
 troduced between husband and wife will take the place of 
 the community of property which would otherwise subsist 
 either at a first or subsequent marriage ; (n) but where the 
 lex hae edictali still prevails, a man or woman who enters into 
 a marriage with a widower or widow who has children by 
 a previous marriage cannot stipulate to receive more than a 
 child's share out of the estate of such widower or widow.(o) 
 
 (m.) In re Moolman, J. 1, 25, and per De Villiers, C.J., in Schoombie v. 
 Schoombie's Trustees, J. 5, 189. Dale v. The Begistrar of Deeds, G. 5, 184. 
 
 (ri) Bynkershoek, Qusest. Jus. Priv., 1. ii. c. 2. Van der Keessel, Thes. 
 Sel., 232. 
 
 (o) Grotius, Introd., ii. 12, 6. Van Leeuwen, Gens. For., i. 12, § 13. 
 
144 OPINIONS OF GEOTIUS. 
 
 If no ante-nuptial contract is entered into, community of 
 property will at once prevail as soon as the marriage has 
 been solemnised, and all the property of the spouses will 
 become common.(^) 
 
 From the definition of an ante-nuptial contract as given 
 above it appears — 
 
 (1.) That this contract cannot be legally entered into where 
 the spouses, even when minors, are unwilling. 
 
 (2.) That the consent of the relatives is not required when 
 the contracting parties are majors. 
 
 (3.) That strangers or relatives who may wish to exercise 
 any liberality towards the spouses can become parties to the 
 contract. 
 
 (4.) That the parties, in case of diversity of statutes, can 
 choose generally or specially any particular statute by which 
 they desire their marriage to be regulated.^) 
 
 The subjects of this pactum dotale are chiefly three in 
 number: — (1) The property of the future spouses; (2) the 
 property of the children, and (3) the property of some third 
 party. 
 
 Van der Keessel, in Theses 234-244, gives in extenso the 
 usual conditions inserted in different dotal contracts. 
 
 It is of the very essence of an ante-nuptial contract that it 
 should be made before marriage, and since gifts between 
 husband and wife are not allowed, this contract cannot 
 be altered inter vivos stante matrimonio, for thereby one of 
 the parties would presumably benefit the other. Nor can 
 the contract be revoked by mutual consent, for the same 
 reasons.(r) Thus where it was stipulated in an ante-nuptial 
 contract that there should be community of property, sub- 
 ject to this exception, however, that certain property be- 
 longing to the wife should be vested in trustees (appointed 
 for that purpose by deed of even date with the contract), as 
 
 (p) Grotius, Introd., ii. 12, 5. Van der Keessel, Thes. Sel., 231. Van 
 Leeuwen, Bom. Hoi. Keen., iv. xxiv. § 4 and 5. 
 (q) Van der Keessel, Thes. Sel., 227. 
 (r) .Van der Linden, i. 3, 5. Grot., Introd., 3, 2, 9. 
 
OPINIONS OF GEOTIUS. 145 
 
 the sole and separate property of the wife, the interest to be 
 duly paid to her, and the property so vested not to be disposed 
 of otherwise than by last will, the Supreme Court of the 
 Cape Colony decided that this appointment of the trustees 
 could not be revoked by the wife after marriage, nor by the 
 husband and wife jointly.(s) 
 
 It does not appear to have been definitely decided whether 
 ante-nuptial contracts with respect to future succession {/pacta 
 successoria) are irrevocable or not. Van der Linden says that 
 in this respect they are like last wills, and should therefore 
 be considered revocable,^) in the same manner as testaments, 
 and he is borne out in his contention by Grotius in Opinion 
 No. 15, 1 Holl. Cons. III. (b.) 185. 
 
 If the ante-nuptial contract regulates the succession to the 
 estates of the children of the marriage, the children can 
 depart therefrom by last will ; but if they fail to do so, they 
 will be considered to have acquiesced in the terms of the 
 contract.(w) 
 
 It is usual to annex to the contract an inventory or 
 schedule of the separate property brought in at the time of 
 the marriage. If this is not done, the ownership and value 
 of the property will have to be proved aliunde.(v) In order 
 to ensure the proper carrying out of the terms of the ante- 
 nuptial contract, and a full and unquestionable separation of 
 the estates of the spouses, trustees are often appointed in the 
 interests of the wife, either in the contract itself or by sepa- 
 rate deed. The trustees, as such, have a locus standi injudi- 
 cio, and can compel the husband to execute the terms of the 
 contract by order of court, and he may be civilly imprisoned 
 for non-compliance with such order. (*) In the same manner 
 that the other terms of an ante-nuptial contract cannot be 
 revoked or modified after marriage, so the appointment of 
 
 («) Buissinne and Another v. Mulder et Uxor, 1 Menz. 162. 
 (t) Van der Linden, Institutes, 1, 3, 5, et in notis. 
 (u) Opinion 16, Holl. Cons. III. (b.) 307. 
 
 (u) Boyes v. Verzigman, Buc. 1879, p. 229. Grotius, Opinion No. 15. 
 Grotius, Opinion, No. 26, Holl. Cons. III. (b.) 164. Van der Keessel, Thes., 230. 
 (x) Twentyman and Another v. Hewitt, 1 Menz. 156. 
 
 K 
 
146 OPINIONS OF GKOTIUS. 
 
 trustees under it cannot be annulled or altered either by 
 one or both spouses.(«/) Upon the death or insolvency of 
 a trustee appointed by ante-nuptial contract, the court will 
 appoint a trustee or trustees in his place ; and likewise the 
 court will remove a trustee who absents himself from the 
 country and has become insolvent.^) When no trustees 
 have been appointed to administer certain property which 
 the husband conferred on his wife by ante-nuptial contract, 
 and the husband continued to control and administer such 
 property, the property will be considered as merged in the 
 joint estate, and will be at the disposal of the husband's 
 creditors.(a) The appointment of trustees, or strong evidence 
 of the sole control of the wife, will, however, rebut the pre- 
 sumption of merger. 
 
 If community of property only is excluded and the 
 marital power is not revoked, or the wife does not stipulate 
 that she, and not her husband, shall have the sole and 
 uncontrolled administration of her property, he may at 
 his pleasure, and without her consent, alienate or encumber 
 her property, (b) She may, however, stipulate that her 
 husband shall not have the administration of her property. 
 If, contrary to this stipulation, he alienates her property, 
 she has an action rei vindicatio against him, as well as an 
 action for damages sustained. She also has the right to 
 apply for a judicial interdict restraining her husband from 
 administering her property, if he attempts to do so.(c) 
 
 In Holland, and also formerly in South Africa, a woman 
 married out of community of property by ante-nuptial 
 contract could institute or defend an action against her 
 private estate without the assistance and authority of her 
 husband,(d) yet the practice now is that she must sue or 
 be sued, assisted in as far as necessary by her husband, 
 
 (y) Buissinpe and Another v. Mulder et Uxor, 1 Menz. 162. 
 
 (z) Sinclair v. Meintjes, Buc. 1874, 40. 
 
 (a) Steyn v. Trustee of Steyn, Buc. 1874, 16. 
 
 (6) Grotius, Introd. i. 5, 22. 
 
 (o) Ibid., i. 5, 24. 
 
 {d) Bechtsgeleerde Observation, pt. 4, obs. 7. 
 
OPINIONS OF GEOTIUS. 147 
 
 and a copy of the summons must be served on him as 
 well.(e), (/) The "assistance" rendered by the husband 
 is confined to his signing the power of attorney with his 
 wife to institute or defend the action.^) 
 
 If the jus mariti is excluded, the wife can give her 
 husband a general power of attorney, and any alienation 
 or mortgage by him by virtue of such power will be held 
 valid and effectual ; (A) but in the absence of any such 
 power the wife can always institute an action for the 
 recovery of her property alienated by her husband con- 
 trary to the terms of the ante-nuptial contract.(i) 
 
 Donations between husband and wife are voidable,(&) 
 and the wife will be liable for any damnum or loss in 
 connection therewith as against a third innocent party ; 
 and if such third party has been led to believe through 
 the actions of the wife that the property belonged to her, 
 she will be estopped from setting up the defence that the 
 gift was ab initio null and void.(Z) 
 
 Gifts or donations before marriage are of course allow- 
 able. 
 
 Donatio propter nuptias is a gift or settlement by the 
 man to the woman and is intended to be devoted to the 
 marriage expenses, (m) 
 
 Dos or oloiury is a settlement made by a woman, or by 
 some one on her behalf, upon the man to whom she is 
 
 (e) Prince q.q. Dieleman v. Anderson and Others, 1 Menz. p. 176. Lands- 
 berg v. Marchand, 1 Menz. 200. 
 
 (/) Tennant in Ms Notary's Manual says, on p. 229 (edit. 1877), "If the 
 wife has reserved to herself by ante-nuptial contract the uncontrolled 
 administration and alienation of her property, she may act in law without 
 her husband's consent," and quotes in support of this statement the 
 Eechtsgeleerde Observatien, pt. 4, obs. The cases quoted in the pre- 
 ceding footnote were decided in 1829 and 1834 respectively, but they are 
 not referred to by Tennant. 
 
 (g) Van Zijls, Jud. Prac. " Actions," C. L. J., vol. ii. p. 300. 
 
 (A) Laing v. Zastron's Executrix, 1 M. 229. 
 
 (i) Morkel v. Holm, 2 J. 60. 
 
 \h) In re Insolv. Estate of Williams (Natal, Aug. 25, 1885), O. L. J., vol. 
 ii. p. 271. 
 
 (I) Union Bank v. Spence, 4 J. 339. 
 
 (m) C. 5, 3 ; O. 5, 12, 20 ; D. 23, 3, 7. 
 
148 OPINION'S OF GEOTIUS. 
 
 betrothed, and this is likewise intended to be devoted 
 to the marriage expenses. Under the Civil Law there 
 were two kinds of dowry. The first was called dos pro- 
 feditia, arising from the estate or deed of the bride's 
 father, and dos adventitia, arising from some other source.(«) 
 The distinctions are, however, not observed in Eoman- 
 Dutch law. 
 
 Marriage settlements are to a certain extent favoured 
 transactions,(o) but it must not be forgotten that they are 
 entered into in opposition to the Common Law. They must, 
 therefore, be construed and interpreted strictly, and the 
 exact terms of the contract must be adhered to. That which 
 is omitted in the contract must be decided according to the 
 Common Law. Thus, as has before been stated, if the communio 
 bonorum is excluded, the jus mariti will still be of force. 
 Likewise the exclusion of community of property does not 
 include an exclusion of profit and loss, unless this is also 
 specifically or impliedly excluded.(p) In construing the 
 terms of an ante-nuptial contract, the intention of the parties 
 must be inferred from the whole tenor of the deed. Thus, 
 if community of property and community of debts be ex- 
 cluded, community of profit and loss will be taken to have 
 been excluded also.(_p) 
 
 The wife cannot stipulate that she is to participate 
 in the profits without being liable for a share in the 
 losses, (q) 
 
 The fruits of the property become part of the community, 
 unless it was expressly stipulated to the contrary. 
 
 A child cannot renounce his right to his legitimate portion, 
 and this must be left absolutely free and unencumbered, but 
 an important exception to this rule is where the rights of 
 the child have been restricted by ante-nuptial contract.(r) 
 
 [n) D. 23, 3, 5. 
 
 (o) Grotius, Introd. 2, 12, 11. Cens. Fors., 4, 11, 5. Van der Keessel, 
 Thes., 93. Voet, 23, 4, 50. 
 
 (p) Boyes v. Verzigman, Buc. 1879, p. 229. 
 
 {q) Grotins, Introd. 2, 12, 9. 
 
 (r) Voet, 5, 2, 36. Sande, 4, 2, 4. 
 
OPINIONS OF GROTIUS. 149 
 
 And therefore if a child settled by ante-nuptial contract, 
 during her father's lifetime, all her property in possession 
 and expectancy upon trustees, she cannot, upon the death 
 of her father, claim to have her legitimate portion paid 
 to her personally. This portion will hare to be paid to 
 the trustees appointed under the ante-nuptial contractus) 
 The private estate of the wife will be liable for any debts 
 contracted by her, and if she incurs any liability " assisted 
 by her husband," her private estate can be attached in execu- 
 tion after the joint estate of herself and her husband has 
 been excussed.(£) 
 
 The spouses may, before marriage, not only prescribe by 
 ante-nuptial contract the rights which they shall enjoy in 
 respect of their separate property, but they may also regu- 
 late the course of succession thereto. Thus it may be 
 stipulated that the survivor shall be entitled to the whole 
 or a denned portion of the estate of the deceased ; that the 
 property shall go to the side whence it came ; that the heirs 
 of the deceased, on receiving a certain part of the inheritance, 
 shall have no further claim upon the estate of the deceased. 
 They may also, in conjunction with their friends if necessary, 
 choose, according to Eoman-Dutch law, the law, whether 
 Aasdoms or Schependoms, by which the terms of the con- 
 tract and the devolution of the property is to be governed. 
 (See Opinion No. 55 infra.) These and similar agreements, 
 although they create an order of succession different from 
 that established by law, will be held valid and effectual, 
 and they (pacta successoria) closely resemble last wills.(w) 
 The wife has a tacit hypothec over the estate of her husband 
 for the restitution of her separate property (dotal), and she 
 is preferred to creditors whose debts were contracted during 
 marriage. This hypothec is still in force, and lasts for a 
 
 (s) Buyskes v. Kussouw's Executors, Buc. 1875, 19. 
 
 (() Brink v. Oliviera, 1 S. 270. 
 
 (u) Voet, 24, i, 57. Sande, Decis. Fris., 2, 2, def. 7. Groenewegen ad 1. 
 5, C. de Pact. Convent. Grotius, Introd. 2, cap. 29. Neostadius de Pact. 
 Antenup., obs. 2 in notis. Burge on Colonial and Foreign Laws, vol. i. 
 cap. 6, 8. 
 
150 OPINIONS OF GKOTIUS. 
 
 third of a century.(») It must, however, be observed that 
 this hypothec of the wife only operates when the parties are 
 married by ante-nuptial contract, and the husband's control 
 and administration of the separate property brought in by 
 the wife is not excluded. When the wife has the sole 
 management of her estate, there can be no dos and no 
 hypothec.(a:) Therefore the wife has no such hypothec for 
 money lent by her to her husband. In insolvency she can 
 only rank as a concurrent creditor, and if she desires any 
 preference, she must obtain a mortgage bond covering the 
 advances made by her.(y) 
 
 Although the wife may reserve to herself the full enjoy- 
 ment and administration of her property, yet she cannot by so 
 doing escape from the liability to which she would otherwise 
 have been subject under the provisions of the Common Law. 
 Therefore the tacit hypothec of a landlord for arrears of rent 
 will extend over the separate property of the wife invecta et 
 illata.(z) The wife can stipulate by ante-nuptial contract 
 that the property brought in by her at the time of the 
 marriage shall not be liable to execution for the debts of 
 her husband (Opinion No. 62). 
 
 The wife cannot claim any benefit whatever, nor any 
 compensation out of the estate of the husband, until all the 
 other creditors have been paid, when there has been no 
 community of profit and loss between them(a) If the wife 
 has stipulated to have her property free and unencumbered, 
 and excluded from community, or has reserved her option 
 with regard thereto, and has renounced all profit and loss 
 after the death of her husband, she is entitled to com- 
 
 (v) Voet, 23, 4, 52. PJacaat of Emperor Charles V., 1540. Neostadius de' 
 Pact. Antenup., obs. 9. Groenewegen ad 1. 30, C. de Jur. Dot. Holl. Cons, 
 p. 2, Cons. 79 et part 4, cons. 266. Censura Forensis i. 1, 12, n. 3. Sande, 
 2, 2, 8, and 3, 12, 3. 
 
 (x) Ruperti's Trustee v. Ruperti, 4 J. 22, and Mostert's Trustee v. Mostert, 
 4 J. 35. 
 
 (y) Ibid. 
 
 (z) Crowly v. Domony, Buc. 1869, 205. 
 
 (a) Grotius, Introd. 2, 12, 17. Groenewegen, footnote to Grotius, 2, 12, 
 17. Neostadius de Pact. Anten. obs. 10. Sande, 1, 2, 5, def. 8. 
 
OPINIONS OF GEOTIUS. 151 
 
 pensation in preference to the other creditors of her 
 husband, (b) > 
 
 The Piacaat of the Emperor Charles V. of the 4th of 
 October 1540 postpones the claims of wives under marriage 
 settlements until the claims of the creditors of their hus- 
 bands are satisfied. This Piacaat formed part of the Eoman- 
 Dutch law,(c) which was introduced by the Dutch colonists 
 upon their settling at the Cape of Good Hope in the year 
 1650.(d) The sixth section of this Piacaat reads as follows: — 
 
 "Further, whereas many merchants take upon them- 
 selves to constitute in favour of their wives large dowries 
 and excessive gifts and benefits upon their property, as well 
 in consideration of marriage as to secure their property with 
 their aforesaid wives and children, and afterwards are found 
 to become incapable to pay and satisfy their creditors, and 
 wish to have their wives and children preferred before all 
 their creditors, to the great injury of the course of com- 
 merce: We will and ordain that the aforesaid wives, who 
 henceforward shall contract marriage with merchants, shall 
 not be entitled to pretend to have or receive any dowry, or 
 any other benefit on the property of their husbands, or to 
 take part and share in the acquisitions made stante matri- 
 monio by the husband, even in cases where property has 
 been actually transferred or specially bound for the purpose, 
 until such time as all the creditors of their aforesaid hus- 
 bands shall be paid and satisfied, and whom we will in 
 respect hereof to be preferred to the aforesaid wives and 
 widows, saving to the latter their right of preference, to 
 which they are entitled by reason of their marriage portion 
 brought into the marriage by them, or obtained by them 
 by gift or succession from their friends and relatives." 
 
 This rule has been extended by several decisions to all 
 marriage settlements by husbands (not necessarily merchants) 
 
 (6) Groenewegen,DeLeg.,c.5, 12,30. Piacaat of Oct. 4,1540. C. 8, 17,12. 
 (c) Grotius, Introd. 2, 12, 17. Van der Keessel, 262-265. 
 \d) Thurburn v. Steward, L. E. 3 P. C. C. 478, Buc. 1869. In re Ihsolv. 
 Estate of Edward L. Chiappinni, Buc. 1869, 143. 
 
152 OPINIONS OF GKOTIUS. 
 
 in favour of their wives, (e) Therefore if by an ante-nuptial 
 contract, excluding community of property and profit and 
 loss, the husband cedes his life policy to his wife, and subse- 
 quently assigns the policy to a third party for valuable con- 
 sideration, the claim of the wife will be postponed to that of 
 the assignee. (/) 
 
 The wife can, however, by ante-nuptial contract, protect 
 her own property against any claim on the part of her 
 husband's creditors, and if such property is wrongfully at- 
 tached and sold in execution, an action for damages will 
 lie.O) (Opinion No. 62.) 
 
 In the Cape Colony this Placaat has been repealed by 
 Act 21, 1875, § 1, and other provisions substituted, viz. : — 
 
 An ante-nuptial contract, whereby one of the spouses 
 settles upon the other any movable or immovable property, 
 may be impeached by the creditors of such spouse, should 
 his or her estate be sequestrated within two years of the 
 date of such settlement, (h) And if the contract contains a 
 stipulation that a certain sum of money or other beneficial 
 provision shall be given or made by one spouse in favour of 
 the other at death or any other time, the creditors may im- 
 peach the contract and subsequent payment, cession, or 
 mortgage, to satisfy or cover the amount or provision stipu- 
 lated, upon the insolvency of the grantor, and it be proved 
 that such stipulation was made to defraud the said creditors. 
 Five years after the making of such payment or provision, 
 it cannot be impeached. Nor can a special conventional 
 hypothec by one spouse in favour of the other be impeached 
 by creditors, if made at the time the convention was entered 
 into to secure the performance thereof.(i) 
 
 (e) S. A. Bank Trustees v. Chiappinni, Buch. 1869, 143. Steyn v. Steyn, 
 Buoh. 1873, 105, and 1874, 16. Re Paterson's Marriage Settlement, 1869, 
 96. Thurburn v. Steward (Appeal), L. B. 3, P. C. C. 478. Hurley v. Palier, 
 1 J. 154. Curator of Van der Merwe's Estate v. Van der Merwe (Transvaal), 
 Kotze's Rep., p. 148. 
 
 (/) Hurley v. Palier, 1 J. 154. . 
 
 (g) Van der Merwe v. Turton and Juta (Transvaal), Kotze's Rep., p. 155. 
 
 (h) Act 21, 1875, § 3. 
 
 (i) Act 21, 1875, § 4. 
 
OPINIONS OF GROTITJS. 153 
 
 If, by ante-nuptial contract, a conditional or contingent 
 provision is made by one of the spouses in favour of the 
 other, the claim cannot be ranked either as preferent or 
 concurrent, yet it will not be disregarded entirely upon in- 
 solvency of the spouse who made the provision ; but it must 
 be admitted as a. contingent claim, and the trustee in con- 
 junction with the claimant can put a present value on this 
 contingent proof of debt. (A;) 
 
 The law of the matrimonial domicile will regulate the 
 marriage settlement or. ante-nuptial contract everywhere in 
 the same way that the other incidents to a foreign marriage 
 are regulated. (I) 
 
 If no communio bonorum existed between the spouses at 
 the matrimonial domicile, the communio acqucesluum is not 
 introduced upon a change of residence to a place where such 
 community is in force,(m) — durabit et in novo domicilio, quce 
 inducta est, manebitque exclusa, quce ah initio exclusa fuit.(n) 
 
 If the matrimonial domicile is foreign, the spouses cannot 
 have their ante-nuptial contract registered in a country where 
 they have no domicile and no real property.(o) 
 
 If a divorce is granted by reason of the adultery of one of 
 the spouses, the guilty party may be declared by the court 
 to have forfeited the benefits in his or her favour which 
 were provided for in an ante-nuptial contract between the 
 parties.(jo) 
 
 The forfeiture of benefits is also decreed in case of divorce 
 on the ground of malicious desertion.^) 
 
 (&) Trustees of Leigh v. Leigh, 1 J. 75. 
 
 {1) Aschen's Executrix v. Blythe, 4 J. 136. Black v. Black's Executors, 
 3 J. 200. Blatchford v. Blatchford's Executors, 1 E. D. C, Appendix, 
 p. 365. 
 
 (m) Blatchford v. Blatchford's Executors, 1 E. D. C. 365. 
 
 (») Voet ad Pand., 23, 2, 87. 
 
 (o) In re Orpen, 2 S. 274. 
 
 (p) Voet ad Pand. 48, 5, 11. Van Leeuwen's Cens. For., 1, 15, 9. Higgins 
 v. Higgins, 5 E. D. C. 344, and authorities there cited. Biccard v. Biccard, 
 2 Shiel (C. T. L. R.). 
 
 (q) Dawson v. Dawson, 1 and 2 Sheil, 333, and Censura Forensis, 1, 15, 15. 
 
OPINION No. 15. 
 
 HOLL. CONS. III. B. 185.* 
 [GKOTIUS II. 12, 5; II. 23, 7; II. 24, 9.] 
 
 Ante-nuptial contracts only effective ab intestato can be annulled 
 by testament or tacitly — Donation and legacy — The cities of 
 Holland not sovereign — Their privileges — Domicilium of the 
 wife — -Mistaken motive when leaving a legacy. 
 
 1. Dispositions under an ante-nuptial contract are 
 only effective ab intestato, and can be cancelled and 
 annulled either by testament or tacitly. 
 
 2. Omnis voluntas de successione, qualiscunque 
 sit, ambulatoria esse debet, usque ad supremum 
 vita? exitum. 
 
 3. Legacies and institution of heirs are not in- 
 cluded under the word " donation," and this is 
 specially the case in statutis prohibitoriis et pree- 
 sertim restringentibus testandi libertatem. 
 
 4. Quod est favorabile inter vivos, in ultima 
 voluntate reputatur odiosum. 
 
 5. The cities of Holland and Zeeland, unlike some 
 in Italy, are not sovereign, and have not the right to 
 create customs ex vi jurisdictionis, sed ex vi privi- 
 legii. 
 
 * In connection with this Opinion read Opinion No. 44 (Holl. Cons. III. 
 (b.) 186).— [Ed.] 
 
No. 15.] OPINIONS OF GEOTIUS. 155 
 
 6. The privileges of the cities of Holland and 
 Zeeland empower them to make laws (Keuren) for 
 the city management, such as in matters of industry 
 or city police, and whatever relates thereto, but 
 questions of succession and testaments are not in- 
 cluded thereunder. If they wish to legislate in 
 matters of this kind, they must obtain authority and 
 consent from the sovereign. 
 
 7. If a person makes a disposition according 
 to a certain article of the customs of his place 
 of residence, and afterwards indicates, either by 
 testament or codicil, that he does not wish it to re- 
 main of force and effect, the testament and codicil 
 must be followed, and the heirs and legatees allowed 
 to succeed to whatever was left them under it. 
 
 8. If a person resides in a city without being a 
 citizen there, and having neither citizenship nor fixed 
 domicilium in any other place, his widow remains a 
 citizen of that place unless she alters her domicile. 
 
 9. Falsa causa legato adjecta, non vitiat legatum. 
 
 10. Statutum restringens testandi libertatem, non 
 extenditur ad bona sita extra territorium statuentium. 
 
 11. This is also true, etiamsi statutum loquatur 
 non in rem, sed in personam. 
 
 I have seen an authenticated copy of the ante- 
 nuptial contract of Sr. Hannibal Bobython and Miss 
 Agatha Ockerts, bearing date 18th December 1613, 
 and also a copy of a mutual will and a codicil made 
 by the afore-mentioned spouses. * 
 
 * See Opinion No. U (Holl. Cons. III. (b.) 186).— [Ed.] 
 
156 OPINIONS OF GROTIUS. [No. 
 
 (1) In response to the questions asked (1) with 
 reference to the ante-nuptial contract, wherein the 
 following provision occurs : " The property of the 
 said Agatha shall devolve upon her heirs, and be 
 divided among them according to the customs, 
 Handvesten and Voorboden, of Zierikzee, in case she 
 predeceased her husband," I am of opinion that it 
 cannot prevent the said Agatha from disposing of 
 her property for the benefit of her husband. For 
 according to the recognised customs of Holland and 
 West Friesland, such a disposition by ante-nuptial 
 contract is only of force and effect ab intestato, and 
 can be cancelled or annulled not only by testament, 
 as in the present case, but also tacitly. (2) Omnis 
 enim voluntas de successione, qualiscunque tandem 
 sit, ambulatoria esse debet usque ad vitse supremum 
 exitum.(a) 
 
 (2) Kegarding the 73rd Article of the Eules 
 (Voorboden) of Zierikzee mentioned in the said 
 testament, and reading as follows : — " It is further 
 enacted that where husband and wife wish to make 
 any donation to one another after they are married, 
 these donations must be equal. Two memoranda 
 shall be made thereof, to be kept by them, and if 
 the donation is made in any other than the pre- 
 scribed form, it will be null and void, save and 
 except where there are married children, who will 
 then be entitled to one-half of the property, not 
 only in use and usufruct, but in full ownership. 
 Where there are no children, the heirs will be 
 
 (a) D. 34, 4, 4. 
 
J5-] OPINIONS OF GROTIUS. 157 
 
 entitled to a third unless the donation is very trivial 
 and of no importance." After careful consideration 
 of this article, I have come to the conclusion that 
 it is not applicable to the present case, since it 
 refers to the making of donations, and not to the 
 institution of heirs or of legatees ; quod voce 
 donationis non comprehenditur legatum aut heredis 
 institutio,(6) (3) quod maxime locum habere debet 
 in statutis prohibitoriis et prsesertim restringentibus 
 testandi libertatem.(c) (4) Quod est, Bald, inquit, 
 favorabile inter vivos, supple donatio prohibita inter 
 conjuges, in ultima voluntate reputaretur odiosum.(cZ) 
 It must also be observed that in the preceding 
 Article the making of testaments and donations is 
 distinctly prohibited except under seal of the 
 Schepenen or before an official, &c. If, therefore, 
 the enactments contained in Article 73 were in- 
 tended to refer to testaments as well as to donations, 
 mention should have been specially made of testa- 
 ments. On good grounds too the question may 
 be raised whether the city or the rulers of Zierikzee 
 had the power to enact a prohibition which so 
 greatly conflicts with the common law of the country 
 and restricts the right of free disposition by testa- 
 ment. (5) It is well known that the cities of 
 Holland and Zeeland are not sovereign, like some 
 Italian towns frequently referred to by jurisconsults 
 in materia statuaria, and are therefore incompetent 
 
 (5) Arg. Digest, 24, 1. 
 
 (c) Instit. 1, 7, 1. Hinc Bald, ad C. 1, 1, 1. 
 
 (d) Idem tradit Paris. Cons. 16, lib. 3, et Peck, de Testaro. Conjugam, 
 lib. 4, cap. 28. 
 
158 OPINIONS OF GKOTIUS. [No. 
 
 to create customs ex vi jurisdictionis. (6) It is also 
 well known that most of the privileges granted to 
 the cities of Holland and Zeeland empower them to 
 make laws regulating the city management — that 
 is, in matters of industry and city police, and what- 
 ever relates to these, but questions of succession 
 and wills do not seem to be included thereunder. 
 This is the reason Avhy we notice that in days of old, 
 and even at the present time, when the cities wish 
 to make any law regulating such important matters, 
 they solicit the sanction and approval of the sove- 
 reign. 
 
 (7) Presuming all this to be correct, it follows that 
 Sr. Hannibal would be entitled under the testament 
 to inherit as heir two-thirds of the property of the 
 testatrix, and could claim in addition the household 
 and other furniture mentioned in the aforesaid codicil 
 out of the remaining third left to the relatives, as 
 legatees. For although the said Agatha Ockerts in- 
 tended really, at the time she made her testament, 
 that her relations should inherit a third of her property, 
 thinking that such was in conformity with the afore- 
 mentioned 73rd Article, yet she clearly showed sub- 
 sequently, when making her codicil, that she did 
 not wish to be bound by that Article. (8) The tes- 
 tatrix based her exemption from the operation of the 
 said Article on the fact that her husband was no 
 citizen of the city of Zierikzee, and therefore she could 
 lay no claim to such citizenship either. To this it 
 may be answered that her husband was not a citizen 
 of any other place, nor had he a fixed domicilium 
 
15.] OPINIONS OF GROTIUS. 159 
 
 anywhere else, and that jihe therefore remained a 
 citizen of Zierikzee, et quod non translato domicilio, 
 mulier civis maneat. Still it is sufficient that her 
 intention was not to remain bound by the afore-men- 
 tioned Article, as indicated by the said codicil ; 
 (9) falsa enim causa legato adjecta, legatum non 
 vitiat.(e) 
 
 (10) Taking it for granted that the city of Zierikzee 
 had a special privilege, or exercised the right from 
 time immemorial, to create customs contra libertatem 
 testandi, and that the said 73rd Article was always 
 understood in judiciis contradictoriis to refer to 
 testaments and codicils as well as to donations, and 
 further that there is sufficient evidence to establish 
 this custom, it would follow that the nearest relatives 
 of the testatrix would be entitled to succeed to one- 
 third of her property found and situated within the 
 city and freedom of Zierikzee, and the said Sr. 
 Hannibal would be entitled under the testament 
 (presuming this not to have been abrogated in any 
 respect by the codicil) to succeed to all the property 
 situated outside the city and freedom, together with 
 two-thirds of the property situated therein. Quia 
 statutum restringens testandi libertatem, non exten- 
 ditur ad bona sita extra territorium statuentium.(/) 
 Imo addunt dicti infra Doctores hoc locum habere, 
 
 (e) C. 6, 44 ; Instit. 2, 20, 31. 
 
 (/) Bald. Cons. 137, factum proponitur esse tale, lib. 1, et Cons. 131 circa 
 prsedicta lib. ii. ; et in 1. si arrogatos ff. de adopt, et in 1. 2, C. quae sit 
 longa Cons. Anchor, in c. canonum statuta ; Ext. de constit. Alber. Brunus 
 in tract, stat. art. 8 ; Gail, lib. ii. obs. 124, Nos. 8 and 9, ubi multos allegat 
 et Peckius de tract, lib. 4, cap. 28, ubi loquitur in nostris terminis. 
 

 160 OPINIONS OF GKOTIUS. [No. 15. 
 
 etiam si statutum loquatur non in rem, sed in per- 
 sonam.^) This can be applied to the present case 
 with still greater reason, since the afore-mentioned 
 Article lays down that the heirs are entitled to one- 
 third, which is a disposition in rern.(h) 
 
 Rotterdam, 
 
 16th April 1616. 
 
 {g) Anch. Cods. 143 ; Alex. Cons. 16 lib. i. Doctores fere omnes in C. 1, 
 1, 1 ; Molin. Cons. 81, No. 25, lib. i. ; Gail, obs. 11, Peckius d. loco 
 No. 7. 
 
 (h) Per ea quae tradit Bart, in C. 1, 1, No. 32. 
 
OPINION No. 16. 
 
 HOLL. CONS. III. B. 307. 
 [GROTITJS II. 12, 8; VAN DEE KEESSEL, THES. 241.J 
 
 Stipulation as to succession by ante-nuptial contract — 
 Succession to the children of the spouses. 
 
 1. According to the customs of Holland, parents 
 could regulate the order of succession, not only to 
 their own estates, but also to that of their children ; 
 and if the children made no contrary disposal by 
 testament, they are taken to have acquiesced in the 
 disposition of their parents. 
 
 2. When a father has entered into an agreement 
 with reference to his children, and did not renounce 
 his succession to their estates, such succession having 
 been stipulated for by ante-nuptial contract, he is 
 taken to have reserved the same unto himself, and 
 the terms of the ante-nuptial contract will be 
 followed. 
 
 I have seen a certain ante-nuptial contract, dated 
 15th of April 1579, between Adriaan Frans and 
 Annetge Heyndriks, and also a certain agreement 
 made by the said Adriaan Frans and the guardians of 
 his children after the death of Annetge Heyndriks. 
 
 161 L 
 
162 OPINIONS OF GEOTIUS. [No. 16. 
 
 I have been asked whether Adriaan Frans, afore- 
 mentioned, is entitled to one-half of all the property 
 left by Frans Adriaans, his son, who died at the 
 age of about twenty-eight, intestate, and without 
 children. 
 
 (1) I am of opinion that the decision of this 
 question depends on the customs of Holland, accord- 
 ing to which parents can regulate the order of 
 succession, not only to their own property, but 
 also to that of their children ; and if the children 
 have made no contrary testamentary provisions, they 
 are taken to have acquiesced in the dispositions of 
 their parents. From this it follows that we must 
 consider the present case as if Frans Adriaans had 
 left his father one-half of his estate by testament, 
 which he was allowed to do. The brothers and 
 sisters of the said Frans Adriaans are not entitled 
 to deduct any legitimate or Trebellianic portion, 
 since the father must be taken to have succeeded 
 to half of the property afore-mentioned, not so much 
 by reason of the stipulation of the said Annetge 
 Heyndriks, as by the disposition of Frans Adriaans 
 himself. 
 
 (2) The said agreement does not conflict with 
 this Opinion, since Adriaan Frans did not only leave 
 the succession to his children unrevoked in the ante- 
 nuptial contract, but even expressly reserved the 
 same. 
 
OPINION No. 17. 
 
 HOLL. CONS. V. 130. 
 [GEOTITJS II. 12, 8 ; VAN DEE KEESSEL, THES. 241.] 
 
 Ante-nuptial contract — Eegulation of succession to the 
 children. 
 
 According to the customary law of Holland, parents 
 can regulate the succession not only to themselves, 
 but also to their children. 
 
 I have seen a certain ante-nuptial contract entered 
 into between Adriaan Jans and Annetje Heindriks 
 on the 15th April 1579, as well as certain agree- 
 ments entered into between Adriaan Jans and the 
 guardian of his children, after the death of Annetje 
 Heindriks. I have been asked in connection there- 
 with whether the said Adriaan Jans is entitled to 
 one-half of all the property left by Frans Adriaans, 
 his son, who had died intestate and without children 
 at the age of twenty-eight. 
 
 I am of opinion that a decision on this point 
 depends on the customary law of Holland, which 
 allows parents to regulate by ante-nuptial contract 
 the succession not only to themselves, but also to 
 their children ; and if the children make no contrary 
 
 163 
 
164 OPINIONS OF GEOTIUS. [No. 17. 
 
 testamentary disposition, they are considered to have 
 acquiesced in the parental disposition. From this 
 it follows that we must consider this matter as if 
 Frans Adriaans had himself left one-half of his 
 property to his father by testament, which he could 
 have done. 
 
 The brothers and sisters of the said Frans Adriaans 
 cannot therefore claim a deduction of the Trebel- 
 lianic or legitimate portions, for the father must be 
 considered to inherit the property, not by virtue of 
 the disposition of Annetje Heindriks, but rather by 
 virtue of that of Frans Adriaans. The afore-mentioned 
 agreement does not affect the case, since the said 
 Adriaan Frans* did not only not renounce the suc- 
 cession to his children, but expressly reserved the 
 same.t 
 
 * Adriaan Frans, this must be a misprint for Adriaan Jans, the 
 father.— [Te.] 
 
 t The tenor of this Opinion is the same as that of the preceding, but it 
 has been inserted here because the two are not exactly alike, and it has 
 been thought advisable not to eliminate either. 
 
OPINION No. 18. 
 
 HOLL. CONS. III. B. 184. 
 [GROTIUS II. 12, 8 ; VAN DEE KEESSEL, THES. 241-246.] 
 
 Devolution — Ante-nuptial contract — When children succeed 
 to a dowry — Interpretation. 
 
 1. Dos a patre profecta, mortua filia liberos re- 
 linquente remanet penes liberos, etiamsi pater stipula- 
 tes sit quod omni casu soluti matrimonii, dos rediret 
 ad eum. 
 
 2. Quod juris in dote matris. 
 
 3. Argumentum a simili necessario concludit, ubi 
 nota assimilationis reperitur in lege, aut in con- 
 tractu. 
 
 I have seen a certain ante-nuptial contract entered 
 into between Tonis Pieters Bregman and Leentge 
 Arents Gouwen, spinster, on the 29th March 1606. 
 Klaasje Leenderts, the mother of the bride, promised 
 in the deed to provide 2000 guldens for the purchase 
 of a house, or for any other purpose, as she had 
 done to her son Jacob Gouwen, together with the 
 marriage gifts and paternal portion ; with this con- 
 dition, however, that the 2000 guldens due to the 
 spouses should devolve upon her, the said Klaasje 
 
 165 
 
166 OPINIONS OF GEOTIUS. [No. 
 
 Leenderts, should she survive her daughter Leentge, 
 but not otherwise. 
 
 I have been asked whether the said 2000 guldens 
 must devolve upon the said Klaasje Leenderts, or 
 must go to the children of Leentge Gouwen afore- 
 mentioned, since the latter died, leaving as survivors 
 her husband and the children procreated by him. 
 
 I am of opinion, that although the words of the 
 ante-nuptial contract with reference to the devolution 
 of the 2000 guldens to Klaasje Leenderts have a 
 general significance, and make no distinction whether 
 there are children or not, yet it may be well contended 
 that it was her intention, as well as of the contracting 
 parties at the time of the marriage, that such devolu- 
 tion should take place in case Leentge Gouwen died 
 without offspring, intimating that the said -Klaasje 
 Leenderts wished to make provision that her money 
 should not go to strangers. With this agrees the 
 opinion of several notable jurisconsults : — Quod dos 
 a patre profecta, mortua filia, liberos relinquente, 
 remanet penes liberos, quam opinionem consuetudine 
 approbatam ait Bart, (a) Imo etiamsi pater stipu- 
 latus sit quod omni casu soluti matrimonii dos 
 rediret ad eum, locum tamen forte isti consuetudini 
 ait Bald. ,(6) quod multo magis optinebit, si simpli- 
 citer concepta sit stipulatio, ut dos ad eum redeat(c) 
 
 2. This opinion is contradicted by other juris- 
 
 (o) Bart, in 1. dos a patre^ D. 24, 3 ; Joh. And. in addit ad spec, in D. 
 24, 1, § fin. circa princ; Bald, in Code 6, 61, 2. 
 
 (6) Bald, ad d. 1. consuetudines. 
 
 (c) Ut tradit Joh. Campesius tract, dedote, qusest. 157. Cf. D. 24, 3 40, 
 Arg. a contrario sensu, et C. 6, 20, 19. 
 
18.] OPINIONS OF GEOTIUS. 167 
 
 consults, and it may be further disputed whether it 
 can be applied to both the property given by the 
 mother at the time of the marriage and to that 
 obtained from the father's estate. Tonis Pieters, as 
 representing the interests of his children, must there- 
 fore obtain accurate information whether Klaasje 
 Leenderts, when she gave a like sum of 2000 
 guldens to Jacob Gouwen, her son, stipulated that 
 the money should return to her on the death of 
 Jacob Gouwen if he left any children. 
 
 3. If this was not stipulated, and if, on the other 
 hand, it must be taken that the money was to remain 
 for the benefit of the children, in case he left any, 
 the same ought to be taken to have been stipulated 
 with regard to the children of Leentge Gouwen, on 
 account of the word " as " which occurs in the ante- 
 nuptial contract, for by it no distinction whatever 
 was made between the money given to Jacob and 
 to Leentge Gouwen. Quod argumentum a simili 
 necessario concludit, ubi nota assimilationis reperi- 
 tur in lege, aut in contractu, (d) 
 
 Rotterdam, 
 
 ( Date uncertain). 
 
 (d) Bald, ad Code 9, 1, 9, et Code 4, 10, 2. 
 
168 OPINIONS OF GROTIUS. 
 
 TESTAMENTS. 
 
 Vide OPINIONS Nos. I. supra and XIX.-L. infra. 
 
 §1. 
 
 WILLS AMONG THE ROMANS. 
 
 Upon examining the subject of testaments, as now known 
 to us, we are apt, after hasty consideration, to assume that 
 the practice of testamentary dispositions was universal and 
 prompted by an original instinct since the earliest time. 
 On thorough examination, however, it will be found, if care- 
 ful attention be directed to the historical aspect of the 
 matter, that such is not the case. No trace of the conception 
 of a will is found among the early barbarians, and the best 
 ascertained facts in the early history of law lead to the 
 conclusion that in all indigenous societies a condition of 
 jurisprudence in which testamentary privileges are not 
 allowed, or rather not contemplated, has preceded the later 
 stage of legal development, in which the mere will of the 
 proprietor is permitted, under more or less of restriction, 
 to override the claims of his kindred and blood.(e) 
 
 By reason of the close analogy between the Eoman-Dutch 
 law which obtained in Holland, and is still followed in the 
 Colonies once subject to Dutch rule, and the Eoman law, 
 it has been considered advisable to give a fairly detailed 
 account of the origin of wills among the Eomans, before 
 proceeding to consider the Eoman-Dutch law and the South 
 African case law on the subject. 
 
 The conception of a will brings with it several other 
 conceptions, viz. — inheritance, succession. An inheritance 
 is a form of universal succession. 
 
 In order to understand what is meant by universal 
 succession, we must first have a definition of a universitas 
 juris. A universitas juris is a collection of rights and duties 
 
 (e) The history of ancient testamentary succession has been most fully 
 and learnedly discussed by Sir Henry Maine {Ancient Law, cap. 6). 
 
OPINIONS OF GEOTIUS. 169 
 
 united by the single circumstance of their having belonged at 
 one time to some one person.(/) It is, as it were, the legal 
 persona or clothing of an individual. 
 
 Universal succession is a succession to the universitas juris. 
 This happens when one individual is invested with the legal 
 clothing — rights, duties and liabilities — of another. This 
 need not necessarily occur at death, as will be seen from the 
 following instances. 
 
 • (1.) Under insolvency, by bonorum venditio the assignee 
 succeeds to the universitas juris of the bankrupt. 
 
 (2.) By adoption, the paterfamilias succeeded universally 
 to all the rights and obligations of the adoptive child. 
 
 (3.) By bonorum addictio — surrender to a slave. 
 
 (4.) Ex Senatusc. Claudiano. 
 
 The two last-mentioned examples, however, afford instances 
 of partial rather than universal succession. 
 
 Lastly comes succession by inheritance, which was a 
 universal succession at death. 
 
 " Hmreditas est successio in universum jus quod defunctus 
 habuit." 
 
 The gradual growth of the conceptions of individual rights 
 and the development of individual property through the 
 "family" from "community!' have left clearly distinctive 
 traces on the gradual development of wills generally. Thus 
 it is that, whilst under ancient Eoman law, inheritance, as 
 a form of universal succession, was aimed at in wills, under 
 later Eoman law and modern testamentary jurisprudence, 
 chief importance is attached to the execution and significa- 
 tion of the testator's intentions. 
 
 Modestinus defines a testament as "voluntatis nostrse 
 justa sententia de eo quod, quis post-mortem suam fieri 
 vult." (g) Ulpian is very much to the same effect, giving as 
 a definition " mentis nostra justa contestatio, in id solemniter 
 facta, ut post-mortem nostram valeat."(A) 
 
 (/) Maine's Ancient Law, p. 178. (g) D. 28, 1, 1. 
 
 (A) Reg. 20, 1. Et vide the discussion by Grotius in Opinion No. ] as 
 to the position of the testator under the jus natv/rm. 
 
170 OPINIONS OF GROTIUS. 
 
 At first two kinds of testaments were in use among the 
 Eomans. The one called calata comitiis, because it was 
 made in the comitia eatoa— that is, the comitia curiata, a 
 legislative assembly of the patrician burghers of Eome, 
 representing the gentes or houses of the patrician citizens. 
 The object in relegating the making of wills to this assembly- 
 was, says Maine,^) "intended to secure the gentes in their 
 privilege to ultimate inheritance,'' in the absence of any 
 sui (direct descendant) or of the nearest agnate. The other 
 kind of testament was called procinctum. This could be 
 made just before going into battle, and did not come before 
 the comitia curiata.(¥) 
 
 When the power of the plebeians increased, and their 
 rights were insisted upon, the patricians entertained many 
 of their demands. The contention between them eventually 
 gave rise to another form of will, to which may be traced 
 the origin of all modern testaments. The Twelve Tables 
 effected a compromise (sometimes called the Decemviral 
 compromise), and enacted "Paterfamilias uti de pecunid 
 tuteldve rei sum legdssit, ita jus esto." 
 
 This Will was effected in the same manner as a Eoman 
 mancipium, sale or conveyance, and was called per ces et 
 libram. Gaius describes the procedure in full. In early 
 times the vendee was the heir, and he received the testator's 
 instructions direct respecting the disposition of the property. 
 This had its disadvantages, for after the sale the testator had 
 no further control over the property or the actions of the 
 heir, and the mancipation or sale was irrevocable. A way 
 out of the difficulty presented itself. A third party was 
 introduced for form's sake, and made to represent the pur- 
 chaser. The will was not at first in writing, and certain 
 symbols and phrases were introduced to supply the place 
 afterwards filled by documentary forms. 
 
 The proceedings were as follows : — The testator having 
 summoned, as is done in other mancipations, five witnesses, 
 
 (i) Maine's Ancient Law, p. 200. 
 
 (A) Gaius, ii. 101-104. Justinian, ii. 10, 1. 
 
OPINIONS OF GROTTTJS. 171 
 
 all Eoman citizens of the age of puberty, and a holder of 
 the scales, and having already reduced his will to writing, 
 makes a fictitious mancipation of his estate to a certain 
 vendee, who thereupon utters these words : Familiam pecuni- 
 amque tuam endo mandatela tutela custodelaque meet, esse 
 aio eaque, quo tu jure testamentum facere possis secundum 
 legem publicam, hoc aere (and, as some add), ceneaque libra 
 esto mihi empta. ("Thy family and thy money into my 
 charge, ward, and custody I receive, and in order to validate 
 thy will conformably to Eoman law with this ingot" — 
 (further) "with this scale and bronze unto me it is pur- 
 chased." He (the vendee) then strikes the scale with the 
 ingot and delivers the latter to the testator, as by way of 
 purchase-money. Thereupon the testator holding the tablets 
 of his will says as follows : Hcec ita ut in his tabulis cerisque 
 scripta sunt ita do, ita lego, ita testor itaque vos Quirites testi- 
 monium mihi perhibetote. (" This estate, as in these tablets 
 and in this wax is written, I so grant, so devise, so dispose, 
 and do you, Quirites, so give me your attestation.") These 
 words are called the nuncupatio, for nuncupation signifies 
 public declaration, and by these general words the specific 
 written dispositions of the testator are published and con- 
 firmed^^) 
 
 The vendee was called the emptor familice, and the holder 
 of the balance libripens. Both were considered witnesses, 
 and none of the other five witnesses were to be in the power 
 either of the testator or of the familice emptor. The whole 
 fictitious sale was based on the ancient mancipium, which 
 was a contract of conveyance or sale. This is the link which 
 associates mils and contracts. At first, the nuncupatio and 
 fictitious sale was an unconditional transfer of the hesreditas, 
 but later more attention was paid to the written tablets 
 referred to; the sale became a matter of form, and the real 
 testament was that which the testator wrote. 
 
 The kinds of wills above mentioned belong to the Civil 
 Law. At an epoch which cannot be settled with accuracy, 
 
 (I) Gaius, 2, 104. 
 
172 OPINIONS OF GEOTIUS. 
 
 the praetors began to take cognisance of testaments, and 
 allowed the solemnities in connection therewith to be per- 
 formed in closer conformity with the spirit than the letter 
 of the law. By the jus honorarium, the fictitious sale was 
 dispensed with, and the testator merely recited his will in 
 the presence of seven witnesses. No emblematic ceremony 
 was gone through, and the witnesses, two of whom repre- 
 sented the familice emptor and the libripens, merely sealed 
 the will on the outside with their seals. 
 
 In 439 A.D. the final stage was reached. The Imperial 
 Constitutions of Valentinian III. in the East, and Theodosius 
 II., his colleague, in the West, enacted that the execution 
 of wills should take place in the presence of seven witnesses, 
 present at one and the same time, and should be signed and 
 sealed by the witnesses then and there. This new kind of 
 will was known as the testamentum tripartitum, on account 
 of its triple origin, since the formality of seven witnesses, 
 present at the same time, was derived from the Civil Law, 
 that of the sealing of the will from the Praetorian Law, and 
 that of the signature from the Imperial Constitutions. It 
 seems, however, that the testamentum tripartitum never en- 
 tirely supplanted the testamentum per ces et libram in the 
 West.(m) 
 
 The witnesses must be present of their own accord, and 
 specially summoned, (n) and the testator must sign the part 
 of the will shown to the witnesses. If he cannot write, an 
 eighth person must sign the will for him in the presence 
 of the witnesses. If the will is in the handwriting of the 
 testator, his signature is not absolutely necessary.(o) The 
 whole transaction must be uninterrupted, and unmixed with 
 any other business — Est autem uno contextu nullum actum 
 alienum testamento intermiscere.(p) 
 
 The private nuncupative or oral will was another form 
 of will which existed at the time of Justinian. If a man 
 
 (m) Sandar's Justinian, note ad 2, 10, 3. 
 (») D. 28, 125. D. 28, 1, 20, 8. 
 (o) C. 6, 23, 21, Pr. 
 (p) D. 28, 1, 21, 3. 
 
OPINIONS OF GEOTIUS. 173 
 
 did not wish to commit his will to writing, he could declare 
 his wishes as to the succession of his estate before seven 
 witnesses, (q) 
 
 Testators were also allowed to declare their last will in 
 the presence of a magistrate, or to have a memorandum 
 thereof filed on the court records. This was known as a 
 public nuncupative will.(r) 
 
 The formalities above mentioned were dispensed with 
 in regard to soldiers whilst their names were inscribed on 
 the list of the army (in numeris). Their testaments were 
 valid though made without any legal formality or the 
 requisite number of witnesses. Nevertheless such wills had 
 to be proved by witnesses to avoid impositions, as decreed by 
 the Emperor Trajan.(s) The will held good for one year 
 after discharge from the army, but not if he was dismissed 
 ignominice causa.(t) 
 
 The same privilege was allowed to seamen in the service 
 of the state.(w) 
 
 Blind persons had to make their wills in the presence of a 
 notary (tabularius) and seven witnesses.('p) 
 
 §2. 
 
 After the introductory remarks above made, the Eoman- 
 Dutch testamentary jurisprudence claims our chief atten- 
 tion. 
 
 Grotius defines a last will or testament as " a declaration 
 as to what a person desires should become of his property 
 after his decease." ( Uyterste wille is een oorkonde van 't gunt 
 yemand wil dat van 't zijn na zijn dood zal geschiederi).(x) 
 Ordinarily a will contains various provisions, e.g., regarding 
 the guardianship of the children of the testator, the funeral, 
 
 ( 2 ) C. 6, 23, 21, 2. 
 
 (r) C. 6, 23, 19. 
 
 (s) Instit. 2, 11, 1, 2, 3. 
 
 {t) D. 29, 1, 38, 1. 
 
 (u) D. 37, 13, 1, 1 (Pr.). 
 
 (v) C. 6, 22, 8. 
 
 (a;) Grotius, Introd. 2, 14, 4, and 2, 14, 15. 
 
174 OPINIONS OF GEOTIUS. 
 
 the administration of the estate, and general stipulations as 
 to the devolution of the property. The two main provisions, 
 though not absolutely essential, refer to the institution of 
 the heir and the bequest of legacies. 
 
 CAPACITY TO TESTATE. 
 
 Every person, male or female, can make a last will, unless 
 declared incapable by law. 
 
 Incapacitated persons are — 
 
 (1.) Persons who have not attained the age of puberty, 
 which for males is fixed at fourteen, and for females at twelve 
 years. If special dispensation has been obtained to make a 
 will at an earlier age, its validity cannot be impugned, (y) 
 
 (2.) Persons who by reason of mental debility are incap- 
 able of managing their own affairs, such as lunatics and 
 idiots. If they have clearly lucid intervals, they can make 
 a will, (a) The same restriction holds with regard to persons 
 who are so drunk that they are incapable of reasoning. The 
 mere allegation by the notary in the heading of the testa- 
 ment to the effect that the testator was in a "sane and 
 sober" mind will not validate such a testament. (a) A 
 father cannot, by placing his minor child under euratorship, 
 on the ground of imbecility, deprive him after majority of 
 the administration of his affairs and the power of making 
 a will, and if a will is made by such imbecile during a lucid 
 period, it will be valid. (5) The court will not grant an 
 order upon petition allowing an insane person who has 
 a lucid period to make his will, for the same tribunal may 
 be called upon later to adjudicate upon the validity of the 
 will thus executed. The best method is to execute such 
 will before a local judicial officer.(c) 
 
 (y) Regtsg. Obs., 3, 14, and 3, 41. 
 (z) Grotius, 2, 15, 2. Voet, 28, 1, 34 and 35. 
 {a) Schorer ad Grot., 2, 15, 4 (Note cxi.). Voet, 28, 1, 35. 
 (6) Van der Spuys v. Maasdorp, executor of Domus and Aploon, 2 Menz.442. 
 (c) Tn re Kemp, 2 Menz. 457. In connection with this subject consult 
 also Bekker v. Meiring, 2 Menz. 458. 
 
OPINIONS OF GEOTIUS. 175 
 
 (3.) Prodigals may not make a will whilst the decree of 
 court placing them under curatorship remains of force. If 
 made in a just and equitable manner, it is valid according to 
 the 30th Novel of Lm(d) The will will be effectual if the 
 estate is to be distributed among the heirs, and leave has 
 been obtained from the sovereign or the court, (e) 
 
 (4.) Persons who are both deaf and dumb; but deaf 
 persons who can speak and dumb persons who can write are 
 excluded. Dumb persons who cannot write, but can other- 
 wise express themselves intelligibly, are allowed to make a 
 will, if permission from the proper authorities has been 
 obtained.(/) 
 
 (5.) Persons supported in some asylum or charitable 
 institution, which has a right to succeed to the property 
 left by the deceased, notwithstanding his disposition to the 
 contrary.^) 
 
 (6.) Persons who, out of hatred for any religion, have 
 made their wills to the prejudice of those lawful successors 
 who profess it.Qi) 
 
 (7.) When two spouses have made a mutual will whereby 
 any benefit has been left to the survivor, and which directs 
 how the property of the testators is to devolve after the 
 survivor's death, the survivor cannot, after having adiated 
 and enjoyed the benefits conferred by the mutual will, 
 execute another will which disposes of his or her property 
 in a manner contrary to the terms of the mutual wilL(i) 
 
 (d) Grotius, 2, 15, 5. Schorer ad Grot. d. 1. (Note oxii.). Van der Keessel, 
 Thes. 281. Sande, 1, 4, 1, 3. 
 
 (e) Voet, 28, 1, 34. Regtsg. Obs., 3, obs. 41, and 2, obs. 37. 
 ( /) Grotius, 2, 15, 6. Regtsg. Obs., 2, obs. 38. 
 
 (g) Van der Linden, p. 57, 1, 9, 3. Groot Placaat Boek, 6 pt. p. 491, and 
 pt. 9, p. 217. 
 
 (ft) Van der Keessel, Thes. 277-279. Van der Linden, 1, 9, 3. Versamel- 
 ing van Gewijsden, pt. 1, oas. 17. 
 
 (i) Meyer and Kok, Trustees of Lutgens v. Neethling, Exor. of Lutgens, 
 1 Menz. 504. Britz v. Britz's Executors, 2 Menz. 453, and Buc. 1868, p. 312. 
 Hofmeyr, Neethling's Curator v. De Wet, Neethling's Exor., Buc. 1868, p. 
 317. Oosthuyzen v. Oosthuyzen, Buc. 1868, p. 51. Mostert v. S. A. Associa- 
 tion, Buc. 1868, p. 286, and 1873, p. 31, L. R. (W. S.) P. C. p. 41. Grotius, 2, 15, 
 S. Authorities in nota. 
 
176 OPINIONS OF GEOTIUS. 
 
 The mutual will is looked upon and read as the separate 
 will of each spouse, and the dispositions are to be treated 
 as applicable to his or her half share of the joint estate. 
 (This matter will be fully discussed when the revocation of 
 wills is considered, pp. 195, 196, 214, 215 infra.) 
 
 (8.) The feudatory may make no testamentary disposition 
 regarding the succession to his fief unless he has obtained 
 a special dispensation from the lord of the fief or of the 
 sovereign. Such dispensation is construed restrictively, and 
 will not be interpreted to include a substitution or fidei- 
 commissum.(k) 
 
 § 3. 
 
 CAPACITY TO SUCCEED. 
 
 All persons may take under a last will, unless prohibited 
 by law, whether they are minors or majors, natives or 
 foreigners, born or not yet born. If a mistake was made in 
 the name of the intended heir or legatee, but his or her 
 identity can be satisfactorily proved, the bequest will hold 
 good. Corporations and partnerships can acquire property 
 under a last will.(^) 
 
 If a mistake is made as to the name of the intended heir 
 or legatee, extrinsic evidence will only be admitted when the 
 language used is free from ambiguity. When, from the 
 circumstances or facts proved, it is found to apply equally 
 well to two or more persons or things, each corresponding to 
 the words of the will, extrinsic evidence of intention — as, for 
 example, statements made by the testator, or instructions 
 given for the drawing up of his will — may be accepted to 
 show which of the persons or things was intended, (m) If a 
 testator devise to John, the son of his brother William, and 
 William's only son is named Samuel, the claim of Samuel is 
 
 (h) Opinion of Grotius, No. 29, III. (b.) 309. Grotius, Introd. 2, 15, 8, and 
 2, 42, 2. 
 
 {I) Grotius, 2, 16, 1 and 2. 
 
 (m) Per Smith, J. In re Herold — Ex parte Eademeyer, 1 J. 1 59. Doe d. 
 Hisoooks v. Hisoocks (5 M. and W. 363). Wigram on Wills. 
 
OPINIONS OF GROTIUS. 177 
 
 unquestionable, notwithstanding the misnomer.(ra) But if a 
 testatrix bequeathed a legacy to her grandniece, Louisa 
 Charlotta Roux, and it appeared that she left surviving two 
 grandnieces, one named Charlotta Johanna Ambrosia Roux 
 and the other Charlotta Louisa Adriana Roux, extrinsic 
 evidence of the intention of the testatrix cannot be led, 
 under the circumstances, to prove that Charlotta Johanna 
 Ambrosia Roux was meant, and she will not be entitled to 
 the legacy. (0). 
 
 Those specially prohibited by law from taking under a last 
 will are : — 
 
 (1.) Guardians and administrators of the property of 
 minors, who cannot receive any benefit from such minors 
 by last will. This prohibition extends to the children of 
 guardians or administrators; likewise the godparents and 
 concubines of minors are excluded from any succession. (p) 
 At first this prohibition merely referred to immovable 
 property and encumbrances on immovable property. The 
 Placaat of the 4th October 1540, which imposed this in- 
 capacity, has received a slightly extended interpretation, and 
 was subsequently made to embrace honorary guardians as 
 well, and to refer to movables as well as to immovables. (q) 
 The Placaat, according to some writers, is not extended to the 
 wives of guardians. With all respect, however, it is here 
 submitted that the argument against such extension seems 
 somewhat illogical. Grotius, it is true, refers merely to 
 ■administering guardians and immovable property, thus re- 
 stricting the application of the Placaat, and in Opinion No. 
 24 (Holl. Cons. 3 (b.) 188) he says that since the provisions of 
 
 (m) Burge on Colonial and Foreign Laws, vol. iv. pp. 536, 537. 
 
 (o) Ex parte Eademeyer — In re Herold, 1 J. 159. See also Stephen's 
 Digest of the Laws of Evidence, Article 91, and the case referred to by 
 Mm, and De Smidt v. Burton, 1 Menz. 222. 
 
 (p) Placaat, October 4, 1540. Grotius, 2, 16, 4, and Opinion 24 (Holl. 
 Cons. 3 (b.) 188). Van der Keessel, Thes. 285, 286. Sande, 2, 9, 19, and 20. 
 Cons, van Holl. Eegts., 1 Cons. 10, 144. Groenewegen, C. 5, 37, 17, and C. 
 5, 27, 2. 
 
 (j) Van der Keessel, Thes. 285, 286. Van Leeuwen, Room. Holl. R. 3, 3, 
 12. Schorer ad. Grotium, 2, 16, 4. 
 
 M 
 
178 OPINIONS OF GEOTIUS. 
 
 the Placaat are antagonistic to guardians and their children 
 but not to their wives, the latter do not by interpretation 
 fall under the prohibition. Van der Keessel, in his Theses 
 Selectee, 285-286, sanctions an extensive interpretation as 
 regards movable property and supervisory or honorary 
 guardians, but quotes Grotius in support of the view that 
 the Placaat cannot be extended to the wives of guardians. 
 If the provisions of the enactment were extended to movables 
 and honorary guardians, in order to guard against fraud, 
 surely a fortiori it should apply to the wives of guardians. 
 Voet (28, 5, 8 and 9) restricts the application of the law to 
 immovables et ejusdem generis, but extends it to wives. 
 Sehorer (ad Grot. 2, 16, 4) is in favour of the extension to 
 movables, and evidently approves of the inclusion of wives of 
 guardians. This view certainly appears to be correct, both 
 logically and on the grounds of expediency. Van Leeuwen 
 (E. D. Law, 3, 12) extends the terms of the Placaat to the 
 wives of guardians, curators, and tutors, and to movable 
 property of considerable value. 
 
 (2.) Any one, whether a minor or major, who has contracted 
 a marriage with a minor without consent of the parents or 
 guardians of the minor, cannot receive any benefit by last 
 will from such minor, nor can they benefit each other by 
 donation, ante-nuptial contract, or otherwise, even although 
 the necessary consent has been obtained after marriage. 
 Such a clandestine marriage will not bring about a com- 
 munity of property so as to benefit the offending parties.(r) 
 
 (3.) A man or woman entering into a second marriage with 
 a person who has a child or children by a previous marriage, 
 cannot by testament, donation, or in any other way, be 
 benefited to a greater extent than the smallest amount left 
 to such child or any of such children,(s) and whatever has 
 
 (r) Mostert v. The Master [see Opinion No. 3 (Holl. Cons. 3 (b.) 183)], 3 
 Eosooe, p. 59. Grotius, Introd. 1, 8, 3 ; 2, 11, 8 ; 2, 12, 7 ; 2, 16, 5 ; 3, 2, 10 
 and 26. Regtsgel. Obs. pt. 2, obs. 39. Placaat, Oct. 4, 1540 ; Placaat, 
 Feb. 25, 1751. Lybrecht's Notaris Ambt. Pt. 2. Byelaw C. 
 
 (s) Lex hac edictali, 5 C. 9, 6. Grotius, 2, 16, 7. Van Leeuwen (P.. H. R.), 
 3, 3, 17. 
 
OPINIONS OF GROTIUS. 179 
 
 been given in excess of that amount will go to the benefit of 
 the children of the previous marriage, (t) This law has been 
 repealed at the Cape by Act 26 of 1873. Vide Annotation 
 to Opinion No. 8 (Holl. Cons. 3 (b.) 182). 
 
 (4.) The notary before whom a will is passed, and the 
 attesting witnesses, cannot take any benefit under the 
 will.(w) 
 
 (5.) According to the law of Holland, adulterous and 
 incestuous children (Overwonne Bastaarden) could not inherit 
 anything from their parents or grandparents, either ex lege 
 or ex testamento, except that they may take what has been 
 left them for their maintenance. Likewise persons living in 
 adultery or incest could not take any benefit under the last 
 will of the other guilty party. Other natural children 
 (Speelkinderen) could inherit, like strangers, from their 
 parents; but if there were other legitimate children, the 
 illegitimate offspring could only inherit one-twelfth of the 
 estate at most.(«) Legitimated children could succeed in 
 the same way as legitimate children, (x) 
 
 (6.) No prohibited religious sects or institutions could 
 inherit any property devised to them by last will. (See 
 Note to Opinion No. 19 (3 b. 310 Holl. Cons.) with reference 
 to this matter.) 
 
 (7.) Bequests ad pias causas were not effectual if executed 
 in a manner not in conformity with the formalities required 
 by law.O) 
 
 (8.) On the same grounds that tutors, administrators, and 
 guardians are prohibited from receiving any benefit under 
 the will of their wards, clerical persons are excluded from 
 taking any bequest if it be proved that undue influence was 
 
 (t) Novell, 22, c. 27. Grotius d. 1. Van Leeuwen d. 1. Groen. de Leg. Ab. 
 ad C. 5, 9, 6. Sande, 1, 2, 3, 4, cum seqq. 
 
 (u) Zurck, Codex Batavus, sub voce Notarissen. Bynkershoek, Burg. 
 Rechtzaken, Pt. 2. Act 22 of 1876 (Cape Colony), § 3. 
 
 (v) Grotius, 2, 16, 6. Van Leeuwen (R. H. R.), 3, 3, 10 and 11. Van der 
 Keessel, Thes. 287. Schorer ad Grot., 2, 16, 6. 
 
 {x) Regtsgel. Obs. 4, Supplm. to pt. 1, obs. 36. 
 
 (y) Opinion No. 21 and Opinion No. 23 (Holl. Cons. 3 (b.) 163, and 3 (b.) 39). 
 
180 OPINIONS OF GKOTIUS. 
 
 exerted by such person to persuade the testator to make the 
 bequest.(«) 
 
 §4. 
 DIFFERENT KINDS OF WILLS. 
 
 Under the Eoman-Dutch law, wills were either oral or 
 in writing. 
 
 (a.) Oral Wills (testamenta nuncupativa) were executed — 
 
 (1.) Before seven witnesses present at the same time, 
 according to Eoman law. This method was very seldom 
 resorted to.(a) 
 
 (2.) Before a notary and two witnesses — the notary, as 
 an accredited public person, supplying the place of five 
 witnesses. This will was usually reduced to writing by 
 the notary in order that he might remember more accu- 
 rately the intentions of the testator. After having reduced 
 it to writing, he read the will over to the testator in the 
 presence of the witnesses, and upon the testator ratifying 
 the writing, it was signed by the testator, notary, and 
 witnesses, and entered in the notary's protocol. The signa- 
 ture of the testator and witnesses is, however, not a sine 
 qua non.(b) 
 
 (3.) Before the Begistrar and two members of the court, (c) 
 
 (6.) Written Wills. 
 
 I. Open. — (1.) Before a notary and two witnesses. This 
 kind of will corresponds to a nuncupative testament de- 
 clared before a notary and witnesses, and by the notary 
 reduced to writing, (d) 
 
 (2.) Before the court authorities.^) 
 
 (2) Executors of Cerfonteyn v. O'Haire, Buc. 1873, p. 47. 
 
 (a) Van der Linden 1, 9, 1. Van der Keessel, Thes. 293. Grotins, 
 2, 17, 10 and 11. 
 
 (6) Van Leeuwen, K. H. E. 3, 2, 3 and 4. Grotius, 2, 17, 10, and Opinions 
 of Grotius, Nos. 21 and 22 (Holl. Cons. 3 (b.) 163, and 1, 231). 
 
 (c) Grotius, 2, 17, 14. Van Leeuwen, B. H. E. 3, 2, 6. Van der Linden, 
 1, 9, 1. 
 
 (d) Grotius, 2, 17, 17 and 18. Van Leeuwen, 3, 2, 5. 
 
OPINIONS OF GROTIUS. 181 
 
 TI. Closed. — (1.) This will was written by the testator or 
 some one on his behalf, and was signed by him. It was 
 then presented to a notary, who sealed and endorsed the 
 will on the outside, and made the usual minute thereof in 
 the presence of two witnesses— called an Alcte van super- 
 seriptie. The will was kept closed until the death of the 
 testator, when it was opened by the notary in the presence 
 of the attesting witnesses and an Akte van opening made 
 thereof, (e) 
 
 (2.) Closed wills could also be made before the court 
 authorities. 
 
 Husband and wife can make a mutual will, in which 
 case the will is considered as the separate testament of 
 each of the spouses, and the dispositions will be taken 
 to refer to his or her property. Such a will can be re- 
 voked by one of the spouses during the lifetime of the 
 other without his or her knowledge or consent, and upon the 
 predecease of one of the spouses the survivor can revoke 
 the dispositions referring to his or her property, provided 
 he or she has not adiated or received any benefit under 
 the will. 
 
 SPECIAL AND PRIVILEGED WILLS. 
 
 (1.) Testaments made jure militari were valid although 
 wanting in the formalities required in the case of ordinary 
 wills.(/) (See § 1, supra.) 
 
 (2.) Wills made verbally before two witnesses during a 
 time of plague or pestilence. (</) 
 
 (3.) Wills made by a father or mother disposing of their 
 property among their children or grandchildren, if written 
 by themselves (holograph) or signed by them, did not require 
 to be witnessed in order to be effectual as far as the children 
 were concerned. Such wills could also be declared orally 
 before witnesses. 
 
 (e) Van der Linden, 1, 9, 1. For the contents of the Alcte van opening, 
 see Translator's note to Van der Linden, p. 55 (Juta). 
 (/) Grotius, Introd. 2, 17, 29, and 31. 
 (g) Regtsgel. Obs. 1, obs. 40. Van Leeuwen, R. H. R. 3, 2, 15. 
 
182 OPINIONS OF GEOTIUS. 
 
 Ord. 15 of 1845 (Cape), § 3, requires that every will which 
 formerly required to be witnessed by seven or some other 
 number of competent witnesses shall be executed in the 
 presence of two or more competent witnesses. On the 
 ground that this Order only referred to wills "which 
 formerly required to be witnessed by seven or some other 
 number of competent witnesses," and that holograph wills 
 never required any " number of witnesses," the Supreme 
 Court in 1863 held, in the case of Executors of Eaton v. 
 Eaton (Buc. 1873, p. 173), that a holograph will of a parent 
 disposing of his property among his children is a privileged 
 testament, and is therefore not subject to the provisions of 
 Ordinance No. 15, 1845. This case was followed in the 
 matter of Be Wet's Estate. (Buc. 1873, 119), and in 1887 in 
 Steer's Executor v. The Master (5 J. 313). In that case 
 Steer and his wife made a joint will, duly signed by both, 
 but not duly attested by witnesses, whereby each of the 
 spouses bequeathed all his or her property to the other, and 
 directed that upon the death of the survivor the whole of 
 his or her estate should be distributed among the children of 
 the marriage. The will was throughout in the handwriting 
 of Steer. Thereupon it was decided that the will was valid 
 and effectual as a will of Steer, in respect of the distribution 
 of the property among the children and the appointment of 
 an executor to manage and administer his estate. The court 
 did not, however, decide that the wife was entitled to what 
 was left her under the will. 
 
 At the Cape of Good Hope wills can be executed — 
 
 (1.) Notarially before a notary public and two witnesses, 
 who must be present at one and the same time. 
 
 (2.) Under-hand, before two or more witnesses. 
 
 (3.) Closed, by the testator alone, who signs it, and, having 
 sealed it, hands it over to a notary. 
 
 (4.) As privileged testaments. 
 
 These different methods will be more fully discussed in 
 treating of the attestation of wills generally (§ 6, infra). 
 
OPINIONS OF GROTIUS. 183 
 
 §5. 
 VALIDITY AND INVALIDITY OF WILLS. 
 
 Wills are valid if made in conformity with the require- 
 ments of the law, which are as follows : — 
 
 (1.) The testator must be capable of making a valid will. 
 
 (2.) The heirs or legatees must be capable to adiate or take 
 under the will. 
 
 (3.) The outward formalities must be complied with. It 
 must be executed in the manner prescribed for notarial, 
 under-hand, or closed wills. 
 
 Wills are invalid — 
 
 (1.) If made by one who is by law incompetent to testate 
 (§ 2, supra). 
 
 (2.) If all the formalities required by law have not been 
 observed in their execution (§ 6, infra). 
 
 (3.) If no direct heir is instituted. This is, however, not 
 essential to the validity of testaments now (§ 10, infra). 
 [Batt v. Batt, 2 M. 430.] 
 
 (4.) If a previous testament contains a derogative clause 
 (clausula derogativa) to the effect that no subsequent wills 
 made by the testator shall be considered valid, a subsequent 
 will made notwithstanding such clause will be void ah initio, 
 unless the clause is specifically revoked in the subsequent 
 testament (§ 9, p. 205, infra). This clause has practically 
 dropped into disuse. 
 
 (5.) A valid testament will subsequently become invali- 
 dated if revoked by the testator (§ 7, infra). 
 
 (6.) If adiation is wanting, or if the heirs cannot take 
 under the testament, it will become invalidated (§ 8, infra). 
 
 § 6 - 
 ATTESTATION OF WILLS. 
 
 All wills, except those that are privileged, must be duly 
 executed before witnesses. The different methods of execut- 
 
184 OPINIONS OF GROTIUS. 
 
 ing wills, both under the Roman-Dutch law and at the Cape 
 of Good Hope, have been mentioned in § 4, supra. 
 
 QUALIFICATION OF WITNESSES. 
 
 The attesting witnesses had to be men of good under- 
 standing and reputation. (h) 
 
 The law considered incompetent — 
 
 (I.) Females. 
 
 (2.) Males under the age of fourteen years. 
 
 (3.) Prodigals and persons who have been declared in- 
 famous or have an infamous sentence against them. 
 
 (4.) Lunatics, insane, dumb and deaf persons. 
 
 (5.) The heirs and legatees under the will. 
 
 (6.) Those under the power of the instituted heir et vice 
 versa. Domestic servants were regarded as those under 
 power. Brothers or father and son may, however, witness 
 the will of another person. 
 
 (7.) The son or father of the notary who executed the 
 will was also disqualified. 
 
 (8.) Guardians and executors appointed under the will 
 could not witness the same. 
 
 (9.) Relations within the fifth degree of consanguinity. 
 Thus the will of a testator attested by his brother is void. 
 But this disqualification is only in connection with notarial 
 wills, and the relations of a testator are not debarred from 
 witnessing the execution of an under-hand will, (i) 
 
 These rules were strictly applied. Thus hermaphrodites 
 were disqualified, because they were not males strieto sensu. 
 Likewise if a witness who appeared to be over fourteen years 
 of age was found, after having witnessed the will, to be even 
 but a day under age, the will is invalid.(&) 
 
 (A) Van Leeuwen, K. H. E. 3, 2, 8. 
 
 (i) Van Eeenen v. The Board of Executors, Buc. 1876, p. 44. Le Sueur 
 v. Le Sueur, Buc. 1876, p. 153. 
 
 (£) With reference to this matter see Van Leeuwen, R. H. R. 3, 2, 7, 8, 9. 
 Grotius, 2, 17. Groenewegen de Leg. Abr. ad C. 4, 20. 18, et Instit. 2, 10, 
 
OPINIONS OF GKOTIUS. 185 
 
 One incompetent witness was sufficient to render the 
 whole testament invalid ; but then such witness must be one 
 of the minimum number required by law. If there are 
 more witnesses than are actually necessary, the will is not 
 invalid if the number of competent witnesses correspond to 
 the number required by law, and the rest will be considered 
 as surplusage.(Z) 
 
 According to Colonial law, any person who is competent 
 to give evidence in a court of law in the Colony is qualified 
 to attest and witness the execution of a will. Any attesting 
 witness, to whom, or to whose wife or husband, any beneficial 
 bequest or appointment has been made under the will which 
 he or she has attested, forfeits such bequest or appointment, 
 and persons who have attested a will cannot be appointed 
 executor or guardian under the will.(m) 
 
 ATTENDANCE AND SIGNATURE OF WITNESSES. 
 
 The witnesses to a will must be specially summoned, and 
 must be present at one and the same time at the execution 
 thereof, otherwise it will be set aside as invalid, (n) The 
 rule is construed strictly ; and therefore, if the will is executed 
 in one room, and the witnesses are in another, with the door 
 leading from the one room into the other ajar, the presence 
 required by law will be considered wanting, and the testa- 
 mentary instrument void.(o) 
 
 Under the Eoman-Dutch law, nuncupative or oral wills 
 required merely the presence of witnesses to the number of 
 seven, or of a notarv and two witnesses. It was not abso- 
 
 6, et 2, 10, 11. Wassenaar, Practijk van Testamenten, § 17, 18, 19, 20. 
 Kersteman, Oeffenschool der Notarissen, p. 242. Lybreghts, Notaris. Ambt., 
 Pt. cap. 19, §10, 11, 12, 13. 
 
 (1) Arg. ex. Eaton v. Eaton, Buc. 1875, p. 173. 
 
 (m) Act 3 of 1873 (Cape Colony), §§ 2, 3, 4. 
 
 (n) De Bruyn v. De Bruyn, Buc. 1874, 8. Laubscher v. Basson's Executor, 
 Buc. 1868, p. 251. McDonald v. Hart, Executor of McDonald, S. 3, 3". 
 Van Leeuwen, Censura Forensis, 3, 2, 9, 10. Ord, 15 of 1845 (Cape). 
 
 (o) Lauson v. Pritchard & Lauson, 1 B. 93. 
 
186 OPINIONS OF GKOTIUS. 
 
 lutely necessary that the testamentary declaration should 
 be in writing, although it was usual to draw up a written 
 instrument containing a record of the testator's intentions, 
 in order that they may not be forgotten, (p) 
 
 A notarially written will was considered a nuncupative 
 testamentary declaration in writing. The testator by word 
 of mouth dictated to the notary his last will and intention 
 respecting the devolution of his property. This was reduced 
 to writing for the sake of remembrance by the notary, who 
 then read over the written will to the testator and witnesses, 
 and asked the former, in the presence of the latter, whether 
 he has understood the nature thereof, and whether that which 
 is taken down is his last will and wish. If acknowledged to 
 be correct, it was usually signed by the testator, witnesses, 
 and notary. All this was only adopted for safety, for the 
 actual subscription of the will by the testator and witnesses 
 was not actually necessary, and did not constitute a portion 
 of the will, (q) 
 
 The written will, under Eoman-Dutch law, must not be 
 confused with what is known among us in South Africa as 
 a notarial will. The written will was the closed testament, 
 and was so called because it was produced in writing before 
 witnesses, the testator making a legally expressed declara- 
 tion, by which he affirms that his last will is contained in 
 this document. It is subscribed as such by the testator and 
 witnesses, the signature on the part of the witnesses being 
 specially required.(r) 
 
 An under-hand testament, among us, is executed without 
 the intervention of a notary, and must be subscribed by the 
 testator and two witnesses present at one and the same time. 
 
 There is, therefore, a distinct difference between a notarial 
 and an under-hand will as regards attestation. In the former, 
 
 {p) See Opinion No. 1, where Grotius discusses the attestation of wills 
 jure naturm et gentium. 
 
 (q) Van Leeuwen, B. H. R. 3, 2, 3 and 4. Van der Keessel, Thes. 296. 
 Voet, 28, 1, 23. Grotius, Opinion No. 48. Krynauw v. De Marillac 
 (0. F. S. Feb. 1892). 
 
 (r) Van Leeuwen, Censura Forensis, 3, 2, 7 and 8. 
 
OPINIONS OF GEOTIUS. 187 
 
 the signature of the witnesses is not absolutely required,(s) 
 whilst in the latter it is an essential formality.(i) Moreover, 
 in the former the law requires that the notarially written 
 instrument should be read over to the testator and declared 
 by him to be his last will in the presence of the two 
 witnesses. If this formality is omitted, the will will be 
 imperfectly executed, and consequently invalid. (11) And 
 thus it was decided in the case of Meiring v. Executors of 
 Meiring.(v) This rule has been repealed by Act No. 3 of 
 1878 (passed six months after the above decision), which 
 enacts that no notarial will shall be considered invalid 
 merely because it was not read over to the testator in the 
 presence of the subscribing witnesses. The use of the 
 words "subscribing witnesses" in the Act is somewhat 
 significant. It must be assumed that at the time of the 
 passing of the Act the legislators were of opinion that 
 notarial testamentary instruments had to be subscribed by 
 the witnesses present. Proctor's Case, wherein it was decided 
 that the signatures of the witnesses were not an essential 
 formality, was not decided till nine years afterwards. 
 
 The question therefore arises — must the will be read over 
 by the notary to the testator when the witnesses do not sign 
 their names ? Having regard to the intention of the Legis- 
 lature, to the fact that it has been customary for witnesses 
 almost always to append their signatures, and to the fact 
 that it was generally accepted at the time of the passing of 
 the Act that the witnesses alluded to must be subscribing 
 witnesses, it may safely be contended that the maxim 
 expressio unius exclusio alterius est, will not be applied in 
 this case and in the interpretation of the Act ; so that, the 
 " reading " will be dispensed with in every case. 
 
 The manner in which wills have to be attested and signed 
 at the Cape of Good Hope is regulated by Ordinance No. 15 
 
 (») In re Proctor, 5, J. 159. 
 (t) Ordinance 15 of 1845 (Colonial). 
 
 («) Voet, 28, 1, 25. Van Leeuwen, R. H. E. 3, 2, 3 and 4. Sande, Decis. 
 Fris., 4, 1, 9. Holl. Cons. 3 (b.) 328. 
 (v) 3 B. p. 6. 
 
188 OPINIONS OF GBOTIUS. 
 
 of 1845. This law has been adopted in the Orange Free 
 State by Ordinance 2 of 1856 of that Kepublic, and its 
 enactments have been followed in the Transvaal in practice. 
 In 1888 by Vollcsraadbesluit all wills drawn up in terms of 
 the Ordinance of 1845 have been declared validly executed. 
 
 The 3rd section of the Ordinance reads as follows : — " No 
 will or other testamentary writing made or executed upon 
 or after the first day of January 1844, which will or other 
 testamentary writing, if made before the said first day of 
 January 1844, would, in order to be valid, have required to 
 be witnessed by seven or some other number of competent 
 witnesses, shall be valid unless it shall or shall have been 
 executed in the manner hereinafter mentioned — that is to 
 say, it shall or shall have been signed at the foot or end 
 thereof by the testator, or by some other person in his 
 presence and by his direction, and such signature shall or 
 shall have been made or acknowledged by the testator in 
 the presence of two or more competent witnesses present 
 at the same time, and such witnesses shall or shall have at- 
 tested and subscribed the will in the presence of the person 
 executing the same ; and where the instrument shall or shall 
 have been written on more leaves than one, the party exe- 
 cuting 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 or shall have been 
 written." 
 
 This Act has been held to apply only to underhand and 
 not to notarial wills.(a;) 
 
 The witnesses must be present at one and the same 
 time,(y) and must be competent, (z) and must sign the will 
 upon at least one side of every leaf, if the will has been 
 written on more leaves than one. 
 
 It is very doubtful whether by signing is meant that the 
 
 (x) In re Proctor, 5 J. 159. 
 
 (y) De Bruyn *. De Bruyn, 1874, Buc. p. 8. Laubscher v. Basson's 
 Executor, Buc. 1868, p. 251. McDonald v. Hart, S. 3, 37. 
 
 (z) Van Eeenen v. Board of Executors, Buc. 1876, p. 44. Le Sueur v. 
 Le Sueur, Buc. 1876, 153; but see Act No. 22 of 1876, § 2, 3, 4. 
 
OPINIONS OF GROTIUS. 189 
 
 testator and witnesses must write their names in full 
 (Christian names or initials of Christian names and surname), 
 or whether they can sign their initials merely on the side 
 of every leaf. In the case of Van Vuuren v. Van Vuuren,(a) 
 a mutual will was written upon one sheet containing two 
 leaves (four pages) ; the testator and one of the witnesses 
 signed their initials on the first leaf, the other witness 
 signed his name ; all signed their names on the second leaf. 
 The court by a majority held the will invalid, and refused 
 to consider the subscription of the initials as signing. 
 
 It must, however, be pointed out that the judgment of 
 the court was not unanimous, and that it was inconsistent 
 with two subsequent cases of Troost v. Boss, Executrix of 
 Hohenstein,(b) and He Le Roux.(c) In the former case the 
 testator had signed by affixing his mark, whilst the two 
 attesting witnesses signed their names in full, and the 
 court held the will to be validly and duly executed. In 
 the latter case, the testator and one of the witnesses had 
 signed in full, but the other witness had merely affixed 
 his mark. The will was upheld, and letters of administra- 
 tion ordered to be issued in terms thereof. Where a will 
 is otherwise good, the court will always incline to uphold 
 its validity, and will take as favourable and equitable a view 
 as possible of the matter. {Weise's Trustees v. Weise's 
 Executor, not reported, C. L. J. vol. v. p. 243, and Board of 
 Executors and Grewer v. Morgan and Others, G. W. Eeps. 
 by Collinson, vol. vi. p. 26.) It is, therefore, extremely likely 
 that if the matter of signing by initials only be again 
 brought before the court, the judgment in Fan Vuuren 
 v. Van Vuuren will be upset. (Vide In re Ebden's Will, 4 J. 
 495.) 
 
 The testator and witnesses must sign upon at least one 
 side of every leaf of a will. Therefore, if a will is written 
 upon a sheet of paper containing two leaves, and is attested 
 
 (a) S. 2, 116. 
 (6) 4 S. 211. 
 (c) 3 J. 56. 
 
190 OPINIONS OF GEOTIUS. 
 
 only at the end of the document, it will be set aside as 
 invalid.(d) This decision has been upheld and followed in 
 the Orange Free State.(e) Likewise the attestation of a 
 will written on the second and third pages of a sheet of 
 paper is invalid if the witnesses only signed on the third 
 page, the will not having been attested on each leaf (Re 
 Walker's Estate, 9 Juta, 311). The required signatures 
 must appear on the will, and it makes no difference if the 
 signatures have been omitted through mistake or inadver- 
 tence; the will will be considered invalid. (Re Estate 
 Mentz, not reported, July 13, 1887 (Sup. Court), C. L. J. 
 iv. 232.) If the testator's name appears in the will on the 
 first page in his own handwriting, but he has not signed the 
 leaf again, but only the attesting witnesses have appended 
 their names, the signature required by the Ordinance will 
 be considered to have been complied with, and the will will 
 be held to have been duly executed. (/) 
 
 As has been before stated, the signature of a testator 
 and witnesses is not indispensably necessary to the validity 
 of a written nuncupative or notarial will (Horak's Heirs 
 v. Widow of Horak,(g) Proctor's Case,(A) and Wilhelmina v. 
 Robertson). (i) In the last case, Eobertson on his deathbed 
 sent for a notary and showed him a paper writing, which he 
 declared to be his last will, in the presence of two witnesses. 
 The will was not signed by the witnesses. The court 
 upheld the paper writing as the valid declaration of the 
 testator's will. In Proctor's Case the will was executed by 
 a notary, and attested by him as having been executed and 
 signed in the presence of two witnesses, but the will was 
 only signed by one witness. The court upheld the validity of 
 the will. 
 
 From the operation of Ordinance 15 of 1845 are also 
 
 {d) Walker v. Executors of Walker, Buc. 1874, p. 144. 
 
 (e) In re Cornelia Smit (O. F. S.), November 1884 (C. L. J. 1, 116). 
 
 (/) In re Ebden's Will, 4 J. 495. 
 
 \g) 2 Menz. 424. 
 
 (ft) 5 Juta, 159. 
 
 (i) 2 Menz. 438. 
 
OPINIONS OF GEOTIUS. 191 
 
 excluded privileged testaments, such as holograph wills 
 disposing of the testator's property amongst his children or 
 grandchildren.(/c) 
 
 If a written instrument is drawn up as an act or deed 
 of donation, and is not properly witnessed, and it is found 
 that such document is not merely a deed of donation, but 
 virtually a testamentary writing, the deed will be void, since 
 it lacks the formalities required of a testament.(^) 
 
 §7- 
 REVOCATION OP WILLS. 
 
 A testator always retained the, power to change, wholly 
 or in part, the intentions which he has expressed in a 
 previous will concerning the devolution of his property. 
 He cannot introduce any clause or provision such as the 
 clausula derogativa into his will, in order to preclude himself 
 absolutely from making a subsequent will.(m) Ambulatoria 
 est voluntas defuncti usque ad vitce supremum exitum.(n) 
 
 A previous will can be revoked — 
 
 (a.) Hxpressly. 
 
 (1.) By a subsequent testament which expressly revokes 
 such will.(o) 
 
 (2.) By an instrument attested by the same number of 
 witnesses, or executed in the same manner as is required 
 in the execution of a will, whereby the testator declares 
 that he wishes to revoke his will and that its provisions 
 shall be of no effect, or that he wishes his property to descend 
 by intestate succession.^) 
 
 The mere signification of a desire to revoke is not suffi- 
 
 (A) § 4, supra. Eaton's Executors v. Eaton, Buc. 1873, p. 173. 
 (I) In re De Wet's Estate, Buc. 1873, p. 119. Steer's Executory. The 
 Master, 5 J. 313. In re Van Wijk, 5 J. 1. 
 
 (m) Grotius, Introduction to the Laws of Holland, 2, 24, 8. 
 
 (n) Digest, 34, 4, 4. 
 
 (o) Grotius, Introd. 2, 24, 9. 
 
 {p) Grotius, Introd. 2, 24, 16. Voet, 28, 3, 1. 
 
192 OPINIONS OF GKOTIUS. 
 
 cient. The desire has to be expressed in the form required 
 by law. 
 
 A will cannot be invalidated by the submission of parol 
 evidence to the effect that the testator declared himself 
 to be intestate or that he wished his will revoked.(g) 
 
 Neither a will nor a codicil is revoked by the mere decla- 
 ration of a testator, a few days before death, to a notary, 
 expressly summoned for the purpose, that he wished such 
 will or codicil revoked. This is not sufficient for a de 
 prcesenti revoeation.(r) 
 
 If the subsequent will is invalid, the revocation contained 
 therein is of no effect, and the previous testamentary disposi- 
 tions will remain of full force. 
 
 (3.) By outward acts confined to the revocation of that will, 
 described by the commentators on the Civil Law as deletio, 
 inductio, inscriptio, and super scriptio, i.e. destruction, annihila- 
 tion, interlineation, and erasure. No exact definition of 
 any one term can, however, be given, for the one in some 
 degree always includes the other. These alterations in a 
 will, or the total or partial cancellation by tearing up, 
 burning, or breaking, or otherwise destroying the same, or 
 by breaking or opening the seals of a closed will, must be 
 done either by the testator himself or by some one with 
 his authority and sanction.(s) 
 
 If a will is lost and cannot be produced, the presumption 
 is that it was destroyed by the testator with the intention of 
 revoking it.(t) 
 
 If a will is executed in duplicate, and the testator destroys 
 the copy in his possession, the will is considered to have been 
 revoked by virtue of such destruction.(w) 
 
 Voet (28, 4, 1 and 2) is of opinion that revocation under 
 
 (j) Ludwig v. Ludwig's Executors, 2 Menz. 471. 
 
 (r) Horak's Heirs v. The Widow Horak, 2 Menz. 424. 
 
 (s) Van Leeuwen, Censura Forensis, Pt. 3, 11, 14. Voet, 28, 3, 1 and 2. 
 Digest, 28, 4, 1. Burge on Colonial and Foreign Laws, "Eevocation of 
 Testaments." 
 
 (t) Nelson v. Currey and Others, 4 J. 355. 
 
 (a) Ibid. See Voet, 28, 4, 1. Lauterbach ad Pand., 28, 4, § 38. 
 
OPINIONS OF GROTIUS. 193 
 
 such circumstances can only be inferred, if it could be 
 shown that the cancellation was made by the testator with 
 the intention that he should die intestate, or if it could 
 be shown that the testator's intention was that the de- 
 letion was made for the purpose of restoring a prior 
 will. 
 
 If the testator is only in possession of a copy, whilst 
 the original minute is enregistered or is filed in the notary's 
 protocol, the destruction of the grosse or copy by the testator 
 does not revoke the testament as long as the registered or 
 filed minute remains intact, unless it be proved that this 
 cancellation and destruction was done with the view of 
 dying intestate. This is the opinion of Voet and Van der 
 Keessel.(V) The weak point in this contention is the want 
 of finality, since under such circumstances proof aliunde of 
 the testator's intention can always be adduced. Schorer 
 adopts a wider view,(a;) and maintains that the destruction 
 of the grosse is sufficient proof of the intention of the testator 
 to effect a revocation. 
 
 Grotius in Opinion No. 47 holds that a notarial will 
 cannot be revoked by merely destroying the copy. 
 
 A good deal will depend upon the circumstances of each 
 case, for the obliteration or cancellation of a will must, 
 as regards its revocation, depend upon the intention. If 
 clear proof can be gathered from the circumstances that 
 the intention of the testator was to revoke, the court will 
 no doubt give effect to such intention. On the other hand, 
 if the circumstances indicate an opposite intention, or con- 
 vey an impression that the act was not done by the testator, 
 or was not done deliberately — for instance, where it appears 
 that the altered or obliterated copy was in possession of a 
 third party — the court will not consider the cancellation 
 sufficient for revocation of the will. 
 
 If the original minute in the notary's protocol has been 
 destroyed, either by fraud or mistake, or has been un- 
 
 (v) Voet, 28, 3, 1 et seq. Van der Keessel, Thes. Sel., 330. 
 (x) Schorer ad Grot., 2, 24, 15. 
 
 N 
 
194 OPINIONS OF GROTIUS. 
 
 accountably lost, but the testator has preserved the copy 
 in his possession intact, such copy will not per se be 
 entitled to probate. The court will, however, upon the 
 presumption that the testator did not wish to revoke his 
 will, call upon all interested to show cause why the copy 
 shall not be admitted and acted upon as the testator's 
 last will, (y) 
 
 (b.) By Implication. 
 
 (4.) A prior will is impliedly revoked by a subsequent 
 one, if such subsequent will contains dispositions contrary 
 to those in the prior one. The prior will is revoked by the 
 subsequent will only in so far as there is any directly 
 inconsistent provision in the latter, if the former will has 
 not been expressly revoked by the latter. 
 
 In Tenant's Notary's Manual, c. 3. § 24, it is stated that 
 the prior will is revoked by the subsequent will, '• although 
 the last will contains no express revocation of the former 
 will, for two different testaments cannot subsist together." 
 If the word different is meant to stand for " inconsistent," 
 no fault can be otherwise found with the text. If not, it is 
 directly opposed to the best authorities on Eoman-Dutch law, 
 who maintain that, contrary to the testamentary jurisprudence 
 of Some, there is nothing to prevent two or more testaments, 
 when no express revocation of one of them has been made, 
 from being valid at the same time.(s) 
 
 The subsequent testament must be validly executed, other- 
 wise it does not operate as a revocation, (a) 
 
 If a subsequent testament revokes a prior one, and it 
 becomes invalidated after execution, through non-adiation, 
 revocation, or otherwise, the previous will does not come 
 into force again tacitly.(6) 
 
 (y) In re Beresford — Ex parte Graham, 2 J. 303. 
 
 (z) Van Leeuwen, Cens. Forerts., Pt. 1, 3, 11, 9. Groenewegen ad Instit. 2, 
 17, 3. Voet, 28, 3, 8. Holl. Cons. 2, 24, and 5, 42, and Grotius, Opinion No. 
 46 (this work). 
 
 (a) Voet, 28, 3, 5. Vinnius ad Inst. 2, 17. Lauterbach ad Pandectas, 
 28, 3 and 4, n. 23. 
 
 (6) Voet, 28, 3, 5. 
 
OPINIONS OF GROTIUS. 195 
 
 If two wills were made on the same day, containing in- 
 consistent provisions, and it is impossible to say which was 
 prior in point of time, they are both void. If both wills 
 contain the same hereditary institution, and contain no 
 inconsistent bequest, both will be valid, (c) 
 
 If the one appears to be really a codicil, although erro- 
 neously styled a testament, the testament will be considered 
 as the last will, and the other will be treated as a subsequent 
 codiciL(d) 
 
 Contrary to the English law, a mutual will by husband 
 and wife is not revoked upon a second marriage.(e) 
 
 When a testament is revoked, every disposition in such 
 testament must be considered as revoked also.(/) When 
 only certain provisions of a prior will are revoked by a 
 codicil or subsequent will, the rest of the prior will remains 
 valid and unrevoked, and the dispositions are not to be 
 interfered with except to give effect to the codicil or subse- 
 quent will.(#) 
 
 When husband and wife have made a mutual will disposing 
 of the property of the joint estate, the dispositions of each 
 spouse are treated as applicable to his or her half of the 
 joint property. Each of the spouses can, during the life- 
 time of the other, with or without his or her consent, or with 
 or without communication with him or her, revoke his or 
 her own part of the will. After the death of the co-testator 
 the survivor can revoke the will as far as it affected his or 
 her property; but if the survivor has adiated under the 
 mutual will or has received any benefits thereunder, the terms 
 of the mutual will cannot be departed from, and cannot be 
 revoked by a subsequent disposition by the survivor.(A) 
 
 (c) Voet, 28, 3, 9. 
 
 (d) Grotius, Opinion No. 47 (Holl. Cons. 3 (b.) 157). 
 
 (e) Ludwig v. Ludwig's Executors, 2 Menz. 471. 
 (/) Grotius, Opinion No. 46 (Holl. Cons. 5, 134). 
 
 (g) Van der Keessel, Thesl 329. Burge on Col. and For. Laws, p. 320 
 (Juta's Abridgment). 
 
 (h) South African Association v. Mostert, Buc. 1873, p. 31. Brits v. 
 Brits' Executors, Buc. 1868, 312, Hofmeyr, Neethling's Curator it. Be 
 Wet, Buc. 1868, p. 317. Oosthuyzen v. Oosthuyzen, Buc. 1868, 51. 
 
196 OPINIONS OF GBOTIUS. 
 
 This matter will be more fully discussed under § 10, when 
 treating of the interests of the surviving spouse under a 
 mutual will. 
 
 If the survivor is appointed heir together with the 
 children of the marriage, he or she can dispose by last will 
 of the moiety of the joint estate, and a child's share under 
 any terms or conditions that he or she may desire ; and if 
 such will by the survivor referred to the whole joint estate, 
 it will not be deemed wholly invalid, but will be construed 
 to refer only to his or her share of the property, (i) 
 
 § 8. 
 
 ADIATION AND REPUDIATION UNDER A WILL. 
 
 In addition to all the other requirements of a valid will, 
 adiation by the instituted heirs was insisted upon as a last 
 act in order that the will may be effective. 
 
 The heir has to accept the benefits conferred by the will 
 (adiate), or had to renounce the inheritance (repudiate). 
 
 Adiation (adire hereditatem) is considered to have taken 
 place whenever the heir in any way entered on the inheri- 
 tance, either by acting as heir or by mere intention — Aut 
 pro herede gerendo vel etiam nuda voluntate. The intention 
 could be inferred from other circumstances besides those 
 given above, the existence, and not the actual expression 
 of intention, being the chief point, (k) 
 
 The heir is at liberty either to adiate or repudiate the 
 inheritance at pleasure, but he must do so within a certain 
 time. It was not compulsory for him to declare his in- 
 tention immediately upon the decease of the testator. 
 According to Eoman-Dutch law, the heir could obtain a 
 deed of deliberation, which generally lasted for a year, 
 and could be applied for at any time before adiation 
 within thirty years of the death of the testator. The 
 
 (i) Smith and Others v. Executors of Sayers, F. 66. 
 (£) Justinian, Instit. 2, 19, 17. Sanders ad d. 1. 
 
OPINIONS OF GROTIUS. 197 
 
 creditors could object in court, and had a locus standi in 
 judicio.(l) 
 
 Eepudiation must precede adiation; for when once an 
 estate or inheritance has been accepted by the heir, he 
 cannot afterwards repudiate it, and adiation cannot take 
 place after repudiation.(m) 
 
 Partial adiation and partial repudiation is not allowed, (m) 
 
 Adiation consists not only in an expression of intention, 
 but even in implied intention, to be inferred from such acts 
 — actes hereditaires — as indicate that the heir was satisfied 
 with the terms of the will, and wished to accept the benefits 
 thereunder, and that he wished to act as heir. An heir is 
 considered to adiate an inheritance when he treats the 
 property of the estate as his own, when he sells or en- 
 cumbers any portion thereof, when he cultivates the ground 
 or lets any property, or when in any other way he declares, 
 either by act or word, his intention to enter on the inheri- 
 tance. Such direct or implied intention can, of course, only 
 occur when the person knows that he has been appointed 
 heir.(w) 
 
 When the heir administers the estate merely out of kind- 
 ness, or for the honour of the deceased, or for the benefit of 
 others, but with no intention of adiation, he will not be 
 taken to have accepted the benefits and burdens under the 
 will.(o) 
 
 Adiation must be made simply, and not conditionally 
 from or to a certain day.(p) 
 
 The following are considered actes hereditaires : — 
 
 (1.) When the heir takes possession of the estate without 
 a deed of deliberation, unless he does so merely through 
 kindness. 
 
 (2.) If he sells, alienates, or mortgages the property, unless 
 he acts merely as negotiorum gestor. 
 
 (1) Grotius, Introd. 2, 21, 3 and 4. Van der Linden, i. 9, 10. 
 
 (m) Grotius, Introd. 2, 21, 3. 
 
 («) Grotius, Introd. 2, 21, 5. Justinian, Instit. 2, 19, 7. 
 
 (o) Grotius, Introd. 2, 21, 5. 
 
 (p) Grotius, Introd. 2, 21, 6. 
 
198 OPINIONS OF GEOTIUS. 
 
 (3.) If he carries out the terms of the will, by paying 
 legacies, &c. 
 
 (4.) If he collects the money outstanding and pays the 
 debts of the estate. 
 
 (5.) If he treats the inheritance as his own, and disposes 
 of his rights by sale or cession. 
 
 Acts which are absolutely necessary for the benefit of 
 the estate or the honour of the testator do not constitute 
 adiation,(2) but it is best to enter a formal protest before 
 proceeding to carry out such acts.(r) 
 
 In order to presume adiation, there must be some un- 
 equivocal act done by the heir clearly indicating his inten- 
 tion to accept the inheritance. The mere fact that the heir 
 took out letters of administration in terms of the will is not 
 conclusive proof. Thus where a surviving spouse had taken 
 out letters of administration in terms of a mutual will, and 
 had collected some rents, but had refused to accept any 
 benefits under the will or to proceed with the administration 
 of the estate, it was held that no adiation had taken place.(s) 
 
 In Watson v. Burchill (t) it appeared that a husband, who 
 was married in community of property, made a will disposing 
 of the whole joint estate. His wife was nominated as one of 
 the executors. After his death she took out letters of ad- 
 ministration and filed an account, but she did not distribute 
 the estate, nor did she otherwise accept any benefits under 
 the will. Subsequently she discovered her rights with regard 
 to the joint estate, and she claimed a moiety of the estate by 
 virtue of the community, as well as the benefits conferred 
 on her by the will. Under these circumstances it was held 
 that she had not adiated the inheritance, and she could 
 therefore claim her one-half share of the joint estate, but 
 that she could not at the same time claim the benefits under 
 the will. The same principle had been previously laid down 
 
 (q) See Opinion No. 35 of Grotius, re Ncgotium Hereditatis. 
 (r) Grotius, Introd. 2, 21, 5 and 6. Lybreght's Notaris. Ambt., 2, 5, p. 25. 
 Voet, 29, 2, 4 et seq. 
 
 (s) Silver v. Silver's Executors, 5 J. 29. 
 it) 9 J. 2. 
 
OPINIONS OF GROTIUS. 199 
 
 in the case of the South African Association v. Mostert,(u) 
 and had been followed in Van Rooyen v. Gorman.(v) 
 
 One person cannot adiate or repudiate an inheritance for 
 another except in the case of those under curatorship or 
 guardianship. 
 
 The consequences of adiation were that the heir or co- 
 heirs were clothed with the whole legal persona of the 
 deceased, possessed his property, and became liable for his 
 debts and obligations.^) 
 
 Liability for the debts of the deceased could, however, be 
 avoided by applying for letters for benefit of inventory from 
 the Government. It was usual to apply for such letters 
 after a deed of deliberation had been obtained. Application 
 could be made at any time within thirty years. Creditors 
 and interested parties who pressed for payment could 
 oppose.(j/) Van der Linden (1, 9, 10) describes with great 
 detail the procedure in relation to this matter as it obtained 
 in his day. 
 
 An heir who had been instituted to the universal succes- 
 sion of the estate could not adiate in part and repudiate in 
 part. If an heir has only been instituted in part, he is not 
 bound to accept the rest of the inheritance, for the jus 
 accrescendi between co-heirs no longer strictly applies,^) 
 and the right of accretion is not now ruled by the subtleties 
 of the Eoman law, but depends upon the apparent intention 
 of the testator.(a) 
 
 When several heirs are instituted, each becomes liable for 
 the debts of the deceased in proportion to his share of the 
 inheritance, except in the case of indivisible debts, such as 
 pra?dial servitudes, when each heir will be liable in soli- 
 dum.(b) The heir's share is reckoned according to the 
 
 (u) Buch. 1873, p. 31, and 1869, p. 231. 
 (v) 6 J. 55. 
 
 (x) Van Leeuwen (E. H. B.), 3, 10, 3. C. 6, 30, 22. 
 
 (y) Voet, 28, 8, 12. Schorer ad Grot., 2, 21, 8 and 9. Van der Linden, 1, 
 9, 10. 
 
 (z) Van der Keessel, Thes. 322. 
 
 (a) Schorer ad Grot., 2, 21, 6. Grotius, 2, 23, 5. 
 
 (Z>) Grotius, 2, 21, 7. Schorer ad Grot., 2, 21, 7. Voet, 10, 2, 26. 
 
200 OPINIONS OF GEOTIUS. 
 
 amount for which he is heir, and does not include legacies 
 or prEe-legacies.(c) In the event of insolvency of one of the 
 co-heirs, the liabilities of the others will not be increased.(d) 
 
 When the inheritance has been repudiated by the insti- 
 tuted heirs, it descends to the nearest heirs ah. intestato, and 
 the testament will be invalidated, unless it was further con- 
 firmed by a clausule codicillaire, when the bequests and other 
 directions will continue effectual, (e) 
 
 At the Cape of Good Hope, Ordinance 104 of 1833 makes 
 provision for the filing of an inventory with the Master of 
 the High Court in both testate and intestate estates (sects. 
 14 and 16). The heirs are therefore personally freed from 
 liability for the debts of the deceased.(/) 
 
 CODICILS AND CLAUSES IN WILLS. 
 
 Last wills are either perfecta or imperfecta. 
 
 A perfect last will is a testament validly executed con- 
 taining the institution of an heir. 
 
 An imperfect last will is a codicil; it does not contain 
 the institution of an heir, and could be executed without 
 formalities, {g) 
 
 Under Eoman law a codicil — codicillus (codex) — was an in- 
 formal will which came into use after the establishment of 
 the fidei- commissar 'ia hereditas. No codicils were in vogue 
 before the time of Augustus. It was left to Lucius Lentulus, 
 who also introduced fidei-commissa, to call them into being. (A) 
 
 In Roman law a great distinction was observed between 
 testaments and codicils, both as regards their intrinsic nature 
 and the external formality required in their execution. 
 
 (c) Voet, 29, 20. Schorer ad Grot. d. 1. et ad 2, 26, i. 
 
 {d) See (6) supra. Pothier on Obligations, 1, 2, 4. Art. 2, § 2. 
 
 (e) Van Leeuwen, R. H. E. 3, 10, 10. 
 
 (/) See Fisher v. Liquidators of the Union Bank, 8 Juta, 46. 
 
 (jO See "Eeservatory Clause," p. 204 infra. 
 
 (h) Justinian, 2, 25, pr. 
 
OPINIONS OF GEOTIUS. 201 
 
 (1.) In testaments it was absolutely necessary, in order 
 that the testament may be valid, that an heir to the in- 
 heritance should be instituted. This was not required in 
 codieils.('i) 
 
 (2.) Only one valid testament could exist at a time, 
 whilst a testator could make two or more eodicils.(&) 
 
 (3.) Codicils required no formalities in their execution.(7) 
 
 (4.) Disherison could not take place by codicil.(m) 
 
 (5.) No codicil was void because it made no provision for 
 the legitimate portion. 
 
 (6). No one could be appointed heir by codicil, but the 
 heir instituted under the will could be asked by codicil to 
 give up the inheritance to another.(w) 
 
 The cardinal difference between a codicil and testament 
 had reference to the institution of the heir. 
 
 Under the Eoman-Dutch law these differences had almost 
 entirely disappeared. Van Leeuwen,(o) and the authorities 
 quoted by him, hold that every distinction between testa- 
 ments and codicils has been altogether abolished by usage ; 
 and Grotius, in Opinion No. 1, states that codicils appear to 
 be of very little practical utility, for the formalities required 
 for their execution are the same as in the case of wills. 
 
 Van der Keessel,(j?) however, states that such is not the 
 case, and that three differences between them still exist. 
 
 (1.) As regards the number of witnesses, if executed 
 according to Eoman law, when five witnesses are required to 
 attest the execution of a codicil, (j) 
 
 (2.) The institution of the heir generally takes place by 
 will, and not by codicil. 
 
 (3.) Codicils confirmed by testament under the reservatory 
 clause could be made in a private instrument, and required 
 
 (i) Digest de Hered. Instit. 1. 1. 
 (k) Justinian, Instit. 2, 25, 3. 
 (I) Justinian, Instit. 2, 25, 3. 
 (m) Justinian, Instit. 2, 25, 2. 
 (n) Gaius, 2, 273. 
 
 (o) Censura Porensis, Pt. 1, 3, 2, 2. 
 (p) Theses Selectas, 289. 
 (q) Voet, 29,7,1. 
 
202 OPINIONS OF GKOTIUS. 
 
 no formalities, and no institution of an heir could be made 
 by such private instrument. 
 
 The Eoman-Dutch law required seven male witnesses to a 
 testament, if made according to the formalities of the Boman 
 law. A codicil required five witnesses, either male or 
 female, (r) If the requisite number of witnesses for a last 
 will has been altered by statute, the number of attesting 
 witnesses to a codicil will be altered also. Thus where it 
 has been enacted that two witnesses are sufficient for the 
 execution of an under-hand testament, a like number will be 
 required to attest a codicil.(s) 
 
 A codicil can be executed without witnesses by virtue of 
 the elausule reservatoir which operates as a confirmation of 
 codicils, (t) 
 
 If the instrument is void as a will, but was executed with 
 the formalities required for a codicil, it will take effect as 
 such.(w) 
 
 If the instrument is void as a will because certain pre- 
 scribed formalities were not complied with, it will not 
 become valid by reason of a codicil properly executed 
 referring thereto. The will must remain invalid, but the 
 codicil will be effective. (v) If the codicil was executed 
 informally by virtue of a reservatory clause in an invalidly 
 drawn up will, the codicil will not validate the will,(a;) and 
 the codicil should likewise be invalid, since it was executed 
 by virtue of a reservatory clause which occurred in an in- 
 valid testament, void in law and considered pro non scripto. 
 This point has, however, not been definitely decided.(a;) 
 
 (r) Voet, 29, 7, 1. Dwyer v. O'Flinn's Executor, 3 S. 16. Sehorer ad 
 Grot., 2, 25, 2. 
 
 (s) Dwyer v. O'Flinn's Executor, 3 S. 16. 
 
 (t) In re Sir John Wylde's Will, Buc. 1873, p. 113. Pullen v. Gilfillan 
 (S. A. K.), 1893. 
 
 (it) McDonald and Another v. Hart and Another, Executors of McDonald, 
 3 S. 37. Dwyer v. O'Flinn's Executor, 3 S. 16. 
 
 (v) Van Reenen v. The Board of Executors, Buc. 1876, 44. 
 
 (x) lie Labusohagne, Sup. Court, April 12, 1888. Van Beenen v. Board 
 of Executors, Buc. 1876, p. 44. 
 
OPINIONS OF GROTIUS. 203 
 
 A codicil can exist independently of a will,(y) and if a 
 will and codicil are made on the same day, they will both be 
 considered valid unless their provisions are inconsistent. (2) 
 
 Those who are incapable of making a will are also incap- 
 able of making a codiciL Therefore a surviving spouse, who 
 has accepted benefits under a mutual will, cannot by codicil 
 revoke or alter the terms of such mutual will.(a) 
 
 CLAUSES IN WILLS. 
 
 The clauses sometimes used in wills are five in number : — 
 
 (1.) Clausula codicillaris. 
 
 (2.) Clausula reservatoria. 
 
 (3.) Clausula derogativa. 
 
 (4.) Clausula cassatoria. 
 
 (5.) Clausula generalis. 
 
 The Clausula codicillaris is generally employed by the 
 testator to express his wish that, if his testament cannot be 
 valid as a testament, it may be considered valid as a codicil, 
 or otherwise as may be most consistent with law.(&) 
 
 By virtue of this clause the formalities wanting to render 
 the instrument a valid, solemn, and perfect testament are 
 supplied, and the deed operates as a codicil, provided such 
 formalities were observed as are requisite for the validity of 
 codicils. 
 
 If a will which contains the codicillary clause becomes 
 subsequently invalidated by reason of non-adiation or re- 
 pudiation, it will take effect as a codicil. 
 
 It is not, however, absolutely necessary that the codicillary 
 clause should be inserted in a will in order to let the invalid 
 will take effect as a codicil, (c) The intention of the testator 
 may be gathered from the wording and general tenor of the 
 
 (y) Voet, 27, 3, 5. McDonald v. Hart, 3 S. 37. 
 
 (z) Grotius, Opinion No. 30 (Holl. Cons. 3 (b.) 152). 
 
 (a) Lutgen's Trustees v. Lutgen's Executor, 1 Menz. 504. 
 
 (6) Grotius, Introd. 2, 24, 7. 
 
 (c) Schorer ad Grot., 2, 24, 7. 
 
204 .OPINIONS OF GEOTIUS. 
 
 will ; and if the court finds that such intention has been to 
 let the will be otherwise effective as a codicil, it will be 
 carried out. This is especially the case if no heirs were 
 instituted under the will.(d) 
 
 The codicillary clause is closely connected with the fidei- 
 commissaria hereditas in its operations. In fact, codicilli 
 and fidei-commissa were both introduced by the same person, 
 Lucius Lentullus.(e) If the will is declared invalid as a 
 will, but valid as a codicil, the bequests, trusts, and pree- 
 legacies are preserved, and the heir ah intestato must hand 
 over the bequeathed property to the fidei-commissary heirs 
 and legatees; and in like manner he must restore the in- 
 heritance to the heir nominated in the will by virtue of 
 the universal fidei-commissum. He retains only his right 
 to the deduction of the legitimate and Trebellianic por- 
 tions^/) 
 
 The Beservatory clause is generally introduced by the 
 testator into his will with the object of retaining the liberty 
 at all times to make any alteration in his will under-hand 
 and without formality. The usual form is as follows: — 
 "Finally, I reserve to myself the right to make all such 
 alterations in, and additions to, this my last will as I may 
 think proper, either by separate writing or at the foot there- 
 of, under-hand and without solemnity, desiring that all'such 
 alterations and additions so made shall be equally valid as if 
 they had been inserted herein." 
 
 The effect of the reservatory clause is that the testator 
 can make a subsequent codicil without any formality.^) 
 Such codicil cannot contain the institution of an heir, but 
 if in the will the testator specially reserved the right to 
 nominate an heir later, he could do so by virtue of the 
 reservatory clause. (A.) In order to be valid, such private 
 writing must be signed by the testator.(A) 
 
 (d) Dwyer v. O'Flinn's Executor, 3 S. 16. 
 
 (e) Justinian, 2, 25, pr. 
 
 (/) Van der Keessel, Thes. 307. 
 (g) Van der Keessel, Thes. 337. 
 (A) Sohorer ad Grot., 2, 25, 9. 
 
OPINIONS OF GEOTIUS. 20& 
 
 A reservatory clause is of equal force, whether it is con- 
 tained in a notarial or in a non-notarial and under-hand 
 will.(i) 
 
 If a codicil is properly executed by virtue of a reservatory 
 clause in an invalid testament, the codicil cannot validate the 
 testament. (See Codicils, and footnote (a:), supra.) 
 
 The Clausula derogativa is to the effect that the testator 
 does not wish any wills subsequently made by him to be 
 valid. This clause has lost much of its force, for a testator 
 could not legally deprive himself of the liberty to make 
 fresh testamentary dispositions — Ambulatoria est voluntas 
 defuncti usque ad vitce supremum, exitum.Qc) He could, there- 
 fore, revoke this clause by either of the clauses below men- 
 tioned; and further, if there is no suspicion of fraud a 
 subsequent inconsistent testament will revoke the prior 
 will although it contains the derogative clause.(Z) The use 
 of this clause has therefore practically disappeared. Its 
 only service is that it will more readily attract attention to 
 the execution of the subsequent will, and is more likely to 
 induce investigation to ascertain the absence of fraud. 
 
 The Clausula cassatoria is introduced into a subsequent 
 will specially to revoke a prior one. If such prior will con- 
 tains a protecting derogatory clause, the clause is cancelled 
 and the prior will revoked. (m) 
 
 By the Clausula generalis the testator generally revokes 
 all prior testaments and testamentary writings, declaring 
 that he wishes the present instrument to be considered as 
 his last will and testament. This clause also cancels a 
 derogatory clause in a prior will.(m). 
 
 (i) Re Sir John Wylde's Will, Buc. 1873, 113. 
 
 (k) Digest, 34, 4, 4, and Grotius, Introd. 2, 24, 8, and Holl. Cons. 3 (b.), 
 185 (Opinion No. 15). 
 
 (Z) Van der Eeessel, Thes. 328. 
 
 (m) Van der Keessel, Thes. 328. Bynkershoek, Q. Jus Priv. 3, chaps. 6 
 and 7, and 2, 16, 6. Schorer ad Grot., 2, 24, 8. 
 
206 OPINIONS OF GEOTIUS. 
 
 § 10. 
 
 INSTITUTION OF HEIRS. 
 
 The institution of an heir to succeed to the property of 
 the deceased was the foundation of a testament (see § 1). 
 Modern conceptions as regards succession and the evolution 
 of individual rights from the ancient communal system 
 have, however, greatly altered the effects of such institu- 
 tion, which was formerly absolutely essential to the validity 
 of a will, but have now ceased to be so.(n) 
 
 The institution of the heir is either direct or fidei com- 
 missary.(o) 
 
 It could be made conditionally or simply. 
 
 The condition must not have happened. (p) It must not 
 be contra leges aut contra honos mores.(g>) It must be 
 possible to execute, for impossible conditions do not render 
 the institution void, but are regarded pro non scriptis.(r) 
 And lastly, it must not cause confusion in the will.(s) 
 
 A condition in the negative, that the heir shall not do a 
 certain thing, may also be imposed, in which case he will 
 have to give security for the due compliance with the 
 condition.^) 
 
 Children had to be instituted heirs, and if pretermitted, the 
 will was voidable. At the Cape of Good Hope this is no 
 longer the case. Children cannot claim their legitimate por- 
 tions (Act 23 of 1874, § 2), and testators may disinherit their 
 children without assigning any reasons (§ 3 of same Act). 
 
 If two or more heirs are instituted, but one is unable to 
 
 (n) Van der Keessel, Thes. 290. Voet, 28, 1, 1 ; 28, 5, 1 ; 29, 7, 1. Batt v. 
 Widow Batt, 2 M. 430 ; and discussed but not decided in Anderson v.Thwaits, 
 2 S. 187. Per Connor, J., in Oosthuyzen v. Oosthuyzen, Buc. 1868, pp. 62-65. 
 
 (o) Grotius, 2, 14, 11 and 12. 
 
 {p) Digest, 35, 1, 10, 1 ; 35, 1, 68 ; 31, 1, 45, 2. 
 
 (5) Digest, 28, 7, 14. 
 
 (r) Digest, 28, 7, 1. Voet, 28, 7, 16. Digest, 35, 1, 3. Grotius, 2, 18, 
 20. Van der Keessel, Thes. 310. 
 
 (s) Digest, 28, 7, 16. 
 
 («) Digest, 35, 1, 7 pr. 
 
OPINIONS OF GROTIUS. 207 
 
 take his inheritance, or dies before the testator, or repudiates 
 his share, that portion accrues to the other heirs by virtue 
 of the jus accrescendi. Much, however, depends upon the 
 intention of the testator, as gathered from the wording of 
 the will. Where a husband and wife by mutual will 
 bequeathed certain immovable property to their two sons, 
 " in the first place for both of them, and secondly the eldest 
 son of our grandchildren shall always have the same rights 
 thereto," and one of the sons died after the death of the 
 testators, the legacy having vested; it was decided that 
 there was no jus accrescendi in favour of the surviving 
 son, and that the heirs of the deceased son represented 
 him in the acquisition of the rights to one-half of the 
 property, (w) Likewise, if the children and grandchildren 
 of a deceased son are instituted heirs, and one of the grand- 
 children does not adiate, his share will accrue to the other 
 grandchildren, and not to all the heirs, (y) 
 
 In order to avoid accretion, the property or bequest must 
 have vested.(;r) 
 
 Obligations of Heir. — The heir is bound either to adiate 
 or repudiate the inheritance (§ 8), and he must carry out 
 the wishes of the testator, (y) He must distribute the estate, 
 pay out the legacies, and transfer the ownership of specially 
 bequeathed corporeal property to the legatees.(z) 
 
 The heir can be appointed up to a certain time or from a 
 certain time.(a) 
 
 The testator can dispose not only of his own property, but 
 also of that of his heir.(&) 
 
 When legacies have been left which are subject to a 
 burden, and the testator has not directed by whom the 
 burdens should be borne, the heir must release the property 
 
 (it) De Jager v. Scheepers, Buc. 1875, p. 86. 
 (») Tenant's Notary's Manual, p. 73 (C. 3, § 8). 
 
 {x) De Jager v. Scheepers, Buc. 1876, p. 86. See also for discussion 
 Eahl v. De Jager, 1 J. 38, and Grotius, Opinions Nos. 37 and 39. 
 (y) Grotius, Opinion No. 42. 
 
 (z) Grotius, Opinions Nos. 25, 36, and Introd. 2, 18, 21. 
 (a) Van der Keessel, Thes. 311. 
 (5) Grotius, Opinion No. 42. 
 
208 OPINIONS OF GKOTIUS. 
 
 if the burden is redeemable — such as a mortgage bond; 
 but if the burden is irredeemable, such as emphyteutic 
 rent, servitudes, it must be borne by the legatee (Rath/elder 
 v. Rathfelder).(c) 
 
 The heir had to pay the debts of the deceased, but he was 
 entitled to an " act of deliberation " and " benefit of inven- 
 tory," which, in operation, removed his liability in excess 
 of the inheritance received by him (see § 8). Ordinance 
 104 of the Colonial Statute Law wrought several important 
 changes in this matter, but it did not alter the liability 
 of the heirs to pay the debts of the deceased up to the 
 amount actually received by them.* 
 
 This matter has been fully discussed in the two eases of 
 Fisher v. Liquidators of the Union Eank(d) and Watson's 
 Executors v. Watson's ffeirs.(e) In the former, the plaintiff 
 became heir to one-half of the estate of his parents. Among 
 the assets were certain Union Bank shares, which the exe- 
 cutor, without the knowledge or consent of the plaintiff, 
 transferred into his (plaintiff's) name. The Bank having 
 been placed under liquidation, plaintiff was put upon the 
 list as a contributory for the full amount due on the shares 
 as "calls;" but the court held that the plaintiff, as heir, 
 was not liable for payment of "calls'' in excess of the 
 amount of the inheritance which he had actually received. 
 
 The other case differed somewhat from this, in that the 
 executors had paid the heirs their proportionate shares due 
 under the will, but had not distributed among the heirs the 
 Union Bank shares in the estate. Upon liquidation, a call 
 was made on these shares, but no money was left with the 
 executors wherewith to meet the fresh liability. The court, 
 under these circumstances, held that the executors could 
 recover from the heirs a pro rata share of the amount paid 
 out to each, in order that the calls might be paid. 
 
 (o) Buc. 1874, p. 9. 
 
 * See also judgment of Connor, J., in Oosthuyzen v. Oosthuyzen, Buc. 
 1868, pp. 61-63, concerning the relative positions of executors and heirs. 
 
 (d) 8 Juta, 46. 
 
 (e) 8 Juta, 283. 
 
OPINIONS OF GEOTITJS. 209 
 
 It frequently happens that the heirs, through ignorance, 
 mistake, or negligence, by express words or tacitly acquiesce 
 in the distribution or management and administration of the 
 estate contrary to the terms of the will, and the question 
 arises whether they are estopped from claiming a different 
 distribution or administration to that in which they have 
 acquiesced. A great deal will necessarily depend upon the 
 particular facts of each separate case, and no definite rule 
 can be laid down to govern all cases. If the acquiescence 
 was deliberate, with full knowledge and for a consideration, 
 estoppel will certainly intervene. On the other hand, if the 
 acquiescence is the effect of mistake, fraud, or fear, equitable 
 relief will be afforded by the court. Cases lying between 
 the two extremes must be decided according to the facts of 
 each particular case. A study of the following cases will 
 show the attitude adopted by the courts : — 
 
 De Smidt v. Burton, Master of the Supreme Court. (/) 
 
 Heirs of Horak v. Widow of Horak.(#) 
 
 Eeis v. Executors of Galloway. (A) 
 
 Oosthuyzen Wessels v. Executors of Eensburg.(i) 
 
 Brand v. Neethling's Executor.(A) 
 
 Van Beenen v. Neethling's Executor.(Z) 
 
 Boche Blanche v. Widow of Pas.(m) 
 
 Cleeuweek v. Berg and Another.(n) 
 
 South African Association v. Mostert(o) 
 
 Watson v. BurchilL(p) 
 
 See also Opinion No. 54 (2), Holl. Cons. 3 (b.) 159. 
 
 Collation (see Opinions Nos. 53 and 54).— In computing 
 the amount to which each heir is entitled, all monies 
 received by the heirs as gifts for their advancement or 
 
 (/) 1 Menz. 222. (?) 2 Menz. 424. 
 
 (A) 1 Menz. 186. (*) 2 Menz. 447. 
 
 (h) 2 Menz. 489. (!■) 2 Menz. 492. 
 
 (m) 2 Menz. 475. (») 2 Menz. 418. 
 
 (o) Buc. 1869, p. 231. Buc. 1873, p. 27 and 31, and L. J. R. (N.S.), (P.O. ), 
 
 p. 41. (P) 9 J - 2 - 
 
 
 
210 OPINIONS OF GEOTIUS. 
 
 education must be brought into collation, unless the testator 
 has specially declared otherwise.(g') 
 
 Collation does not entirely depend on the right of the 
 heir to a legitimate portion, for it will be required although 
 the child has lost his right to claim his legitim.(r) The fact 
 that the parent did not prove the debt in the estate of the 
 insolvent child,(s) or that he did not sue him within the 
 period of prescription, is not sufficient proof of intention 
 that collation of the debt should not take place.(tf) In like 
 manner the executors of a parent's estate can set off against 
 the inheritance of a child the debt due by him to his 
 parent's estate, (u) 
 
 In matters of compensation, where one heir has to receive 
 the money value or property of equal value to that in- 
 herited by another heir, the valuation must be arbitrio boni 
 viri.(v) Collation is further treated on pp. 391-395. 
 
 Children as Heirs. — The legal significance of the word 
 " children " used in a will varies according to the nature of 
 the institution and the apparent intention of the testator. 
 By the word " child," and every word of that species, is 
 meant prima facie a legitimate child, (x) 
 
 Another rule is that grandchildren and further descen- 
 dants are comprehended under the word " children," if they 
 are the testator's own children and grandchildren ; but not 
 if they are the children of another person, and thus not 
 his descendants, (y) 
 
 If a burden is imposed upon the children, further descen- 
 
 (2) Voet, 37, 6, 1. Van Leeuwen, Cens. Forens., 3, 13. Grotius, Opinions 
 Nos. 26, 53, and 54. 
 
 (r) Jooste v. Jooste's Executor, 8 J. 288. 
 
 (s) De Villiers, Tutrix of Wehr v. S. A. Association, 2 S. 297. 
 
 (t) Van Heerden v. Marais, Buc. 1876, p. 92. Jooste v. Jooste's Executor, 
 8 J. 288. 
 
 («) Hiddingh's Executors v. Hiddingh's Trustee, 4 J. 200. 
 
 (v) Grotius, Opinions Nos. 26 and 28. 
 
 (x) Dig. 1, 5, 6. Voet ad Pandectas, 36, 1, 13. 
 
 (y) Voet, 36, 1, 22. Van Leeuwen, R. H. R. 3, 6, 7. Van den Berg, 
 Advijsboek, 1 Cons. 196, and 3 Cons. 126, 136, 157. 
 
OPINIONS OF GROTIUS. 211 
 
 dants are not comprehended. Thus, in the charge of fidei- 
 commissary inheritance among the children, grandchildren 
 are not included, and will take the inheritance unen- 
 cumbered.^) 
 
 Hard and fast rules for the interpretation of the word 
 " children " cannot be laid down to govern every case. If the 
 intention of the testator was that the word should include 
 natural as well as legitimate children, or should not include 
 children born after the execution of the will, or that all 
 or some of the grandchildren should be excluded or included 
 under the condition, legal effect will be given thereto. The 
 intention of the testator may be gathered from express 
 words in the will, or inferred from the circumstances. 
 Hence the signification that has to be given to the word is 
 a question of fact, and cannot be governed by definite rules. 
 
 The following Colonial cases treat of this matter : — 
 
 Spengler v. Executor of Higgs (1 E. 221). 
 
 In re Insolvent Estate of Beck, (a) 
 
 Cruse v. Executors of Pretorius.(J) 
 
 Du Preez v. Du Preez.(e) 
 
 Pretorius v. Executors of Pretorius.(^) 
 
 Bresler v. Executors of Kotze.(e) 
 
 In re Brink (Aug. 1892).(/) 
 
 Education. — If the surviving parent is entitled under a 
 mutual will to the usufruct of the property, subject to the 
 burden of educating the children until they become of age, 
 and such parent allows the monies in excess of the educa- 
 tional expenses to accumulate in the hands of the Orphan 
 Chamber, either through mistake or otherwise, he or she 
 is not debarred from subsequently claiming the amount thus 
 accumulated as surplus.^) 
 
 (z) Sande, 4, 5, def. 9, 10, 11. Van Leeuwen, E. H. R. 3, 8, 11. 
 
 (o) 1 Menz. 332. (6) Buo. 1879, 124. 
 
 (c) 1 J. 259. (d) 2 J. 293. (e) 2 M. 466. 
 
 (/) 9 J. (Aug. 1892), Cape L. J. 9, 242. 
 
 (g) De Smidt v. Burton, 1 M. 222. 
 
212 OPINIONS OF GEOTIUS. 
 
 If the surviving parent is burdened as in the preceding 
 case, and he or she spends more money on the education 
 of the children than is derived from the annual interest 
 of the property, the excess expenditure thus incurred cannot 
 be deducted or recovered from the corpus of the estate 
 coming to the children.(A) 
 
 "When the children have to be educated and maintained 
 till they have reached an approved state, the surviving 
 parent cannot confine this period to eighteen years.(i) 
 
 Valuation. — It is frequently stipulated in the mutual 
 will of parents that the children shall be educated during 
 minority, and that upon marriage, majority, or other ap- 
 proved state, their paternal or maternal proportions shall 
 be paid out to them. 
 
 When this valuation is to take place has been laid down 
 in re Wium.(k) 
 
 In that case the spouses had executed a mutual will which 
 contained the following clause: — "Provided the survivor 
 shall be bound and obliged to maintain the children already 
 or still to be procreated during the wedlock, honestly and in 
 the Christian religion, until their majority or marriage, or 
 other approved state, when to each of them shall be paid 
 over, for or in place of father's or mother's portion, such a 
 sum of money as the survivor shall conscientiously, and 
 according to the condition of the estate, find to belong to 
 them." The wife predeceased her husband, and the husband 
 became insolvent. The children proved on the estate for 
 their share of the maternal inheritance, calculated according 
 to the value of the estate at the time of their mother's death. 
 Some of the children had attained majority before the decease 
 of the mother; the others after her death, but before the 
 father's insolvency. The question arose whether the maternal 
 portions had to be calculated according to the value of the 
 estate at the death of the mother, at the date of the majority 
 
 {h) Prince qq. Dieleman v. Berrange alias Anderson, 1 Menz. 435. 
 (i) Opinion No. 54, § 5, Holl. Cons. 3 (b.) 159. (i) 2 Menz. 453. 
 
OPINIONS OF GROTIUS. 213 
 
 of the children, or at the date of sequestration. It was held 
 by the court that the shares of the heirs major at the death 
 of the mother must be calculated according to the value of 
 the estate at that date, and the shares of the heirs minor at 
 the death of the mother had to be calculated according to the 
 value of the estate at the dates when they attained majority. 
 
 Under such a will the children will be entitled to an 
 amount somewhat in excess to their legitimates.(Z) 
 
 If a child receives money from his father and binds him- 
 self to repay such amount, failing which it was to be 
 deducted from his share of the inheritance, and he pre- 
 deceases his father the testator, a child of such son, grand- 
 child of the testator, is bound by such acknowledgment, and 
 the amount will be set off against the inheritance to which 
 he is entitled under the testator's will, as representing his 
 deceased parent.(m) 
 
 When the mutual will provides that the children shall be 
 paid their portions " upon marrying, attaining majority, or 
 other approved condition," it was argued that the words 
 " approved condition " included emancipation, and that where 
 a child had been farming on his own account for several 
 years and was nearly of age, his inheritance could be paid 
 out to him as having attained an approved state, and so the 
 court held.(n) 
 
 Tacit Hypothec. — Where the children have been instituted 
 heirs under a mutual will, the surviving spouse to remain in 
 possession of the estate until they attain majority, they will 
 have a tacit hypothec upon the estate of their surviving 
 parent for the payment of the amounts due to them from 
 the estate of their deceased parent. The broad principle is 
 that the fidei-commissary and the legatee are entitled to a 
 tacit hypothec on the estate of the deceased testator for 
 the payment of the fidei-commissum or legacy. In case of 
 
 (l) Oosthuyzen and Others v. Moeke, 1 R. 330. 
 
 (m) Eiohert's Heirs v. Stoll and Eichert, 1 Menz. 556. 
 
 (n) Ex parte Streicher, 3 J. 58. 
 
214 OPINIONS OF GROTIUS. 
 
 a mutual will, by which the surviving testator has been ap- 
 pointed fiduciary, the tacit hypothec of the fidei-cominissary 
 affects only the share of the first dying testator. (0) 
 
 THE POSITION OF THE SURVIVOR UNDER A 
 MUTUAL WILL. 
 
 Mutual wills, like community of property, were an innova- 
 tion of the Dutch jurists. They were not actually prohibited 
 by the Eoman law, but in Holland their use became very 
 common. At the time of Grotius, any two persons, not 
 necessarily relations or spouses, could make a mutual will, 
 and in the Hollandsche Gonsultatien (2, 275) a case is men- 
 tioned where three persons have made their will on one 
 and the same paper.(jp) 
 
 The only mutual will in use now is that executed by 
 husband and wife conjointly. Such a mutual will is con- 
 sidered the separate will of each spouse, and the dispositions 
 of each are treated as applicable to his or her half of the 
 joint property.(g) 
 
 The mutual will is a contract between the spouses ; (r) but 
 since the power of testamentary disposition could not be 
 rescinded or taken away, each of the spouses retained the 
 right to revoke or alter the mutual will, as far as his dis- 
 positions were concerned, during the lifetime of the other, 
 with or without the other's knowledge or consent. The 
 contract was, to a certain extent; confirmed by death, and 
 the survivor could not revoke or alter the terms of the 
 mutual will if he or she adiated or accepted any benefits 
 
 (o) Voet, 20, 21, and 23. In re Wium, 2 Menz. 453. Gnade in re, 2 Menz. 
 450. Minors Hiddingh v. Be Boubaix, 3 E. 11. Van Eooyen v. McColl, 3 
 J. 284. Oosthuyzen v. Moffat, 5 J. 319. Jennings v. Van Wijk, 7 J. 228, 
 Booysen v. Colonial Orphan Chamber, F. 48 and 51. 
 
 (p) Grotius, 2, 17, 24. Gail, 2, obs. 117, n. 1 and 2. Peckuis de Testa- 
 mentis Conjugorum, 1, 43. Van der Linden, Institutes. See also judgment 
 of Denyssen, J., in S. A. Association v. Mostert, Buc. 1869, p. 231. 
 
 (q) S. A. As.'o i it.on v. Mostert, Buc. 1869, 231, and L. J. (N.S.) P. C. p.,41. 
 
 (r) Neethling r. Neethling, quoted by Fitzpatrick, J., in above case. 
 
OPINIONS OF GROTIUS. 215 
 
 under the will;(s) in other words, if he or she accepted the 
 consideration after the demise of the other spouse. Thus the 
 Privy Council decided in the case of the S. A. Association 
 v. Mostert, (t) that the power of the surviving spouse to 
 revoke the mutual will, as regards one-half of the joint 
 property, is taken away upon the concurrence of two con- 
 ditions : — 
 
 (1.) The will must dispose of the joint property. 
 
 (2.) The survivor must have accepted some benefit under 
 the joint will. 
 
 The first condition is often referred to as the massing of 
 the joint estate. See Barry v. Kunhardt's Executor (2 J. 98), 
 and Brand v. Brand (4 J. 320). 
 
 THE SURVIVOR AS USUFRUCTUARY OR FIDUCIARY 
 
 HEIR. 
 
 The interest of the surviving spouse under a mutual will 
 is generally that of a usufructuary or fiduciary heir. The 
 difference between the two positions is chiefly confined to 
 the time of the vesting of the dominium in the legatees or 
 fidei-commissaries ; and this again regulates the power and 
 duties of the survivor, and the remedies of the fidei-commis- 
 saries and legatees with respect to the joint property left 
 under the mutual will. 
 
 If the surviving testator under a joint will is a hare 
 
 (s) S. A. Association v. Mostert, L. J. (N.S.) P.C. p. 41. 
 
 (t) The decisive authority of the Privy Council has set this matter at 
 rest. Earlier cases had come before the courts, but in none of these was 
 a definite decision of the courts obtained in respect of the questions ulti- 
 mately conclusively answered by the Privy Council. The first case was 
 that of Britz v. Britz (Buc. 1868, 312). The judgment in this case was to 
 the effect that a mutual will, dealing re smgulari, was not revocable by 
 the survivor. This view to a certain extent corresponds with the judg- 
 ment of the court in Oosthuyzen v. Oosthuyzen (Buc. 1868, p. 51), where 
 there was a tendency to hold that a mutual will was irrevocable after the 
 death of one of the spouses, without taking the acceptance of benefits or 
 adiation into consideration at all. In the case of Hofmeyr, Neethling's 
 Curator v. De Wet, Neethling's Executor (Buc. 1868, 312), the judgment 
 was almost to the same effect as in the decision of the Privy Council. 
 
216 OPINIONS OF GEOTIUS. 
 
 usufructuary, the dominium at once rests in the legatees upon 
 the decease of the first-dying spouse.(w) If the survivor is 
 a fiduciary, the dominium vests in him,^) and the fidei-com- 
 missaries have a contingent claim.(M>) ' Is etiam heres dicitur, 
 qui sub onere fidei-commissa est heres (Opinion No. 55). 
 
 The wording of wills whereby the whole or part of the 
 joint property is left to legatees or fidei-commissary heirs 
 after the death of the testator frequently involves the 
 bequest in a great deal of ambiguity, and this has led to 
 a vast amount of litigation and numerous decisions, which,, 
 if not apparently inconsistent, are certainly most difficult 
 to analyse in order to obtain a definite series of rules for 
 future guidance. 
 
 The presumption, in case of ambiguity, is always in favour 
 of a fidei-commissum, and the burdened heir will be con- 
 sidered a fiduciary in preference to a usufructuary. The 
 mere use of the words "for life" in a bequest does not 
 always confer a bare usufruct, but sometimes ownership, 
 depending upon the construction placed upon the will.(ai) 
 This is certainly the case where the interests of creditors 
 are concerned.(y) 
 
 Thus in the case of In re Zipp,(z) the survivor and the 
 children were appointed heirs of the predeceasor in all the 
 testator's property, to be possessed by them as their full and 
 free property, With the condition that the survivor remained 
 bound to support the children till marriage or majority, " at 
 which time each shall be paid out such portions as the 
 survivor shall think fit, the survivor to remain in full and 
 undisturbed possession, in order to be the better enabled by 
 means of the usufruct to educate and support the minors." 
 Further, after the survivor's death two farms were bequeathed 
 
 («) Upton v. Upton, Buc. 1879, 289. In re Zipp, 1878. Lucas v. Hoole, 
 Buc. 1879, p. 132. Kahl v. De Jager, 3 J. 38. 
 
 (v) Opinion No. 55, Holl. Cons. 3 (b.) 339. 
 
 (w) Hiddingh v. De Roubaix, 3 E. 11. Van Rooyn v. McColl, 3 J. 284. 
 Oosthuyzen v. Moffat, 5 J. 319. 
 
 (st) Voet, 7, 1, 9, 10, 13. Grotius, 2, 20, 14. Sande, Decis. Fris., 5, 1, 2. 
 
 (y) Hiddingh v. De Roubaix, supra. 
 
 [z) Decided in the Supreme Court in December 1878. 
 
OPINIONS OF GROTIUS. 217 
 
 to the children, to be entered upon and possessed by them as 
 their free and own property. At the death of the predeceasor 
 (the husband) three children were left, and the survivor 
 adiated. One of the Children died subsequently, and the 
 survivor was appointed executrix. She then applied to the 
 court for an order to appoint appraisers to value the farms, 
 and to allow her to transfer them to the surviving children, 
 and to raise a mortgage on them to the extent of one-third 
 of their value (i.e., the share of the deceased child), this 
 amount to be paid into the estate of the deceased child. 
 It was argued for the surviving children that the mother 
 was a fiduciary, and that therefore the dominium vested in 
 the fidei-commissaries only after her death, when the jus 
 accrescendi would operate in their favour ; but the court held 
 that the estate vested upon the death of the predeceasor, and 
 that the mother was entitled to her share in the estate of 
 her deceased child as heir ab intestato, she being merely a 
 usufructuary. 
 
 The case of Upton v. Upton (a) was decided on the same 
 grounds seven years previously (1871). There, by mutual 
 will, it was provided that the survivor should be the sole 
 heir together with the children, " one-half of the estate and a 
 child's portion to appertain and belong to the survivor, and the 
 residue to the children, share and share alike in equal portions, 
 ■<— and at the demise of the survivor the said joint estate shall 
 be divided equally among the children." Under these cir- 
 cumstances it was argued that the survivor had acquired an 
 absolute right to one-half and a child's portion of the estate, 
 and a usufructuary's right over the remainder. It was, 
 however, decided that the whole estate should go to the 
 children on the death of the survivor, the survivor being a 
 usufructuary and fiduciary heir. 
 
 In the case of Lucas v. Eoole,(b) the wording of the will 
 was almost identical with that of the mutual will in the 
 preceding case, and it was then decided that the children 
 were fidei-commissary heirs in respect of one-half and a 
 
 (o) Buc. 1879, 289, and Roscoe, 2, 42. (6) Buc. 1879, 132. 
 
218 OPINIONS OF GROTIUS. 
 
 child's portion of the estate, and that the survivor was a 
 usufructuary heir as regards the remainder. In giving 
 judgment, De Villiers, C.J., is reported to have said, "The 
 will is not free from obscurity, for, after declaring that 
 one-half of the joint estate and a child's portion should 
 belong to the survivor and the residue to the children, the 
 will directs that the survivor shall enjoy the usufruct of 
 the joint estate during his or her life, and that on his or 
 her death the joint estate shall be equally divided among 
 the children. Following the ordinary rule, however, that all 
 the parts of a will are to be construed so as to form a 
 consistent whole, the apparent inconsistency of the will 
 may be reconciled by holding that as to one-half and a 
 child's portion of the joint estate, the testators intended 
 that the survivor should be a fiduciary heir, and as to the 
 residue, that the survivor should be merely a usufructuary. 
 If this view be correct, it would follow that after the death 
 of the survivor the children became entitled to the whole 
 of the joint estate of the testator and his wife, providing, 
 of course, that the following conditions occurred, viz., that 
 the will disposed of the joint property and that the survivor 
 had adiated under the will." 
 
 In Rahl v. De Jager,(c) the children of the marriage were 
 appointed sole and universal heirs, and the testators desired 
 that after the death of the survivor the value of the pro- 
 perty was to be divided in equal shares among all the heirs. 
 Here it was decided that the survivor was a mere usufruc- 
 tuary, and not a fiduciary heir. 
 
 This decision was followed in Nortje v. Nortje.(d) The 
 mutual will stipulated that the survivor should remain in 
 possession till his or her death, when the property was to be 
 publicly sold, and the proceeds divided amongst the children 
 or their lawful heirs. The testator died in 1868, when a 
 daughter of the marriage was married to N. In 1881 a 
 decree of divorce was obtained by the daughter against her 
 husband on the ground of adultery, but the forfeiture of 
 
 (e) 1 J. 38. (d) 6 J. 9. 
 
OPINIONS OF GROTIUS. 219 
 
 benefits was not decreed. In 1886 the survivor, who had 
 adiated, died. Under these circumstances it was decided 
 that the survivor was a mere usufructuary, that the dominium 
 vested in the children in 1868 and not in 1886, and that 
 therefore the daughter could only claim one-half of the in- 
 heritance as against her husband, the parties having been 
 married in community of property. 
 
 This case clearly illustrates the importance as to the time 
 of the vesting of ownership. 
 
 In Klopper v. Smit,(e) husband and wife, married in 
 community of property, bequeathed all their property that 
 should be left at the death of the survivor of them to certain 
 heirs. The survivor was not appointed one of the heirs. 
 The court held that if the survivor adiated under the will, 
 he was a mere life usufructuary and the property vested in 
 the heirs ; but he could repudiate the will, in which case he 
 would be entitled to claim one-half of the joint estate. 
 
 The case of Hiddingh v. Be Roubaix(f) illustrates a 
 converse position. There the survivor and children were 
 appointed heirs of the first dying, on condition that the 
 survivor should be allowed to keep the whole of the joint 
 estate under his or her control and to remain in posses- 
 sion of the usufruct, but at the death of the survivor the 
 joint estate was to be equally divided among the children. 
 And it was held that the children were fidei-commissary 
 heirs, in whom the estate vested upon the death of the sur- 
 vivor, and that they therefore had a contingent claim only 
 in case of insolvency. 
 
 The survivor and children were appointed heirs in this 
 case. Compare with this provision the terms of the will in 
 Lucas v. Hoole on the one hand, and Rahl v. De Jager on 
 the other. 
 
 When the interpretation of the will merely affects the 
 heirs, no grave difficulties arise. It is, however, different 
 when the rights of third parties, such as vendees and creditors, 
 conflict with claims of the heirs under the will. 
 
 («) Decided in Sup. Court, March 2, 1892, 9 Juta, p. 167. (/) 3 E. 11. 
 
220 OPINIONS OF GROTIUS. 
 
 It is undisputed law that the property of the testator 
 must be realised to meet his debts as a first charge before 
 heirs and legatees can be paid, and if they have been paid 
 under mistake, their bequests will have to be abated, or they 
 will have to make a refund in proportion to the amount 
 received. 
 
 What is, however, the position of affairs when the usu- 
 fructuary or fiduciary heir has alienated or encumbered in 
 favour of a third party the property bequeathed under a will 
 to the legatees or heirs ? 
 
 The legal remedies afforded to legatees and fidei-com- 
 missaries in order to obtain possession or satisfaction of 
 their claims under a will are three in number : — 
 
 (1.) A personal right against the heir for payment or com- 
 pliance with the terms of the bequest. 
 
 (2.) A jus in rem against the property itself. 
 
 (3.) A right of tacit hypothec against the estate of the 
 testator, but not of the heir, after all debts have been 
 paid, for payment of the value of the legacy or fidei-com- 
 missum. 
 
 The second remedy under the Eoman Dutch-law included 
 the rei vindicatio, and, in the case of minors, restitutio in 
 integrum. 
 
 If the heir alienated or encumbered the property which 
 had to be handed over as a legacy or fidei-commissum, the 
 legatee or fidei-commissary could reclaim the property from 
 the alienee, or could demand that the burden be declared 
 void; and the fidei-commissary will not be barred by any 
 length of time which may have intervened between the 
 alienation or encumbrance and the happening of the event 
 which vested the title in hiin.^) 
 
 If the fiduciary and the vendee were both ignorant that 
 the property was subject to a fidei-commissum, and the 
 ignorance could be attributed to no fault on their part, but 
 
 (g) Voet, 36, 1, 64 ; Sande de Prohib. Alien., 3, 8, 51 and 57. Sande, Decis. 
 Fris., i, 5, 16. Gail, 2 Obs. 137, 5, 6, 7. Burge, Col. and For. Laws, 
 pt. 2 — Fidei-cormmissa. 
 
OPINIONS OF GEOTIUS. 221 
 
 solely to the conduct of the testator, it has been considered 
 that the property must remain with the purchaser, and 
 the fiduciary must pay the purchase-money to the fidei- 
 commissary, (h) 
 
 If the fiduciary or usufructuary encumbers the property 
 registered in his name in favour of an innocent and bona 
 fide mortgagee for valuable consideration without notice of 
 the terms of the will, the hypothec or other burden will not 
 be void, and the fidei-commissaries cannot recover more than 
 one-half the proceeds if the property be sold in execution 
 of a judgment obtained by the mortgagee. In case of in- 
 solvency of the fiduciary, the fidei-commissaries will be 
 allowed to prove preferently for one-half of the present value 
 of their contingent claim and concurrently for the rest. 
 They are allowed this preference by virtue of the tacit 
 hypothec which they have upon the estate of the testator, 
 but not upon the estate of the fiduciary. Therefore the 
 tacit hypothec does not extend over the whole of the 
 insolvent fiduciary's estate, but only over such property as 
 can be proved to have come into his hands from the estate 
 of the predeceasor. Hiddingh v. Be Boubaix;(i) Van 
 Rooyen v. McGoll ; (k) Oosthuyzen v. Moffat ; (I) Haupt v. 
 Van der Hever.(m) 
 
 If such property is alienated by the fiduciary to a trans- 
 feree who knows of the fidei-commissum, the transfer may 
 be set aside {Lange v. Scheepers).(n). 
 
 If the alienation is made to a bona fide transferee for value 
 who is ignorant of the prohibition, the fidei-commissaries or 
 legatees have no real right to the alienated property, and 
 cannot recover it by vindication if they were cognisant of 
 what was being done, and did not protest against the in- 
 terference with their rights {Lange v. Liesching).(o) From 
 
 (A) Voet, 36, 1, 64. Sande de Prohib. Alien., 3, 7, 10. Burge, Fidei- 
 commissa. 
 
 (»)'3B. p. 11. (*) 3 J- 284. 
 
 (Z) 5 J. 319. (m) 6 J. 49. 
 
 (m) Referred to in Lange v. Liesching, F. 55, decided in August 1878. 
 
 (o) Foord, 55. 
 
222 OPINIONS OF GKOTIUS. 
 
 the judgment of De Villiers, C.J., in this case it seems that 
 it would probably make no difference whether the fidei- 
 commissaries or legatees did or did not know of the inter- 
 ference. This is certainly contrary to the doctrine of the 
 Roman-Dutch law, which allows the vindicatory action, but 
 circumstances at the Cape of Good Hope have altered the 
 position of legatees and indirect heirs, owing to the wider 
 powers conferred on executors, the passing of Act No. 5 of 
 1861, § 9, and the facility afforded to legatees and heirs to 
 have their titles registered in the Deeds Eegistry. 
 
 Moreover, it must not be forgotten that all fidei-commissa 
 had to be registered in Holland,(p) whilst at the Cape this was 
 not necessary, (q) although, if fidei-commissaries were to register 
 their titles in the Deeds Eegistry there, and alienation were 
 then to take place contrary to the terms of the fidei-com- 
 missum, the legal remedies will be exactly the same as those 
 allowed under the Roman-Dutch law. 
 
 If the property was not registered in the names of the 
 testators at the time of the death of the predeceasor, no right 
 in rem passes to the legatees or indirect heirs. {Booysen v. 
 Colonial, Orphan Chamber).(r) 
 
 The surviving spouse must draw up an inventory of the 
 estate after the death of the predeceasor. If such inventory 
 is not forthcoming, the executors of the survivor will have 
 to prove that any property claimed by them qua executors 
 of the separate estate of the survivor was acquired after the 
 death of the predeceasor, and on failure of such proof the 
 whole estate of the survivor must be presumed to have 
 formed part of the original joint estate (Smith v. Sayers).(s) 
 
 "When the usufruct of the property is left under a will, but 
 no heir is instituted or no person nominated to whom the 
 ownership is to go, the nominal legatee or usufructuary 
 will be considered as vested with the dominium (Castleman 
 v. Stride's Executor).{t) 
 
 (p) Placaat of 1624. Voet, 36, 1, 12. 
 
 (?) In re Lutgens, 2 Menz. 315. 
 
 (r) Foord, 48. (s) Foord, 66. («) i J. 28. 
 
OPINIONS OF GEOTIUS. 223 
 
 A mutual will by two spouses is valid as the will of the 
 surviving spouse, notwithstanding his or her second marriage 
 {Ludwig v. Ludwig's Executor s).{\i) Subsequent marriage, 
 under English law, on the other hand, revokes a previous 
 testamentary disposition. 
 
 When the child predeceases the surviving spouse under a 
 will by which the survivor and child are appointed the sole 
 and universal heirs, the former being burdened with a fidei- 
 commissum of her share in favour of the latter, it was held 
 that the child could by last will appoint her surviving 
 parent as her heir, and that thereupon the survivor became 
 entitled to the free possession of the joint estate, although 
 such an occurrence was not contemplated at the execution 
 of the mutual will. 
 
 When an heir is burdened with a fidei-commissum to 
 restore to a certain person the residue of the estate which 
 may be left at his death, he is considered burdened with 
 & fidei-commissum residui, and he cannot alienate during his 
 lifetime more than three-fourths of the estate. If by mutual 
 will the survivor was burdened with a fidei-commissum 
 residui, he could dispose during life of the whole, and was 
 not bound to preserve one-fourth for the residuary legatee.(y) 
 
 The usufructuary can be restrained by interdict from 
 alienating the property to which the legatee is entitled 
 (Oosthuyzen v. Oosthuyzeri).(x) 
 
 The claim of the fidei-commissary was contingent, the 
 dominium only vested in him upon the death of the fiduciary, 
 and if he died before the fiduciary, his share accrued to his 
 co-heirs. In the case of a usufructuary, the dominium vests 
 in the legatee, who can dispose of his spes successionis 
 during the life of the usufructuary heir, or can let it devolve 
 upon his heirs, should he predecease the usufructuary (Rahl 
 v. Be Jager,(y) and Opinions of Grotius Nos. 37 and 39).(«) 
 
 («) 2 Menz. 471. 
 
 (v) Brown v. Eickard, 2 J. 314. Grotius, 2, 20, 13. Holl. Cons. 5, 25, 3. 
 Schorer ad Grotius, 2, 20, 13. 
 (x) Buc. 1868, 51. (y) 1 J. 38. 
 
 (z) Op. No. 37, Holl. Cons. 3 (b.) 161, and Op. No. 39, Holl. Cons. 3 (b.) 154. 
 
224 .OPINIONS OF GEOTIUS. 
 
 When Boedelhouderschap is continued by the survivor 
 under the terms of a mutual will, a fidei-commissum, either 
 simple or residuary, is not created in favour of the heirs, and 
 therefore they have no right to a tacit hypothec or to a 
 vindicatory action (Cloete v. Gloete's Trustees).(a) 
 
 §11. 
 THE LEGITIMATE PORTION. 
 
 By Act 23 of 1874, § 2, of the Cape Legislature it was 
 provided that no legitimate portion shall be claimable of 
 right by any one out of the estate of any person who should 
 die after the Act came into operation. 
 
 As a rule, the appointment of heirs and the bequests of 
 legacies were left to the free will of the testator, but there 
 was one exception : no one could disinherit his or her children 
 without lawful cause. The children had to be instituted to 
 a part of the inheritance, the value whereof had to amount 
 to one-third of the value of the estate to which they would 
 have been entitled ab intestato, or to one-half if there were 
 more than four children. This part was called the legiti- 
 mate portion. Descendants of the children represented 
 them, and could thus claim the legitimate. 
 
 Parents were entitled to a legitimate portion out of the 
 estate of their children if they would have been heirs ab 
 intestato. 
 
 Brothers and sisters could only claim it if an infamous 
 person had been appointed heir. 
 
 In order to calculate the legitimate, the whole estate had 
 to be appraised or sold, and the children had to collate all 
 benefits. (&) 
 
 The legitimate has to be left free and unencumbered,(c) 
 
 (a) 5 J. 59. 
 
 (6) Grotius, 2, 18, 8-11. Van Leeuwen, E. H. R. 3, 5, Tenant's Notary's 
 Manual contains a detailed account of this matter, chap. 3, § 9, 
 (o) Sandenbergh v, Zibee's Executors, 2 Menz. 449. 
 
OPINIONS OP GEOTIUS. 225 
 
 but this does not prevent the parent from imposing certain 
 provisions or restrictions, if these appear for the benefit of 
 the children.(rf) 
 
 Children can only be disinherited by their parents upon 
 certain grounds and for good cause ; and if passed over, they 
 are entitled to claim their legitimate and Trebellianic por- 
 tions.^) 
 
 The children have a preferent claim for the amount of 
 their legitimate ; (/) but if they were born in concubinage, 
 they are not entitled to demand a legitimate portion.(^) 
 
 By Ordinance No. 11 of 1880, the legitimate, Trebellian, 
 and Falcidian portions were abolished in the Orange Free 
 State, and no reasons need be assigned by parents for 
 exheredation. 
 
 § 12. 
 FALDICIAN AND TREBELLIAN PORTIONS. 
 
 These have been repealed by Act 26 of 1 873, § 1 (the law 
 of Inheritance Amendment Act of the Cape Colony), and 
 by Ordinance 11 of 1880, in the Orange Free State. 
 
 Act 26 of 1873, § 1, provides that in no case shall any heir 
 of " any one dying after the taking effect of this Act be en- 
 titled to deduct out of the estate of the person so dying any 
 portion under the laws known respectively as the Falcidian 
 and the Trebellianic Laws, which, but for such laws respec- 
 tively, such heir would not be entitled to claim or deduct." 
 
 The Lex Falcidia was a plebiscitum passed in the year 714, 
 A.U.C. This law enacts that no testator can dispose of more 
 than three-fourths of his estate in legacies ; one-fourth had 
 
 (d) Blignant's Trustee v. Cellier's Executor, Buo. 1868, p. 206. See also 
 judgment of Watemeyer, J., in Van Schoor's Trustees v. Muller's Executors, 
 3 S. 131 and 137. 
 
 (e) Swanepoel v. Stroh— Re Estate of Gouws (0. F. S.), August 9, 1880. 
 Barret and De Kock v. Meyer's Executors (Natal), July 9, 1885. 
 
 (/) Clarence v. Reid, 3 S. 122. 
 
 (g) Bronn v. Fritz Bronn's Executor, 3 S. 313. 
 
 P 
 
226 OPINIONS OF GKOTIUS. 
 
 to be left free to the heir.(A) This fourth was known as 
 the quarta Falcidia, portio legibus debita, portio legitima, or 
 briefly as quarta or Falcidia. The Lex Falcidia was pre- 
 ceded by the Lex Furia testamentaria and the Lex Voconia,(h) 
 whilst its principles were extended by the Senatusconsultum 
 Pegasianum (i) to fidei-commissa, and further extended to 
 donations mortis causa by a rescript of Antoninus and 
 Severus,(7<:) to fidei-commissa imposed on heirs ab intestato 
 by a rescript of Antoninus Pius,(Z) and to donations inter 
 conjuges by C. 6, 50, 12. 
 
 If less than one-fourth was left to the heir, he was entitled 
 to the actio ad supplementum legitimce ; if the lawful heir was 
 disinherited, he was entitled to the querela de inofficioso. 
 
 The Trebellian fourth was allowed to be deducted by the 
 heir in the case of fidei-commissa. 
 
 Before the Senatusconsultum Trebellianum (62 A.D.), the 
 heir remained heir, and as such liable for all the obligations 
 of the deceased, although he may have handed over the 
 whole estate to fidei-commissaries. 
 
 This Senatusconsultum, passed during the reign of Nero, 
 in the consulships of Trebellius Maximus and Annseus 
 Seneca, enacted that upon the handing over of the estate 
 under a fidei-commissum, all actions which could have been 
 brought by or against the heir could be instituted by or 
 against the fidei-commissary. 
 
 In 73 A.D. the Senatusconsultum Pegasianum was passed, 
 during the reign of Vespasian, in the consulships of Pegasus 
 and Pusio, whereby the instituted heir was allowed to retain 
 one-fourth part of all fidei-commissa. 
 
 These Senatusconsulta were amalgamated by Justinian 
 under the name of Senatusconsultum Trebellianum. (m) 
 
 Both the legitimate and Trebellianic portions could be 
 
 (//) Gains, 2, 224-227. Justinian, 2, 22, pr. 
 (i) Justinian, Instit. 2, 23, 5. 
 (fc) Qode, 6, 50, 5. 
 {I) Digest, 35, 2, 18. 
 
 (m) Gaius, 2, 253-258. Justinian, 2, 23, 4, 5, 6, 7. Digest, 31, 1, 2, and 
 36, 1, 1, 16, 21, and 36, 1, 30, 3. 
 
OPINIONS OF GEOTIUS. 227 
 
 deducted by the children, but they could not be both claimed 
 by ascendants (Grotius, Opinions Nos. 25 and 28).(m) 
 
 The following Eoman-Dutch law authorities may be con- 
 sulted on this subject : — 
 
 Grotius, Introd. 2, 20, 6-10 ; 2, 21, 7-9 ; 2, 23, 20. 
 
 Van Leeuwen, Room. Holl. Recht., 3, 11. 
 
 Huber, Hedendaagsche Rechtsgel., 2, 19, 84, 85, 86, 96, 97, and 
 2, 23. 
 
 "Wassenaar, Pract. Not. Testam., § 147, 148. 
 
 Lybrecht's Notaris. Ambt.., i. 23, and i. 26. 
 
 Voet, Pandects, 35, 2, and 36, 1. 
 
 Van der Linden, 1, 9, 9, p. 72. 
 
 See also Domat's Civil Law, tit. "Falcidian Portion," and 
 Tenant's Notary's Manual, 3, 13, and 18. 
 
 § 13. 
 FIDEI-COMMISSA. 
 
 The nature of fidei-commissa or "trusts" have already 
 been considered in treating of usufructuary and fiduciary 
 heirs (§ 10), and of the Falcidian and Trebellianic portions 
 (§ 12, supra). 
 
 Fidei-commissa at first were trusts pure and simple, so 
 called because they were entrusted to the good faith — -Juki 
 commitebant — of those requested to execute them.(o) The 
 following definition of a fidei-commissum is given by 
 Ulpian : (p) — Quod non civilibus verbis, sed precative re- 
 linquitur; nee ex rigore juris civilis proficiscitur, sed ea 
 voluntate datur relinquentis. 
 
 These trusts were always something outside and foreign 
 to the nature of the testamentary jurisprudence of Rome. 
 At their commencement no legal remedies existed for their 
 execution. Everything was left to the good faith of the 
 fiduciary. Later, under the Emperor Augustus, the Consuls 
 
 (n) Holl. Cons. 3 (b.) 162, and 3 (b.) 193. 
 
 (o) Gaius, 2, 274, 275, 278, 285. Justinian, 2, 23, 1. 
 
 {p) Eegula, 25, 1. 
 
228 OPINIONS OF GROTIUS. 
 
 were instructed to interfere, but the proceeding was always 
 considered extra ordinem.(q) 
 
 Subsequently the prcetor fidei-commissarius was specially 
 cippointed to deal with " trusts " of this nature. 
 
 Trusts were of two kinds — universal or particular : fidei- 
 commissarice hereditates or Jidei-commissa singularum rerum. 
 
 The following Eoman-Dutch law authorities may be 
 consulted on this subject : — 
 
 Grotius, 2, 20. 
 
 Van Leeuwen, Roman-Dutch Law, 3, 8, 1-5, and Censura 
 Forensis, 3, 7. 
 Voet, 36, 1. 
 
 Sande de Prohib. Alien., 3, 5, 1, and Decis. Fris., 4, 5, 18. 
 Huber, Heedendaagsche Rechtsgel., 2, 19. 
 Van der Linden, 1, 9, 8. 
 Lybreght's Notaris. Ambt., 1, 25, 1-3. 
 Wassenaar, Over Testamenten, § 145, 146. 
 Gail, lib. 2, obs. 136. 
 
 Burge on Colonial and Foreign Laws, under Fidei-commissum. 
 Hollandsche Consul tatien : — 
 
 Part I. Cons. 12, 24, 60, 63, 68, 71, 76, 78, 79, 93, 98, 
 
 100, 107, 115, 158, 165. 
 Part II. 19, 81, 124, 181, 220, 296, 298, 300. 
 Part III. (a.) 46, 24, 105, 111, 143, 151. 
 Part III. (b.) 29, 111, 115, 151, 152, 188, 194, 198, 309, 
 
 318, 338, 339, 137, 124, 116. 
 Part IV. 18, 48, 84, 94, 109, 113, 168, 175, 388, 280, 262, 
 
 405, 142, 146. 
 Part V. 14, 15, 59, 109, 112, 129, 137, 158, 174, 180, 207, 
 
 214, 215, 226, 227, 253. 
 Part VI. 12, 47, 122, 129, 131, 132, 138, 176, 183, 185, 188, 
 209, 102, 182, 27. 
 
 Grotius states in his Opinions that the imposition of a fidei- 
 commissum must be interpreted strictly and not extensively,(r) 
 
 (q) Gaius, 2, 278. Justinian, 2, 23, 1. 
 
 (r) Opinion No. 24 (Holl. Cons. 3 (b.) 188), and Opinion No. 32 
 (Holl. Cons. 3 (b.) 189). 
 
OPINIONS OF GEOTIUS. 229 
 
 and in dubio the inheritance will be presumed to be un- 
 encumbered, (s) 
 
 The fiduciary can be compelled to give proper security for 
 the restitution of the fidei-commismm-.(t) The manner of 
 imposing a trust is not connected with any formalities, and 
 if a clerical error has crept in, the trust will not necessarily 
 be void.(w) 
 
 In case a person bona fide, believes that a trust has been 
 imposed in his favour, but cannot obtain conclusive evidence, 
 he may refer the matter to the oath of the instituted heir.(») 
 
 Trusts may be imposed either on the instituted heir or 
 the fidei-commissaries, but in places where the legitimate 
 portion is still in force, the children, if burdened with a 
 trust, can claim their legitimate unencumbered.^) 
 
 If the fidei-commissary dies before the fiduciary, the latter 
 is entitled to the property in full ownership. (y) If the 
 heir was not a fiduciary but a usufructuary, and the legatee 
 predeceases him, the property does not pass to him, but goes 
 to the lawful heirs of the legatee, (z) 
 
 There cannot be a. fidei-commissum otherwise than in favour 
 of some one, and if no fidei-commissary is nominated, full 
 and not qualified ownership will vest in the heir.(a) 
 
 In like manner the dominium will vest upon failure of 
 fidei-commissaries, (b ) 
 
 The burden of fidei-commissum is construed strictly, as 
 above stated, and in case of doubt the court will presume 
 that no encumbrance was intended, (c) 
 
 Where a testatrix appointed her son as her sole and 
 
 (s) Opinion No. 27 (Holl. Cons. 3 (b.) 194). 
 («) Opinion No. 29 (Holl. Cons. 3 (b.) 309). 
 (u) Opinion No. 30 (Holl. Cons. 3 (b.) 152). 
 (v) Opinion No. 31 (Holl. Cons. 3 (b.) 198). 
 (x) Sandenbergh v. Zibee's Executors, 2 Menz. 449. 
 (y) Van Dijk v. Executors of Van Dijk, 7 J. 194. 
 (z) Per De Villiers, C.J., in Van Dijk v. Van Dijk's Executors, supra. 
 (a) Castleman v. Stride's Executors, 4 J. 28. Drew v. Drew's Executor 
 Buch. 1876, 203. 
 
 (6) Heyn v. Tonkin — De Geest's Case, 4 J. 95. 
 
 (c) Cruse v. Executors of Pretorius, Buch. 1879, 124. 
 
230 OPINIONS OF GEOTIUS. 
 
 universal heir, and on his death his lawful descendants by- 
 representation, the son will succeed unburthened with a 
 fidei-commissum, and upon his death his descendants will 
 take his place {Lint v. Zipp).(d) See also the cases of 
 Oliver v. Oliver and Cloete,(e) and Du Plessis v. Small- 
 berger,(f) and Ml v. NeVs Executors,(g) as illustrations of 
 the restrictive interpretation placed upon fidei-commissary 
 institutions. 
 
 If a prohibition of alienation is imposed, so that the 
 legatees shall not be at liberty to sell the bequest to any 
 but their co-legatees, and the co-legatees are unwilling to 
 purchase, a legatee may sell his share to a stranger.(A) 
 
 If a fidei-commissum has been imposed upon condition that 
 the fiduciary heir shall have the usufruct for life, the trust 
 will vest upon the death of the heir, and not upon the death 
 of his or her surviving spouse, (i) 
 
 The will speaks from the testator's death, as a rule ; (k) 
 but this doctrine does not apply where the will contains a 
 clearly contrary expression of intention on the part of the 
 testator. Thus in Ex parte Ratcliffe — Re Mutery's Will,{l) 
 Mutery instituted Batten as her sole heir, upon condition 
 " that, in case of the decease of Batten, whatever property 
 shall remain, shall then be divided into equal shares among 
 his and the testator's relatives, provided he died unmarried. 
 Mutery predeceased Batten, leaving no relatives, and subse- 
 quently Batten died unmarried. Under these circumstances 
 it was held: — (1) that a division per capita among the rela- 
 tives was intended ; (2) that the death of Batten was the date 
 for ascertaining his relatives, and that it was therefore also 
 
 (d) Bnch. 1876, 181. 
 
 (e) 3 S. 367. 
 
 (f) 3 S. 383. 
 
 (g) 8 J. 189. 
 
 (h) Ex parte Steyn (Sup. Court, Sept. 3, 1892). 
 
 (i) Behr v. Morrison's Executor, 7 J. 94. 
 
 (k) Bresler v. Kotze's Executors, 2 Menz. 444. In re Henning, 7 J. 53. ' 
 
 (I) 5 J. 39. Due regard must be paid to the intention of the testator in 
 the construction of wills, and technical rules are subsidiary. De Jager et 
 Uxor v. Muller's Executor, Buch. 1870, p. 52. 
 
OPINIONS OF GEOTIUS. 231 
 
 the date for ascertaining the relatives of Mutery ; (3) that 
 Batten's heirs ah intestato at his death were entitled to the 
 whole inheritance, there being a failure of relatives of 
 Mutery. 
 
 The rights and remedies of a fidei-commissary legatee have 
 been fully discussed under § 10, Survivor's Interest (swpra). 
 
 § 14. 
 LEGACIES. 
 
 Zegatum est donatio qucedam a defuncto relicta.(m) 
 
 It has also been defined as " delibatio hereditatis, qua 
 testator ex eo, quod universum heredis foret, alicui quid 
 collatum vellit; adeoque id, quod mavult se habere, quam 
 eum cui leget, magisque eum eui legat, quam heredem 
 suum."(«) 
 
 Grotius (o) says that " a legacy or bequest is a declaration 
 of intention, whereby something is left to a person by last 
 will, but not as heir." 
 
 It will be sufficient for the purposes of this note to give 
 the authorities that may be consulted with advantage on the 
 subject, instead of embodying the law as there laid down 
 in a special chapter. We can then pass on to consider the 
 points referred to in the Opinions of Grotius and the South 
 African decisions in connection therewith. 
 
 The principal authorities bearing upon this subject are : — 
 
 Justinian, Institutes, 2, 20. 
 Digest, 30, 31, and 32. 
 "Voet ad Pandectas, 30, 31, 32. 
 
 Grotius, Introd. 2, 14, 13; 2, 18, 20; 2, 22, 23 and 24; 3, 
 39, 14, with Schorer and Van der Keessel. 
 
 Van Leeuwen (R. H. R.), 3, 9, and Censura Forensis, 3, 8. 
 
 (m) Justinian, Instit. 2, 20, 1. Digest, 31, 36. 
 (») See Voet, 30-32-1, 1. 
 (o) Introd. 2, 14, 13. 
 
232 OPINIONS OF GROTIUS. 
 
 Pothier on Legacies. 
 
 Domat's Civil Law — " Legacies." 
 
 Huber, Hedendaagsche Rechtsgel., 2, 26, and 27. 
 
 Lybreght's Notaris Ambt., 1, 21. 
 
 Van der Linden, 1, 9, 9. 
 
 Holl. Cons. tit. " Legaat." 
 
 In his Opinions Grotius lays down that a legacy given 
 from a mistaken motive or with a wrong reason {falsa causa) 
 is not vitiated, but remains of force if the testator's inten- 
 tion is void of ambiguity, (p) 
 
 As a rule, legacies had to be made in the same manner as 
 codicils — before five witnesses — but there were certain ex- 
 ceptions. A person under the bona fide belief that a legacy 
 has been left him may put the heir on his oath to deny any 
 knowledge of such bequest.(^) 
 
 If mortgage bonds were made over to legatees in payment 
 of their legacies, they were transferred into the names of the 
 legatees without payment of transfer dues.(r) 
 
 A legacy of life-usufruct expired upon the death of the 
 usufructuary heir. It lapsed if no adiation took place. 
 The dominium vested in the legatee upon the death of the 
 testator, and he could dispose thereof during the lifetime of 
 the usufructuary heir.(s) 
 
 The legacies are presumed to have been left free and un- 
 encumbered, and in dubio the heir must bear all burdens in 
 connection therewith.(i) If the subject-matter of the legacy 
 is encumbered with redeemable burdens, the heir must 
 redeem them ; but if irredeemable, they must be borne by 
 the legatee.(w) 
 
 A legacy of clothes includes all personal effects, such as 
 
 (;p) Opinion No. 15 (Holl. Cons. 3 (b.) 185). 
 (?) Opinion No. 31 (Holl. Cons. 3 (b.) 198). 
 (r) Opinion No. 41 (Holl. Cons. 3 (b.) 153). 
 
 (s) Opinion No. 36 (Holl. Cons. 3 (b.) 191); No. 37 (Holl. Cons. 3 (b.) 
 161) ; No. 39 (Holl. Cons. 3 (b.) 154). 
 (t) Opinion No. 28 (Holl. Cons. 3 (b.) 193). 
 («) Opinion No. 38 (Holl. Cons. 3 (b.) 190). 
 
OPINIONS OF GEOT1US. 233 
 
 trinkets, ornaments, &c, whether in use or merely destined 
 for use :(v) — 
 
 The testator can dispose of the property of the heir, and 
 if the latter adiates, he must carry out the instructions con- 
 tained in the will.(a;) 
 
 The legatee has three legal remedies for the payment of 
 the legacy : (y)~ 
 
 (1.) A personal action against the heir or other person 
 charged with the payment of the legacy, or against the 
 executor. The increase and damages may also be claimed. 
 
 (2.) A vindicatory action. 
 
 (3.) A hypothecary action, founded on the tacit hypothec 
 given to legatees on the testator's estate, but not on that 
 of the heir.(j) 
 
 The decisions relative to the rights of legatees will be 
 found under § 10, pp. 220-223, supra, where the position 
 of the usufructuary heir is discussed. 
 
 The interest vests at the date of death of the testator, and 
 therefore, if a testator leaves a legacy to the children of X., 
 only those children will be entitled to the legacy who were 
 alive at the date of the demise of the testator, and those 
 born subsequently will be excluded, (a) 
 
 Any condition may be imposed, provided it is neither 
 contra leges nor contra bonos mores.(b) 
 
 If a legacy is left subject to the happening of a certain 
 event or contingency, the legatee cannot claim the bequest 
 before the event has occurred. Thus, where by will an 
 annual legacy has been bequeathed to a person for his 
 trouble in acting as arbitrator in case of disagreement 
 among the beneficiaries under the will, it was held that 
 
 {v) Opinion No. 40 (HoU. Cons. 3 (b.) 195). 
 
 (x) Opinion No. 42 (HoU. Cons. 5, 131). 
 
 (y) Van der Linden, 1, 9, 9. 
 
 (z) Hiddingh v. De Roubaix, 3 R. 11. Oosthuyzen v. Moffat, 5 J. 319. 
 Haupt v. Van den Hever, 6 J. 49. 
 
 (a) Bresler v. Kotze's Executors, 2 Menz. 444. In re Schlemmer, Sup. 
 Court, Aug. 6, 1885, and In re Henning, ex parte Strydom, 7 J. 53. 
 
 (J) See Pohl v. Auret and Van Heerden (5 E. D. C. 43), where conditional 
 legacies are discussed. 
 
234 OPINIONS OF GEOTIUS. 
 
 he was not entitled to claim or receive such annual pay- 
 ment until such events had occurred as would give rise to 
 the opportunity for him to perform the duty of arbitrator, (c) 
 
 If a legacy is left upon condition that the legatee is only 
 to enjoy the interest during his lifetime, after which the 
 trustees under the will are to pay the money to his heirs, 
 but in case of insolvency the legacy is to vest in the trustees 
 for the heirs, although the interest is to be paid to the 
 legatee during his lifetime as aliment; the legatee cannot 
 claim the usufruct, but the payment must be made to 
 the trustees of his insolvent estate for the benefit of his 
 creditors.(d) 
 
 The legatees under a will can only acquire rights subject 
 to prior rights, and the testator retains free power of alien- 
 ating or encumbering the property during his lifetime. («) 
 
 The rights of a legatee to a bequest pass to his trustees 
 upon insolvency, and they will be subject to the same condi- 
 tions and restrictions as the legatee. (/) 
 
 If the estate is insufficient to pay all the legacies, an 
 abatement pro rata must be made from all.(^) 
 
 No bequest can be given by implication unless it is a 
 necessary implication. Where a bequest of the usufruct of 
 an inheritance was left to a son, with remainder over after 
 the death of such son and Ms wife, the son is entitled to the 
 bequest during his lif etime, and upon his death his executors 
 can claim the usufruct during the lifetime of his wife. If the 
 son died intestate, his wife will be entitled to one-half, and 
 his children to the other half of the usufruct. If he died 
 testate, the property must be distributed in terms of the 
 will.(A) 
 
 (c) The Consistory of the Dutch Reformed Church v. The Master and the 
 South African Association, 8 J. 181. 
 
 (d) Hiddingh's Trustee v. Colonial Orphan Chamber and Hiddingh, 2 
 J. 273. 
 
 (e) Kriel v. Kriel, 1 J. 49. 
 
 (/) Jonker's Trustees v. Jonker's Executor, 1 R. 334. 
 {g) Mulder v. Mulder's Executors, 4 J. 39. Christie v. Gilbert's Executors 
 and Others, 5 J. 199. Watson's Executors v. Watson's Heirs, 8 J. 283. 
 (h) Morrison v. Morrison's Executors, Buc. 1879, 24. 
 
OPINIONS OF GEOTITJS. 235 
 
 § 15 - 
 CONSTRUCTION AND INTERPRETATION OF WILLS. 
 
 The rules for the construction and interpretation of wills 
 are few in number and easy of application, except in very- 
 complex cases. The principle, as far as applicable, is the 
 same as that which governs the interpretation of contracts 
 and statutes. 
 
 Words in general use, void of ambiguity, receive an inter- 
 pretation according to their usual meaning, unless it appears 
 that they were used in a special sense by the testator. 
 
 Non aliter a significatione verborum recedi oportet, quum 
 cum manifestum est, aliud sensisse testatorem.(i) 
 
 Et cum in verbis nulla ambiguitas est, non debet admitti 
 voluntatis qusestio.(&) 
 
 Full effect is to be given to the apparent intention of the 
 testator. (I) 
 
 Such intention can be gathered from the wording of the 
 will and the circumstances of the case.(m) 
 
 The testament is to be construed liberally in order to 
 ascertain that intention, (to) 
 
 The testator's intention is to be gathered from the whole 
 will, provided it is not unlawful or inconsistent with the 
 rules of law.(o) 
 
 The will must not be construed per parcella, but in its 
 entiretj.(p) 
 
 The testator's intention is the first and great object of 
 inquiry, and to this object all technical rules are, to a 
 certain extent, made subservient.(o) 
 
 If there is an ambiguity in a will, and the testator has 
 assigned a motive for the bequest, that motive may be 
 
 (t) Digest, 32, 1, 69. (/c) Digest, 32, 3, 25, § 1. 
 
 {I) Grotius, Opinion No. 42 (Holl. Cons. 5, 131). 
 (m) Bresler v. Kotze's Executors, 2 M. 466. 
 
 («) Digest, 32, 1, 69, § 1 ; 35, 1, 19, § 1 ; 50, 17, 12, 96. Bronchorst de 
 Reg. Jur. ad 1. 96. 
 
 (o) De Jager et Uxor v. Muller's Executor, Buc. 1870, 52. 
 (p) Voet, 34, 5, 1. 
 
236 OPINIONS OF GKOTIUS. 
 
 taken into consideration for the purpose of explaining the 
 ambiguity, (q) 
 
 Ex scriptura, quae ad faciendum testamentum parabatur 
 nihil peti potest, (r) Instructions given for the execution of 
 a will may, however, be admitted as extrinsic evidence. If 
 there is a latent ambiguity in the will, applicable equally 
 well to two or more persons or things, extrinsic evidence 
 may be admitted, (s) 
 
 Verba testamenti ex precedentibus et sequentibus de- 
 clarantur, et specialiter quando precedentia sunt generalia 
 et sequentia determinata, tunc sequentia determinant pre- 
 cedential). 
 
 Ex verbis precedentibus dispositio immediate subsequens 
 debet intelligi.(w) 
 
 Wills and bequests must be favourably construed, (v) 
 
 Thus, in the case of Cruse v. Pretorius' Executors (Buch. 
 1879, 124), the testator had one daughter by his first 
 marriage, and three sons and three daughters as issue by 
 his second marriage. In a mutual will with the second 
 spouse, the testator instituted as heirs his daughter by his 
 former marriage by name, together with his spouse and 
 children of the second marriage, and a further proviso was 
 inserted imposing a fidei-commissum on the portions " of the 
 appearer's daughters." Held that the proviso did not apply 
 to the daughter of the first marriage. (x) 
 
 All unfavourable conditions imposed under the terms of a 
 will are to receive a restrictive interpretation. 
 
 Cum in testamento ambigue aut etiam perperam scriptum 
 est ; benigne interpretari et secundum id quod credibile est 
 cogitatum, credendum est. Commodissimum est, id accipi, 
 quo res, de qua agitur, magis valeat, quam pereat.(j») 
 
 (q) Digest, 31, 3, 41 ; 34, 1, 4, and Pothier on Test., 7, 5. 
 (r) Opinion of Grotius, No. 23, Holl. Cons, 3 (b.) 39. 
 (s) Per Smith, J., in Ex parte Rademeyer, 1 J. 167. 
 (t) Opinion of Grotius, No. 27, § 1 (Holl. Cons. 3 (b.) 194). 
 \u) Opinion of Grotius, No. 27, § 2 (Holl. Cons. 3 (b.) 194). 
 \v) Opinion of Grotius, No. 30 (Holl. Cons. 3 (b.) 152). 
 (a;) Opinion of Grotius, No. 32 (Holl. Cons. 3 (b.) 189). 
 [y) Digest, 34, 5, 12 and 24. 
 
OPINIONS OF GEOTIUS. 237 
 
 An absurd interpretation must always be avoided in the 
 construction of testaments.(z) 
 
 The presumption always is that the testator's intention 
 was that which is to be gathered from the usual meaning of 
 words of the will.(a) 
 
 No bequest can be given by implication unless it be a 
 necessary implication.(J). 
 
 As regards the interpretation of words in a will, Menzies, 
 J. (c), says, " It is a clear and well-established rule for the 
 construction and interpretation of wills, that where words 
 used in a will are in themselves clear, and, when taken in 
 the sense which they have in common acceptation, them- 
 selves raise no ambiguity, and where no doubt as to the 
 sense in which the testator intended to use these words is 
 raised by any other expressions in the will itself, the words 
 must be construed according to their construction in common 
 parlance where they are words of common parlance, and 
 according to their established technical construction where 
 they had a fixed and certain technical meaning given to 
 them in law or practice, notwithstanding any averment or 
 suggestion, however strong it may be, proposed to be proved 
 by evidence extrinsic of the will, that the testator when 
 making it intended to use them in a different sense than 
 would be given to them." (d) 
 
 Therefore, where a testator in a mutual will with his 
 spouse, to whom he was married in community of property, 
 made certain stipulations as to the devolution of his peopeety, 
 it was held that reference was made to his half share under 
 the community, and not to the whole of the joint estate.(e) 
 
 Likewise, in the case of Johnson v. Boux JSxecutors,(f) 
 
 (*) Opinion of Grotius, No. 36 (Holl. Cons. 3 (b.) 191). 
 (a) Opinion of Grotius, No. 48 (Holl. Cons. 3 (b.) 192). 
 (5) Morrison v. Morrison's Executors, Buch. 1879, 24. 
 
 (c) Caffin et Uxor v. Heurtley's Executors, 1 Menz. 181, 182. 
 
 (d) The learned judge then quoted Van der Linden, Instit. 1, 9, 9. 
 Voet, 34, 5, 1, 34, 5, 4 ; Domat, ii. 3, 1, 6, notes 3, 15, 16. 
 
 (e) Caffin et Uxor v. Heurtley's Executors, 1 Menz. 178. 
 (/) Buc. 1874, p. 34. 
 
238 OPINIONS OF GKOTIUS. 
 
 the testators set aside a certain sum of money, the interest 
 of which was to be paid to certain persons, and upon the 
 death of these persons, the capital amount was to devolve upon 
 their children, it was decided that the reversion was in favour 
 of the children of the testators, and not of the legatees. 
 
 Of course, the intention of the testator, as gathered from 
 the reading of the will, must prevail, especially if, without 
 any difficulty, he could have added to or otherwise altered the 
 wording of the will, in order to convey a different intention, 
 had he so wished.(^) 
 
 If a testator firstly bequeathed certain legacies, and then 
 instituted some persons as his sole and universal heirs of all 
 the residue and remainder of his estate with entail of fidei- 
 commissum, the heirs are not entitled to claim the deduction 
 of the Falcidian portion from the aforesaid legacies, as uni- 
 versal heirs of the whole estate, but only from the residue of 
 such estate.(A) 
 
 A will is to be favourably construed as regards its legality. 
 Thus in dubio the required number of witnesses will be pre- 
 sumed to have been present at the execution of a will,(*) or 
 the necessary heirs will be taken to have been instituted, (h) 
 Semper enim laborandum est, turn in testamentis, turn in 
 testibus, turn in instrumentis, ut pugnantia potius concilien- 
 tur quam ut actus erroris arguatur (Bronchorst de Reg. Jur. 
 ad 1. 188). 
 
 The rule as to the admission of parole evidence to inter- 
 pret the testator's intention is not without difficulty in its 
 application. 
 
 Generally, evidence will not be allowed to be led in ex- 
 planation of the meaning of a will, when such will is void of 
 ambiguity.(Z) 
 
 (g) Drew v. Executors of Drew, Buo. 1876, 205. In re Henning, ex 
 parte Strydom, 7 J. 55. Bresler v. Kotze's Executors, 2 Menz. 444. 
 
 (h) Dantu v. Hart's Executors, Buc. 1868, 168. 
 
 (i) Macdonald v. Hart, 3 S. 37. 
 
 (k) Oosthuyzen v. Moeke, 1 R. 330. 
 
 (I) Caffin et Uxor v. Heurtley's Executors, 1 Menz. 178 and 181. De 
 Smidt v. Burton, 1 Menz. 222. Johnson v. Koux' Executors, Buc. 1874, 
 34. Lint v. Zipp, Buc. 1876, p. 181. 
 
OPINIONS OF GKOTIUS. 239 
 
 Cases, however, frequently arise in which doubtful passages 
 can be elucidated by reference to the evidence of witnesses 
 acquainted with the circumstances of the case, although 
 such ambiguous passages could also be construed consistently 
 with the general tenor of the instrument. It is at this 
 stage that the difficulty arises with regard to the exclusion 
 or admission of parole evidence. The courts have, as a rule, 
 disallowed the admission of such evidence on the grounds of 
 expediency and to prevent fraud. " In this case," says De 
 Villiers, C.J., in Lint, Curator of Doman v. Zipp,(m) "parole 
 evidence cannot be admitted. There is no such ambiguity in 
 the will or in the codicil as to justify the court in receiving 
 it. This is more a question of construction. It may be true 
 that there is a difficulty in construing the different clauses 
 of the will, but this is not a reason for the admission of 
 extrinsic evidence. The principles of law which regulate 
 the construction of wills are against such a procedure. The 
 doctrine, if extended to its full length, might lead to the 
 introduction of evidence in cases where there was no real 
 difficulty." 
 
 In the case of Gollings v. Executors of Hartogh,(n) (of 
 which a full report has not been published), the court 
 allowed evidence to prove the intention of the testator when 
 he bequeathed to the plaintiff " all my household furniture 
 of whatever nature and description, glass and crockery, 
 silver and plate, and all other movable property tvhich at this 
 moment is or may be found in the said house and premises in 
 Sir Lowry Street aforesaid at my decease." It appeared that 
 several pianos and other valuable articles were kept on the 
 premises for the purpose of being sold. The court held, 
 after hearing the evidence, that the words " all other mov- 
 able property in the said house and premises," were suffi- 
 ciently wide to include the pianos, &c, although under 
 ordinary circumstances, without reference to extrinsic evi- 
 dence, the words would, have been construed to embrace 
 
 (m) Buc. 1876, 182. 
 (m) 1 Eos. 29. 
 
240 OPINIONS OF GROTIUS. 
 
 property ejusdem generis as the articles mentioned, i.e., strictly 
 " household furniture." 
 
 If the testator makes a mistake in the name of the legatee 
 or heir, or otherwise, evidence may be led to prove who was 
 intended to be nominated by the testator, but the latent 
 ambiguity must apply generally to more than one person 
 equally. If this is not strictly the case, extrinsic evidence 
 must be excluded. 
 
 Thus where a testatrix bequeathed a legacy to her grand- 
 niece, Louisa Charlotta Eoux, and it appeared that she left 
 surviving two grandnieces, one named Charlotta Johanna 
 Ambrosia, and the other Charlotta Louisa Adriana Eoux, 
 extrinsic evidence to show that Charlotta Johanna Ambrosia 
 was intended was refused and declared inadmissible, on the 
 ground that the latent ambiguity did not refer equally to the 
 two grandnieces.(o) 
 
 If the language of the document, though plain in itself, 
 applies equally well to more objects than one, evidence may 
 be given both of the circumstances of the case and of state- 
 ments made by any party to the document as to his 
 intentions in reference to the matter to which the docu- 
 ment relates. (p) Or, as it was laid down in Hiscocks v. 
 Hiscocks : (q) — " Where there is a latent ambiguity with 
 reference to any person or thing intended by the testator, 
 that is to say, where the description used by the testator is 
 indifferently applicable to more than one person or thing, 
 evidence is admissible to show to which person or thing the 
 description is intended to apply. If one devises to his 
 nephew William Smith, and has no nephew answering to 
 the description in all respects, evidence must be admitted 
 to show which nephew the testator meant by a description 
 not strictly applying to any nephew. The ambiguity there 
 
 (o) Ex parte Rademeyer, in re Herold, 1 J. 159. This case has been 
 referred to under § 3, p. 176, supra. * 
 
 (p) Stephens, Digest of the Law of Evidence, Art. 91 (8). Stringer v. 
 Gardiner, 27 Beav. 35 ; 4 De G. and J. 468. 
 
 (?) 5 M. and W. 
 
OPINIONS OF GKOTIUS. 241 
 
 arises from an extrinsic fact or circumstance, and the 
 admission of evidence to explain the ambiguity is necessary 
 to give effect to the will ; and it is only in such a case that 
 extrinsic evidence can be received." " The only case," says 
 Smith, J.,(r) in which extrinsic evidence is admissible is 
 when the language is free from ambiguity, but from the 
 circumstances or facts proved it is found to apply equally 
 well to more than one person or thing, each corresponding 
 to the words of the will, and then extrinsic evidence of 
 intention — as, for example, statements made by the testator 
 or instructions given for his will — may be given in evidence 
 to show which of the persons or things was intended by the 
 testator." 
 
 (r) Ex parte Eademeyer, supra. 
 
OPINION No. 19. 
 
 HOLL. CONS. III. B. 310 
 [GEOTIUS II. 16, 3.] 
 
 Incapabilities of ecclesiastics removed — Alimentation. 
 
 1. The laws which declared ecclesiastics incapable 
 of inheriting have ceased and been abolished, and a 
 priest cannot be prohibited from succeeding to an 
 inheritance to which he is entitled. 
 
 2. Alimentation must be made to priests in com- 
 pensation for the usufruct to which they were en- 
 titled in conventual property. 
 
 A. joined the Brothers of the convent at Goude 
 named " Der Collatis Broeders," before the commence- 
 ment of the " Disturbances," with the consent of his 
 parents. He remained here among the Brothers, 
 until Henry, Pater and Procurator, was cruelly 
 murdered by order of the Count of Lummi, then 
 within the city of Goude, and until the soldiers, who 
 had entered the convent in great rage, grossly ill- 
 treated the Brothers, and among others the said A. 
 A. had formerly a good memory and intellect, but by 
 the treatment received these were impaired, and he 
 left the convent for a time, until better order was 
 restored in the Republic. He then returned to the 
 
 242 
 
No. 19.] OPINIONS OF GROTIUS. 243 
 
 convent and was accepted. The convent was then 
 provided by the States-General, upon the request 
 of the Heeren of Goude, with an income for the 
 support of the orphan poor of the city. 
 
 From this arises the question whether the said A. 
 ought not to receive aliment and support out of the 
 income of the said convent, in the same way that 
 other monastics were supported by ordinance of the 
 States-General % 
 
 Secondly, whether A. and other priests who had 
 inherited property after the Eevolution, or their 
 heirs upon their death, ought not to be allowed to 
 claim such property? 
 
 (l) I am of opinion that since the laws which 
 rendered priests incapable to succeed to inheritances 
 have been abolished amongst us and have ceased, 
 A. ought not to be prevented from succeeding to the 
 inheritance which devolved upon him. (2) More- 
 over, the general resolution with regard to the 
 alimentation of priests, in compensation for the 
 usufruct to which they were entitled out of the con- 
 ventual property, ought also to tend to the benefit 
 of the said A. 
 
 'S Geaven-Hage, 
 20th October 1614. 
 
 The laws referred to by Grotius are evidently the Placaat 
 of 20th March 1524 and 15th October 1531. The date of 
 this Opinion is 20th October 1614. Subsequently, on the 4th 
 May 1655, the Placaat of the States-General was passed 
 
244 OPINIONS OF GKOTIUS. [No. 19. 
 
 against instituting Catholic priests and pious foundations as 
 heirs. 
 
 Although Grotius distinctly states that the laws imposing 
 these disabilities were no longer in force, Van Leeuwen 
 expressly refers to them, and Van der Keessel and Van 
 der Linden refer to them as still of force in their 
 time.(a) 
 
 At the Cape, disabilities on the ground of religion were 
 abolished by the Ordinance of Sir Lowry Cole, Ord. 68 of 
 1830, and by Act No. 11 of 1868 ; whilst Act 23 of 1874 
 secured freedom of testamentary disposition. 
 
 In the Transvaal, although certain civil disabilities are 
 still in force, yet freedom of religion and of the right to 
 property have been allowed by the Legislature.(6) 
 
 Ordinance 4 of 1880 removes all disabilities on account 
 of the Eoman Catholic faith in the Orange Free State. 
 
 (a) Van Leeuwen, R. H. E. iii. 3, § 13, 14. Van der Keessel, Thes. Sel., 
 284. Van der Linden, i. 9, 4. 
 
 (6) Vide Eaad Besluit of 1st June 1870 and of 11th Sept. 1876. Pretoria 
 Convention, 1881, and London Convention, 1884. 
 
OPINION No. 20. 
 
 HOLL. CONS. V. 127. 
 [GROTIUS II. 16, 7.] 
 
 Second marriage — Benefits — Child's portion. 
 
 When there are children of a previous marriage, the 
 parent cannot dispose of more than a child's portion 
 to his second spouse. 
 
 I have seen a certain ante-nuptial contract be- 
 tween Jakob Boudewyns Wisse and Petronella van 
 Baerland, spinster, bearing date the 24th December 
 1614, and also a certain testament made by the said 
 Wisse and Petronella on the 16th January 1616. 
 
 After having considered the questions advanced, I 
 am of opinion, since the husband of the young lady 
 Petronella had predeceased her, leaving a daughter 
 by his first wife, that she (Petronella) is entitled to 
 take the property brought by her into the estate at 
 the time of the marriage, and also one-half of the 
 property acquired during marriage, and also to have 
 the free ownership of the household effects, furniture, 
 and silver, excluding the clothes belonging to the 
 deceased, as well as two hundred Flemish pounds 
 first mentioned, and one-half of a certain house 
 
 245 
 
246 OPINIONS OF GROTTO'S. [No. 20. 
 
 standing on the market as usufructuary, all in terms 
 of the said ante-nuptial contract. Moreover, she has 
 the right for one year after her husband's death to 
 manage, for the joint profit and loss of the above- 
 mentioned daughter and herself, the land situated in 
 Kloetingen. It must be well understood that the 
 above-mentioned one-half of the household effects, 
 furniture, and silver, the two hundred Flemish pounds, 
 the usufruct of one-half of the house, together with 
 the right of management, do not exceed in value the 
 inheritance of the daughter. As regards the second 
 sum of two hundred Flemish pounds acknowledged 
 to be due in the ante-nuptial contract to Petronella, 
 which her husband would have enjoyed in terms of 
 the contract as coming from her, she cannot claim 
 this amount, since she abandoned her right in the 
 said testament, assuming that the said Wisse died 
 from the illness there mentioned. 
 
 I am further of opinion that the afore-mentioned 
 usufruct of one-half of the house could not be taken 
 away from the said Petronella without consent of 
 the guardians of the said orphan and a decree 
 of the Orphan-Masters, and that she is entitled to 
 retain or vindicate the said usufruct without taking 
 into consideration the alienation of the house, unless 
 she be advised to accept fitting compensation in settle- 
 ment for the said usufruct. 
 
 The lex hac edictale is treated of under Opinion No. 8, supra 
 (Holl. Cons. 3 (b.) 182). 
 
OPINION No. 21. 
 
 HOLL. CONS. III. B. 163. 
 [GROTIUS II. 17, 18, 13, 17 & 18.] 
 
 How many witnesses required to a testament — Wills for pious 
 purposes are not exempted — Witnesses must be expressly 
 summoned — Bequests ad pias causas no exception. 
 
 1. Seven male witnesses are required according to 
 the Civil Law for all testaments without exception, 
 whether they are for the benefit of the poor or not. 
 
 2. This remains unaltered with us except in one 
 point, viz., that a notary, being a public person, fills 
 the place of five witnesses. 
 
 3. Quod libere possit relinqui collegiis, et locis 
 piis, reddit locos pios capaces sed non tollit re- 
 quisitas solemnitates. 
 
 4. Ex testamento facto coram quatuor testibus, 
 quorum quarta erat mulier, ne pia quidem legata 
 debentur in Francia, etsi aliud observetur in terris 
 ecclesise. 
 
 5. Witnesses to a testament must be specially 
 summoned and convoked for that purpose, and tes- 
 taments ad pias causas are not exempted from this 
 requirement. 
 
 6. Kogatio testium non presumitur, sed probari 
 debet. 
 
 247 
 
248 OPINIONS OF GKOTIUS. [No. 
 
 I have seen a certain deposition made by Huy- | 
 brecht Jans van Oosten, Huygh Huyberts and 
 Jannetgen Adams on November 11, 1612, before the 
 Schepenen of St. Aarnourt's Kerk, and have been 
 asked whether the effect of the said deposition is 
 that Willem Willems mentioned therein must be 
 considered as having disposed of his goods by testa- 
 ment or as having died intestate, in which case one- 
 fourth of the property coming from his grandmother 
 will go to the treasury of Zeeland, there being no 
 legal claimants. 
 
 (1) I am of opinion that the said deposition, 
 when examined according to the principles of the 
 Civil Law, is not sufficient to prove that Willem 
 Willems had made a testament, although it was 
 for the benefit of the poor, since, according to the 
 Civil Law, all testaments without exception require 
 seven male witnesses, whether they are for the 
 benefit of the poor or not. (2) And this has not 
 been altered by our customs, except that a notary, 
 as a public person, fills the place of five witnesses. 
 (3) The passage from the Code (a) is not opposed to 
 it : — Quse concedit quod libere possit relinqui col- 
 legiis et locis piis : quia vox ilia, libere, locos pios 
 reddit capaces ; non autem tollit requisitas solemni- 
 tates.(fr) (4) Hence Boe'rius lays down in his 93rd 
 decision, " Quod ex testamento facto coram quatuor 
 testibus, quorum quarta erat mulier, ne pia quidem 
 
 (a) C. 1,2, 1. 
 
 (5) Ut ait Glossa ibid, et late Jason, affirmans hanc opinionem esse oom- 
 munem et in judiciis reoeptam. 
 
21.] OPINIONS OF GEOTIUS. 249 
 
 legata debeantur in Francia, etsi aliud observetur in 
 terris ecclesise." 
 
 (5) To this may be added that it does not appear 
 from the said deposition that the witnesses were 
 expressly summoned and convoked, which in law 
 is necessary in all testaments, and testaments ad 
 pias causas are not exempted therefrom. (c) (6) Eo- 
 gationem autem testium, tanquam solemnitatem ex- 
 trinsecam, nunquam prsesumi, sed probari debere 
 communio est opinio quam tenent Bart, et alii.(e£) 
 
 (c) Quam opinionem tenet Barbatia in 0. relatum, Ext. de testam. et 
 Zabarel, Cons. 73, et Alex. Cons. 70, et Cons. 47, vol. ii., et Boer, decis. 34. 
 
 (d) Bart, ad D. 28, 1, 21, 2. Jason in 1. hao consultissima C. de testam. 
 spec, in tit. de testibus, § 1, vers, sed quid in praedict. et alii allegati, et 
 approbati a Boerio, dicta decisione, 34. 
 
OPINION No. 22. 
 
 HOLL. CONS. I. 231. 
 [GROTIUS II. 17, 13, 17 & 18.] 
 
 Testament — Witnesses — Contract. 
 
 According to the Civil Law, a testament requires 
 to be signed by seven witnesses ; and according to 
 custom, it must be signed by a notary and two 
 witnesses. 
 
 A testament void as such cannot hold good as a contract. — [Ed.] 
 Dominium of landed property only vests after proper registra- 
 tion and transfer. — [Ed.] 
 
 Having seen a certain document entered into 
 between Pieter Hubrechts and Maritge Hendricks, 
 his late wife's daughter,(a) on 1st June 1616, before 
 Cornelis Jansz Blewswijck and Pieter Hendricks, 
 Schepenen of Capelle, and Gijsbert, Hendricks' son, 
 and Cornelis Aertsz, members of the same Ambacht,(&) 
 and in the presence of Pieter Cornelis, late secretary 
 of Capelle, and witnessed by the said Pieter Hub- 
 rechts and Maritge Hendricks with their respective 
 marks, and by the signatures of the rest ; and having 
 
 (a) His step-daughter is evidently meant. 
 
 (5) There is no exact English equivalent for this word. For a full 
 explanation see Mr. Maasdorp's note to his excellent translation of Grotius, 
 Introduction, Gr. ii. 9, 10. 
 
 260 
 
No. 22.] OPINIONS OF GEOTIUS. 251 
 
 been asked whether the document is a valid testa- 
 ment according to law : — 
 
 I am of opinion, that the said document cannot 
 pass as a valid testament, since there are neither 
 seven witnesses to it, as required by law,(c) nor a 
 notary and two witnesses, as required by custom ; and 
 also that the person who officiated as secretary at 
 the time of the signature of the document was not 
 secretary. 
 
 With respect to the question whether the docu- 
 ment will be valid as a contract, I am of opinion 
 that such is not the case, since these words used 
 therein are more in accordance with the form of a 
 testament than of a contract. And although it may 
 be contended that the document is valid as a contract, 
 yet it is perfectly certain that, in as far as it re- 
 lates to the ground^which Pieter Hendricks (d) wishes 
 to pass to Maritge Hendricks, the dominium thereof 
 is still vested in Pieter Hendricks, and now belongs 
 to his blood-relations. For ground cannot be trans- 
 ferred to another, according to the Placaat of 1529 
 and the Placaat of the States, otherwise than before 
 the court, by payment of the fortieth penny ; and, 
 moreover, the deeds in the register must be signed 
 by the officer and two of the members of the court, 
 and properly stamped within sixteen days ; and it 
 must also appear that the fortieth penny has been 
 
 (o) By law (rechten) Grotius here means written (Civil) law, or, as the 
 head-note in the Consultatien has it, "beschreven Rechten." 
 
 (d) The name Pieter Hendricks occurs throughout the body of the 
 Opinion. This is evidently a mistake, and ought to read Pieter Hubrechts. 
 
252 OPINIONS OF GEOTIUS. [No. 22. 
 
 paid. It must be inferred that none of these things 
 have been done in the present instance. 
 
 In case the said instruments were held to be a 
 contract, the heirs of the said Pieter Hendricks 
 could seek relief from its terms, if the value of the 
 goods of Hendricks, over and above his liabilities, 
 amounted to more than twice the cost of keeping 
 him during his lifetime ; provided that, in that case, 
 the heirs will be bound to make reasonable compen- 
 sation to the said Maritge Hendricks for keeping the 
 above-mentioned Pieter Hendricks, (e) 
 
 Rotterdam, 
 
 16th June 1616. 
 
 (e) At a first glance, the concluding portion of the Opinion seems some- 
 what unintelligible. It would appear, however, that in the document P. H. 
 stipulates that M. H. shall have the erf or ground on his death, provided 
 that she supports him during his lifetime. When read in this light, the 
 remarks are clear and intelligible. 
 
OPINION No. 23. 
 
 HOLL. CONS. III. (b.) 39. 
 [GROTIUS II. 17, 28; II. 16, 3; II. 23, 2 & 5.] 
 
 Testaments — Documents to prove intention of the deceased 
 
 Force of incomplete testamentary writings — Bequests ad 
 pias causas — Are heirs bound in foro conscientice ? — What is 
 a "perfecta voluntas " ? 
 
 1. Nothing can be demanded under a writing 
 which was drawn up for the purpose of making a 
 will. 
 
 2. This must also be observed in bequests ad pias 
 causas. 
 
 3. By the Pontifical law two or three witnesses 
 were required to attest bequests for charitable pur- 
 poses (pice causce). 
 
 4. That which has been held to be contrary to 
 the spirit of the law is not to be followed. 
 
 5. The claims of the children have more in their 
 favour than bequests for charitable purposes. 
 
 6. Legacies left to churches and the poor, in 
 writing, under the hand of the deceased, without 
 witnesses, cannot be claimed. 
 
 7. Various opinions and restrictions of the jurists 
 concerning the question whether the bequests in an 
 informal testament will bind the heirs in conscience. 
 
 263 
 
254 OPINIONS OF GEOTIUS. [No. 
 
 8. An imperfect will is not upheld either with 
 regard to children or in favour of charitable institu- 
 tions. 
 
 9. An intention cannot be said to be perfect 
 unless the testator set out everything fully. 
 
 10. That which a judge has drawn up for the 
 purpose of giving a decision can in no wise be taken 
 for a judgment. 
 
 11. The opinion of Hugo Grotius on the case in 
 question. 
 
 I have seen an entry, without any heading, in the 
 handwriting of a certain Peter Overbeckius, made 
 in a memorandum-book, likewise without any title. 
 In this entry inter ccetera occur the following words : 
 — " Four theological students studying the Ausburg 
 Confession," without the addition of any other words 
 to amplify the meaning, and without signature. At 
 the same time I am informed that he gave no in- 
 structions to any of his relatives, either expressly or 
 inferentially, with regard to this writing. I have 
 been asked whether the heirs can be compelled by 
 action to maintain four theological students study- 
 ing the Augustinian Confession ; and if not, whether, 
 as good and Christian men, they are bound to do it. 
 
 (l) In the first place, I have replied that nothing 
 exists whereby they can be rendered liable. Nor 
 was this writing drawn up as a testament, but 
 merely to fix the subject-matter for the execution of 
 a testament at some future time; under which no- 
 
23.] OPINIONS OF GEOTIUS. 255 
 
 thing can be claimed, and not even under a writing 
 prepared for the execution of a testament, if the 
 testament is not completed, as advised by the jurists , 
 Paulus, D. 28, f, 29, and Ulpian, D. 32, 1, 11. 
 
 (2) And it was generally accepted that this should 
 also be observed in respect of bequests ad pias 
 causas.(a) And even if the testator had greatly de- 
 sired to execute a testament (the contrary is, how- 
 ever, perfectly apparent), yet no right to claim under 
 the writing would arise, since the formalities required 
 by law in the execution of testaments are wanting ; 
 for, in the present case, neither the formality of the 
 Civil Law nor of the law of Hamburg was observed, 
 (3) nor yet that of the Pontifical law as regards 
 bequests ob causam piam (namely, two or three 
 witnesses). (6) Further, a written document in the 
 handwriting of the deceased without witnesses may 
 be sufficient, although even in the case of a paternal 
 testamentary disposition among children there are 
 certain formalities, such as the insertion of the date, 
 which do not occur in the present case ; yet it was 
 held that this ought not to be extended to bequests 
 ad pias causas; both because that ought not to be 
 followed which is contrary to law,(c) (4) and also 
 because the claims of the children deserve greater 
 consideration than legacies for charitable purposes. 
 
 (5) To this may be added that such bequests are 
 
 (a) Supported by Oldradus, Cons. cxix. Thomas Grammaticus, re judi- 
 cata lxii. Nicholaus Everhardus, consilio civ. Petrus Peckius, lib. i. de 
 testam. conjugum, cap. xviii. Julius Clarus, testamentarja, qusest. vii. L 
 
 {b) As stated in C. 6, 23. Bpistolis Decretalibus, C. J%'. 23. , ^ ^,> 
 
 \e) D. 1, 3, 14. / » 
 
256 OPINIONS OF GROTIUS. [No. 
 
 allowed a special and privileged form according to, 
 Pontifical law, and if this is not observed, the claim is 
 void. (6) For these reasons Nicholaus Everhardus 
 in the passage quoted, and Clarus in quoest. mi. 
 above referred to, clearly maintain that that which 
 has been left to churches or to the poor in an un- 
 attested document in the handwriting of the deceased 
 cannot be claimed, and they state that this has been 
 followed in two courts of justice. 
 
 (7) With reference to the other question con- 
 cerning the duty of a good man (vir bonus), it is 
 not necessary for us to enter into a general discussion 
 whether bequests in a testament, defective in solem- 
 nities of execution, bind an heir in conscience, 
 concerning which there are various opinions of 
 theologians and jurists ; (d) for they all agree that 
 the heir is not bound in conscience unless he is 
 quite certain as to the intention of the deceased, (e) 
 
 (8) But an imperfect intention cannot be upheld 
 even in favour of a pia causa.(f) The general 
 opinion is that when the testator dies without having 
 expressed his intention clearly, such a will is said to 
 be deficient, not as regards the formalities, but as 
 regards the intention, and it is therefore of no effect, 
 not even in favour of a pia causa. Aretinus (g) and 
 
 (d) Vasquius, de succession um creatione, § 1, num. 23, et sequentibus ; et 
 de successionum progressa, § 50, num. 30 — negante Didaco Covarruvia in 
 C. cum esset de testam.; mediam sententiam sequente Dominico a Soto de 
 justitia et jure, lib. 4, qusest. 4, art. 3. 
 
 (e) This restriction is added by Lud. Zuntus, responso pro uxore, num. 
 42 ; Mantica, de conjecturis, ult. vol. lib. 11, tit. 14, num. 13 in fine, et 
 num. 27 in fine. 
 
 (/) Peckius dicto loco, et Clarus dicta quaestione 7. 
 
 (jr) Aretinus in d. 1. Is qui, col. fin. versic. secundo casu, et vide (A). 
 
23.] OPINIONS OF GROTIUS. 257 
 
 Boerius(^) testify that this is the general opinion. 
 All these authorities come to the conclusion that the 
 general opinion is that such a testament is of no effect, 
 both with regard to children and also in respect of 
 charitable matters (pice causes) ; for, as experience 
 daily teaches us, we see that testators, even whilst 
 engaged in executing a testament, alter, add, and 
 revoke many dispositions just made. 
 
 (9) With good reason, therefore, the intention 
 must be considered imperfect unless the testator has 
 expressed everything clearly. Given that a testator 
 had begun to execute his testament, and that he had 
 bequeathed something therein ad pias causas, but 
 before the testament was completed he died. Under 
 these circumstances such a writing ought much 
 rather to prevail than where there was no intention 
 to make a testament, but where merely an entry had 
 been made, which did not even contain a fully 
 expressed thought and was undated. So that the 
 rescript of Trajan with reference to the oral wills of 
 soldiers might be aptly applied here, viz., that to 
 none is it of greater interest than those to whom this 
 privilege has been granted that a precedent of this 
 kind should not be allowed. 
 
 (10) In the same manner, that which a judge 
 has drawn up to formulate his decision can in no 
 wise be taken as a decision, as Everhardus and 
 Peckius state {dido loco). 
 
 I certify that I have seen in the memorandum- 
 
 (h) Boerius in deois. 93, post num. 10, et decis. 240, num. 5. 
 
 R 
 
258 OPINIONS OF GROTIUS. [No. 
 
 book of the late Petrus Overbeckius a certain 
 writing where occur the words " Four theological 
 students studying the Augsburg Confession." Since 
 the whole writing is incomplete, I have been asked 
 whether the heirs are bound to support four theo- 
 logical students studying the Augustinian Confession, 
 (ll) I reply that the jurists may discuss whether 
 such a writing, which is neither a testament nor 
 supplies the place of one, but is merely so much 
 raw material for the execution of a will at some 
 future time, devoid of all formalities, should be held 
 valid in a court of law. Since, however, it appears 
 that the deceased wished out of piety to give some 
 of his property for the encouragement of study, yet 
 he had bequeathed nothing definite, neither did he 
 fix the number of years or the amount of the costs 
 (which he carefully attended to in the rest of the 
 pious bequests) ; moreover, he never spoke a word to 
 any of his relatives during his lifetime concerning 
 this matter, and this writing was only found by his 
 heirs after his death, and it seems that he wrote it 
 many years before his death, nor had he altered or 
 amended it subsequently, but had left it incomplete, 
 I think (saving the opinion of others), that the 
 heirs would act dutifully and conscientiously if, in 
 this undefined matter, where nothing can be claimed 
 from them according to law, they give liberally of 
 their own accord out of free will, which alone is 
 pleasing unto God, as much as duty and conscience 
 may urge them. The case would have been quite 
 different if they were sure of what the deceased 
 
23.] OPINIONS OF GROTIUS. 25& 
 
 had bequeathed, or if he had clearly expressed his 
 intention in writing, or if, without any testament, he 
 had given instructions especially to his children, so 
 that the heirs could be certain as regards the will of 
 the deceased (I have given Mr. Matthias Overbeckius 
 my views with regard thereto). For in the same 
 manner that the heirs would then be bound to 
 satisfy their conscience, I know for certain that they 
 will give satisfaction willingly and liberally from 
 their sense of duty, well known to me. 
 
OPINION No. 24. 
 
 HOLL. CONS. III. B. 188. 
 [GROTIUS II. 18, 4; SCHORER ad GROT. II. 17.] 
 
 Fidei-commissum — Interpretation — Placaat of 1540 — Institution 
 of heirs — Jus accrescendi — Fraud — Husband not heir ah 
 intestato. 
 
 1. All fidei-commissary substitutions are strictly, 
 and not extensively interpreted, especially those in 
 favour of the collaterals of the testator or testatrix. 
 
 2. The Placaat of 1540 refers only to guardians 
 and their children, but not to their wives. 
 
 3. When husband and wife are instituted heirs 
 together, each is taken to have been instituted to 
 one-half. 
 
 4. Quoties scriptus heres efficitur incapax, ex toto 
 vel ex parte, tunc pars vacans cohered! scripto 
 defertur. 
 
 5. All suspicion of fraud vanishes when special 
 mention is made in the testament of relationship, 
 affection, and kindnesses received. 
 
 6. A fraud against the law is committed when a 
 person inherits a thing through the intervention of 
 another which he is not otherwise allowed to acquire. 
 This is not the case as regards husband and wife. 
 
 7. According to the law of Holland, the husband 
 
 280 
 
No. 24.] OPINIONS OF GEOTIUS. 261 
 
 is not his wife's heir, and in case the marriage is 
 dissolved, each generally retain their own property. 
 
 I have seen a certain testament of Marijtje Cor- 
 nells, widow of Jan Suis, bearing date the 11th 
 September 1585, together with the testament of 
 Romer Klaas, dated the 18th of June 1612, con- 
 firmed by a notarial deed of the 14th March 1616, 
 and have read the opinions of Messrs. Reynier van 
 Amsterdam, Erick Dimmer, Adriaan van der Does, 
 Jacob van der Does, and Jacob van Rosendaal. 
 
 (1) In reply to the questions asked, I am of opinion 
 that the fidei-commissary substitution contended to 
 have been made under the will of Marijtje Cornelis 
 does not exist, for the same reasons as set forth in 
 the afore-mentioned opinions, viz., that Romer Klaas 
 was found not to have been burdened with the fidei- 
 commissum in case he succeeded Marijtje Cornelis, 
 and it is a well-known legal principle that all burdens 
 of fidei-commissum must be strictly, and not exten- 
 sively interpreted, especially if made in favour of the 
 collaterals of the testator or testatrix. It must fur- 
 ther be noted that even if the said fidei-commissum 
 could have been extended to the person of Romer 
 Klaas, it would nevertheless have terminated at his 
 death, since he died without any children, and the 
 said fidei-commissum, with the prohibition of aliena- 
 tion, refers only to the children of the fiduciary 
 heirs and no further, as clearly indicated by the 
 word "respectively." 
 
 (2) With reference to the article of the Placaat of 
 
262 OPINIONS OF GROTIUS. [No. 
 
 1540 quoted against the will of Romer, I am of 
 opinion that the institution of Lijntge Frans, his 
 wife, is legal and valid notwithstanding the article, 
 since the Placaat is antagonistic to guardians and 
 their children, but not to their wives, especially 
 when they are related to the testator. (3) Further, 
 since the said Lijntge was instituted together with 
 her husband, I am of opinion that each should be 
 entitled to one-half,(a) and she must, therefore, 
 succeed to one-half of the inheritance of the said 
 Romer. The remaining half, as far as it consists of 
 movable property, such as money, furniture, debts, 
 and quit-rents, which are not a burden on the im- 
 movable property, must go to Hendrik Herberts, 
 and after his death to his children, since the 
 Placaat lays down no rule concerning such pro- 
 perty. The only question that remains then is 
 with regard to the half of the immovable property, 
 or the interests secured by the hypothecation of the 
 immovable property of Romer Klaas. This would 
 in any case go to the said Lijntge as instituted heir, 
 and not to the heirs ab intestato, if the Placaat is 
 still to be considered of force. (4) Quoties enim 
 scriptus heres efficitur incapax ex toto, vel ex parte 
 tunc pars vacans coheredi scripto defertur.(6) It 
 cannot be contended with any good reason that the 
 afore-mentioned institution of Lijntge was made in 
 fraudem legis, for if the testator had wished to act 
 fraudulently, he would not have instituted Hendrik 
 
 (a) D. 28, 5, 9, 9. 
 
 (J) D.D. ad 0. 6, 24, 1 ; et D. 29, 2, 25, 3. 
 
24.] OPINIONS OF GEOTIUS. 263 
 
 Herberts together with the said Lijntge. (5) It 
 must further be observed that the mention of rela- 
 tionship, affection, and kindnesses received in the 
 testament removes absolutely all suspicion of fraud. 
 (6) Moreover, a fraud against the law is committed 
 when a person inherits a thing through the inter- 
 vention of another which he is not otherwise allowed 
 to acquire. This cannot occur between husband and 
 wife, since, according to the law of Holland, the 
 husband is not his wife's heir, and in case the mar- 
 riage is dissolved, each generally retains his own 
 property. 
 
 Rotterdam. 
 
OPINION No. 25. 
 
 HOLL. CONS. III. B. 162. 
 [GROTIUS 2, 18, 8.] 
 
 Legitimate portion in addition to Trebellianic portion, et vice 
 versa — Enjoyment of fruits does not annul right to claim 
 the Trebellianic portion — Stipulations as to distribution of 
 the estate. 
 
 1. A son burdened with a fidei-commissum is 
 entitled to a free and unencumbered Trebellianic 
 portion, in addition to his legitimate portion, not- 
 withstanding the fact that the fruits of the inheri- 
 tance were left to him in lieu of his Trebellianic 
 portion. 
 
 2. A deed of division of the property made by the 
 testator during his lifetime, to govern the distribu- 
 tion by his heirs, must be strictly complied with. 
 
 Having seen a certain will of Aaltge Goris, dated 
 3rd July last, with a deed of division made by the 
 said Aaltge Goris and others on the same day : 
 
 (1) I am of opinion, in response to the questions 
 submitted to me in connection therewith, that 
 although Pieter Adriaans, son of the testatrix, was 
 bound by the said will to restore the property which 
 he would inherit from her to his children without 
 
 264 
 
No. 25.] OPINIONS OF GEOTIUS. 265 
 
 subtraction of any Trebellianic portion, receiving 
 in lieu thereof the fruits of the property, he had, 
 nevertheless, a right to enjoy his Trebellianic portion 
 free and unencumbered, without taking the fruits 
 into account. It is a rule of law generally accepted 
 by the courts, that a son burdened with a fidei- 
 commissum is entitled to a free and unencumbered 
 legitimate in addition to his Trebellianic portion, 
 amounting together to one-half of the inheritance. 
 The wife of the said Pieter Adriaans is entitled to 
 half of the property which belonged to her husband 
 during his lifetime, according to our customary law. 
 After his death the widow is therefore entitled to 
 the ownership of one-fourth of the property coming 
 from the afore-mentioned Aaltge Goris, in addition 
 to half the fruits. 
 
 (2) I am further of opinion that the deed of 
 division above referred to, made by Aaltge Goris 
 during her lifetime, according to which she wished 
 her heirs to distribute the inheritance, must be 
 strictly followed ; and it is hot necessary that the 
 names of the selected guardians or the exclusion of 
 the Schout and court should be expressed therein. 
 
OPINION No. 26. 
 
 HOLL. CONS. III. B. 164. 
 [GROTIUS II. 18, 11.] 
 
 Compensation under testament — A matter left to any one to 
 decide must be done arbitrio boni viri — "When collation takes 
 place — When benefits must be collated — No presumption as 
 to gifts. 
 
 1. When in reality no disposition has taken place 
 with regard to feudal property, but it was stipulated 
 that it should be left to the eldest daughter, on 
 condition that the younger should be compensated 
 with certain allodial property, and, in case they 
 cannot agree, the testator stated that the younger 
 should fix the compensation, leaving the election to 
 the eldest, if then the eldest choose the monetary 
 compensation in place of the feuds, the feud under 
 these circumstances will not devolve upon the 
 younger daughter without consent of the lord of 
 the fief. 
 
 2. Utile per inutile non vitiatur. 
 
 3. When the eldest must compensate the youngest 
 for the value of the feuds, such compensation must 
 be estimated arbitrio boni viri. 
 
 4. Whatever benefits have been enjoyed by 
 children during the lifetime of their parents must 
 
No. 26.] OPINIONS OF GROTIUS. 267 
 
 be brought into collation, unless they can prove that 
 their parents did not wish them to be collated. 
 
 5. A simple donation was not presumed in ques- 
 tions of collation. 
 
 I have seen a certain will by Arend van der 
 Velde and Geertjen Ariens, his wife,(a) dated 16th 
 September 1587. In it appears the following passage : 
 "The testators, Arend van de Velde and Geertjen 
 Ariens, his wife, wish that their feudal and allodial 
 disposable property left by them on their death shall 
 devolve upon their two instituted heirs ; they there- 
 fore desire that their youngest daughter shall not 
 inherit the feuds, but that she shall receive in 
 compensation from the allodial and disposable pro- 
 perty of the testators an amount equal in value 
 to the said feuds devolving upon her sister ; and 
 if the children cannot agree as to the price, they 
 wish and ordain that the youngest shall fix the 
 value and leave the election to the eldest." Having 
 been asked whether the above stipulation is of legal 
 force and effect, since certain feudal property belong- 
 ing to the testatrix was situated in a place where 
 free disposition was not allowed except by consent 
 of the lord or lady of the feud, and such consent 
 had not been obtained : 
 
 (1) I am of opinion that it is ; for by the above 
 stipulation the feudal property was not really 
 
 (a) In the original appears the word " eonthoralen." This is evidently 
 a somewhat pedantic expression signifying "husband and wife," and 
 literally sharers of the marriage or bridal bed (con and ihorus). (Ovid, 
 Metam. 6, 431.) Cf. " a mensa et thoro."— [Te.] 
 
268 OPINIONS OF GEOTIUS. [No. 
 
 disposed of, but, on the contrary, was left to the 
 eldest daughter according to custom, and the testatrix 
 merely stipulated that the youngest daughter should 
 be compensated from the allodial property, which 
 she undoubtedly had a right to do. This stipulation 
 is not vitiated, because if, by the contingent election 
 left to the eldest daughter, she should choose the 
 money, the feud would devolve upon the youngest, 
 which could not happen without consent of the 
 feudal lord, for quod utile per inutile non vitiatur 
 is a well-known legal maxim. (2) The above 
 stipulation, therefore, remains of full force, and the 
 eldest will have to compensate the youngest to the 
 value of the feudal property, (3) such compensation 
 to be fixed arbitrio boni viri. 
 
 A further question has been asked to the following 
 effect : — In the said will it is stipulated that the two 
 daughters of the testators shall have and retain what 
 they received from the testators upon their marriage, 
 and will not be compelled to collate the same upon 
 the division of the estate, and by a subsequent codicil, 
 dated the 17th August 1588, the said will is approved, 
 with the exception of the addition that " we ordained 
 and desired, and do hereby ordain and desire, that, 
 as regards a certain sum of 1200 carolus guldens 
 which Aaltgen van de Velde, our youngest daughter, 
 received as a dotal or marriage gift more than our 
 eldest daughter, Meynsje van de Velde, the said 
 Meynsje van de Velde, our said eldest daughter, 
 or her children representing her after her decease, 
 shall receive and retain, prior to a division, a like 
 
26.] OPINIONS OF GEOTIUS. 269 
 
 sum of 1200 gulden, but without any interest." It 
 is stated that the said Meynsje had received certain 
 marked benefits from her parents, especially in that 
 the expenses of her confinement and of the educa- 
 tion of her child were paid by them, as appears from 
 a memorandum in the handwriting of the testators. 
 It is now asked whether Meynsje is bound to col- 
 late the value of what she received from her parents 
 under these circumstances. 
 
 (4) I am of opinion, assuming that the said 
 benefits enjoyed by Menysje from her parents are 
 not included in the ante-nuptial contract, that they 
 were not given to her as a marriage gift, and that no 
 clear indications exist to show that her parents in- 
 tended them as a donation, she is bound to bring 
 the value of these benefits into collation, since she 
 is not freed from the liability by the will, and, 
 according to accepted law, children must bring into 
 hotch-potch what they have received from their 
 parents, (5) unless it appeared de simplici donatione, 
 quae in materia collationurn non prcesumitur.(b) 
 
 (J) In 1. si donationem, C. 8, 54. 
 
OPINION No. 27. 
 
 HOLL. CONS. III. B. 194. 
 [GROTIUS II. 19, 1.] 
 
 Interpretation of testaments — Fidei-commissary and ordinary 
 substitution — Meaning of the words "with full right." 
 
 1. Verba testamenti ex prsecedentibus et sequenti- 
 bus declarantur, et specialiter quando prsecedentia 
 sunt generalia et sequentia determinata, tunc sequen- 
 tia determinant prsecedentia. 
 
 2. Ex verbis prsecedentibus dispositio immediate 
 subsequens debet intelligi. 
 
 3. Si testamentum valet, et films adeat heredi- 
 tatem, evanescit vulgaris substitutio nee vertitur in 
 fidei commissarium, et quare. 
 
 4. The words "with full right," pleno jure, de- 
 notant plenam dominii translationem sine onere. 
 
 5. Jura adeo abhorrent ab hac presumptione, ut 
 uxor plus honorata aut dilecta intelligatur quam 
 filius, ut verba testamenti potius interpretentur 
 valde improprie. 
 
 6. AfFectio erga personam, maximam suppeditat 
 conjecturam ad interpretandam ultimam voluntatem, 
 adeo ut etiam ob earn causam verba improprie 
 accipiantur. 
 
 7. In dubio non presumitur subesse fidei com- 
 
 270 
 
No. 27.] OPINIONS OF GROTIUS. 271 
 
 missum, prsesertim in filio, cui onus in dubio non 
 censetur impositum, etiam ultra Legitimam. 
 
 I have seen an extract from a certain will made 
 in 1603 by Willem Cornelis, late dyke-reeve of 
 Oostwatering, and Maria Anteunis, his wife, and 
 a copy of a will made by Maria Anteunis on the 
 6th of January 1611. Antony Blonken, son of the 
 afore-mentioned testator, survived Maria Anteunis, 
 and at his death left no children. He had insti- 
 tuted his wife as his universal heir. I have been 
 asked whether the property coming from the afore- 
 mentioned Willem Cornelis must be considered to 
 be subject to a jidei-commissum, either in whole or 
 in part, in favour of the children of Lucas Willems, 
 who was mentioned in the said will of 1603, or in 
 favour of anybody else. 
 
 (l) I am of opinion that the property is not 
 subject to Jidei-commissum according to law, although 
 at first sight this may appear to be the case under 
 the circumstances that have occurred, for the words 
 " so to use that in case of the death of the afore- 
 mentioned Mr. Antony Blonken, their son, without 
 leaving a legitimate child or children procreated by 
 him," followed by the provisions for a substitution, 
 seem to be applicable to these circumstances. My 
 reason for holding this opinion is that the provision 
 for substitution clearly shows that the intention was 
 thus to dispose of the property in case the said 
 Blonken died without children before the decease 
 of his surviving parent. This can be gathered from 
 
272 OPINIONS OF GEOTIUS. [No. 
 
 the words of the said disposition, where it is pro- 
 vided that, in the event understood to have been 
 contemplated by the testators, the children of Lucas 
 Willems, after the death of the survivor, should in- 
 herit certain articles from them, and thereafter (that 
 is, after these articles had been deducted from the 
 joint estate) they should share the property with the 
 heirs of Maria Anteunis according to the customs of 
 Holland. The words " after the death of the sur- 
 vivor" (ter lester dood) clearly show that the con- 
 dition afore-mentioned must be taken to refer to the 
 death of Antony Blonken before the decease of the 
 survivor, verba enim testamenti ex pracedentibus et 
 sequentibus declarantur.(a) Et specialiter quando 
 prsecedentia sunt generalia et sequentia deter- 
 minata tunc sequentia determinant prsecedentia. (b) 
 It must, moreover, be noted that reference is made to 
 the death of the survivor in the clause immediately 
 preceding this provision in these words, " and the 
 said Mr. Antony Blonken, our son, shall be bound 
 not to interfere in the estate, nor in any way to cede 
 any inheritance or right of succession after the pre- 
 decease of one of the appearers, since they wished, 
 ordained, and stipulated this provision by this their 
 last will, and postponed such action till the death of 
 the survivor." (2) Ex quibus verbis pracedentibus 
 dispositio immediate subsequens debet intelligi.(c) 
 
 (a) Anch. Cons. 152, No. 243. 
 
 (i) Bald, in D. 31, 1, 32, 1, et 1. si cum fundum, D. 50, 16. Jas. in 1. si servus 
 plurium, § ult. D. 30, 1. Mantica de conject. ult. vol. lib. 6, tit. 13, No. 4. 
 
 (c) D. 35, 1, 89 ; et dem. Alex. Cons. 47, No. 18. Mantica dicto loco, 
 No. 3. 
 
27.]' OPINIONS OF GROTIITS. 273 
 
 The same intention can also be gathered from the 
 words previously used stating that the afore-men- 
 tioned Mr. Antony Blonken was nominated and in- 
 stituted by the testators as "the only heir of all the 
 property which shall be left on the death of the 
 survivor, nominating and appointing him as uni- 
 versal heir to everything, with full right of institu- 
 tion." The only condition imposed was that the 
 children of Lucas Willems should receive a certain 
 amount of 200 pounds groats, and certain wheat 
 crops as per deed of division in full satisfaction, as 
 clearly shown by the preceding words, ex natura 
 relationis, to which reference is made. Now, a 
 testator is not presumed to make contradictory 
 stipulations, and it cannot, therefore, be contended 
 that in one and the same case the children of Lucas 
 Willems should be satisfied with certain specified 
 portions and should also be substituted as heirs to 
 the whole of the property. The latter must there- 
 fore be taken to apply in case the afore-mentioned 
 Antony Blonken died before the survivor and had 
 never possessed the property, the former if he had 
 inherited and adiated the same. Non dissimile est 
 quod ait Mantica.(c^) Fatendum est si testamentum 
 valeat et filius adeat hereditatem, vulgarem substi- 
 tutionem evanescere,(e) (3) et nemo sapiens dixerit, 
 earn verti in fidei-commissariam, quoniam defecit 
 conditio et voluntas testatoris manifeste refragatur. 
 This is specially the case in the present instance on 
 
 (d) Mantioa, lib. 5, tit. 3, No. 13. 
 
 (e) C. 6, 26, 5. 
 
274 OPINIONS OF GROTTO'S. [No. 
 
 account of the words " with full right," quae verba 
 " pleno jure " denotant plenam dominii translationem 
 sine onere.(/) (4) The testators left the survivor 
 during his or her lifetime the power to use, alienate, 
 and transfer the property, notwithstanding that they 
 had a son born in wedlock. It is therefore incredible 
 that the same testators would leave property to the 
 survivor with a fuller and more extensive right during 
 the lifetime of their son than to the son after the 
 decease of both. Nam jura adeo abhorrent hac pre- 
 sumptione, (5) ut uxor plus honorata aut dilecta in- 
 telligatur quam filius, ut verba testamenti potius 
 interpretentur valde improprie,(#) ex qua lege et 
 aliis rationibus hoc etiam late deducit Mantica.(A) 
 Another cogent reason calls for consideration. It is 
 apparent from the whole tenor of the testament 
 that the afore-mentioned Willem Cornells wished to 
 benefit his son, Antony Blonken, more than the 
 children of Lucas Willems, both by reason of his 
 mother's affection for him, and on account of his 
 good conduct. He therefore instituted Blonken as 
 universal heir, and the said children only in rebus 
 certis. It cannot, therefore, be accepted that he 
 wished to impose a greater burden on the said 
 Blonken after he had obtained the inheritance than 
 on the children of Lucas Willems, who were insti- 
 tuted to their portions sine onere fidei-commissi. 
 (6) Affectio autem erga personam, maximam sub- 
 
 (/) Old. Cons. 248, No. 2 ; Alb. in 1. raptores, No. 3, C. de Episc. et Cler., 
 et Castr. in Cons. 28, No. 4. Bom. Cons. 75, No. 2, et 230, No. 3. 
 (g) C. 6, 42, 30. 
 (A) Mantica, lib. 6, tit. 11, No. 11, et sequentibus. 
 
27.] OPINIONS OF GROTIUS. 275 
 
 peditat conjecturam ad interpretandam ultimam 
 voluntatem, adeo ut etiam earn ob causam verba 
 improprie accipiantur.(i) 
 
 (7) It must also be observed that if the disposition 
 in question were taken to apply in case Antony 
 Blonken had adiated the inheritance after the death 
 of his parents, it follows that his mother, who had 
 no other children than the said Blonken, had willed 
 that her son should not inherit her property in full 
 ownership, but subject to restitution. This, how- 
 ever, cannot possibly be presumed. In dubio enim 
 non presumitur subesse fidei-commissum,(&) prse- 
 sertim in filio, cui onus in dubio non censetur 
 impossitum, etiam ultra legitimam.(Z) 
 
 Paris, 
 
 February 18, 1624. 
 
 (i) Soc. sen. in D. 34, 5, 21. 
 
 (4) D. 36, 1, 78, 2, et ibi Dd. 
 
 (I) Ita expresse Mantica, lib. 11, tit. 23, No. 17. 
 
OPINION No. 28. 
 
 HOLL. CONS. III. B. 193. 
 [GROTTOS, II. 19, 9, & II. 22, 43.] 
 
 Substitution — Direct and fidei-commissary — Deduction of the 
 legitimate portion — Mother entitled to succeed to the estate 
 of her child ab intestato according to customs of Amsterdam 
 — Legitimate portion of the parents — Trebellianic and legiti- 
 mate not both deducted by ascendants — Heirs are ordinarily 
 burdened with all legacies. 
 
 1. Substitdtio, quae fit verbis communibus, trahi 
 potest tarn ad directam, quam ad fidei-commissariam 
 substitutionem. 
 
 2. When the deduction of the legitimate portion 
 is expressly prohibited, these general words are so 
 interpreted ut contineant directam, substitutionem 
 intra annos pupillares. 
 
 3. In the case submitted, should the child die 
 intra annos pupillares, no deduction of the legiti- 
 mate can be made in respect of such child. 
 
 4. According to the customs of Amsterdam a 
 mother succeeds to the estate of her children ab 
 intestato even after a separation a thoro, and the 
 mother cannot be validly excluded by a pupillary 
 substitution in such case, but a testament containing 
 a codicillary clause would render the substitution 
 legal. 
 
 276 
 
No. 28.] OPINIONS OF GKOTIUS. 277 
 
 5. The legitimate portion of the parents is one- 
 third, and their legitimate is increased with the 
 legitimate of the children. 
 
 6. Trebellianica censetur inesse legitimse. This 
 was different in the case of descendants, but it was 
 not extended to ascendants. 
 
 7. In dubio the heirs, and not the legatees, were 
 taken to be burdened with all legacies. 
 
 I have seen a certain testament made by Hendrik 
 Roeloff, merchant of Amsterdam, and his wife, on 
 the 6th of January 1613, together with a certain 
 codicil made by the said Hendrik Roeloff on the 
 31st of August of the same year. 
 
 I have been asked, first, whether the prohibition of 
 the deduction of the legitimate portion contained 
 in the said testament in favour of the nearest rela- 
 tions of the testator, in case his children died during 
 the lifetime of their mother, was valid or not ; and 
 secondly, whether the children are to furnish the 
 clothes, linen, woollen garments, and diamond ring 
 left to Elias as a legacy by the said codicil, or 
 whether the widow of the testator, to whom all his 
 property had been left, except a few specified articles 
 to which the children were found to have been 
 instituted heirs, is liable for the payment of such 
 legacy. 
 
 (1) With reference to the first point, I am of 
 opinion that the question arises : an substitutio facta 
 per verbum commune, fit fidei-commissaria semper, an 
 vero intra pupillarem setatem sit directa, postea vero 
 
278 OPINIONS OF GROTIUS. [No. 
 
 fidei-commissaria (which, is a disputed point among 
 jurisconsults), since the substitution in the said 
 testament was made verbis communibus, quae trahi 
 possunt tarn ad directam quam ad fidei-commis- 
 sariam substitutionem, to wit, in the following 
 words : — "All the property shall go to and devolve." 
 (2) Since the testator has, however, expressly pro- 
 hibited the deduction of the legitimate portion, the 
 words must be so interpreted, ut contineant directam 
 substitutionem intra annos pupillares.(a) Sed Bar- 
 tolus ait debemus advertere an ex presumpta volun- 
 tate defuncti apparere quid senserit. Tunc enim 
 stamus voluntati suae, etiam contra matrem. Quid 
 enim si testator dixit, volo quod ad talem veniant 
 omnia sine ulla diminutione, vel totam et integram 
 hereditatem, vel similia verba : tunc enim hoc non 
 potest esse, nisi per substitutionem directam : ergo 
 de directa intellexit. (3) It follows therefore, that 
 if the child of the testator dies intra annos pujjillares, 
 no deduction of the legitimate can be claimed on 
 behalf of such child, since he has already enjoyed 
 an inheritance from his father in excess of the said 
 legitimate, and the substitution cannot be con- 
 sidered pro gravamine elato a patre sed quasi ipse 
 Alius heredem sibi instituisset.(6) (4) But since 
 it was stated that according to the customs of 
 Amsterdam a mother, even after separation a thoro, 
 is entitled to succeed ab intestato to the estate of 
 her child, her exclusion by means of the said 
 
 (a) Bartolus ad C. 6, 26, 8. 
 (6) Instit. 2, 16, 2. 
 
28.] OPINIONS OF GROTTOS. 279 
 
 pupillary substitution is void according to law.(c) 
 If the testament contains a codicillary clause, the 
 substitution will be rendered legal, juxta communem 
 opiniom traditam a Julio Claro,(e£) (5) and the 
 mother can then deduct her legitimate portion, 
 which is a third of what she would have received 
 ab intestato ; for, according to the general opinion 
 of the civilians, the legitimate of the parents is in- 
 creased with the legitimate of the children. The 
 remainder of the child's estate would go to his 
 father's relatives, (6) and the mother cannot deduct 
 the Trebellianic portion over and above the legiti- 
 mate, for, according to law, Trebellianica censetur 
 inesse legitimae. A different rule was observed with 
 regard to descendants, but this was not extended to 
 ascendants, — an abrogation of the old law.(e) 
 
 (7) With reference to the second point, I am of 
 opinion, in conformity with the legal principle that 
 in dubio the heirs and not the legatees must be 
 taken to be burdened with all legacies, that the 
 afore-mentioned legacies left by codicil must be 
 settled by the child or children of the testator ; for 
 the wife, now widow, of the testator is mentioned 
 in the afore -mentioned testament merely as a 
 legatee. 
 
 KOTTERDAM. 
 
 (c) Per Anth. lit cum de app. cogn. C. justum, § si tales. 
 (<£) Julius Clarus, § testameutum, quaest. 46. 
 (c) Ut late probat Jason, in C. 3, 36, 24, No. 9. 
 
OPINION No. 29. 
 
 HOLL. CONS. III. B. 309. 
 [GROTITJS II. 20, 1, 2; II. 42, 2.] 
 
 Condition in testament — Interpretation- — Feudal property — 
 Fidei-commissum^- Feudal grant — Restitution — Security — 
 Valuation. 
 
 1. How an inference can be drawn that a testator 
 has placed a certain condition in his testament merely 
 for the conservation of the legitimate succession and 
 not to impose & fidei-commissum, such condition not 
 appearing from the testament. 
 
 2. Feudal property cannot be included under fidei- 
 commissum. 
 
 3. Although a testamentary disposition of feudal 
 property can be made after permission previously 
 obtained, such, according to feudal law, was under- 
 stood to refer to a simple disposition, and not to a 
 fidei-commissary substitution. 
 
 4. No grant can be extended to include a sub- 
 stitution, unless such were specially mentioned 
 therein. 
 
 5. When property is valued, the valuation must 
 be the amount that would be realised at a sale. 
 
 6. Fidei-commissary heirs must. give security for 
 restitution, according to D. 26, 3. 
 
No. 29.] OPINIONS OF GEOTIUS. 281 
 
 I have seen a certain testament made by Jasper 
 Gerrits van Soelen on the 15th of December 1590, 
 and also two feudal grants of a piece of land situated 
 in the Ambacht of Kralingen, held as a feud from 
 the lord of the House of Honingen, the first dated 
 10th of August 1541, and the other December 1598. 
 I have also seen a certain ante-nuptial contract made 
 between Gysbert Jasper van Soelen and Maartge 
 Adriaans Kools, and have considered the questions 
 submitted. 
 
 (l) I am of opinion that Gysbert van Soelen is not 
 liable for any restitution in respect of the pro- 
 perty which he inherited from his father, either 
 directly or through the death of his brother, Gerrit 
 van Soelen, unless the said Gysbert and his two 
 sisters died childless. In such a case the said 
 property must go to the nearest relatives of Jasper 
 van Soelen afore-mentioned, provided that the heirs 
 of the said Gysbert van Soelen be allowed to retain 
 one-third of the said property as the legitimate 
 portion of Gysbert, and moreover one-fourth of the 
 remainder as a Trebellianic portion. The property 
 can therefore be alienated subject to such burden 
 and condition. The said property can, however, be 
 considered to be subject to restitution should Gysbert 
 van Soelen die childless, and his sisters were to die 
 leaving children, for the testament in the clause 
 relating to the fidei-commissum clearly refers to 
 such a case where all the children of the said Jasper 
 van Soelen die childless. . It cannot be contended 
 that the children of Gysbert and his sisters had been 
 
282 OPINIONS OF GROTIUS. [No. 
 
 tacitly substituted, tanquam in conditione positi, for 
 the majority, as well as the best of the jurists hold 
 talem conditionem positam ad conservandam legit- 
 mam successionem, non ad introducendum fidei- 
 commissum, si conditio non extiterit.(a) Moreover 
 such conjectura voluntatis tale taciturn fidei-com- 
 missum est, for if the testator had wished to 
 substitute his grandchildren by fidei-commissum, he 
 should have stated in the condition " if any of my 
 children died childless " and not " if all my children," 
 which words, I am instructed, he used. 
 
 (2) Under any circumstances the feuds are not 
 included in the said fidei-commissum, since it must 
 be presumed that the said (3) Jasper van Soelen 
 was not provided with the proper dispensation. And 
 as regards the piece of land in particular which was 
 held as a feud from the House of Honingen, al- 
 though the first substitution states that the possessor 
 of the said feud can make a testamentary disposition 
 thereof, yet such, according to feudal law, is under- 
 stood to refer to simple disposition by institution 
 or legacy, and not to fidei-commissary substitution, 
 (4) for no general dispensations and licenses were 
 extended to include substitution, unless such were 
 specially mentioned therein. To this must be added 
 that from the nature of the said feud every possessor 
 had the right to dispose thereof, and this right would 
 be taken away by the fidei-commissum. 
 
 (5) In case the said Gysbert van Soelen pre- 
 
 (a) Quae est sententia Gl. in D. 28, 5, 53, et plurimorum Doctorum, quos 
 refert Julius Clarus, § testamentum, quaast. 77, 78, et 79. 
 
29.] OPINIONS OF GEOTIUS. 283 
 
 deceased his wife, the debts must first be subtracted, 
 and then the said Maartge Adriaans Kools can 
 deduct from the joint estate, as a prior claim, her 
 property brought in under the marriage, and further 
 a sum of fifteen hundred guldens, if the estate be 
 worth more than four thousand. In estimating the 
 value of the said property, the goods inherited from 
 Jasper van Soelen must be valued at the price they 
 would fetch subject to the burden, of the fidei-com- 
 missum afore-mentioned, unless the said Gysbert van 
 Soelen left children or any of his sisters had died 
 leaving children. 
 
 (6) The heirs of the said Gysbert van Soelen, in 
 case he died childless, must give security, if demanded 
 by the relatives of the said Jasper van Soelen, to the 
 effect that, if the sisters also were to die childless, 
 restitution of the property inherited from Jasper van 
 Soelen will be made to the said relatives. (6) 
 
 Rotterdam, 
 
 August 1616. 
 
 (b) D. 26, 3. 
 
OPINION No. 30. 
 
 HOLL. CONS. III. B. 152. 
 [GROTITJS II. 20, 1 & 10, & II. 24, 11.] 
 
 Fidei-commissary clause — Error in writing — Interpretation — 
 Codicils and wills. 
 
 1. The bequest with respect to a fidei-commissum 
 remains of force notwithstanding a clerical error, and 
 although the fidei-commissary clause be inadequately 
 worded. 
 
 2. Two dispositions, the one a will and the other 
 a codicil, made by a testator on the same day, do 
 not revoke each other, although in either instrument 
 no mention is made of the other, provided only 
 that they contain no conflicting terms. 
 
 3. Wills and other bequests must be favourably 
 understood and interpreted etiam impropriando 
 verba. 
 
 4. The word " Bladinge" (burden) (a) signifies 
 not only usufruct, but also a restricted and qualified 
 ownership, with prohibition of alienation and the 
 burden of fidei-commissum. 
 
 (a) The word " Bladinge " is evidently a derivative from " beladen " and 
 "belading," in which case the meaning of a load or burden becomes 
 perfectly clear. Used in connection with " eigendom" (property), the 
 combination will give us the exact English equivalent " burdened property.' 
 — [Db B.] 
 
 284 
 
No. 30.] OPINIONS OF GKOTIUS. 285 
 
 5. Heirs may deduct the Trebellianic portion free 
 and unencumbered, when such deduction is not 
 forbidden by testament. 
 
 A copy of a certain will made by Jan Aarnouts on 
 the 12th November 1590 has been submitted to me, 
 as well as copies of two documents, comprising the 
 last will and testament of Adriaan Aarnouts, both in 
 the form of closed testaments, signed and sealed 
 before a notary and witnesses on the 14th and 20th 
 May 1602 respectively. The one contains the will of 
 Adriaan Aarnouts alone, and the other that of his 
 wife together with his own. Having been asked 
 whether the fidei-commissary clause inserted in the 
 above-mentioned testament of Jan Aarnouts and in 
 the separate will of Adriaan Aarnouts can be of full 
 force and effect without appearing in the joint will, 
 and what the legal consequences of such clauses are, 
 I am of opinion : — 
 
 (1) As regards the afore-mentioned will of Jan 
 Aarnouts, that although the fidei-commissum is in- 
 adequately worded, nevertheless the intention of 
 the testator clearly appears to have been that the 
 property left to his daughter should be subject to a 
 
 fidei-commissum. This disposition is not nullified by 
 a clerical error.(fe) 
 
 (2) With reference to the will of Adriaan Aarnouts, 
 there are two documents of the same date, and it 
 may be contended that both must be void by reason 
 of the uncertainty connected therewith. The dis- 
 cs) Per 1. errores et ambiguitates, C. 6, 23. 
 
286 OPINIONS OF GKOTIUS. [No. 
 
 position made by himself and his wife jointly must, 
 however, be taken to be not a will, but a codicil, for 
 some additional legacies are merely left by it, and no 
 provision is made for the institution of an heir. 
 This disposition, although called a " testament," has 
 not the effect of a will, but of a codicil, by virtue of 
 the codicillary clause inserted. On the other hand, 
 the dispositions made by the said Adriaan Aarnouts 
 separately provide for the institution of an heir, and 
 therefore have effect as a will. Hence it follows that 
 the said documents — the one a will, the other a codicil 
 — do not revoke and nullify each other, although no 
 mention of one is made in the other, since it is 
 sufficient that they contain no contrary stipulations.(c) 
 (3) And although there seems to be certain contra- 
 dictions in the said testament of Adriaan Aarnouts, 
 because at first Josijnken Jans is instituted heir to 
 one-half and Jasper and Marinus Dosbergen heirs to 
 the other half, under stipulation that they should 
 "adiate," "use," and "preserve" the property, these 
 words indicating that "ownership" is referred to, 
 and afterwards it is laid down that each heir should 
 enjoy the " Bladinge" ad vitam only, showing that 
 mere usufruct is apparently referred to, the said 
 testament, like every other will, must certainly be 
 favourably understood and interpreted etiam impro- 
 priando verba,(d) (4) and the word "Bladinge" 
 must therefore be taken to mean, not a mere usufruct, 
 but a restricted and qualified ownership, with pro- 
 
 (c) Inst. 2, 25, 1. 
 
 (d) Ut adjunct dd. 
 
30.] OPINIONS OF GROTITJS. 287 
 
 hibition of alienation and burden of fidei-commissum, 
 and under the circumstances this would be the case 
 even if the word usufruct had been expressly used.(e) 
 The fidei-commissary clause in the testament of 
 Jan Aarnouts, according to universal custom, has 
 effect over all the property inherited by the daughter 
 from her father, with the exception of her free and 
 unburdened legitimate and Trebellianic portions. 
 (5) But with reference to the will of Adriaan 
 Aarnouts, the clause inserted therein has effect over 
 all the property left by him to his heirs, with the 
 exception of a free and unburdened Trebellianic 
 portion, for the subtraction of this amount is not 
 forbidden in the testament. 
 JbJ.s-./^ 
 
 (e) D. 34, 2, 15, et D. 7, 1, 74, et D. 39, 5, 31, et D. 34, 1, 18, in quibus 
 legibus mentione rei facta, intelligitur contineri proprietas, neque de ea 
 quidquam imminutum per secutam usufruotus ant similium verborum 
 prolationem. 
 
OPINION No. 31. 
 
 HOLL. CONS. III. B. 198. 
 [GEOTIUS II. 20, 4, & II. 23, 2.] 
 
 Legacies to be made before five witnesses — There may be ex- 
 ceptions — Knowledge of legacies and fidei-commissa on the 
 part of the heir. 
 
 1. Although, as a rule, legacies which have been 
 made before less than five witnesses are invalid, 
 there are nevertheless some exceptions. 
 
 2. An heir who knows that the testator wished 
 that certain legacies or fidei-commissa should be 
 left, and who has received instructions to that effect, 
 is bound thereby ; the legatee can refer the matter 
 to the oath of the heir whether the testator did not 
 wish such to be done, provided that he takes an oath 
 that his request is bonajide. 
 
 (1) I am of opinion that although it is quite 
 correct that, as a rule, legacies which have been made 
 before less than five witnesses are invalid, yet there 
 are exceptions to this rule. For a passage of the 
 Code, (a) according to the interpretation of certain 
 jurisconsults, lays down that when an heir had notice 
 that the testator had wished that certain legacies or 
 fidei-commissa should go to the legatee, and had 
 
 (a) C 6, 42, 32. 
 
 288 
 
No. 31.] OPINIONS OF GROTIUS. 289 
 
 been instructed to that effect by the testator, the 
 said legacies and fidei-commissa are of force, and 
 the legatees may refer the matter to the oath of 
 the heir, whether such had not been the intention 
 of the testator, provided that he first of ail takes an 
 oath that his request is bonajide. 
 
 EOTTBKDAM, 
 
 June 1616. 
 
OPINION No. 32. 
 
 HOLL. CONS. III. B. 189. 
 [GROTIUS II. 20, 11.] 
 
 Wills — Prohibition of alienation — Strictly interpreted. 
 
 1. The words, " The goods not to be sold, pledged, 
 or otherwise burdened, but to be reasonably used" 
 do not include the right of free testamentary dis- 
 position. 
 
 2. Omnes prohibitiones sunt stricti juris et minime 
 extendendze. 
 
 3. Favorabilior est dispositio, quae fit per viam 
 ultimse voluntatis, quam quae fit contractu inter 
 vivos. 
 
 4. Maritus, qui uxori legavit usumfructum cum pro- 
 hibitione vendendi, censetur legasse proprietatem. 
 
 5. This is the case, a fortiori, when children are 
 instituted heirs of their parents. 
 
 6. The words, "In every case of death, the pro- 
 perty is to revert to the side of the testators, under 
 prohibition of disposition or alienation by testament 
 or codicil, &c." were restricted to such dispositions 
 whereby the property would be alienated from the 
 blood-relations. 
 
No. 32.] OPINIONS OF GROTIUS. 291 
 
 I have seen the copy of a certain testament bear- 
 ing date the 12th June 1592, made by Jacob Jans 
 Lijndrayer and Barbara Jans, his wife, together with 
 a codicil made by them on the 14th December 1600, 
 as well as a later codicil by the said Barbara alone 
 on the 27th September 1602. I have also seen the 
 award of certain arbitrators given in the matter of 
 the children and grandchildren of Jan Klaas and 
 Welmoet Jacobs, his wife, daughter of the afore- 
 mentioned Jacob Jans and Barbara Jans, against 
 Frederick Klaas, as guardian of the said Welmoet, 
 bearing date the 29th March 1619, with a consent 
 to judgment before the High Court of Holland on 
 the 1 7th April of the same year. 
 
 I have been asked whether the afore-mentioned 
 Welmoet can make a testamentary disposition of the 
 property which she inherited from her father and 
 mother, leaving them to her children in unequal 
 shares, and whether she can make a disposition of 
 some of the property, subject to restitution, for the 
 benefit of her children or of her descendants, not- 
 withstanding the afore-mentioned codicils. 
 
 (1) I am of opinion that she is entitled to do so, 
 since the words which appear in the said award, and 
 also in the afore-mentioned codicils, to the effect that 
 neither Frederick Klaas nor Welmoet could sell, 
 pledge, or otherwise burden the whole or part of the 
 property, but could use the same reasonably, make 
 no mention of disposition by last will, nor could 
 such be taken to be included thereunder ; not only 
 because (2) omnes prohibitiones tales, sunt stricti 
 
292 OPINIONS OF GROTIUS. [No. 32. 
 
 juris et minime extendendse, (3) but also since dis- 
 positio est favorabilior, quae fit per viam ultimse 
 voluntatis, quam quae fit contractu inter vivos, (a) 
 
 The reference to the use of the property does not 
 conflict with this, since the prohibition of alienation, 
 pledge, or other burden, shows that it must be taken 
 to allude to such use as is the outcome of ownership, 
 and not de formali usufructu, per eaquse tradit post aha 
 (vide Peckius, lib. 5, c. 14), ibi ait, (4) quod maritus, 
 qui uxori legavit usumfructum cum prohibitione ven- 
 dendi, censendus sit legasse proprietatem. (5) This 
 holds, a fortiori, when children have been instituted 
 heirs to the property of their parents by them. The 
 clause in the afore-mentioned codicil of the year 1592 
 shows nothing to the contrary, where it states that 
 the property of Jacob and Barbara Jans must, in 
 every case of death, revert to the side of the tes- 
 tators, under prohibition of disposition or alienation 
 by testament, codicil, gift, or in any other manner 
 whatsoever ; (6) for the said prohibition only refers 
 to such disposition whereby the said property would 
 be alienated from the blood-relations of the afore- 
 mentioned Jacob and Barbara Jans. 
 
 Amstebdam, 
 
 April 6, 1631. 
 
 (a) Ut ait Peckius de testam. oonj. lib. 1, cap. 29. 
 
OPINION No. 33. 
 
 HOLL. CONS. III. B. 151. 
 [GKOTITJS II. 21.J 
 
 Collateral inheritance, unadiated and no knowledge — Immovable 
 and movable property. 
 
 1. An inheritance from a collateral branch cannot 
 be transmitted, when not adiated, and even ascend-, 
 ants are then excluded. It makes no difference if 
 the guardians of the minors had no notice of such 
 inheritance. 
 
 2. No one ignorant of a collateral inheritance can 
 transmit the same. 
 
 3. Immovable property is governed by the law of 
 the place where it is situated. 
 
 4. According to the customary law of Utrecht, the 
 surviving father or mother inherited the property of 
 a deceased child. Movable property is governed by 
 the law of the place of residence of the deceased. 
 
 5. Balders sibi ipsi contrarius. 
 
 6. Movables are governed by the law of the place 
 where they are found. This is a well-known prin- 
 ciple in the case of confiscation, when the property 
 is not under the jurisdiction of the court or in the 
 state where the owner is sentenced. 
 
 7. Obligations and other personal claims are not 
 
294 OPINIONS OF GKOTIUS. [No. 
 
 placed in the same category with movables, but 
 constitute a separate third class of property. 
 
 8. Such claims are not governed by the law of the 
 place where the creditor resides, but where the 
 debtor is, and where fulfilment can be demanded 
 and executed instanter. 
 
 A., born at Botterdam and having his property 
 there, died in Spain. For a considerable time no 
 reliable tidings reached this country as to his death. 
 His nearest blood-relation at the time of his death 
 was his deceased brother's son, B., who afterwards 
 died at Utrecht. His father had predeceased A. 
 B.'s mother, or her children by her second marriage, 
 as her heirs, maintain that they are entitled to the 
 property left by A. On the contrary, C. and D., 
 children of the uncle and aunt of A., claim the 
 property as reverting to them. 
 
 With regard to the question as to who are the 
 rightful claimants : 
 
 (1)1 am of opinion that in this case the fact whether 
 or not B. or his guardians immediately adiated the 
 property is of importance, for if B. had not adiated 
 the inheritance, it follows that, after his death, the 
 blood-relation of A.- must succeed to his (A.'s) pro- 
 perty, and not the nearest blood-relations of B. The 
 reasons for this are quia haereditas veniens a latere 
 non adita, non transmittur (Bald, ad C. 6, 52, 1, per 
 textum expressum in 1. quoniam D. de jure deliber- 
 andi) ; and specialiter ne ad ascendentes quidem 
 transmitti hsereditatem non aditam (probat. Bartol. 
 
33.] OPINIONS OF GROTITJS. 295 
 
 .ad C. 6, 52, 1, et ad C. 6, 57, 2, et D. 38, 17, 2, 11). 
 And this is not altered by the allegation that the 
 said B. or his guardians had no knowledge that 
 the said inheritance had reverted to B. (2) Nam 
 etiam ignorans non transmittit hsereditatem colla- 
 teralium (ut tradit. Bald, in d. 1. quoniam allegans 
 legum pretia rerum, D. 35, 2). 
 
 (3) Taking for granted that the said inheritance 
 of A. had been adiated by B., there could be no 
 difficulty as to the immovable property, for after B.'s 
 death this would go, not to his mother, but to the 
 nearest relations from his father's side ; nam bona 
 immobilia sequuntur consuetudinem territorii ubi 
 sunt sita (Bald, ad C. 1, 1, 1. Gail, lib. 2, obs. 
 124, num. 9). 
 
 (4) As regards the movables, it appears that B.'s 
 mother or his half-brothers could claim the same 
 under the customary law of Utrecht, which lays 
 down that a child predeceasing his father or mother, 
 they (his parents) could inherit his property, (a) and 
 they have the opinion of many jurisconsults in 
 their favour, who hold quod mobilia regulantur 
 secundum consuetudinen domicilii defuncti.(&) 
 
 (5) But on behalf of C. and D. it may be con- 
 tended, with equally good reason, that the opinion 
 of these jurisconsults does not pass without contra- 
 diction, cum ipse Baldus sibi contrarius dicat,(c) bona 
 
 (a) Eubrica consuet. 23, art. 26. 
 
 (5) Gail d. obs. n. 18 ; Bald, in 1. mercatores C. de commeroiis ; Neosta- 
 diusjrer. jud. obs. 2. 
 """(«) In C. pace tenend. a num. 6 de usibus feudorum. 
 
296 OPINIONS OF GEOTIUS. [No. 
 
 mobilia censeri esse de ejus territorio, ubi reperiuntur. 
 Et hanc opinionem in practica servari ait Clarus 
 tract, crim. qu. 78. num. 27. Afflict, et Bursat. 
 allegati a Peregrino, qui inubbitanter ait idem obser- 
 vari lib. 6, de jure fis. tit. 1, num. 141, et Imbert. 
 in encbiridio tit. bonorum differentia. And this 
 practice is especially well known in matters of con- 
 fiscation, when the movable property is situate 
 not only under a different jurisdiction, but in a 
 different state, than that in which the owner was 
 sentenced. And Holland and Utrecht are different 
 States. 
 
 (7) Moreover, it appears that this contention is 
 based on still stronger grounds, particularly in respect 
 of obligations and other personal claims, due and 
 belonging to the said A. by persons residing in 
 Zeeland, for, notwithstanding the opinion of some 
 that actiones personales bonis mobilibus accenseri, 
 (d) most lawyers hold that these constitute tertia 
 quidam species, (e) And such claims are governed by 
 the laws of the place of residence of the debtor, and 
 not of the creditor where they are due and judgment 
 can be obtained on them,(/*) et hanc opinionem 
 communiter teneri testatur Peregrinus.(g') 
 
 (rf) C. 2, 32, 1, et in § Hace ergo in verbo numeranda. Auth. de non 
 alien. Bald, in 1. 2. C. de sacro eccl. 
 
 (e) Imbert d. 1. fulgos, in d. 1. 1 C. si adv. transact. Card. Cons. 72. 
 Socin. Cons. 7, viso test. Corn. Cons. 104, lib. 2, et Cons. 173, lib. 3, ubi 
 dicit Eartol. ita ssepius consuluisse at apparet Cons. 51 et 234, quem multi 
 alii secuti sunt allegati a Peckio de test, conjug. lib. 1, c. 30. 
 
 (/) Opinio Bald, et Aug. in 1. ex facto D. de hasred. ; Inst. Castr. cons. 
 319 ; Areth. Cons. 10 ; Soc. Cons. 175 ; Bald. Cons. 357 ; Salicet. in 1. 1 C. de 
 sum. tim. col. ult. ; Tiraq. de retract, lin. § 36, num. 15 et seq. ; Alex. Cons. 
 18 ; Alb. Brun. de stat. exclud. num. 18, art. 11, num. 134. 
 
 (g) Pereg. d. cap. num. 142. 
 
33.] OPINIONS OF GROTIUS. 297 
 
 From this it must be concluded that the con- 
 tention of C. and D. is well founded, unless it can 
 be proved that B. adiated the inheritance. Further, 
 even if this can be proved, their contention can still 
 be maintained with* good reason, and they have the 
 opinion of many lawyers in their favour. 
 
OPINION No. 34. 
 
 HOLL. CONS. III. B. 308. 
 [GEOTIUS II. 21, 3.] 
 
 Repudiation of inheritance — Successor singularis — Co-heir's 
 liabilities on a mortage bond — Universal partnership. 
 
 1. A son who repudiates his father's inheritance 
 is not liable for the debts. He may retain any 
 property given him upon his marriage, and also such 
 property as he may be entitled to as successor 
 singularis by virtue of a transfer or contract, 
 
 2. If any one accept a portion of a house as his 
 inheritance, he must bear, as possessor, his share of 
 the burdens to which the house is specially subjected 
 by a mortgage bond. 
 
 3. Universal community includes a community of 
 debts. 
 
 I have seen a certain extract from the Register of 
 the city of Goude, and an accord of the 24th of May 
 1618, between Gerrit Joosten and the guardians of 
 his children, also an ante-nuptial contract of the 
 23rd of April 1614, between Hendrik Andries and 
 Maritge Gerrits, and also a deed of renunciation 
 made by the said Hendrik Andries on the 16th of 
 January 1615. I have been asked whether Hendrik 
 
No. 34.] OPINION'S OF GEOTIUS. 299 
 
 Andries could claim a third of the house mentioned 
 in the accord, or six hundred guldens as an alter- 
 native, or whether he could repudiate everything 
 without heing liable for the debts of Gerrit Joosten 
 and Annetge, his daughter begotten out of wedlock, 
 both deceased. 
 
 (1) I am of opinion that Hendrik Andries is not 
 personally liable for the debts of Gerrit Joosten and 
 Annetge, since he repudiated the inheritance, and he 
 can retain the money given to him on his marriage, as 
 well as the third of the house belonging to his wife, or 
 the six hundred guldens in place thereof, as successor 
 singularis by virtue of the transfer and contract. 
 
 (2) It must be well understood, however, that if he 
 accepts the third part of the house, he must in such 
 case, bear, as possessor, a third share of the burdens 
 which are specially imposed upon the said house by 
 hypothec. If he repudiates the said third part and 
 the six hundred guldens, he will not be liable for any 
 debts of the said Gerrit Joosten and Annetge. This is 
 not contradicted by the clause contained in the accord 
 before mentioned, to the effect that the assets of the 
 estate should be vested undivided in Gerrit Joosten, 
 during his lifetime, and should be apportioned after 
 his death ; (3) for . this was not a universal com- 
 munity of property, which brings with it a community 
 of debts. The division after death must be taken to 
 mean, if the children claimed their inheritance from 
 Gerrit Joosten, which they were, however, left free to 
 accept or refuse. 
 
OPINION No. 35. 
 
 HOLL. CONS. III. B. 305/ 
 [GROTIUS IL 21, 5; VAN DER KEESSEL, THES. 323.] 
 
 Negotium hereditatis — Payment of debts of deceased — Implied 
 promises — Dolus — Administrators — Mandatarius. 
 
 1. If any one who carries on, together with two 
 other relatives, the negotium hereditatis of a deceased 
 relation, should, after some demurring, advance cer- 
 tain monies for the payment of the debts of the de- 
 ceased, for his honour and reputation, it is presumed 
 in dubio that the money was credited to the estate, 
 and not specially to the relations. 
 
 2. From what tacit promises may be inferred. 
 
 3. Silence does not imply consent so as to bind 
 another, if no other positive acts intervene. 
 
 4. When any one can benefit ex dolo. 
 
 5. Consilium fraudulentum obligat, and how such 
 fraudulent advice can be proved, et No. 7. 
 
 6. Dolus prsesumitur in eo, ad quern lucrum 
 spectat. 
 
 8. Executors of an estate cannot, after accepting 
 the administration, secure any property to them- 
 selves to the prejudice of the general creditors. 
 
 9. Mandatarius, accepto mandato, alienam rem 
 seque ac suam curare debet. 
 
 00 
 
No. 35.] OPINIONS OF GROTIUS. 301 
 
 If I understand the case well from what has been 
 submitted, three questions seem to arise therefrom 
 to my mind : 
 
 Firstly, whether B. must be taken to have paid the 
 money advanced by him to the estate of the de- 
 ceased, or to the two most important relatives still 
 alive. 
 
 Secondly, whether under any circumstances he is 
 entitled to claim any compensation for damages sus- 
 tained from the two most important relatives. 
 
 Thirdly, whether the said two most important rela- 
 tives could secure themselves, either by pledge or 
 otherwise, out of the property of the estate to the 
 prejudice of B. 
 
 (1) With regard to the first question, this depends 
 on facts, and must be decided from the words used 
 at the time of the payment and receipt of -the money ; 
 but since in the submitted case it was stated that 
 B., after some demur, understood it to be for the 
 honour and reputation of the deceased, ita ut ipse 
 quoque cum aliis gesserit negotium hereditatis, and 
 that the advance was for the payment of the debts 
 of the deceased, it must be presumed in dubio that 
 the said money was advanced to the estate and not 
 to the relations in particular, (a) 
 
 (2) Coming to the second point, we have to 
 examine by what right B. is entitled to claim com- 
 pensation for damages from the two most important 
 relations. This right must emanate aut ex consensu 
 ipsorum duorum, aut ex eorundem dolo. B. seems 
 
 (a) Per ea quse tradit Bart, in D. 26, 9, 5, 1. 
 
302 OPINIONS OF GROTIUS. [No. 
 
 somewhat to base his claim against one of the two 
 most important relations on a right ex consensu, 
 since he (one of the two relations) knew that B. was 
 not inclined to make the advance, except upon 
 security given, not only by C, but by both of them, 
 and that, knowing this, he did not inform B. that he 
 would not give such security, from which B. inferred 
 tacit consent. (3) The rule of law, quod taciturnitas 
 consensum non operatur, ubi de aliquo obligando 
 tractatur, nisi alius actus positions interveniat,(6) is 
 against this. This applies with greater force to the 
 present case, since the said relative was away when 
 the question of indemnity was discussed between 
 B. and C. (4) What remains then is that both the 
 two relatives might have benefited ex dolo, since they 
 had tried to induce B. to make the advance upon 
 their advice. This seems to convey some probability, 
 bearing in mind the legal maxim, quod consilium 
 fraudulentem obligat.(c) (5) The difficulty would 
 be to prove the fraud. If B. could show that the 
 two most important relatives had knowledge of the 
 insolvency at the time that they advised him, this 
 would be sufficient proof of fraud. Taking it that 
 this cannot be fully proved, nevertheless, if it could 
 be shown that B.'s advance had tended to their 
 profit, it would be sufficient, taking into consideration 
 some other conjectures, (6) nam dolus pra^sumitur 
 in eo, ad quern lucrum spectat. (7) Further, even 
 taking it that the fraud cannot be clearly proved by 
 
 (6) D. 3, 3, 8, 1, et ibi DD. 
 (c) D. i, 3, 8, et D. 50, 17, 47. 
 
35 -] OPINIONS OF GEOTIUS. 303 
 
 this or similar evidence, it still appears that it will 
 be sufficient if B. can show from all the circum- 
 stances that he would not have made the advance 
 to the estate but for the advice and importunity of 
 the said two relatives, (d) B. is therefore specially 
 advised to obtain evidence by which one, or, if pos- 
 sible, all of these points can be proved, so that he can 
 base his action thereon. 
 
 (8) Begarding the third question, assuming that 
 the two said relatives were executors of the estate, 
 and as such mandatarii of the creditors, they could 
 not, after their acceptance of the administration, 
 secure themselves out of any property, to the pre- 
 judice of the other creditors. Alienam enim rem 
 aeque ex suam curare debuerunt, accepto man- 
 dato.(e) 
 
 (9) Further advice upon the case will be given on 
 the receipt of other instructions, and upon the pro- 
 duction of further evidence. 
 
 (d) D. 17, 1, 4, 5. 
 
 (e) D. 17, 1, 35, et ibi DD. 
 
OPINION No. 36. 
 
 HOLL. CONS. III. B. 191. 
 [GROTII7S II. 22, 17, & II. 18, -10 (§ 6, 7, Opin.)] 
 
 Legacy of usufruct — When it expires — Interpretation of testa- 
 ments — Adiation — Dies incertus — Spec suceessionis. 
 
 1. All legacies of usufruct expire on the death of 
 the legatee. 
 
 2. In the interpretation of testaments an absurdus 
 intellectus must be avoided. 
 
 3. A legatee can have no usufruct unless the in- 
 heritance is adiated. 
 
 4. Ex legato pure relicto, etiam institutio pura 
 censeri debet. 
 
 5. Dies incertus movetur de medio, et refertur 
 non ad jus adeundi, sed ad efficaciam emolumenti. 
 
 6. Institutus post mortem usufructuarii si ante 
 usufructuarium moriatur, potest hereditatem trans- 
 mittere ; et prsesertim si Alius post mortem usu- 
 fructuarii est institutus. Et quare. 
 
 7. Filius debet pure institui. 
 
 I have seen a copy of a certain testament made 
 by Bastiaan Wynants Cpcq and Maaijke Michiels, 
 his wife, and have been instructed that, after the 
 
 304 
 
No. 36.] OPINIONS OF GROTIUS. 305 
 
 decease of the afore-mentioned Bastiaan Wynants, his 
 son Justinus, who was mentioned in the testament, 
 died, and likewise after him the afore-mentioned 
 Maaijke Michiels, step-mother to the said Justinus, 
 and that Justinus left no relations to succeed him 
 according to local law. 
 
 (l) In response to the questions put, I am of opinion 
 that the heirs to Maaijke Michiels cannot claim the 
 property by virtue of the disposition or legacy, since 
 she was found to have been left under the testament 
 of her husband only the usufruct and interest of the 
 property left by him, subject to certain burdens, and 
 it is a well-known legal principle that all legacies of 
 usufruct expire on the death of the legatee. Nor 
 does the provision in the said testament conflict 
 with this, which says the said Justinus, as survivor, 
 shall inherit, in full ownership, after the death of 
 Maaijke Michiels, the afore - mentioned property, 
 whereof she had the usufruct, for the said Justinus 
 cannot be taken to have been instituted only in ilium 
 diem, and sub ilia conditione, if he survived Maaijke 
 Michiels, because in the interpretation of testa- 
 ments vitari debet absurdus intellectus. (2) Esset 
 autem absurdus intellectus, si nemo heres existeret, 
 nisi post extinctionem ususfructus ; cum ususfructus 
 ad legatarium pervenire non posset, nisi adita here- 
 ditate.(a) (3) Neque ususfructus cuiquam relinqui 
 possit in casum suae mortis, (b) Unde tali casu, 
 quod posito consequent], necessarium est ponere 
 
 (a) C. 6, 42, 14. 
 (6) D. 7, 1, 51. 
 
 U 
 
306 OPINIONS OF GROTIUS. [No. 36.' 
 
 antecedens, (4) ex legato pure relicto, etiam institutio 
 pura censeri debet.(c) 
 
 (5) Quare dies incerta amovetur de medio et refertur 
 non ad jus adeundi sed ad efficaciam emolumenti. (d) 
 
 (6) Unde sequitur quod institutus post mortem 
 usufructuarii, si ante usufructuarium moriatur, potest 
 hereditatem transmittere. Bald, dicit ita esse judi- 
 catum.(e) Idem multis probant.(y) This is without 
 doubt the case ubi filius post mortem usufructuarii 
 est institutus, ne alioquin evanescat testamentum, 
 quia iilium pure institui necesse est.(g) 
 
 (7) It therefore follows that the afore-mentioned 
 Justinus could transmit the property of his father 
 Bastiaan Wynants, to his heirs, or, failing relations, 
 to the Public Treasury, since he was entitled to the 
 ownership of his father's property on his death. 
 The heirs of the afore-mentioned Maaijke Michiels 
 have no claim by virtue of the said legacy or usufruct, 
 since they were not instituted together with Justinus 
 and the legacy lapsed on her death. The usufruct 
 was merged io the ownership in the person of the 
 said Justinus, in conformity with the intention of 
 the said Bastiaan Wynants, which is clearly indicated 
 by the words " full ownership " appearing in the testa- 
 ment, in addition to the reasons already given. 
 
 Rotterdam. 
 
 (c) Bald, in C. 1, 3, 24, in qusest. 14. 
 
 (d) Bald, in D. 28, 2, 28, et Ang. de Perusio ibi. 
 
 (e) Bald, in d. L C. 1, 3, 24. Castr. in d. 1. D. 28, 2, 28. 
 
 (/) Faoh. lib. 4, contr. c. 18. Gail, lib. 2, obs. 143. Arius Pinellus ad 
 1. 1. C. de rebus maternis 4, parte 3, Nos. 41, 42, and 43. Borgouinus 
 Cavalcanus, tract, et usufr. mult, relieto, § 2, Nos. 1 and 2. Boerius, 
 Cons. 13. (g) C. 6, 25, 4. Bald, in C. 3, 28, 32, and 3, 28, 36. 
 
OPINION No. 37. 
 
 HOLL. CONS. III. B. 161.(a) 
 [GEOTIUS II. 22, 17.] 
 
 Legacies of usufruct — "When they terminate — Effects of adia- 
 tion on — Cannot be disposed of by will — Dies ineerta — 
 Absurdus intellectus in the interpretation of wills. 
 
 1. All legacies of usufruct terminate upon the 
 death, of the legatee. 
 
 2. In the interpretation of testaments an absurdus 
 intellectus is not allowed. 
 
 What would be an absurdus intellectus in the 
 present case? 
 
 3. Usufructus ad legatarium pervenire non potest, 
 nisi adita hereditate. 
 
 4. Usufructus nemini relinqui potest, in casum 
 suae mortis. 
 
 5. Ex legato pure relicto, etiam institutio pura 
 censeri debet. 
 
 6. Dies ineerta amovetur de medio, et refertur non 
 ad jus adeundi sed ad efficaciam emolumenti. 
 
 7. Institutus post mortem usufructuarii, si ante 
 usufructuarium moriatur, potest hereditatem trans- 
 
 fa) In connection with this Opinion, read Opinion No. 36 (Holl. Cons 
 3, (b.) 191.— [Ed.] 
 
 807 
 
308 OPINIONS OF GROTIUS. [No. 
 
 mittere ; et prsecipue, si filius post mortem usufruc- 
 tuarii est institutus. 
 
 (8) A person entitled immediately on the death of 
 the testator to the ownership of his property can 
 transmit it to his nearest relatives, or, if these, are 
 wanting, to the Fisc. The heirs of the usufructuarius 
 cannot lay any claim to it by virtue of the legacy of 
 usufruct. Et quare. 
 
 I have seen the copy of a certain will made by 
 Bastiaan Wynants Cock and Mayke Michiels, his 
 wife, and have been further instructed that after the 
 death of the said Bastiaan Wynants, his son Justinus 
 also died. Mayke Michiels had survived her husband 
 but had predeceased her stepson Justinus, and Jus- 
 tinus left no lawful heirs to succeed him. In response 
 to the questions asked : 
 
 I am of opinion that since by the aforesaid will of 
 her husband, Bastiaan Wynants, Mayke Michiels is 
 given the usufruct and qualified ownership of the 
 property left by him, together with certain burdens 
 without direct title of institution : (1) her heirs 
 cannot, after her death, claim this property by virtue 
 of this disposition or legacy, for the legal principle is 
 that all legacies of usufruct lapse with the death of 
 the legatee. 
 
 (2) And with this does not conflict the stipulation 
 in the testament that the property of which Mayke 
 Michiels, the survivor, enjoyed the usufruct should 
 on her decease go. to the said Justinus in full owner- 
 ship, and that the said Justinus should only be 
 
37.] OPINIONS OF GEOTIUS. 309 
 
 considered as instituted heir over the said property 
 in ilium diem and sub ilia conditione, if he sur- 
 vived the afore-mentioned Mayke Michiels ; for in 
 all interpretations of testaments (3) vetari debet 
 absUrdus intellectus. Esset autem absurdus intel- 
 lectus, si nemo heres existeret, nisi post extinctionem 
 usufructus ; cum usufructus ad legatarium pervenire 
 non possit, nisi adita hereditate.(6) 
 
 (4) Neque usufructus relinqui possit alicui in casum 
 suse mortis. (c) (5) Unde tali casu, quia pOsito 
 consequenti, necessarium est ponere antecedens, ex 
 legato pure relicto, etiam institutio pura censeri 
 debet.(d) (6) Quare dies incerta amovetur de medio 
 et refertur non ad jus adeundi, sed ad efficaciam 
 emolumenti.(e) (7) Unde sequitur quod institutus 
 post mortem usufructuarii, si ante usufructuarium 
 moriatur, possit hereditatem transmittere.(/) The 
 authorities below state that it has thus been decided, 
 and many others are of the same opinion, (g) And 
 it is sound law, ubi filius post mortem usufructuarii 
 est institutus, ne alioqui evanescat testamentum, 
 quia filium institui pure necesse est. (A) 
 
 (8) Hence it follows that the said Justinus was 
 entitled to the dominium of his father's property 
 
 (6) C. 6, 42, 14. 
 
 (c) D. 7, 1, 51. 
 
 (d) Bald, ad C. 1, 3, 24, in 14 qusest. 
 
 (e) Bald, ad D. 28, 2, 28. Angelus de Perusio, ib. 
 (/) Bald, in d. 1. C. 1, 3, 24. Castr. in d. 1. filius. 
 
 {g) Fach. lib. 2, controv. C. 18. Gail, 2, obs. 143. Arius Pinellus ad 1. 
 1, C. de bonis maternis 4, parte 3, 41, 42, 43. Borgnin. Calcaneus, tract, 
 de usuf. mult, relicto, sect. 2, Nos. 1 and 2. Boerius, Cons. 13. 
 
 {h) C. 6, 25, 4. Bald, in C. 3, 28, 32, and 3, 28, 36. 
 
310 OPINIONS OF GKOTIUS. [No. 37. 
 
 immediately after his (Bastiaan Wynant's) death, 
 and could transmit it to his nearest relatives, or in 
 default of these, to the Fisc. The heirs of the said 
 Mayke Michiels have no claim to it whatever by 
 virtue of the legacy of usufruct, for they were not in- 
 stituted originally together with the afore-mentioned 
 Justinus, and the legacy lapsed upon the death of the 
 legatee, whereby the usufruct and the dominium 
 became merged in the person of Justinus. This was 
 the intention of Bastiaan Wynants, as appears clearly 
 from the words " full ownership " found in the will, 
 in addition to the various reasons given above. 
 
OPINION No. 38. 
 
 HOLL. CONS. III. B. 190. 
 [GROTTOS II. 22, 16 & 17.] 
 
 Redeemable and irredeemable burdens — Under what circumstances 
 borne by legatee — Donatio inter vivos, when binding on 
 donor — Debts — Jurisdiction over the Counts of Meurs. 
 
 1. Public as well as particular burdens which are 
 irredeemable, such as emphyteutic rents, must be 
 borne by the legatee, and not by the heir. 
 
 2. Kedeemable rents must be borne by the heir. 
 
 3. Quo casu cessat regula, quod heres non teneatur 
 luere rem legatem, si ipse ignoraverit obligatam esse. 
 
 4. If any one had been instituted as heir under 
 obligation to pay the debts of the deceased, he is 
 bound to pay the realised debts as well. 
 
 5. If anything has been given to a person as a 
 donation inter vivos, the donor is not bound to free 
 such gift unless the donation was made as a re- 
 muneration for services rendered, quo casu donator 
 tenetur de evictione. 
 
 6. Eemuneratio sequiparatur in solutum datione. 
 
 7. Those who claim interest on a hypothec given 
 to any one as a donation inter vivos must first excuss 
 the heirs of the donors. 
 
 8. The Counts of Meurs can be summoned before 
 
312 OPINIONS OF GEOT1US. [No. 
 
 no other Council than the Chamber-Council of 
 Spiers. 
 
 With reference to the question whether the heirs 
 of the late Lady Walburg, Countess of Nyeuwenart, 
 Spiers, &c., are bound to free His Excellency, as 
 possessor of the County of Meurs, from all interests 
 which became due after the death of the said Lady 
 Walburg, and which still fall due annually, being a 
 hypothec on the said County : 
 
 (l) I am of opinion that this question is subject 
 to great controversy by reason of the different opinions 
 held by the lawyers ; but nevertheless I think greater 
 and better reasons are to be found to show that the 
 heirs are bound to do this than to show that they are 
 not thus bound. 
 
 Firstly, the authorities which seem to differ on this 
 point appear to convey the same meaning when care- 
 fully examined together, namely, that public as well 
 as particular burdens which are not redeemable, such 
 as emphyteutic rents, must be borne by the legatee, 
 and not by the heir.(a) (2) But redeemable rents 
 must be borne by the heir. (6) Ubi [infra) generaliter 
 et sine distinctione dicitur, quod si quis rem obliga- 
 tam creditori legaverit, necesse habet heres earn 
 luere, nisi defunctus expresserit velle se rem lui a 
 legatario, quod probari videtur satis manifeste.(c) 
 
 (3) Secondly, on account of the favour and affec- 
 
 (a) Quae est sententia 1. qusero D. de tisufr. legato. 
 
 (6) Instit. 2, 20, 5. 
 
 (c) D. 32, 1, 29, et 32, 1, 102, 2. 
 
38.] OPINIONS OF GROTIUS. 313 
 
 tion which the Lady Walburg always showed to His 
 Excellency, from which it must be presumed that 
 she wished to benefit him without imposing any 
 burden. Nam in simili cum heres non teneatur luere 
 rem legatam, si ipse ignoraverit obligatam esse, cessat 
 tamen hsec regula propter arctam amicitiam, aut 
 magnum meritum legatarii.(c£) 
 
 (4) Thirdly, since the said Lady Walburg used 
 the words " under obligation that His Excellency 
 shall pay our debts after our decease " in her testa- 
 ment whereby she instituted her heirs. For such 
 disposition was unnecessary as regards the personal 
 debts, for these, it is perfectly well known, the heir 
 is bound to pay. It must therefore be presumed 
 that the words have some other significance, and 
 that they were inserted in order to remove all doubt 
 as to the realised debts. 
 
 (5) The fact that the County of Meurs was given 
 to His Excellency after the date of the testament, as 
 a donation inter vivos, seems strongly to combat this 
 view, for a donor is not bound to free such gift. 
 To this it might be replied, firstly, that it appears to 
 have been the intention of Her Grace not to revoke 
 the legacy by such donation, in so far as His Excel- 
 lency might derive a greater benefit therefrom than 
 from the donation ; and secondly, that the said 
 donation was not only repeated, from which still 
 more clearly appears that her meaning and inten- 
 tion was to be liberal, but it was done by way of 
 
 (d) Bald, ad C. 6, 42, 6, num. 3. 
 
314 OPINIONS OF GEOTIUS. [No. 3S. 
 
 remuneration for manifold and important services, as 
 expressly mentioned in the wording of the second 
 donation. Quo casu tradunt Doctores teneri dona- 
 torem de luitione, quia remuneratio sequiparatur in 
 solutum datione.(e) 
 
 (7) On the further question whether His Excellency 
 is entitled to contend that those who claim interest 
 on the hypothec ought first to excuss the heirs of 
 the said Lady Walburg, I am of opinion, from what 
 has preceded, that His Excellency is entitled so to 
 do,(/) assuming that His Excellency, as Count of 
 Meurs, and at the same time heir of the said Lady 
 Walburg, cannot be sued before any other Council 
 than the Chamber-Council of Spiers. 
 
 (e) Ita Jason ad D. 45, 1, 131, 1. 
 
 (/) Per Auth. Hoc si debitor, C. 8, 14, 14. (Nol. 112, cap. 1, de litigio- 
 sis. — [Ed.].) 
 
OPINION No. 39. 
 
 HOLL. CONS. III. B. 154. 
 [GROTIUS II. 22, 17.] 
 
 Legacy of usufruct — Ownership — Eight of testamentary disposi- 
 tion — Spes successionis. 
 
 The legacy of a usufruct or stipulation that the 
 property shall remain undivided ad vitam, does not 
 divest a person of the ownership of that portion 
 accruing to him pro diviso. He can dispose of such 
 portion by testament as if it were in bonis ipsius, 
 notwithstanding that it was stipulated (in the will) 
 that the property shall only be shared and divided 
 after the death of the survivor. 
 
 I have seen a certain testament of Pieter Gerrits 
 and his wife, Gijsbertge Hendrik, dated 7th January 
 1614, together with a testament of Jan Adriaans, 
 soap-boiler, and his wife, Neeltge Pieters, dated 16th 
 January 1611. Pieter Gerrits died, and then Neeltge 
 Pieters, leaving as survivors the said Gijsbertge and 
 Jan Adriaans. I have been asked whether Jan 
 Adriaans is entitled to a child's share of the property 
 left by Pieter Gerrits. 
 
 I am of opinion, since by the said testament of 
 
 315 
 
316 OPINIONS OF GROTTOS. [No. 39. 
 
 1611 Jan Adriaans had been instituted as universal 
 heir to his wife, and she (Neeltge) was entitled before 
 her death to a portion of her father's (Pieter Gerrits) 
 inheritance as instituted heir, that the right to that 
 portion at the time of her death, as being in bonis 
 ipsius, was transferred to her husband, her heir. 
 
 The fact that by the above-mentioned testament 
 of Pieter Gerrits occupation and use of the property 
 is given to his widow, and that there is a further 
 stipulation that after the death of the survivor the 
 property is to be shared and divided amongst the 
 children, does not conflict with this contention, for 
 such a legacy of usufruct or stipulation, that the 
 survivor shall retain possession, does not divest 
 Neeltge Pieters of the ownership of that portion 
 coming to her pro diviso, and she can legally dispose 
 over such property. 
 
OPINION No. 40. 
 
 HOLL. CONS. III. B. 195. 
 [GROTIUS II. 22, 24, & 25.] 
 
 Legacy of clothes, &c. 
 
 A legacy of clothes, trinkets, jewels, and every- 
 thing else belonging to the person of the testator, 
 entitles the legatee to claim all the personal effects, 
 whether inherited or bought by the testator for the 
 use or ornament of his own person, and not for any- 
 body else, or acquired and destined by him for such 
 use. 
 
 I have seen a certain mutual will made by Bar- 
 thout Willems van Abbesteeg and Claartge Aalberts, 
 his wife, bearing date 21st March 1616, which 
 obtained full force upon the predecease of the said 
 Claartge. By this testament the survivor was in- 
 stituted heir, and it was stipulated inter alia that 
 their child or children should have the clothes, 
 trinkets, jewels, and everything else belonging to 
 the person of the first-dying. The testatrix had, 
 of her own, certain clothes, trinkets, jewels, and 
 effects, which were personally used by her, and had 
 also inherited similar articles upon the death of her 
 
318 OPINIONS OF GEOTIUS. [No. 40. 
 
 mother and maternal aunt. I have been asked 
 what articles should be considered as included under 
 the legacy. 
 
 I am of opinion that the afore-mentioned children 
 are entitled under the legacy to everything which 
 belonged to the person of the testatrix, whether she 
 had bought the same, provided it was ordinarily 
 employed either for the use or adornment of her own 
 person, and of no one else, or whether she had 
 acquired and destined these articles for such use. (a) 
 Legato quod uxoris causa emptum paratumve esset, 
 id videri legatum, quod non uxori cum viro, aut 
 liberis communis usus fuisset, sed quod proprio 
 uxoris usui destinatum.(6) Cum quo convenit.(c) 
 As regards the clothes, trinkets, and jewels, these 
 must be considered to refer to such as were used 
 upon her person, although such is not expressly 
 stated ; for generally when speaking of clothes, 
 trinkets, and jewels, we allude not so much to the 
 ownership as to the use. See authorities quoted,(c£) 
 ubi dicitur, si quis dixerit vestem suam, de ea eum 
 sensisse, quam ipse in usus suos habuit. 
 
 EOTTBRDAM, 
 
 27th June 1616. 
 
 (a) Per text. D. 34, 2, 10. 
 
 (6) Idemque traditur D. 32, 1, 45. 
 
 (c) D. 34, 2, 28, et D. 50, 16, 203. 
 
 (d) Lit. apparet in D. 34, 2, 32, 2, et clarius in D. 34, 2, 25. 
 
OPINION No. 41. 
 
 HOLL. CONS. III. B. 153. 
 [GROTITTS II. 22, 35, & II. 23, 18.] 
 
 Mortgage bonds as legacies — Registration. 
 
 Ktjsting brieven, or mortgage bonds, given to 
 legatees in payment of their legacies, need not be 
 transferred by the court, nor the fortieth penny 
 paid thereon. A notarial deed of the transaction 
 is sufficient. 
 
 Having seen a certain testament made by Jan 
 Van den Berg and Christina Pieters, dated 23rd 
 May 1616, which was confirmed by the death of the 
 last-mentioned, and considered the questions put : 
 
 I am of opinion that Jan Van den Berg, in con- 
 formity with the said testament, is bound to pay 
 out to Aaltge Ijsbrants, Maritgen Pols en Neeltgen 
 Ijsbrants, or their children, as legatees, the respective 
 amounts of two thousand four hundred guldens, or 
 to give them mortgage bonds equal in value. More- 
 over, it is not necessary that the said mortgage bonds 
 or hasting brieven be transferred to the legatees by 
 the court. A notarial deed setting forth that the 
 
 319 
 
320 OPINIONS OF GROTIUS. [No. 41. 
 
 legatees have been paid their legacies in full on 
 receipt of these bonds is sufficient. And neither 
 Jan Van den Berg nor the legatees are bound to pay 
 the dues of the fortieth penny, for no such enact- 
 ment is found in the Placaat of the States-General. 
 
OPINION No. 42. 
 
 HOLL. CONS. V. 131. 
 [GROTIUS II. 22, 35.] 
 
 Testamentary disposition of the property of the heir — The heir 
 
 not to go contrary to the will of the deceased — Legitimate. 
 
 (Cf. Opinion No. 53.) 
 
 Testator potest disponere de re heredis 
 
 Heres non potest contravenire voluntati defuncti. 
 
 I have seen an extract from the ante-nuptial 
 contract entered into between Jan Kornelisse 
 Kruisert and Theuntje Gerrits, subject to the 
 approval of the parents, together with a copy of 
 the testament of Gerrit Dirriks van der Wolff, dated 
 12th March 1609, and have considered the questions 
 put. 
 
 I am of opinion that the guardians of Teuntje 
 Jans would be entitled, by virtue of the said ante- 
 nuptial contract, to claim the due performance of 
 whatever may have been donated at the marriage of 
 Mr. Dirk van der Wolff more than at the marriage of 
 her mother, Teuntje Gerrits. The same guardians 
 must, however, as regards Teuntje Jans, co-heiress 
 with Gerrit van der Wolff, notwithstanding the said 
 ante-nuptial contract, conform to the testament of 
 the said Gerrit van der Wolff, cum heres non possit 
 
 321 x 
 
322 OPINIONS OF GEOTIUS. [No. 42. 
 
 contravenire voluntati defuncti, et testator possit dis- 
 ponere de re heredis. This testament of Gerrit van 
 der Wolff stipulates that the said performance shall 
 take place upon her marriage. Her guardians there- 
 fore have the option of accepting on behalf of the 
 orphan either the testament with its conditions or the 
 legitimate portion in full ownership, with all profits 
 since the decease of the said Gerrit van der Wolff. 
 This legitimate portion amounts to one-half, of what 
 each of the four branches of descendants would have 
 received if there had been no testament. It must 
 be borne in mind, however, that they can do this only 
 in respect of the amount of the legitimate portion, 
 per ea quae notat Jason in auth. novissima, C. 3, 28, 
 6, n. 44. 
 
OPINION No. 43. 
 
 HOLL. CONS. III. B. 160. 
 [GEOTIUS II. 23, 5.] 
 
 Copulative legacy — Fisczts and instituted heirs excluded. 
 
 1. A wife leaves a certain legacy to the relatives 
 and heirs ab intestato of her deceased husband. 
 On the husband's death he had left relatives on his 
 mother's side only. The whole legacy will go to 
 these relatives non jure accrescendi, sed jure non 
 decrescendi, and the Fiseus is not entitled thereto, 
 nor can the instituted heirs retain the half. 
 
 2. Re conjunctus excludit hceredem. 
 
 I have seen a certain testament wherein a legacy 
 of 1500 guldens was left by the testatrix to the 
 relatives and heirs ab intestato of her late husband. 
 Assuming that the husband left relatives of his 
 mother's side only, and none of his father's side, the 
 question has arisen whether one-half of the 1500 
 guldens would go to the relatives of the mother's 
 side of the said Christian Anthonis (the husband), 
 and in case there are no relatives of the father's side, 
 whether the other half would fall to the Fiseus, or 
 devolve upon the instituted heirs of the testatrix. 
 
 323 
 
324 OPINIONS OF GEOTIUS. [No. 43. 
 
 I am of opinion that the total amount of 1500 
 guldens belongs to the relatives of the mother's 
 side of the said Christian Anthonis, idque non jure 
 accrescendi, sed jure non decrescendi, and the Public 
 Treasury is not entitled thereto, for in this legacy are 
 mentioned not quivis heres ah intestato, under which 
 class the Fiscus would fall — quatenus partem faceret 
 ah intestato, according to the Political Ordinance ; 
 but " all relatives and heirs copulatively." (2) And 
 therefore the instituted heirs cannot claim the half 
 cum re conjunctus excludat hceredem.(a) 
 
 (a) C. 6, 51, 1, 11. 
 
OPINION No. 44. 
 
 HOLL. CONS. III. B. 186.* 
 [GROTIUS II. 23, 18, & 1, 13, l.J 
 
 Citizenship — How acquired — How lost — Domicile of wife — Heirs 
 entitled to possession of estate — Legatee's rights against heirs. 
 
 1. Citizenship can be acquired in different ways. 
 How it can be lost. 
 
 2. Uxor omnino sequitur mariti conditionem 
 (Opinion No. 9). 
 
 3. A woman who is a citizen born of Zierikzee 
 loses all the advantages of such citizenship upon her 
 marriage with a stranger. 
 
 4. The Articles of the Enactments of the city of 
 Zierikzee, which go further than the Common Law, 
 cannot be extended to those who are merely inhabi- 
 tants, but not citizens. 
 
 5. Although Zierikzee is privileged to create 
 customs, such customs must be confined to matters 
 of general police. 
 
 6. A person instituted heir under a testament is 
 entitled to retain possession of the property in re- 
 spect of which he was instituted, and if anything is 
 
 * In connection with this Opinion, read Opinion No. 15 (Holl. Cons. 3 
 (b.) 185), and Opinion No. 9 (Holl. Cons. 3 (b.) 196), with annotations.— [Ed.] 
 
 325 
 
326 OPINIONS OF GEOTIUS. [No. 
 
 left to another as a legacy, the legatee will have to 
 claim it from the instituted heir. 
 
 I have seen further instructions * in the cause of 
 Sr. Hannibal Bovython against the nearest relatives 
 of Agatha Ockerts. 
 
 (1) In answer to the points raised,. I am of opinion 
 that in this matter the customs of Zierikzee respect- 
 ing citizenship deserve special consideration, for in 
 some places citizenship was acquired by a residence 
 of a year and six weeks ; in some, on taking the 
 necessary oath and receiving the consent of the 
 rulers of the city ; in others, upon marriage with a 
 citizen's daughter; and in others again, in diverse 
 manners. According to these customs, it will have 
 to be decided whether Agatha Ockerts was a citizen 
 at the time she made the testament or not. For if 
 the said Bovython is held to have been a citizen, 
 since he had his wife and furniture in Zierikzee, 
 although he had his abode somewhere else, his wife 
 would be a citizen too ; but if not, she must be con- 
 sidered to have lost her citizenship ; (2) cum uxor 
 omnino sequatur mariti conditionem.(a) (3) This 
 reason is strengthened by the fact that it is enacted 
 that upon the marriage of a woman who is a citizen 
 born with a stranger, she loses all the privileges of 
 citizenship. It must further be noted that the 22nd 
 Article of the Enactment of Zierikzee, when read 
 
 * See Opinion No. 15 (Holl. Cons. 3 (b.) 185).— [Ed.] 
 (a) Glos. 4 Bart, in C. 10, 38, 4. Bald. Cons. 351, 411, and 451, lib. i., 
 and Cons. 310, lib. iii. 
 
44.] OPINIONS OF GEOTIUS. 327 
 
 together with the 72nd Article, seems expressly to 
 refer to man and wife who are both ..citizens. (4) 
 Now, since these Articles go further than the Common 
 Law, they cannot be extended to those who are not 
 citizens, but merely inhabitants. The Article refer- 
 ring to the customs and embodied in the Enactments 
 must receive a restrictive interpretation. 
 
 I am further of opinion that the ante-nuptial con- 
 tract was only annulled by the testament in so far as 
 it conflicted with the testamentary disposition. The 
 general law with regard to the community of property 
 cannot therefore be applied to this case, and Sr. 
 Bovython must be considered entitled, in accordance 
 with the previous Opinion (III. B. 185), to two- 
 thirds of the property left by his wife, and to the 
 remaining third left him by codicil, in so far as it 
 can be accepted that, (5) if Zierikzee be privileged 
 to create customs, such customs must be confined to 
 matters of general police, or if it should not appear 
 that the 73rd Article was understood in practice to 
 refer to testaments as well as to donations (the Article 
 of the year 1570, sent to me as evidence of such prac- 
 tice, is insufficient), or if, according to the customs of 
 Zierikzee, Bovython be not considered a citizen, and 
 consequently his wife not entitled to citizenship 
 either. 
 
 I am further of opinion that Sr. Bovython is 
 entitled to retain possession of two-thirds of the 
 afore-mentioned property as instituted heir. (6) As 
 
 (6) C. 6, 33, 3. 
 
328 OPINIONS OF GEOTIUS. [No. 44. 
 
 regards the other property, however, left him as a 
 legacy under the codicil, he must claim it from the 
 nearest relatives, who are the instituted heirs to one- 
 third, burdened with the afore-mentioned legacies to 
 the said Bovython. 
 
 Rotterdam, 
 
 ZOth April 1616. 
 
OPINION No. 45. 
 
 HOLL. CONS. III. B. 158. 
 [GROTIUS II. 23, 20.] 
 
 Falcidian portion — How calculated — How deducted — Eights of 
 
 heirs to. 
 
 1. The Falcidian portion accrues to the instituted 
 heirs unless prohibited by testament, and is one- 
 fourth part of the inheritance after the deduction of 
 all debts. 
 
 2. In order to deduct the Falcidian portion, all 
 inventoried property and lands left must be valued. 
 
 3. The Falcidian portion does not lapse because 
 the instituted heir received a legacy or prelegacy, 
 but it is deducted also from such legacy or prelegacy 
 as well as from the others. Also 5 and 6. 
 
 4. The Falcidian portion is deducted from all 
 legacies also in case of substitution. 
 
 7. The Falcidian portion was deducted from the 
 whole legacy — that is, from the bare ownership as 
 well as from the usufruct. 
 
 8. The heirs are entitled to deduct a fourth part 
 of each legacy, and are not bound to accept money 
 in settlement of their portion, but must be placed in 
 full possession of all the property, rendering the 
 
330 OPINIONS OF GKOTIUS. [No. 
 
 legatees their legacies and deducting the amount to 
 which they are entitled. 
 
 QU^ERITUR. 
 
 (1) Whether Lijsbet Ariens, Grietgen Ariens, and 
 the children of Tryntgen Ariens, relatives on the 
 mother's side and instituted heirs, could advisedly 
 adiate the estate of the late Adriaange Gerrits, their 
 half-sister, simply, and act as heirs according to the 
 will or not ? 
 
 I am of opinion that the instituted heirs should 
 be advised to adiate, if they are sure that the assets 
 of the estate exceed the liabilities. 
 
 (2) Whether the said Lijsbet Ariens, who, by virtue 
 of the above-mentioned will, cannot inherit more 
 than five or six Flemish pounds, whereas the whole 
 estate is supposed to be worth about 20,000 guldens, 
 is not entitled to her Falcidian portion of a third of 
 the estate, i.e. a legal fourth, since she was instituted 
 heir to one-third of the whole estate ? 
 
 The relatives of the mother's side, who alone are 
 found to have been instituted heirs under the will, 
 are entitled to the Falcidian portion, since it is not 
 specially taken away or prohibited by the will, and 
 each heir must have his share. This portion is one- 
 fourth of the inheritance after deduction of all debts. 
 
 (3) Whether on this account all the property and 
 lands of the testatrix are not to be valued according 
 to the inventory made thereof? 
 
 This must certainly take place. 
 
45.] OPINIONS OF GROTIUS. 331 
 
 (4) Whether Lijsbet Ariens, by virtue of her right 
 to a Falcidian portion, can oppose the full claim of 
 Grietgen Ariens, who receives nine morgen of land 
 as a legacy, to the extent of the value of such legacy, 
 the said Grietgen being subsequently instituted heir, 
 as also Elizabeth? 
 
 What the instituted heirs received as legacies 
 or prelegacies must not be taken into account as 
 satisfaction for the Falcidian portion, but this portion 
 must be deducted from such legacies and prelegacies, 
 as well as from all others. 
 
 (5) Whether Grietgen can, by reason of the word 
 " institution," although inserted after the said legacy 
 in the last portion of the will, claim to hold the nine 
 morgen free, without deduction of the Falcidian 
 fourth ? 
 
 No, for reasons afore-mentioned. 
 
 (6) Whether (5) can be urged with specially 
 strong reasons, since the said nine morgen are left to 
 Grietgen on condition " that, in case she predeceased 
 her husband, the nine morgen are all to go to her 
 children, who are substituted as her heirs ? " 
 
 The Falcidian portion must be deducted from 
 all legacies also in case of substitution. 
 
 (7) It was further asked whether Lijsbet Ariens 
 was entitled to a Falcidian fourth on certain seven 
 morgens of land left as a legacy to the children of 
 Fijtgen Ariens, they being instituted heirs together 
 with Lijsbet and Grietgen Ariens? 
 
 Yes, for reasons afore-mentioned. 
 
 (8) Whether the said Lijsbet was entitled to a 
 
332 OPINIONS OF GROTIUS. [No. 
 
 Falcidian fourth on a certain house, "De Poot," 
 together with 11 morgen and 300 roods* of ground, 
 which were left as a legacy to Gerrit Jacobs, but on 
 condition that it was always to be left to the relatives 
 of his mother's side, and that the said Gerrit could 
 in no wise alienate the whole or a part thereof, 
 except in case of necessity 1 
 Yes, for the same reason. 
 
 (9) Since the said Gerrit must allowhis father, Jacob 
 Cornells Schout, the usufruct till he (Gerrit) comes 
 of age, whether the rest of the Falcidian portion 
 can be charged on the property itself, or whether the 
 said Lijsbet Ariens must satisfy her claim with the 
 use and the fruits of the property 1 
 
 The Falcidian portion must be deducted from 
 the whole legacy — that is, from the bare ownership, 
 as well as from the usufruct. 
 
 (10) Whether Lijsbet Ariens is entitled to exer- 
 cise her right to her Falcidian fourth over the house 
 and each piece of ground separately, without being 
 bound to accept money in settlement, unless she 
 feels thus disposed? And further, what the said 
 Lijsbet should be advised to do with reference to 
 this point ? 
 
 The heirs are entitled to deduct a fourth from 
 each legacy, and cannot be compelled to receive 
 money in settlement, unless, upon sufficient cause 
 
 * Three hundred roods (DHe Honden). The word "hand," as a land 
 measure, is mentioned by Jacob Coren in obs. 19, lit. 8. He gives the exact 
 meaning,, and makes it equivalent to 100 roods. The same word is found 
 in Simon van Leeuwen's Censura Forensis, pt. 1, lib. iv. cap. 19, n. 19, and 
 in Voet, 18, 1, 7. Voet gives as an equivalent 100 decempedse. — [TB.] 
 
45.] OPINIONS OF GKOTIUS. 333 
 
 being shown, the court should deem it preferable. 
 The instituted heirs are advised to take possession 
 of the property at once, and to deliver to the legatees 
 their legacies, after deducting what is due to them- 
 selves. 
 
OPINION No. 46. 
 
 HOLL. CONS. V. 134. 
 ' [GEOTIUS II. 24, 9.] 
 
 Effect of revocation of a testament as regards previous 
 dispositions. 
 
 When a testament is revoked, every disposition 
 made in such testament must be considered revoked 
 
 I have seen a certain ante-nuptial contract made 
 between Huibert Kornelisz and Pleuntjen Floris, 
 bearing date 1st of April 1605, and also a copy oi 
 a certain mutual will between the said consorts 
 dated 17th of August 1617,* as well as a later 
 testament of the said Huibert Kornelisz, dated 29th 
 of December 1617. I have been asked whether the 
 afore-mentioned Pleuntjen is entitled to one-half 
 of the property of the said Huibert Kornelisz, or 
 whether she must be satisfied with the thousand 
 gulden and the other items mentioned in the ante- 
 nuptial contract. 
 
 I am of opinion that she must be satisfied with 
 the stipulations contained in the ante-nuptial con- 
 tract, for although this contract had been revoked 
 
 * Evidently a misprint for 1607. Cf. infra. — [Te.] 
 334 
 
No. 46.] OPINIONS OF GEOTIUS. 335 
 
 by the reciprocal testament of the year 1607, it must 
 be noted that this revocation does not subsist by 
 itself, but was merely made in order that the testa- 
 ment of 1607 should be of effect, as appears from 
 the wording of the testament, " in all matters con- 
 trary to the disposition of the contract," and also 
 because the said Pleuntjen was instituted by the 
 testament afore-mentioned to one-half of all the 
 property, which would not have been the case if the 
 property had devolved upon her by virtue of the 
 renunciation, either as gift or by contract. From 
 this it follows that since the testament of 1607 has 
 been revoked by the later testament, the aforesaid 
 renunciation is also revoked, as being dependent on 
 the said testament. The fact that the said testament 
 of 1607 is only revoked by the later testament in so 
 far as the latter is contrary to the terms thereof, does 
 not affect the case, since in the later testament the 
 relations of the testator were instituted heirs to all 
 his property without exception, which is a direct 
 contradiction to the institution of the said Pleuntjen 
 to one-half of the property made by the testament 
 afore-mentioned. 
 
OPINION No. 47. 
 
 HOLL. CONS. III. B. 157. 
 [GROTITTS II. 24, 11.] 
 
 Wills of the same date — When one considered codicil — Pro 
 tion of alienation — Interpretation under fidei-commis 
 clause. 
 
 1. Two testaments found to have been made 
 the same day can have no legal existence if t 
 contain the institution of different persons as hei] 
 
 2. The words "my relatives or heirs" must 
 taken to refer de eo, qui primus et immediatus 
 heres in case of a materia odiosa — as, for instai 
 prohibition of alienation. 
 
 3. When does prohibition of alienation « 
 favore agnatorumf 
 
 4. In the case submitted, by " existing heirs, 
 those that may come into existence by marriaj 
 must be understood children representing tl 
 parents by a substitutio vulgaris, and not th 
 succeeding primus heredibus. 
 
 5. In the case submitted, all life annuities, lai 
 town properties, and allodial tithes are subjec 
 to the fidei-commissum. 
 
 6. Dictiones (id est videlicet) et similes, non s 
 tantum declarative, sed et restrictivse. 
 
No. 47.] OPINIONS OF GROTIUS. 337 
 
 7. Under "lands and erven" are included houses, 
 but life-annuities and house-rents, not being per- 
 petual revenues, are excluded. 
 
 8. In case the testator has not obtained a special 
 dispensation, succession to the feuds will follow 
 feudal law. 
 
 After considering a certain Statement of Case, 
 the questions arising therefrom, and the copies of 
 two testaments of Aernout Aernouts, both dated 
 20th May 1602 : 
 
 (1) I am of opinion that the doctrine of the juris- 
 consults which lays down that when two testaments 
 of the same testator are found to have been made on 
 the same day, it must be considered as if no testa- 
 ment had been made at all, is not applicable to the 
 present case, for the said doctrine refers merely ubi 
 sunt duo testamenta singula habentia diversi heredis 
 institutionem, and not where one of the testaments 
 makes no provision for the institution of heirs.(a) 
 Such disposition, notwithstanding the erroneous 
 word " testament," can and must be construed as a 
 codicil ex vi clausulce codicillaris, and can thus be 
 reconciled with the dispositions contained in the 
 true testament. Such is the case with the said two 
 testaments of Aernout Aernouts. 
 
 (2) Assuming this to be the case, I am further of 
 opinion that it may be contended with good reason 
 that by the terms of the genuine will, which includes 
 the fidei-commissary clause, the property there enu- 
 
 (a) Arg. D. 29, 2, 51. 
 
338 OPINIONS OF GROTIUS. [B 
 
 merated is burdened with a fidei-commissum, f 
 one generation, and no further-— to wit, until each 
 those heirs who adiated the inheritance of the sa 
 Aernout Aernouts is dead. The reason is that tl 
 words "my relatives and heirs" must be understoc 
 as referring de eo, qui primus et immediatus e 
 heres, when treating of a materia odiosa.(b) E 
 autem prohibitio alienationis odiosa.(c) (3) Eo ha 
 videtur communis DD. opinio extra eum casum, u 
 alienatio prohibita est favore agnatorum. This pr< 
 hibition ceases in the present case, since a woman 
 instituted with a man. (4) And the words " exis 
 ing heirs, or those who may come into existence 1 
 marriage," in the will, do not weaken this contentio: 
 for they must be taken to refer to children who a 
 substituted vulgariter in- the place of their paren 
 under the will, and not to those who would succee 
 primis heredibus. 
 
 (5) I am further of opinion that no other pr< 
 perty must be taken as subject to fidei-commissu; 
 than life-annuities, lands, erven, and allodial tithe 
 Although the testator at first uses the general ter: 
 "property" and afterwards "immovable property 
 the application thereof must be restricted general 
 on account of the expression " to wit " — (6) nai 
 dictiones, id est videlicet, et similes, sunt non tantu: 
 declarativse, sed et restrictivae.(c?) 
 
 (7) With reference to the houses, it seems th: 
 
 (5) Arg. 1. cum antiquitas, D. de usuf. ita Decius in 1. qui per D. 50, 1' 
 
 (o) D. 37, 12, 2. 
 
 (d) Bart, ad D. 9, 2, 1. 
 
47.] OPINIONS OF GROTIUS. 339 
 
 they may be included under " property and lands " 
 cum vox prcediorum etiam cedificiis congruat, but 
 life-annuities and house-rents, not being perpetual 
 revenues, must be considered as excluded. The 
 feudal tithes can in no wise be made subject to a 
 fidei-commissum, for it must be taken that the 
 testator had not obtained a special dispensation, and 
 succession to the feuds will therefore go juxta usus 
 feudales. (e) But since the above point, and especially 
 that super gradibus fidei-commisso gravatis, is dis- 
 puted, it would be best for the administrator not to 
 proceed with the sale of the grounds, erven, or 
 quit-rents except by final order, and on behalf of all 
 persons who are entitled to a fourth share of the 
 estate. 
 
 (c) C. 1 in prino. de succ. feudi. 
 
OPINION No. 48. 
 
 HOLL. CONS. III. B. 192. 
 [GROTIUS II. 24, 14, & II. 17, 23, & II. 18, 19.] 
 
 Closed willa — Nuncupative testaments — Revocation — Witne 
 — Intention. 
 
 1. When a testator had his testament written 
 another, and had sealed the same and declared bef 
 a notary and witnesses that this was his last will a 
 testament, which declaration was endorsed and c< 
 firmed on the back thereof by the notary and w 
 nesses, he must be taken to have made a nuncupat 
 testament. Et No. 3. 
 
 2. According to law, an heir can be designated 
 any way or in any document, although in nuncupat 
 testaments it is required ut heredis nomen voce t 
 tatoris exprimatur. 
 
 4. The confirmation of such a testament, dc 
 before a notary and witnesses, being revoked, and 
 notarial deed endorsed thereon, setting forth that 1 
 testator revokes and annuls his testament and decla: 
 the deed of confirmation thereof null, void, and of 
 effect, such revocation is binding and of force, a 
 the testament nullified, although such testament v 
 found in the house of the deceased under seal 
 the testator, safe, sound, uncancelled, unopened, a 
 
No. 48.] OPINIONS OF GEOTIUS. 341 
 
 uncut ; the legacies to the poor, however, remain of 
 force. 
 
 5. A testament is validly revoked when the testator 
 declared, in the presence of as many witnesses as are 
 required by law, that he did not wish his testament 
 to remain in force, and he is then considered to have 
 died intestate. The lapse of a further period of ten 
 years in addition to such declaration of intention is 
 not required.* 
 
 6. If the revocation was made before a less number 
 of witnesses than required by law, an additional period 
 of ten years will be required, besides the declaration 
 of such contrary intention by the testator. 
 
 7. In dubio semper est judicandum contra non 
 habentem testatoris mentem ; etiamsi pia causa sit. 
 
 8. In the Provinces of the Netherlands the appa- 
 rent intention of the testator always received more 
 consideration than the subtleties of the law in respect 
 of wills. 
 
 9. Lawyers who are of a contrary opinion, as 
 stated in No. 4, allow this exception, nisi testator 
 dixerit se velle intestatum discedere. 
 
 On the 10th March 1628, A. made a testament, 
 which B. wrote for him. He desired that a notary 
 and two witnesses, whereof B. was one, should sign 
 the testament together with him. This was done. 
 A. sealed the testament before the notary and two 
 
 * The succeeding Opinion, No. 49 (Holl. Cons. 3 (b.) 156) clearly shows 
 the distinction to be observed between the revocation of a nuncupative and 
 written will. — [Ed.] 
 
342 OPINIONS OF GKOTIUS. [No. 
 
 witnesses, and declared it to be his last will and 
 testament, according to the notarial deed endorsed 
 on the back thereof. The testament was, however, 
 not read over to the notary and witnesses, and, with 
 the exception of B., they therefore had no knowledge 
 of its contents. 
 
 By the said notarial deed the testator reserved 
 for himself the right of revoking or altering the 
 testament. 
 
 Accordingly, on the 29th March 1631, he passed 
 another deed before the same notary and witnesses, 
 which was also endorsed on the aforesaid testament. 
 Thereby he revoked, cancelled, and annulled his said 
 sealed testament, and wished it, as well as the afore- 
 said deed of the 10th March 1621, to be considered 
 null, void, of no effect, and as not written. He left 
 the said testament, however, sealed, safe, sound, un- 
 destroyed, and uncut. 
 
 The testator died suddenly in the year 1633, 
 without having made a subsequent disposition or 
 another testament. The afore-mentioned testament 
 was found in his house, sealed, safe, sound, un- 
 cancelled, unopened, and undestroyed, bearing the 
 said notarial deeds endorsed thereon. 
 
 I have been asked, in the first place, whether 
 the afore-mentioned testament must be considered 
 pro testamento scripto ; an vero pro nuncupativo ; 
 secondly, whether the revocation has the legal effect 
 of validly annulling the said testament, or whether, 
 notwithstanding the revocation, the testament remains 
 of force, not only because it was found in the house 
 
48.] OPINIONS OF GKOTIUS. 343 
 
 of the deceased testator, sealed in three places by 
 him, and was safe, sound, uncancelled, unopened, 
 and uncut, but also because by the afore-mentioned 
 deed of revocation no fresh institution of heirs took 
 place, nor did he declare that he wished to die 
 intestate, and by the said testament the testator's 
 only agnate was instituted as heir, having been 
 mentioned immediately after the father of the said 
 heir, who was then but seven years old, and the tes- 
 tator assigned no cause or reason for the revocation. 
 
 (1) After consideration of the case submitted, and 
 perusal of a copy of the testament and the two deeds 
 endorsed thereon, as set forth in the instructions, I 
 am of opinion, in reference to the first point, that 
 Arent van Suylen van Nyevelt must be understood 
 to have made a nuncupative disposition by reason of 
 the first deed afore-mentioned, whereby he declared, 
 in the presence of a notary and two witnesses, " the 
 said writing or closed document to be his last will 
 and testament, desiring that it shall have effect as 
 such," as appears from the deed. 
 
 (2) Although in nuncupative testaments it is re- 
 quired ut heredis nomen voce testatoris exprimatur, 
 it is accepted law that such can be done in any 
 way,(a) or in any document.(&) Testamento data 
 hereditas, si quis dixerit, quern heredem codicillis 
 fecero, heres esto. And such declaration, made before 
 the full number of witnesses required by the Civil 
 law (superseded in our country by. a notary and 
 
 (a) D. 28, 5, 9, 8, and 28, 5, 58. 
 (6) D. 28, 5, 77. 
 
344 OPINIONS OF GROTIUS. [No. 
 
 two witnesses), was called by the jurisconsults a 
 nuncupative testament, as can be seen from very 
 many authorities. (c) Against this it cannot be con- 
 tended that it was the intention of the testator to 
 dispose of his property in scriptis, (3) for the tenor 
 of the document indicates that such was not his 
 intention absolutely, but only conditionally, viz., if 
 he had nothing further placed therein by the notary. 
 This was done, and the aforesaid conditional inten- 
 tion, conditione deficiente, became void, and his sub- 
 sequent declaration concerning his estate must be 
 taken as his testament for the reasons above set 
 forth. 
 
 (4) With reference to the second point, I think that 
 the said testament must be considered as validly re- 
 voked by reason of the deed of revocation above re- 
 ferred to, with the exception of the legacy to the 
 poor of the place of his burial. (5) For although 
 among the jurisconsults there were diverse opinions 
 with regard to the question whether a testament was 
 effectually revoked if the testator declared before the 
 full number of witnesses required by law that he 
 did not wish his testament to remain in force — vide 
 authorities quoted below,(e£) — yet the opinion of 
 those who hold that this could be done, and that the 
 matter was brought ad causam intestati, seems better 
 founded both as regards authorities and in equity ; 
 
 (c) Per Ludovicum Lanapatricium Brixcens. in libro de formulis testam. 
 nuncup. et clans, maxime circa No. 70, per Julium Claruro, § testam. qusest. 
 4, No. 3. Mich. Grassum, § testam. qusest. 10, ibi secundus casus. 
 
 (d) Guidonem Papse decis. 200. Papon, tit. de testam. arr. 3. Julium 
 Clarum d. § testam. qusest. 91 ; Grassum. d. § testam. qusest. 84. 
 
48 -] OPINIONS OF GROT1US. 345 
 
 for the authority of the Digest is most applicable, (e) 
 si heres institutus non habeat voluntatem, vel quia 
 incisse sunt tabulae, vel quia cancellatse, vel quia alia 
 ratione voluntatem testator mutavit, voluitque ab 
 intestato decedere dicendum est ab intestato rem 
 habituros eos, qui bonorum possessionem acceperunt. 
 (6) The authority of the Code,(/) whereon the other 
 opinion is based, ut prater talem voluntatis declara- 
 tionem, decennii tempus, requirant proves nothing to 
 the contrary, since it refers to a declaration made 
 before a less number of witnesses than is required 
 by law, whilst we have to do with a declaration 
 made before a notary and witnesses, which, accord- 
 ing to custom, is the same as the seven witnesses 
 required by the Roman law. Propter quas rationes 
 efKcaces, quod testamentum fit valide revocatum, 
 suo tempore testatur.(#) This opinion also holds in 
 equity, ut ait Socinus ]r.,(h) probante Grasso dicto loco 
 quadrat cuilibet sensato et rationabili intellectui, for 
 no one can with any reason doubt the intention of 
 the testator. (7) In dubio autem semper judicandum 
 est contra non habentem testatoris mentem, etiamsi 
 pia causa sit.(^) (8) This doctrine ought certainly 
 to be adopted in the Provinces of the Netherlands, 
 where it is always customary to consider the ap- 
 parent intention of the testator rather than the 
 
 (e) D. 37, 2. 
 (/) C. 6, 23, 27. 
 (gr) Guido Papae, dicto loco. 
 (h) Socinus Jr., Cons. 145. 
 
 (i) Lud. Zuntus responso pro uxor, No. 1063, ubi citat Alciatum responso, 
 570. 
 
346 OPINIONS OF GKOTIUS. [No. 48, 
 
 subtleties of the written law. But even should it 
 be persisted in, opinionem minus probabilem quam 
 sequitur Clarus, dicto loco, it must still be borne in 
 mind that those who hold the said opinion allow 
 this exception, nisi testator dixerit se velle intesta- 
 tum decedere. Id enim si fiat, censeri institutos 
 heredes ab intestato, agnoscit non Grassus tan- 
 tum,(&) sed et Clarus. (I) 
 
 (k) Grassus d. qusest 1, No. 5. 
 (I) Clarus, qusest. 92. 
 
OPINION No. 49. 
 
 HOLL. CONS. III. B. 156. 
 [GEOTIUS II. 24, 15.] 
 
 Effect of wilful destruction of a copy of a will — Nuncupative 
 wills — Revocation of — Testamenta in scriptis. 
 
 A nuncupative will is not annulled by the wilful and 
 intentional destruction through fire of the authentic 
 copy thereof by the testator. Such, however, is the 
 case with a written will. JSt quare. 
 
 I have seen the copy of a certain testament by 
 Marijtgen Jans of Nieuwerkerk, dated 12th August 
 1605. Having been asked whether the said will is 
 still of full force, or must be considered as annulled 
 and revoked, since the afore-mentioned Marijtgen 
 Jans, during her lifetime, purposely and wilfully 
 burnt the authentic copy in her possession, although 
 the will itself remained in the notary's protocol : 
 
 I am of opinion, since the said will is not in 
 scriptis sed nuncupatorium, which is apparent from 
 the wording, that it could not be annulled merely by 
 burning the authentic copy, for a nuncupative will 
 cannot be otherwise revoked than by a subsequent 
 will; (a) nor does the passage from the Code (6, 23, 
 
 (a) D. 50, 17, 35. Inst. 2, 17, 1. 
 347 
 
348 OPINIONS OF GROTIUS. [No. 49. 
 
 30) conflict with this view, for that refers to written 
 wills (testamenti in scriptis).{b)* 
 
 The testamentum in scriptis is not a notarially executed 
 will, as would be commonly supposed. It is either an under- 
 hand or a closed will, written by the testator himself, or 
 some one on his behalf and with his sanction. 
 
 A notarial will, on the other hand, was nuncupatorium, 
 for the testator orally declared to the notary his intentions 
 concerning the testamentary devolution of his property. 
 The mere fact that this declaration of the testator was 
 reduced to writing by the notary did not alter the case, 
 and the testament remained nuncupative. 
 
 The form of will generally employed in South Africa is 
 the under-hand testament — testamentum scriptum, which was 
 common in Frisia ; the notarially executed will — testamentum 
 nuncupativurn — obtained generally in Holland.(c) 
 
 See Chapter on Testaments, § 6, pp. 185, 186. 
 
 (b) Idem decidit Clarus, qusest. 93, § testamentum. 
 * With reference to the revocation of nuncupative wills, see [also 
 Opinion No. 48 (Holl. Cons. 3 (b.) 192).— [Ed.] "~ 
 (e) Krynauw v. De Marillac (0. F. S. Feb. 1892). 
 
OPINION No. 50. 
 
 HOLL. CONS. III. B. 155. 
 [GROTIUS II. 24, 19.] 
 
 Institution of poor — .When it lapses — Consequences. 
 
 The institution, as heirs, of the poor of a sect not 
 recognised by law is not allowed, and in case of 
 their incapacity, the inheritance must go ab intestato. 
 The heirs, however, will act well and honourably in 
 allowing the orthodox poor to claim the inheritance, 
 although according to strict law they cannot be 
 compelled to do so. 
 
 I have seen a certain testament by Jan Frans, 
 bookbinder, dated 24th September 1609, wherein the 
 poor of the sect of Arent Barents were instituted as 
 heirs, after certain legacies had been paid out 
 
 I am of opinion, with reference to the questions put 
 me, that the institution cannot be allowed, since it 
 refers to the poor of a sect not recognised by law,(a) 
 and the inheritance, in case of the incapacity of the 
 instituted heirs, must therefore go ab intestato. (b} 
 Yet the heirs ab intestato will act well and honour- 
 ably in allowing the orthodox poor to succeed to the 
 
 (a) D. 34, 5, 21, et ibi Bait. C. 1, 9, 1. 
 
 (6) Inst. 3, 1, in pr. 
 
 349 
 
350 OPINIONS OF GROTIUS. [No. 50. 
 
 inheritance, although, according to strict law, they 
 cannot be compelled to do so. Non obstat 1. 
 Pand.(c) quia ibi non relinquitur personse incapaci, 
 ad causam prohibitam ut recte distinguit ~Bavt.(d) 
 Similiter non "facit" Novella de Eccles. tit. c. 14, 
 quia eo loco agitur de possessione, in qua sit 
 Ecclesia. 
 
 (c) L. Legatum D. de usufructu leg. 
 
 (d) D. 32, 1, 38. 
 
SUCCESSION AB INTESTATO. 
 
 OPINION No. 51. 
 
 HOLL. CONS. III. B. 197. 
 [GKOTIUS II. 26, 10, & II. 28, 6, & II. 30, 3.] 
 
 Succession db intestato — When the Fiscus is admitted — Intestate 
 succession regulated by customary law — Schependoms law 
 obtains in Zeeland — The customs of Zeeland — How to decide 
 dubious questions — Provisions of the Schependoms law — 
 Effect of special legislation. 
 
 1. THEFiscus is not admitted, quamdiu aliquis ex 
 quacunque linea reperitur defuncto agnatus, vel cog- 
 natus. (Also No. 8.) 
 
 2. Intestate succession is regulated by the cus- 
 tomary law of the country, and not by Civil Law. 
 
 3. Only Schependoms law obtained in Zeeland. 
 
 4. The customs of the country were held pro jure 
 civili hujus nostrse patriae. 
 
 5. According to the customs of Zeeland, the pro- 
 perty was divided into four quarters, and, ab intestato, 
 the inheritance devolved, in default of children, 
 grandchildren, or other descendants in recta linea, 
 on the nearest blood-relations of the deceased of the 
 father's and mother's side, and all four quarters were 
 equally called to the inheritance, notwithstanding 
 
 351 
 
352 OPINIONS OF GEOTIUS. [No. 
 
 that on one side there were nearer relations than on 
 the other. (See also No. 20, where the application 
 of the said custom is explained.) 
 
 6. No one can succeed to more than devolves on 
 the quarter or line he represents. If no relation of 
 one of the four quarters can be found, the inheritance 
 of the deceased, as far as that side is concerned, 
 goes to the Fiscus. 
 
 7. Casus, qui non comprehenditur verbis statuti, 
 relinquitur dispositioni juris communis. (See No. 
 14 for the interpretation of this maxim.) 
 
 9. All doubtful questions ought to be decided 
 secundum regulas generales juris ejus, quod cuique 
 civitati proprium est. 
 
 10. B-eprsesentatio semper et in quocunque gradu 
 locum habet et est causa unica et adsequata juris 
 succedendi. 
 
 11. The Schependoms law takes into consideration 
 all relations in communi stipite, and if there are no 
 descendants aproavo, the succession goes ad abavum. 
 
 12. Abavi et abavise numero sunt octo, et qui 
 succedit loco unius ex abavis, ad octavam duntaxat 
 partem admittitur. 
 
 13. Inter descendentes ab abavis nulla est prselatio 
 propinquioris in gradu, jure Scabinico, et succedunt 
 duntaxat reprsesentative, et pro ea parte tantum, in 
 qua, succederet reprsesentatus. 
 
 15. Schependoms law was considered in Zeeland 
 not pro jure statutorio, sed Civili. 
 
 16. Ubi statutum abrogat legem Communem in 
 totum, tunc novus casus occurrens, si est conse- 
 
51.J OPINIONS OF GEOTIUS. 353 
 
 quens et proximus statuto definiri debet secundum 
 rationem statuti, non legis abrogatae. 
 
 17. In materia statutaria, the rule quod in casu 
 omisso recurri debeat ad jus Commune, receives this 
 limitation : nisi in statuto expressa esset ratio, aut 
 ejus unica duntaxat reddi possit ratio. 
 
 18. Argumentum ab identitate rationis in materia 
 statutaria prsefertur in casu omisso dispositioni juris 
 Communis. 
 
 19. Ubi in statuto ratio pro expressa habetur, 
 facienda est extensio etiam in correctoriis. 
 
 21. Although, according to Eoman law : ii, qui 
 apud hostes sunt, partem non faciant, and the other 
 relations in the same grade succeed to the augmented 
 inheritance, or it devolves upon the next in line of 
 succession, the portions of such persons, however, 
 in Holland and Zeeland go to the Treasury. Et 
 quare. 
 
 Marinus Heyns Vosbergen died in the town of 
 £Van derj Goes, and left several relations, descendants 
 from the side of his maternal grandfather, his ma- 
 ternal grandmother, and his paternal grandmother, 
 but left none from the side of his paternal grand- 
 father, with the exception of one female descendant 
 from the aunt of his paternal grandfather, the said 
 aunt being his great-grandfather's sister.* 
 
 I have been asked whether the Treasury of Zeeland 
 is entitled to one-eighth portion of the said inheri- 
 
 * That is, a collateral by half-blood. — [Ed.] 
 
354 OPINIONS OF GROTIUS. [No. 
 
 tance, to wit, that eighth part which should have 
 gone to the descendants of his paternal great-grand- 
 mother, if any could have been found. 
 
 (1) I am [of opinion, that if this question were 
 to be decided according to the Civil Law, the Trea- 
 sury would have no claim, since under its provisions 
 the Fiscus was not admitted, quamdiu aliquis ex 
 quacunque linea reperitur defuncto agnatus aut 
 cognatus.(a) (2) Since, however, it is well known 
 that in the Provinces of Holland and Zeeland suc- 
 cession ab intestato was regulated by the prevailing 
 customs from the earliest times, and before we ever 
 came to consider the written Koman law. (3) These 
 customs obtained in Holland partly according to the 
 Aasdoms and partly according to Schependoms law, 
 and in Zeeland according to the Schependoms law 
 alone. For the purposes of the present case, we must 
 therefore consider not the Roman law, but only the 
 afore-mentioned customs, which are held (4) pro jure 
 civili hujus nostras patriae. (6) (5) Now according to 
 the customs of Zeeland, the whole of the property is 
 divided into four quarters, as provided by the Keuren 
 of Zeeland, (c) or as accepted since earliest times, 
 and advised by the Attorney-General, to the effect 
 that intestate inheritances devolve upon the nearest 
 relations of the deceased from his father's and 
 mother's side, in default of children, grandchildren, 
 or other direct descendants. The inheritance is 
 
 (a) C. 10, 12, ult. 
 
 (b) Instit. 1, 2, 2. 
 (e) Cap. 2, art. 24. 
 
51.J OPINIONS OF GEOTIUS. 355 
 
 distributed in four parts to the nearest relations 
 of the deceased coming from the side of his paternal 
 grandfather, paternal grandmother, maternal grand- 
 father, and maternal grandmother, so that all four 
 quarters were equally called to the inheritance, not- 
 withstanding that in one quarter there were nearer 
 relations than in the other. (6) For no one of the 
 heirs could succeed to more than devolved on the 
 quarter or line from which he is descended, and if 
 no one was found related to one of the aforesaid 
 four quarters, the inheritance of the deceased, as far 
 as that side is concerned, went to the Treasury. 
 Having stated this custom, the question still remains 
 whether a collateral of the half side can succeed to 
 a full one-fourth, or only to a half of such fourth, 
 whilst the other half goes to the Fiscus, if there 
 were found to be no descendants or collaterals by 
 full blood of one of the quarters, but only collaterals 
 by half blood ut in casu nostra ? 
 
 (7) Prima fronte, it would seem that such col- 
 laterals succeed to the full fourth, first, since this 
 case, qui non comprehenditur verbis statuti, re- 
 linquitur dispositioni juris communis,(c£) (8) quae 
 quidem dispositio juris communis in hac materia talis 
 est, ut Fiscum excludat, extantibus ullis agnatis aut 
 cognatis. 
 
 Secondly, since the custom above mentioned seems 
 to divide an inheritance into four parts, and to consider 
 whether there are any relatives from the four quarters 
 without distinction, nevertheless, after mature con- 
 
 {d) Dd. ad D. 1, 3, 32. 
 
356 OPINIONS OF GROTIUS. [No. 
 
 sideration, it appears that the contrary contention 
 should prevail: (9) for in all doubtful matters 
 judgment should go secundum regulas generales 
 juris ejus, quod cuique civitati proprium est. (10) 
 And regula generalis juris Scabinici sive Zelandici, 
 quod reprsesentatio semper et in quocunque gradu 
 locum habet : imo quod reprsesentatio est causa 
 unica et adsequata juris succedendi. (11) For the 
 Schependoms law refers to all relatives in communi 
 stipite, and allows them to succeed to the inheritance 
 to which Me communis stipes is entitled, when such 
 relatives are in the same degree of relationship to 
 the deceased as others. Therefore, when no descen- 
 dants are found a proavo, the succession goes ad 
 abavum: (12) abavi autem et abavise numero sunt 
 octo : quare qui succedit loco unius ex abavis, ad 
 octavam duntaxat partem admittitur. That this 
 rule of representation is allowed, not only inter 
 descendentes ex proavis, but also inter descendentes 
 ab abavis, is quite clear, because etiam inter descen- 
 dentes ab abavis nulla est prselatio propinquioris in 
 gradu jure Scabinico : unde sequitur eos succedere 
 duntaxat reprsesentative. Quod si succedunt duntaxat 
 representative, ergo tantum pro ea parte, in qua 
 succederet repraasentatus. (13) If the meaning had 
 been otherwise, a gross absurdity would have been 
 the consequence, to wit, quod descendentes ab abavis 
 demum qui sunt remotiores a defuncto, essent 
 melioris conditionis quam descendentes a proavis : 
 nam descendentes a proavis, manifestum est non 
 ultra posse succedere, quam pro modo reprassenta- 
 
51.J OPINIONS OF GROTIUS. 357 
 
 tionis, ita ut potius filio fiat locus, quam successio 
 extra reprsesentationem extendatur : descendentes 
 autem ab abavis, posita sententia contraria, suc- 
 cederent amplius quam pro modo representations 
 et Fiscum excluderent. 
 
 (14) The argument quod omissum in statuto 
 suppletur a jure Communi is easily met, since it only 
 refers to places where the jus commune has been 
 adopted, and no contrary statute has been enacted. 
 The jus Romanum has, however, never been adopted 
 in Zeeland ; (15) but, on the contrary, the Schepen- 
 doms law has been considered there pro jure non 
 statutario, sed Civili. Moreover, the dictum of the 
 jurisconsults is applicable a majori : (16) quod 
 ubi statutum abrogat legem Communem in totum, 
 tunc novus casus occurrens, si est consequens et 
 proximus statuto, sine dubio definiri debet secun- 
 dum rationem statuti non legis abrogatse. (e) Hoc 
 enim si locum habet pro statuto contra legem recep- 
 tam, sed abrogatam, multo magis obtinere debet pro 
 jure Civili alicujus Gentis, contra legem nunquam 
 receptam. Of this we have a clear illustration 
 in the law of succession, when no relative of the 
 deceased was found, but only the husband or wife ; 
 for if we refer back to the Koman law tanquam in 
 casu omisso, it is clear that such husband or wife 
 would be preferred to the Fiscus, whilst the contrary 
 practice obtained in Holland and Zeeland. 
 
 (17) Further, it must be noted that in materia 
 
 (e) C. 7, 6, 1. 
 
358 OPINIONS OF GKOTIUS. [No. 
 
 statutaria the rule quod recurri deberet ad jus 
 Commune was thus restricted : nisi in statuto ex- 
 pressa esset ratio, aut ejus unica duntaxat reddi 
 possit ratio, quod perinde habetur, quasi ratio esset 
 expressa. (18) Nam in casibus argumentum ab 
 identitate rationis in casu omisso prsefertur dis- 
 positioni juris Communis. Exemplum illustre tra- 
 dunt Doctores, et inter alios Stephanus de Phedericis 
 in tractatu de interpretatione legum, et Jason in d. I. 
 de quibus, no. 1 6 : multos allegans consentientes, in 
 statuto tali, quod filius masculus excludit fceminam. 
 Ajunt enim hoc statutum ita extendendum, ut 
 excludatur etiam masculus per fceminam veniens. 
 Ratio enim, ajunt, quamvis expressa non est, unica 
 tamen reddi tantum potest, respectus scilicet agna- 
 tionis. (19) Ubi autem ratio pro expressa habetur, 
 facienda est inquiunt extensio etiam in correctoriis. 
 (20) The wording of the custom indicates nothing 
 to the contrary ; for although mention is there made 
 of the four parts, it must be understood that, first of 
 all, the inheritance was immediately divided into 
 such parts if there were descendants from . the side 
 of the paternal grandfather, the paternal grand- 
 mother, the maternal grandfather, and the maternal 
 grandmother ; but a subsequent subdivision was not 
 done away with if no descendants from these four 
 quarters were to be found. Yet the contrary opinion 
 can be adduced, in preference, from the general rule 
 stated in the custom, that no one can succeed to 
 more than devolves on the quarter or line he re- 
 presents — that is, from which he is descended. And 
 
51.] OPINIONS OF GEOTIUS. 359 
 
 as a further indication that the afore-mentioned 
 custom also, in respect of its provisions in favour of 
 the Treasury, must not be strictly interpreted, but 
 that it admitted extensionem non tantum ab identi- 
 tate rationis, verum etiam a simili, it happened that 
 a testator, who had disposed of his property by 
 testament to his legal heirs, had left one-third un- 
 disposed of; no relative of the deceased from his 
 paternal grandmother's side being found, the court 
 held that one-fourth of this third of the inheritance 
 went to the Treasury as unclaimed. 
 
 (21) In considering this point, the Roman law 
 does not affect the question where it lays down : 
 ii, qui apud hostes sunt, jure Eomano partem non 
 faciant, but that the other relatives of the deceased 
 in the same degree inherited so much more according 
 to the same law, or that the inheritance devolved on 
 the next in order of succession. In the Provinces of 
 Holland and Zeeland, however, the practice was from 
 earliest times, as was on several occasions decided, 
 that such portion to which the hostile persons were 
 entitled went to the Treasury, sine dubio ea ratione 
 quod nostro jure non homo sed lex ipsa partes faciat ; 
 et quod ese partes, quae vacare reperiuntur, ad Fiscum 
 pertineant. To act, however, with greater certainty 
 in this matter, depending as it does upon ancient 
 customs (which, through lapse of time, have little 
 weight with the Judges, and must therefore be clearly 
 proved), it would be advisable to make a thorough 
 investigation of all the accounts of the officers of 
 Zeeland, in order to see whether any instances can 
 
360 OPINIONS OF GKOTIUS. [No. 51. 
 
 be found where one-eighth part was allowed to the 
 Treasury. 
 
 The Hague, 
 30th November 1612. 
 
 In connection with this Opinion read Opinion No. 9 (3 (b.) 196), 
 which treats of intestate succession with reference to domicile and 
 according to the law of place rei sitae. 
 
OPINION No. 52. 
 
 HOLL. CONS. III. B. 311. 
 
 [GROTIUS II. 28, 24] 
 
 SUCCESSION AB INTESTATO. 
 
 How far representation allowed — Collaterals — Succession by 
 half-hand. 
 
 1. Representation is allowed as far as and in- 
 cluding the children of uncles and aunts. All 
 collaterals related to the deceased from one side 
 succeed with the half-hand. 
 
 2. Full collaterals get one-half, and the other 
 half is divided between the full and the half. Such 
 division also takes place when the deceased was 
 related to one side and leaves relations of full and 
 half blood. 
 
 A certain child died in the Ambacht of Charloos, 
 leaving an uncle and aunt who were full brother and 
 sister of his father, and also certain children of two 
 aunts who were half-sisters of his father, being from 
 his father's mother's side. The mother of the child 
 survived him, and I have been asked to whom the 
 inheritance of the said child should go. 
 
 361 
 
362 OPINIONS OF GEOTIUS. [No. 
 
 (1) I am of opinion that the said inheritance must 
 go, to the extent of one-half and one-fourth part, 
 to the full uncle and aunt, and the remaining fourth 
 to the children of the half-aunts ; for the 28th 
 Article of the Political Ordinance says that re- 
 presentation is allowed up to and including the 
 children of uncles and aunts ; and the 23rd 
 Article of the same Ordinance says that all colla- 
 terals related to the deceased from one side only 
 must succeed with the half -hand. (2) This, by the 
 Interpretation of the 1 3th of May (1594), was declared 
 to mean that full collaterals should have one-half, 
 and that the other half should be divided between 
 the full and the half. This Interpretation implies 
 that the said division will also take place if the 
 deceased of one side leaves relatives some of whom 
 are related to him in full and some in half blood. 
 
 KOTTERDAM, 
 
 Zlst March 1615. 
 
 This Opinion serves as an illustration of the provisions of 
 the Political Ordinance and the Edict of 13th May 1594, as 
 regards " succession with the half -hand." 
 
 Eepresentation is allowed as far as the fourth degree of 
 relationship. 
 
 The father, mother, and children were in the first degree. 
 
 The grandfather, grandmother, brother, sister, and grand- 
 children of the deceased were in the second degree. 
 
 The great-grandfather, great-grandmother, nephews and 
 nieces, uncles and aunts, and great-grandchildren were in the 
 third degree. 
 
 The great-great-grandfather and mother, children of uncles 
 
52.] OPINIONS OF GEOTIUS. 363 
 
 and aunts, children of nephews and nieces, were in the fourth 
 degree of relationship. 
 
 . The Modification contained in the Charter of 1661 will 
 affect the rights of the heirs if a case, like the present, 
 occurred at the Cape of Good Hope, for the surviving parent 
 would have succeeded to the whole of the estate. 
 
 In succession by the half-hand the estate is divided 
 between the full and half-blood relations in the manner 
 prescribed in § 2 of this Opinion. 
 
 Under the Charter of 1661, if one of the parents survive 
 the deceased son, such parent takes one-half of the intestate 
 estate and the full or half brothers and sisters take the other 
 half. But the brothers and sisters who are half-blood relations 
 of the deceased must be related to such deceased on the side 
 of the deceased parent. (a) 
 
 Thus A., a widower resident at the Cape, had two children 
 by a former marriage, B. and C. He then enters into a 
 second marriage with D., by whom he has two children, E. and 
 F. B. dies intestate. He leaves surviving (1) his father, 
 (2) his brother C, and (3) his half-brothers E. and P. 
 
 Since E. and F. are not related to him on the side of the 
 deceased parent, his father and brother C. will divide the 
 inheritance between them to the exclusion of E. and F.(5) 
 
 If A. had predeceased B., 0. would take one-half of B.'s 
 estate, and the other half would be divided between C, E., 
 andF. 
 
 The law as to intestate succession in Holland is fully 
 described by Grotius in his "Introduction," in the 28th 
 chapter of the second book. 
 
 Before the year 1580, a very great difference existed in 
 the laws and customs regulating succession ah ■ intestato 
 between the different Provinces of the Netherlands. The 
 Aasdoms law, which somewhat resembled the Boman law of 
 succession, prevailed in West Priesland and North Holland, 
 
 (a) Raubenheimer v. Executors of Van Breda, F. 111. 
 
 (J) Opinion of W. V. Helvetius, quoted by Tennant, Appendix No. 6. 
 
364 OPINIONS OF GKOTIUS. [No. 
 
 whilst the Sch&pendoms law obtained in Zeeland and South 
 Holland. 
 
 The operation of these laws was found to be most in- 
 convenient, and in 1580 the Political Ordinance * was pro- 
 mulgated, which adopted a middle course, although it in 
 most points followed the Schependoms law. 
 
 At the Cape of Good Hope, the laws relating to intestate 
 succession were introduced by the Dutch East India Company 
 under the Charter of 10th January 1661. This Charter 
 adopted as the law of succession ah intestato the Political 
 Ordinance of 1580, together with the Interpretation thereof, 
 proclaimed as an Edict of the States-General, dated 13th May 
 1594 ; and a Modification enacting, in case of the predecease 
 of one of the parents of the deceased, the surviving parent 
 shall enjoy the whole of the estate of the deceased, jointly 
 with the brothers and sisters of the deceased, whether full or 
 half brothers and sisters, or their children and grandchildren, 
 by representation, to wit : the father or mother of the de- 
 ceased, one-half, and the brothers and sisters or their children 
 or grandchildren, the other half. 
 
 A short but accurate history of the subject will be found 
 in the judgment of De Villiers, C.J., in the case of Bauben- 
 heimer v. Executors of Van Breda (Foord, 111), see also Spies 
 v. Spies (2 Menzies, 476). 
 
 The whole law of intestate succession at the Cape of Good 
 Hope, which has become the law of South Africa, except in 
 so far as it may have been altered by local statutes, will be 
 found fully discussed in Tennant's Notary's Manual, chap. 
 
 * Grotius is perfectly right where, in Book 2, 18, 11, he calls this 
 Statute the "Politique Ordonnantie." Decker, in his notes to Van 
 Leeuwen, Commentaries, 3, 16, 2, says that Van Leeuwen refers to the 
 Politicque Ordonnatic of 1580 (to be found in Groot Placaat Boek, hi. p. 
 502) ; this ought to read Ordinance of Police of 1st April 1580 (Groob 
 Placaat Boek, i. p. 330). Upon reference to the Placaats, it will be found 
 that the mistake is Decker's ; the titles being used controvertibly. In fact 
 the Extract from the Political Ordinance (G. P. B. vol. iii.) is merely a repeti- 
 tion of the first seventeen articles of the Ordinance of Police of 1st April 
 1580 (G. P. B. vol. i.). 
 
52.] .OPINIONS OF GROTIUS. 365 
 
 5, and in the Opinion of Mr. Willem Vincent Helvetius, 
 given in extenso by Tennant in Appendix No. 6 to his work. 
 
 On the 19th June 1714, the Governor in Council passed a 
 resolution by which the Board of Orphan Masters was 
 directed in all cases of intestate succession to follow the 19th 
 to 29th Articles of the Political Ordinance of 1580, and the 
 Edict of 13th May 1594, in so far as they had been adopted 
 by the Dutch East India Company's Charter of 1661. 
 
 The following are the provisions contained in the 19th to 
 29th Articles of the Political Ordinance of 1st April 1580.(^) 
 
 Article 19 repeals the laws and customs previously in 
 force in cases of succession ah intestato, and directs that, in 
 the absence of any testamentary disposition, the following 
 laws shall be adopted within the countries of Holland and 
 Friesland. 
 
 20. Children and other lineal descendants shall succeed 
 in infinitum to the estate of their parents (e) per stirpes or 
 by representation (in right of their deceased parents). 
 
 21. On failure of children and other descendants, the 
 father and mother, if both are living, shall succeed their 
 children as their universal heirs. 
 
 22. But the parents, or either of them, failing, the 
 brothers and sisters of the deceased, and their children and 
 
 (d) The translation has been taken over from Tennant's Notary's Manual, 
 chap. 5. 
 
 (c) It is necessary to consider the rights of illegitimate children in con- 
 nection with this article. 
 
 Illegitimate children cannot succeed to the estate of their father or of 
 his relations unless they have been legitimated, which can be effected in 
 one of two ways — by subsequent marriage of the parents, or by " an act 
 of grace" on the part of the sovereign. If legitimated in the latter 
 manner, the legitimation does not affect the relatives of the father who 
 have refused to consent thereto, and such children cannot inherit from 
 them (Grotius, 1, 12, 9). 
 
 As regards the maternal property, illegitimate children succeed equally 
 with the legitimate children, if any, unless the illegitimates are adulterous 
 or incestuous children (Grotius, 2, 16, 6 ; 2, 27, 28 ; 28, 31, 6. Eegtsgel. 
 Obs. 2, Obs. 41). 
 
366 OPINIONS OF GEOTIUS. .[No. 
 
 grandchildren by representation, shall succeed to the estate 
 of the deceased. (/) 
 
 23. It being understood, however, that half brothers and 
 sisters, and their children and grandchildren, as also all 
 collateral relatives whose consanguinity with the deceased 
 is derived from the one parent only, shall inherit with the 
 half -hand, and thus in so far as they are related to the 
 deceased by consanguinity. (#) 
 
 24. All descendants, and father and mother, brothers 
 and sisters, and their children, grandchildren, and other 
 descendants' failing, the uncles and aunts of the deceased 
 and their children shall inherit the estate per stirpes or by 
 representation. (Illegitimate collaterals succeed each other 
 if related on the mother's side. Grotius, 2, 27, 28, and Van 
 der Vorm Versterfregt.) 
 
 25. Unless the grandfather and grandmother of the 
 deceased be both living, in which case they shall be pre- 
 ferred to the uncles and aunts of the same side and to their 
 children, being the children or grandchildren of the said 
 grandparents; provided always there be no brothers or 
 sisters of the same side living to succeed to the inheritance 
 of the deceased. 
 
 26. If the parents or other ascendants fail, or if the bed 
 be separated, and one of the parents only be living, the 
 children or other descendants shall inherit the estate. 
 
 27. The estate of the deceased shall go to his next of 
 kin on the father's and mother's side, and be divided into 
 two equal parts, without any distinction being made, whether 
 the deceased inherited more from his father than from his 
 mother, or vice versa.Qi) 
 
 (/) This article was subsequently altered by the Modification enacted by 
 the Charter of 1661, referred to below. The surviving parent now shares 
 the inheritance of the deceased child with the brothers and sisters, the 
 illegitimate succeeding to each other equally with those who are legiti- 
 mate, if they are descended from the same mother, unless they are by two 
 different fathers, in which case they would inherit by the half -hand. 
 
 (g) See Interpretation, 13th May 1594. 
 
 (ft) In case the deceased left neither parents nor descendants (Rauben- 
 heimer v. Executors of Van Breda), F. 111. 
 
52.] OPINIONS OF GEOTIUS. 367 
 
 28. Eepresentation shall not be admitted among col- 
 laterals further than the grandchildren of brothers and 
 sisters, and the children of uncles and aunts inclusively, 
 and all other collaterals, being the next of kin of the 
 deceased, and in equal degrees, shall take per capita, to the 
 exclusion of all who are in a more remote degree of con- 
 sanguinity, the nearest excluding those more remote, (i) 
 
 29. Children having received from their parents marriage 
 gifts, or goods or money to establish themselves in trade, 
 shall be obliged, before they are admitted to succeed with 
 the other heirs to the estate of their parents, first to bring 
 into the joint estate the advancement so received, or the just 
 value thereof at the time such advancement was made to 
 them, in case the property was not valued on the occasion ; 
 but if a valuation was made, they shall bring into the colla- 
 tion the estimated amount, producing, however, the deed of 
 valuation ; and after the same shall be brought in, the whole 
 estate shall be divided into two equal parts, one of which 
 shall go to the surviving parent, and the other to the chil- 
 dren of the deceased. 
 
 The like distribution shall also take place in second, third, 
 and subsequent marriages.(ft) To secure, however, the 
 portions of minor children in the event of re-marriage of 
 the surviving parent, Act No. 12 of 1856 of the Cape 
 
 (i) Eaubenheimer v. Executors of Van Breda, F. 111. 
 
 (h) If, however, a mother having a child by a former marriage married 
 again in community of goods without ascertaining the paternal inheritance 
 of such child, the joint estate of the mother and second husband was 
 divided into three equal parts. The children of the first marriage took 
 one-third part thereof for their paternal inheritance ; the mother one- 
 third for her share, and the second husband the remaining third. In this 
 case the children succeeded to the inheritance of the father ab intestate, 
 and were therefore entitled to one-half of the joint estate of their de- 
 ceased father and mother. This half was commingled with the goods of 
 the mother and her second husband on their marriage. A third party was 
 thus associated in the community, and each took one-third of the joint 
 estate of the mother and her second husband. But if both the spouses 
 had children by former marriages, the estate was divisible into four parts, 
 the children on the paternal and maternal sides took on each side one- 
 fourth, and the parents divided the remaining moiety between them in 
 equal shares. Holl. Cons. D. 3 ; Cons. 16, u. 3. 
 
368 OPINIONS OF GEOTIUS. [No. 
 
 Colonial Parliament, entitled " An Act for better securing in 
 certain cases the inheritances of minors," provides that the 
 paternal or maternal inheritance of the minor children shall 
 be first duly ascertained and paid into the " Guardian's Fund," 
 or otherwise secured by deed of Kinderbewijs, and a certi- 
 ficate from the Master of the Supreme Court of the pay- 
 ment of such inheritance into the Guardian's Fund, or from 
 the Eegistrar of Deeds of the due execution of such deed 
 of Kinderbewijs, shall be delivered to the Eesident Magis- 
 trate,^) and a certificate from the Magistrate that it has 
 been made to appear to him that no reason exists, arising out 
 of unsecured inheritances of minor children, why the banns 
 of marriage should not be published,(m) shall be delivered 
 to the minister before the solemnisation of any such mar- 
 riage. In case of doubt or question as' to the minor's title 
 to inheritance, involving matter of law, the Magistrate may 
 decline to take upon him to determine without legal advice, 
 and may require the party applying for his certificate to 
 state, under the inspection and subject to the correction 
 of such Magistrate, a case for the written opinion of Her 
 Majesty's Attorney-General of the Colony, and to obtain such 
 opinion for the information of such Magistrate, who shall 
 grant his certificate in case the Attorney-General shall be 
 of opinion that the minors are not by law entitled to any 
 inheritance ; but the certificate must be withheld if no such 
 opinion is given, or in case no opinion of the Attorney- 
 General be produced. (n) The provisions of the Act No. 12, 
 1856, shall apply, mutatis mutandis, to all marriage officers 
 appointed under Act 16 of 1860, and in every such case no 
 certificate, as before mentioned, will be required.(o) 
 
 Interpretation of May 13, 1594. — It was found that the 
 Ordinance of 1580 required elucidation. An interpretation 
 by Edict was therefore proclaimed on the 13th May 1594, 
 
 (l) Act No. 12, 1856, § 1. 
 
 (to) Act No. 12, 1856, § 2. 
 
 (») Act No. 12, 1856, § 3. 
 
 (o) Tennant's Notary's Manual, chap. 5. 
 
52.] OPINIONS OF GROTIUS. 369 
 
 stating that the order of succession was framed with the 
 intent and meaning that half brothers and sisters, and their 
 children and grandchildren, should succeed by representation 
 with the half-hand, if both the parents of the deceased be 
 dead. In such case the full brothers and sisters, or their 
 children or grandchildren by representation, related to the 
 deceased on the side of the father and mother, shall take one- 
 half of the goods, and shall divide the other half equally with 
 the half brothers and sisters, or their children and grand- 
 children by representation, related to the deceased on one 
 side only ,{p) and the half brothers and sisters, and their 
 children and grandchildren by representation, shall take 
 the whole of the goods, if only that parent of the deceased 
 be dead by whose side the half brothers and sisters are 
 related to the deceased, and the same distinction shall be 
 observed among all remoter collaterals related on one side 
 only, in their respective degrees of consanguinity, (q) 
 
 The descendants of the grandchildren of brothers and 
 sisters related to the deceased in the fifth or remoter degree 
 shall be preferred in the succession to the grandfather and 
 grandmother and other ascendants, and to the uncles and 
 aunts, and their children and grandchildren or remoter 
 descendants, and they shall take per capita, and not per 
 stirpes; and if either the grandfather or grandmother be 
 dead, not only the ascendants, but also all those who are re- 
 lated to the deceased on the side of the deceased parent only, 
 shall be debarred from the inheritance of the deceased, and 
 the inheritance shall be divided into two parts, one of which 
 shall go to the father's, and the other to the mother's side ; 
 and if both the grandfather and grandmother of the deceased 
 be dead, the whole inheritance shall go to the side of the 
 deceased parent ; and the same rule shall be observed with 
 
 {p) For the application and illustration of this rule, see Opinion No. 52 
 (Holl. Cons. 3 (b.) 311). 
 
 {q) If there are half brothers and sisters on both sides, the full brothers 
 and sisters divide one-half of the estate with the half brothers and sisters 
 on the father's side, and the other half with those on the mother's side. 
 Van der Linden, 1, 10, 2. 
 
 2 A 
 
370 OPINIONS OF GROTIUS. [No. 
 
 regard to those successions that has been laid down in 
 respect to the halves and further subdivided parts above 
 mentioned. 
 
 On the 10th January 1661 the States-General granted a 
 Charter to the Dutch East India Company with reference to 
 the law of intestate succession in the territories under the 
 jurisdiction of the Company. This Charter, therefore, also 
 applied to the settlement at the Cape of Good Hope. The 
 Charter enacted that the Political Ordinance of 1580 should 
 be adopted in the afore-mentioned territories, subject to the 
 Edict of 1594, and the following Modification, to wit : that 
 one of the parents of the deceased being dead, the surviving 
 parent shall inherit the whole of the estate of the deceased, 
 jointly with the brothers and sisters of the deceased, whether 
 full or half brothers and sisters, or their children or grand- 
 children by representation, to wit : the father or mother of 
 the deceased, one-half, and the brothers and sisters, or their 
 children or grandchildren, the other half. In such case, the 
 half brothers and sisters, or their children or grandchildren, 
 must be related to the deceased on the side of the deceased 
 parent ; and if the deceased left no brothers or sisters, but 
 brothers' and sisters' children or grandchildren, the children 
 or grandchildren of the brothers or sisters of the deceased 
 shall, in like manner, take by representation one-half of the 
 estate, and the surviving father or mother the other half; 
 and if there be neither brothers nor sisters, nor brothers' nor 
 sisters' children or grandchildren of the deceased living, in 
 such case the surviving father or mother shall succeed as 
 universal heir to the property of the deceased, and be pre- 
 ferred to all collaterals, but the immovable property of the 
 deceased shall follow the law of the place in which it is 
 situated. The order of succession at present in force, as 
 contained in the Ordinance, Interpretation, and Modification, 
 is as follows : — 
 
 (1.) The lineal descendants' children, grandchildren, 'and 
 further descendants per stirpes in infinitum ; the children in 
 equal portions, and the children of a deceased child taking 
 
52.] OPINIONS OF GROTIUS. 371 
 
 the share of that child jure representation's; illegitimate 
 children succeeding, to their mother's estate equally with 
 those who are legitimate. 
 
 (2.) On failure of children, grandchildren, and further 
 descendants, the parents or lineal ascendants in equal shares, 
 the mother succeeding her illegitimate child ; and if one of the 
 parents be dead, the surviving parent takes one-half, and the 
 brothers and sisters of the whole and the half blood the other 
 half, in equal proportions ; if the latter are related by the 
 side of the deceased parent, together with the representatives 
 of a deceased brother or sister, the illegitimate brothers and 
 sisters succeeding to each other equally with those who are 
 legitimate, if they are the offspring of the same mother. 
 
 (3.) In default of brothers and sisters or their descendants, 
 the surviving parent takes the whole estate. 
 
 (4.) Both parents being dead, the brothers and sisters, or 
 their children and grandchildren by representation, subject 
 to the interpretation of 13th May 1594, if they are half 
 brothers and sisters. 
 
 (5.) In defect of full brothers and sisters or their descen- 
 dants, the half brothers and sisters on the deceased father's 
 side take one-half, and those on the mother's side the other 
 half. The descendants of the brothers' and sisters' grand- 
 children take per capita, the nearest excluding those more 
 remote. 
 
 (6.) Grandfathers and grandmothers. 
 
 (7.) Uncles and aunts, with their children by representation. 
 
 (8.) The descendants of uncles' and aunts' children per 
 capita, the nearest excluding those more remote. 
 
 (9.) Great-grandfathers and great-grandmothers. 
 
 (10.) Great-uncles and great-aunts. 
 
 (11.) Their descendants per capita. 
 
 (12.) Great-grandfathers' and great-grandmothers' descen- 
 dants. 
 
 (13.) Their next descendants. 
 
 (14.) Great-grandfathers' and great-grandmothers' grand- 
 parents, or their descendants. 
 
372 OPINIONS OF GEOTIUS. 1 [No. 52. 
 
 (15.) Great-grandfathers' and great-grandmothers' great- 
 grandparents, or their next descendants. 
 
 (16.) The husband or wife of the deceased, on failure of kin. 
 
 (17.) The Crown. 
 
 To meet the numerous cases of native residents in the 
 native locations of the Colony dying intestate, and leaving 
 property to be administered and distributed according to 
 native customs and usages, "The Native Succession Act" 
 was passed, prescribing the mode in which such distribution 
 should take place. 
 
 In the Transvaal the laws, customs, and usages of the 
 native tribes are declared by law No. 4 of 1885 to be 
 effectual, unless they appear to conflict with the general 
 principles of civilisation as recognised by the civilised world. 
 Thus the succession laws of the natives are considered 
 binding in native cases. 
 
OPINION No. 53. 
 
 HOLL. CONS. III. B. 312, & I. 86. 
 [GROTIUS II. 28, 14, & III. Cap. 2.] 
 
 Donations inter vivos — Prelegacy — Collation. 
 
 1. If a certain sum of money be given any one as 
 a donation inter vivos, and the donor does not leave 
 a like sum in his testament to his other heirs as a 
 prelegacy, but states therein where his property will 
 be found, and it is found that such sum of money is 
 brought up again as part of the capital, the money 
 must be collated in the estate. Et quare num. 4. 
 
 2. Relatum censetur inesse referenti. 
 
 3. Testator potest disponere de re heredis, et colla- 
 tionem inter collaterals introducere. (Cf. Opinion 
 No. 42.) 
 
 I have seen a certain decision of the Provincial 
 Raad, given on the 16th May 1614, in the cause 
 between Govert de Prees, holding the power of 
 attorney of Eeyer ter Avest and of Geertgen ter 
 Avest of Rommerswaal, widow of the late Hendrik 
 Schinkel, and of Arent Harmans and Outgert Pieters 
 Spiegel, guardians of the children of Aaltgen Wich- 
 mans, and Jeuriaan Timmermann, procurator of the 
 Protectors of the poor of St. George of Eiga, and of 
 the other heirs of Hans ter Avest, appellants, on the 
 
 373 
 
374 OPINION'S OF GEOTIUS. [No. 
 
 one side ; and Arent ter Avest of Riga, for himself 
 and as heir of Hendrik Muller, husband and guar- 
 dian of Trijn ter Avest, Hendrik Kok and Thielman 
 Borrewijn, guardians of the orphans of Arent ter 
 Avest, senior, being also his heirs, respondents, of 
 the other side. I have also seen the testament of 
 the said Hans ter Avest, passed and sealed on the 
 3rd June 1609, and certain passages appearing in 
 two separate books which belonged to him. 
 
 (1) In reply to the questions submitted, I am of 
 opinion that, although it may appear from the letter 
 written by Hans ter Avest, testator, to Hendrik 
 Muller, as also from the word " to honour " (vereeren) 
 used by him in one of the said books, that it may be 
 concluded that he had given the thousand " daalders " 
 therein mentioned as a donatio inter vivos to Trijn, 
 Arent, and Hans ter Avest, junior ; nevertheless, the 
 said Hans ter Avest, senior, was not debarred from 
 stipulating that the said donees should receive so 
 much less out of his estate, in order to preserve an 
 equality of distribution among his relations. Although 
 this is not expressly stipulated and provided in the 
 testament, yet it can be inferred from the words of 
 the testament that such was his intention and mean- 
 ing, the words reading as follows : — " To know where 
 my property is to be found, I have made an inventory 
 in my ledger, folio 212." For in the said book and 
 page the above-mentioned thousand " daalders " are 
 brought up as part of the capital which was to be 
 distributed. This appears to be of like effect as 
 if the testator had said that he wished the afore-. 
 
53.] OPINIONS OF GROTTOS; 375 
 
 mentioned thousand " daalders " to be again brought 
 into the estate by those who had received them, they 
 being co-heirs of the testator. (2) Cum relatum 
 censeatur in esse referenti. (3) Et liceat testatori 
 disponere etiam de re heredis, et sic collationem 
 etiam inter collaterales introducere. (4) This in- 
 terpretation is greatly strengthened by a passage in 
 the memorandum-book of the testator, written in his 
 own hand, where he expressly states that he had 
 given the sums in question, together with sundry 
 others, to his relatives, on account of his estate (that 
 is, of his succession). It is also strengthened by the 
 customary practice of the testator, who advanced 
 sundry sums to most of his relatives, but always on 
 the understanding that these should be deducted 
 from their inheritances, so as better to preserve an 
 equal distribution. 
 
 It appears, therefore, that the afore-mentioned 
 appellants, who had been unsuccessful according to 
 the decision of the Provincial Raad, are well advised 
 to appeal to the High Court. Further, to come to 
 details, it appears that the book wherein the passage 
 just quoted occurs was not merely a waste book, but 
 that the testator had entered many matters of im- 
 portance therein, with regard to which he desired 
 that the book should be considered correct, and that 
 the liberality shown by him towards some of his 
 future heirs should not be to the disadvantage of the 
 other co-heirs. 
 
 Rotterdam, 
 
 11th February 1615. 
 
376 OPINIONS OF GEOTIUS. [No. 53. 
 
 This opinion also occurs in Vol. I. Cons. 86. The head- 
 note there reads as follows : — 
 
 " A testator having made a donation inter vivos 
 to one of his heirs, but under such circumstances 
 that it was placed in his books for the purpose of 
 valuing his estate, it must be considered that the 
 testator had made the said donation subject to its 
 being brought into collation after his death." 
 
 At the foot of the same Opinion appears the following 
 note : — 
 
 " I have seen the above advice of Mr. Grotius, 
 and have considered everything. 
 
 " I am of opinion that the learned counsel has 
 well advised, both by reason of the principles of 
 law therein set forth, and because, according to law, 
 all writings of the testator, although private, even 
 mere memoranda or ledgers, may serve to corroborate 
 the interpretation of the testator's testamentary dis- 
 position, in so far as they are private documents 
 referring to the property left by the, testator of 
 which he has disposed, as is more fully discussed by 
 Simon de Praetis in Tract, de interpretatione ultimae 
 voluntatis, lib. 5, interp. 2, dubit. 3, fol. 5, num. 
 41-46, ubi allegat. 11. et DD. 
 
 Reynier Ingel. 
 
 " Amsterdam, 
 
 nth February 1615." 
 
OPINION No. 54. 
 
 HOLL. CONS. III. B. 159. 
 [GROTITJS II. 28, 14, & II. 41, 1, 8, 20.] 
 
 Collation — Feudal property — Educational expenses — How limited 
 and when collated — Marriage expenses, when collated — Gifts 
 — Legitimate portion does not include maternalfeuds — Legiti- 
 mate, how reckoned in respect of purchased feuds — A widow 
 entitled to a child's portion, and a second wife has no claim 
 on feuds under the former marriage — Grant of free disposi- 
 tion {Octroy) — Personal feudal services. 
 
 1. Feuds standing in the wife's name, especially 
 ancient fees (oude leenen), are not considered as in- 
 cluded under a universal institution in favour of the 
 husband ; but feuds purchased by the husband are 
 not liable to make compensation on that account to 
 the children for their inheritance. 
 
 2. Under a general acknowledgment that the 
 maternal property had been received by the chil- 
 dren, are not included feuds belonging to her ; and 
 ample relief will be granted in so far as this gene- 
 ral acknowledgment has been extended to these 
 feuds. Et 3. 
 
 4. Children are entitled to claim that their legiti- 
 mate portions be paid' out in full, and feuds bought, 
 or their purchase price, must be brought up for the 
 purposes of valuation of the property. When the 
 
 377 
 
378 OPINIONS OF GROTIUS. [No. 
 
 legitimate portions have been paid in full, the sur- 
 viving father is not bound to make any further 
 compensation to the children. 
 
 5. Costs of education and clothing, when reckoned 
 as part of the maternal inheritance, cannot be again 
 charged against the legitimate portions of the pater- 
 nal property due to the children. When any one is 
 intrusted with the education of children till they 
 arrive at a certain stage of proficiency, such educa- 
 tion cannot be limited to eighteen years. 
 
 6. Moderate marriage expenses incurred conform- 
 ably with the rank of the children must be brought 
 into collation ; but not expenses incurred by the 
 father for his honour, or beyond what the rank 
 of the children requires. Gifts must also be col- 
 lated. 
 
 7. A widow cannot receive more under her 
 husband's testament than liberiprimi gradus. Quod 
 nepotibus relictum est, non est relictum filio et 
 filia3. 
 
 8. No restitution need be made to the second wife 
 of feuds purchased during the first marriage. 
 
 9. A grant which gives the feudatory leave to 
 dispose of all feuds by will must be taken to apply 
 to small as well as large fees. Personal service is 
 no longer required. 
 
 Quceritur. 
 
 Maria de Vos left two children, Elizabeth and 
 Marinus Cesars, and had made a certain testament 
 
54.] OPINIONS OF GROTIUS. 379 
 
 before their birth, leaving them a legal fourth of the 
 lands in her estate, on condition that her husband 
 should retain the same for the children until they 
 became of age, and had reached a certain approved 
 state. He was to bear all costs of education and 
 clothing during that period, but in consideration 
 thereof, he could enjoy the usufruct of the lands 
 belonging to them ; whether the said disposition 
 must be taken to embrace the ambachten of the 
 county, tithes, and interests appertaining thereto, 
 since, according to feudal law, the children are en- 
 titled to compensation to the amount of the purchase 
 price, and whether the general heirs must pay the 
 children the sixteenth penny (6 '25 per centum) on 
 these in addition to their hereditary portion ? 
 
 (1) I am of opinion that if the said Maria de 
 Vos had any feuds standing in her name at the 
 time of her death, these would devolve upon her 
 children, and would not be included under the 
 universal institution made in favour of her husband, 
 especially if they were ancient feuds. (a) The hus- 
 band is, however, not bound to make restitution 
 to the children as regards the feuds purchased by 
 him, since by the institution and subsequent adiation 
 his rights and liabilities have become merged. 
 
 (2) If this is the case, will their claims be barred 
 by reason of the acknowledgment made by them, 
 when they became of age, that they had received 
 their maternal portions without having seen them, 
 
 (a) Per ea quae tradit. Jason, de usibus feudorum, No. 46. 
 
380 OPINIONS OF GROTTOS. [No. 
 
 and had signed metu reverentiaque paternaf — The 
 general acknowledgment by the children that their 
 maternal portions have been satisfied must be 
 understood in case of doubt as secundum subjeetam 
 rnateriam, that is, with reference to that which was 
 disposed of by testament ; and the feuds belonging 
 to their mother would not be included under this. 
 Generalis enim quietatio ad feuda non trahitur.(fr) 
 
 (3) Whether they would obtain a " mandament of 
 relief" with " committimus " to the Gerechte van der 
 Goes ? — Ample relief will be granted as far as the 
 general acknowledgment would be extended to the 
 feuds. 
 
 (4) Item, even if the said signatures were to bar 
 their claims to the tithes, ambachten, and their 
 interests'? — The answer to this has been already 
 given. 
 
 (5) Item, since the tithes, ambachten, and their 
 interests brought up in the estate have been allowed 
 to go to the father by the Orphan-Masters, whether 
 such allowance can bar the rights of the children 
 without giving them a claim for restitution, especially 
 if it is evident from the inventory that the legitimate 
 portions of the two children were not satisfied in 
 full by the lands and ready cash left to them, and 
 no mention was made in the testament of any 
 feuds ?— The children are entitled to claim to have 
 their legitimate portions supplemented when these 
 have not been paid in full and feuds bought ; or 
 their purchase price must be brought up for the 
 
 (6) Jason de tract, de usibus feudorum, No. 45. 
 
54.] OPINIONS OF GROTTOS. 381 
 
 purpose of valuation of the estate in order to esti- 
 mate the legitimate. When the legitimate of the 
 children has been satisfied in full, the father is not 
 bound to make any further restitution. 
 
 (6) Item, whether my father can legally attempt 
 to charge against my legitimate portion the excess of 
 my costs of education, &c, above my yearly income 
 after my eighteenth year, since my mother's testa- 
 ment clearly states "that my father must support 
 me and have me educated till I shall have reached 
 an approved state," cum expense studiorum non 
 veniant in collationem 1 — Since the father is bound 
 by the testament not only to support and clothe the 
 children, but also to have them educated, and that 
 this shall be pars hereditatis maternce, these cannot 
 again be charged against the children in legitimam 
 hereditatis paternce. And the father cannot limit 
 the costs of education which he had to incur under 
 the testament to eighteen years, seeing that the 
 testatrix explained what she meant by majority, 
 namely, when the children had arrived at a certain 
 approved state. 
 
 (7) Item, since our father has given us our marriage 
 expenses, whether we must bring these again into 
 collation, firstly, as far as Cesar is concerned, for our 
 father promised to pay them in the ante-nuptial con- 
 tract, and did not mention in his will that he wished 
 the expenses brought in collationem, et prsesertim 
 cum expensse nuptiarum magis fiant parentum gratia 
 quam liberorum ; secondly, as regards Elizabeth 
 Cornells as well as Cesar 1 — I think that moderate 
 
382 OPINIONS OF GROTTOS. [No. 
 
 marriage expenses, according to the rank of the 
 children, must be collated, quia etiam donata con- 
 feruntur,(c) so that the promise in the ante-nuptial 
 contract does not annul this ; but if the father had 
 incurred marriage expenses for his own honour, and 
 beyond what the rank of the children required, such 
 costs need not be collated, 
 
 (8) Item, since according to the lex hac edictali, 
 C. de secundis nuptiis, a widower cannot leave his 
 second wife more than a child's portion — that is, as 
 much as the least that is left to his children by his 
 first marriage — whether the widow can receive more 
 under the testament than an amount equal to the 
 legitimate portions of the children above mentioned, 
 seeing that her children were instituted to the rest 
 titulo institutionis, et bona eorum puerorum, non 
 sunt eorum bona ? — The widow cannot receive more 
 under the testament of her husband than liberi primi 
 gradus are entitled to, et quod nepotibus relictum 
 est, non est relictum filio et filiee. 
 
 (9) Item, since certain tithes and ambachten have 
 been purchased during my father's first marriage, 
 whether his second wife is entitled to any restitution 
 in respect thereof? — The second wife is not entitled 
 to any restitution in respect of feuds bought during 
 the first marriage. 
 
 (10) Item, since our father has left the said tithes, 
 ambachten, and interests to his children equally, and 
 some ambachten brought in only five stuivers or 
 eleven groats per pound, whether such a disposition 
 
 (c) Dd. in auth. ex testam. C. 6, 36. 
 
54.] OPINIONS OF GEOTIUS. 383 
 
 can hold good notwithstanding the grant of free 
 disposition, cum hoc sit intelligendum in suis 
 terminis, and that by such disposition ipsum feudum 
 non venit caducum, so that an non mutaretur natura 
 feudi, quod conceditur ratione servitii prsestandi, 
 tempore necessitatis ? — The grant allows free dis- 
 position over all feuds, and it is therefore applicable 
 to small as well as large feuds, cum quoad hsec, 
 feuda redigantur ad instar allodialium, especially 
 since personal service is no longer required. 
 
 Ad. (1) Compensation. — In treating of this matter Grotius 
 says (2, 41, 8) : " "When the feud has been purchased by the 
 deceased, or has been surrendered by him out of his own 
 property and received back in fee, the son or other descen- 
 dant of the first feudatory must, for the benefit of the widow 
 and co-heirs, make compensation to the extent to which the 
 estate has been diminished thereby, by bringing its true 
 value into the common estate before any division thereof. 
 If, however, the purchase price has not yet been paid, or if 
 the feudal property has been mortgaged for the same, the 
 burden falls on the successor to the feud, who will have to 
 guarantee the other heirs against all liability on that account. 
 Such compensation is not due by other feudal successors, 
 who are not descendants of the grantee, in favour of their co- 
 heirs, but it is in favour of the widow." 
 
 Ad. (2) Belief in case of error. — See Chapter on Wills, 
 § 10, p. 209. 
 
 Ad. (5) Education of children. — The words " certain state " 
 and " stage of proficiency " have been taken over by South 
 African notaries, who render it " other approved state " when 
 inserting the clause referring to the maintenance and educa- 
 tion of the minor children. 
 
 See Chapter on Wills, § 10, p. 211. 
 
384 OPINIONS OF GKOTIUS. [No. 54. 
 
 Ad. (6) Gifts.— -If I read the Opinion correctly, Grotius 
 does not intend to imply that all gifts must be collated, but 
 all dotal gifts ; for he is speaking of marriage and marriage 
 expenses. 
 
 In his Introduction (2, 18, 11) he says : " Whatever may be 
 given to a child inter vivos, for the purpose of marriage or 
 otherwise, must be brought into account in computing the 
 legitimate portion." The words " or otherwise " must refer to 
 purposes ejusdem generis, as marriage. What these are is fully 
 explained by reference to Book 2, 28, 14, where he says r 
 " Children who have received any property or money for the 
 purposes of their marriage, or to start them in trade or 
 business " (and he might have added " or in any other pro- 
 fession"), must return or collate such property, or its true 
 value at the time of the donation." 
 
 Under these circumstances it cannot be argued that Grotius 
 contends for the collation of all donations, whether given 
 sirrypliciter or not. (See also notes on " Collation," infra, pp. 
 391-395.) 
 
 Ad. (7) Since legacies and gifts to the grandchildren 
 cannot be considered as gifts to the children, the lex hac 
 edictali will not take such legacies and gifts into considera- 
 tion in computing the proper share that may be left to the 
 spouse under a second marriage. For the same reason the 
 children need not collate gifts to the grandchildren. 
 
OPINIONS OF GROTIUS. 385 
 
 DONATIONS, PRELEGACIES, AND 
 COLLATION. 
 
 Opinions No. 53 (Holl. Cons. 3 (b.) 312, and 1, 86), and No. 54 
 (Holl. Cons. 3 (b.) 159). 
 
 Donations are of three kinds : — 
 
 1. Inter vivos. 
 
 2. Mortis causa. 
 
 3. Propter nuptias. 
 
 A Donation or Gift Inter Vivos is a promise whereby a 
 person, without being liable to another, out of liberality 
 binds himself to give that other something belonging to 
 himself, without receiving anything from him in return 
 or stipulating for anything for his own benefit.^) 
 
 The following authorities may be consulted on the 
 subject : — 
 
 Grotius, Introduction, Bk. 3, chap. 2, and 2, 14, 2. 
 
 Schorer ad Grot. 3, 2, sees. 3, 5, 8, 9, 11, 12, 13, 15, 18-21, 
 and 23. 
 
 Van der Keessel, Theses Selects, 485-493. 
 
 Van Leeuwen (R. H. R.), Bk. 4, chap. 30. 
 
 Van Zurck, Codex Batavus, sub voce " Donation.'' 
 
 Huber, Hedendaagsche Rechtsgeleerdheid, 3, 14. 
 
 Domat, Civil Law. 
 
 Woordenboek Holl. Regtsgel. (Aanhangsel) "Donatio inter 
 vivos." 
 
 Lybreght's Notaris Ambt. 1, 16. 
 
 Voet ad Pand., 39, 5. 
 
 Tennant's Notary's Manual, chap. 6, p. 256. 
 
 In the case of Oliphant v. Grootboom,(e) donations inter 
 vivos and mortis causa were fully discussed and the authorities 
 bearing on the subject referred to. 
 
 Grotius states that gifts from parents to their minor 
 
 (d) Grotius, Introd. 3, 2, 1. 
 ' (e) 3 E. D. C. p. 9. 
 
 2 B 
 
386 OPINIONS OF GEOTIUS. 
 
 children in potestate are invalid. This is true of the Koman 
 law, but under the Koman-Dutch law such donations were 
 valid. Acceptance could be made by a public person on 
 behalf of the minor or by the child upon his attaining the 
 age of majority.(/) Gifts over 500 aurei (£500) had to 
 be registered. This law has been adopted at the Cape of 
 Good Hope.(^) 
 
 In order to be valid and effectual the donation must be 
 accepted. 
 
 If the donor gives the donee by unregistered deed a piece 
 of land, his executor after his death is bound to give the 
 donee transfer. If the donor's estate became insolvent before 
 transfer was passed, the dominium of the ground would vest 
 in the trustee for the benefit 'of the creditors.(A) 
 
 As between donor and donee the gift holds good even if 
 above 500 aurei and unregistered. Therefore, if a grand- 
 father makes a donation inter vivos of land to his grandson, 
 a minor, and the father of the minor accepts the gift on his 
 behalf, an action can be brought to obtain transfer in the 
 name of the minor, (i) 
 
 When the donation is accepted and completed by the 
 happening of the condition (if such be imposed), the donee 
 acquires a personal right to claim the property. (&) 
 
 Such rights cannot, however, prevail against the claims of 
 creditors in case of insolvency. (f) 
 
 If the donation caused an excess of the liabilities over the 
 assets of the donor, the donation will be invalid to the 
 extent of the excess caused by it.(m) 
 
 A donation made by a testator before his second marriage, 
 
 (/) Schorer ad Grot. 3, 2, 8. Van der Keessel, Thes. 485. Groenewegen 
 de Leg. Abrog. 
 
 (g) Elliot v. Elliot's Trustees, 3 Menz. 86. Thorpe's Executors v, 
 Thorpe's Tutor, 4 J. 488. 
 
 (h) Melck, Executor of Burger v. David and Others, 3 Menz. 468. 
 
 (i) Barrett v. Executors of O'Neil, Kotze, Trans. Rep., p. 104 ; c/. Melck 
 v. David, 3 Menz. 468. 
 
 (Is) Grotius, 3, 2, 14. 
 
 (Z) Trustees of Brink v. Mechan and Others, 1 E. 209. 
 
 (m) Trustee of Otto v. Brister and Others, 5 J. 24. 
 
OPINIONS OF GROTIUS. 387 
 
 and accepted by the donee, and therefore a debt actually- 
 existing against the joint estate during the subsistence of 
 the marriage, but made payable after the testator's death, 
 ceases with the dissolution of the marriage by his death to 
 be a joint liability, and becomes demandable from his separate 
 estate, (n) 
 
 A deed of donation, whereby a certain sum of money is 
 left to a donee, but upon the condition that the donor should 
 retain the management of the fund, and have the use of the 
 interest during his life, can only take effect after the death 
 of the donor, (o) 
 
 A donation inter vivos, once completed, is valid and irre- 
 vocable, but this does not prevent the donor from imposing 
 collation of snch gift, if the donee takes under his will.(p) 
 
 Donations between husband and wife stante matrimonii?, 
 even when married by ante-nuptial contract, are not allowed, 
 unless confirmed by death, (q) Eeciprocal gifts which amount 
 to a bona fide exchange are valid. 
 
 If the creditors or donating spouse do not impeach the 
 donation, it will remain of force. 
 
 The case of the Union Bank v. Spence (4 J. 339) clearly 
 shows the attitude taken up by courts of law in respect of 
 such donations. The facts were briefly as follows. Spence 
 and his wife (the' respondent) were married by ante-nuptial 
 contract, which gave her the free administration of her pro- 
 perty. Spence after his marriage held certain shares in 
 the Union Bank. Some of these shares he made over to his 
 wife without consideration. She agreed thereto, and autho- 
 rised her husband to sign the trust-deed of the Bank on her 
 behalf, and the shares were thereupon registered in her name. 
 The Bank did not know that the shares had been given by 
 way of donation. Subsequently a call of £5 per share was 
 
 (m) Reis v. Executors of Galloway, 1 Menz. 186. Of. Van Veuren v. Van 
 Veuren, 5 J. 415. 
 
 (o) Trustees of Brink v. Meohan and Others, 1 R. 209. 
 
 (p) Opinion No. 53 (Holl. Cons. 1, 86, and 3 (b.) 312). 
 
 (?) Hall v. Hall's Trustee and Mitchell, 3 J. 3. Union Bank v. Spence, 
 4 J. 339. 
 
388 OPINIONS OF GEOTIUS. 
 
 made by the Bank, which Mrs. Spence was unable to pay. 
 The Bank thereupon moved for the sequestration of her 
 estate. For the respondent it was contended, that since 
 such a donation was null and void, no liability was incurred 
 by her ; but the court found that the circumstances dis- 
 closed a binding contract between the Bank and Mrs. Spence, 
 and that she was therefore liable for all calls on the shares 
 in question, in the same manner as she would have been 
 entitled to all dividends accruing therefrom. 
 
 From the judgment delivered in the above case, it seems 
 that such donations will rather be considered voidable than 
 void. 
 
 The spouses are at liberty to contract among themselves 
 stante matrimcmio, provided such contracts do not constitute 
 either a direct or indirect donation, (r) 
 
 A transferee with notice is in exactly the same posi- 
 tion as the donor, and the donee can claim the gift from 
 either.(s) 
 
 A donation given upon condition that it shall only vest 
 after the death of the donor is valid; but if a written 
 document be executed which purports to be a donation, but 
 is virtually a testamentary writing, it cannot take effect if 
 unwitnessed.(i) 
 
 A Donation Mortis Causa is a gift made by a donor in 
 contemplation of death or threatening danger. 
 
 Mortis causa donatio est, quee propter mortis fit suspi- 
 cionem, cum quis ita donat, ut si quid humanitus ei con- 
 tigisset, haberet is, qui accepit: In summa, mortis causa 
 donatio est, cum magis se quis velit habere, quam eum cui 
 donatur, magisque eum cui donat, quam heredem suum.(tt) 
 
 It partakes of the nature of a legacy, and must be left 
 in the same way. 
 
 (r) Keis v. Galloway, 1 Menz. 186. 
 
 (s) Thompson o. Malgas, 6 J. 281. 
 
 (t) Van Wijk v. Van Wijk's Executor, 5 J. 1. 
 
 (u) Justinian, Instit. 2, 7, 1. 
 
OPINIONS OF GEOTIUS. 389 
 
 Donations mortis causa resembled legacies in the following 
 points : (v) — 
 
 (1.) Neither required formal acceptance in order to be 
 valid and effectual. 
 
 (2.) Like legacies, they have to be executed before a notary 
 and two witnesses, or before two witnesses under-hand. 
 
 (3.) The donation and legacy are both revocable. 
 
 (4.) Donee or legatee predeceasing the donor or testator, 
 the gift or bequest reverts to him. 
 
 (5.) Both are subject to the deduction of the Falcidian 
 fourth (where such still obtains). 
 
 They differ from legacies in that — 
 
 (1.) They do not lapse upon non-adiation. 
 
 (2.) They revert to the donor upon his recovery from 
 illness. 
 
 (3.) They are void, if given by minors (according to 
 Grotius), but since they have now become assimilated to 
 legacies in respect of the formalities required for their 
 execution, any one who is capable of testating can also 
 make a valid donation mortis causa.(x) 
 
 If the estate is insufficient to pay all such donations in 
 full, they must abate ratably. 
 
 If a donation is left to two or more donees conjunctively, 
 and one predeceases the donor, the others acquire his share 
 by accretion. 
 
 Donations mortis causa are subject to succession duty at 
 the Cape (Act 5 of 1864). 
 
 (t>) Van Wijk v. Van Wijk's Executor, 5 J. 1. See argument in Brink 
 and Others v. Meyer, 1 Menz. 552. Van der Keessel, 492, 493, and Schorer 
 ad Grot. 3, 2, 22. Grotius, 3, 20, 22, 23. 
 
 (x) Van der Keessel, Thes. 493. See the case of Oliphant v. Grootboom, 
 3 E. D. C. 9, where the requisites of a donatio mortis causa are dis- 
 cussed. 
 
 * The following writers may be consulted on this subject : — Grotius, 2, 
 14, 2 ; 3, 2, 22-26. Van Leeuwen, Cens. For. i. 1, 4, 12, 16, and E. H. R. 
 4, 30. Van der Keessel, Thes. 492-493. Schorer ad Grot. 3, 2, 22-26. 
 Huber, Hedend. Kegtsgel. 2, 35. Domat, Civil Law, tit. Donations Mortis 
 Causa. Voet, 39, 6. Lybreght's Notaris Ambt. 1, 17. Tennant, Notary's 
 Manual, 3, 19. 3 E. D. Court Reports, p. 9. 
 
390 OPINIONS OF GEOTIUS. 
 
 A Donation Propter Nuptias is a gift given by one of the 
 intended spouses to the other in contemplation of marriage. 
 
 Such gifts are usually embodied in the ante-nuptial con- 
 tract, but they may be given in any other manner before 
 marriage, for gifts inter conjuges stante matrimonio are not 
 allowed. 
 
 The term has obtained a wider significance than was given 
 to it under the Roman law. The expression Marriage 
 Settlement is the generic term in modern law which most 
 nearly renders both dos and donatio propter nuptias. 
 
 The Code defines it as a contribution or settlement made 
 by a man to and upon the woman to whom he is betrothed, 
 and intended to be devoted to the expenses of the marriage, (y) 
 (Voet, 23, 3, 21, 22 ; Van Leeuwen, Oens. For., 1, 12, 1, 2, 
 3, 4, 5.) 
 
 In addition to the three kinds of donations above given, a 
 fourth distinct kind is introduced by some writers, viz. : — 
 
 The Donatio Impropria vel Remuneratoria, given by a donor 
 in recompense for services rendered. This kind of donation 
 is not subject to the restrictions of registration imposed upon 
 donations inter vivos, or of formal execution imposed upon 
 donations mortis causa.(z) 
 
 All donations are given vnthout valuable consideration, 
 although the causa may be affection, friendship, beneficence, 
 or gratitude. 
 
 The difference between causa and consideration and justa 
 causa and valuable consideration is treated of by Kotze, O.J., 
 in his translation of Van Leeuwen's Roman Dutch Law, 
 vol. ii. p. 30. 
 
 Prelegacies. — A prelegacy was a bequest left to an heir to 
 be paid out of the inheritance before it was divided among 
 the heirs ; in other words, it was a legacy left to an heir over 
 and above his inheritance, (a) 
 
 (y) See also Justinian, Introd. 2, 7, 3. 
 
 (z) Brink and Others v. Meyer, 1 Menz. 552. 
 
 (a) Digest, 28, 5. Hunter's Roman Law, p. 608. 
 
OPINIONS OF GROTIUS. 391 
 
 The heir need not collate the prelegacy.(6) 
 
 He could repudiate the inheritance and accept the pre- 
 legacy.(e) 
 
 If made unconditionally, the heirs of the legatee succeed 
 thereto ; but if made subject to a condition, e.g. in view of 
 marriage, and the condition failed, the legacy reverted to the 
 testator or his estate.(^) 
 
 It is subject to the deduction of the Falcidian portion.(e) 
 
 Collation. — Any money or property received by children or 
 grandchildren for the purpose of marriage, trade, or other- 
 wise establishing themselves, must be brought into collation 
 if they wish to inherit, as co-heirs, their share of the estate, 
 testate or intestate, left by their ascendant. 
 
 They must either bring in the actual property received or the 
 value thereof, and collation must be made whether the heirs 
 take under a will or are such ab intestato, unless the testator 
 has willed otherwise. 
 
 The Ordinance of 1st April 1580 directs that children and 
 grandchildren by representation, who succeed as co-heirs, ex 
 testamento or ab intestato, to the property of their parents or 
 grandparents, shall collate the property, or the value thereof, 
 which they have received from their parents or grandparents 
 for their advancement or marriage, unless the testator has 
 expressed a contrary intention. 
 
 Collaterals and ascendants are excluded from the obliga- 
 tion to collate benefits conferred on them by the deceased 
 during life.(/) 
 
 The main object of the law of collation was to ensure 
 satisfaction and equality of distribution among the children 
 of the deceased. 
 
 Although collaterals are not obliged to collate, the testator 
 
 (6) Vide " Collation," infra. 
 
 (c) Censura Forensis (Van Leeuwen), 3, 8, 11. 
 
 (d) Censura Forensis (Van Leeuwen), 3, 8, 9, 10. 
 (c) Digest, 28, 5, 35, 1. 
 
 (/) Van Leeuwen, E. H. R. 3, 16. 
 
392 OPINIONS OF GROTIUS. 
 
 can by last will impose collation upon such collaterals and 
 ascendants.^) 
 
 Heirs who are unwilling to collate may refuse or repudiate 
 their inheritance, in which case they will be allowed to remain 
 in possession of the benefits or donations received from the 
 deceased without being compelled to collate the same, and 
 without any further share in the inheritance. 
 
 As regards the fruits or profits of the property, these 
 need not be brought into collation, except ex tempore 
 moroz.Qi) 
 
 Collation also takes place upon the division of property 
 between the surviving spouse and the children. (i) 
 
 Both children and grandchildren must collate. As regards 
 the latter, they must bring into collation not only that which 
 they have received for themselves out of the estate of their 
 grandparents, but also that which their parents had to col- 
 late, in so far as they have been heirs of their parents. 
 
 If grandchildren succeed in their own right per capita, they 
 are not bound to collate that which their father or mother 
 received. Quod nepotibus relictum, non est relictum filio et 
 filise.(y) 
 
 If grandchildren claim their inheritance from their grand- 
 parent's estate solely jure representationis, and not as heirs of 
 their father and mother, they need not collate or allow com- 
 pensation against their claims and benefits received from or 
 debts due to the grandfather's estate by their own parents, if 
 there was no aditio hcereditatis by such grandchildren of their 
 parents' estate.(A) 
 
 Grandchildren are, however, bound by the acquittances 
 made by their parents in respect of moneys advanced against 
 their inheritance. Thus where a son had received certain 
 sums from his parent, and had given an acknowledgment 
 stating that such advances were to be a discharge pro tan to 
 
 (g) Opinion No. 53 (Holl. Cons. 1, 86, and 3 (b.) 312). 
 
 \h) Van Leeuwen, E. H. R 3, 16, 1. 
 
 (i) Political Ord. April 1, 1580, § 29. 
 
 (j) Opinion No. 54. 
 
 {k) Children of Fehrzen v. Widow Horak, 2 M. 434. 
 
OPINIONS OF GEOTIUS. 393 
 
 of his claim as heir, he is himself bound by the acknowledg- 
 ment, and also all who derive their rights through him ; and 
 compensation must be allowed against the claim of the 
 children of the son who predeceased his parent. (V) 
 
 Gifts and prelegacies must be collated according to Grotius. 
 It is, however, difficult to see why prelegacies should be brought 
 in, seeing that they partake of the same nature as legacies, 
 which are not subject to collation. As regards gifts, jurists 
 are by no means agreed. The opinion of the majority is in 
 favour of the collation of donations inter vivos given for the 
 purpose of marriage or advancement of the children, under 
 which is not included a donatio simplex. See also p. 
 384.(m) 
 
 Marriage and education expenses must be collated. 
 
 Collation takes place upon a division of property between 
 the surviving spouse of the first, second, or subsequent 
 marriage and children, for the purpose of an exact valua- 
 tion.^) 
 
 The full legitimate portion, where it has not been abolished, 
 must be left free, but all payments subject to collation may 
 be deducted therefrom.(o) 
 
 Prescription does not bar the right of co-heirs to claim 
 collation, (o) 
 
 The following are subject to collation : — 
 
 (1.) Marriage expenses incurred by the parents. 
 
 (2.) Money advanced for the purchase of an office. 
 
 (3.) Dotal gifts. 
 
 (4.) Education expenses, if the parents have expressed a wish 
 that such should be collated. 
 
 (5.) Simple donations, if entered in a ledger showing the inten- 
 tion of the deceased that the gifts had to be brought in. 
 
 (6.) Debts due by the son or grandson. 
 
 (7.) Suretyships paid by the father on behalf of his son. 
 
 (I) Richert's Heirs v. Stoll & Richert, 1 M. 566. 
 (m) Opinion No. 54 (H. C. 3 (b.) 159). 
 (») Scheepers v. Soheepers' Executrix, Buo. 1873, p. 1. 
 (o) Van Heerden v. Maraia, Buc. 1876, p. 92. 
 
394 OPINIONS OF GROTIUS. 
 
 Collation does not take place — 
 
 (1.) When the descendant repudiates his inheritance. 
 
 (2.) When the testator has expressly freed the heir from the 
 obligation. 
 
 (3.) When the heir who had to collate has been disinherited. 
 
 (4.) When a renunciation has been agreed upon after the death 
 of the testator. 
 
 As before stated, advances made by parents, and debts due 
 to them but not paid during their lifetime, must be collated, 
 if the deceased parent has not expressed a wish to the con- 
 trary. And the fact that the money was not demanded 
 within the period of prescription does not bar the right 
 of the co-heirs to insist upon collation of such debts, nor 
 does this fact by itself constitute sufficient proof that the 
 deceased parent had intended that the amounts should not 
 be collated.(jp) 
 
 Likewise, if the child becomes insolvent during the life- 
 time of the parent, and such parent does not prove in the 
 insolvent estate his claim for the advances made, it is not 
 considered sufficient indication of a wish on the part of the 
 parent that no collation should take place.(g) 
 
 The executors of the parent's estate can set off against the 
 claim made by the trustees of the insolvent estate of a child 
 for the amount of the inheritance due to such child, the sums 
 advanced or lent to the child, and which he had to collate 
 upon adiation.(r) 
 
 This subject will be found discussed in — 
 
 Note on Testaments, pp. 209, 210, infra. 
 Digest, 37, 6, and 37, 7, Gollatio Bonorum. 
 Vinnius de Coll. Novell., 18, 6, 7. 
 Lauterbach ad Pand., 37, 6. 
 Voet ad Pand., 37, 6, and 37, 7. 
 Van Leeuwen, Cens. Forens., 3, 13. 
 
 (p) Jooste v. Jooste's Executor, 8 J. 288. 
 
 (g) De Villiers, Tutrix of Wehr v. S. A. Association, 2 S. 297. 
 
 (r) Hiddingh's Executors v. Hiddingh's Trustees, 4 J. 200. 
 
OPINIONS OF GROTIUS. 395 
 
 Van Leeuwen, Room. Hoi. Recht., 3, 16. 
 
 Carpzovius, Def. For., 3, cons. 11, def. 31, 33, 34. 
 
 Grotius, Introd., 2, 11, 13; 2, 18, 11 ; 2, 28, 14. 
 
 Regtsgeleerde Observatien, 2, 45. 
 
 Lybreght's Notaris Ambt., 1, 14. 
 
 Huber, Hedendaagsche Regtsgel., 3, 32. 
 
 Burge on Colonial and Foreign Laws, "Collation." 
 
CHOICE OF LA W. 
 
 OPINION No. 55. 
 
 HOLL. CONS. III. B. 339. 
 [GBOTITJS II. 29, 3.] 
 
 Election of law in ante-nuptial contracts — Burdened property — 
 Fidei-commissary heir. 
 
 1. According to our customs, the spouses and 
 relations may elect either the Aasdoms or Schepen- 
 doms law, or partly the one and partly the other, 
 when making an ante-nuptial contract. Such 
 election has effect non tanquam dispositio hominis, 
 sed tanquam dispositio legis. 
 
 2. That which is subject to restitution remains in 
 our possession, quanquam sub certo onere. 
 
 3. Is etiam heres dicitur, qui sub onere fidei- 
 commissi est heres. 
 
 I have seen the documents, &c, in the suit which 
 first of all pended before the court of Amsterdam, 
 and was subsequently removed by leave to the court 
 of Holland, between Hester de Witte, widow of the 
 late Sybrand Stam, as heiress under benefit of 
 inventory of her sister, Dirkge de Witte, widow of 
 the late Rijk Gijsberts, and mother and heiress of 
 
No. 55.] OPINIONS OF GEOTIUS. 397 
 
 the late Hildegonde Bijken and her daughter by the 
 said Bijk Gijsberts, defendant in the first instance, 
 and now appellant, contra Jasper van Diemen, re- 
 spondent in the said cause. 
 
 I have considered the documents, the decision 
 of the court of Amsterdam, the judgment of the 
 court of Holland confirming the same, and the 
 questions asked. 
 
 (l) I am of opinion that the afore-mentioned de- 
 cision and judgment, firstly, as regards the property 
 which came from Gijsbert Bijken, are founded upon 
 our custom, which lays down that spouses and friends 
 may, when making an ante-nuptial contract, elect 
 either the Aasdoms or Schependoms law, or partly the 
 one or partly the other, and when such election has 
 been made, it has effect non tanquam dispositio 
 hominis, sed tanquam dispositio legis. The pro- 
 perty therefore left by the children of such a mar- 
 riage goes to the side pointed out by the ante- 
 nuptial contract, without any deduction of either the 
 legitimate or Trebellianic fourth ; the side in this 
 case being that from which the property was derived. 
 The wording of the ante-nuptial contract between 
 Eijk Gijsberts and Dirkge de Witte is also ap- 
 plicable to the property which was derived from 
 Gijsbert Eijken aforesaid, since the said ante- 
 nuptial contract refers to all property brought in, 
 among which, according to the specified list attached 
 to and considered as' inserted in the ante-nuptial 
 contract, is included the property derived from 
 Gijsbert Rijken. 
 
398 OPINION'S OF GKOTIUS. [No. 
 
 (2) The fact that the property was made subject 
 to restitution does not affect the case, for property 
 subject to restitution remains in our possession, 
 quamquam sub certo onere. The heirs ab intestato 
 referred to in the testament must be taken to be 
 those designated by the ante-nuptial contract, since 
 the succession as provided for in the contract is a 
 successio ab intestato. 
 
 The reason for the afore-mentioned decision and 
 judgment rest on the same basis as regards the 
 property derived from Geertge Gijsberts ; for the 
 said ante-nuptial contract regulates the succession 
 not only to such property as would be brought in at 
 the time of the marriage, but also to all inheritances 
 and legacies accruing to the spouses stante matri- 
 monio, under which must be included the property 
 left by Geertge Gijsberts to Rijk Gijsberts, although 
 subject to restitution in favour of his child : nam 
 heres dicitur etiam, qui sub oneri fidei-commissi est 
 heres.(a) 
 
 Now, as regards the alternative count of the claim 
 made by Hester de Witte to recover compensation 
 for the property brought in by her deceased sister, 
 and more fully specified in the said claim, from 
 the property herein afore-mentioned, the judgments 
 aforesaid declared her action to be premature. These 
 seem to be based on the fact that the recovery of 
 compensation, to which Jasper van Diemen and Hille- 
 
 {a) D. 36, 1, 3, 4, et C. 6, 42, 16, 1. 
 
 The fiduciary remains vested with the dominium of the property, although 
 not dominium plenum. See chap, on Wills, § 10 and 12. — [Ed.] 
 
55.] OPINIONS OF GROTTOS. 399 
 
 gond Gijsberts might become entitled, was by their 
 consent under the ante-nuptial contract only allowed 
 should no other property be found in the estate, and 
 the judges deemed that there was not sufficient proof 
 of this condition. 
 
 The learned advocates will take these matters and 
 reasons into consideration whether in arguing the 
 case before the High Court or in drawing up an 
 accord, as they may deem best. 
 
 19«A February 1632. 
 
 This Opinion has already been referred to on p. 149 when 
 treating of ante-nuptial contracts, and on p. 216 in discuss- 
 ing the position of the survivor under a mutual will. 
 
 The Aasdoms and Schependoms law have been fully dis- 
 cussed on pp. 362-372 under Intestate Succession. 
 
 The South African law of succession is there fully set out. 
 From this it is clear that choice of law is no longer possible, 
 and the parties must abide by the law of the place where the 
 contract is made ; except, of course, that they may specially 
 stipulate as to the devolution of their property in the same 
 manner as they could do by last will. 
 
OPINION No. 56. 
 
 HOLL. CONS. III. B. 314. 
 [GROTTOS II. 31, 17.] 
 
 Custom — Interpretation and construction — Position of the son 
 of a king before the latter became king — Bastards — Legitima- 
 tion of — Rights and succession of — Effect of abrogation of 
 laws — Interpretation of laws — Roman law concerning succes- 
 sion to the mother's estate — No one can derive any benefit 
 from his own wrong. 
 
 1. If the wording of a custom does not define the 
 subject-matter sufficiently, it ought to receive a wider 
 or a more restricted interpretation according to ex- 
 trinsic or intrinsic circumstances. 
 
 2. A son born before his father actually became 
 king, and whilst he was still a private person, is not 
 called the son of a king, although, when his father 
 becomes king, the son too becomes the son of a king, 
 and immediately takes rank as the first-born of the 
 king. 
 
 3. Upon the marriage of the mother, the child 
 becomes legitimate from that time, not by any legal 
 fiction, but in actual fact. 
 
 4. Bastards take equal rank with those born in 
 wedlock. 
 
 5. If a restriction imposed by law be again 
 
 400 
 
No. 56.] OPINIONS OF GEOTIUS. 401 
 
 removed by law, the original position is reverted to 
 as a matter of course. 
 
 6. Bastards also inherit from their mothers at the 
 present time. 
 
 7. Those things which are lawful are actually 
 made so by law, even though couched in words 
 indicating a fiction. 
 
 8. A law which lays down what things are lawful, 
 contains truth, not fiction. 
 
 9. There is a difference between legitimate and 
 legitimated. 
 
 10. Children born before marriage are considered 
 legitimate after the marriage of their parents, and 
 in fact are such in respect of all matters. 
 
 11. The nature of related subjects is such that, 
 granted the one, the other also follows. 
 
 12. Whenever a law makes a fiction equal in 
 every respect to a reality, an extensive interpretation 
 concerning the enactments or results of this law 
 must be employed with regard to the whole legal 
 or civil effect thereof — the reason. 
 
 13. The excuse from tutelage over a freedman 
 granted to a freeborn is extended to him who has 
 obtained the equestrian rank (jus annulorum). 
 
 14. A wider or even an extended interpretation 
 is often given from inferences which indicate the 
 intention of the lawgiver. 
 
 15. Laws must be interpreted more favourably in 
 order that effect may be given to their spirit. 
 
 1 6. That law is considered to be favourable which 
 specially concerns public utility. 
 
 2 
 
402 OPINIONS OF GEOTIUS. [No. 
 
 17. A law which takes from heirs that which 
 belongs to them is unfavourable. 
 
 18. According to ancient Roman law, even if the 
 children * survived their mother, the ownership and 
 full dominium of the property of the mother accrued 
 to the father ; but Constantine changed this in so 
 far that the usufruct was left to the father upon his 
 re-marriage. 
 
 19. No one can acquire any benefit from his own 
 wrong. 
 
 20. In one and the same matter it is possible, by 
 careful consideration, to separate the naturally good 
 from the morally bad. 
 
 21. With what women incest is not committed 
 according to the jus gentium or the civil law of 
 Justinian. 
 
 NORMAN CUSTOM. 
 
 A man who had living issue by his first wife re- 
 tains the usufruct of her property which she had 
 at the time of her death, so long as he remains 
 unmarried, even though the issue may have died 
 before the dissolution of the marriage. If, however, 
 he enters into a second marriage, he retains a third 
 of the usufruct. 
 
 CASE STATED. 
 
 A certain man who had made his cousin pregnant 
 sought and obtained from the Pope the right to 
 marry he # r, and also a dispensation that all children 
 born or to be born should be legitimate. A child 
 is born in wedlock and dies, and after its death the 
 
56.] OPINIONS OF GEOTIUS. 403 
 
 mother dies. The husband claims the usufruct. 
 The heirs of the wife oppose. 
 
 I shall proceed as Procius Latro used to do, and 
 shall divide the matter under consideration into 
 distinct questions, (l) Are the words setting forth 
 this custom sufficiently definite? If they are not 
 sufficient, are there not extrinsic or intrinsic circum- 
 stances from which either a wider or a more re- 
 stricted interpretation should be given to the words ? 
 The husband will contend that the words are suffi- 
 ciently definite. He was husband — he was father 
 of the issue by his wife — the custom requires 
 nothing more. The others will contend that at , 
 the time the child was born the woman was 
 not his wife. But the law does not require this. * 
 It reads "had," not "begot." Now he actually I 
 had a child by his wife, after she became his wife, 
 for the child lived until then ; and therefore the 
 condition or contingency required by the law had 
 been fulfilled. (2) By a similar line of argument 
 Tiracquellus (6) decided the celebrated question 
 whether the son of a king before the latter ascended 
 the throne should be called the first-born of the 
 king ; and indeed this question, from the sound of 
 the words used, seems to involve more difficulty. 
 Granted, he said, that the child born to a father 
 whilst he is a private person and before he ascends 
 the throne is not called the son of a king, yet as 
 soon as the father becomes king, the son also 
 
 (6) Tiracquellus, de primogen. qusest. 32, n. 27, et qusest. 34, n. 48. 
 
404 OPINIONS OF GEOTIUS. • [No. 
 
 becomes the son of a king, and thus at once becomes 
 the first-born of a king. 
 
 (3) But if any one contend that since mention is 
 made of a wife, the custom refers to legitimate issue, 
 we admit that ; but add that a child whose mother is 
 subsequently married becomes legitimate from that 
 moment, not by a certain fiction, but in fact. (4) The 
 reason for that is that bastards are on an equal foot- 
 ing with those born in wedlock according to nature, 
 if we refer to marriage. Euripides wisely remarks — 
 
 I wv yvtjcrloov yap ovoev ovTes evSeel*; v6fj.w vocrovtriv. 
 
 (5) Law therefore has imposed a disability on those 
 born out of wedlock, and if the law itself removes that 
 disability, the original position is reverted to as a matter 
 of course, just as the pure and natural light enters 
 when you open a window. And Justinian himself 
 argues in a similar manner, and that not in one place, 
 but in several.(c) He says that those born from the 
 first parents become legitimate by reason merely of 
 their birth,* and Vasquius(c£) shows this conclusively 
 (6) from the fact that even now bastards inherit from 
 their mothers, from which it is evident that they do 
 not inherit from their fathers by virtue of an actual 
 enactment of the law ; and if the law abrogates this 
 enactment, 
 
 "Nature resumes her sway unrestrained." 
 
 (o) Novel 74 and Novel 89 (1 and 9). 
 
 * When as yet there were no laws, every child born was legitimate [as 
 regards both father and mother. The solemnities of marriage and subse- 
 quent prohibitory laws created the legal disabilities. — [Tk.] 
 
 (d) Vasquius, Contr. lib. 6, c. 42. 
 
56,] OPINIONS OF GROTIUS. 405 
 
 (7) Tiracquellus,(/) in advancing the same argu- 
 ment and proceeding further, adds, that all things 
 which are lawful are really constituted by some law, 
 even where the words thereof appear to indicate a legal 
 fiction, because, as a matter of fact, such fiction does 
 not refer to nature, but to the right created. See 
 also Menochus.(p') (8) A law which lays down what 
 is lawful contains a reality, and not a fiction. (9) The 
 term " legitimatus " is used properly and correctly, 
 indicating that after legitimation one becomes legiti- 
 mate ; and this is the sense in which it is employed 
 in the Decretal of Alexander, (h) Such is the force 
 and effect of marriage, that even those born prior to 
 its celebration are subsequently considered as legiti- 
 mate. (10) And it cannot be contended that they 
 must only be considered legitimate as regards those 
 matters which are to their advantage ; for the law 
 simply removes a disability, and therefore they are 
 held to be legitimate altogether and absolutely (cnrXa>?), 
 and in fact are so as regards every one.(^) (11) More- 
 over, the nature of related subjects is such that, 
 granted the one, the other also follows. If this 
 child is legitimate, it follows that the father is his 
 legitimate father. If the father is legitimate, why 
 should he not have the privileges of a legitimate 
 father ? Let us suppose that the jus trium liberorum 
 created by the leges Julia et Papia had continued 
 
 (/) Tiracquellus in 1. si unquam in verbo, susceperit liberos, qusest. 
 293, n. 42. (g) Lib. 4, press. 39, num. 27. 
 
 (h) 3 C. tanta, Extr. qui Alius sint legitimi. 
 
 (i) Novel 75, no. 2, et Novel 89 ; Gl. in clem, unica in verb, seternaliter 
 C. 1, 1 ; C. 6, 40 ; D. 46, 4, 23. 
 
406 OPINIONS OF GROTIUS [No. 
 
 to exist up to the time of Justinian ; will any one 
 doubt that, in order to make up that number, the 
 father would have been able to take advantage of a 
 child born before marriage, and who obtained the 
 rights of a legitimate child by reason of the father's 
 marriage ? This is also the case with respect to the 
 privilege of excuse from guardianship granted on 
 account of legitimate issue. The wording w? kbitm 
 shows that this ought to be for the benefit of the 
 father. 
 
 (12) Moreover, why should a wider or more ex- 
 tensive interpretation of the words not be allowed 
 in favour of the father 1 In the first place, by virtue 
 of those laws which were made for legitimated issue, 
 as above stated by us ; for although it may be stated 
 that this is a fiction, yet it is applicable ; for when- 
 ever a law makes a fiction in every respect equal to 
 a reality, an extensive interpretation concerning the 
 enactments or results of this law must be employed 
 with regard to the whole legal and civil effect thereof, 
 because the law is considered to make provision 
 in terms of the use and creation of that right. (&) 
 (13) Therefore the excuse from tutelage granted to a 
 freeborn over a freedman is extended to him who 
 has obtained the equestrian rank (Jus annulorum).(T) 
 
 (14) Secondly, a wider or even an extended- inter- 
 pretation is often given from inferences indicating 
 the will of the lawgiver. Among these the subject- 
 
 (h) Snares de legibus, liber 6, c. 3, n. 6. Bart, ad 1. si is qui pro emptore, 
 D. de usur. et ad D. 1, 1, 9. 
 (1) D. 27, 1, 46. 
 
56.] OPINIONS OF GEOTIUS. 407 
 
 matter of the law is the strongest ; wherefore the 
 word " donation " is so construed that it includes 
 transaction, and there are many other similar in- 
 stances, (m) (15) And the general rule is that laws 
 must be interpreted more favourably in order that 
 effect may be given to their spirit. What the Nor- 
 mans intended when they began to use this custom 
 we must consider to have been the object of the 
 rewards granted to fathers according to the lex Papia 
 Poppea, viz. , that the Republic should have numerous 
 legitimate issue, and for this purpose inducements 
 were held out to the men. Moreover, I believe that 
 they did not allow, as formerly (for they came from 
 a heathen stock), the practice of procuring abortion, 
 but took all possible precautions to prevent it. Since, 
 therefore, the Republic obtained the object of its 
 wishes upon the marriage of the men and the women 
 made pregnant by them, why should there be any 
 objection that the rewards granted for this purpose 
 should be allowed to (such) a father ? 
 
 (16) Thirdly, an extensive construction of those 
 laws is allowed which contain a favourable decree. 
 And since no law can be said to create a favour 
 without encroaching upon another's right, it is certain 
 that a favour is considered to have been enacted in 
 that law which most promotes the public welfare. (n) 
 That this custom is of such a nature appears from 
 what has gone before, to which, I shall add the dictum 
 of Tiracquellus (o) ; legitimation, which tends to the 
 
 (m) L. si vero D. locati. («) Suares, lib. 5, cap. 11, num. 4. 
 
 (o) Tiracquellus ad verb, sus'ciperet, n. 72. 
 
408 OPINIONS OF GKOTIUS. [No. 
 
 preservation of succession to the patrimony, has 
 more force and effect, and more in its favour than 
 other matters. 
 
 (17) Hence it will not be difficult to reply to the 
 possible contention for an exception to this effect of 
 the law, or for a strict interpretation, or even for a 
 restriction of the law. In the first place, they can 
 say that it is a lex odiosa, because it takes away 
 from the heirs that which belongs to them. The 
 reply is ready : this right is anterior to the right of 
 the heir, and thus nothing is taken away from him, 
 since he had acquired nothing. Add to this that 
 the Norman law itself esteemed the privilege of the 
 fathers a very great favour, and that it considered 
 the husband vested with this right during the lifetime 
 of the wife, and that it intended the same to be of 
 force even against the feudal lords, to whom the pro- 
 perty of the wife reverted, either through confiscation, 
 through failure of issue, or otherwise. (18) And, 
 moreover, there is no reason why that should seem 
 hard which the custom of Normandy concedes to the 
 fathers, seeing that according to ancient Roman law, 
 even if there be issue living after (the death of) the 
 mother, possession and full ownership of the pro- 
 perty of the mother is acquired by the father, which 
 was altered by Constantine in such a manner that 
 he left the father, even after a second marriage, the 
 jus utendi et fruendi,{p) and this right was retained 
 by Justinian in favour of the father, (q) 
 
 (p) C. 6, 60, J. 
 
 (?) C. 6, 61, 6 et ult. 
 
56.] OPINIONS OF GROTIUS. 409 
 
 (19) Another point which the relatives of the wife 
 seem to contend for is this, that no one ought to 
 benefit from his own wrong-doing. And he did com- 
 mit a wrong, for he had intercourse with a woman to 
 whom he was not married, and who was, moreover, a 
 near relation. (20) To this it can be well replied, 
 that in one and the same matter it is possible, by 
 careful consideration, to separate that which is 
 naturally good from that which is morally bad. 
 Augustinus also makes such a distinction where 
 rewards were granted by God to the Egyptian mid- 
 wives, of whom mention is made in the first chapter 
 of Exodus, not on account of their untruthfulness, 
 but for their reverential love for the innocent infants, 
 and yet these were included in one and the same act. 
 The same can be said to be more frequently the case 
 in rewards which human laws of the State offer, 
 and which generally considers that possible which 
 advances the public welfare from any deed, and it 
 matters little whether a wrong is connected with 
 such act or not. But there is no necessity to rely on 
 such subtleties, since it is more reasonable that this 
 husband should have merited the reward of which 
 we treat, not when he produced offspring, but when, 
 from a kindly feeling, he solemnly took the mother 
 as wife. For this action is holy itself, and includes a 
 praiseworthy deed of justice, since both to the woman 
 her lost honour is restored as far as possible, and 
 because, as it were, that status of the children is 
 returned which their birth had denied them as being 
 not in accordance with law. Thus, by this very 
 
410 OPINIONS OF GKOTTUS. [No. 56. 
 
 deed, the husband began to have legitimate issue, 
 and, if I may so express myself, begot it again ac- 
 cording to law. (21) Add to this that this woman 
 does not fall in the category of those with whom it 
 was incestuous to live, either by the jus gentium 
 or by the civil law of Justinian. The law of 
 Moses is thus far silent, that it does not denounce 
 such marriages, and commands it between an only 
 daughter and her next of kin (ev t<w eTmcXripois), Num. 
 35. Nor have the Gospels or the ancient canons 
 laid down anything concerning this matter. Those 
 who afterwards opposed such marriages removed the 
 disabilities as regards the issue, as we have before 
 stated. Thus the matter returns to the original 
 position when it was allowed ; nor is it of such a 
 nature as those concerning which the old inter- 
 pretation of the Canonical said that it was specially 
 allowed by Papal dispensation. 
 
SERVITUDES AND WATER-RIGHTS. 
 
 OPINION No. 57. 
 
 HOLL. CONS. VI. Part II. 56. 
 [GROTIUS II. 33.] 
 
 Servitude undivided. — Servitus est individua. 
 
 I am of opinion that the two brothers, each of whom 
 possesses a portion of the erf situated at the Eooster, 
 and mentioned in the document of April 1580, are 
 as much entitled to the said servitude as the third 
 brother who possesses the house. The reason for 
 this is, that a servitude in favour of the prcedium 
 dominans belongs to all the sons who own any 
 share in the said erf.*(a) The fact that mention 
 is made of the house and erf in the afore-mentioned 
 document does not affect the case, for the servitude 
 being a servitus via, actus iter, &c, indicates that 
 it really belongs to the erf, and belongs to the house 
 merely for the sake of the erf. Sunt enim via et 
 iter servitutes rustici praBdii, quse proprie fundi non 
 
 * The word erf is here employed in the sense of a piece of ground 
 partaking of the nature of a prcedium urbamiwm. — [Te.] 
 
 (a) T>. 8, 3, 23, 3. 
 
 411 
 
412 OPINIONS OF GEOTIUS. [No. 57. 
 
 sedificii causa constituuntur.(fr) Nor does it affect 
 the case that it is stated in the said document that 
 this is directly opposite the said Brouwerpe, and 
 that the house faces this directly, but not the divided 
 erf; for the said allusion there stated was for the 
 purpose of designating not a portion, but the whole 
 of the erf, as is also clearly indicated by the afore- 
 mentioned words, " situated at the Booster." A 
 portion of the said erf, therefore, is not deprived 
 of the right to the said servitude, the erf having 
 been undivided at the time the document was drawn 
 up. Est enim servitus tota in to to et tota in sin- 
 gulis partibus prsedii dominantis, ut ait Bart, in d. 1., 
 D. 8, 3, 23, 3. 
 
 Rotterdam, 
 lift April 1614. 
 
 (6) Instit. 2, 3, 1. 
 
OPINION No. 58. 
 
 HOLL. CONS. III. B. 316. 
 [GEOTIUS II. 36, 2, & III. 8.] 
 
 Eights of pledgor in respect of a pledge — How a servitude is con- 
 stituted — Placaat of 1531 regulating transfers — Eegistration 
 of servitudes — Actio hypothecm — Prohibition to alienate. 
 
 1. Debitor manet dominus pignoris. 
 
 2. Quibusvis pactionibus servitus constituitur. 
 
 3. According to the Placaat of the Emperor of 
 1531, all burdens on or alienations of immovable 
 property had to be made before the court of the place 
 where the property is situated. 
 
 4. Alienatione prohibita, simul prohibita censetur 
 servitutis impositio. 
 
 5. Servitutis impositio non comprehenditur sub 
 alienatione, vi vocis sed ex quadam interpretatione ; 
 et quo modo ilia interpretatio est porrigenda. 
 
 6. In Holland servitudes were constituted under- 
 hand, and not before the court. 
 
 7. Qualitatis additio, vel detractio in jure hypo- 
 thecse, nihil mutat. 
 
 8. Actio hypothecse non competit contra tertium 
 nisi eum qui aliquid hypothecse possidet. 
 
 9. Qui servitutem in hypotheca acquisivit, non 
 
 potest dici aliquid hypothecse possidere. 
 
 us 
 
414 OPINIONS OF GROTIUS. [No. 
 
 10. A creditor cannot revoke or rescind an agree- 
 ment made between his debtor and a third party, 
 unless such has been done to defraud him. 
 
 11. Prohibitus alienare, non prohibetur bona fide 
 transigere. 
 
 I have seen a certain agreement of the 30th of 
 March 1599, made between Joost de Visscher and 
 Krijn Michiels, and another of the 18th of August 
 1611, between Jan Van den Bronke and Jonas 
 Cabaillau. It was premised that Jan Van den 
 Bronke had mortgaged to one of his creditors the 
 house which he had inherited from Joost de Visscher 
 before the agreement of the 18th of August was 
 entered into, by which agreement he resigned certain 
 privileges attached to the house, by virtue of the 
 agreement of the 30th of March, in favour of the 
 said Cabaillau, and on the other hand made the house 
 subject to certain servitudes with which it had not 
 been previously burdened. Jan Van den Bronke 
 subsequently became insolvent. I have been asked 
 what the effect of the said agreement of the 18th of 
 August will be as regards the afore-mentioned credi- 
 tor, and whether it can remain of force as against 
 the said creditor or not. 
 
 I think that in this matter three points must be 
 taken into consideration. First, whether the said 
 agreement of the 18 th of August was null ipso 
 facto, or whether it was valid according to law? 
 Second, whether the creditor, notwithstanding this 
 agreement, retained any right to sell these privileges 
 
58.] OPINIONS OF GEOTIUS. 415 
 
 at the same time as the sale of the house, to which 
 he was entitled before the date of the agreement? 
 Third, whether the creditor has any right to revoke 
 or rescind the said agreement 1 
 
 (l) With reference to the first point, there is no 
 dispute according to civil law, since debitor manet 
 dominus pignons,(a) nor can there be a dispute as 
 to its form,(2) since, according to the same law, 
 nam quibusvis pactionibus servitus constituitur. (6) 
 (3) But it appears that a dispute might arise from 
 the Placaat of the Emperor of 1531, which prohibits 
 any alienation or encumbrance of immovable pro- 
 perty except before the court of the place : (4) 
 alienatione enim prohibita, simul prohibita censetur 
 servitutis impositio.(c) This difficulty is removed 
 when we consider quod servitutis impositio non 
 comprehenditur sub alienatione, vi vocis, sed ex 
 quadam interpretatione.(c^) (5) Ilia autem inter- 
 pretatio non est porrigenda ultra intentionem legis, 
 agentis de rebus quarum alienatio simpliciter pro- 
 hibetur, non autem de forma, quse alienationi prse- 
 scribitur. (6) The intention and meaning of the 
 Placaat seems to have been sufficiently fixed by the 
 general practice in Holland, since the constitution 
 of servitudes is always effected under-hand, and not 
 before the court* 
 
 Although the house has become of less value by 
 
 (a) C. 4, 24, 9, et D. 20, 5, 12. 
 (6) Inst. 2, 3, 4. 
 
 (c) C. 4, 51, 7. 
 
 (d) Ut ait Gl. ad 0. 4, 51, 7. 
 
 * This is controverted by Voet, 8, 4, 1.— [Tr.] 
 
416 OPINIONS OF GKOTIUS. [No. 58, 
 
 the removal of the said privileges and the constitu- 
 tion of new servitudes, yet nothing that was pledged 
 to the creditor has been alienated : sed duntaxat 
 mutata est rei qualitas. (7) Qualitatis autem 
 additio vel detractio in jure hypothecse nihil 
 mutat.(e) (8) To this must be added quod actio 
 hypothecaria non competat tertium nisi eum, qui 
 possideat aliquid hypothecse. 
 
 (9) Non potest autem dici aliquid hypothecse 
 possidere, qui servitutem in ea hypotheca ac- 
 quisivit.(y) 
 
 (10) With reference to the third point, I am of 
 opinion that the creditor cannot revoke the afore- 
 said agreement or have it rescinded, unless he is 
 prepared to prove that it was entered into in 
 fraudem, and that both the said Jan Van den 
 Bronke and Cabaillau were cognisant of the in- 
 solvency of the same Jan Van den Bronke at the 
 time the agreement was made : this is specially the 
 case since the agreement was entered into as an 
 ordinary transaction. (11) Nam etiam alienare 
 prohibitus non prohibetur bona fide transigere.(^)* 
 
 EOTTERDAM. 
 
 (e) D. 20, 1, 16, et ibi Bartol. 
 
 (/) D. 31, 1, 66, 6, et ibi Gl. et Dd. 
 
 (g) Castr. in D. 13, 1, 10, 2. 
 
 * See p. 445 and the case of Stewart's Trustees and Marnitz v. Union- 
 dale Municipality, which lays down the negative view as regards the com- 
 petition of servitudes against prior mortgages. — [Tk.] 
 
OPINION No. 59. 
 
 HOLL. CONS. III. B. 142. 
 [GROTIUS II. 36.] 
 
 Servitudes — Prescription — Strict interpretation. 
 
 1. Drainage servitudes and others of a similar 
 nature are prescribed in a period of thirty years, 
 especially when the transfer of the prcedium after 
 such previous use is interpreted ita ut prascriptio 
 sit titulata. 
 
 2. All stipulations, and especially servitudes, must 
 be strictly interpreted (stipulationes omnes et pree- 
 cipue servitutum, stricte sunt interpretandae). 
 
 3. The special stipulation by which it is agreed 
 that only ovens shall be erected, and that ovens on a 
 certain piece of ground may remain, cannot be ex- 
 tended to other erections. 
 
 (l) Having seen a certain contract entered into 
 between the children and the heirs of the late 
 Maritge Cornells, and dated the 13th August 1576 : 
 
 I think, firstly, that the successor of Tonis Marts is 
 entitled to the water running from the inclined roofs 
 of her kilns, taking for granted that she had enjoyed 
 this privilege for thirty-eight years ; for, according to 
 
 417 2D 
 
418 OPINIONS OF GROTIUS. [No. 59. 
 
 the best authorities, all such servitudes can be pre- 
 scribed in the period of thirty years, more especially 
 where the transfer of the property after such previous 
 use is interpreted ita ut prcescriptio sit quasi titulata. 
 
 (2) Secondly, that the said successor cannot raise 
 the inclined roofs ; for the privilege of draining the 
 ovens, specially granted to him by contract, referred 
 only to those ovens which were drained at the time 
 of the contract. Stipulationes enim omnes, et prse- 
 cipue servitutum constitutiones, stricte sunt inter- 
 pretandas. 
 
 (3) And, thirdly, that he cannot replace them by 
 anything else, for the same reasons as above set 
 forth ; because it is specially stipulated that the 
 ovens on the ground of Diert Jans should remain 
 in existence, and the privilege cannot therefore be 
 extended to other new erections. 
 
 SERVITUDES. 
 
 Ad Opinions Nos. 57, 58, 59 (Holl. Cons. VI. (Pt. II.) 56, 3 (b.) 316, 
 and 3 (b.) 142). 
 
 It will be unnecessary to set forth, in detail the common 
 law on this important subject. It will be found fully dis- 
 cussed by the authorities quoted below ; and, moreover, there 
 are very few disputed points amongst these jurists. It will 
 therefore suffice if a list of text-writers be prefixed to a resume" 
 of the cases decided by the South African courts upon the 
 law of servitudes. 
 
OPINIONS OF GROTIUS. 419 
 
 The following authorities may be consulted with advantage. 
 
 Justinian, Institutes, 2, 3, de Servitutibus. 
 
 ,, ,, 2, 4, de Usufructu. 
 
 „ ,, 2, 5, de Usu et Habitatione. 
 
 Digest, lib. 7, 8, and Code 3, 34. 
 Gaius, 2, 30, et seq. 
 Grotius, Introd. 2, chaps. 33-39. 
 
 „ Opinions, Nos. 57, 58, 59. 
 Voet ad Pand., books 7, 8. 
 Schorer ad Grotium, 2, 34; 2, 34, 4 ; 2, 34, 5 ; 2, 34, 7; 
 
 2, 34, 10 ; 2, 34, 16 ; 2, 34, 20, 23 ; 2, 35, 6, 8, 13 ; 2, 36, 
 
 4, 6 ; 2, 37, 2, 7. 
 Van der Keessel, Thes. 181, 369. 
 Van Leeuwen, Censura Forensis, 2, 14 ; 2, 15 (Part 1). 
 
 „ „ Room. Holl. Recht., 2, 21 ; 2, 22. 
 
 Kesterman, Hollandsche Rechtsgeleerd. 
 
 ,, Woordenboek, sub voce "Servitut." 
 
 Roey's Woordentolk, sub voce " Servitut." 
 Lybreght, Notaris Ambt Vertoog, pp. 122, 148. 
 Muhlenbruch, Doetrina Pandectarum, ii. 288. 
 Savigny's Roman Law, 2, 641 ; 2, 279. 
 Dalloz, Repertoire de Legislation, sub voce " Servitute." 
 Van der Linden, i. 11 (Introduction). 
 Vinnius ad Instit., 2, 3. 
 Toullier, tit. 4, des Servitudes. 
 Burge's Colonial and Foreign Laws — " Servitudes." 
 Kotze's Note ad Van Leeuwen, Room. Holl. Recht., pp. 302- 
 
 309 (Kotze's translation). 
 Austin's Lectures on Jurisprudence, Lecture 50. 
 
 The following are the divisions of servitudes. 
 
 1. Personal and Real. 
 
 2. Rural and Urban. 
 
 3. Affirmative and Negative. 
 
 4. Continuous and Discontinuous. 
 
 5. Apparent and Non- Apparent. 
 
 6. Legal and Conventional. 
 
 7. Qualified and Non-Qualified. 
 
420 OPINIONS OF GEOTIUS. 
 
 1. Personal and Real Servitudes. — A personal servitude is 
 that which vests in an individual as such only, and not in 
 respect of his being the owner of a prcedium. 
 
 A real servitude is that which vests in an individual as 
 owner or occupant of a prcedium. 
 
 It is therefore quite clear that in one aspect all servitudes 
 are personal, for they must operate in favour of certain per- 
 sons; whilst in another all are real, for they are jura in 
 rem.(a) 
 
 Servitudes are "jura quibus preedia praediis serviunt," 
 according to Vinnius ; (&) it is therefore essential to the con- 
 stitution and existence of a real servitude that there should 
 be both a dominant and a servient tenement — a prcedium cui 
 prcedium servit, for if this is wanting, no real servitude exists. 
 Voet defines servitudes as "jura in re alterius alteri con- 
 stituta, quibus res alteri quam domino commodum adfert 
 contra dominii naturam." And he adds, "Harum alia? 
 personates sunt, quoties scilicet res personas servit; alias 
 reales, quoties res servit rei, prasdium prasdio. Prseter quas 
 alias non dantur, quibus persona serviret rei."(c) 
 
 Servitudes are construed strictly, and an extensive in- 
 terpretation will not be allowed to the prejudice of the owner 
 of the servient tenement. If it is stipulated in a deed of 
 sale between purchaser and seller that a certain quantity of 
 water shall be allowed to flow down free and undisturbed, 
 but no mention is made of any dominant tenement in whose 
 favour the flow is to be allowed, a real servitude will not be 
 constituted. All that the purchaser, as owner of the prcedium 
 dominans, is entitled to is a personal servitude. The rights 
 conferred by such servitude he can, as usuarius, enjoy for 
 life, but he cannot transmit his rights to his heirs, or cede 
 them to others for a consideration, (d) 
 
 (a) Austin, Jurisprudence, Lee. 50. 
 
 (6) Vinnius in Instit. 2, 3. Noodt de Usui, and Dreyer v. Ireland, Buo, 
 1874, p. 193. 
 
 (o) Voet, 7, 1, 1. See' also Voet, 8, 1, 4. 
 
 (<2) Voet, 8, 1, 4. Dreyer u. Ireland, per Watermeyer, J., Buo. 1874, 
 p. 200. 
 
OPINIONS OF GROTIUS. '421 
 
 Sabitatio, usus and usufructus are personal servitudes, and 
 although not treated of in the same title as servitudes in the 
 Digest and Institutes, there can be no doubt that they were 
 for all practical purposes classed under the category of servi- 
 tudes and considered as such under the Roman law.(e) 
 
 Where the owner of land allows another to occupy the 
 same "as long as he may think fit," servitus habitationis, 
 which is a servitude for life, is not considered to have been 
 granted, and the grant does not confer an irrevocable right of 
 occupancy for life, but rather a revocable right subject to 
 reasonable notice to quit.(/) 
 
 2. Urban and Rural Servitudes. — A good deal of con- 
 troversy exists between different text-writers as to the 
 proper distinction between urban and rural servitudes. The 
 best authorities agree that the servitude takes its denomina- 
 tion not from the jprcedium serviens, but from the jprcedium 
 dominans.(g) If the prcedium dominans is urbanum, the servi- 
 tude will be urban ; if rusticum, the servitude will be rural. 
 
 Here another difficulty occurs. Lawyers are by no means 
 fully agreed as to the distinction between prcedia urbana and 
 prcedia rustica.Qi) According to the prevailing opinion, 
 however, the distinction should depend upon the use and 
 nature of the tenement, or, as Burge says, " This distinction 
 is made, not with reference to the place in which the pro- 
 perty is situated, but to the nature of the property, or to the 
 purpose or use for which they are enjoyed." The same 
 writer then proceeds to explain what servitudes may be con- 
 sidered urban and what rural : — " Those constituted in favour 
 of houses or buildings, whether they be within the city or in 
 the country, are called urban ; whilst those constituted for a 
 farm or garden are called rural servitudes."(i) 
 
 (e) Hunter's Eoman Law and Sandars' Instit. Justin. 
 (/) Dickson qq. Ellis v. Biddulph, 2 Menz. 310. 
 (g) Vinnius, Instit. 2, 3, 1. 
 
 (h) For a sketch of the controversy se.e Kotze's Van Leeuwen, R. H. R. 
 pp. 304-305. 
 
 (i) Burge, vol. iii. 
 
422 OPINIONS OF GEOT1US. 
 
 Very few South African decisions bear on urban servi- 
 tudes ; by far the larger number relate to rural servitudes, 
 especially to questions of water-right, which is bound to form 
 a fertile source for frequent disputes in a country where 
 water is scarce and private schemes of irrigation are con- 
 stantly attempted. 
 
 Urban Servitudes. — The owner of the soil is dominus usque 
 ad caelum, and no one can build a projecting roof or mason- 
 work over the ground owned by another.(&) 
 
 The owner of the dominant tenement must be allowed free 
 enjoyment of his servitude, and if the dominus prcedii servientis 
 encroaches upon the rights of the servitude holders or ob- 
 structs the use in any way, he will be compelled to remove such 
 obstruction and will be liable for all damages sustained.(f) 
 
 The owner of the prcedium dominans must, however, proceed 
 within reasonable time to obtain a removal of the obstruction. 
 If he allows the other to erect and complete buildings 
 which he knows constitute a trespass on his rights, and 
 then, subsequent to such completion, claims the removal of 
 the obstructions, the court will refuse to order the removal, 
 and the plaintiff will have to be satisfied with damages, (m) 
 
 The rights of parties to a common or party-wall are dis- 
 cussed by Grotius, 2, 34, 4, Voet, 8, 2, 17, and Burge, vol. iii. 
 
 Each neighbour may build upon his half of the common 
 wall, provided it be strong enough to support the weight of 
 such building, but he may not build upon his neighbour's 
 half, nor allow the building to project over his neighbour's 
 ground.(w) 
 
 If a servitude is granted in favour of a tenement to the 
 effect that the view shall not be obstructed by the erection 
 of buildings on the servient tenement, an obstruction of the 
 view by the planting of trees will not be considered to fall 
 within the condition.(o) 
 
 (£) Brittain v. Cape Government. (£) O'Reilly v. Luoke, 4 J. 103. 
 
 (m) Myburgh v. Jamison, 4 S. 8. 
 
 (n) Pike v. Hamilton, Ross, & Co., 2 S. 191. O'Reilly v. Lucke, 4 J. 103 
 (o) Myburgh v. Jamison, 4 S. 8. 
 
OPINIONS OF GROTIUS. 425 
 
 The right to cut fuel may be either a personal or a real 
 servitude, according as it vests in an individual as such, or 
 as owner of a dominant tenement. 
 
 If a servitude of wood-cutting is imposed upon a prcedium 
 Servians in favour of the public or of a certain community, 
 every member of the public or of such community is entitled 
 to the enjoyment thereof, and the servitude is personal in 
 favour of the public or designated community ( Van Niekerk 
 v. Wimble, 3 R. 61). Any member of the public or of the 
 said community who bona fide requires firewood in the 
 neighbourhood, has a right to take it for domestic use. He 
 has the right-of-way to drive a vehicle over the servient 
 tenement for the cartage thereof. The owner of such tene- 
 ment can, however, point out a reasonable track to be used 
 for that purpose, but he must allow an outspan for the cattle, 
 which can likewise be pointed out by him, although he cannot 
 be compelled to allow grazing and watering rights for such 
 cattle. Moreover, no person has the right to fell trees or 
 take firewood for purposes of sale (Meintjes v. Oberholzer 
 and Others 3 S. 265). 
 
 All servitudes being onerous, whether personal or real, 
 must be strictly interpreted. Stipulationes omnes et precipue 
 servitutum stride sunt interpretandce. (Opinion No. 58.) 
 
 Mural Servitudes. — Prsedial privileges of this kind are 
 chiefly confined to rights of way and of water. 
 
 The following are the more common servitudes : — 
 
 (1) Iter. 
 
 (2) Bridle-road. 
 
 (3) Actus. 
 
 (4) Vise. 
 
 (5) Eight of road ex necessitate, to which reference will 
 
 be made when treating of conventional and legal 
 servitudes. 
 
 (6) Aquasductus. 
 
 (7) Aquaehaustus. 
 
 (8) Right to ford. 
 
424 OPINIONS OF GROTIUS. 
 
 (9) Servitus pecoris ad aquam appulsus. 
 
 (10) Eight of drainage. 
 
 (11) Eight to cut fuel. 
 
 Although, in a strict sense, the servitus actus gives no 
 greater right than to drive cattle over the ground of another, 
 yet there may be circumstances under which the servitus 
 actus will be construed to include a right of way for vehicles, 
 and if the road is wide enough to allow the free passage of 
 vehicles, the law will presume the grant of a right to draw 
 vehicles. Likewise the servitus vice does not only include a 
 right of carriage-way, but also the right to draw logs, stones, 
 &c. This is the opinion of Voet ; (p) and in this respect he 
 has been followed by the Supreme Court in the case of 
 Breda's Executor v. Mills.(q) In that case the defendant's 
 farm was subject to a servitude of " cattle road " in favour 
 of the farm owned by Breda. It was proved that, according 
 to custom, the width of a " cattle road " was at least eight 
 feet (sufficient for the passage of vehicles), but the defendant 
 refused to allow any cattle of the plaintiff using the road to 
 draw vehicles after them, although hfe admitted that the 
 plaintiff had the right to drive his cattle along the road. 
 The court, however, held that since the road was eight feet 
 wide, it was sufficient for the free passage of vehicles, and 
 that where a servitus actus had been granted with a suffi- 
 cient width of road to allow vehicles to pass, the right to 
 draw vehicles must also be presumed to have been 
 granted. 
 
 If a servitude exists in favour of a dominant prcedium, the 
 owner thereof will be entitled to such right of way as he 
 may require for the enjoyment and exercise of the servi- 
 tude.^) 
 
 If a right of way has been granted in favour of the owner 
 of a prcedium dominans, " his heirs or successors," such right 
 
 (p) Voet, 8, 3, 2, and 8, 3, 3. 
 (e) 2 J. 189. 
 
 (r) Hawkins v. Munnik, 1 Menz. 465. Meintjes v. Oberholzer and 
 Graafreinet Municipality, 3 S. 265. . Voet, 8, 4, 16. 
 
OPINIONS OF GEOTIUS. 425 
 
 is not restricted to a particular successor, but will apply- 
 equally to all general successors; and each of the heirs or 
 successors to the prsedium or portions thereof will be entitled 
 to enjoy the servitude.(s) 
 
 A right of way ex necessitate cannot be claimed further 
 than the actual necessity of the case demands. 
 
 According to our law, there are two kinds of public roads, 
 the via publica and the via vicinalis. 
 
 A via publica is constituted such by the authorities when 
 declared by them to be a public road. 
 
 A via vicinalis or " neighbour's road " is a road either in a 
 village or leading to a town or village which has been used 
 by the people of the neighbourhood from time immemorial 
 {Peacock v. Hodges, Buc. 1876, p. 65). 
 
 A road used by the public must be kept free from all 
 danger, and if any obstructions, holes, insecure bridges, or 
 fencing, &c, are placed in or in the immediate vicinity of the 
 road, and one of the public using the road is damaged 
 thereby, the owner of the land over which the road passes or 
 of the road, or the person who created such nuisance, will be 
 liable for all damages sustained.^) 
 
 Servitudes as set out on General Plans, especially in the 
 case of Sale of Building Lots. — It is of very great importance 
 that the actual ground referred to in grants should be 
 definitely ascertained. This is best done by means of 
 diagrams, to which I shall refer when we come to consider 
 the registration of servitudes. 
 
 Private lands are frequently put up to auction for the 
 purposes of sale as "building lots." The ground is usually 
 subdivided, and the roads intended to be thrown open for the 
 benefit of owners of the purchased lots are marked upon a 
 " general plan." Other servitudes of water-rights, &c, if any, 
 
 (s) Ebden v. Anderson, 2 S. 64. Grotius, Opinion No. 57 (Holl. Cons. 
 6 (pt. 2), 56). Digest, 8, 1, 17. Voet, 8, 1, 6. 
 
 (t) Liesbeek Municipality v. Partridge, 4 J. 305. Buskes v. Government 
 of S. A. E. (S. A. E. 1891). Marais v. Eloff (S. A. R. July 1893). 
 
426 OPINIONS OF GROTIUS. 
 
 may also be indicated thereon, but the main feature is the 
 sketch of the roads established in favour of the purchasers. 
 
 The first case with reference to this subject is that of 
 Parkin v. Titterton.(u) For the purposes of a discussion of 
 the value and binding force of "general plans," the decision 
 is not of very great value, since, to a certain extent, the 
 judgment was based upon a different ground. 
 
 It may, however, be inferred from the decision, that if 
 the seller by a general plan at the auction constituted a 
 servitude in favour of the lots sold upon another prcedium 
 owned by him, he and his successors in title are bound 
 thereby. If the successor is a purchaser of such prcedium, 
 without notice, and the servitude has not been registered, 
 he is not bound by the conditions of sale as shown on the 
 plan, (See p. 445 infra.) 
 
 The rights of a purchaser of one of such lots, in respect 
 of the use of all the roads on the plan, whether all the lots 
 have been sold or not, were discussed in the next case — 
 Hiddingh v. Topps.(v) The facts in that case were as 
 follows: — The Newlands Estate was subdivided into 387 
 building lots, and put up for sale in 1853, when, however, 
 only 65 lots were sold to different purchasers, according to 
 a general plan on which were indicated several roads. This 
 general plan was filed with the Registrar of Deeds. No 
 purchaser was found for the unsold portion till 1859, when 
 Hiddingh bought and obtained transfer. The diagram 
 attached to his title-deed showed no roads except such as 
 led to the other lots sold in 1853. Topps, the owner of 
 two of the lots sold in 1853, now claimed the unrestricted 
 use of all the roads appearing on his general plan. The 
 court, however, decided that Topps had only the right to 
 use such roads laid down on the plan as were necessary or 
 convenient for access to the main road from his lots,, these 
 roads to pass between lots sold at the time of the sale, but 
 he had no right to the use of all the roads sketched on 
 
 {u) 2 Menz. 314. 
 («) i S. 101. 
 
OPINIONS OF GROTIUS. 427 
 
 the general plan, where such roads passed between the un- 
 sold lots ; Watermeyer, J., holding that each purchaser was 
 entitled to a right of inter-communication with each of the 
 lots sold. The same Judge held (as gathered from the report 
 of his judgment) that the general plan is in itself a contract 
 between the purchasers and seller, and becomes a part of 
 the conveyance after its registration, and the establishment 
 of a servitude ought to depend upon the interpretation of 
 the contract at the time of the sale. 
 
 In the case of the Ohlssons Gape Breweries Limited v. 
 Whitehead,(x) it was decided that the mere registration of 
 a diagram attached to the transfer of a purchaser or his 
 successor of a lot, and showing a road adjoining such lot 
 which corresponds to the general plan, does not amount to 
 a registration of a servitude over the land marked off as 
 such road, in favour of every other plot on such general 
 plan. 
 
 The facts in that case were briefly as follows. The 
 Palmboom Estate at Newlands was subdivided into building 
 lots, with roads marked off upon a general plan, and sold 
 according to such plan. The plaintiff company owned 
 certain property and lots bounded on the north by a road, 
 and on the west by a cross-road, as shown on a general plan 
 exhibited at the time of the sale. On the diagram of the 
 transfer of the defendant's lot the cross-road is continued 
 on the western boundary of his lot. The plaintiff company 
 closed the cross-road which ran along the western boundary 
 of their lot, but the defendant contended that he was en- 
 titled to use not only the continuation of the cross-road 
 which bounded his own lot on the west, but also the cross- 
 road bounding the plaintiff's property. Under these circum- 
 stances it was decided that — 
 
 (a.) Where land has been subdivided into lots, and such 
 lots have been sold and transferred according to a general 
 plan of subdivision in which the roads for the different lots 
 are laid down, the owner of each lot may use all such roads 
 
 (x) 9 Juta, 84. 
 
428 OPINIONS OF GKOTIUS. 
 
 as are reasonably necessary for convenient access to and 
 egress from the public or high roads. 
 
 (&.) Such owner is Dot, however, entitled to the use of 
 every road marked on the plan merely because it. appears 
 on such plan and the diagram attached to his transfer. 
 
 (c.) Such owner, if his lot does not adjoin a certain road 
 laid down on the general plan, is not entitled to any servi- 
 tude thereover, unless it be ex necessitate, by prescription, or 
 by registration, although such land is shown on the said 
 plan as a road. And the owner of the plot adjoining this 
 road is entitled, as against the owner of the former lot, to 
 occupy and enclose such land or road. 
 
 It must be noted that in the case of Hiddingh v. Topps 
 the court went very far in allowing oral evidence to be led 
 to explain the conditions of sale and the titles of the parties 
 interested As a rule, oral evidence will not be admitted 
 to prove certain representations made at the time of the 
 sale, if these representations do not appear in the deed of 
 transfer, or to explain or vary the titles of the owners as 
 appearing on their respective conveyances.^) In the case 
 of Hiddingh v. Topps the conditions of sale had been lost, 
 and this circumstance may to some extent be considered a 
 justification for the procedure followed ; moreover, from the 
 reported case it appears that no objection was made at the 
 time. 
 
 The dominium of the soil marked out as roads remains 
 in the seller, unless he has divested himself thereof in favour 
 of the purchasers. He will be at liberty to use the roads, 
 to go thereon at any time, to fell trees, and do other work 
 necessary for their reparation, (s) 
 
 The intention of the seller as regards the ownership of 
 the roads is to be gathered from the circumstances of each 
 case. If the ownership is transferred to the purchasers of 
 the lots at the sale, it vests in the owners of the lots adjoin- 
 
 (y) Executors of Hofmeyr v. De Waal, 1 J. 424. 
 
 (z) Executors of Hofmeyr v. De Waal, 1 J. 424. See also Municipality 
 of Beaufort West v. Wernich, 2 J. 36. 
 
OPINIONS OF GROTIUS. 429 
 
 ing the road up to the middle thereof. And if no servi- 
 tude of right of way, &c, exists over such road in favour 
 of the owners of other lots, any person who becomes the 
 proprietor of all the lots adjoining the road becomes the 
 proprietor of the soil of the road, and may close up such 
 road.(a) 
 
 According to English law, the presumption is that the 
 ownership of the soil of a common road vests in the owners 
 of the adjoining property. (b) 
 
 The right to cut fuel, as a servitude, has been considered 
 under Personal Servitudes on p. 423. 
 
 Water-Rights. 
 
 Aquceductus is the right of leading water through or out 
 of another man's landed property, either from the fountain- 
 head or any other place,(c) according to agreement. 
 
 A servitude (e.g. of aquseductus) established in favour of 
 the owner of the dominant tenement, in respect of certain 
 rights belonging to the owner of the servient property, must 
 be restricted to the rights vested in such last-mentioned 
 owner at the time of the constitution of the servitude, and 
 cannot be extended to embrace other rights not at that time 
 so vested, (d) 
 
 An unqualified right of servitude duly constituted by 
 the transfer and the title-deeds of the property cannot be 
 restricted or impaired by merely personal agreements or 
 arrangements between the grantor and the owner of the 
 dominant property.(e) 
 
 The right of water-leading having been granted, it must 
 be presumed that all things necessary for the enjoyment 
 
 (a) Porter v. Phillips, Buc. 1876, 192. 
 
 (5) Berridge v. Ward, 10 C. B. N.S., 400. See authorities quoted in 
 argument of Beaufort West Municipality v. Wernioh, 2 J. 38, 39, 40. 
 (o) Voet, 8, 3, 6. 
 
 (d) Cloete v. Ebden, 2 Menz. 311. 
 
 (e) Hawkins v. Munnik, 1 Menz. 465. 
 
430 OPINIONS OF GROTIUS. 
 
 of the servitude have been granted at the same time. 
 Ac servitute concessa simul concessa censeatur omnia, sine 
 quibus servitus exerceri nequit. Quomodo haustu, aquse 
 dato, iter quoque ad puteum datum intelligitur. Et, si 
 mihi per aream tuam in domum meam ire agere cesseris, 
 nee ex piano aditus ad domum meam per aream tuam sit, 
 dum modo mea altior area tua est, vel gradus vel clivos 
 propius januam meam jure facere possum ; dum ne quid 
 ultra, quam quod necesse est, itineris causa demoliar. Is 
 quoque, qui aquas ducendse jus habet vel sistulam in rivo 
 ponere, vel aliud quidlibet facere potest, quo aquam latius 
 excipiat ; modo ne domino vel rivalibus aquagium deterius 
 efficiat.(/) 
 
 Does this include the right to go on to the servient 
 property for the purpose of repairing or deepening trenches 
 to promote the free flow of water, in the case of a servitus 
 aqucedudus? According to Voet, in the paragraph above 
 quoted, such right must be conceded to the owner of the 
 dominant property. He must, however, exercise this right 
 civiliter modo, in a reasonable manner,^) and must not 
 impose any new burden on the servient property,(A) and 
 no damage must be caused, (i) 
 
 This rule also applies to the servitus aqucehaustus et pecoris 
 ad aquam appulsus and the right to cut fuel, (k) 
 
 No deviation or extension can be made in a watercourse 
 or aqueduct within the limits of the servient tenement, but 
 the course originally selected and fixed upon must be adhered 
 to, unless the owner of the servient tenement consents to 
 the deviation or extension. (J) 
 
 The Servitude Aquwhaustus is the right of drawing water 
 
 (/) Voet, 8, i, 16. 
 
 (g) Gliick, De Servitut, § 666 in fine. 
 
 (h) Digest, 8, 2, 20, 5. 
 
 (i) Wolvaardt v. Pienaar, 1 C. L. J. 345. In that case Kotze, C.J., held 
 the law to be as above quoted, and this appears to be the correct view, 
 although the majority of the court were of a different opinion. 
 
 (k) See the two succeeding paragraphs. 
 
 {I) Municipality of Potchefstroom v. Cameron (S. A. E.), 1 Kotze, p. 206. 
 
OPINIONS OF GEOTIUS. 431 
 
 from another person's private fountain, well, or stream, and, 
 by our customs, even from another's cistern. (m) 
 
 This servitude includes the right of way to the fountain, 
 stream, well, or cistern, (ra) which must, as in the case of a right 
 to cut fuel(o) or to lead water, (p) be exercised civiliter modo. 
 
 Bight to Watering-Place (servitus pecoris ad aquam appul- 
 sus). — Unless any particular spot has been definitely consti- 
 tuted a watering-place for the purpose of the above servitude, 
 the owner of the servient property may point out a convenient 
 and easily accessible place for that purpose. He must, 
 however, not be unreasonable, for in that case the court 
 will interfere. The cattle driven to the water must do no 
 damage to the servient tenement, and must use a defined 
 track, of such width as the circumstances of each case 
 requires. If the watering-place is at a great distance, the 
 cattle must be allowed a reasonable rest along the way.(y) 
 
 Upon the terms of the grant will depend whether all 
 cattle pasturing on the dominant tenement, the property 
 of the owner of such tenement or not, can be driven to the 
 watering-place, (q) 
 
 A personal servitude of aqusehaustus, aquseductus, &c, 
 must be in favour of an individual, and must be distinct 
 from his capacity as owner of a tenement. The individual 
 vested with such right is termed a " usuarius." He cannot 
 sell or cede this right, which terminates upon his death, and 
 it is not transmissible to his heirs.(p) 
 
 The grant of a servitude of water-rights to draw water 
 and to water cattle and stock includes, as before stated, a 
 free right of way. If a farm on which are certain springs is 
 divided among two co-proprietors of undivided shares, upon 
 condition that the owner of the portion on which are the 
 
 (m) Grotius, Introd. 2, 35, 10. Voet, 8, 3, 7. 
 
 (n) Hawkins v. Munnik, 1 Menz. 465. Voet, 8, 3, 7. 
 
 (0) Van Niekerk v. Wimble, 3 Eos. 61. 
 
 (p) See Wolvaardt v. Pienaar, 1 C. L. J. 345. 
 
 (j) Laubscher v. Eeve and Others, 1 Ros. 408. 
 
 (r) Dreyer v. Ireland, Buc. 1874, 193. 
 
432 OPINIONS OF GROTIUS. 
 
 springs shall allow the others the use of the spring water 
 for domestic purposes and to water their stock, the latter 
 can use and carry away as much water as they may bona fide 
 require, provided they leave the other co-proprietors their 
 share of the water.(s) 
 
 Bight of Drainage. — The right to discharge water on a 
 neighbour's land may exist by virtue of a duly created 
 servitude or by virtue of the natural situation of the locality. 
 And if it is difficult, owing to the nature of the surface, to 
 ascertain what the natural channel is, then the course in 
 which the water has flowed from time immemorial, i.e. for 
 the period of thirty years or more, will be considered as the 
 natural channel. 
 
 Where once the right to discharge water into such a 
 channel has been established, the person entitled to the right 
 may increase the ordinary flow, to the prejudice of the lower 
 proprietor, if such increase be occasioned in the ordinary 
 course of draining, ploughing, or irrigating the upper land, 
 and if it be not greater than is reasonable under the circum- 
 stances. If the channel becomes choked through neglect, he 
 may compel the lower proprietor to clean it himself, or to 
 allow him to do so (Ludolph and Others v. Wegner and 
 Others, 6 Juta, 193.) 
 
 Water-Bights of Riparian and Lower Proprietors. — The 
 conflicting rights of upper and lower riparian proprietors have 
 met with full consideration in the various judgments delivered 
 by the South African courts in a series of well-reasoned and 
 clearly-worded decisions. In fact, so definite, clear, and well 
 considered are these decisions, that they may be said to have 
 given a certain finality to the law, and thus to have obviated 
 a vast amount of litigation which would otherwise have been 
 inevitable. 
 
 The broad principle is, that a private stream belongs to 
 the owner of the property in which it rises and takes its 
 
 (s) Landman v. Daverin, 2 E. D. 1. 
 
OPINIONS OF GROTIUS. 433 
 
 course ; whereas the waters of a public stream belong to the 
 riparian owners along its banks. 
 
 At the outset, therefore, it becomes of very great import- 
 ance to have an accurate definition of the terms " public and 
 private streams." 
 
 The Civil Law (t) draws a distinction between a river and a 
 streamlet, flumen and rivus : " Flumen a rivo magnitudine dis- 
 cernendum est aut existimatione circumcolentium," and states 
 further that, according to its waters, rivers are either permanens 
 (perennial) aut torrentia (torrents). The test whether a certain 
 water-flow is a river or streamlet becomes clearer when it is 
 coupled with the capability or otherwise thereof to be used 
 in common by the dwellers on its banks, as has been done 
 by Baldus (u) and Vinnius.(v) 
 
 Ulpian's views are set forth in the Digest (43, 12, 1, § 2, 3). 
 "Item flumina qusedam sunt perennia, qusedam torrentia; 
 perenne est quod semper fluat, torrens id est hyeme fluens. 
 Fluminum qusedam publica sunt, qusedam non ; publicum 
 flumen esse Cassius definit quod perenne est ; hsec sententia 
 Oassii, quam et Celsus probat, videtur est probabilis." 
 
 The doctrines of the Civil Law were ultimately incorporated 
 in the Roman-Dutch law. Voet, in his commentaries on the 
 title of the Digest quoted above, draws a very clear and con- 
 cise distinction. He says, " Est autem flumen vel publicum 
 'vel privatum; publicum quod perenniter fluit, ac ad totum 
 populum pertinet; privatum quod sestate esarescit, et in 
 privati dominio est, nee a cseteris locis privatis differt."(a;) 
 
 Prom this it follows that a public stream is a permanent 
 one, whereas a private stream is either pure surface water or 
 an occasionally running stream. 
 
 We must, however, guard against the error of considering 
 a perennial stream as one that flows freely and constantly. 
 
 Broadly stated, the Eoman-Dutch law recognises two 
 kinds of natural streams or watercourses, viz., public and 
 
 (t) Digest, 43, 12, 1, 2, 3. 
 («) Baldus ad Digest, 1, 8, 3. 
 (i>) Vinnius ad Instit. 2, 1, 3. 
 (a-) Voet, 43, 12. 
 
 2 E 
 
434 OPINIONS OF GEOTIUS. 
 
 private. Under the designation of public streams are in- 
 cluded all perennial rivers, whether navigable or not, and 
 all streams which, although not large enough to be con- 
 sidered as rivers, are yet perennial, and are capable of being 
 applied to the common use of the riparian proprietors. Under 
 the designation of private streams are included rivers and 
 streams which are not perennial, and streamlets which, 
 although perennial, are so weak as to be incapable of being 
 applied to common use.(y) The designation of perennial 
 or permanent is not forfeited if the river sometimes becomes 
 dry. (2) If a stream ordinarily runs in ordinary weather, it 
 is not the less a running stream if it is occasionally dry on 
 hot days in dry seasons ; if this were not so, there certainly 
 would not be many running streams in the Cape Oolony.(a) 
 
 Bearing this in view, a public river has been defined as a 
 stream of water usually flowing in a definite channel, having 
 a bed and banks, and usually discharging itself into some 
 other stream. In a public river the volume of water need 
 not be large or constant, but it must be something more 
 than mere surface drainage to avoid being a dry river 
 (torrentia), and must run during the greater part of the 
 year in a definite channel, and in such quantity as to be 
 capable of being enjoyed by other riparian proprietors in 
 common with the one in whose land it rises. (&) 
 
 The water of a perennial spring, which flows down in a 
 definite and defined channel, but which for a portion of its 
 course disappears and sinks into the ground, but reappears 
 lower down and continues to flow in a well-defined channel, 
 is a public stream, (c) 
 
 A river which has a continuous channel and well-defined 
 banks, and is perennial at its source, and is fed during its 
 course by perennial streams and fountains, although dry in 
 
 (y) Van Heerden v. Weise, per De Villiers, C. J., 1 A. 7. 
 (z) Van Heerden v. Weise, 1 A. 5. 
 
 (a) Per Smith, J., in Vermaak v. Palmer, Buo. 1876, 28. See also Shield 
 v. Arndt (3 Green Ch. 247) ; Kaufmann v. Griesemer, Pen., 407. 
 (6) Per Barry, J., Pres., Southey v. Schombie, 1 E. D. C. 295. 
 (c) De Wet v. Hisoook, 1 E. D. C. 257, and 1 A. 58. 
 
OPINIONS OF GROTIUS. 435 
 
 parts in consequence of the diversion of its waters, is never- 
 theless a public and permanent river, (d) 
 
 Mere surface drainage, torrents, and springs of water- 
 courses so weak that they are incapable of common user 
 by the riparian proprietors, and private springs erumpentum 
 in suo, are included under private waters.(e) 
 
 The waters of weak springs, which have taken a certain 
 course and have been joined in their flow by the waters of 
 other weak springs, remain private waters.(/) 
 
 Underground water, running in undefined and unknown 
 channels or veins, becomes the private property of the person 
 who abstracts it on his own ground by digging, &c, although 
 the abstraction may cause a diminution in the supply of other 
 wells, or even of a public stream, (g) 
 
 The Use of the Waters of Public and Private Streams. — The 
 broad principle underlying the rights of various riparian 
 proprietors to the use of waters of public and private streams 
 was fully discussed in the case of Van Heerden v. Weise.Qi) 
 
 "The importance of the distinction between public and 
 private streams," says De Villiers, O.J., in that case, " con- 
 sists in this, that whereas in the case of the former the rights 
 of each riparian proprietor are limited by the rights of the 
 public and of the different riparian proprietors jure naturae, 
 in the case of the latter the rights of each proprietor are 
 only limited by such rights as long usage may have con- 
 ferred on the remaining riparian proprietors." The learned 
 Chief-Justice then proceeds to explain the origin and early 
 history of these rights in the following terms : " It is im- 
 portant to bear in mind that by our law, differing in that 
 respect from the law of England as well as of Prance, even 
 rivers that are not fit to be used for navigation are deemed 
 
 (d) Southey v. Schombie, 1 E. D. C. 286. 
 
 (e) Van Heerden v. Weise, 1 A. 7. Vide also footnotes (b) and (d), and 
 Meyer and Others v. Johannesburg Waterworks Co., C. L. J. (1893) p. 159. 
 
 (/) Ketief v. Louw, Buc. 1874, p. 165. 
 
 (g) Struben and Others v. The Cape Town Districts Waterworks Co., 
 9 J. 68. {h) 1 A. 5. 
 
436 OPINIONS OF GEOTIUS. 
 
 to be public provided they be perennial. They were deemed 
 to be public or common, as has been justly remarked by 
 Lord Denman, C.J., 'in this sense only, that all might 
 drink it or apply it to the necessary purposes of supporting 
 life.' (-i) The rights of the public were established long 
 before those of the different riparian proprietors were de- 
 fined. If a river was perennial, the use of the water became 
 common to all ; if not perennial, the public had no right to 
 the water, and the owner of the property might deal with 
 the water as his own. (k) In course of time, however, the 
 rights of the riparian proprietors, as distinct from those of 
 the general public, came to be defined. In regard to public 
 streams, the Emperors Antoninus and Verus were the first 
 to decide that water from a public river ought to be divided 
 for purposes of irrigation acccording to the measure of 
 possession of the riparian proprietors.(7) And subsequently 
 it was enacted by the Emperors Diocletian and Maximilian 
 that an upper proprietor shall not be allowed to have the 
 exclusive enjoyment of water, which by ancient custom 
 had been shared by the lower proprietors for purposes of 
 irrigation. As there was no necessity for such an enact- 
 ment in respect of public streams, it appears to me probable 
 that this was intended to refer only to private streams. 
 The context in which the Constitution is referred to in the 
 Code would seem to confirm this view. It is quoted as an 
 exception to the general rule that a person may deal as he 
 chooses with water rising on his own land ; but even this 
 general rule appears to me to be subject to the limitation 
 that the water thus rising in a man's own land is not the 
 source or the main source of a public stream. When once 
 the public nature of the stream or river is established, the 
 rights of each riparian proprietor, whether at its source or 
 along its course, are limited by the natural rights of the 
 public, so far as those rights are capable of being exercised, 
 
 (i) Mason v. Hill, 5 B & Ad. p. 24. 
 (&) See Vinnius ad Inst. 2, 1, 1. 
 (I) Digest, 8, 3, 1. 
 
OPINIONS OF GEOTIUS. 437 
 
 and by the common rights of the remaining riparian pro- 
 prietors. When once the private nature of a stream or river 
 is established, the public has no right in respect of it, and 
 the lower proprietors can claim no other right than such as 
 long usage may have established in their favour against the 
 upper proprietors." 
 
 In the case of Retief v. Louw,{m) the earliest in connection 
 with the rights of riparian owners (decided in 1856), Bell, J., 
 held that the waters of a public stream do not belong abso- 
 lutely and exclusively to the proprietor of the land through 
 which it flows, but all the riparian proprietors have a 
 common right to use the water. This use, at every stage of 
 its exercise by any one of the proprietors, is again limited by 
 a consideration of the rights of the other proprietors. The 
 learned judge then proceeds with great care to discuss what 
 the nature of such use is, and he comes to the following 
 conclusion : — 
 
 The usage of public waters is therefore — 
 
 (1.) For the support of animal life. 
 
 (2.) For the increase of vegetable life. 
 
 (3.) For mechanical works. 
 
 If the upper proprietor require all the water for the 
 support of life, the lower proprietors must submit. If there 
 be more than sufficient water for this purpose, sufficient must 
 be allowed to flow down for the supply of the animal demands 
 of all the lower proprietors before the upper proprietor can use 
 the rest of the water for (2) — i.e., irrigation and the promotion 
 of vegetable life. The proprietors in sequence are entitled to 
 use the water for agricultural purposes. When the demands 
 of agriculture have thus been satisfied throughout the course 
 of the stream, the proprietors are entitled in sequence to use 
 the water for (3) — i.e., mechanical works. No proprietor is 
 entitled to use the water without regarding the wants of the 
 other proprietors. The extent to which any one proprietor 
 is entitled to use the water will depend upon the circum- 
 stances of each case. 
 
 (to) Buc. 1874. p. 165. 
 
438 OPINIONS OF GROTIUS. 
 
 In considering the use to which the water of a public 
 stream may be applied, a difference must be drawn between 
 the ordinary or primary and the extraordinary or secondary 
 use thereof. The ordinary use arises ex necessitate, the 
 extraordinary out of convenience. 
 
 In the next case, that of Hough v. Van der Merwe,(n) 
 the court arrived at almost the same conclusions as those 
 laid down in the previous case of Retief v. Louw, although 
 that case was not referred to in judgments. It was there 
 laid down that if the upper proprietor of land adjoining a 
 public stream, in the enjoyment of his ordinary use, deprives 
 the lower proprietors of their enjoyment of ordinary use, he 
 will not be liable ; but if in the enjoyment of his extra- 
 ordinary use he deprives the lower proprietors of their 
 ordinary or extraordinary use, he will be liable, for no one 
 has the right to intercept the regular flow of a stream, if he 
 thereby interferes with the lawful use of the water by other 
 proprietors and inflicts on them a sensible injury, (o) 
 
 The practical outcome of these principles have been set 
 out at length in the same case {Sough v. Van der Merwe) as 
 follows : — 
 
 The owner of property by or through which a public 
 stream flows is entitled to divert a portion of the water 
 for the purposes of irrigation, provided, Firstly, That he 
 does not thereby deprive the lower proprietors of sufficient 
 water for their cattle and for domestic purposes. Secondly, 
 That he uses no more than a just and reasonable pro- 
 portion of the water, consistently with similar rights of 
 irrigation in the lower proprietors; and, Thirdly, That he 
 returns the water to the public stream with no other loss 
 than that which has been caused by irrigation.^) 
 
 (m) Buc. 1874, p. 148, and see Bailie v. Hendriks and Others (S. A. R.), 
 1 Kotze, p. 211. 
 
 (o) Milner v. Gilmour, 12 Moore's P. C. C. 156. 
 
 lp) See also Southey v. Schombie, 1 E. D. C. 286. De Wet v. Hisoock, 1 
 E. D. C. 249, and 1 A. 58. Jordaan v. Winkelman and Others and the 
 Cape Government, 1879, p. 79. These decisions have also been followed by 
 the High Court of the Orange Free State in the case of Allison v. Pretorius, 
 
OPINIONS OF GROTTOS. 439 
 
 The question of a just and reasonable use is one of degree, 
 and depends entirely upon the circumstances of each parti- 
 cular case (compare Retief \. Louw). 
 
 Over private waters the owner of the land on which such 
 waters rise has full right of disposal. Water erumpentem 
 in suo is the property of the owner on which it rises, (q) 
 
 He has an absolute right to the exclusive use thereof, so 
 long as no one else has acquired a right or servitude there- 
 over.^') 
 
 If such private stream has not been allowed to flow down 
 in a definite and accustomed channel for any length of time 
 to the land of a lower proprietor, the upper owner retains his 
 right of exclusive usage, and the lower proprietor cannot 
 restrain him from diverting the water of the stream.(s) 
 
 On the other hand, the upper proprietor is not entitled 
 to the unlimited and exclusive use of water rising on his 
 land, if this water has been allowed for the period of pre- 
 scription to flow down in a definite and accustomed channel, 
 so that lower proprietors have for that period enjoyed the 
 common use of the water.^) 
 
 At first sight the case of Erasmus v. Be Wet (u) seems to 
 restrict the application of the general principle laid down in 
 Retief v. Louw. In that case Watermeyer, J., laid down that 
 the proprietor of an upper farm is entitled to the free use of 
 water flowing through, and to a great extent rising upon, the 
 upper farm, for the purposes of irrigation and of increasing 
 plantations, though such free use of the water may cause 
 
 decided 15th May 1880, and by the High Court of the Transvaal in Bailie v. 
 Hendriks and Others, Kotze, 211, and Meyer v. The Johannesburg Water- 
 works Co., C. L. J. 1893, p. 159. 
 
 {q) Retief v. Louw, Buc. 1874, p. 165. 
 
 (r) Dreyer v. Ireland, Buc. 1874, p. 193. 
 
 (s) Mouton v. Van der Merwe, Buc. 1876, p. 18. 
 
 (t) Vermaak v. Palmer, Buc. 1876, 25. Compare with this case Silber- 
 bauer v. Breda, and the judgments delivered therein by Sir William Hodges, 
 C.J., and Watermeyer, J., and also the judgment of the Privy Council in 
 appeal. See Buc. 1876, p. 33. Vide also De Wet v. Hiscock, 1 E. D. C. 
 249, and 1 A. 58. 
 
 (m) Circuit Court of Robertson, decided in Cape Town, Buc. 1873, 204. 
 
440 OPINIONS OF GEOTIUS. 
 
 damage to the lower proprietors. In the face of subsequent 
 decisions, and the doubts expressed by the Privy Council in 
 the case of Silberbauer v. Van Breda, this decision as a general 
 principle cannot be accepted. There were, however, peculiar 
 and exceptional circumstances in the case, and a special con- 
 dition as to water-leading in the title-deed, whence it may 
 be gathered that the decision was meant to cover only the 
 exceptional circumstances of that case. 
 
 The user for the purposes of irrigation by lower riparian 
 proprietors for the period of thirty years and upwards of 
 the water of a stream which had been allowed to flow down 
 to them free and unobstructed, does not per se confer on 
 them a prescriptive right against the upper proprietor to 
 prevent him from making any use of the water; but the 
 parties are thrown back on their ordinary rights as riparian 
 owners, (v) 
 
 The upper proprietor does not acquire a prescriptive right 
 of user of the whole stream as against the lower proprietors, 
 where he has not used the whole stream to the same extent 
 for a period of thirty years.(a;) 
 
 Water flowing underground in undefined and unknown 
 channels or arteries becomes the property of the person 
 who causes it to rise to the surface by excavation, pumping, 
 or any other process. He is then entitled not only to the 
 use of the water, but to the water itself, (y) In these re- 
 spects underground waters were placed upon the same foot- 
 ing and governed by the same rules of law as surface rain 
 water. 
 
 Si in meo fundo aqua erumpat, quae ex tuo fundo venas 
 habeat, si eas venas incideris, et ob id desierit ad me aqua 
 pervenire, tu non videris vim fecisse, si nulla servitus mihi 
 eo nomine debita fuerit, nee interdicto quod vi aut clam 
 teneris.(s) 
 
 (v) Jordaan and Others v. Winkelman and Others and the Cape Govern- 
 ment, 1879, p. 79. Compare Myburgh v. Van der Bijl, 1 J. 360. 
 [x) Rossouw v. Burgers and Others, 1 J. 119. 
 
 (y) Struben and Others v. Cape Town Districts Waterworks Co., 9 J. 74. 
 (s) Digest, 39, 3, 21, per Pomponius. 
 
OPINIONS OF GROTIUS. 441 
 
 This view is slightly modified by Marcellus, who suggests 
 that an action might lie and liability be incurred where 
 water is maliciously intercepted. Cum eo, qui in suo fundo 
 fodiens vicini fontem averterit, nihil posse agi. Nee de dolo 
 actio est; et sane non debet habere, si non animo vicino 
 nocendi, sed suum agrum meliorem faciendi id fecit, (a.) 
 
 Upon these authorities was based the judgment in the 
 case of Struben and Others v. The Cape Town Districts 
 Waterworks,(b) where it was decided that the lower pro- 
 prietors have a right to the accustomed or natural flow of a 
 perennial stream only ; and therefore, if the upper proprietor, 
 by operations upon his own land, acquires an additional 
 supply, he is not bound to allow such additional supply to 
 flow down, but may treat it as his own. 
 
 "Where," says De Villiers, C.J., in that case, "the water 
 abstracted is percolating water, not flowing in any defined 
 channel that could possibly have been known to the land- 
 owner abstracting it, I am satisfied that he is entitled to the 
 water itself, and not merely to the use of it, even although 
 the abstraction may cause a diminution in the supply of a 
 public stream ; " and the learned Chief -Justice then proceeds 
 to apply this principle, and comes to the conclusion that the 
 landowner on whose property is a spring, the main source of 
 a perennial stream, can open up such spring, and can use 
 as his own property the increased supply of water obtained 
 by such operations. 
 
 This decision has been questioned by Kotze, C.J. (S. A. 
 R.), in the case of Meyer and Others v. The Johannesburg 
 Waterworks Estate and Exploration Company and Others.(c) 
 Kotze, C.J., is reported to have said there, " The public and 
 common character appertaining to the stream itself also 
 appertains to the springs forming its source; and if it 
 were proved that the springs used and the water opened up 
 by the Waterworks Company are the actual source or the 
 main source of the public stream in question, I would have 
 
 (a) Digest, 39, 3, 1, § 12. (6) 9 Juta, 74. 
 
 (c) Reported in C. L. J. for 1893, p. 159 et seq. 
 
442 OPINIONS OF GKOTIUS. 
 
 no hesitation in holding that they have no right whatever to 
 the exclusive use of the water ; and supposing they had by 
 their excavations at the source itself materially increased 
 the ordinary and accustomed strength of such springs, I 
 would be disposed to say, notwithstanding the decision in 
 the recent case of Struben v. The Cape Districts Waterworks 
 Company (9 J. 68), that even with respect to such increase, 
 the persons who have caused it have no exclusive user, and 
 the lower proprietors may be heard to complain against any 
 such exclusive use and appropriation of it by those on whose 
 land it rises and who have so increased the supply. If a 
 party by excavation, or any other means, takes it upon him- 
 self to assist Nature by opening up, further than Nature 
 herself may already have done, a well-ascertained spring 
 forming the source or main source of a public stream, and 
 thereby increases the flow or strength of the water, he is 
 dealing with that which, like the stream itself, is of a public 
 and common character, and if now by his acts he increases 
 or materially improves the strength of a spring of a common 
 and public character, I can see no reason either of law or 
 policy why the common or public character of the spring, 
 attaching to the normal or accustomed quantity of its flow, 
 may not or should not also attach to the increased quantity. 
 The increased quantity of water is quite as capable of common 
 use as the normal or accustomed quantity, and should there- 
 fore be made subservient to it. It is not like the case of 
 digging or draining one's own land, and thereby diverting 
 mere surface or percolating water not flowing in a defined 
 channel. In this latter case no one can tell how the water 
 percolates or wends its way along through the soil, nor 
 determine beforehand what may be the precise results of 
 his so cutting off or draining the water. In the case, 
 however, of digging and excavating at the source of a 
 permanent stream with tbe view of increasing the flow, the 
 party knows that the spring with which he is dealing is the 
 feeder or main feeder of the stream. He knows he is deal- 
 ing with that which, like the stream itself, is of a public or 
 
OPINIONS OF GEOTIUS. 443 
 
 common character. It is apparent on the face of it, and he 
 can calculate the precise result of his acts. He may be at 
 full liberty to make such excavations and to increase the 
 strength of the spring, and thereby obtain more water for 
 the better and more profitable use of his land, but I very 
 much question his right, unless some approved authority be 
 cited or produced, to the exclusive use in such increase. 
 It seems to me that his right to such increase should, like 
 his right to the original and accustomed flow, be limited by 
 the similar rights of the lower proprietors." 
 
 This, of course, is merely an obiter dictum. The statement 
 of law contained therein seems, upon mature consideration, 
 to conflict not only with Struben's case, but also with the 
 law as laid down in the Digest and accepted in Roman-Dutch 
 jurisprudence. With all respect for the reasoning of the 
 learned Chief -Justice, it seems that the person who increases 
 the flow of water of a feeder of a perennial stream is not 
 " dealing with that which, like the stream itself, is of a public 
 or common character." He is dealing with the extra supply, 
 that is to say, with the water which naturally did not rise 
 in such spring, but flowed away somewhere else in unascer- 
 tained and undefined channels. It is true that he can 
 determine the result of his operations, viz., to increase the 
 flow, if successful, but beyond that he cannot determine be- 
 forehand what may be the precise results of his so cutting 
 off or draining the water. All that he knows is, that the 
 increase did not rise in the spring before, and that if he did 
 not cause it to rise there, it would flow somewhere else. The 
 water abstracted by him previously flowed in unknown 
 and indefinite channels underground, and therefore he who 
 abstracts it bona fide on his own land is entitled thereto, no 
 matter where the operations take place. There can be no 
 doubt that if the proprietor of the land dug a well, say, two 
 feet below or above the feeder, and obtained thence a vast 
 quantity of water, he would be entitled to it. This flow 
 could only have been caused by giving certain underground 
 arteries or channels of water a direct facility to rise to the 
 
444 OPINIONS OF GROTIUS. 
 
 surface. Now, if the excavations are made, not two feet 
 from the feeder or spring, but in such spring or feeder 
 itself, it cannot alter the fact that, but for such excavations, 
 the underground water would not have risen to the surface, 
 but would have flowed away in unascertained channels some- 
 where else. This being the case, there can be no difficulty in 
 applying the law as laid down by Pomponius and Marcellus 
 to the increased supply from feeders or springs due to opera- 
 tions carried on by the owner of land on which such feeders 
 or springs are situated. 
 
 In questions of servitudes, it is sufficient if the registered 
 owners or the proper representatives of the domini are before 
 the court, though notice of action should be given to re- 
 maindermen, in order that they may intervene should they 
 so desire, (d) 
 
 If an interference with the common rights of riparian 
 owners has taken place, the proprietors need not wait until 
 actual damage has been sustained in order to come to court 
 with a prayer for redress and an interdict restraining any 
 further interference. («) In the case of Coleman v. Lynch 
 (0. F. S., Dec. 2, 1892), Melius de Villiers, C.J. (0. P. S.), is 
 reported to have said : " It is sufficient to observe that by 
 law he who has a right to the user of water in a public 
 stream, whether such stream be navigable or not, is entitled 
 to an interdict against those who interfere with the course 
 of the stream to his detriment (Voet, 43, 12) ; and he need 
 not wait until actual damage has first been caused, and so 
 leave an opening for the setting up of a plea of prescription, 
 where no damage has for a considerable time been produced 
 by the interference." 
 
 (d) Fourie's Executrix v. Greef's Executrix, Buc. 1879, 122. See also 
 exceptions taken in the case of Meyer and Others v. The Johannesburg 
 Estate and Exploration Co. and Others, 0. L. J., 1893, p. 159. 
 
 (e) Beckett v. Morris (12 Jur. N.S., 806). Struben and Others v. Cape 
 Town Districts Waterworks Co., 9 J. 68. Coleman v. Lynch, 0. F. S., Dec. 
 2, 1892. Meyer and Others -o. The Johannesburg Estate and Explora- 
 tion Co. and Others, C. L. J., 1893, p. 159. See also Allison v. Pretorius, 
 O. F. S., May 15, 1880. 
 
OPINIONS OF GKOTIUS. 445 
 
 Registration of Servitudes — Notice to Third Parties — 
 Hypothecation of Burdened Tenement. 
 
 Begistration and notice must be considered together, 
 registration being "notice to all the world." Since the 
 object of registration is to give notice of certain facts to 
 persons, the question arises, How far does actual notice of 
 the facts to a person dispense with the necessity of registra- 
 tion as far as such person is concerned? Registration, as 
 Grotius says, is not the substantia actus, but is required ad 
 faciliorem probationem (Opinion No. 65, Holl. Cons. 3 (b.) 
 173). 
 
 If a person has actual and definite notice of the existence 
 of certain facts, he cannot contend that his actions with 
 regard to them were based upon the circumstance that no 
 registration of them had been effected. Fraud or mala fides 
 is the ground on which the court is governed in cases of 
 notice, and such person is bound by the notice given to him, 
 and cannot ignore it merely on account of the want of 
 registration^/) 
 
 The first South African decision bearing on this point is 
 that of Parkin v. Titterton. Parkin claimed a right of way 
 to his land over the adjoining land of Titterton, both parties 
 deriving their title from a common vendor. This right of 
 way was not registered, but was alleged to have been granted 
 at the time of the sale. The court gave judgment in favour 
 of Titterton, on the ground that the servitude had not been 
 registered, nor had it been proved that Titterton, at the 
 time he bought the ground over which a servitude was 
 claimed, had any notice of the servitude now claimed by 
 Parkin. This case is discussed on p. 426, supra. 
 
 The case of Hawkins v. Munnik (g) is in some respects a 
 converse view of the law considered in Parkin v. Titterton. 
 
 (/) Le Neve v. Le Neve, White and Tador's L. C. ii. 32. See also 
 Jansen v. Fincham, 9 J. 289. 
 
 (g) 1 Menz. 465. Of. Voet, 8, 1, 6. See also Opinion No. 58, and Voet, 
 8, 4, 1. Vide Hofmeyr v. De Waal, 1 J. 424. 
 
446 OPINIONS OF GKOTIUS. 
 
 In that case the servitude was duly registered and set forth 
 in the title-deeds, and it was decided that the full enjoyment 
 thereof could not be impaired by setting up personal arrange- 
 ments made at the time of the sale of the servient property. 
 The court held that " an unqualified right of servitude, duly 
 constituted by the transfer and title-deeds of the land, 
 cannot be limited or impaired in the person of a singular 
 successor by any merely personal agreements between the 
 granter of the servitude and the person in whose favour the 
 •servitude was granted, or any person subsequently acquiring 
 the servient tenement from the granter." 
 
 The cases of Judd v. Fourie (h) (Eastern Districts Court), 
 and Richards v. Nash and Another (i) (Supreme Court), were 
 decided about the same time. The former came on for 
 hearing on 7th and 9th June 1881, and judgment therein 
 -was delivered on 29th November 1881. The latter was 
 heard on 23rd and 24th November 1881, and decided on 
 24th November 1881. 
 
 In Judd v. Fourie the whole question of registration and 
 notice, and the authorities bearing thereon, will be found 
 exhaustively discussed both in the arguments and the judg- 
 ments in connection therewith. It will therefore be un- 
 necessary to enter more fully into the matter here. 
 
 Two legal points were decided in the case. In the first 
 place, it was held that prsedial servitudes partake of the 
 nature of immovable or real property, and consequently they 
 must be registered coram lege loci. An unregistered agree- 
 ment granting a right of servitude is not sufficient to con- 
 stitute a servitude. And, secondly, it was decided that 
 express notice before purchase of an unregistered right of 
 servitude will bind a purchaser for valuable consideration. 
 
 The first point was decided by the unanimous judgment of 
 the court. The second was decided by the majority of the court, 
 Barry, J., Pres., and Buchanan, J. Shippard, J., dissentiente, 
 was of opinion that since, in the absence of prescription 
 
 (h) 2 E. D. C. 41. 
 (i). 1 J. 312. 
 
OPINIONS OF GROTIUS. 447 
 
 or testamentary devise, nothing short of actual registration 
 can suffice to create or constitute a prsedial servitude, notice 
 of the existence of a right will not bind a purchaser for 
 valuable consideration, unless it can be distinctly and affir- 
 matively proved that one of the conditions of purchase was a 
 collateral agreement (or pactum adjectum) to the effect that 
 the purchaser should be personally bound to grant the real 
 servitude already promised by the vendor, and to give effect 
 thereto by due registration, or unless it can be shown that 
 there was an error, or unless there was mala fides on the 
 part of the purchaser. Barry, J., Pres., said, "Where ex- 
 press notice is given to a purchaser before he buys that the 
 seller of the property intended to be sold had bound himself 
 by distinct contract to create a servitude upon it, it would be 
 a fraud by the seller, to which the purchaser would become 
 a party, if he refused to carry out the contract creating the 
 servitude. The rule as to the effect of express notice seems 
 common to the Civil, the Eoman-Dutch, and the English 
 law."(&) Buchanan, J., said, " If the object of registration is 
 to prevent fraud by giving notice to the world, I cannot, on 
 principle, understand why express notice, given directly to the 
 person sought to be affected by it, differs in its effect from 
 notice which, by the operation of law, is held to be given to 
 him by registration. Begistration, no doubt, is the easiest 
 and most certain means of proving notice, but in this case 
 express and direct notice before purchase has been brought 
 home to the purchaser aliunde." 
 
 In Richards v. Nash and Cooper the facts were as follows : 
 A., the owner of certain land, sold a portion to Bichards, with 
 a right of way over the remainder. He subsequently sold 
 the remainder to Nash, subject to a right of way in favour 
 of the portion sold previously to Bichards, but the servitude 
 was not registered upon the title-deeds of the portion bought 
 by Nash (the servient tenement). Under these circum- 
 stances the court found that at the time of the purchase of 
 the remainder, Nash was fully aware and had express notice 
 
 (h) Story's Equity Jurisprudence, sec. 397. 
 
448 OPINIONS OF GEOTIUS. 
 
 of the rights vested in Eichards, and it was decided that 
 Nash was hound by such notice, and that Richards was 
 entitled to the enjoyment of the right granted to him. " The 
 important question," says De Villiers, C. J., " then is the ques- 
 tion of law whether, under these circumstances, the plaintiff 
 is entitled to his remedy ? I should have considered it a grave 
 defect in the law if the plaintiff were not entitled to have a 
 clear error of this kind rectified. Fortunately the law of the 
 Colony does, in our opinion, give the plaintiff a right of re- 
 dress. The transfer to Nash under the circumstances, without 
 a reservation of the plaintiff's right, was a fraud upon him, 
 which entitles him to relief in this court." 
 
 It must be observed that the notice required in order to 
 dispense with the necessity of registration must be " express " 
 and " actual." A mere suspicion or report of the existence 
 of the onerous right is not sufficient to debar the purchaser 
 for value from freeing himself on the ground of non- 
 registration.^) 
 
 Registration must be effected upon the title-deeds of the 
 servient tenement. The registration of a servitude with the 
 transfer- deeds of the dominant tenement will not bind a 
 purchaser of the servient tenement, who has bought without 
 notice and has received a clean transfer, (m) 
 
 Nor is the mere reference in a transfer to a deed of sale 
 which constitutes certain servitudes sufficient notice to 
 establish such servitudes as against a bona fide purchaser 
 for value, (n) 
 
 On the other hand, if the grantee of a servitude is aware 
 of the existence of prior rights which conflict with such 
 grant, the servitude can be set aside as prejudicial to these 
 prior rights.(o) 
 
 To the transfer deeds of landed property diagrams are 
 frequently attached for the purpose of showing the exact 
 
 (?) Faure v. Van der Merwe (0. F. S.), 4 C. L. J. p. 133. 
 
 (m) Jansen v. Finoham, 9 J. 289. 
 
 (n) Botha, Smit, and Another v. Kinnear (S. A. K.), Kotze, 215. 
 
 (o) Stewart's Trustees and Marnitz v. Uniondale Municipality, 7 J. 110. 
 
OPINIONS OF GROTIUS. 449 
 
 situation thereof. The legal effect of such diagrams have 
 been frequently discussed. The diagram is not absolutely 
 incontrovertible. If the diagram contains an error or is 
 palpably incorrect, the inaccuracy will be rectified. 
 
 In the case of Visser v. Du Toit,(p) one of the earliest in 
 connection with this subject, it was laid down by Watermeyer, 
 J., that " we must always endeavour to find the actual ground 
 described. Sometimes the description may be so vague that 
 we are bound to take the diagram ; sometimes the description 
 may be so thorough that it would be absurd to take the dia- 
 gram in opposition to it. Thus, if Robben Island were granted 
 to me, 'bounded by the sea, as will appear by the diagram 
 annexed,' and the figures were by mistake to represent only 
 half the island, that would not be the land conveyed to me. 
 The diagram should be amended ; the grant has been of the 
 whole island. If the ground described land as bounded by a 
 river, and the diagram did not agree, it would be an erroneous 
 diagram, and the grantee could claim up to the river." 
 
 The principle laid down by this very able Judge has been 
 acted upon frequently in subsequent cases. As stated by 
 De Villiers, 0. J.,^) " the diagram was not transferred, but 
 the land, and the diagram was merely appended to the 
 transfer-deed in explanation of that document." 
 
 In Laubscher v. Beve and Others,(f) Hodges, O.J., re- 
 marked, "Defendant was mistaken in supposing he could 
 oblige the plaintiff to send his cattle to a place other than 
 the usual one, because it was placed on the diagram by an 
 error on the part of the surveyor." 
 
 The following cases also bear upon the subject, and 
 will indicate the position taken up by courts in regard 
 thereto : — 
 
 Esterhuizen's Executrix v. Vermeulen.(s) 
 Barrington and Others v. Colonial Government, (t) 
 
 (p) 5 J. 94. (£) Anderson v. Van Niekerk. 
 
 (r) 1 Eos. 408. («) Bnc. 1868, p. 76. (t) i J. 408. 
 
 21 
 
450 OPINIONS OF GEOTIUS. 
 
 Beaufort "West Municipality v. Wernich.(w) 
 Roux v. Bezuidenhout.(«;) 
 Mouton v. Van der Merwe.(w) 
 
 See also the Land Beacons Act of the Cape Colony, Act 
 No. 7 of 1865, and Act No. 9 of 1879, and the local laws of 
 the South African Eepublic. According to the latter, a 
 diagram once approved of and signed by the State President 
 is unimpeachable, due time being allowed for the handing in 
 and consideration of protests. 
 
 A servitude can, of course, be effected over hypothecated 
 property, and this servitude will retain full force and effect 
 if the mortgage was not duly registered at the time of the 
 grant. If, however, a servitude is imposed upon a prcedium 
 which had previously been hypothecated, such deed of hypo- 
 thecation having been duly registered, it is postponed to the 
 rights of the mortgagee. 
 
 Thus, where a mortgagor, subsequent to the registration of 
 the mortgage, granted a servitude over the hypothecated 
 property and then became insolvent, his trustees were held 
 to be entitled to sell the property without the burden of 
 servitude, after they had attempted to sell it subject to the 
 burden, but had failed to obtain a price sufficient to pay off 
 the bond, on the ground that where a mortgagor imposes 
 a servitude upon land already mortgaged, it is prejudicial to 
 the legal rights of the mortgagee, and the latter is entitled, 
 without proving actual pecuniary damages, to have such 
 servitude set aside, (x) 
 
 This decision is contrary to Opinion No. 58, Holl. Cons. 
 3 (b.) 316. It definitely and erpressly settles a question of 
 law which, from an equitable point of view, should have 
 been without controversy and void of all doubt. Grotius's 
 argument will be found in the body of the Opinion referred 
 to. He contends that the mortgagor, and not the mortgagee, 
 
 («) 2 J. 36. (v) 2 S. 142. [w) Buc. 1876, 18. 
 
 (%) Stewart's Trustees and Marnitz v. Uniondale Municipality, 7 J. 110. 
 Compare Opinion No. 58 (Holl. Cons. 3 (b.) 816). 
 
OPINIONS OF GEOTIUS. 451 
 
 is the dominus of the hypothecated property, and that he is 
 therefore at liberty to impose any burdens or servitudes he 
 may deem fit ; and since servitudes affect only the quality, 
 and not the integrity or title of the hypothecated property, 
 the imposition thereof cannot adversely affect or prejudice 
 the rights of a mortgagee. This line of reasoning is by no 
 means tenable, for the alteration even of the qualitas hypo- 
 thecce by a debtor cannot be said not to affect the interests 
 of the mortgagee, and it cannot be maintained that the 
 mortgagor is at liberty to make any such alteration regard- 
 less of his creditors' rights, (y) Servus pignori datus, etiamsi 
 debitor locuples est, manumitti non potest, is a well-known' 
 maxim in Eoman jurisprudence (Digest, 40, 1, 3 ; 40, 9, 4 ; 
 Voet, 20, 6, 6). A decision of the Court of Holland in exact 
 conformity with that of the Supreme Court of the Cape 
 Colony is cited in Hollandsche Consultatien, 6 Append, p. 323, 
 and Amsterdam edition, 3 Append, p. 31, the case referred 
 to being that of Van Kloetwijlc v. Dirksz. The legal principle 
 underlying Stewart's case is that the prior rights of a prior 
 mortgagee cannot be prejudiced or detrimentally affected by 
 subsequent burdens imposed upon the hypothecated property 
 by the mortgagee, such imposition being considered and 
 construed in fraudem of the rights of the creditor. Upon 
 the same principle are based the decisions of the courts in 
 the case of the grant of a lease subsequent to a mortgage, to 
 the effect that the claims of the lessee are postponed to those 
 of a prior mortgagee, and if the mortgaged property subject 
 to the lease does not realise a sum sufficient for the payment 
 of the bond, the property can be sold without such lease 
 (Gape Commercial Bank v. Fleischmann and Van Bensburg, 
 1 Eotze (S. A. E.), p. 1 ; Heed's Trustee v. Beed, 5 E. D. C, 30 ; 
 Dreyer's Trustee v. Lutley, 3 J. 59 ; Barnard v. The Colonial 
 Government, 5 1 J. 122; Albertyn v. Van den Westhuyzen, 
 5 J. 385 ; Fichardt & Co. and ScheM v. Well, C. L. J. vi. 
 
 (y) Bynkershoek, Qusest. Juris. Privati, 2, 16, n. 8, and Aanmerkingen 
 op Lybrecht's Red. Vert, 2, 36, 23, Aanm. 53. This question is fully dis- 
 cussed in the Cape Law Journal, vol. vii. 
 
452 OPINIONS OF GKOTIUS. 
 
 p. 258). See also the English case of Keech v. Hall, Smith's 
 Leading Cases, where the same doctrine is laid down. 
 
 Lastly, it has also been decided that the owner of a quitrent 
 farm cannot defeat the tacit hypothec of Government for 
 quitrent by imposing a burden or servitude on such farm 
 for the benefit of a third person (Colonial Government 
 v. Fryer, 3 J. 371 ; Colonial Government v. Fryer and 
 Huysamen, 4 J. 317). 
 
 3. The third division of servitudes is into affirmative and 
 negative. The distinction lies in this, that in the one kind 
 the owner is obliged to allow another to do a certain act on 
 bis property, whilst in the other he is restrained from doing 
 certain acts.(«) 
 
 An affirmative or positive servitude is one which allows 
 the commission of some act on the property of another, e.g., 
 servitus vios, grazing, &c. 
 
 A negative servitude is one which prevents the owner of 
 the tenement from doing something thereon, or making a 
 certain use thereof, which, but for the existence of the 
 servitude, he would have been entitled to do or use in any 
 way he may think fit, e.g., servitus ne luminibus officiatur, 
 alius non tollendi, &c. 
 
 A positive servitude in respect of the owner of the res 
 serviens is considered to consist in patiendo — he must allow 
 free enjoyment and exercise of the right vested in the owner 
 of the res dominans. 
 
 A negative servitude in respect of the same owner consists 
 in non faciendo — he must not use the res serviens in the given 
 manner or mode. In the first instance he is passive, in the . 
 other he is not active.(a) 
 
 The distinction between these two kinds of servitudes 
 becomes important when the constitution of servitudes by 
 prescription have to be considered. 
 
 (2) Burge, Colonial and Foreign Laws. 
 
 (a) See Austin's Lectures on Jurisprudence, No. 49. 
 
OPINIONS OF GROTIUS. 453 
 
 4. The division of servitudes into continuous and discon- 
 tinuous constitutes a fourth distinction. 
 
 A continuous servitude is one of which the cause constantly 
 exists, or the exercise and enjoyment of which continues 
 without the intervention of any act of man, e.g., servitus 
 altius non tollendi, serv. stillicidii. 
 
 A discontinuous servitude is one the continuance whereof 
 depends upon its exercise by act of man, e.g., itineris, aguce 
 haustus. 
 
 The latter can be lost, and consequently extinguished, by 
 non-user ; not so the former.(&) 
 
 5. Servitudes are, fifthly, distinguished as apparent and 
 non-apparent. 
 
 If the existence of a servitude is indicated by external 
 evidence or signs, it is considered as apparent; otherwise 
 as non-apparent. Instances of the former kinds are water- 
 courses, roads, &c, and of the latter are altius non tollendi 
 tie luminibus officiatur (see Gale, pp. 22 and 91). Those 
 things are apparent which would be so upon a careful 
 inspection by a person conversant with such matters, (c) 
 
 6. A sixth division of servitudes is into natural (legal) 
 and conventional, or ex necessitate and by agreement. This 
 division will be quite clear when compared with the division 
 of hypothecs into legal or tacit and conventional. (d) 
 
 Legal and natural servitudes or servitudines ex necessitate 
 are those constituted not by grant or prescription, but by 
 natural situation. Paulus says, "In summa tria sunt per 
 <juse inferior locus superiori servit ; lex, natura loci vetustas."(e) 
 ' Very few text-writers on Boman-Dutch law mention the 
 natural servitudes at all. Most writers have ignored them 
 
 (5) Burge, Col. and For. Laws — Servitudes. 
 
 (c) Pyer v. Carter, 1 H. & N. 916 ; but see Suffield v. Brown, 10 Jur. 
 N.S. Ill, and Crossley v. Lightowler, L. E. 2 Ch. App. 478. 
 
 (d) Thus Harmenopulus speaks of the natural servitude as " tacit " 
 (Hexabiblos, 2, 4, 10, 11). 
 
 (e) Digest, 39, 3, 2. 
 
454 OPINIONS OF GEOTIUS. 
 
 entirely, and the references of the few are meagre and of 
 little import.(/) Certain necessary servitudes were also 
 recognised by Eoman law.(g) 
 
 Chief among natural servitudes are (l)the right to allow 
 drainage water to flow down on to adjoining ground lying 
 at a lower level ; (h) (2) the right of necessary way ; (i) and 
 (3) the right of lateral support. 
 
 The natural right of lateral support has been very fully 
 discussed in the cases of : — 
 
 The London and South African Exploration Company v. 
 Rouliot.(ft) 
 
 Hall v. Compagnie Francaise des Mines de Diamants du Cap 
 (1 G. 464). 
 
 Leo and Others v. Eamsbottom (1 A. 40). 
 
 McFarlane v. De Beers Mining Board. (I) 
 
 Murtha v. Von Beek.(m) 
 
 Griqualand West Diamond Mining Company Limited v. The 
 London and South African Exploration Company Limited, (n) 
 
 The Exploration Company v. Bouliot is the most recent 
 case on this interesting subject. The whole doctrine of 
 the natural rights of owners of land to lateral support is 
 there reviewed and discussed. The conclusions arrived at by 
 the court were : (1) That according to Roman-Dutch law and 
 the customs of the Colony, the owner of land is entitled to 
 lateral support from adjacent land (see also McFarlane v. 
 Be Beers Mining Board) ;(Z) (2) That, in the absence of 
 regulations, stipulations, or special mining customs to the 
 
 (/) Van Forell in Oehbrich Nov. Thes. Jurid., Disp. 3, 2, p. 302, de 
 servitute naturaliter constituta. Hertius, Opuscula, 2, 3, 2, de servitute 
 naturaliter constituta. 
 
 (g) Digest, 8, 5, 8, § 5 ; 39, 2, 24, § 2, 3, 4; 39, 3, 2, § 2. 
 
 (A) Ludolph and Others v. Wegner and Others, 6 J. 193. 
 
 (i) Breda's Executors and Another v. Mills, 2 J. 189. Peacock v. Hodges, 
 Buc. 1876, 65. See also Voet, 8, 3, 4. 
 
 (£) 8 Juta, 74. 
 
 (I) 1 G. 398. 
 
 (m) 1 Appeal C. 121. 
 
 (n) 1 Appeal C. 239 and 263. 
 
OPINIONS OF GROTIUS. 455 
 
 contrary, the owner who leases a portion of land for mining 
 purposes is entitled to lateral support for the unleased as 
 against the leased portion, unless it is clear from the terms of 
 the lease that this right has been specially abandoned. The 
 mere fact that the lessor has given the lessee the right to 
 remove the soil from the claims or mine is not evidence of 
 a waiver of the right of necessary support for adjacent 
 ground. 
 
 Claim-holders inter se are not entitled to lateral support. 
 It is, however, the duty of each claim-holder to work his 
 claim with reasonable diligence, and a claim-holder will be 
 liable in damages for negligence in working his claim where 
 such negligence obstructs a neighbouring claim-holder in 
 his work. 
 
 7. The seventh division of servitudes is into qualified and 
 non-qualified — servitus qualificata et servitus non-qualificata. 
 
 A qualified servitude is one which depends for its enjoy- 
 ment upon a work done by the hand of man. 
 
 A non-qualified servitude is one which does not require for 
 its enjoyment a work done by human hand. 
 
 Instances of the former are servitus aquceductus, servitus 
 tignis immittendi, and of the latter are servitus vice, pas- 
 cendi, &c. 
 
 This distinction runs very close to No. 4 — continuous 
 and discontinuous servitudes, with which it must not be 
 confounded. 
 
 Constitution and Extinction of Servitudes. 
 
 The constitution or establishment of servitudes and their 
 extinction are fully discussed in the authorities quoted at 
 the outset. 
 
 At this stage it will, however, be necessary to add a few 
 remarks in connection with the prescription, merger, and 
 non-user of servitudes. 
 
 Affirmative or positive servitudes are considered to have 
 been duly constituted by prescription when they have been 
 
456 .OPINIONS OF GEOTIUS. 
 
 enjoyed and used since "time immemorial," i.e., for the 
 period of a third of a century, otherwise known as the period 
 of prescription. (o) In South Africa "time immemorial" 
 signifies a period of thirty years with reference to pre- 
 scription.^) 
 
 Negative servitudes, on the other hand, cannot be acquired 
 by prescription unless there has intervened some act by 
 which the person claiming the servitude has asserted his 
 rights to such servitude, and the owner of the res serviens 
 has yielded thereto for the required period.^) 
 
 There must be a continuous user during the period of 
 prescription, (f) 
 
 When acts naturally and necessarily repugnant to a 
 servitude have been allowed, the servitude will be lost, and 
 the owner of the servient tenement will not be liable for 
 damages.(s) 
 
 The owner of a dominant tenement can also lose his right 
 to a servitude by "waiver." If another trespasses bona fide 
 upon his rights, and he does not take immediate steps to 
 remove the trespass or obstruction, the court will not order 
 the removal if such could only be done at considerable loss, 
 but will award damages only ; and if the owner of the dominant 
 tenement allows the building or such other obstruction to 
 proceed, leaving the owner of the servient tenement under 
 the impression that the servitude had been abandoned, 
 nominal damages will be given.(tf) 
 
 " Merger " does not always involve a loss of the servitude. 
 Thus in the case of Scheepers and Others v. Municipality of 
 
 (o) Grotius, 2, 36, 4, and Opinion No. 59 (Holl. Cons. 3 (b.) 142). 
 
 (p) Peacock v. Hodges, Buc. 1876, p. 65. Ludolph and Others v. Wegner 
 and Others, 6 J. 193. Myburgh v. Van der Bijl, 1 J. 360. Kossouw v. Burgers 
 and Others, 1 J. 119. Dobie v. Schickerling, 2 S. 95. 
 
 (j) Jordaan and Others v. Winkelman and Others and the Colonial 
 Government, Buc. 1879, 79. See also Schorer, Notes ad Grot. 2, 34, 20. 
 Van Leeuwen, R. H. R. 2, 20, 18. 
 
 (r) Dobie v. Schickerling, 2 S. 95. 
 
 (s) Edmeades v. Scheepers and Edmeades v. Mostert, 1 J. 334. Dis- 
 tinguish this case from Edmeades v. Reitz (Dec. 1880). 
 
 (t) Loxton v. Staples, 1 A. 381. Myburgh v. Jamison, 4 S. 8. 
 
OPINIONS OE GEOTIUS. 457 
 
 Oudlshoorn,(u) it was held that where the owner of a domi- 
 nant tenement having certain water-rights over a servient 
 tenement acquired such servient tenement, the union did not 
 cause a loss of the right to water by subsequent purchasers 
 of the dominant tenement. This judgment is of great legal 
 importance. 
 
 (u) 2 Eos. 73. 
 
OPINION No. 60. 
 
 HOLL. CONS. III. B. 300.* 
 [GEOTIUS IL 41, 7 & 8.] 
 
 Feuds — Succession — Eestitution. 
 
 1. Feuds, according to the general law of Holland, 
 descend upon the eldest in lineage, and males were 
 preferred to females. 
 
 2. Where a disposition speaks of the first suc- 
 cession, it cannot be extended to subsequent ones. 
 
 3. No restitution need be made with regard to 
 feuds, excepting such as were afterwards acquired by 
 purchase, and then only at the first succession. (See 
 also Opinion No. 54.) 
 
 I have seen a certain declaration made by Gheen 
 Dirks in 1536, wherein he stipulated that certain 
 feudal property, given to him and his wife at the 
 time of their marriage, should be equally shared by 
 his four children. To this arrangement Steven, his 
 eldest son, and the feudal lord, consented. I have 
 also been informed that in consequence thereof the 
 
 * I have consulted various editions of the Holl. Cons., and find that in 
 all of them a leap is at once made from Cons. 199icxix.) to Cons. 300 (ccc). 
 This is evidently an error, curiously repeated ir/aU editions. — [Tb.] 
 
 468 1 .A 
 
No. 60.] OPINIONS OF GEOTIUS. 459 
 
 feudal property came into the hands of the four sons, 
 Steven, Pieter, Dirk, and Luyt, and that Steven left 
 a son, Cornelius, and Pieter a daughter, Maritge. 
 Cornelius and Maritge are both living, but the 
 children of Luyt and Dirk had died without leaving 
 any descendants. 
 
 In consequence of this I have been asked whether 
 the portions of the aforesaid feud which had be- 
 longed to the children who left no descendants must 
 go to Cornelius Stevensz alone, or also to Maritge 
 Pieters ; and also whether any restitution should be 
 made to the widow of the aforesaid Pieter Gheenen. 
 
 (1) I am of opinion that, according to the general 
 law of Holland, the afore-mentioned portions must 
 go to the said Cornelms Stevensz alone, since no 
 nearer relative of the deceased existed, and that he, 
 as a male successor, must be preferred to the said 
 Maritge Pieters. (2) The afore-mentioned disposi- 
 tion of 1536 is not contradictory to this, for it only 
 refers to one succession, namely, after the decease of 
 the said Gheen Dirks, and does not lay down any 
 subsequent line of succession, as clearly indicated by 
 the words there used, nor could such be done. (3) 
 Eestitution need not be made in the present case ; 
 for no restitution need be made with regard to feuds 
 except such as were subsequently purchased, and 
 then only at the first succession. 
 
 Rotterdam, 
 
 Date uncertain. 
 
OPINION No. 61. 
 
 HOLL. CONS. III. B. 170. 
 [GEOTIUS II. 41, 32.] 
 
 Who has to pay the rent on feudal property — How if secured 
 by property specially hypothecated — A mortgage is accessory 
 to a principal debt. 
 
 1. The full amount of rent due on a feud must 
 be paid yearly by the successor to the feud, but 
 the heirs of the deceased are not liable for any part 
 thereof. If such rent is secured by other landed 
 property, the owner of this property can be sued 
 for the rent, as owner and possessor of the hypothe- 
 cated property. The owner has recourse against the 
 possessor of the feud. (Vide No. 3.) 
 
 2. Hypothecation is merely an accessory of a prin- 
 cipal debt. 
 
 I have seen a certain title of investiture made by 
 Nicolas, Lord of Assendelft, in favour of Gerrit van 
 Soelen on the 10th of August 1541, and also a testa- 
 ment of Jasper van Soelen, son of Gerrit, dated 15th 
 September 1590. 
 
 Gerrit van Soelen, eldest son of the said Jasper, 
 took, as his portion of the inheritance on the death 
 
No. 61.] OPINIONS OF GEOTIUS. 461 
 
 of his father, the feudal land situate in Cralingen, as 
 mentioned in the investiture, paying in consideration 
 thereof the sum of twelve guldens to his sisters, as 
 stated in the testament of his father. Gerrit died, and 
 the afore-mentioned feuds devolved on his brother, 
 Gijsbert van Soelen, who for some time continued 
 to pay the rent. Quceritur, whether Gijsbert can 
 rightly maintain that the said rent due after his 
 brother's death, paid or unpaid, is not to be met 
 by him alone, but only pro rata in respect of his 
 share as heir to his brother ? 
 
 (1) I am of opinion that the contention of Gijsbert 
 van Soelen cannot be upheld, for the rent was not 
 simply imposed as a burden on Gerrit van Soelen, 
 but specially in consideration of the feud. This was 
 done with good reason, for the said feud was allodial 
 property, in the first instance, which belonged to Gerrit 
 van Soelen the elder, but was converted into feudal 
 property for certain considerations, but with special 
 reservation of the right to impose a rent on the pro- 
 perty, and to have free disposition thereof by testa- 
 ment. Whence it may be inferred that it was not 
 his intention, at the time he imposed the rent, to 
 confer greater benefits on one child than on another,, 
 but rather to preserve a certain equality amongst 
 them ; and Jasper van Soelen abided by this intention, 
 as appears from his testament, wherein are found the 
 words, "in consideration of the aforesaid feud." It 
 is therefore clear that not the heirs of Gerrit van 
 Soelen, as heirs, but the possessor of the feud, as 
 possessor, are liable for the rents, as understood by 
 
462 OPINIONS OF GROTIUS. [No. 61. 
 
 the said Gijsbert van Soelen himself, for after the 
 death of his brother he paid the stipulated rents 
 alone. 
 
 The words of the testament of Jasper van Soelen 
 are not inconsistent with this, where it is stated, 
 "The said Gerrit van Soelen is bound to have the 
 said rent secured on his other landed property, 
 inherited from the testator." His landed property 
 was divided and shared by the sisters and Gijsbert 
 van Soelen. (2) And since the hypothecation was 
 merely accessory to the principal debt, which was 
 incurred with respect to the said feudal property, and 
 not to the allodial as well, (3) this burden is of such 
 a nature that, even if the said Gerrit van Soelen 
 had disposed of his other property to strangers, 
 either during his lifetime or by testament, these 
 strangers, when sued for the rent as owners of 
 the hypothecated property, will have their recourse 
 against the possessor of the feud. 
 
 KOTTEEDAM, 1618. 
 
OPINIONS OF GROTIUS. 463 
 
 * 
 
 MORTGAGES. 
 
 OPINIONS Nos. 62, 63, 64, 65. 
 
 The next four Opinions treat of mortgages in special 
 cases. 
 
 The subject is one of the utmost legal importance, for in 
 one form or another it pervades most branches of law. A 
 special chapter would have been devoted to it at this stage, 
 especially with reference to South African case law upon the 
 subject. The whole matter has, however, been gone into by- 
 Mr. Van Zijl in his very recently published "Theory of 
 Judicial Practice," where the law-student and practitioner 
 will find a scholarly, correct, and detailed revision of the 
 whole law in relation to mortgages. It has on that account 
 been deemed advisable not to insert a fresh and lengthy 
 commentary here ; for very little fresh matter could be 
 imported into the discussion, and in other respects it would 
 necessarily be a repetition of the various decisions there 
 referred to. 
 
MORTGAGES. 
 
 OPINION No. 62. 
 
 HOLL. CONS. V. 133. 
 [GROTIUS II. 48, 6 & 16, II. 11, 17, I. 7, 11, & I. 9, 12.] 
 
 Hypothecs — Ante-nuptial contract — Writ of execution against 
 property of the wife — Insolvency — Vigilant creditor — 
 Undue preference — Tacit hypothec of children on father's 
 estate for maternal portion — Uitkoop — Security to be given 
 by guardians — Liability of Orphan Masters in default. 
 
 1. The property of the wife, declared by ante- 
 nuptial contract to be not liable to execution for the 
 debts of the husband, cannot be taken in execution 
 for such debts. 
 
 2. Any security given by an insolvent debtor for 
 the benefit of his creditor, who knew of the insol- 
 vency, is void. 
 
 3. The children have a legal hypothec on the 
 property of their father for their maternal portions, 
 but not for the amount due to them by their father 
 by virtue of the purchase of the estate (uitkoop). 
 
 I have seen a certain ante-nuptial contract entered 
 into between Christiaan Belly and Maike Ruischer- 
 
 464 
 
No. 62.] OPINIONS OF GROTIUS. 465 
 
 hout, and have considered the questions asked in 
 connection therewith, as well as other matters. 
 
 I am of opinion that the creditors of the said Belly 
 before the marriage was contracted cannot attach 
 under a writ of execution' the property of Maike 
 Ruischerhout, brought by her into the estate at the 
 time of the marriage, in order to satisfy their claims ; 
 for the said property was expressly exempted from 
 such execution by ante-nuptial contract. This is 
 also the case in respect of those creditors whose 
 names, with the amounts due to them, respectively 
 appear in an inventory drawn up by Belly. As 
 regards such property as was brought into the estate 
 at the time of the marriage by Maike Ruischerhout, 
 but subsequently alienated (stante matrimonio), she 
 cannot be preferred before the other creditors for 
 the value thereof, nor can she rank as a concurrent 
 creditor, for she has no action as yet for such amount, 
 but she or her heirs will only be entitled to claim it 
 upon the dissolution of the marriage. 
 
 I am further of opinion that although a creditor 
 has every right to be vigilant in order to secure 
 payment of or security for any debts that are or may 
 become due to him, nevertheless such security, if 
 obtained after the debtor and the person demanding 
 the security knew of the insolvency, may be chal- 
 lenged and set aside by the Judge as being in 
 fraudem creditorum, according to the universal 
 opinion of jurisconsults, especially if other creditors 
 have also claimed payment or security. It is, there- 
 fore, to be feared that the hypothec obtained by the 
 
 2 G 
 
466 OPINIONS OF GROTIUS. [No. 
 
 said Maike Kuischerhout from her husband for the 
 restitution of her property will be of no effect. 
 
 (3) I am also of opinion that if the said Belly, in 
 his capacity as guardian or administrator over the 
 maternal property of his children by his first wife, 
 is still indebted to them in any amount, they are 
 entitled to a tacit hypothec over the whole estate of 
 the said Belly, and must be preferred before other 
 creditors. But if he is merely indebted to them 
 on the purchase of the estate (by uitkoop), the said 
 children, if they have no general or special mortgage, 
 must rank concurrently with other creditors. The 
 right is, however, reserved to the children, in case of 
 any deficiency, to proceed against their guardians, or 
 even eventually against the Orphan-Masters, since 
 they have allowed the said Belly to get possession 
 of their (the said children's) mother's estate with- 
 out taking any security from him for the money 
 he promised as consideration. 
 
 TJITK00P. 
 
 This is an agreement whereby a surviving parent buys out 
 the inheritances of the children due to them from the estate 
 of their deceased parent. In this manner the surviving 
 spouse to a certain extent remains in possession of the 
 " boedel " or estate. 
 
 When objection is taken to the sale of the estate by the 
 heirs, a voluntary partition may take plaoe, unless prohibited 
 by the will of the deceased. (a) 
 
 (a) See Grotius, 2, 21, 6, and 3, 28, 6. 
 
62.] OPINIONS OF GROTIUS. 467 
 
 In Tennant's Notary's Manual, chap. 6, will be found a 
 form for the execution of a deed of uitkoop. 
 
 The court will order partition of the property where such 
 is clearly for the benefit of the minor heirs. Formerly this 
 order could not be obtained merely upon application, and an 
 action had to be instituted for that purpose.(&) This method 
 of procedure has now been altered, and the court will grant 
 the necessary order, the partition to be approved of by the 
 Master of the court, (c) 
 
 This subject has already been incidentally referred to when 
 the partition of the estate of a deceased parent was con- 
 sidered, p. 51. 
 
 § 2 of the present Opinion refers to the undue preference 
 of creditors. This matter will be fully dealt with in the 
 commentary on Opinion No. 66. 
 
 The tacit hypothec of minors is referred to in the two 
 succeeding Opinions as well. A short note thereon is 
 appended to the next Opinion, No. 63. 
 
 (6) Se Minors, Van der Walt, Buc. 1869, 290. 
 
 (c) Se Campher, Ex parte Marnitz and Campher, 5 J. 75. 
 
OPINION No. 63. 
 
 HOLL. CONS. III. B. 302. 
 [GROTITJS II. 48, 16; I. 7, 11; I. 9, 12.] 
 
 Insolvency of guardian — Appointment of another — Preference 
 of ward — Rights and liabilities in case no security had been 
 given by guardian. 
 
 1. Upon the insolvency of a guardian, the nearest 
 relations of the ward must petition the court for 
 another competent guardian. The ward has prefer- 
 ence before all other creditors, whether secured by a 
 general or special bond, after the commencement of 
 the guardianship. 
 
 2. Those who neglected to see that the guardian 
 gave security to the court for his proper administra- 
 tion, in consequence whereof the ward could not 
 recover from the guardian the debts due to him, will 
 be liable for the loss. 
 
 Cornelis Heyndriks died in Direxland, leaving an 
 orphan named Magdalena Cornelis. Jan Wouters, 
 who had married the widow of the said Cornelis 
 Heyndriks, mother of the orphan, was appointed 
 guardian by the Schout and Schepenen of Direx- 
 land, but he did not give proper security for his 
 
 468 
 
No. 63.] OPINIONS OF GKOTIUS. 469 
 
 administration. It is now ascertained that the said 
 Jan Wouters is insolvent, and that large sums of 
 money are owing to the orphan. I have been asked 
 what the maternal grandfather of the orphan (there 
 being no relatives from the father's side) is to do 
 in order to preserve the rights of the child. 
 
 (l) I think that the afore- mentioned grandfather 
 should petition the Schout and Schepenen that 
 another competent guardian be appointed in the 
 place of Jan Wouters, and that such guardian 
 should proceed against the estate of the said Jan 
 Wouters, and maintain the preference of the orphan 
 before all creditors, whether they were secured by 
 general hypothec or not, and also before all who 
 were secured by special mortgage, after the com- 
 mencement of the guardianship. This contention 
 is in accordance with law and the rights of the 
 ward.(a) (2) Should the ward be unable to recover 
 the debts due to her from the estate of the said 
 Jan Wouters, she, or her guardian for her, can pro- 
 ceed against and recover the deficiency from those 
 officers of the court who did not see that the said 
 Jan Wouters gave security for his administration. (6) 
 
 KOTTERDAM, 
 
 July 1616. 
 
 (o) C. 5, 37, 20. 
 (6) D. 27, 8, 1, 11. 
 
470 OPINIONS OF GBOTIUS. [No. 
 
 REMOVAL OF GUARDIANS. 
 
 Under the Insolvent Ordinance an insolvent guardian is 
 not ipso facto deprived of office. He may be removed upon 
 application, but when he has been rehabilitated he cannot be 
 removed on the ground of prior insolvency.(c) 
 
 A guardian is liable to privation of office for misconduct, 
 such as habitual intoxication, (d) 
 
 SECURITY GIVEN BY GUARDIANS AND. THE TACIT 
 HYPOTHEC OF MINORS. 
 
 Under Eoman law the assumption of office by a tutor was 
 obligatory, and in the administration of the estate of his 
 ward he was held directly responsible. For this purpose 
 several remedies were afforded. 
 
 1. Actio tutelce directa.(e) 
 
 2. Actio utilis tutelce directa(f) 
 
 3. Actio de rationibus distrahendis.(g) 
 
 4. Special actions for damages, condictio furtiva, damni 
 injuria, &c.(h) 
 
 These actions are fully discussed by Hunter in his treatise 
 on Eoman Law.(i) 
 
 In addition to these remedies, the ward was entitled to a 
 legal hypothec or pignus ex lege.Qc) 
 
 The Eoman-Dutch law followed the same legal prin- 
 ciples.^) The ward under Dutch jurisprudence was allowed 
 
 (c) De Villiers' Tutor v. Stukeris, 1 Menz. 378, and Heydenreich v. Curator 
 of Sandenberg — In re Wicht, there quoted. 
 
 (d) Nettleton v. Kilpatrick, 1 Ros. 190. 
 
 (e) Digest, 27, 3, 4 ; D. 27, 3, 1, 16 ; D. 26, 1, 7 ; D. 27, 3, 4, 1 ; D. 27, 3, 
 6 ; D. 26, 7, 7, 10 ; D. 26, 7, 7, 4, and C. 5, 56, 1 ; D. 29, 7, 7, 7-10. 
 
 (/) Digest, 46,6,4,3. 
 
 (g) Digest, 27, 3, 2 ; D. 27, 3, 1, 24 ; D. 27, 3, 1, 21. 
 
 (ft) Digest, 27, 3, 9, 7. 
 
 (i) Pages 543-544. 
 
 (i) Code, 5, 37, 20 ; Digest, 26, 7, 5, 4, and 9, 1. 
 
 (I) Grotius, 2, 48, 16 ; Holl. Cons. i. 299, 300. 
 
63.] OPINIONS OF GROTIUS. 471 
 
 a tacit hypothec over the estate of his guardian, and such 
 hypothec dated from the assumption of the guardianship. (m) 
 It ranked in order of date in competition with other legal 
 or conventional hypothecs, except kusting-brieven.(n) This 
 hypothec is extended to the debts due by the guardian even 
 before he assumed office, (o) and the rights of the guardian are 
 transmitted to his heirs, and do not necessarily terminate 
 immediately upon the termination of tutelage. (q) This also 
 applies to a parent guardian.(r) 
 
 Security must be given by the guardian, and it was the 
 duty of the proper officers to see that the amount adminis- 
 tered was sufficiently secured in surety bonds if the property 
 of the guardian was insufficient for that purpose.(s) 
 
 At the Cape of Good Hope the hypothecary action or 
 claim of a minor is prescribed after three years from the time 
 of the termination of the tutelage or after majority. If the 
 ward was absent at that time from the Colony, he is allowed a 
 period of three years, dating from the time of his return, but 
 in no case is the period of prescription to be extended beyond 
 five years from the time of majority.(£) 
 
 The minor's hypothec upon the estate of his pro-tutors, 
 agents of tutors, and assumed, substituted, or surrogated 
 tutors is repealed, but he retains his full legal rights upon 
 the estate of his surviving parent, (u) 
 
 Tutors testamentary at the Cape can be ordered by the 
 court to give proper security, rem pu-pilli salvam fore.(v} 
 Tutors dative and curators dative must give proper security 
 
 (m) Schorer ad Grot. 2, 48, 37. 
 
 (n) Schorer, ib. Van der Keessel, Thes. Sel. 437. Opinion No. 64, Holl. 
 Cons. 3 (b.) 174. Vide In re Blommestein, 2 M. 378. 
 
 (o) Voet, 20, 2, 7. Holl. Cons. i. 18. Van der Keessel, Thes. 421. 
 
 (?) Van der Keessel, Thes. 421. Schorer ad Grot. 2, 48, 16. Voet, 20, 
 2, 18 and 19. Holl. Cons. 4, c. 382. 
 
 (r) Holl. Cons. Vervolg. d. ii. Cons. 21. 
 
 (s) Schorer ad Grot. 2, 48, 16. Schomaker, Cons, et Resp. Jur. p. 4, 
 C. 16, n. 20, 21. Opinions No. 62 and 63 (Holl. Cons. 5, 133, and 3 
 (b.) 302). 
 
 («) § 3, Act No. 5 of 1861. 
 
 (w) § 8 (3) Act No. 5 of 1861. 
 
 (v) § 5, Ord. 105 of 1833. 
 
4 72 OPINIONS OF GEOTIUS. [No. 
 
 to the Master of the Supreme Court before they can assume 
 office,(a;) and provision is made for a proper registry of these 
 securities.(y) 
 
 The guardians must act under letters of confirmation of 
 their appointment; if they acted without such letters of 
 administration, they are pro-tutors and not tutors, and con- 
 sequently the heirs, in terms of Act 5 of 1861, § 8 (3), will 
 have no tacit hypothec upon their estates.(») The appoint- 
 ment of guardians for minor heirs does not include minor 
 legatees, who have therefore no preference on the estate of 
 the guardian.(a) 
 
 When the guardianship of a minor is undertaken by 
 several co-guardians, but one only administers the minor's 
 property, they are all liable, but the hypothec of the ward 
 over the estate of the co-guardians is postponed until after 
 the excussion of the administering guardian.(J) And in 
 order to be considered as an administering guardian, the law 
 will require any act of administration, however slight, e.g., 
 signing the liquidation account. (c) 
 
 If some of the co-guardians are insolvent at the date of 
 majority, the minors can recover in full from the solvent 
 guardians ; but not if insolvency has ensued after the date 
 of majority.(c) 
 
 The co-guardians may arrange among themselves for the 
 chief administration by one of their number, he to be first 
 excussed for any damages accruing from acts of commission ; 
 but for the consequences of his omission all will be equally 
 liable in solidum, with the benefit of division, but not of 
 excussion. (d) A co-guardian who has paid out of his own 
 funds to his ward an amount misappropriated by his co- 
 
 (x) § 14, Ord. 105 of 1833. 
 (y) § 41, Ord. 105 of 1833. 
 
 (z) Redelinghuys v. Watermeyer, Buc. 1870, p. 57. Barry's Trustee v. 
 Hodgson, 3 J. 249. 
 
 (a) In re Dusing, 1 Menz. 480. 
 (6) In re Liesching, 2 Menz. 353. 
 
 (c) Niekerk v. Niekerk, 1 Menz. 452. 
 
 (d) See In re Liesching, 2 Menz. 347 ; Van Niekerk v. Van Niekerk, 1 
 Menz. 452. 
 
63 OPINIONS OF GEOTIUS. 473 
 
 tutor, has a good action against such co-tutor, but he does 
 uot acquire the minor's tacit legal hypothec against the 
 co-tutor without cession, (e) 
 
 Over the estates of persons who have granted bonds in 
 favour of minors, but who were not their guardians, they 
 have no tacit legal hypothec.(/) 
 
 On the estates of executors, heirs or legatees who are 
 minors have no tacit legal hypothec for losses incurred in 
 their administration, and whilst acting in their capacity as 
 executorship) 
 
 Children in a foreign country, who, according to the laws 
 of that country as well as of the Cape Colony are minors, 
 are entitled equally as minors in the Colony to a tacit 
 hypothec on the estate of their guardians in connection 
 with property within the Colony.(/i) 
 
 The tacit hypothec of children on the estate of their 
 guardian parent is lost by a deed of kinderbewijs. Where 
 such kinderbewijs contained only the "general clause," and 
 no special hypothecation, it will be postponed in the ranking 
 of creditors to the general clause, contained in a special 
 conventional hypothec of anterior date.(i) 
 
 The guardian cannot dispose of or otherwise burden the 
 immovable property of his ward without leave of the court ; 
 and if no beneficiary results for the minors accrue from any 
 such transaction entered into without leave of the court 
 having been previously obtained, the court will cancel the 
 same,(&) and the guardian will be personally responsible for 
 any damage.(Z) 
 
 (e) Wolmerans v. Cloete, 3 Menz. 74. 
 
 (/) Blanckenberg v. Lond's Executors, 1 Menz. 483. 
 
 (g) Voet, 20, 2, 14. In re Minnaar, 3 Menz. 71. 
 
 (h) In re Sandenbergh — Mathyssen et Curatores Filiorum v. Sanden- 
 bergh's Trustees, 2 Menz. 353. 
 
 (i) Naude v. Naude's Trustee, Buc. 1869, 166. 
 
 (k) Trollip v. Harper, 3 E. D. C. 240, In re Eoselt and Inglis, 1 Kotze, 
 (S. A. B.), 13. Assue v. Curator Assue, 1 Menz. 148. 
 
 (I) Munnik v. Neethling, 3 Menz. 80. See Liquidators of Cape Com- 
 mercial Bank o. Porter, 3 J. 65, for duties of guardians in respect of 
 investments of funds belonging to wards. 
 
474 OPINIONS OF GROTIUS. [No. 63. 
 
 Guardians are liable for everything done in the execution 
 of their trust, and they must give proper account of their 
 administration. They are, however, not liable for accumu- 
 lated interest exceeding the capital amount due to the 
 minors, (m) 
 
 A guardian entering into litigation on behalf of his wards 
 must first obtain authority from the court in order to protect 
 himself. If he neglects to do so, and is eventually unsuc- 
 cessful, he will be personally liable for the costs incurred, 
 and has no recourse against the minors, (n) 
 
 A person who acts and describes himself as guardian, 
 (pro-tutor) is liable for all actions done by him as such.(o) 
 
 (m) Niekerk v. Niekerk, 1 Menz. 452. 
 
 (n) Prince q.q. Dieleman v. Berrange, 1 Menz. 435. 
 
 (o) Voet, 20, 2, 17, and 27, 5, 1. In re Hoffman, 1 Menz. 534. 
 
OPINION No. 64. 
 
 HOLL. CONS. III. B. 174. 
 [GROT1US II. 48, 16, 28, 29.] 
 
 Mortgage — Pledge, — general, legal, and special — What is effect 
 of general bond when delivery has not taken place — Collu- 
 sive and colourable delivery — " Meubele heeft geen vervolg 
 van hypotheek " — Interpretation of a custom which abrogates 
 or is contrary to the common law — The legal hypothec of 
 wards. 
 
 1. Not only in Amsterdam, but also throughout 
 Holland and in other countries, it was observed as a 
 fixed and established rule, law, and custom that a 
 general mortgage bond, whether passed before the 
 Schepenen or the Orphan-Master, or as a legal 
 hypothec or otherwise, whereby wares and other 
 movable property, including obligations, bonds, ac- 
 tions, and similar property are mortgaged, is extin- 
 guished when the property is alienated by the debtor 
 under an onerous title, and also when the said 
 property has been transferred and delivered to a 
 third party in security for a debt due to him, in the 
 presence of a notary and witnesses or otherwise. 
 The holder of such general mortgage bond is post- 
 poned to him who is in possession of the property 
 
 r 475 
 
476 OPINIONS OF GKOTIUS. [No. 
 
 and has obtained transfer as security for debts due 
 to him until such debts have been fully satisfied. 
 
 2. This practice also obtains when the goods 
 nominally transferred remain precario in the hands 
 of the transferor, if the deed of transfer states that 
 the transferee can at all times take possession of the 
 property on his own authority. If, under these 
 circumstances, the transferor alienates the property 
 to another, and transfers it to him by delivery, such 
 deliveree has a preferent claim. 
 
 3. Movables cannot be followed in case of mort- 
 gage. 
 
 4. Consuetudo recedens a jure communi must be 
 interpreted in strictis terminis. 
 
 5. When the owner of goods is said to use them 
 precario, or until prohibited by the person to whom 
 they have been pledged as security, there cannot be 
 any delivery, but, on the contrary, such stipulation 
 conveys a suspicion that the transaction is colourable 
 and collusive. 
 
 6. The legal hypothec in favour of orphans over 
 the property of their guardians is, according to our 
 law, of the same force as a special mortgage. Such 
 hypothec begins with the commencement of the 
 curatorship, and gives a preferent right over all 
 mortgages and securities of a later date. 
 
 7. A ward has a preferent right over unsatisfied 
 debts which do not arise from a public document, 
 acknowledgment of debt, or bill of exchange, but are 
 dependent on certain lawsuits to be decided, or exist 
 in mutual accounts and are incapable of delivery. 
 
64.] OPINIONS OF GEOTIUS. 477 
 
 He also has a preferent right in respect of public 
 documents, acknowledgment of debts, or bills of ex- 
 change not yet delivered to third parties. 
 
 8. Should a creditor have obtained transfer and mort- 
 gage of the movable property of his debtor, knowing 
 that the debtor's immovable property will most likely 
 not cover the debts due by the guardian (the debtor) 
 to his wards, the wards can revoke and have set aside 
 such transfers and mortgages of movable property 
 and acknowledgments of debts delivered to such 
 creditor, and still in existence. If the actio re- 
 vocatoria is not instituted within a year, relief can 
 be obtained subsequently. 
 
 On May 31, 16l^, appeared before the Schepenen 
 of the city of Amsterdam Messrs. Jan de Witte, 
 Pieter Kloek, Jan Ingels, and Dirk Buys, advocates, 
 Salomon Hendriks and Daniel Mostaart, doctors of 
 law and secretaries of the city ; Hendrik Boelis, 
 Hugo van Groenewegen, R. Jes, Jan van Braay, J. 
 W. Swart, J. Pieters, B. and G. Wolff, attorneys prac- 
 tising in the city ; F. Ijsbrandts, J. Meerhout, N. 
 Jacobs, J. Westhusius, S. and P. Ruttens, S. Cornelis, 
 B. Badel, and Jan Derhey, notaries of the city, all 
 summoned at the instance of Jacob Jacobs, also a 
 notary of Amsterdam, (l) These men, as a crowd 
 of witnesses (by forme van turbe), gave evidence 
 under oath, and deposed that they were acquainted 
 with the fact that it had been observed as a fixed 
 and established rule, law, or custom within the city 
 of Amsterdam, and obtained as such for as long as 
 
478 OPINIONS OF GROTIUS. [Nd. 
 
 they can remember, that a general mortgage bond or 
 hypothec which exists over the goods of a debtor by 
 virtue of a bond passed before the Schepenen or the 
 Orphan-Master, or arising from a legal hypothec or 
 otherwise, cannot be taken to affect the wares and 
 other movable property, including bonds, acknow- 
 ledgments of debts, and rights of action, other than 
 such as are still found to be unalienated and belong 
 to the debtor or his estate at the time when the 
 hypothecary action was instituted. This general 
 bond is immediately extinguished in respect of the 
 said property as soon as it is alienated by the debtor 
 under an onerous title and delivered to a third per- 
 son, and also whenever such property has been trans- 
 ferred and delivered to a third party in security 
 for a debt due to him, in the presence of a notary 
 and witnesses or otherwise. And the holder of the 
 general bond or hypothec cannot claim the said 
 property for payment of his bond before the debts 
 of those who have possession by delivery for their 
 greater security have been fully paid. 
 
 (2) This law is also followed when the nominally 
 transferred property remains precario in possession 
 of the transferor and the deed of transfer states that 
 the transferee can at all times take possession of the 
 property on his own authority. And if the trans- 
 feror who is in precarious possession alienates or 
 transfers the property by delivery, a person who 
 obtains bona fide possession thereof is also preferred 
 to the mortgagee. All this is deducible from the 
 maxim or saying in use amongst us, that movables 
 
64.] OPINIONS QF GROTIUS. 479 
 
 cannot be followed in case of mortgage — dat meuble 
 geen vervolg van hypotheecq heeft. 
 
 (3) They also declare that, for the same reasons, 
 this rule was also observed in respect of those having 
 a special hypothec over property still in. possession 
 of the debtor. Should any one, therefore, after the 
 passing of such special bond, obtain bona fide pos- 
 session of such property of the mortgagor, whether 
 through sale, exchange, assignation, delivery as secu- 
 rity for debt, or any other onerous title, he will be 
 preferred to the holder of such special mortgage over 
 the same property ; for it must be taken for granted 
 that the holder of a special mortgage over movable 
 and similar property puts great faith in the mort- 
 gagor when he leaves him in possession without 
 interdicting the property. From the evidence it 
 appears that they are all practitioners of long stand- 
 ing, some having practised in Amsterdam for over 
 thirty years, and many for over twenty years. 
 
 I have seen the documents in a certain suit pend- 
 ing before several arbitrators between Johan de Laat, 
 as guardian of the minor children and heirs of the 
 late Anthony van Surch, and Anthony van Surch, 
 son of the deceased, who has obtained venia cetatis, 
 assisted by the said De Laat, plaintiffs, and Guil- 
 laume Bartelotti, merchant of Amsterdam, defendant. 
 I have considered these documents, and especially 
 certain evidence given by a crowd of witnesses 
 before the Schepenen of Amsterdam in May 1631 
 to prove a custom therein mentioned. 
 
480 OPINIONS OF GEOTIUS. [No. 
 
 I am of opinion that, considered with reference 
 to its extensive interpretation, this custom, which 
 was alleged by the defendant to be of legal effect, 
 and was partly proved by the evidence adduced, goes 
 farther than the common written law ; (a) and that 
 when taken in its widest sense, it would be very de- 
 trimental to many wards who have a legal hypothec 
 on the property of their guardians. (4) It must 
 therefore be interpreted in strictis terminis, tanquam 
 recedens a jure communi et in ilia extensione 
 minime favorabilis. In the first place, the plaintiffs 
 have for this reason a preferent right in respect of 
 the movable property of Emanuel, which remained in 
 his possession and under his control, and was not at 
 once actually delivered to the said Bartelotti, and, 
 moreover, the afore-mentioned custom, which obtains 
 not only in Amsterdam, but also over the whole of 
 Holland and in other countries, refers to goods 
 which have been delivered, and delivery cannot be 
 said to have taken place where the property is left 
 in the house of the owner. (5) The allegation of 
 the owner, that he was merely using the property 
 precario or until prohibited by the person to whom 
 they have been pledged as security, need not be 
 considered, for this is not delivery ; but, on the 
 contrary, such stipulation conveys a suspicion that 
 the transaction is colourable and collusive, (b) 
 
 (6) Secondly, The said legal hypothec has, accord- 
 ing to our law, the same effect as a special mortgage ; 
 
 (a) Vide D. 20, 5, 1. 
 (5) D. 20, 6, 8, 7. 
 
64.J OPINIONS OF GROTIUS. 481 
 
 and since the said legal hypothec is of earlier date 
 than the transfers and securities obtained by the 
 defendant, cum hypotheca hsec censenda sit in- 
 cepisse, cum incepit tutela, which occurred in 1616, 
 it must be held to exist, and to give the plaintiffs a 
 preferent right over all the debts due to the afore- 
 mentioned Emanuel van Surch, (7) which have not 
 yet been settled, and do not arise from public deeds, 
 acknowledgments of debts, and bills of exchange, but 
 from pending suits in which judgment has not yet 
 been given, or from mutual accounts ; for these assets 
 are not of such a nature that they can be actually 
 delivered, quod non convenit nisi rei corporali. 
 This is applicable also to debts due to Van Surch on 
 public deeds, acknowledgments of debt, and bills of 
 exchange, if such bills, &c, are not in possession of 
 the defendant (Bartelotti). 
 
 (8) Thirdly, If the plaintiffs can prove the de- 
 fendant knew, at the time that he obtained the 
 transfers and securities, that Emanuel van Surch was 
 indebted to the orphans, the plaintiffs in the present 
 action, in a greater amount than could be recovered 
 from his immovable property, they will be entitled 
 to revoke and cancel the said transfers and pledges 
 of the movable property, and the acknowledgments 
 of debt, &c, which were delivered to the defendant 
 and are still in his possession, to the extent to which 
 they have been prejudiced thereby.(c) Under these 
 circumstances the orphans are entitled to relief 
 
 (c) D. 42, 8, 1 and 22. Qusb leges tarn de alienationibus agunt, quam de 
 oppignorationibus. 
 
 2 H 
 
482 OPINIONS OF GROTIUS. [No. 
 
 although the actio revocatoria had not been insti- 
 tuted within a year. 
 
 February 26, 1632. 
 
 MOBILIA NON HABENT SEQUELAM — MEUBELE HEEET 
 GEEN VERVOLG VAN HYPOTEEK. 
 
 This rule of law must be strictly interpreted and is not 
 to be extended.(c£) Where movables have been left in the 
 hands of the pledgor or mortgagor, and have been subse- 
 quently alienated by him, they cannot be recovered by the 
 pledgee or mortgagee from a bona fide possessor.(e) 
 
 Under Roman law movables could be followed every- 
 where, but the vindicatory action in respect of such chattels 
 was not allowed under Roman-Dutch law. 
 
 Movables can be attached, and the effect of such attach- 
 ment is that a pignus prcetorium or pignus judiciale, which 
 is equivalent to a pignus mobilium, is constituted. 
 
 (In re Zond, 3 Menz. 102. In re Woeke, 1 Menz. 554. 
 Gloete v. Colonial Government, 2 Menz. 312. Dierin*g v. 
 Furney, 1 G. 112.) 
 
 DELIVERY— TRADITIO. 
 
 The doctrine of delivery occupies, a unique position in 
 the Roman-Dutch jurisprudence, as will be seen when the 
 decisions in connection therewith are discussed. It con- 
 stitutes a characteristic and essential feature of very many 
 legal transactions. In all contracts made re (by acts), in 
 opposition to those made verbis, litteris aut consensu,(f) 
 delivery is absolutely essential. These contracts are usually 
 considered as four in number, depositum, mutuum, commoda- 
 
 (d) Voet, 6, 1, 12. See also Van der Merwe v. Webb, 3 E. D. C. 97. 
 
 (e) Schorer ad Grot. 3, 9, 7. Grotius, 2, 48, 29. Opinion No. 63 (supra), 
 and Holl. Cons. 1, 196. O'Callaghan's Trustees v. Cavanagh, 2 J. 122. 
 Guest v. Trustee of Le Eoux, 5 J. 119. 
 
 (/) Justinian, 3, 13, 2. Gaius, 3, 89. 
 
64.J OPINIONS OF GEOTIUS. 483 
 
 turn, and pignus. In addition to these, delivery also plays a 
 most important part in the transfer of personal and real rights. 
 
 Alienation of ownership under Roman law was effected 
 sometimes by the jus naturale, as by delivery, and sometimes 
 by the jus civile, as by cessio, usucapio, and mancipatio.(g) 
 In like manner the acquisition of ownership was rendered 
 possible by means of tradition, and Justinian lays it down 
 that corporeal things of whatever kind can be delivered, and 
 by delivery be alienated. (A) Incorporeal things could not 
 admit of delivery. It must, however, be noted that although 
 the aggregate or totality of rights constituting dominium, is 
 quite as much incorporeal as only certain portions of this 
 plenary ownership, such as servitudes or usufructus, yet the 
 Roman jurists were satisfied to hold that delivery was un- 
 necessary for the conveyance of qualified rights, whereas for 
 the conveyance of the full rights of ownership delivery was 
 necessary.('i) 
 
 The further remarks in this article will be confined to 
 delivery as an essential in the conveyance (1) of movable and 
 (2) of immovable property. 
 
 Real rights, or jura in re, can only be validly transferred 
 ±o another. 
 
 A. By the owner of the property. 
 
 B. "When there is an intention to transfer ownership. 
 
 C. Where change of possession by delivery according to 
 law has taken place. 
 
 A. None but the real owner can give and transfer full 
 ownership.(&) A delivery by the transferor can never give 
 the transferee any greater right than was vested in such 
 transferee at the time of delivery (I) — nemo plus juris ad 
 alium transferre potest quam ipse haberet.(m) For this 
 
 iff) Gaius, 2, 65. 
 
 (A) Instit. 2, 1, 40. 
 
 (£) See Hunter's Roman Law, p. 142. 
 
 (A) Van der Merwe v. Webb, 3 E. D. C. 97, and Daniels v. Cooper, 1 E. 
 V. C. 174. 
 
 (I) Digest, 41, 1, 20, pr. 
 
 (m) Digest, 50, 17, 54. Current coin, bank-notes, &c, are, however, ex- 
 cluded from the operation of this rule. Woodhead, Plant & Co. v. G-unn 
 <Sup. C. Feb. 1894). 
 
48 * OPINIONS OF GEOTIUS. [No. 
 
 reason land subject to a servitude passes to the transferee 
 burdened with the servitude, and the transferor cannot give 
 a clear title.(w) 
 
 B. There must be an intention to transfer the rights 
 in question. This intention must be indicated by some 
 consideration justa causa, which was either causa onerosa 
 (valuable consideration) or causa lucrativa — e.g., pro dote, 
 pro legato, &c, such causa being one of the facts which 
 conclusively proved the intention to transfer, whilst delivery 
 is a method of unequivocally attesting the change of pos- 
 session and the transference of physical control. 
 
 This intention must exist at the time delivery is effected.(o) 
 If the intention is wanting, the delivery will be considered 
 incomplete and of no eSect,(p) and very often all the cir- 
 cumstances of the case must be taken into careful considera- 
 tion in order to come to a correct decision as to the real 
 intention of the transferor, (q) 
 
 Fraud vitiates delivery, and a fraudulent intention is, of 
 course, of no avail.(r) 
 
 Suspensive and resolutive conditions in delivery will 
 be treated of when we come to discuss direct or real 
 delivery. 
 
 C. Delivery, as above stated, is used as a method of un- 
 equivocally attesting the change of physical control. With- 
 out it transference of jura in re is impossible. Non pactis 
 aut obligationibus sed traditione dominia transferuntur.(s) 
 
 The foregoing remarks, as well as the definitions of de- 
 livery given below, are applicable to movable and immovable 
 property alike. The rest of the remarks on the different 
 kinds of delivery are strictly applicable to the conveyance 
 of movables. The transfer of immovable property will be 
 discussed later under a separate heading. 
 
 (») Digest, 40, 1, 20, 1. 
 (o) Digest, 41, 3, 44, 1. 
 
 (p) Fazi Booy v. Short, 2 E. D, C. 301. Daniels v. Cooper, 1 E. D. C. 
 174. 
 (g) Kens v. Barn's Trustee, 2 Menz. 87. Long v. Randall, 1 E. D. C. 62. 
 (r) See footnote (}), and Lean's Trustee v. Cerruti, Buo. 1879, 313. 
 (») Opinion No. 66 (Holl. Cons. 3 (b.) 176). 
 
64.] 
 
 OPINIONS OF GKOTIUS. 
 
 485 
 
 " Delivery," says Boey, " is the transfer of the possession 
 of a chattel, whereby the transferee becomes the possessor or 
 owner."(£) 
 
 According to Voet, " Delivery constitutes a third mode for 
 the acquisition of ownership, and is de manu in manum 
 datio ; seu translatio possessionis. It is divided into real 
 and constructive delivery (vera et ficta). It is real when 
 the corporeal chattel, movable or immovable, is transferred, 
 ordinarily by delivery from hand into hand, or by establish- 
 ment in possession, (u) Constructive, when the delivery, which 
 has not actually occurred, is understood. 
 
 " This (constructive) again consists of three kinds : the 
 first is traditio brevis manus, the next symbolic, and the last 
 longce manus. That is called delivery brevis manus by which 
 a thing, previously delivered under one consideration, is again 
 understood to be delivered under a new consideration, so much 
 so, that by the quickness of the operation either the single or 
 double act of delivery is hidden. Symbolic is that which is 
 made by external symbol or sign in place of tradition, in which 
 manner, when the keys of a store have been delivered near 
 the store itself, the wares in the store are considered delivered. 
 Delivery is said to be longce manus when the chattel to be 
 acquired by me is placed in view before me." 
 
 The following table shows concisely the various kinds of 
 delivery. It is inserted here for convenience of reference 
 previous to entering into a detailed discussion. 
 
 I. Actual or real or direct delivery. 
 
 1. Brevis manus. 
 
 II. Constructive 
 delivery. 
 
 2. Symbolic. 
 
 3. Longce manus. 
 
 \ 
 
 1. Ordinary. 
 
 I 2. Constitutum possessorium. 
 ) 3. By testamentary bequest 
 and upon insolvency. 
 
 1. Ordinary, by means of 
 i marks, keys, &c. 
 
 I 2. Cession of right of action. 
 3. By title-deeds. 
 
 ' 1. Ordinary 
 
 2. Quasi-delivery of servi- 
 
 tudes. 
 
 (t) Boey's Woordentolk, sub voce " Traditie.' 
 («) Voet, 41, 1, 34. 
 
486 OPINIONS OF GKOTIUS. [No. 
 
 I. Real delivery takes place when actual possession is 
 given to the transferee or his agent, who is to exercise the 
 future control, by the transferor or his agent, or according 
 to Voet, when there is a tradition naturaliter from hand to 
 hand. 
 
 Delivery must be made by the owner or his agent, for, 
 as already stated, no one but the owner can give valid and 
 effectual delivery, (v) 
 
 Likewise it is necessary that the tradition should be 
 made to the person who is to exercise the future physical 
 control, or to his agent, (a;) 
 
 It would be useless to go over all the cases connected 
 with this subject. The case of Bens v. Bams Trustee (y) is 
 one of the leading cases, and serves as an excellent illus- 
 tration of incomplete and colourable delivery. The facts 
 as reported were as follows : — Hens had bought and got 
 delivery of a cart, horses, waggonette, dray, and harness 
 from Bam, and subsequently let them to Bam. Bam then 
 became insolvent, and his trustee got possession of the 
 articles, whereupon Rens sued him for re- delivery. It was 
 proved in evidence that a man Lotz had been called in to 
 witness the sale to Bens, and Rens said to him in the 
 presence of Bam, " There stand eight horses with their 
 harness, and a covered waggonette standing before the door, 
 and a cart which has gone out into the country, and these 
 I have bought from Mr. Bam, but have let them to him 
 again." Bam then added, " This is the case ; I have sold 
 them to Mr. Rens, and I have hired them from him." 
 Bam further informed Lotz that he had sent for him to 
 witness the sale to Rens, in case of the death of either the 
 purchaser or himself. This was held by the court not to 
 have been a bona fide sale, lacking, as it did, real and bona 
 fide delivery, which is essential to the transfer of dominium. 
 The court refused, under the circumstances, to consider the 
 
 (v) See too Van der Merwe v. Webb, 3 E. D. C. 97. 
 (a) Long v. Randall, 1 E. D. C. 62. Fenton v. Boyle & Co., 2 G. 575. 
 ly) 2 Menz. 89. See also Orson v. Reynolds, 3 G. 219. Trustees of 
 Corbridge v. Haybittel, N. 0. 3 G. 259. 
 
64.J OPINIONS OF GROTIUS. 487 
 
 transfer effected brevi manu, evidently on the ground that 
 such was never contemplated by the parties, but that they 
 had intended to effect real delivery and had failed.(z) It 
 must, however, be remarked that in all transactions of this 
 kind the court will demand the clearest and strongest proof, 
 for, especially when insolvency supervenes, they must always 
 be tinged with a suspicion of mala fides. 
 
 " When," says Grotius in Opinion No. 64, " the owner 
 of the goods is said to use them precario, or until prohibited 
 by the person to whom they have been pledged as security, 
 there cannot be any delivery, but, on the contrary, such 
 stipulation conveys a suspicion that the transaction is colour- 
 able and collusive." 
 
 See also Fivaz v. Boswell, 1 S. 235. There the respondent 
 in appeal, an auctioneer, had sold to one Samson certain 
 property at twelve months' credit. On the expiration of 
 that term Samson was unable to pay, and he brought a 
 waggon and oxen to Boswell in satisfaction of his debt. 
 Boswell marked the waggon and branded the oxen, and lent 
 them to Samson for a month. Pour months afterwards a 
 judgment creditor of Samson arrested the waggon and oxen 
 in Samson's possession. Held that the seizure was good and 
 effectual, for the circumstances gave rise to a strong pre- 
 sumption of fraud. (Et vide Le Hiche v. Van der Heuvel, 
 4 G. 395.) 
 
 Delivery in the case of sale will only vest the dominium 
 at such time as it was intended to transfer ownership. For 
 although as a rule dominium will vest in the purchaser im- 
 mediately upon payment of the purchase price and delivery, 
 if for cash, or upon delivery only, if for credit, the seller 
 may stipulate that the dominium shall not vest until the 
 whole of the purchase price is paid ; in other words, the sale 
 is entered into under a suspensive condition. Thus in the 
 
 (0) See also Lean's Trustee v. Cerruti (Buc. 1879, p. 313). L. sold cer- 
 tain furniture, not pointed out at the time, to C, who immediately let the 
 articles again to L. Subsequently C. ascertained that the sequestration of 
 L.'s estate was impending, and he thereupon took delivery and removed 
 the furniture. Held that there never had been a legal and complete deli- 
 very to C. 
 
488 OPINIONS OF GKOTIUS. [No. 
 
 case of Quirk's Trustees v. Assignees of Ziddle & Co. (3 J. 
 322), Quirk bought certain chattels from the assignees of 
 Liddle & Co. for £650, upon condition that Quirk was to 
 give bills at three, six, nine, and twelve months, and that 
 the property in the goods was only to pass to Quirk upon 
 the payment of the last instalment. The goods were 
 delivered to Quirk, who became insolvent before payment. 
 Thereupon it was held that the dominium had not been 
 transferred to Quirk, but remained vested in the assignees. 
 Likewise it was held that ownership had not passed when a 
 horse had been sold and delivered to the vendee under the 
 condition that it should remain the vendor's property until 
 paid for. (Fazi Booy v. Short, 2 E. D. C. 301, et vide Daniels 
 v. Cooper, 1 E. D. 0. 174.) 
 
 A converse illustration, i.e., of a sale under a resolutive 
 condition, is afforded by the case of Keyter v. Barry's 
 Hxecutor (Buc. 1879, 175). There goods were sold on 
 credit, with a condition that if the purchase price be not 
 paid, the vendor shall have the right of reclaiming the 
 goods, and the purchaser shall not be able in any way 
 to dispose of the goods, but they shall remain as security 
 for the debt ; and it was decided that the dominium in the 
 goods passed to the vendee. 
 
 A case deserving to be specially mentioned is that of 
 Dunell, Ebden & Co. v. Colonial Government (4 G. 48). 
 There Eirbank & Co. made a contract with the Colonial 
 Government for the construction of a railway, which con- 
 tained a covenant that all plant, material, &c, brought by 
 them on to the site of the railway works for the purposes of 
 construction should become the property of the Government, 
 but the Government was not to be liable for any loss or 
 damage, and on completion of the railway and due per- 
 formance of the contract, the plant undisposed of was to be 
 returned to Firbank & Co., subject to a right of pre-emption 
 on the part of the Government. Under this agreement 
 certain goods were brought on to the railway works, and 
 were there attached by the appellants, Dunell, Ebden, & Co., 
 judgment creditors of Eirbank & Co. Held by the court 
 
64.] OPINIONS OF GEOTIUS. 489 
 
 that the goods were not liable to attachment, since, under 
 the contract, there had been sufficient delivery to vest the 
 dominium in the Government. The delivery and covenant 
 being open and notorious, there could be no presumption of 
 fraud. Had it been otherwise, there would have been no 
 reason to take this case out of the category of colourable 
 and incomplete deliveries, as laid down in the cases of Mens 
 v. Barn's Trustee, Fivaz v. Boswell, and many others. 
 
 Eecently (Feb. 1892) this case (Dunell, Ebden, & Co. v. 
 Col. Gov.) was followed in the South African Republic in 
 the case of Verwey N. 0. v. Malcomess & Go. (9 0. L. J. p. 
 178), where the contract and circumstances were precisely 
 similar. 
 
 Having considered the full meaning and legal effect of 
 " real " delivery, the second division must be briefly described. 
 
 II. Constructive delivery takes place where transfer is 
 effected not by actual delivery from hand to hand, but in 
 either an indirect or tacit manner. 
 
 In accordance with the tabulated division given on page 
 485, the first kind of constructive delivery is — 
 
 1. Brevis manus, or short-hand delivery. This refers to 
 the cases where a person possesses or holds an article in 
 one capacity, and then changes bis capacity and holds or 
 retains the same article in another. No delivery by out- 
 ward signs or indications is necessary in such a case. It is 
 sufficient if there be a clear and bona fide intention to hold 
 and lawfully possess the property in such changed position. 
 Thus where an agent is placed in possession of certain 
 property qua agent, and he then buys the property from the 
 owner, no fresh delivery is necessary, and he acquires the 
 ownership qua owner. Or take a stronger case, a share- 
 broker, as agent for A., holds certain scrip which B. sub- 
 sequently purchases from A. through the same sharebroker, 
 who is also B.'s agent. No actual delivery has been effected, 
 but the constructive delivery brevi manu from A.'s agent to 
 B.'s agent will be sufficient to transfer the ownership. The 
 case of O'Callagharis Assignees v. Cavanagh serves as an 
 
490 OPINIONS OF GEOTIUS. [No. 
 
 excellent illustration.(a) Cavanagh was the manager of a 
 restaurant for O'Callaghan, and in such capacity he had 
 complete control and possession of everything in connection 
 with the business. In consideration and as security for 
 certain advances made and liabilities incurred by Cavanagh 
 for and on behalf of O'Callaghan, the latter agreed to pledge 
 certain furniture and movables in the place to the former. 
 These articles were in possession of Cavanagh at the time, 
 and his wife thereafter took charge of them for him. Under 
 these circumstances the court held that there was delivery 
 Irevi manu sufficient to constitute a valid pledge. De 
 Villiers, C.J., said, " It is quite clear that by Eoman-Dutch 
 law delivery in certain cases is of a fictitious kind. It is 
 not necessary in every case that there should be actual 
 delivery for the purpose of passing property. Cases have 
 been before this court of goods being deposited with a 
 person and afterwards being purchased by the depository. 
 It is not necessary in those cases for the depositor to effect 
 a fresh delivery to the depository, delivery having once been 
 made. According to Voet (12, 1, 5), the original delivery 
 serves for the second transaction between the parties. 
 Everything done at the time of the first delivery is to be 
 considered to be done again at the time the second transac- 
 tion is entered into." 
 
 Justinian in his Institutes (5) says that property can 
 sometimes be transferred without actual delivery, and 
 merely through the bare wish of the owner, as when a 
 man lends or lets or deposits such property with any one, 
 and then sells it to that person ; for although it was not 
 for that purpose lent, let, or deposited, yet the very fact 
 that he allows the pledgee or depositary to become the 
 owner is sufficient to vest the ownership anew, just as if 
 the property had originally been delivered on that account. 
 
 The change of capacity in all cases of delivery hrevis 
 manus fulfils the requirements and takes the place of a 
 second actual deliverv. 
 
 {a) 2 Juta, 125. (b) Instit. 2, 1, 44. 
 
64 -J OPINIONS OF GROTIUS. 491 
 
 (2.) Delivery by constitutum possessorium is another kind 
 of short-hand delivery. This occurs in those cases where a 
 person who is the owner of the property or thing cedes 
 and transfers the ownership to another, but does not part 
 with the property, retaining it as agent for and on behalf 
 of the cessionary. 
 
 Delivery constitutum jpossessorium can only take place 
 (1) when there is a definite agreement that tradition is 
 ■ to be effected in that manner ; (2) when its existence is 
 a necessary consequence, delivery is to be presumed.(c) Si 
 rem meam possideas, et earn vellim tuam esse, net tua, 
 quamvis possessio apud me non fuerit. 
 
 Therefore a person who already has lawful possession of 
 a thing may effect delivery merely by virtue of his own 
 intention, express or implied, to hold it in future as agent 
 for another, but the dominium does not pass if the pos- 
 sessor intends to perfect the transfer by real or physical 
 delivery.(c£) 
 
 It is for this reason that the delivery in the case of 
 Bens v. Barn's Trustee, previously referred to, was held 
 incomplete, for there could have been no intention, express 
 or implied, to effect constructive delivery, since the parties 
 contemplated real or physical delivery. 
 
 This subject has been fully discussed in the cases of 
 Mills & Sons v. Trustees of Benjamin Bros.,(d) and Orson 
 v. Beynolds,{d) and Jefferson, Executor of Stewart v. Be 
 Morgan.(e) 
 
 In the latter case De Morgan had passed a mortgage 
 bond in favour of one Powrie, as executor of Stewart, 
 who then agreed to act as her (De Morgan's) agent in 
 the collection of certain rents due to her, on the under- 
 standing that the rents thus collected were to be set 
 off in part payment of the bond. Powrie then collected 
 first £161, 10s., and he informed De Morgan that this 
 
 (c) Von Savigny on Possession. 
 
 (d) Mills & Sons v. Trustees of Benjamin Bros., Buc. 1876, 115. Orson 
 v. Eeynolds, 2 A. 102, and 3 G. 219. 
 
 (e) 2 E. D. C. 205. 
 
492 OPINIONS OF GROTIUS. [No. 
 
 amount had been applied in part payment of her liability 
 on the bond ; but no endorsement to that effect was made 
 on the bond. Subsequently he collected a further sum of 
 £58, 10s., which amount he placed to the credit of De 
 Morgan in his books, but he did not inform her of any 
 special appropriation, nor was there any endorsement on 
 the bond to the effect that this amount had been appropriated 
 in payment of the liability thereon. Powrie then died, 
 and Jefferson became Stewart's executor. Under these 
 circumstances it was held that, as regards the £161, 10s., 
 the delivery (constitutwm possessorium) was complete, and 
 that De Morgan was therefore entitled to be credited with 
 that amount in Stewart's estate; not so, however, as 
 regards the further sum of £58, 10s., for in that case 
 there was no intention of such appropriation manifested. 
 
 (3.) The third kind of delivery brevis manus occurs in the 
 case of testamentary bequests and insolvency. Immediately 
 upon the death of the testator the dominium of the article 
 or property bequeathed vests in the legatee. Likewise upon 
 insolvency the ownership is at once transferred from the 
 original owner, the insolvent, to his trustee, who then repre- 
 sents the persona of the person civiliter mortuus. 
 
 2. Symbolic Delivery. — We now pass on to consider 
 briefly the second kind of constructive delivery. 
 
 (1.) Ordinary symbolic delivery takes place when the deli- 
 veree obtains possession of, and is placed in physical control 
 over, the property intended to be delivered by means of some 
 act which renders this possible ; for instance, when the keys 
 of a house, cellar, or store are delivered with the intention 
 of conferring physical control on the person to whom the 
 keys are handed over.(/) 
 
 (2.) The next kind of symbolic delivery takes place in the 
 cession of the right of action. As a rule, rights of action 
 may be ceded in any way decided upon by the parties, and 
 it could be done either in writing or verbally. In case of 
 
 (/) This kind of delivery, as well as constructive delivery generally, will 
 be found discussed in Friis v. British United Diamond Mining Co., 7 J. 17. 
 
64.] OPINIONS OF GEOTIUS, 493 
 
 verbal cession, the strictest and most convincing proof must 
 be tendered, and, as a safeguard, the courts will frequently 
 demand some accompanying act to substantiate the allega- 
 tion as to the intention of the parties, such act to be some- 
 what analogous to delivery of movables. Most cessions are, 
 however, in writing, in which case delivery is effected by an 
 endorsement upon the documents setting forth the rights, 
 to the effect that the rights have been ceded to the in- 
 dorsee or cessionary. The delivery, in order to be complete, 
 must proceed a step further, and the cession and docu- 
 ment must be placed under the physical control of the 
 cessionary, (g) 
 
 The cession of real rights, with the exception of ceded 
 mortgage bonds, must be registered in order to be valid. 
 {Elliott's Trustees v. Sutherland, 2 Menz. 349. Laing v. 
 Zastron's Executrix, 1 Menz. 229.) 
 
 In the case of Morkel v. Holm,Qi) a life-policy was ceded 
 by ante-nuptial contract by A. to his wife, and was put by 
 him among his wife's papers, but no endorsement of the 
 cession was made on the policy itself, nor was notice thereof 
 given to the insurance company. It was held by the court 
 that the cession to the wife was valid on the ground that 
 the cession by the ante-nuptial contract together with the 
 constructive delivery was sufficient. Another case of similar 
 nature was that of Laing v. Zastron's Executrix.(i) There, 
 Zastron gave a written cession in favour of Laing of a bond 
 belonging to his wife, to whom he was married out of com- 
 munity of property. Zastron at that time was acting as the 
 agent both of Laing and of his wife, and he took the ceded 
 bond and placed it among Laing's papers which he had in 
 his possession, and the court decided that the delivery was 
 sufficient to establish a valid cession. 
 
 (3.) Symbolic delivery by title-deeds is instanced in a con- 
 stitution of Severus and Antoninus (Code 8, 54, 1), where 
 
 {g) Mills & Sons v. Trustees of Benjamin Bros., Buo. 1876, p. 115, and 
 Smuts v. Stack and Others, 1 Menz. 297. 
 (h) 2 Juta, 57. 
 (i) 1 Menz. 229. 
 
494 OPINIONS OF GROTIUS. [No. 
 
 it is laid down that delivery of the title-deeds of slaves is 
 equivalent to delivery of the slaves themselves. 
 , Such bare delivery of title-deeds can hardly exist at the 
 present day. The nearest approach to it is the delivery of 
 scrip from hand to hand without transfer, or the delivery 
 of a negotiable instrument endorsed in blank. The law- 
 merchant has, however, made ample provision in ordinary 
 cases for the proper indication of the intention of the parties 
 to the cession by endorsement of negotiable instruments, 
 bills of lading, &c, and by registration, e.g. of shares, whilst 
 the Common Law requires transfer coram lege loci in the case 
 of immovables. 
 
 The mere delivery of title-deeds is insufficient, as delivery, 
 to transfer ownership, and they cannot be delivered in 
 security for a debt so as to constitute an equitable mortgage 
 and to give the mortgagee a preferent right, (k) 
 
 3. Delivery Zongce Manus. — This constitutes the third kind 
 of constructive delivery, and takes place when the transferor 
 places the goods to be delivered within reach or control of 
 the deliveree and points them out to him. As far as the 
 deliveror, at all events, is concerned, we find traces of real 
 delivery, for he must make physical delivery up to a certain 
 point; it is delivery de manu, but not in manum. The 
 references in Roman law are Digest 41, 2, 3 ; 41, 2, 18 ; 
 41, 2, 51, and 46, 3, 79.(0 
 
 Thus far as regards the transfer of dominium in movables. 
 
 Before proceeding to discuss the transfer of immovable 
 property, a few remarks on delivery in the case of pledges 
 may conveniently be inserted here. 
 
 The pledge of movables without delivery to the pledgee is 
 of daily occurrence, for almost every special deed of hypo- 
 thecation of immovable property contains the " general 
 clause" whereby the debtor's movables are also pledged, 
 but no delivery is effected. When delivery has not taken 
 
 (J) Chapman v. Trustee of Braham & Shilling, 2 G. 423. 
 (I) See Goosen's Trustee v. Goosen, 1 A. 414, and 3 E. D. C. 368, and 
 Coaton v. Alexander, Buc. 1879, 19. 
 
64.] OPINIONS OF GEOTIUS. 495 
 
 place, the pledgor retains the control and disposition over the 
 goods pledged, and if he alienates or specially pledges and 
 delivers them to another, the pledgee loses his right,(m) or 
 is postponed till the subsequent pledgee has been satisfied. 
 This is very clearly set out by Grotius in Opinion No. 64>.(n) 
 Therefore a prior general hypothec is preferred to a sub- 
 sequent special pledge of movables unaccompanied by de- 
 livery.^) Likewise is such a pledge postponed to the 
 rights of the holder of a prior special mortgage bond con- 
 taining the general clause, (p) 
 
 Transfer of immovable property. — No difficulty or ambi- 
 guity, as in the delivery of movables, bars the way here. 
 Delivery of real property in order to vest dominium is only 
 completed by registration coram lege loci. Legislating for 
 Holland and West Friesland, the Emperor Charles V., on the 
 9th May 1529, enacted that the transfer of immovable pro- 
 perty, in order to be complete and valid, had to be made 
 before the court of place rei sitce. This was followed by a 
 supplementary edict in 1560, which made provision for the 
 registration of all transfers of landed property, imposing at 
 the same time a duty of 2£ per cent., commonly known as 
 the impost of "the fortieth penny." About that time a 
 register of debts on immovable property was also commenced, 
 and the registration of mortgages became compulsory.^) 
 
 Before 1828 transfer of immovable property was effected 
 in South Africa before two members of the Court of Justice. 
 After Ordinance 39 of 1828 became law, these transfers were 
 passed in the Eegistry of Deeds, and there enregistered. 
 
 Since immovables are hardly capable of real delivery, 
 symbolic delivery being usually employed for the transfer 
 of such property when registration was not required, it was 
 
 (m) Smuts v. Stack and Others, 1 Menz. 297. 
 
 («) See also Grotius, Introd. 2, 48, 27. Voet, 20, 1, 12. Matthseus de 
 Auctionibus, 1, 19, 74. 
 
 (o) In re Eussouw, 1 Menz. 479. 
 
 (p) Hare v. Heath's Trustee, 3 Menz. 32. Guest v. Le Roex's Trustee, 
 5 J. 119. 
 
 (q) See Edict, May 9, 1529, and December 22, 1598 (Ordinance). 
 
496 OPINIONS OF GEOTIUS. [No. 64. 
 
 thought expedient to demand a decisive overt act to sub- 
 stantiate the fact of delivery, and for that purpose registra- 
 tion or transfer coram, lege loci was deemed the best. 
 
 Without such transfer the delivery was void, and the 
 dominium did not vest in the vendee. (?•) 
 
 Registration did not, however, absolutely vest the domi- 
 nium, in the person in whose name the property is registered 
 if there is strong and conclusive proof, to be gathered from 
 the circumstances of the case, showing that the intention to 
 transfer to such person was wanting, (s) 
 
 (r) See Grotius, 2, 5, 13. Van der Keessel, Thes. 202. Voet, 18, 6, 6. 
 Harris v. Buissinne's Trustee, 2 Menz. 105. 
 
 (s) Preston & Dixon v. Biden's Trustee, 1 A. 322. Saayman v. Le Grange, 
 Buc. 1879, 10. 
 
OPINION No. 65. 
 
 HOLL. CONS. III. B. 173. 
 [GEOTIUS II. 48, 30.] 
 
 Mortgage bonds, How passed — What is the full force of— I)ate 
 of — When passed during absence of the Schout. 
 
 1. Mortgage bonds must be passed before the judi- 
 cial officers of the place where the property is situate, 
 and the register must be signed by the officer and 
 two clerks of the court. 
 
 2. This registration and grant of bonds is not 
 substantia actus, but is required ad faciliorem pro- 
 bationem. 
 
 3. When the officer is away and a mortgage bond 
 was passed before two Schepenen as judges, the 
 Schout is bound, on the declaration of the Schepenen, 
 to sign the deed in the register, dating it at the time 
 that the bond was actually passed. 
 
 On the 13th April (1616), A., in the absence of 
 the Schout, passed a certain mortgage bond before 
 two Schepenen of the place, specially hypothecating 
 his house and garden as security for a certain sum 
 
 497 ' 2 j 
 
498 OPINIONS OF GKOTIUS. [No. 
 
 due to B. ; but registration could not at the time 
 be effected, nor the impost of the " fortieth penny " 
 paid. Afterwards, on the 24th of April, A. hypothe- 
 cated the same house and garden and had the mort- 
 gage bond registered. On the 3rd May the Schout was 
 informed of the said bond, and was fully instructed 
 by the declarations of the Schepenen in whose pre- 
 sence it was passed, and the " fortieth penny " was 
 deposited. The question now is, whether the Schout 
 is not bound to register the mortgage and to date 
 the bond as passed on the 13th April. 
 
 (1) The Placaat of 1529 sets forth no other re- 
 quirements for the validity of mortgages than that 
 they should be passed before the judicial officers of 
 the place where the property is situated. No altera- 
 tion was made on this point by the Political Ordi- 
 nance or by the Placaat of the " fortieth penny." It 
 was enacted, however, that the deed in the register 
 and the bond were to be signed by the officer and 
 two other clerks of the court. It is accepted law 
 that the registration and passing of the bond does 
 not constitute a substantia actus, but was required 
 ad faciliorern probationem, so that if the register 
 and bonds were accidentally lost, the mortgage could 
 be proved by other means. The mortgage in favour 
 of B. must therefore be considered to have been 
 legally passed and completed on 13th April, in 
 the presence of two Schepenen as judges, and the 
 Schout is bound to sign the register and bond upon 
 the declarations of the said Schepenen, who are 
 public officials worthy of credence. This bond and 
 
65.] OPINIONS OF GROTIUS. 499 
 
 the register must be dated 13th April, when the 
 mortgage was virtually passed. 
 
 Rotterdam, 
 
 6th May 1616. 
 
 DATING OP REGISTERED BONDS. 
 
 If two bonds over the same property are lodged for 
 registration in the Deeds Registry at the same time, and 
 are passed simultaneously, one is not to be preferred before 
 another, but the bonds will rank concurrently. (Tredgold's 
 Executors v. Colonial Orphan Chamber^)(a) 
 
 The facts were briefly as follows : — Olivier, the mortgagor, 
 passed two mortgage bonds upon his property, each contain- 
 ing the usual " general clause." The one bond, for £750, 
 specially hypothecated land A., and the other, for £500, 
 specially hypothecated land B., and also land A. as a " second 
 mortgage." These bonds were registered simultaneously in 
 the Deeds Registry. As to land A, it had been specially 
 arranged that the one bond should be postponed to the other, 
 and therefore the words " second mortgage " were inserted 
 therein, but nothing further was arranged. No notice was 
 taken in the Deeds Office of the time when the bonds were 
 lodged. These bonds were registered two days later, the 
 bond for £750 being registered and entered first. 
 
 Upon assignation of the mortgagor's estate, it was found 
 that the property specially hypothecated was insufficient to 
 pay the amount of the respective bonds. The court there- 
 upon held that the two bonds must rank concurrently upon 
 the property covered by the general clauses in the bonds. 
 
 As a general rule, the bond takes effect from the date of 
 registration. There may, however, be circumstances which 
 clearly indicate that it was the intention of the parties that 
 interest should run from a different date, in which case the 
 
 (a) 6 J. 358. 
 
500 OPINIONS OF GEOTIUS. [No. 65. 
 
 date intended by the parties, and not the date of execution 
 or registration, will constitute the period from which interest 
 will run against the mortgagor {McKerry v. Francis).Q>) 
 The facts in this case are briefly reported as follows : — In 
 March 1888 McKerry signed a power of attorney to pass a 
 bond for the sum of £162, together with interest thereon 
 from the 1st January 1888, the interest to be paid half- 
 yearly on the 30th June and 31st December in each year, 
 the capital to- be called up on three months' notice being 
 given, or to become payable if the interest was not duly 
 paid. The bond itself was passed in January 1889. In 
 March 1889 the mortgagee, Francis, sued McKerry, the 
 mortgagor, upon the bond for the interest due from January 
 to December 1888. McKerry contended that the mortgagee 
 was only entitled to sue upon the bond for interest due after 
 the said bond had been passed; but it was held by the 
 court that it clearly was the intention of the parties that 
 the mortgagee should be in the same position with regard 
 to interest as if the bond had been passed in January 1888, 
 that the contract was virtually entered into in March 1888, 
 and that the interest was payable on the 30th of June and 
 31st of December 1888. 
 
 (6) 7 J. 42. 
 
INSOLVENCY. 
 
 OPINION No. 66. 
 
 HOLL. CONS. III. B. 176. 
 [GEOTIUS III. 1, 27, & II. 5, 3.] 
 
 Insolvency — Transfer — Traditio — Undue preference. 
 (See also Opinion No. 62.) 
 
 1. All transfers passed after insolvency are void, 
 although the memorandum of sale and the power to 
 pass transfer were given before the departure of the 
 insolvent. 
 
 2. Non pactis, aut obligationibus, sed traditione 
 dominia transferuntur. 
 
 I have seen a certain memorandum of sale of 
 eleven-sixteenths of the ship The Promised Land, 
 and of one-twelfth of the ship St. John,* entered into 
 between Joost Willem van Niekerk, seller, and Sr. 
 Jan van der Wouweren, acting for himself, and Sr. 
 
 * See also Opinion No. 74 (Holl. Cons. 3 (b.) 177), with reference to the 
 pledging of these ships. — [Ed.] 
 
502 OPINIONS OF GROTIUS. [No. 
 
 Jan Outgerts, purchasers, on the 27th November 
 1629. I also saw a power of attorney, bearing the 
 same date, from Van Niekerk to Jan Warnaarts, 
 notary, to pass transfer of the above-mentioned por- 
 tions of the ship before the Schepenen of the place 
 where they are to be found ; and a certificate of two 
 Schepenen and a secretary of the Ban of the Vrije- 
 Veer, dated 1st September 1630, and also declara- 
 tions made before the Court of Amsterdam by 
 Adriaanje and fester .Willems, Fobberichje Cornells, 
 Ijtge Seruts, and Sus Bouwens on the 12th March 
 1631 ; by Jan Willems on 3rd December 1630 ; and 
 by Willemtje Adriaans and Jannetje Cornells on 
 12th March 1631. Having been asked whether the 
 said Jan van der Wouweren became the owner of 
 the afore-mentioned parts of the ships by virtue of 
 the transfer passed before the Schepenen of the Ban 
 of the Vrije-Veer, or whether these parts must be 
 considered as remaining in the estate of the said 
 Joost W. van Niekerk for the benefit of all his 
 creditors : 
 
 (l) I am of opinion that the said contract is null 
 and void by virtue of the terms of the Placaat of the 
 Emperor Charles treating of this matter; for it appears 
 from the various certificates when taken together, that 
 the said Joost W. van Niekerk left Amsterdam for 
 fear of his creditors before transfer was passed. The 
 fact that the memorandum of sale and the power to 
 pass transfer were signed a few hours before the 
 departure of Van Niekerk from Amsterdam is not 
 inconsistent with this contention, for according to 
 
66.]; OPINIONS OF GROTIUS. 503 
 
 our law quod non pactis aut obligationibus, sed 
 
 traditione dominia transferuntur.(a) 
 
 Amsterdam, 
 
 February 21, 1632. 
 
 UNDUE PREFERENCE. 
 
 The preference of creditors by an insolvent debtor "was 
 put down as a species of fraud even by the Soman jurists. 
 The lex jffilia Sentia declared the manumission and enfran- 
 chisement of slaves in fraud of creditors null and void.(S) 
 This was amplified later on by the actio Pauliana in rem,(c) 
 and the actio Pauliana in jpersonam,(d) the former being an 
 actio fictitia in jus concepta. The remedies nullified every 
 alienation or transaction in fraud of creditors. 
 
 These legal principles became incorporated in the Dutch 
 jurisprudence.^) Voet treats of this subject in his Com- 
 mentaries on the Digest (42, 8), and Grotius mentions it 
 in his Introduction in three different places.(/) It has 
 been forbidden, says Grotius, to all insolvents or bankrupts 
 to make any alienation of their property whereby their 
 creditors might in any way be prejudiced ; and further, all 
 contracts entered into by insolvents in fraud of creditors 
 are void. 
 
 The Placaat of October 4, 1540, and the local statutes of 
 Antwerp, Leyden, Amsterdam, &c, also contained certain 
 provisions which, however, made no material alteration in 
 the common law. 
 
 These provisions of the common law have been largely 
 extended to suit the wants and requirements of the com- 
 mercial community. At the Cape, the Insolvent Ordinance 
 
 (a) C. 2, 3, 20. D. 44, 7, 3. Instit. 2, 1, 40. 
 (6) Justinian, 1, 6. 
 
 (c) Justinian, 4, 6, 6. 
 
 (d) Digest, 22, 1, 38, pr. and 4, and 42, 8, 6, 8, 9, 11. 
 
 (e) Voet, 42, 8, 20. Schorer ad Grot. 2, 5, 3. Van Leeuwen, Cens. 
 Forensis, 2, 12, 12. 
 
 (/) Grotius, 2, 5, 3 and 4 ; 2, 48, 6 ; 3, 1, 27. 
 
504 OPINIONS OF GROTIUS. [No. 
 
 No. 6 of 1843, amended by Acts 38 of 1884 and 17 of 
 1886, has introduced certain alterations and changes in the 
 common law, and the provisions of this Ordinance, with 
 slight immaterial alterations, have been adopted throughout 
 South Africa. 
 
 Sees. 82—93 of the Insolvent Ordinance deal with the 
 subject under discussion. The enactments may be briefly 
 summarised as follows : — 
 
 1. , Every alienation, transfer, or payment made by a 
 person at a time when his liabilities, fairly calculated, exceed 
 his assets, shall be void, unless bona fide made for valuable 
 and just considerations. 
 
 2. Every such alienation, &c, shall also be void if the 
 necessary and immediate effect thereof is to cause an excess 
 of liabilities over assets, at all events to the extent of such 
 excess. 
 
 3. Every alienation, payment, &c, by a person contem- 
 plating the sequestration of his estate, made with the in- 
 tention to prefer any creditor, either directly or indirectly, 
 through others, is null and void. 
 
 The contemplation will be presumed when the alienation, 
 &c, took place within six months before sequestration and 
 at a time when the liabilities exceeded the assets. 
 
 4. Every such alienation, &c, to a person not a creditor, 
 but who would have become liable to third parties for the 
 amount so paid or secured if such alienation, &c. , had not 
 taken place, made by a deliveror or payor who contemplates 
 sequestration with the intention to prefer, will be void. 
 
 5. Every alienation in the ordinary course of business, 
 or for cash and without collusion, is valid. To invalidate 
 such transaction, the trustee, on whom the onus is cast, 
 must prove collusion. 
 
 6. Every collusive payment under cover of a writ of 
 execution is deemed an undue preference. 
 
 7. Likewise fraudulent and collusive acquittances, and 
 discharges of just debts and securities by any one con- 
 templating the sequestration of his estate, are null and 
 
 void, being prejudicial to the just claims of the creditors. 
 
66.] OPINIONS OF GROTIUS. 505 
 
 8. The subjects of undue preference bona fide purchased 
 by third parties remain the rightful property of the purchaser, 
 but the unduly preferred alienee must pay the amount of the 
 purchase into the estate. 
 
 9. The unduly preferred alienee or payee under 3, 4, and 
 6, must restore the fraudulently alienated property, and in 
 addition he forfeits the amount of his claim. 
 
 From the foregoing it will be seen that three questions 
 must be put and answered satisfactorily before we can arrive 
 at a definite conclusion as to whether any such transaction 
 amounts to an undue preference or not. 
 
 Was the transaction made — 
 
 1. In contemplation of sequestration ? 
 
 2. With an intention to prefer ? 
 
 3. In the ordinary course of business ? 
 
 1. Contemplation of Sequestration. — The full import and 
 meaning of this phrase must be accurately grasped before 
 we can decide that the requirements of the law to constitute 
 an undue preference have been fulfilled. At first sight it 
 would seem that where the financial position of a person is 
 such that sequestration is impending and inevitable and 
 that he is hopelessly insolvent, there is a presumptio juris 
 et facti, nay more, a presumptio juris et de jure that he con- 
 templated insolvency throughout such period, without refer- 
 ence to what may have been going on in his own mind. 
 (Baneel's Trustees v. Van der Bijl & Co.) (g) 
 
 It is here submitted that, for the sake of preventing 
 fraudulent transactions between debtor and creditors, to the 
 prejudice of other creditors and to the detriment of free com- 
 merce, it seems a great pity that the rule as laid down in the 
 above case was not followed in later decisions, but that the 
 courts of law have allowed the passing fancies or animus of 
 insolvents, of which these insolvents, of course, are supposed 
 to be the best and naturaliter the most reliable exponents, 
 to intervene in questions of contemplation of sequestration. 
 Very few men, if any, will plead guilty to the crime of 
 
 (g) 1 Eoscoe, 18. This was also the opinion of Mr. Justice Jorissen in 
 the case of Kirton's Trustee v. Rogers (S. A. E.), reported 10 C. L. J. p. 56. 
 
506 OPINIONS OF GEOTIUS. [No: 
 
 fraudulent insolvency by admitting in the first instance the 
 grant of an undue preference. Then there is the further in- 
 ducement of direct gain, either to the insolent himself or 
 to his relations or friends, if, upon his showing that in- 
 solvency (although inevitable) was never dreamed of by 
 him, the court should be persuaded into the belief that 
 insolvency was never contemplated, and that therefore the 
 alienation was not an undue preferment. 
 
 The case of Smith v. Carpenter (h) may be considered the 
 leading case on this subject. It certainly is remarkable that 
 that case is claimed as a precedent in Darnel's Trustees v. 
 Van der Bijl & Co., on the one hand, and Trustees of Wilson 
 and Glym v. Wilson and the Standard Bank(i) on the other. 
 In the latter case, the insolvent Wilson had passed large 
 bonds to his sister about three weeks before his insolvency ; 
 nevertheless the transaction was held unimpeachable, on the 
 ground that, under all the circumstances disclosed, the court 
 was inclined to believe the evidence of the insolvent that he 
 did not at the date of passing the bonds contemplate the 
 sequestration of his estate. 
 
 For all practical purposes these cases are contradictory .(A) 
 The breach has no doubt widened, owing to the method 
 of deductive reasoning from the " circumstances " of the 
 case. In Daneel's case, the " circumstances " were taken to 
 be such as related to the financial position of the insolvent, 
 and when it appeared to the court that sequestration was 
 inevitable, it was taken for granted that the insolvent must 
 have contemplated it; and this certainly seems the most 
 logical position, bearing in mind the common law doctrine 
 that every man is presumed to have contemplated the result 
 of his own action. (I) 
 
 (A) Buc. 1869, 206, and 12 Moore P. C. C. 101. 
 
 (i) Supreme Court, December 1886. This case is not reported. The 
 facts are taken from a statement of the case by Mr. Sampson in his ex- 
 cellent "study" of this subject in the Cape Law Journal, vol. iii. 
 
 (£) See the judgment of Morice, J., in Kirton's Trustee v. Rogers (10 C. 
 L. J. p. 59), where he contends that Daneel's case has been overruled by 
 later decisions. 
 
 (1) De Wet's Trustees v. Krynauw & Co., per De Villiers, C.J., Buc. 
 1879, 177. 
 
66.] OPINIONS OF GROTIUS. 507 
 
 This consideration of the attendant " circumstances " has 
 been extended until the courts allowed the insolvent to 
 give evidence as to the contemplation of sequestration by 
 him. 
 
 Upon analysing the various judgments, it becomes clear 
 that the evidence of the insolvent will always receive con- 
 sideration from the courts, and upon the credibility or 
 otherwise of his evidence, as found by the court sitting 
 as a jury, will to a very great extent depend the decision 
 as to contemplation or non-contemplation of sequestration. 
 
 For this purpose the courts will, generally speaking, 
 consider the following facts, either in corroboration or refu- 
 tation of the evidence : — 
 
 1. The financial position of the debtor and the pro- 
 babilities of insolvency. 
 
 2. The knowledge of the insolvent as to the true state 
 of his affairs. 
 
 3. The nature of the alienation, &c, and its effect upon 
 the position of the insolvent. 
 
 4. The chances of the insolvent to tide over his finan- 
 cial difficulties, and his expectation to avoid sequestration, 
 together with the grounds for such expectation or belief.(m) 
 
 2. Intention to Prefer. — Contemplation of sequestration 
 by itself is not sufficient to render the transaction called 
 into question an undue preference ; there must also be an 
 intention to prefer. This is essential, and if wanting, the 
 alienation does not amount to an undue preference. The 
 intention to prefer must be gathered from all the circum- 
 stances of the case. (ft.) There can be no undue prefer- 
 ence unless there is an intention to prefer the creditor, as 
 well as a contemplation of sequestration. In Thurbum v. 
 Steward,(o) it was stated that the phrase " contemplation of 
 sequestration " has received so wide a meaning as almost 
 necessarily to include an intention to prefer, but the 
 
 (m) Undue preference by Sampson [supra), 
 (n) Daneel's Trustees v. Van der Bijl & Co. 
 (o) 3 L. R. P. C. and 7 P. C. (N.S.) 333. 
 
508 OPINIONS OF GEOTIUS. [No. 
 
 judgment does not go so far as to state that conclusive proof 
 of such contemplation entirely dispenses with the proof of 
 an intention to prefer.(£>) In practice, the intention to 
 prefer was frequently inferred, when it was found that there 
 existed a contemplation of sequestration.(g') 
 
 It often happens that a creditor presses for payment at 
 the time of impending insolvency. If the debtor, there- 
 upon, in the ordinary course of business, pays such creditor, 
 there is no intention to prefer, and therefore no undue 
 preference.(r) If the payment is, however, made under 
 pressure, but not in the ordinary course of business, it 
 will be set aside as an undue preference. "The whole 
 policy of the insolvent law," says De Villiers, C.J., in 
 Trustees of De Wet v. Krynauw & Co.,(s) " is to secure a 
 fair pro rata distribution of the assets among the creditors. 
 If, however, there be a vigilant creditor who has secured 
 himself in the due course of business, without taking an 
 undue advantage of the other creditors, he is protected by 
 the Ordinance. But this is not a case of the kind. If the 
 creditor takes a bond or receives payment of his claim 
 when the debtor is clearly on the verge of insolvency, and 
 the insolvent contemplates that the giving of the security 
 or the payment will inevitably result in sequestration, as 
 the insolvent distinctly stated to be the case here, then 
 the law steps in and says, not that it is necessarily a 
 fraudulent act, but thai? it is an undue preference. The 
 contemplation of sequestration and the intention to prefer 
 are questions of fact, and not of law, and one on which 
 there may be a difference of opinion. In this case, if an 
 undue preference has not been clearly proved, then I do 
 not know any case in which it could be said to have been 
 given. The effect of the act was to give the defendants 
 a preference above the other creditors, and it is quite 
 correct to argue that an insolvent must be taken to con- 
 
 {p) Per De Villiers, C.J., in Du Plooy's Trustee v. Plewman, 7 J. 334. 
 (5) Per Buchanan, J., ibid. 
 
 (r) Redelinghuys' Trustees v. Morkel and De Villiers. Smith v. Carpenter, 
 Buc. 1869, p. 214. 
 (s) Buc. 1879, 177. 
 
66.] OPINIONS OF GEOTIUS. 509 
 
 template what must be the result of the act done, even 
 though the insolvent may say he had no such intention." 
 
 Briefly stated it comes to this, that payment to a vigilant 
 creditor is valid, a vigilant creditor in the eye of the law 
 being one who secures himself in the ordinary course of 
 business, dealing, or custom when sequestration was not 
 contemplated.* 
 
 The intention to prefer, like contemplation of sequestra- 
 tion, is a question of fact, and the court sitting as a jury 
 may believe the insolvent that no preference was intended, 
 and that consequently no undue preference was given, in 
 spite of strong adverse circumstances.(i) 
 
 3. Transactions in the ordinary course, of business. — As 
 above set forth, if an alienation, payment, or other similar 
 transaction is made or entered into in the ordinary course 
 of business, it is not an undue preference. The 86th sec- 
 tion of the Insolvent Ordinance enacts that every aliena- 
 tion, transfer, cession, delivery, mortgage, pledge, or payment 
 made in the usual and ordinary course of business shall prima 
 facie be taken to have been made or given bona fide, and 
 without any intention to prefer, although sequestration was 
 contemplated, and the onus probandi of any illegal collusive 
 agreement lies upon the party challenging such transaction. 
 
 The article as it stands, and especially when read in 
 connection with section 84 of the same Ordinance, seems 
 
 4 
 
 illogical and ambiguous. In the recent case of Du Plooy's 
 Trustees v. Plewman & Draper,(u) the court, after mature 
 consideration, gave a clear and intelligible interpretation of 
 the doubtful wording. De Villiers, C.J., said in that case : 
 " Counsel for the appellant contends that the words prima 
 facie show that the 86th section was not intended to afford 
 any protection to an impeached transaction, in respect of 
 which sufficient proof of an intention to prefer has been 
 established to satisfy the 84th section, and counsel for the 
 
 * Cf. Opinions Nos. 62 and 64. 
 
 (t) See Du Plooy's Trustee v. Plewman, and the finding of the court on 
 the facts therein, 7 J. 332, and Grotius, 3, 39, 12. 
 («) 7 Juta, 332. 
 
510 OPINIONS OF GKOTIUS, [No. 
 
 respondent seems to acquiesce in this contention. I must 
 confess, however, that although I was at first inclined to hold 
 the same view, a careful reperusal of both sections has led 
 me to modify my opinion. The words prima facie must 
 be read in connection with the sentence which follows, and 
 the true meaning of the 86th section seems to me to be, 
 that the fact of payment having been made in the usual 
 and ordinary course of business affords a protection, even if 
 there is sufficient proof of an intention to prefer, to satisfy 
 the requirements of the 84th section, unless the existence 
 of a collusive arrangement is also proved. The question is 
 not free from difficulty, but a different construction of the 
 86th section would imply that there can be undue prefer- 
 ence under the 84th section without proof, whether actual 
 or presumptive, of an intention to prefer. This being my 
 view, I consider it the more imperative that the protection 
 afforded by the 86th section should not be extended except 
 to cases to which it was clearly intended to apply. When 
 once contemplation of sequestration and an intention to 
 prefer have been proved, it lies upon the creditor who seeks 
 the protection afforded by the 86th section to establish 
 beyond any doubt that the transaction sought to be im- 
 peached took place in the usual and ordinary course of 
 trade or business. It is not enough to show that in the 
 village in which the parties carried on their business such 
 transactions were common, or that, as between themselves, 
 they had had similar dealings before. The creditor must 
 show that the usual or ordinary course of trade or business 
 among men of business and repute in the commercial world 
 has been followed, and if it appears that there has been a 
 departure from the course followed by reputable men of 
 business under similar circumstances, the protection of the 
 86th section cannot be invoked." 
 
 The last two sentences of the decision just quoted are 
 worthy of special attention, for they contain a clear and 
 definite definition of the phrase " usual or ordinary course 
 of trade or business." 
 
 In the same case, Buchanan, J., states, with reference to 
 
66.] OPINIONS OF GROTTOS. 511 
 
 this matter : " I think we are bound to hold that the 
 usual and ordinary course of trade or business must be 
 taken to mean transactions in the usual and ordinary every- 
 day course of mercantile dealing, not any special course of 
 dealing between individuals, or even the practice of trades 
 in some small country community." 
 
 A less decisive" and satisfactory definition of the phrase 
 was given by Connor, J., in Tucker v. Austen's Trustee.(v) 
 He states that " it is that which -is suitable to the nature of 
 the particular business, and might reasonably and probably 
 and in the ordinary course have taken place without refer- 
 ence to a contemplated sequestration." 
 
 For further reference to this subject, in order to see 
 under what circumstances the court will hold a certain 
 transaction to be protected, as having been made in the 
 ordinary course of business or otherwise, the following 
 cases may be consulted : — 
 
 Hiddingh, Manual's Trustee v. Norden.(a;) 
 
 Sunley's Trustees v. De Wet.(y) 
 
 Redelinghuys' Trustees v. Russouw's Trustees.(z) 
 
 Redelinghuys' Trustees v. Morkel and De Villiers. (a) 
 
 In re Carter.(S) 
 
 Daneel's Trustee v. Van der Bijl & Co.(c) 
 
 Smuts, Trustee of Neethling v. Neethling.(rf) 
 
 Read, Trustee of Allen v. Crooks, (e) 
 
 Goosen's Trustee v. Froneman.(/) 
 
 (v) Buc. 1868, p. 135 ; see p. 167. 
 {x) 3 Menz. 288. (y) 3 Menz. 311. 
 
 (s) 3 Menz. 317. {a) 3 Menz. 324. 
 
 (6) 2 Menz. 335; (e) 1 Ros. 18. 
 
 (d) 3 Menz. 287. (e) 1 S. 87. 
 
 (/) 1 A. 458. 
 
OPINION No. 67. 
 
 HOLL. CONS. III. B. 144 ; VI. Pakt II. 55. 
 [GKOTIUS III. 10, 7.] 
 
 Payment when value of coinage 'changes. 
 
 If regard is had to a fixed value of the coinage 
 when an annuity is granted, payment must be made 
 according to the value of the coinage stipulated in 
 the annuity. 
 
 I have seen a certain annuity bond passed before 
 and in the Ambracht of Bleiswijk by Job Maartens, 
 Maarten Jans, and Klaas Floris in favour of the 
 orphans of Jan Jakobs Trompet, and have been 
 asked whether the payments fixed therein can be 
 paid in money at the present valuation or not. 
 
 Although this matter has, on the whole, formed the 
 subject of a good deal of controversy among lawyers, 
 and the several courts have not been unanimous in 
 their judgments, I am nevertheless of opinion that 
 the definite contention of the majority is that when, 
 from the tenor of a document, it appears that at the 
 time it was drawn up regard was had not to the 
 coinage according to its fluctuation in value, but to 
 
No. 67.] OPINIONS OF GROTIUS. 513 
 
 certain denominations and to their fixed value, pay- 
 ment must then be made in such denominations and 
 at such valuation. And since in this case it was 
 not only stated that payment should be made in 
 sterling coin of the proper value with the Keur- 
 vorster gulden for 56 groot, one Philips gulden for 
 one pound groot, one Karolus gulden for 40 grooten, 
 one Vierijzer for 5| groot, one Stuiver for two Flemish 
 groot, and all other coins in payment to be of proper 
 weight and standard according to their value, but 
 also that the capital was paid in such coinage, the 
 payments must be made in such coinage as was 
 current at the time the deed was drawn up and at 
 the stated valuation, or otherwise in other money 
 according to calculation. 
 
 Rotterdam. 
 
 Schorer in his " Aanmerkingen " on Grotius, 3, 10, 7, 
 enters fully into a discussion of the subject, a matter 
 of great controversy among the Dutch jurisprudents, as 
 Grotius says in the present Opinion. 
 
 The value of very many of these old coins is given by 
 Van Leeuwen in his Commentaries on the Roman-Dutch 
 Law (Bk. ii. chap. 13). 
 
 USURY. 
 
 (Ad Opinions Nos. 68, 69, 70.) 
 
 By the law of the Twelve Tables interest was limited to 12 
 per cent, in Rome (unciarium fenus). This was later on 
 reduced to 6 per cent, per annum (semiunciarium fenus). 
 A few years later interest was altogether prohibited by the 
 
 2 K 
 
514 OPINIONS OF GKOTIUS. [No. 
 
 Lex Genucia, which, however, does not seem to have been 
 strictly enforced. 
 
 Justinian fixed the following rates of interest in order to 
 counteract the demands for exorbitant interest which pre- 
 vailed at that time (a) : — 
 
 1. Maritime loans (jpecunia trajectitia), maximum 12 per cent, 
 per annum. 
 
 2. For merchants, &c, maximum 8 per cent, per annum. 
 
 3. For ordinary non-business people, maximum 6 per cent, 
 per annum. 
 
 4. For the nobles, maximum 4 per cent, per annum. 
 
 5. For agriculturists,(&) maximum 4 per cent, per annum. 
 
 The law referred to the internal police and constitution 
 of the Roman empire, and it was not incorporated in the 
 laws of Holland and the other States. In 1540 Charles V.. 
 legalised the taking of interest in the case of merchants 
 lending money for mercantile purposes, but he did not 
 extend it universally. Another Ordinance was passed in 
 1571 to the effect that interest, in order not to be usurious, 
 must be reasonable, according to the customs of the place. 
 
 In his " Opinions " (c) Grotius says as regards usury, 
 " Since no universal practice has been observed on this 
 point, the rate of interest allowed by the customs of the 
 place must be taken into consideration.'' 
 
 It will be unnecessary to go into the history of this once 
 important subject here. The whole matter will be found 
 fully set forth in the arguments and judgments delivered in 
 the case of Byason v. I£uthven.(d) 
 
 Matthasus doubts very much whether usury is a crime. 
 The same author defines usury as " the taking of interest 
 upon interest, or interest beyond the rate allowed by 
 law."(e) 
 
 "Anatocismus" was the calculation of interest upon in- 
 
 [a) Code, 4, 32, 26, 1. 
 (6) Novel 32. 
 
 (c) Opinion No. 68 (Holl. Cons. 3 (b.) 147). 
 
 (d) 3 S. 282. 
 
 (e) De Criminibus, Bk. 47, tit. 4, ch. 4, § 6, and Bk. 47, last tit. ch. 6, § 1. 
 
67.] OPINIONS OF GROTIUS. 515 
 
 terest, or compound interest. This was not allowed, ac- 
 cording to many Dutch jurists. (/) 
 
 The accumulation of interest so that it exceeded the 
 capital was not allowed^) 
 
 The following authorities may be consulted : — 
 
 Dyason v. Ruthven, 3 S. 282. 
 
 Maynard v. Malan, widow of Morkel, 1 Menz. 299. 
 
 Mechau v. Jaarsveld (Van), 1 Menz. 113. 
 
 Hens v. Horak, 1 Menz. 40. 
 
 Muller v. Redelinghuys and Van Reenen, 1 Menz. 41. 
 
 Sutherland v. Elliot Brothers, 1 Menz. 99, and note the re- 
 marks of Menzies, J., thereon. 
 
 Grotius, Opinions Nos. 68, 69, and 70 (HolL Cons. 3 (b.) 147, 
 3 (b.) 171, and 3 (b.) 169; Introd. 3, .10, 9, and 10). 
 
 Van der Keessel, Thes. Sel. 544-549. 
 
 Schorer ad Grot., 1, 9, 10, note 43 ; ad Grot., 3, 10, 10; Notes 
 337, 338. 
 
 Voet, 22, 1, 3 ; 22, 1, 20. 
 
 Van Leeuwen, R. H. R. 4, 7. 
 
 Matthseus de Oriminibus, lib. 47, tit. ult. cap. 6. 
 
 Decisien van den Hove, No. 166, 248, 311. 
 
 Christinaeus, Decis., lib. 1, decis. 293. 
 
 Regtsgeleerde Observation ad Grot., 3, 10, 9, and 10. 
 
 Van der Linden, 1, 15, 3. 
 
 (/) See also the case of Maynard v. Malan, 1 Menz. 299. 
 
 {g) Niekerk v. Niekerk, 1 Menz. 454. It is there stated that the Dutch 
 law is clear on this point. This is not the case. Schorer (ad Grot. 3, 10, 10> 
 note 338) says, " It must be observed that by our customs the interest may 
 exceed the principal," and he quotes Stokmans, Finkelthaus, and Carpzovius 
 as authorities. 
 
USURY— PACTUM ANTICHRESIOS. 
 
 OPINION No. 68. 
 
 HOLL. CONS. III. B. 147. 
 [GKOTIUS III. 10, 10, and II. 48, 41.J 
 
 Interpretation of a contract, whether it is a pledge or hypotheca- 
 tion — Pactum antichresios — What is excessive and usurious 
 interest. 
 
 1. The words " pledges," " pledge," " security," 
 occur in a certain contract, as well as the words " to 
 place in the hands of, and to secure," and " to pay 
 the amount and release the pledge." Such a con- 
 tract cannot be considered otherwise than as a pledge, 
 notwithstanding that it also contains the words 
 "delivery, and also of the fortieth penny." 
 
 2. A contract " antichresios " is one whereby 
 certain yearly profits are allowed to any one in lieu" 
 of interest on his money. 
 
 3. A stipulation whereby the amount to be paid 
 for the redemption of the pledge is fixed at a higher 
 figure than the amount of the borrowed and advanced 
 money is null and void as far as such excess is con- 
 cerned, and must be held as not written. 
 
 516 
 
No. 68.] OPINIONS OF GKOTIUS. 517 
 
 4. Local customs must be taken into consideration 
 in the payment of interest ; and when more has been 
 received than a reasonable interest, the excess must 
 go towards diminution of the capital. 
 
 Having seen a certain contract dated the 28th of 
 April 1600, passed before the Schepenen of the 
 Briel between Jan Joosten and Cornelis Jacobs 
 Breeman, and having been asked what the nature of 
 the said contract is, and what would be the most 
 advantageous manner for Jan Joosten, as pledgor in 
 the contract, to redeem the debt and interest : 
 
 I am of opinion that although mention is made of 
 " delivery or tradition, and also of the fortieth 
 penny," in the said contract, which seems to infer a 
 transfer of ownership, yet the contract is in reality 
 nothing more than a pledge, not only because the 
 words " pledges," " pledge," and " security," appear 
 therein, but all the more because such is clearly set 
 out by the words " to place in the hands of, and to 
 secure ; " and also because Jan Joosten was allowed 
 to redeem and pay the pledge. 
 
 (2) From this, and from the whole tenor of the 
 document, it appears to be a pactum antichresios — 
 that is, one whereby a yearly revenue is allowed to a 
 creditor instead of interest on his money. 
 
 (3) It appears from the contract that the money 
 lent by Breeman to Joosten did not exceed the 
 amount of four hundred Flemish pounds, or at most 
 increased by the impost of the fortieth penny. Four 
 hundred and ten pounds were, however, paid in error 
 
518 OPINIONS OF GEOTIUS. [No. 
 
 of law. Hence it follows that Jan Joosten, or Pieter 
 Philips as his mandatarius, agent, or cessionary, can 
 release the said pledge by payment of the said four 
 hundred Flemish pounds, without regard being had 
 to the clause appearing in the said contract whereby 
 it is agreed that the pledge should be released on pay- 
 ment of four hundred and sixty-two pounds ; for this 
 stipulation, as far as the sum fixed by it as payment 
 exceeds the borrowed and advanced money, is null 
 and void in law, and must be considered as not 
 written (D. 12, 1, 11). 
 
 (4) With reference to the interest received during 
 the existence of the pledge, if the old laws and 
 ordinances treating of usury still obtained, it could 
 be contended that whatever amount Breeman re- 
 ceived in excess of a reasonable interest ought to go 
 in reduction of the capital sum. Yet since no uni- 
 versal practice has been observed on this point, the 
 rate of interest allowed by the custom of the place 
 must be taken into consideration. The last ordi- 
 nance of 1571 bears on this point. 
 
 PLEDGE — CONSTRUCTION OF AGREEMENTS. 
 
 A pledge is an agreement whereby a debtor places property 
 in the hands of his creditor as security for his debt, (a) 
 
 When thus set forth, the terms " pledge " and " hypo- 
 thecation " seem convertible. This is, however, not the 
 case. In strict law the term "pledge" refers only to 
 movable property, and the term " hypothecation " (the word 
 " mortgage " is foreign to Roman-Dutch jurisprudence) 
 
 {a) Grotius, 3, 7, ]. 
 
68.] OPINIONS OF GROTIUS? 519 
 
 refers only to immovable property. (5) Hypotheca quae 
 proprie consistit in immobilibus et pignus qu,od .circa 
 mobilia versatur. 
 
 Agreements are to be construed according to the in- 
 tention of the parties indicated in and by them, and not by 
 what they choose for the sake of convenience to call the 
 agreement,(c) plus valet quod agitur quam quod simulate 
 concipitur.(rf) Therefore if a written agreement is entered 
 into purporting to be a sale, when in reality a pledge was 
 intended, the real transaction must prevail over the feigned 
 one.(c) " We must," says Chief-Justice De Villiers in Guest 
 v. Trustees of Le Boex (5 J. 121), " look at the real substance 
 of the transactions, and not at the fictitious forms which the 
 parties have adopted for certain reasons." 
 
 The pactum antichresios was a contract of pledge whereby 
 it was stipulated that the pledgee should have the use of 
 the pledge, or the fruits to be derived therefrom, in lieu of 
 interest on the money lent by him, or, as stated in the 
 Roman law, Ut creditor pro pecuniae debitas usuris, fructus 
 rei pignoratas habeat.(e) 
 
 In treating of this matter Voet says, " Praecipue vero 
 probatum in pignoribus pactum antichrisios, quo id agitur, 
 ut creditor utatur pignore in vicem usurarum, donee debitum 
 solutum fuerit, sive ipse asdes inhabitando fundove colendo, 
 percipere fructum aut utilitatem velit, sive aliis elocare ; 
 adeo ut si ante exsolutum debitum possessionem amiserit, 
 vel hypothecaria actione ex communi hypothecarum natura 
 rem obligatam persequi possit, vel ad recuperandum ante- 
 chresin, seu mutuum pignoris usum pro credito, in factum 
 actione uti.(/) 
 
 This pactum antichresios or " pandgenot " is either express 
 or tacit, as where a fruit-bearing thing is pledged to the 
 
 (6) Van Leeuwen, R. H. R. 4, 13, 24 in notis. 
 
 (c) See Cholwich v. Penny and Simpkins v. Penny, 5 E. D. C. 270. 
 Solomon v. Cumming, 2 G. 311. 
 
 (d) Per De Villiers, C.J., in Treasurer General v. Lippert, 1 J. 303 (Code, 
 4, 22, and Perezius ad ibid.). 
 
 (e) Digest, 20, 1, 11, 1, and Digest, 13, 7, 35. 
 (/) Ad Pand. 20, 1, 23 ; see also 21 and 22 ib. 
 
620 OPINIONS OF GROTIUS [No, 
 
 creditor for the money advanced, and no interest is stipulated 
 for.fer) 
 
 Another pactum, adjectum or subsidiary agreement of a 
 similar nature is the pactum commissorium. This agree- 
 ment between the pledgor or mortgagor and pledgee or 
 mortgagee was to the effect that if the debt was not paid at 
 the proper time, the pledged or mortgaged property was to 
 become the absolute property of the pledgee or mortgagee 
 in payment of the arrear debt. 
 
 Grotius disapproves of this agreement as being contra bonos 
 mores. Voet, Lauterbach, and Matthseus on the other hand, 
 support the agreement, if the price or debt is reasonable.(A) 
 Decker in his notes on Van Leeuwen's Koman-Dutch Law (i) 
 writes to the same effect. He says, " Grotius says this is 
 not allowed, and this is undoubtedly so far true, that if the 
 property pledged is worth more than the debt (which can 
 be proved by the valuation of impartial and competent men), 
 or realises in case of sale more than the debt, the surplus 
 will not go to the creditor, but must be handed to the debtor, 
 as belonging to him, and therefore, the abuse being removed, 
 I do not see why the beneficial use should cease." 
 
 It is sometimes stipulated in a contract of pledge that 
 the creditor shall be entitled to sell the pledged pro- 
 perty without an order of court in default of payment by 
 the debtor on the due date. Such a stipulation for parate 
 exccutie is held to be invalid by Grotius,(&) Van Alphen,(Z) 
 Merula, (m) Voet, (n) Groenewegen, (o) and others. Van 
 der Keessel,(_p) Bynkershoek,^) Decker,(r) and Van der 
 
 (g) Van Leeuwen, R. H. E. in notis, 4, 12, 4. 
 
 (h) Voet, 20, 1, 25, 28. Matthseus de Auctionibus, 1. i. c. 3, 11. Lauter- 
 bach, D. 13, 7, 9, 10, 11. 
 
 (i) Van Leeuwen, E. H. E. 4, 12, 4 ; Kotze's trans, ii. 86. 
 
 (£) Grotius, 2, 48, 41. 
 
 (1) Van Alphen Papegaai, 1, c. 32, p. 507. 
 
 (m) Merula Manier van Prooedeeren, 1. 4, tit. 100, c. 1, § 10. 
 
 (n) Voet, 20, 5, 6, and 42, 1, 48. 
 
 (o) Groenewegen de Legibus Abrogatis, Instit. 2, 8, 1. 
 
 (p) Van der Keessel, Thes. Sel. 439, where he quotes Digest, 13, 7, 5 ; see 
 also 13, 7, 4, and Sande, 3, 12, 20, and Thes. Sel. 480. 
 
 (q) Bynkershoek, Quaestiones Juris Privati, ii. cap. 13. 
 
 (r) Decker m notis ad Van Leeuwen's Com. 4, 12, 4, and 5, 26, 19. 
 
68.] OPINIONS OF GEOTIUS. 521 
 
 Linden, (s) are of opinion that movables pledged under a 
 stipulation of parate executie can be sold without a previous 
 order from the court ; the latter, however, adds, " It is more 
 prudent before proceeding to the sale to obtain the sanction 
 of the court." The more modern writers, Van der Keessel 
 and Van der Linden, therefore, seem to favour the stipula- 
 tion for immediate execution under the jurisdiction and 
 sanction of the court. 
 
 In his notes to his translation of Van Leeuwen's Com- 
 mentaries, Chief -Justice Kotze says, " It is possible that in 
 South Africa the courts of law may sanction a private sale 
 by the creditor of a chattel, e.g., a horse, a watch given in 
 pledge, where such has been agreed upon ; but they will 
 not favour such a practice, and will certainly not extend it 
 to immovable property or movable property of considerable 
 value," (t) thus accepting the law as laid down by the two 
 last-mentioned writers with a limitation as to movable pro- 
 perty of considerable value. This dictum as to movable 
 property of considerable value is in conformity with the law 
 as stated by Paul Voet (Mobilium et Immobilium Natura, 
 chap. 6, § 5), where he says that res pretiosa is on the same 
 footing as immovable property. 
 
 (s) Van der Linden, Institutes, 1, 12, 5, and Merkwaardige Gewijsden, 
 p. 161. 
 
 {t ) P. 408 in notis. 
 
OPINION No. 69. 
 
 HOLL. CONS. III. B. 171.* 
 [GROTIUS III. 10, 10, II. 31, 4, & II. 41, 21.] 
 
 Customs dues — Permits for one year — Post-dating permits — 
 Usury-wares sold at a price stipulated to be less than the 
 market value — Usury can take place in all contracts — . 
 Usury, punishment of — Fisc can succeed under security 
 — Purging accidental homicide — Lis pendens, effect of t — 
 Feudal succession — -Full sister and half brother. 
 
 1. According to the Ordinance regulating the 
 customs dues in Holland, a permit only lasts for 
 one year, and any one post-dating it perpetrates a 
 fraud on the Treasury, and is liable to punishment ad 
 relegationem usque temporarium. 
 
 2. When wares are sold to be delivered on a 
 certain day, not at a fixed purchase price, but at a 
 certain amount less than the then market value, the 
 contract is usurious. 
 
 3. In omni contractu usura locum habere potest. 
 
 * The next Opinion (3, b. 172) in the Consultatien is wanting, or rather, 
 it seems that it has been wrongly numbered 173. 
 
 t Lis pendens, a case pending coram curia. This could be pleaded as a 
 declinatory persistent exception. See Van Leeuwen, R. H. R. 5, 17, 6, 
 Voet, 5, 1, 144-149. Queen v. Robertson, 4 E. D. C. 186. Laubscher». Vigors 
 and Fryer, Buc. 1873, 20. Vyfer v. Ubsdell, 3 G. 454. Queen v. Nkalayi 
 and Others, 1 A. 175. 
 
No. 69.] OPINIONS OF GROTIUS. 523 
 
 4. The punishment of usury is arbitrary. The 
 practice in many places is to confiscate one-fifth of 
 the capital amount. 
 
 5. The Fisc can succeed to a vacant share of 
 an estate under security in the same way as the 
 relatives of the deceased succeed to the other 
 shares. 
 
 6. A man may purge himself in casualibus homi- 
 cidiis, but it is more advisable to obtain a pardon or 
 license of non-molestation (Landwinning), which, in 
 such a case, is never refused. 
 
 7. On the termination of a Us pendens the owner 
 can at once eject the trespasser and sue him for 
 interest and damages sustained by reason of such 
 wrongful detention. 
 
 A public officer may sue in addition for a dis- 
 cretionary punishment. 
 
 8. According to the law of Holland, a full sister 
 was preferred to a half-brother of the deceased from 
 the father's side, in succession to a feud coming from 
 the mother. 
 
 According to feudal custom, succession is confined 
 to the descendants of the original feudatory, as long 
 as any are left. 
 
 (1) Regarding the first point, I am of opinion, 
 since the Customs Ordinance of Holland expressly 
 states that a permit shall not last for a longer period 
 than one year, and post-dating it is therefore a fraud 
 on the Treasury, that Marinus Jans can be summoned 
 to answer the charge, and is liable to a punishment, 
 
524 OPINIONS OF GEOTIUS. [No. 
 
 ad relegationem usque tevnporarium ; (a) but reliable 
 information must first be obtained. 
 
 (2) Kegarding the second, I think, if wares were 
 sold to be delivered on a certain day, not at a fixed 
 purchase price, but for a certain amount less than 
 the then market value, such a contract is usurious ; 
 (3) cum certum sit in omni contractu usuram 
 locum habere posse, et hie vere lucrum captetur ex 
 tempore. We must therefore inquire whether 
 Harnikman * received a greater return for his 
 money than the customary law of Zuid-Beveland 
 allows, for the latest Plaacat of the year 1571 
 specially refers to customary law. If every one could 
 transgress in this matter sine fine et rnodo, licenses 
 for market tables would be useless. (4) Poena usurce 
 est arbitraria, the practice in many parts being 
 to confiscate one-fifth part of the capital amount. 
 
 (5) Re the third, I see no reason why the Fisc 
 should not succeed to a vacant share of the estate, 
 under proper security, in the same way as the 
 relatives succeed to the other portions. 
 
 (6) Re the fourth, I think that although the young 
 man mentioned therein can purge himself, it is more 
 advisable for him to request a pardon or license of 
 non-molestation (Landwinning) from the Government 
 of Zeeland, which, as a rule, is never refused in 
 casualibus homicidiis. 
 
 (7) Re the fifth, on the termination of a lis 
 
 (a) D. 48, 10, 13, and 21. 
 
 * Harnikman here mentioned is evidently the same personage who 
 appears in Cons. III. B. 169, p. 527, infra, which was given a year later 
 than the present one. — [Ed.] 
 
69 -J OPINIONS OF GEOTIUS. 525 
 
 pendens coram curia the owner can at once eject 
 the trespasser, and sue him in addition for interest 
 and damages sustained through the wrongful de- 
 tention.^) A public officer is further entitled to 
 demand a discretionary punishment. 
 
 (8) Regarding the sixth point, I am of opinion 
 that according to the law of Holland (which I 
 think obtains in Zeeland as well), a full sister is 
 preferred to a half-brother, related to the deceased 
 from the father's side only, in succession to a feud 
 coming from the mother; for according to feudal 
 custom, succession is confined to the descendants of 
 the original feudatory, as long as there are any left. 
 
 Rotterdam, 
 May 1615. 
 
 LANDWINNING. 
 
 Grotius in his Introduction, 3, 32, 7, discusses the 
 mode of procedure to obtain a pardon, or to compensate 
 manslaughter, wounding, &c. 
 
 Speaking of pardon or remission, Van Leeuwen says,(c) 
 " If the offence has been committed out of necessary self- 
 defence, or if attended by such slight negligence that it 
 ought not to be punished, and the offender seeks to escape 
 the disgrace and suspicion which might otherwise attach to 
 him, he may pray abolition thereof — that is, a wiping out 
 and destroying of the fact just as if it had not happened, 
 which requires no confirmation or license of non-molestation 
 (landurinning). So that he is thereby meanwhile rendered 
 secure for always as to his person, if the act admits of com- 
 
 (6) D. 19, 2, 48. 
 
 (c) Van Leeuwen's Commen., by Kotze, 4, 43, 2 and 3. 
 
52 6 OPINIONS OF GEOTIUS. [No. 69. 
 
 position — that is, that it is not publicly punishable, otherwise 
 for a certain time, and generally for half a year, in order to 
 obtain pardon or remission in the meantime." 
 
 The effect of this kind of pardon is that the person who 
 has killed another in self-defence is allowed to remain un- 
 disturbed in the country, (d) 
 
 (d) Van der Linden, Instit. 2, 9, 3, (4), and Judicieel Practyk, ii. p. 
 272, 274. 
 
OPINION No. 70. 
 
 HOLL. CONS. III. B. 169. 
 [GROTTO'S III. 10, 10.] 
 
 Usury — A delict — How committed — How punished — How if the 
 debtor consents to the usury — Punishment of a repetition 
 of similar offences. 
 
 1. Usury was committed particularly in contracts 
 of loan, mutuum and cownmodatum, but as a delict 
 the word received a more extensive interpretation, 
 and was applied to all contracts whereby unjusti- 
 fiable profit was made through extortion from needy 
 persons. 
 
 2. Fraudem legi dat, qui, salvis verbis legis, 
 sententiam ejus circumvenit, imo qui palam facit 
 levius, qui clam gravius puniendus est. 
 
 3. The punishment of usury is left to the discretion 
 of the judge, and the delict was referred ad crimen 
 stellionatus. 
 
 4. In contractibus fceneratoriis versatur dolus et 
 puniendus est, etiam si debitor sciens et volens 
 usuram persqlvat. 
 
 5. Jure imperii poena usurarii contractus est 
 amissio quartse partis ipsius fortis. 
 
 6. An excuse, that a certain action had been 
 
 627 
 
528 OPINIONS OF GROTIUS. [No. 
 
 committed before, may have some weight in rebus 
 toto jure prohibitis, non autem in iis, quae per se 
 sunt turpes. 
 
 7. He who has frequently committed crimes of 
 the same nature should receive all the heavier 
 punishment. 
 
 My advice having been asked with regard to a 
 certain claim made by the Sheriff of the town of 
 Goes against Cornelis Harnikman, which, together 
 with Harnikman's plea, has been submitted to me : 
 
 (l) I am of opinion, assuming that the facts, or 
 the major portion of them, as alleged in the declara- 
 tion, can be substantiated (seeing too that some 
 have not been denied in the plea), that the said 
 Harnikman is guilty of having committed most 
 exorbitant usury. The fact that usury is really 
 committed in contracts of loan, mutuum and com- 
 modatum, and that Harnikman seems to have traded 
 by way of purchase and sale, is no excuse ; for as a 
 delict the word usury received a more extensive 
 interpretation, and was applied to all contracts 
 whereby any one made unjustifiable profit through 
 extortion from needy persons. (a) There is less ex- 
 cuse for Harnikman in the present case since the 
 facts show that it was his intention from the very 
 commencement to lend his money at a highly usu- 
 rious interest, and that the pretext of sale was merely 
 used to conceal the usury. (2) Fraudem autem legi 
 
 (a) Panorm. in o. naviganti de usuris ; Can. c. in civitate et c. fin. eo tit. 
 et in C. ad nostram et empt. et vend ; Bart, ad rubr. C. de usur. 
 
70.] OPINIONS OF GKOTIUS. 529 
 
 dat, qui salvis verbis legis, sententiam ejus circum- 
 venit,(&) imo qui palam facit levius, qui clam, gravius 
 puniendus est.(c) 
 
 (3) As to the punishment to be inflicted, this is 
 left to the discretion of the judge, for this delict 
 is referred ad crimen stellionatus, cujus poena est 
 arbitraria.(<i) (4) Ubi etiam ostendit in fceneratoriis 
 contractibus versari dolum et puniendum esse, eti- 
 amsi debitor sciens et volens usuram persolvat. (5) 
 Jure Imperii poena usurarii contractus est amissio 
 quartse partis ipsius fortis.(e) (6) It is no excuse for 
 the said Harnikman that contracts of a similar nature 
 were frequently entered into before ; for this excuse 
 may hold in rebus toto jure civili prohibitis : non 
 autem in iis, quse per se sunt turpes : quia in istis 
 locum habet quod dictur, D. 28, 19, 16, 10 ; ex- 
 acerbanda esse supplicia, quoties multis personis 
 grassantibus, exemplo opus est. 
 
 (7) Lastly, it remains to be noted that Harnikman 
 ought to receive all the heavier punishment because 
 he has frequently committed the same kind of delict, 
 and has shown thereby an animus delinquendi. Nam 
 propter iterationem delictorum aut consuetudinem 
 delinquendi, reus gravius puniendus est.(y) 
 
 Rotterdam, 
 
 23rd May 1616. 
 
 (6) D. 1, 3, 29. 
 
 (c) D. 23, 2, 68. 
 
 (d) Menoch. de arb. jud. qusest. oas. 348. 
 
 (e) Gail, 1. 2, obs. 4, num. 1. 
 
 (/) In 1. Claras tract, crim. qusest. 84, num. 6. 
 
 2 L 
 
OPINION No. 71. 
 
 HOLL. CONS. III. B. 179. 
 [GROTIUS III. 12.] 
 
 Arbitration. 
 
 1. Arbitrators who have accepted a deed of 
 submission are bound to act in the matter up to 
 its conclusion and to give their award. 
 
 2. When an injunction has been obtained in 
 order to bring the submitted case before a judge, 
 arbitrators are not bound to enter into the 
 case. 
 
 3. Arbitrators cannot give a partial award or 
 separate doubtful points, but must decide the 
 whole matter in dispute at once, and cannot 
 depart from the method in which the award is 
 to be made, as prescribed by the deed of sub- 
 mission. 
 
 4. Arbitrators are bound to receive all evidence 
 and documents which the parties on either side 
 desire to hand in, in justification of their con- 
 tentions and in refutation of the allegations of the 
 other side. 
 
 530 
 
No. 71.] OPINIONS OF GROTIUS. 531 
 
 I have seen (1) a certain verbal accord * held before 
 Mr. Peter Blois van Gouwenburg, commissioner 
 of the High Court of Holland, between Adriaan 
 Jacobs van Noort, of the one side, and Meyntsge 
 Simons, widow of Jacob Jacobsz, sen., of the other 
 side, the said verbal accord containing a compromise 
 of the estate of Meyntsge Simons and her consent 
 to judgment {willige condemnatie) before the High 
 Court ; (2) an injunction or penal interdict (man- 
 dament penaal) obtained by Adriaan Jacobsz on 
 the 28th October 1631 ; (3) a list of the documents 
 handed in by the said Adriaan Jacobsz to the 
 arbitrators mentioned in the deed ; (4) a certain 
 memorandum and statement of claim made by 
 Adriaan Jacobsz, together with other documents. 
 
 In connection therewith I have been asked, 
 firstly, whether the arbitrators are bound to give 
 their award, notwithstanding that a penal injunction 
 has been obtained 1 
 
 Secondly, whether they can decide on separate 
 doubtful points, or whether they must decide the 
 whole matter in dispute at one and the same time ? 
 
 And thirdly, whether they ought to accept the 
 documents which Adriaan Jacobsz intended to hand 
 in, in justification of his claim and in refutation of 
 the allegations of the afore-mentioned Meyntsge 
 Simons 1 
 
 (1) In answer to the first question, I am of 
 opinion that the arbitrators, presuming that they 
 
 * For the meaning of the term " verbal accord," see Van der Linden, 
 Jnstit. iii. p. 1, c. 2, § 7, and his Judicieel Practyk, 2, 1, § 1-6. 
 
532 OPINIONS OF GEOTIUS. [No. 
 
 had agreed to act under the deed of submission, 
 are bound to act in the matter up to its conclusion 
 and to give their award. Nemo quidem cogitur 
 arbitrium recipere, sed officium arbitrii qui recepit, 
 implere debet.(a) (2) The penal injunction ob- 
 tained does not do away with this duty, for it was 
 not obtained to bring the principal case before a 
 judge, in which case the arbitrators would not be 
 bound to go into the matter. (6) (3) With the 
 exception that a certain extension of time was 
 granted, the matter remains as it was before, and is 
 subject to the decision of the arbitrators. 
 
 As regards the second question, it is an accepted 
 principle of law quod si de pluribus rebus sit arbi- 
 trium receptum, nisi omnes controversias Anient 
 arbiter, non videtur dicta sententia ; (c) but further, 
 the manner in which the award is to be given is 
 specially stipulated in the deed, viz., all accounts 
 and counter-claims up to the very last must be 
 scrutinised, examined, and gone into, and after the 
 witnesses have been fully heard the accounts are to 
 be closed and the award given. This method is not 
 to be departed from by the arbitrators, (d) 
 
 (4) Concerning the third point, I think that the 
 arbitrators would do well to accept the said docu- 
 ments and to give them due consideration; for 
 although the deed of submission speaks only of the 
 
 (a) D. 4, 8, 3, 1. 
 
 (6) D. 4, 8, 9, § 5, cum legibus sequentibus. 
 
 (c) D. 4, 8, 19. 
 
 (d) D. 4, 8, 21, and 3, in pr. 
 
71.J OPINIONS OF GEOTIUS. 533 
 
 oral testimony of witnesses, yet the accounts are to 
 be scrutinised and examined previously, and for this 
 purpose it is necessary to inspect the receipts and 
 vouchers in proof of the claims filed. And if the 
 said Meyntsge Simons handed in any documents 
 to contest the said accounts, Adriaan Jacobsz van 
 Noort must be allowed to file counter-affidavits and 
 documents which he may deem necessary to contra- 
 dict the documents of Meyntsge Simons, for the pre- 
 sent case affects not only his ordinary interests, but 
 also his character, and the arbitrators should accept 
 all possible information in order to give a conscien- 
 tious and equitable award. 
 
 28th February 1632. 
 
 Voet in his Commentaries, 4, 8, treats very fully of the 
 laws on arbitration which obtained in his day. 
 
 This subject is also mentioned by Van Leeuwen in his 
 Censura Forensis, ii. 1, 17, and Damhouder, "Praxis Civil." 
 c. 203. 
 
 When the arbitrators cannot agree, and an umpire 
 (eiTtdbeslisser) has been appointed, the decision of the latter 
 is binding. But how if one of two arbitrators refuses to' 
 proceed to the final determination of the disputed points ? 
 His refusal in such a case is considered as equivalent to 
 non-agreement, and the umpire must then intervene in order 
 to bring the proceedings to a final issue, (e) 
 
 Unless anything appears to the contrary in the deed 
 of submission, the arbitrators, and not the parties, must 
 fix the time and place of meeting of the arbitrators. (/) 
 
 The award given by arbitrators can be set aside, when 
 
 (e) Hawes & Co. v. Meintjes & Dixon, 3 S. 62. 
 
 (/) Bull, Sons, & Co. *. The Colonial Government, 6 J. 283. 
 
534 OPINIONS OF GROTIUS. [No. 
 
 the circumstances under which it was given afford sufficient 
 ground for sustaining an exc&ptio judicis smpecti. 
 
 Thus where two parties agreed to submit certain disputes 
 pending between them to an arbitrator, but before the 
 award had been given, the one party died, and the other 
 party was appointed his executor, and the award was 
 subsequently made a rule of court, the other party qua 
 executor consenting : Held that the award could be set 
 aside three years afterwards, on the application of minors 
 interested in the estate of the deceased ; Bell, J., stating, 
 " The whole complexion of the case shows that the defendant 
 was the acting executor ; he should not have acted as 
 executor in such a case.^) 
 
 The award must be final and definite. Ambiguity and 
 want of finality are good grounds for refusing to confirm 
 the award, (h) 
 
 The deed of submission cannot be revoked by one of the 
 parties invito altero.(i) 
 
 Ad 2. If the contracting parties stipulate in the contract 
 between them that any disputes or differences under the 
 contract should be submitted to arbitration, such stipulation 
 is a condition precedent, and the complainant can only 
 come to court when submission to arbitration has been 
 rendered impossible, owing to the acts of the other con- 
 tracting party, (fe) 
 
 An agreement to submit all future disputes to the 
 arbitration of uncertain persons cannot be enforced by 
 the court unless the parties have themselves in the agree- 
 ment assessed the amount of damages for non-performance, 
 by stipulating a certain penalty. (I) 
 
 Ad 3. When no special directions, to the effect that an 
 award can be made in part, are contained in a deed of 
 
 (g) Evans v. Van der Plank & Cleghorn, 1 S. 252. 
 
 (h) Lippert & Co. v. Town Council of Port Elizabeth, 3 E. D. C. 189. 
 Wynberg Valley Railway Company v. Eksteen, 1 R. 70. 
 [i) Twentyman v. Chisholm, 3 Menz. 161. 
 (k) Davies v. The South British Insurance Company, 3 J. 416. 
 (I) Schmidt v. Francke, 1 Menz. 334. 
 
71.J OPINIONS OF GKOTIUS. 535 
 
 submission or order of reference, it is not competent for 
 the arbitrator to make such an award, (m) 
 
 When, however, certain clauses of an award which are 
 bad are not so closely connected with the rest as to affect 
 the validity of the whole award, but are so clearly separable 
 that they may be rejected, such clauses may be expunged, 
 and the rest of the award confirmed as valid, (n) 
 
 If the arbitration takes place in terms of certain statutory 
 provisions, the award must be in strict conformity with the 
 terms of the Act.(o) 
 
 Ad 4. Both parties- must be present during the conduct 
 of the arbitration. To examine witnesses in the presence 
 of one party only is improper, and the award will be set 
 aside, although no actual injustice has been done thereby.Q?) 
 
 If it is alleged that certain irregularities had taken 
 place, but the complainant had nevertheless proceeded with 
 the arbitration, and had thus chanced an award in his 
 favour, he will be taken to have waived his objections to 
 the irregularities (e.g., evidence heard ex parte,(q) or evi- 
 dence taken not on oath).(y) 
 
 If the umpire commits certain irregularities, such as not 
 giving notice to one party, (s) or founding his decision on 
 notes taken by the arbitrators, without himself hearing the 
 witnesses, (t) the award will be set aside. 
 
 When the parties, by a clause in the deed of submission, 
 have bound themselves to attend and produce such books 
 as may be in their possession, touching the matters in 
 dispute, only such books need be produced as are required 
 by the arbitrators, (u) 
 
 (m) Blatchford v. Blatohford, 1 R. 86. 
 
 (nj Beneke v. Schoeman, Buo. 1876, 137 ; see also Twentyman v. Chis- 
 holm, 3 Menz. 161. 
 
 (o) The Wynberg Valley Railway Company v. Eksteen, 1 R. 70. 
 
 (p) Dietz v. Pohl, 1 Menz. 397. Macdonald & Co. v. Gordon & Co., 
 1 R. 251. Croll q.q. Kerr v. Brehm, 2 S. 227. 
 
 (j) Chabaud & Son v. Mackie, Dunn, & Co., Buo. 1876, 190. 
 
 (r) Viljoen v. Snyman (S. A. R. 1893). 
 
 (s) Fryer and Others v. King, 3 Menz. 160. 
 
 (t) Groenewald v. Smith, 3 Menz. 158. Wood v. Gilmour, 3 Menz. 158. 
 
 (m) Twentyman v. Chisholm, 3 Menz. 161. 
 
MANDATE. 
 
 OPINION No. 72. 
 
 HOLL. CONS. III. B. 180. 
 [GEOTIUS III. 12, 8.] 
 
 Mandate — Acceptance — Liability — Amount of diligence 
 required — Dolus. 
 
 1. When any one has received a written request 
 to act in a certain matter, and has not refused it per 
 letter or otherwise, he is understood to have accepted 
 the mandate in terms of the request, and is bound to 
 execute the charge fully. If he neglects or delays 
 to do this, he is liable to make compensation for all 
 damages, costs, and interest suffered or incurred by 
 the mandator. Et No. 4. 
 
 - 2. A mandatarius in discharge of his mandate is 
 bound to exercise such diligence as every person 
 uses in the transaction of his own business. 
 
 3. Dolus esse dicitur si quis nolit persequi, quod 
 persequi potest. 
 
 • f 
 
 In the year 1629 Balthazar de Moucheron loaded 
 a certain cargo at Archangel in the ship of Peter 
 
No. 72.] OPINIONS OF GEOTIUS. 537 
 
 Rutgers under the custody of Arnout Wouters, to be 
 carried to St. Lucas in Spain, where Wouters was 
 to realise the said cargo for account and benefit of 
 Jacques Budier, junior, but with this restriction, that 
 the cargo was pledged to Budier under the following 
 circumstances : — David Euts at Archangel had ad- 
 vanced Moucheron a sum of 2000 roubles; Moucheron 
 gave him a bill of exchange drawn on Budier ; Arnout 
 Wouters entered into the following agreement on the 
 bill of lading : — " I, Arnout Wouters, acknowledge to 
 have received the above-mentioned goods loaded in the 
 ship of Peter Rutgers from Balthazar de Moucheron for 
 Jacques Budier ; and since Moucheron has drawn on 
 Budier in connection with the goods for the sum of 
 2000 roubles at seven marks eight schellings per 
 rouble, advanced by David Ruts for account of Gabriel 
 Marcelis, I hereby promise and bind myself, in case 
 Budier should refuse acceptance or payment of the 
 bill, to pay the said 2000 roubles to Gabriel Marcelis 
 or his duly appointed agent when I have realised the 
 goods, God granting me a safe voyage. Thus done 
 without guile or deceit at Archangel, on the 4th day 
 of September 1629." 
 
 The said Arnout Wouters having arrived at Seville, 
 remitted 3500 ducats (as acknowledged by Budier) 
 to Hans de Koning at Antwerp to await the order of 
 Ferdinand Vuyst. At the same time Wouters wrote 
 to Vuyst informing him of the said remittance, and 
 instructing him not to let a single penny pass out of 
 his hands until he, Wouters, had been released from 
 all liability. Ferdinand Vuyst received the mandate 
 
538 OPINIONS OF GEOTIUS. [No. 
 
 and accepted it, as shown by his letters and acknow- 
 ledgment, but he took no steps to obtain possession 
 of the money. Hans de Koning neglected to hand 
 it over, and Vuyst did not advise Wouters of the 
 fact, nor did he exercise proper diligence to protect 
 the latter's interests, or to compel De Koning to 
 hand over the money on his order. Furthermore, 
 Vuyst, per letter of 15 th of February 1631, advised 
 Wouters that the afore-mentioned Marcelis had 
 no further claim against him, which in reality was 
 not the case. In consequence of this, Wouters 
 relying on the diligence of Vuyst and his subse- 
 quent advice, took no other steps to obtain his release, 
 and the aforesaid 3500 ducats were left with Hans 
 de Koning to do with as he liked, and Wouters lost 
 that amount, having had to pay the said Marcelis 
 under his original agreement the aforesaid 2000 
 roubles with interest. The question now is whether 
 the said Ferdinand Vuyst is liable to indemnify 
 Arnout Wouters under the afore-mentioned agree- 
 ment for damages and costs sustained or likely to be 
 sustained. 
 
 (1) I am of opinion that Ferdinand Vuyst is 
 bound to do this; since he received the letter of 
 Arnout Wouters and did not decline the request, 
 he must be held to have accepted the mandate in 
 terms of the letter, (a) and he is therefore bound 
 to execute the charge in every respect. Sicut enim 
 liberum est mandatum non suscipere, ita susceptum 
 consummari oportere, nisi renuntiatum sit. (b) 
 
 {a) D. 16, 6, 16. (6) D. 17, 1, 22, 11. 
 
72.] OPINIONS OF GROTIUS. 539 
 
 (2) He was, moreover, bound to exercise, in the 
 discharge of his mandate, such diligence as every 
 person uses in the transaction of his own business. 
 Aliena enim negotia exacto officio reguntur, nee 
 quicquam in eorum administratione neglectum ac 
 declinatum culpa vacuum est.(c) (3) Imo dolus 
 esse dicitur, si quis nolit persequi quod persequi 
 potest. (d) Cicero's speech in defence of Sextus 
 Roscius is in accordance with this doctrine where 
 he says, " Quid recipis mandatum, si aut neglecturus, 
 aut ad commodum tuum conversurus es 1 Cur mihi 
 te offers ac meis commodis officio simulato officis et 
 obstas ? Recede de medio, per alium transigam." 
 And since the said Vuyst did not accomplish what 
 he was legally bound to do, he must be held liable 
 to compensate Arnout Wouters for any damage 
 sustained by reason of his negligence or fault, qui 
 mandatum suscepit, si potest id explere, deferere 
 promissum officium nee debet, alioqui quanti man- 
 datoris intersit, damnabitur : si vero intelligit explere 
 se id officium non posse, id ipsum cum primum 
 poterit, debet mandatori nunciare ut is, si velit, 
 alterius opera utatur. Quod si cum posset, nunciare, 
 cessaverit, quanti mandatoris intersit, tenebitur.(e) 
 
 Hamburg, 
 
 21s« May 1633. 
 
 (c) C. 4, 35, 21. 
 
 (d) D. 17, 1, 44. 
 
 (e) D. 17, 1, 27, 2. 
 
OPINION No. 73. 
 
 HOLL. CONS. III. B. 27; and see IIL A. 38. 
 [GROTIUS III. 12, 8.] 
 
 Agent — Principal — Instructions — Responsibility — Dolus — Negli- 
 gentia — Reference to oath. 
 
 1. An agent must follow the instructions of his 
 principals, without departing therefrom in the least ; 
 failing which, he will have to hold them harmless. 
 
 Mandatarius non tantum ex dole, sed etiam ex 
 lata culpa tenetur. 
 
 Dissoluta negligentia prope dolum est. 
 
 Dolus est, si quis non exigent, quod exigere debet. 
 
 2. Non fatetur, qui errat. 
 
 Debitor non liberatur apocha, nisi pecunia vere fit 
 soluta. 
 
 Condici potest apocha, si vera causa non subsit. 
 
 3. According to law, a matter cannot be referred 
 to the oath of the party who has the legal pre- 
 sumption against him. 
 
 4. Ignorance which existed is presumed to con- 
 tinue. 
 
 5. Administrator non tenetur locupletem debi- 
 torem prsestare, sed debitorem esse. 
 
 640 
 
No. 73.] OPINIONS OF GROTIUS. 541 
 
 He must hand over the vouchers and other 
 documents. 
 
 He must advise his principal of the insolvency of 
 the debtors ; failing which, he will be personally 
 responsible for the debts of the said insolvents. 
 
 6. Eelief will not be refused, quoties sequitas 
 restitutionem suggerit. 
 
 In bonse-fidei contractibus etiam majoribus sub- 
 venitur, maxime si fraus ab adversario intervenerit. 
 
 7. No one is allowed to charge for what he has 
 done in the house of the deceased, if he is heir to 
 half the estate, and if the whole has not taken up 
 more of his time or involved more labour than he 
 would have had to bestow on his half. 
 
 Administrators, executors, and agents, their powers 
 of lending money belonging to the estate to third 
 parties. [Holl. Cons. 3 (a.) 38.] 
 
 Having seen a certain suit pending before the arbi- 
 trators Dirk Vlack and Elebert Spiegel, advocates, 
 together with Andries Byckarts and Frans van Loon, 
 merchants, between the heirs of Maria van Solt, 
 plaintiffs, and Hans van Solt, sen., defendant, and 
 also a short account of the circumstances of the case, 
 and four questions asked in connection therewith : 
 
 (1) Concerning the first, I am of opinion that 
 the plaintiffs have a good ground of action to claim 
 from the defendant the moneys belonging to Francina 
 van Solt, and advanced by the defendant to his son, 
 Hans van Solt, jun., and brought up in the account in 
 the names of Pieter van Peenen and the Francfoorder 
 
542 OPINIONS OF GEOTIUS. [No. 
 
 account as debtors. For Francina van Solt, whose 
 property was administered by the defendant, had not 
 only no knowledge that the defendant had advanced 
 the money to his own son, nor did she consent thereto, 
 as is set forth in the 29th and 30th articles of the 
 answer to the defendant's plea, but, on the contrary, 
 she believed that the amounts were in circulation 
 among diverse persons. Moreover, it appears from 
 all the circumstances of the case that the said 
 Francina van Solt was unwilling that the defendant 
 should advance the money to any of his sons ; for 
 when she got notice that the defendant had ad- 
 vanced some money belonging to her to some of his 
 sons under the names of Gio and Giulielmo, she re- 
 fused to ratify it, and informed the defendant that he 
 would be personally responsible, as appears from the 
 33rd article of the statement of the case. To this 
 must be added that a sum of £530 Flemish was lent 
 to the same Hans van Solt, jun., by the defendant, 
 and his name appears on the acknowledgment of 
 debt rendered to the said Francina van Solt. In like 
 manner the defendant should have placed the other 
 sums advanced to his son openly upon his name, if 
 the advance had been made in conformity with the 
 will and intention of Francina van Solt. On the 
 contrary, the use of fictitious names, where the sums 
 had been advanced not to strangers, but to the de- 
 fendant's own son, necessarily gives rise to a pre- 
 sumption that such has been done against her will, 
 more especially since a good administrator or agent 
 would not advance so large a sum to one merchant 
 
73.] OPINIONS OF GKOTIUS. 543 
 
 alone, even if he had large credit, but would rather 
 divide it amongst several, so as to reduce the risk. 
 
 It is a well-known legal principle that an ad- 
 ministrator must conform in every respect to the 
 wishes of his principal, and must do nothing con- 
 trary thereto, otherwise he must hold his principal 
 harmless and will be personally liable. Tenetur 
 enim mandatarius, non tantum ex dolo, qui inter 
 conjunctas personas facile prsesumitur sed etiam 
 ex lata culpa (D. 17, 1, 8, 1). Et in hac materia, 
 dissoluta negligentia prope dolum est (D. 17, 1, 29). 
 Imo, dolus est, si quis non exegerit, quod exigere 
 debet (D. 17, 1, 44). 
 
 (2) With regard to the second question, I am 
 of opinion that the receipt and suppositious ap- 
 proval of Francina van Solt, or of Maria van Solt, her 
 heiress, to half the estate cannot bar the plaintiffs. 
 On the contrary, the exceptional diligence dis- 
 played by the defendant to obtain the receipt renders 
 the whole transaction more suspicious ; for as regards 
 Francina van Solt, it amply appears from the 28th, 
 29th, and 30th articles of the statement of the case 
 that she was unaware, at the date of giving the 
 receipt, of the fact that the said moneys had been 
 advanced by the defendant to his son, and that she 
 never consented thereto. As regards Maria van 
 Solt, although the defendant contends that she had 
 notice at the date of her receipt, yet he has failed to 
 establish this as required by law, for the presumption 
 arising from the fictitious names employed is against 
 him. There is clear proof that she had no notice, 
 
544 OPINIONS OF GROTIUS. [No. 
 
 and this receipt cannot be admitted as proving the 
 contrary. It constitutes part of the plan of the 
 defendant's son to release himself and his father 
 from all liability. This scheme in the handwriting 
 of the son, prepared for the signature of Maria van 
 Solt, was handed in during the hearing of the case, 
 and was allowed by the defendant, as appears from 
 the 13 th article of the statement drawn up in his 
 behalf. It can be easily gathered from the full 
 statement that this project was devised a short time 
 before the death of the said Maria van Solt, and after 
 the date of the receipt ; all of which would not have 
 occurred had the said Maria van Solt known that 
 the sums in question had been advanced by the 
 defendant to his son. It is a well-established legal 
 principle, quod non fatetur qui errat (D. 42, 2, 2) ; 
 neque apocha liberatur debitor, nisi pecunia vere 
 soluta sit (D. 46, 4, 19). Imo condici potest apocha, 
 si vera causa non subsit (D. 12, 4, 4). And such 
 general receipt and consent is null and void unless 
 there be proof of special notice. This could occur if 
 the defendant had indemnified the said Francina for 
 the money advanced and brought up in the account 
 under the names of Gio and Giulielmo. 
 
 And the question whether Maria van Solt had 
 notice of these advances cannot be referred to the 
 oath of the defendant ; for according to law, a ques- 
 tion cannot be referred to the oath of the party who 
 has a presumptio juris against him, such as the 
 present defendant ; for, in the first place, he made use 
 of fictitious names without any reasonable explana- 
 
73.] OPINIONS OF GROTIUS. 545 
 
 tion being given ; and secondly, because ignorance 
 which is once proved to exist is presumed to con- 
 tinue, (a) 
 
 But further, granted that the defendant had not 
 concealed the truth, and had not used fictitious 
 names, and that the account had been receipted 
 without error, it would have been his duty to inform 
 the said Francina and Maria that such sums were 
 really payable by the Francfoorder merchants and 
 Pieter van Peenen — locupletem quidem debitorem 
 non deberet prsestare, sed debitorem esse (U. 18, 4, 
 4), and would have to give up all the acknowledg- 
 ments and other documents connected with these 
 debts (D. 17, 1, 43), and, moreover > would have to 
 advise his principal as to the insolvency of the said 
 Pieter van Peenen and the Francfoorder merchants, 
 in default whereof he would be liable for the sums 
 advanced. 
 
 (3) Regarding the third question, I think that 
 the plaintiffs do not require any relief, since the 
 general words of the receipt cannot be extended to 
 what the said Francina and Maria were ignorant of, 
 for the reasons above given. To the extent, however, 
 that any one thinks he requires relief in the case, it 
 cannot be refused him. Nam quoties sequitas restitu- 
 tionem suggerit, eo erit descendendum (D. 4, 6, 26) ; 
 et in contractibus, qui bonse fidei sunt, qualis est 
 contractus mandati, etiam majoribus officio judicis, 
 causa cognita, publico jure subvenitur (D. 4, 6) ; 
 
 (o) See Ross v. Page, 2 A. 52. Forbes, Still, & Co. v. Sutherland, 2 S. 231. 
 
 2 M <1 U 
 
546 OPINIONS OF GROTIUS. [No, 
 
 maxime si fraus ab adversario intervenerit, succurri 
 oportebit (D. 4, 1, 7, 1). 
 
 (4) Regarding the fourth question, I think that 
 the defendant cannot claim any remuneration for 
 what he did in the house of the deceased, whose 
 heir he was to the extent of one-half, presuming 
 that the whole of the estate did not cost him more 
 time or trouble than his half (argumento, D. 10, 2, 
 39). Si idcirco amplius erogatum esset. 
 
 Dated, 16th February 1632. 
 
 This opinion is approved of by several other lawyers, 
 viz., N. van Sorgen, Cornelis Bosch, W. de Groot and T. 
 Graswinckel. — [Ed.] 
 
 MANDATUM — AGENCY 
 
 is one of the contracts ex consensu. At first it was essential 
 that the mandatarius should give his services gratis,(&) and 
 this rule still obtained in the time of Grotius. If any 
 remuneration was stipulated for, the contract became one 
 locatio conductio of services. Schorer in his " Notes " (c) 
 says that in his time agents may claim remuneration at 
 the discretion of the court, and that even under an un- 
 certain promise, or without any promise at all, as long 
 as such persons are advocates, attorneys, &c, who are 
 accustomed to accept remuneration for their labour, and 
 this rule is extended by our customs even to agents in 
 extra-judicial matters. Van Leeuwen does not state de- 
 cisively that it must be gratis, but says, " without stipu- 
 
 (6) Digest, 17, 1. Code, 4, 35. Grotius, 3, 12. 
 (c) Ad Grot. 3, 12, 2. 
 
73.] OPINIONS OF GROTIUS. 547 
 
 lating for any remuneration ; " from which we might infer 
 that the courts would fix the remuneration. Et vide Voet, 
 17, 1, 2.(d) 
 
 Agency is either express or implied. Express, when 
 either verbal or written instructions are given by a mandant 
 authorising the mandatary to act for and to represent him, 
 aut generaliter aut cum specialibus potestatibus, and the 
 latter accepts the mandatum expresse. Implied, when the 
 circumstances of the case, ex rebus et factis, disclose the 
 assumption of agency, there being no express instructions 
 or acceptance — e.g., where a person administers the affairs 
 of another, without objection, and with the knowledge of 
 such other, or when, under certain circumstances, a request 
 has been directed to a person to undertake certain work on 
 behalf of another, and he sends no reply, (e) 
 
 As a rule, however, the assumption of agency is not 
 to be presumed, and the person alleging it must prove 
 it.(/) 
 
 Unauthorised management is a kind of implied agency. 
 The negotiorum gestor is, however, liable to a greater extent 
 than the ordinary mandatary, (g) Want of consideration 
 is no plea to a claim for damages against an unauthorised 
 agent.(A.) He will be liable for all his acts done in the 
 administration assumed by him, and should he incur any 
 unnecessary and unauthorised costs, he will be liable bonis 
 propriis.(i) 
 
 The mandatary may delegate the execution and dis- 
 charge of the business to another. If empowered to do 
 so, his liability ceases upon delegation ; and he will not 
 be liable for the acts of the substituted agent, if he acts 
 
 (d) See also Groenewegen ad Code, 4, 35, 17. Van Leeuwen, Censura 
 Forensis, i. 4, 24, 13. 
 
 (e) Martin v. Kive, 4 S. 225. Opinion of Grotius, No. 72 (Holl. Cons. 3 (b.) 
 180). Grotius, Inst. 3, 27, 3. "Voet, 17, 1, 2, 3. Van Leeuwen, Censura 
 Forensis, i. 4, 24, 2, and i. 4, 17, 17. Pothier cont. de Mand. 1, § 2 and 
 3, n. 22, 23, 28, 32, 33, 36. Burge on Col. and For. Laws. 
 
 (/) Voet, 17, 1, 3. Queen v. Eiohards, 2 G. 581. Faure v. Louw, 1 J. 3. 
 
 \g) Grotius, 3, 27, 3, and Schorer ad ib. 
 
 (h) The Colonial Secretary v. Davidson, Buc. 1876, p. 131. 
 
 (i) Prince q.q. Dieleman i>. Berrange alias Anderson, 1 Menz. 435. 
 
548 OPINIONS OF GEOTIUS. [No.. 
 
 under a power of attorney granting him the right of sub- 
 stitution ; (k) but if not, he alone, and not the delegated 
 agent, is liable to the mandant, and no right of action is 
 allowed the mandant against the delegated agent, or the 
 latter against the former. (I) 
 
 The agency ceases immediately upon the death of the 
 principal,(m) unless the mandatary is a procurator in rem 
 suam and the agency is coupled with an interest.(w) A 
 bond in favour of an agent or his administrators may be 
 sued upon by the administrator of the agent even after the- 
 death of the principal. (o) 
 
 A procurator in rem suam is entitled to sue.(^) A 
 procuration is either general or special ; it is general when 
 the mandatary is vested with authority to transact all the 
 affairs of his constituent ; it is special when the mandatary 
 is vested cum specialibus potestatibus for the purpose of 
 transacting some particular business. 
 
 The acts of the agent done ultra, vires of the procuration 
 cannot bind the constituent.^) In an action against such 
 constituent, ultra vires must be specially pleaded if the- 
 defendant wishes to rely on it.(r) 
 
 If a promissory note has been signed by A. " for B.," and' 
 B. has been summoned thereon and has been called upon to- 
 deny A.'s authority or signature, provisional sentence will 
 be granted upon failure of such proof by B.(s) 
 
 The powers of a general agent do not extend to the- 
 borrowing of money for his principal without special 
 authorisation. (f) He cannot sue in his own name as general 
 or special agent for his principal ; (u) nor can he be sum- 
 
 (k) Cammaok v. Murray, 2 A. 3. 
 (i) Voet, 17, 1, 5. 
 
 (m) Heartley v. Poupart, 1 Menz. 400. 
 
 (n) Story on Agency, § 477 et seq. Hunt v. Rousmaniere, 8 Wheaton, 174. 
 Fick v. Bierman, 2 J. 26. 
 (o) De Waal, Executrix of Bowles v. Mostert, I Menz. 534. 
 (p) Neethling v. Taylor, 1 Menz. 30. 
 
 (?) Poppe, Russouw, & Co. v. Kitching and Others, 6 J. 307. 
 (r) Smith & Co. v. Standard Bank of B. S. A., Buc. 1868, p. 253. 
 (s) Verwey v. Abo, 2 S. 190, and compare Levy & Co. •». Smith, 3 G. 231^ 
 (*) Stenhouse v. Cressy, 1 R. 35. 
 (u) Willmot v. Schalkwijk, Buc. 1879, 150. 
 
73.] OPINIONS OF GROTITJS. 549 
 
 moned for his absent principal, although he can accept 
 service of summons.(») 
 
 He cannot, however, be compelled to accept service 
 {Colonial Government v. Bobb, 5 G. 433). In strict practice 
 the power of attorney of the agent entitling him to accept 
 service ought to be exhibited to the court (Guardians of 
 Marcus v. Jacobsohn, 2 C. L. J. 168 (Natal), et per Lawrence 
 in JRobb's case, supra). 
 
 The agent must hold himself aloof from any advantage 
 to be derived from the agency except his commission. (a;) 
 Therefore " tutor rem pupilli emere non potest ; idemque 
 porrigendum est ad similia velut curatores, procuratores et 
 ■omnes alios quae aliorum negotia gerunt."(y) 
 
 The utmost good faith is required from an agent towards 
 his principal, and where an agent takes advantage of the 
 confidence reposed in him by incurring a liability in the name 
 and on behalf of his principal for the sole benefit of the 
 agent, the court will not, at the suit of such agent, hold 
 the principal liable. The agent, in order to succeed, must 
 prove an unqualified ratification by the principal, and it is 
 incumbent upon him to show that the ratification was 
 •effected after a full disclosure of all the facts which might, 
 if known to the principal, have operated to prevent such 
 ratification of the unauthorised act (Page N. 0. v. Ross, 
 2 A. 52. See also Grotius, Opinion No. 73, Holl. Cons. 3 
 (b.) 27, which bears out fully the finding of the court, 
 although not quoted in the report of the case). 
 
 The person dealing with an agent with a knowledge that 
 the transaction must be to the disadvantage of the principal 
 must bear the loss rather than the principal (Buchanan v. 
 Swemmer, 2 S. 102). 
 
 Transfer passed in the name of an agent will not vest 
 the dominium of the property in him for want of jusla 
 ■causa, and the principal will be entitled to re-transfer. (2) 
 
 (v) Dickinson v. Levy q.q. "Van der Cbys, 2 Menz. 199. 
 (x) Story's Equity Jurisprudence, § 315. 
 
 (y) Per Watermeyer, J., in Forbes, Still, & Co. v. Sutherland,. 2 S. 231, 
 and Buchanan v. Swemmer, 2 S. 102. 
 
 (z) Preston & Dixon v. Biden's Trustee, 1 A. 322. 
 
550 OPINIONS OF GROTIUS. [No. 
 
 If certain disabilities attacli to the principal, his agent 
 will be likewise restricted. Thus alienations void under 
 the insolvent law, if made by the insolvent, will be void if 
 made by his a gent, (a) 
 
 The principal is liable for all acts done by the agent 
 within the scope of his authority. (&) 
 
 If, however, a person who is an agent for another enters 
 into a contract on his own behalf with another, who knows 
 that he is such agent, and believes that the contract is 
 entered into on behalf of the principal, the principal is not 
 bound thereby, there being no privity of contract between 
 him and the other contracting party.(c) 
 
 During the continuation of the agency the principal is 
 bound by admissions made by the mandatary in connection 
 therewith, but admissions made by an agent after the ter- 
 mination of the agency cannot bind the principal. (d) 
 
 If several constituents have jointly given a mandate, the 
 mandatary can sue each one separately, but they can claim 
 the beneficium divisionis if all are solvent, thus resembling 
 fidejussors (e) 
 
 When the circumstances disclose that the relations between 
 mandant and mandatary depended on certain well-known 
 customs, such customs will be taken into consideration in 
 questions of liability. (/) 
 
 '■ Two excellent illustrations of the liability of principals for' 
 the acts done by their agents in contracting with third 
 parties, who ought to have made certain disclosures, but 
 who did not do so, owing to the investigations of the 
 agents, are afforded by the cases of Drysdale v. Union Fire 
 Insurance Co.(g) and Simon v. The Equitable Marine and 
 Fire Assurance Go.Qi) 
 
 (a) Brown v. Dyer & Dyer, 3 E. D. C. 267. 
 
 (6) Cornelissen v. Equitable Fire Insurance Co., 4 S. 35. 
 
 (c) Kowie Boating Co. v. East London Landing and Shipping Co., 4 J. 
 465. See also Consolidated Diamond Mining Co. v. Cape of Good Hope 
 Diamond Mining Co. Ltd., 1 G. 438. 
 
 {d) Wood v. Dersley, 2 E. D. C. 200. 
 
 (e) Voet, 17, 1, 10. Vide Chiappini v. George, 1 Menz. 303. 
 
 (/) Niebuhr and Another v. Joel, 5 G. 335. 
 
 (<?) 8 J. 63. (A) 2 Shiel, 338. 
 
73;] OPINIONS OF GROTIUS. 551 
 
 In the former, the proposal for a fire insurance policy 
 was prepared by the agent of the Company after a thorough 
 inspection of the premises, and was signed by the plaintiff 
 bona fide, without any intentional concealment, and in re- 
 liance upon the accuracy of the agent's investigations. The 
 proposal stated that the walls were of brick and iron, whereas 
 some were of wood, brick, and iron, and there were two 
 canvas partitions. Under these circumstances the usual 
 fire insurance policy was issued by the defendant company. 
 Held that, if there was a material misdescription, the Com- 
 pany's agent was responsible, and that the Company could 
 not, therefore, avail itself of the advantages of conditions in 
 the policy relating to material misdescriptions. 
 
 In the case of Simon v. The Equitable Marine and Fire 
 Assurance Company, the agent for the defendant Company 
 carefully inspected the premises and goods, and thereupon 
 drew up a proposal form for the insurance of the goods, 
 which was signed by the plaintiff without fraud or collusion, 
 and in the belief that accurate information was contained in 
 the document. The proposal stated that the premises were 
 detached, and that no hazardous goods were kept thereon, 
 whereas they were not detached, and some hazardous goods 
 were found on the premises. Held that the Company was 
 liable for the damages sustained through fire, and that its 
 agent was responsible for the material misdescription. 
 
 The agent is not personally liable where he unsuccessfully 
 institutes or defends an action on behalf of bis principal. (i) 
 
 An agent who was instructed to insure, but failed to do 
 so, will not be entitled to charge the premium against his 
 principal, although he may be liable in case of loss.(&) 
 
 The agent will be liable for a tortious conversion of his 
 principal's goods administered by him,(Z) and for negligence 
 in the performance of his mandate, (m) 
 
 A person who enters into a contract, as agent for another 
 from whom he had no authority, will be liable on the con- 
 
 (i) Brink q.q. Breda v. Voigt & Breda, 1 Menz. 537. 
 \k) Levy v. Calf and Others, W. p. 1. 
 (Z) Buchanan v. Swemmer, 2 S. 102. 
 (m) De Villiers v. De Villiers, 5 J. 369. 
 
552 OPINIONS OF GKOTIUS. [No. 73. 
 
 tract itself, and not by virtue of an implied warranty.(w) 
 The agent will therefore be personally liable for all acts 
 done ultra vires. 
 
 The goods left with an agent for sale do not belong 
 to him, or to his trustee upon insolvency. The principal 
 and owner can recover possession, and can claim the monies 
 paid and due as purchase-price for goods sold by the 
 agent.(o) 
 
 The insured is the agent of the insurer, and he must only 
 incur such reasonable expenses for the protection of the 
 property of his principal as are warranted by the circum- 
 stances of the case and the intrinsic value of the goods.(^) 
 
 If loss ensues through the negligence of the principal, he 
 cannot hold the agent liable.(g') 
 
 Briefly stated, the duties of the mandatarius are : — 
 
 (1.) To do what he has undertaken. 
 
 (2.) To execute the commission in terms of his instruc- 
 tions; he must not exceed his powers, must leave nothing 
 undone, and must do nothing wrong. 
 
 (3.) He must act with care and honesty, and in the best 
 interests of his principal. 
 
 (4.) He must give an account of his agency, and must 
 deliver up to his principal whatever he may have acquired 
 in the execution of his agency. 
 
 The duties of the mandator are : — 
 
 (1.) To remunerate the services of the agent. 
 
 (2.) To repay the agent all expenses incurred by him in 
 the execution of the mandate. 
 
 (3.) To see that the agent is indemnified against all 
 obligations incurred for the purposes of the agency. 
 
 (») Wright v. Williams, 8 J. 166. 
 (o) Chiappini & Co. v. Jaffray's Trustees, 2 Menz. 206. 
 (p) Grotius, Op. 82, p. 597, infra, and cf. Smith's Mercantile Law, p. 
 469 (10th ed.). 
 
 [q) Venter v. Green and Another, 1 R. 44. 
 
OPINION No. 74. 
 
 HOLL. CONS. III. B. 177. 
 [GROTIUS III. 14, 1 & 4.] 
 
 Sale — Doubtful contract of — When sale is presumed to 
 be a pledge. 
 
 1. When and under what circumstances a con- 
 tract of sale followed by delivery must be considered 
 as a pledge. 
 
 2. Id prsevalere debet quod agitur, ei, quod simu- 
 latur. 
 
 Having seen a certain memorandum of purchase 
 and sale of eleven-sixteenth parts of the ship The 
 Promised Land and of a twelfth part of the ship 
 St. John, entered into between Joost Willems 
 van Niekerk, vendor, and Sr. Jan van de Wou- 
 weren, acting for himself and for Sr. Jan Outgers, 
 vendees, on the 26th November 1629, also the 
 power of attorney given by the said Van Niekerk 
 to the notary Jan Warnaarts to pass transfer of the 
 above-mentioned parts of the ship, before the 
 Schepenen of the place where they may be, affidavits 
 of Anthony Mans, Dirk Wouters, Jeronimo Grion, 
 Hans W. Elbeuk, and Pieter A. Moerbeek, mer- 
 
554 OPINIONS OF GKOTIUS. [No. 
 
 chants, made before a notary on the 16th February 
 1630, a certificate made before the Court of Holland 
 by the afore-mentioned Moerbeek on the 16th August 
 1630, and lastly the interrogatories and the deposition 
 of the notary Jan Warnaarts dated 8th October 1630 : 
 
 (1) I am of opinion, after considering the points 
 raised, that although the affidavits and certificates of 
 the afore-mentioned persons, who are all said to be 
 creditors of Joost Willems van Niekerk afore-men- 
 tioned, might be considered as evidence in their own 
 favour, yet it is substantiated by the deposition of 
 the afore-mentioned notary, where he refers to the 
 12th and 14th articles of the interrogatories, in- 
 asmuch as he declares that the said Van Niekerk 
 had stated at the time the memo and power were 
 drawn up, that although the transaction was done by 
 way of sale and transfer, yet his intention was that 
 "whatever amount more or less was realised from 
 the ships would accrue to his profit or loss." From 
 the affidavit it also appears that the afore-mentioned 
 Jan van de Wouweren was informed of this, nor 
 does it appear that he, Van de Wouweren, objected 
 thereto. 
 
 All these considerations give rise to a certain 
 presumption that it was the intention of the con- 
 tracting parties not to transfer the ownership in the 
 said parts of the ship, but merely that they should 
 be pledged to Jan van de Wouweren as security for 
 debts due to him. This presumption will at least: 
 have the effect that the onus is thrown on Van de 
 Wouweren to purge himself by oath, and that in 
 
74.] OPINIONS OF GROTIUS. 555 
 
 default thereof the said contract cannot be other- 
 wise considered than as a pledge : (2) cum prse- 
 valere debat id quod agitur, ei quod simulatur.* 
 
 Amsterdam, 
 
 21st February 1632. 
 
 The court is not bound by the feigned transactions 
 between contracting parties. In order to arrive at a correct 
 conclusion as to the nature of a doubtful transaction, both 
 the circumstances which led up to the transaction and the 
 insertion of unusual stipulations in the written agreement 
 must be carefully examined, (a) The question in such cases 
 is not what the object of the contracting parties was, but 
 what was the real nature of the transaction. (6) Plus valet 
 quod agitur quam quod simulate concipitur.(c) Agreements 
 are to be construed by the intention of the parties indi- 
 cated in and by them, and not by what they choose for the 
 sake of convenience to call them (per Barry, J., Pres., 
 in Gholwick v. Penny).(d) The facts in this case were as 
 follows : — A., who was a creditor of B., wished to protect and 
 secure himself. He thereupon wrote to B. that as he (B.) 
 was in his (A.'s) debt for shop purchases, he (A.) had better 
 let a sale be made of B.'s furniture, so that B. might consider 
 the debt paid, adding : " I will hold the furniture one or 
 two years, as long as you pay me 2s. 6d. per month for the 
 same, and agree to send them up whenever I demand them. 
 If this will suit, I will hand them over at once." To this 
 B. replied : "lam quite willing to accede to your request, 
 and hereby sell you the goods in payment of my debt owing 
 to you ; and further, I am quite agreeable to pay you hire for 
 
 * See also Opinion No. 66 (Holl. Cons. 3 <b.) 176), with reference to the 
 sale of these ships. — [Ed.] 
 (a) Perezius ad Cod. iv. 22. 
 (6) Per De Villiers, C.J., in The Treasurer-General v. Lippert, 1 J. 302. 
 
 (c) Code, 4, 22. 
 
 (d) 5 E. D. C. 270. See also Civil Commissioner of Clanwilliam v. Low, 
 3 Menz. 523. 
 
556 OPINIONS OF GROTIUS. [No. 74. 
 
 use of furniture at rate of 2s. 6d. per month from date." 
 In his evidence B. admitted that there was another arrange- 
 ment ; that he was to have the right to buy these things 
 back at the same price, when he was in a position to do so. 
 A. claimed the furniture as having been sold to him, but 
 the court decided that the circumstances clearly indicated 
 that the transaction in nature was not a sale, but a pledge. 
 " We must look at the real substance of the transactions, 
 and not at the fictitious forms which the parties have adopted 
 for certain purposes."(«) So, too, although a document 
 purports to be a donation, the court may find that it is 
 really a testamentary writing.(/) The importance of the 
 distinction lies in the fact that all testamentary writings 
 must be properly attested. 
 
 (e) Guest v. Le Eoex's Trustees, per the Chief -Justice, 5 J. 121. 
 (/) Van Wijk v. Van Wijk's Executor, 5 J. 1. 
 
OPINION No. 75. 
 
 HOLL. CONS. VI. Part II. 56a. 
 [GROTIUS III. 14, 33 & 12.] 
 
 Sale of landed property — Extent. 
 
 The word " about " (plus minus — omtrent), used in 
 the sale of landed property in expressione quantitatis, 
 must be restricted to less than a morgen. 
 
 Thonis Pieters Woel of Bleiswijk transferred, on 
 the 16th of February 1607, to Jacob Willems Bis, a 
 certain house, erf, out-houses, plantation, &c, to- 
 gether with about fifteen morgen of adjoining land 
 situated in the ambacht of Bleiswijk, en masse, with- 
 out measure and without warranty ("met de voet 
 gestooten "), the land to be taken as it lies between 
 the boundaries; if greater in extent, the purchaser to- 
 be entitled thereto, and if less, he is to be satisfied 
 therewith. 
 
 The said buildings and lands, according to the 
 survey of Mr. Floris Balthasaris, sworn land-surveyor, 
 made on the 30th May last from the diagrams of the 
 property, were found to be no larger in extent than 
 13 morgen, 280 roods, 6 feet. There was, therefore,, 
 a deficiency of 1 morgen, 317 roods, 6 feet. 
 
 557 
 
558 OPINIONS OF GEOTIUS. [No. 
 
 Adriaan Gillis, cum sociis, contends that they have 
 obtained the right and transfer of the said property 
 from the heirs of the said Jacob Willems under 
 similar conditions, and that the said deficiency, as 
 compared with the estimate first given, must be 
 made good, with interest at 6£ per cent (sixteenth 
 penny), or that the purchase-price agreed upon must 
 be reduced. They request legal advice on this point, 
 since the said Jacob Willems or his heirs in a similar 
 case had to compensate the children of Willem Jans 
 in den bonteri Os, cum sociis. 
 
 With reference to the question asked, I am of 
 opinion that the heirs or successors of Jacob Willems 
 are entitled to claim reduction of the purchase-price 
 in proportion to the deficiency of the land adjoining 
 the buildings below fifteen morgen ; more especially 
 since the deed of purchase and sale first mentions 
 "about fifteen morgen," and afterwards the boundaries. 
 The fact that the word " about " is contained in the 
 deed proves nothing to the contrary ; for, according 
 to the custom of our country, it could not be ex- 
 tended to a full morgen, much less to more. Nor 
 is the case affected by the clause in the said deed 
 reading as follows : — " As in one lump, without 
 measure and without warranty {'met de voet ges- 
 tooten'), the land to be taken as it lies between the 
 boundaries ; if greater in extent, the purchaser to be 
 entitled thereto, and if less, to be satisfied therewith." 
 For although this clause implies that if there were 
 found to be an excess, this would also be included 
 in the sale, which would not have been the case 
 
75.] OPINIONS OF: GROTIUS. 559 
 
 si venditio simpliciter esset facta ad mensuram,(a) 
 and, on the contrary, if there had been a deficiency,(6) 
 the purchaser could not claim transfer of the full 
 extent, which he could have done in the case just 
 put ; but it does not follow from this that the seller 
 could not claim a higher price for the excess, or the 
 purchaser a reduction for the deficiency.(c) 
 'S Gravenhage. 
 
 SALE OF LANDED PEOPEETY BY EXTENT. 
 
 The sale of landed property by measurement is a species 
 of warranty to which reference is made in the two succeed- 
 ing Opinions. 
 
 If there is a material and substantial difference between 
 the extent of land stated in the conditions of sale and the 
 actual area, the court will set aside the sale on the ground 
 of fraud, when such is proved. If fraud is wanting, the 
 transaction cannot be cancelled. Thus, where land was 
 purchased upon certain conditions of sale, which stated that 
 the land was " in extent about 6000 morgen according to 
 diagram," and that " the land was sold as now situated, as 
 the vendor does not wish to take advantage of any greater 
 extent nor to make good any deficiency in extent," and the 
 purchaser repudiated the sale on the ground that the land 
 tendered to him was only 5700 morgen in extent, the 
 court held that the seller was entitled to provisional judg- 
 ment.^) "No order that the court may now make," says 
 
 (a) Bart, in tot. si Titius. 
 (6) D. 18, 1. 
 
 (c) Seound. dootrinam. Baldi. C. 4, 38. Pinell ad C. 4, 44, 2. Ratio quia 
 doctrina ut sequitati conveniens in judiciis servatur facit, D. 18, 1, 40, 2. 
 Argumento a relatis : Julianus, § si Titius, D. 19, 1, et in simili etiamsi pro- 
 missum sit ne quid quaestionis nomine prsestitur, praetium tamen ibi evictee 
 venditor debet, D. 19, 1, 1, 1. Papon, tit. de Garendis arrest. 3. 
 
 (d) Van der Merwe v. Burgers, 4 J. 129. 
 
560 OPINIONS OF GROTIUS. [No. 
 
 De Villiers, C.J., " will be final, for it is still competent for 
 the defendant to set up the case that he had been deceived. 
 The conditions of sale are clear upon this point, that no 
 fixed extent of land was sold ; and the ninth condition 
 seems to me to have been intended for the express purpose 
 of preventing any such question as the present arising. No 
 doubt a case may arise where the discrepancy in the extent 
 of land sold is so great as to lead to an inference of fraud ; 
 but that is not the case here." 
 
 The " question as at present arising " was the cancella- 
 tion of the sale. The similarity between this case and the 
 " conditions of sale " referred to by Grotius in Opinion No. 
 75 is remarkable. On the authority of Grotius the above 
 judgment is sound in law, to the effect that cancellation of 
 sale cannot be decreed under those circumstances. (The 
 Opinion itself was not quoted in the judgment.) The 
 report of the judgment does not state definitely whether, 
 in face of the conditions, the purchaser would have been 
 entitled to compensation for the difference. A judgment 
 to the effect that the conditions above-mentioned dispensed 
 with compensation would, I submit, have been contrary to 
 the common law as laid down by Grotius and practised in 
 Holland (Van der Keessel, Thes. 638).(e) 
 
 Land is sometimes sold, and the situation, boundaries, and 
 beacons accurately described at the date of sale. If it is 
 subsequently found that there is a variance between the 
 description and the diagram and title-deed, the sale will 
 be governed by the description, and not by the diagram. (/) 
 The effect of diagrams attached to title-deeds have been 
 discussed supra, when treating of Servitudes, pp. 448, 
 449. 
 
 Treating of this, Van Leeuwen says that land is generally 
 sold voetstoots, " when the precise measure is uncertain, in 
 these words, in a lump, without measure, as it is without 
 being liable for under or over measure, or the like." In such 
 
 (e) See also Fry v. Reynold, 2 Menz. 161. 
 
 (/) Visser v. Du Toit, 1 R 415, and 5 J. 94. Barrington and Others v. 
 The Colonial Government, 4 J. 408. 
 
75.] OPINIONS OF GROTIUS. 561 
 
 case no compensation is allowed. If, however, the vendor 
 had referred to the measure using the words " in extent 
 about," or words of similar import, compensation must be 
 made, according to customary law, for under or over measure, 
 or if the vendor knowingly over-stated the extent.(#) 
 
 (g) Van Leauwen, E. H. E. 4, 18, 7 and 8. 
 
 2 N 
 
OPINION No. 76. 
 
 HOLL. CONS. III. B. 145. 
 [GROTIUS III. 15, 4, & III. 14, 12.] 
 
 Purchase and sale — Warranty by seller — Conditions of sale — 
 Sale Voetstoots — Warranty of title. 
 
 1. A burden created over property, subject to a 
 condition that it may be used in an honourable and 
 proper manner, is of no avail. 
 
 2. When the seller does not give a surety bond or 
 some other form of guarantee, the purchaser is not 
 bound to pay the seller the purchase-price. 
 
 3. Contracts of sale wherein it is stipulated that 
 the seller pushes it with his foot {met den voet stoot) 
 are held to apply only to the burdens and charges, 
 and not to the ownership of the property. 
 
 Having seen certain conditions of sale entered 
 into between Jan Daniels Kuig, seller, and Gert 
 Cornells Knol, purchaser, dated the 30th December 
 1615, together with a certain testament of the year 
 1562 made by Willem Pieters Jacobs and Alijdt 
 Jacobs, whence it appears that the lands sold under 
 the above-mentioned conditions belonged to the 
 estate of the said testator ; and having been asked 
 
ISTo. 76.] OPINIONS OF GROTIUS. 563 
 
 whether the purchaser can demand security from the 
 seller on account of the burden to which the said 
 lands are subject under the will, delivery of the lands 
 not having been effected as yet : 
 
 (l) I am of opinion that the said Gert Cornelis 
 Knol is entitled to compel the seller to give him 
 security, unless the seller exhibits to him a deed 
 from the Orphan-Masters of Gouda and all the 
 blood-relations of the seller, stating that the grand- 
 children of the testator are qualified to use the 
 property left to them in an honourable and proper 
 manner ; and that therefore the aforesaid burden 
 {arising from this condition) is void. (2) And should 
 such agreement, or security in lieu thereof, not be 
 forthcoming, the purchaser is not bound to pay the 
 seller the purchase-price. (a) 
 
 (3) And the stipulation in the conditions that the 
 purchaser pushes the land with his foot (het landt 
 stoot met den voet) does not conflict with this con- 
 tention, since these words have reference merely to 
 the burdens and charges on the property, and not to 
 the ownership of the property, whereof the word 
 " thereto " appearing in the conditions is ample 
 proof, for it relates to the charges and burdens 
 alone. 
 
 (a) Code, 8, 45, 24. Digest, 18, 6, 9. 
 
OPINION No. 77. 
 
 HOLL. CONS. III. B. 150. 
 [GROTIUS III. 15, 4, 7.] 
 
 Sale — Delivery within certain time — Presumption as to good 
 quality — Evidence. 
 
 1. When it is stipulated in a contract of sale that 
 delivery of the wares must be made within a certain 
 time, say three or four days, it can be done before 
 the end of the fourth day. 
 
 2. The good quality of merchandise is always pre- 
 sumed, even without evidence, and more credence 
 is attached to the evidence of those who testify to 
 such quality. This is especially the case when the 
 said witnesses outnumber those to the contrary, and 
 give better reasons for their contention. 
 
 A contract has been submitted to me, made 
 between Jacques Hollard, as agent for Clement 
 Wouters and Matthseus van der Welle. I have 
 also seen a certain protest made by the said Jacques 
 Hollard against the said Matthseus van der Welle 
 on the 14th January 1616, and the reply of Van der 
 Welle thereto, also a declaration of Mels Hendricks, 
 Pieter Klaas Noordthoeck, the said Jacques Hollard, 
 
 664 
 
No. 77.] OPINIONS OF GROTIUS. 565 
 
 Gijsbrecht Bourmans, Hendrik<Serwouters, Jan Lucas, 
 Jacob Jacobs, Cornelis A. van der Spis — Schout of 
 Maasdam — Leonard Jacobsz — Stadhouder of Pieters- 
 hoek — Jasper Adrians, Tonis Laurentsz Kloot, and 
 Dirk Lambrechts, all supporting the contention of 
 Clement Wouters. Further, I have seen the de- 
 clarations of Isaac van Driel, Jacques de Hertoge, 
 and Laurens Adrians supporting the said Van der 
 Welle. 
 
 (1) I am of opinion that delivery of the beans 
 was tendered in good time, since from the aforesaid 
 first declaration it clearly appears that delivery was 
 tendered on the 1st January, the time fixed in the 
 contract ; especially since the contract stipulates that 
 delivery should be made, three or four days' grace being 
 allowed, and the said Van der Welle was requested, 
 by protest on the 4th January, to receive the said 
 beans. As regards the quality of the beans, pre- 
 suming that the beans to which the afore-mentioned 
 Hendrik Serwouters and the other declarants refer 
 are the beans in question, and that if necessary it 
 could be proved that these beans had been loaded 
 on board ship at Pietershoek and 'S Gravendeel, 
 and had arrived at Middelburg, it must be held that 
 they were of good quality, as stipulated in the 
 contract, notwithstanding the aforesaid declarations 
 of Isaac van Driel and his co-declarants ; (2) for 
 according to law, it is well known that good quality 
 is always presumed, even without proof, and there- 
 fore more weight is attached to the evidence of 
 those deposing to such good quality. 
 
566 OPINIONS OF GEOTIUS. [No. 
 
 In the present case, therefore, a fortiori it must 
 be held that the beans were of good quality, since 
 the declarants to this fact outweigh the others, both 
 in number and in the reasons on which they base 
 their knowledge. It follows, therefore, that the said 
 Van der Welle must be ordered to receive the said 
 beans, and to pay the stipulated purchase-price with 
 interest a tempore mores. 
 
 Delivery of the purchased wares must be made at the 
 t ime stipulated, or, if no particular time is mentioned, then 
 within reasonable time. 
 
 What is meant by " reasonable time " must be gathered 
 from all the circumstances of the case, such as the nature of 
 the transaction, the intention of the parties, the nature of 
 the article sold, the prevailing customs regarding it, the 
 distance, &c. See Goldschmidt v. Adler, 3 J. 117 ; Stewart 
 v. Sichel and Others, 4 J. 435 ; Lippert v. Adler, 5 J. 389 ; 
 Barnato Brothers v. Munro, 5 G. 161 ; Stewart v. Ryall, 
 5 J. 146. 
 
 WARRANTY. 
 
 (OPINIONS Nos. 75, 76, 77). 
 
 The English law doctrine of caveat emptor, to the effect 
 that there is no implied warranty of quality by the vendor, 
 and that he is not liable for any defect unless he expressly 
 warrants the article sold, or unless he knew of any defects 
 and yet represented it to be sound, or uses any artifice to 
 conceal the defect, is not applicable in toto to Roman- 
 Dutch law. 
 
 According to Dutch jurisprudence, there is an implied 
 warranty of title (as in English law), and, moreover, an 
 implied warranty of quality and quantity. Of course, if the 
 
77.] OPINIONS OF GROTIUS. 567 
 
 vendor specially warrants the article sold, he will in addition 
 be liable if he has misrepresented the quality thereof, and 
 the sale is voidable on the ground of fraud, likewise where 
 he has purposely concealed defects. 
 
 As a general rule, it may be laid down that no relief 
 will be afforded a vendee on account of patent defects in the 
 article purchased, and of which he had knowledge, or the 
 means of obtaining knowledge ; but if the article suffered 
 from any latent defect unknown to the purchaser, he will 
 be entitled to the actio redhihitoria, to return the property 
 and claim restitution of the purchase-price if the defect 
 rendered the article unfit for the intended use, or to the actio 
 cestimatoria or quanti minoris for reduction of the price 
 ad id quod interest if the defect was not of so serious a 
 nature. 
 
 By the implied warranty of title the vendee was guaran- 
 teed lawful possession and warranted against eviction. If 
 evicted, the justa causa for the contract of sale failed, and 
 the transaction could be repudiated and cancelled. If the 
 cause of eviction arose subsequent to the date of sale, and 
 was not attributable to the act of the vendor, the obligation 
 of warrandice is not incurred, (a) 
 
 The vendor is bound to fulfil all engagements entered 
 into by him with the vendee at the date of the sale, and he 
 is liable for all representations made by him.(&) 
 
 If the quality is fraudulently misrepresented, the sale can 
 be rescinded.(c) 
 
 (a) The following authorities may be consulted : — 
 Digest, 19, 1, 21, 1. 
 
 Grotius, Introduction, 3, 14, 6, 12, 33 ; 3, 15, 4, 5, 6, 7, 8, 9 ; 3, 17, 4. 
 Opinions No. 75, 76, 77 (Holl. Cons.). 
 Van Leeuwen, Cens. For., 1, 4, 10, 10 ; 1, 4, 19, 15 ; and R. H. R. 4, 18. 
 Voet, 19, 1, 21, 1. 
 
 Christinseus, 3, decis. 97, and ad 1. Mechlin. 3, 38, 19. 
 Van der Keessel, Thes. 638, 641, 642. 
 Schorer ad Grot, supra. 
 Van der Linden, 1, 15, 9, and 10 ; 3, 3, 6. 
 Pothier, Cont. de Vente. 
 Burge on Colonial and Foreign Laws, " Purchase and Sale." 
 
 (b) Attorney-General q.q. Colonial Government v. Hart, 3 Menz. 558. 
 
 (c) Vlotman v. Landsberg, 7 J. 301. 
 
568 OPINIONS OF GROTTOS. [No. 
 
 In the case of sales under written conditions, the court 
 will require absolute and convincing proof of wilful mis- 
 representation and fraud, and in default thereof the sale 
 will be considered to have been effected under the written 
 conditions.^) 
 
 Vendors will of course be liable for the representations 
 contained in their advertisements,(e) and if these advertise- 
 ments are misleading, and no other conditions of sale existed, 
 the vendee will be entitled to relief. Not so, however, 
 where the conditions of sale make no mention of the re- 
 presentations contained in the advertisements, and there is 
 no clear proof that the vendee has been misled by the 
 advertisement. ( /) 
 
 Sale by sample is an implied warranty of quality that 
 the bulk shall not be inferior to the sample. If, therefore, 
 the vendor fails to supply the bulk as per sample, the vendee 
 is entitled to an action ex empto, or to redhibition and 
 damages. (#) 
 
 Where, however, the vendees had ordered articles by a 
 certain maker of the same, quality as sample, and such maker 
 did not exist, it was held that the vendors could supply 
 articles by another maker of the same quality as ordered, and 
 that the order had been substantially carried out. (A) It 
 must be noted that in this case the quality, and not the 
 make, was specially referred to. Had it been the intention 
 of the vendees to procure articles made specially by a 
 particular tradesman, no substitution would, no doubt, have 
 been allowed. 
 
 Before proceeding further, it must here be noted that the 
 remedies afforded to the vendee vary according as delivery 
 has been effected or not. 
 
 (d) Durr v. Bam, 8 J. 22. Stellenbosoh Municipality v. Lindenburg, 
 3 S. 345. 
 
 (e) Sande, Decis. Fris. 3, 4, 6. 
 
 (/) Stellenbosoh Municipality v. Lindenburg, supra. 
 
 (g) Greenshields v. Chisholm, 3 J. 220. Murray v. De Villiers, 1 Menz. 
 366. Bouwer v. Ferguson, 4 E. D. C. 90. Waters & Herron v. Phillips & 
 King, 2 Menz. 107. 
 
 (h) Hamilton, Ross, & Co. v. Bam & Co., 2 Menz. 162. 
 
77.] OPINIONS OF GROTIUS. 569 
 
 In case delivery has not been effected, the vendee is 
 entitled to damages actione ex empto. When delivery has 
 taken place, the purchaser is no longer entitled to the 
 damages he may have suffered ; but, actions redhibitoria, he 
 may return the articles, or, actione quanti minoris, he may 
 claim a reduction of the purchase-price.(i) 
 
 The vendee seems, therefore, to be in a better position 
 before delivery than after. 
 
 As before stated, the vendor is liable for all latent defects 
 and for all representations made by him. (ft) The vendor 
 will be liable only for defects existing at the date of sale ; 
 and if the vendee through his own actions renders it im- 
 possible to ascertain whether any damage was caused 
 through defects existing at that date, he is estopped from 
 claiming a reduction of the purchase-price. (Z) 
 
 In cases of sale there is an implied warranty that the 
 purchased article is of good quality.(m) 
 
 The vendor must deliver to the vendee an article of the 
 same quality as that agreed upon ; (n) and it is for the 
 court to construe the real intention of the parties, (o) 
 
 In order to avoid the liabilities of an implied warrandice, 
 the vendor sometimes sells the article "as it stands" or 
 "without warranty." In Boman-Dutch jurisprudence the 
 method of sale was called "pushing with the foot" 
 (voetstoots). In early times a sale voetstoots was almost 
 entirely confined to immovable property put up by the 
 lump without accurate measurement.^) The practice has, 
 however, gradually extended to movables, and at the present 
 time a sale of real property voetstoots is of rare occurrence, 
 
 (i) Irvine & Co. v. Berg, Buc. 1879, p. 183. Mostert v. Noach, 3 J. 174. 
 
 (h) Heatlie v. The Colonial Government, 5 J. 353. Commissioners of 
 Municipality of Cape Town v. Truter, 1 R. 412. 
 
 (I) Brown v. Van Niekerk, 2 S. 302. Meintjes & Dixon v. Deare & Dietz, 
 2 S. 294. 
 
 (m) Fergusson v. Wood Bros., 4 J. 111. Cf. Murtha v. "Von Beek. 
 
 (n) Mitchell v. Howard, Farrer, & Co., 4 J. 475. 
 
 (o) Cohen v. Wessels, 4 J. 123. Murray v. De Villiers, 1 M. 366. Hamilton, 
 Boss, & Co. v. Bam & Co., 2 Menz. 152. 
 
 (p) Van Leenwen, R. H. R. iv. 18, 7. 
 
570 OPINIONS OF GEOTIUS. [No. 
 
 especially in surveyed parts, whereas sales of movable pro- 
 perty, especially by auctioneers, frequently take place under 
 those conditions. 
 
 Sales of this kind are not without some causa of con- 
 sideration, for, as a rule, the stipulation that there is no 
 implied warranty has the effect of reducing the purchase- 
 price. 
 
 If the vendor knew of any serious defects, he could not 
 protect himself by selling the article voetstoots without 
 pointing out the defects.(g') If he uses any artifice to 
 conceal the defects, a sale without warranty is of no avail, 
 and the vendee can claim a cancellation on the ground of 
 fraud, (r) 
 
 If the vendor is ignorant of any defect, the rescission of 
 a sale without warranty cannot be allowed owing to defects 
 subsequently discovered.(s) 
 
 The vendor is liable for all representations made at the 
 time of the sale, provided such representations are intended 
 to constitute part of the conditions of sale, and are, more- 
 over, intended to induce the purchaser to buy. This is 
 specially the case if the misrepresentation is fraudulent. 
 Thus where the vender sold a cow " as it is," and falsely re- 
 presented that the cow gave fourteen bottles of milk a day, 
 whereupon the purchaser, induced by this representation, 
 bought the cow, which only gave two bottles of milk a 
 day : Held that the purchaser was entitled to a rescission of 
 the sale, and to claim for the keep of the cow during the 
 time it was in his possession, (t) 
 
 If the representation was not made as a warranty, or to 
 vary the conditions of sale, but merely to express the 
 vendor's opinion or belief, the vendee is not entitled to 
 relief if such representation turns out to be erroneous.(it) 
 
 (?) Voet, 21, 1, 10, per Shippard, J., in O'Brien v. Palmer, 2 E. D. C. 349. 
 
 ()■) Per Barry, J., Pres., ibid. 
 
 (s) De Wet v. Manual, 1 Menz. 501. O'Brien v. , Palmer, 2 E. D. C. 344. 
 Von Ludwig v. Van Reenen, Buc. 1868, 244. Geard & Son v. Bntler & 
 Reddle, 5 E. D. C. 109. 
 
 (t) Vlotman v. Landsberg, 7 J. 301. 
 
 fit) Durr v. Bam, 8 J. 22. 
 
77.] OPINIONS OF GEOTIUS. 571 
 
 A sale without warranty " as it stands " only refers to the 
 quality or quantity of the article sold, depending upon the 
 circumstances of the sale, but it cannot be extended to refer 
 to the title, (v) 
 
 («) Ward v. Bank of Africa, 4 G. 216. Grotius, Opinion No. 76 (Holl. 
 Cons. 3(b.) 145). 
 
OPINION No. 78. 
 
 HOLL. CONS. III. B. 301. 
 „ r> [GKOTIUS III.?16.] 
 
 Jus retractus—A local custom — Feudal property — Alienation — 
 
 Allodial. 
 
 1. The jus retractus (nakoop) is a right arising 
 from the particular customs of each separate locality, 
 and not from the common law or general customs 
 of Holland. These particular customs must be ap- 
 plied strictissimi juris, especially in the case of 
 taxes. 
 
 2. Feudal property is not subject to retraction. 
 
 3. Feudal property is considered ad instar allo- 
 dialium ; not generally, however, but only in certain 
 cases. 
 
 4. Before the ordinance of the "fortieth penny" was 
 passed, all alienations of feuds were not brought to 
 the notice of the court within whose jurisdiction 
 they were situated, but only before the feudal- 
 chambers. 
 
 5. Feuds, at the present time, are not sold 
 directly, since such is prohibited by law, but the 
 utile dominium is given to the feudal lord, who 
 again grants it to another. 
 
 572 
 
No. 78.] OPINIONS OF GROTIUS, 573 
 
 6. There is no alienation directi dominii of feuds. 
 
 7. The practice with regard to feuds cannot be 
 inferred from the practice respecting allodial property. 
 
 I have seen a certain letter of Deryl, dated the 21st 
 of May 1612, whereby his Excellency, as feudal lord, 
 granted to Jan Huygens a piece of land situated in 
 Krimpen on the Ijssel, which was surrendered to his 
 Excellency by Huybrecht Adriaanse in favour of the 
 said Jan Huygens, and have been asked whether 
 the Ambachts-Heer, at the time of such surrender, 
 had any right of retraction in respect to the afore- 
 mentioned land, assuming that in the said Ambacht 
 such retraction had never been practised in respect 
 of feuds, but only in respect of allodial property. 
 
 (l) I am of opinion that, since the jus retractus 
 is a right which originated not under the common 
 law or general customs of Holland, but from parti- 
 cular customs of divers localities, which particular cus- 
 toms are strictissimi juris, especially as regards taxes, 
 
 (2) feuds cannot be considered subject to retraction. 
 
 (3) Against this it might be contended that with us 
 feuds are considered ad instar allodialium ; yet this 
 cannot be accepted in general, but only in certain 
 cases. (4) A sure proof of this is the fact that, 
 before the ordinance of the " fortieth penny," aliena- 
 tions of feuds were not brought to the notice of 
 the courts within whose jurisdiction they were situ- 
 ated, but only before the feudal-chambers ; (5) and 
 further, feuds even at present are not sold directly, 
 for such is prohibited by law, but the utile dominium 
 
£74 OPINIONS OF GEOTIUS. [No. 78. 
 
 is handed over to the feudal lord, who again grants 
 it to another feudatory. (6) To this must be added, 
 that in the present case at all events there is no 
 alienation directi dominii, as in the case of allodial 
 property. (7) From this and other reasons it follows 
 that in this country the practice as to feuds cannot 
 be inferred from the practice regulating allodial 
 property. 
 
 EOTTERDAM, 
 
 9th September 1613. 
 
OPINION No. 79. 
 
 HOLL. CONS. III. B. 148. 
 [GROTIUS III. 16, 3.] 
 
 Metractus—A local custom — Conflicts with free commerce — 
 Strict interpretation. 
 
 1. The right of "Naasting" (jits retractus) conflicts 
 with free commerce and is contrary to the common 
 law. He who bases his claims on this right must 
 prove the custom of "Naasting." 
 
 2. The right of " Naasting " was not introduced 
 by general custom into any part of Holland and 
 West Friesland. 
 
 3. If, by customary law, this right is allowed 
 during the currency of three notices or offers, it will 
 not be admitted after the lapse of that period, unless 
 the contrary were customary from time immemorial 
 and established by judgments of the court. Vide No. 5. 
 
 4. Argumentum a contrario sensu facile admit- 
 titur ad hunc effectum, ut ad jus commune redeatur. 
 
 6. A custom granting the jus retractus in case of 
 a sale to " brother or sister, or their children, or a 
 nearer relation," cannot be extended to children of 
 the seller, but excludes them altogether, unless it 
 were clearly proved that the contrary is the custom 
 et quare. 
 
 575 
 
576 OPINIONS OF GKOTIUS. [No. 
 
 Having seen a keur or custom of the district of 
 Putten, reading as follows : " He who wishes to sell 
 his immovable property, must offer it for three days 
 for sale before the Schouten and Schepenen of the 
 ' ban ' where the property is situated ; and should 
 within that time a brother or sister, or their children, 
 or a nearer relation appear, such relation can purchase 
 the property by virtue of his right of ' Naasting,' 
 and our Schout shall be paid three groats, and the 
 Schepenen four groats ; " and having been asked 
 whether, in the case of certain land lying in the 
 "ban" of Spyckenisse, in the district of Putten, 
 which had been sold, and in connection with which 
 the three usual publications had taken place, the 
 son of the seller after that time is entitled to 
 "Naasting." 
 
 (1)1 am of opinion that since the right of " Naast- 
 ing " (jus retractus) conflicts with free commerce and 
 the common law (vide Code, 4, 38, 14), he who bases 
 his claims on this right must prove the custom of 
 " Naasting." (2) And, moreover, it is well known 
 that the right of "Naasting" has not been intro- 
 duced into any part of Holland or West Friesland 
 by general custom. (3) It also appears from this 
 custom, which allows the right of "Naasting" 
 within the period of three public offers, that tacite 
 et a contrario sensu this right will not be admitted 
 after that time, (4) quod genus argumentandi a con- 
 trario sensu facillime admittitur ad hunc effectum, 
 ut ad jus commune redeatur (ut notat Praases loco a 
 contrario sensu, num. 33). 
 
79.] OPINIONS OF GROTIUS. 577 
 
 (5) For these reasons, therefore, the right of 
 "Naasting" should not be conceded to any one in 
 Putten after the above-mentioned public offers, un- 
 less it is specially proved that such a custom has 
 obtained there from time immemorial and has been 
 established by decisions of the courts. 
 
 (6) Jurists differ concerning the question whether 
 in the case of " Naasting " the son should be ad- 
 mitted to exercise that right with reference to certain 
 ground sold by his father (apud Henric. Boluc. in C. 
 2, 22). The custom above referred to does not 
 allude to " children " at all. These would otherwise 
 be mentioned first. The reference to brothers and 
 sisters in the commencement, therefore, seems to 
 indicate that the authors of this custom were of 
 opinion that the children should be excluded from 
 the right of "Naasting," unless a contrary custom 
 could be clearly proved. Nor can the words " or a 
 nearer relation " appearing in the said custom be 
 properly applied to children of the seller, for the 
 meaning appears to have been that brothers and 
 sisters and their children should have this right. If 
 the meaning had been otherwise, the nearer grades 
 would have been mentioned first. The intention 
 was that after the children of brothers and sisters 
 others should be admitted to exercise this right 
 " who are nearer than the purchaser," which terms are 
 generally used by all customs treating of " Naasting." 
 
 Since this is a question depending on customary 
 
 law, reference must be had to prior usage, as I have 
 
 stated before. 
 
 2 o 
 
578 OPINIONS OF GKOTIUS. [No. 79. 
 
 The jus retractus is either legal or conventional. 
 
 Eetraction or " Naasting," as granted by law, is a purely- 
 local custom, and did not constitute part of the ordinary 
 jurisprudence of the Netherlands. It was, therefore, not 
 incorporated in South African law at the time the Dutch 
 immigrants settled at the Cape, (a) 
 
 Conventional retraction arising from stipulations between 
 vendor and vendee is allowed. In such case the conditions 
 must be strictly complied with. 
 
 Vide Grotius, Introd. 3, 16 ; Opinions in Holl. Cons. 3 (b.) 301, 
 and 3 (b.) 148 (Nos. 78 and 79 in this work). 
 
 Van Leeuwen, Censura Forensis, 1, 4, 20, and R H. R. 4, 19. 
 
 Schorer ad Grot. 3, 16. 
 
 Voet, 18, 3. 
 
 Van der Keessel, Thes. 643-664. 
 
 Another kind of retraction — that in the case of a cession 
 of debts — must be noticed here. By the lex Anastasiana a 
 debtor, when sued upon a ceded debt, was not obliged to 
 pay the cessionary more than was paid for the cession of 
 the debt. He could, for this purpose, demand from the 
 cessionary that he disclose the full amount actually paid by 
 him. A similar rule obtained in the Eoman-Dutch law, 
 and was treated as a kind of right of retraction.(S) This 
 rule of law has, however, been abrogated by disuse, and is 
 no longer in force in South Africa.(c) 
 
 (a) "The first settlers," says De Villiers, C.J., in the recent case of 
 Seaville v. Colley (9 Juta, 42), " carried with them only those laws which 
 were applicable to the circumstances of this country. The law of retrac- 
 tion, as applied to movable property, was not general throughout Holland, 
 and I take it for granted that it was never introduced in this Colony.'' 
 
 (6) Voet, 18, 4, 18. Groenewegen ad C. 4, 35, 23. 
 
 (c) Seaville v. Colley, supra, which overruled the decision in Deschamps 
 v. Van Onselin, 6 E. D. C. 22. See also Keet •«. Benjamin, S. A. E. 1891. 
 Sivewright v. Green, S. A. R. 1892. 
 
OPINION No. 80. 
 
 HOLL. CONS. III. B. 143. 
 [GKOTITJS 3, 21.] 
 
 Partnership — Liability of partners — Presumption as to who is a 
 partner — Beneficial management presumes mandate. 
 
 1. A partner buys partnership goods for himself 
 and his copartner, and a third party stands surety 
 for them. Both are liable in solidum, and the surety 
 can demand indemnification from either. 
 
 2. Si socius, qui non gessit, alterius gerentis 
 factum ratum habuit, prassumitur socium prsepo- 
 suisse. 
 
 3. Idem judicium est de accessoriis, quod de 
 principali. 
 
 4. If the mandate is not sufficiently clear, it is 
 sufficient that one has managed the affairs of another 
 advantageously (utiliter). 
 
 Having seen the statement of a certain case and 
 considered the questions put in connection therewith : 
 A. offered his services at Dordrecht to assist in the 
 purchase of wines, not for B. alone, but for B. and 
 C. together as partners. B. comes to Botterdam and 
 requests the assistance of A. on behalf of himself 
 
 579 
 
580 OPINIONS OF GEOTIUS. [No, 
 
 (B.) and C. as partners, which both A. and B. are 
 prepared to declare under oath. 
 
 (1) I am of opinion that these facts are sufficient 
 to warrant an inference that A., when he became 
 surety for the purchase-price of the wines, did so not 
 only on account of B., but also of C. 
 
 (2) It is unnecessary here to enter into the ques- 
 tion, an et quando socii in dubio prsesumantur se 
 mutuo prseposuisse ; for this question lapses when- 
 ever quod socius qui non gessit, alterius gerentis 
 factum ratum habuit, as was decided in decisione 15 
 Rotas Genuensis. This appears to have been the 
 case here, as indicated by C.'s writing, wherein he 
 states, " We have bought at current prices," alluding 
 to the wines in question ; since the word " we " 
 indicates that he was purchaser of the wines together 
 with B. at the time, and that B. bought them nomine 
 societatis. A. therefore became surety for B. tanquam 
 institore societatis, cum idem judicium sit de acces- 
 soriis, quod de principali. From this it is quite clear 
 that C. is liable to A. in solidum to indemnify him 
 with regard to his surety bond per ea quae tradit 
 (Bart, in D. 14, 1, 4, Stracha tract, de decoctoribus, 
 parte 5, num. 13), especially since the partnership 
 was benefited by the surety bond, and obtained the 
 wines through it, which they afterwards disposed of 
 to advantage (D. 17, 2, 82). 
 
 Supposing, however, that there was not sufficient 
 proof of the existence of the partnership, even then,, 
 in any case, C.'s letter is evidence that B. had been 
 commissioned by C. to purchase the wines also on 
 
80.] OPINIONS OP GROTIUS. 581 
 
 his behalf, and therefore B. could cede to A. the 
 actio ex inandati which B. has against C. Should 
 the mandate not appear sufficiently proved, it is 
 sufficient quod B. negotium ipsius C. utiliter 
 gessisset. 
 
 B. can then sue C. for payment of his portion 
 of the purchase-price, which in dubio is supposed 
 to be half, and this right he can cede to A. 
 
OPINION No. 81. 
 
 HOLL. CONS. III. B. 303. 
 [GROTITTS 3, 21.J 
 
 Partnerships — Shares of partners — Assurance — Ante-nuptial 
 contract — Wife may secure her property — Leonine partner- 
 ships — What are profits — Marriages. 
 
 1. Although, according to civil law, omnia cequalia 
 intelligantur between those who have entered into 
 a partnership, this is not the case if otherwise 
 stipulated. 
 
 2. Valet conventio, ut ad unum duse partes et 
 lucri et damni, ad alium tertia pertineat. 
 
 3. Ita coiri societas potest, ut alter nullius partem 
 damni sentiat, lucrum vero commune sit, si tanti sit 
 opera, quanti damnum est. 
 
 4. A contract of partnership and of assurance can 
 exist together. 
 
 5. Contractus, in quo alter sociorum non tantum 
 sortem salvam pactus est, sed et lucrum aliquod 
 certum pro spe incerta, valet. 
 
 6. A wife by ante-nuptial contract can stipulate 
 for the security of her capital. 
 
 7. It is against the nature of a partnership that 
 one of the partners should not share in the 
 
No. 81.] OPINIONS OF GROTITJS. 583 
 
 profits at all, whether the business is successful or 
 otherwise. 
 
 8. In reckoning the profits, the losses must first 
 be deducted. 
 
 9. Eegula correlativorum habet centum fallentias. 
 
 10. Unicuique liberum est rei suae dicere legem, 
 quam vult, especially with regard to ante-nuptial 
 contracts. 
 
 11. It is for the general good that the opportunity 
 and means for entering into marriage should not 
 only remain free and unencumbered, but should be 
 specially favoured in every way. 
 
 I have seen the ante-nuptial contract and deed 
 relating thereto which were submitted for considera- 
 tion, and have been asked whether the property 
 brought in by the wife should go to the children 
 undiminished, or whether the loss should be de- 
 ducted proportionately, since the joint estate resulted 
 in a loss. 
 
 (1) I am of opinion that the property brought in 
 by the wife should go to the children fully and 
 without diminution, without considering the alleged 
 loss. For although, according to the general prin- 
 ciples of law, omnia cequalia intelligantur between 
 those who have entered into a partnership, yet this 
 is not the case when otherwise stipulated. Nee 
 enim unquam dubium fuit quin valeat conventio, 
 (2) si duo inter se pacti sint, ut ad unum duae partes 
 et lucri et damni pertineant, ad alium tertia.(a) 
 
 (a) Instit. 3, 25, 1. D. 17, 2, 29, 1. 
 
584 OPINIONS OF GROTIUS. [No. 
 
 Coming to our own case, ita coiri societatem posse, 
 ut nullius partem damni alter sentiat, lucrum vero 
 commune sit, Cassius putat : idque approbat Ulpi- 
 anus ; (b) (3) for it was added : id ita tantum valere, 
 si tanti opera, quanti damnum est. It was thus 
 stated not as a precise definition, that such a 
 stipulation can only occur in such a case, but to 
 make it clear that there must be some inequality 
 whereon such stipulation is based, quae insequalitas 
 operae, exemplo tanquam tunc frequentiori illustratur, 
 there being certain lawyers who thought otherwise, 
 not well understanding the nature of partnership 
 transactions. (c) Without a doubt the capital put 
 in by the one side can be so much larger that 
 the profits of the business done therewith are more 
 than that obtained from the diligence and work of 
 the merchant, especially when the partner who has 
 brought in the greater capital is satisfied to receive 
 somewhat less profits than he would have received 
 in proportion to his capital, and simply contents 
 himself with half of the profits, if any. This has 
 deceived some lawyers, as aforesaid, who did not 
 understand the nature of partnership transactions, 
 for they considered such a stipulation simply in the 
 light of a contract of partnership, whereas there 
 were really two contracts joined in one — one of 
 partnership, whereby the profits, if any, would be 
 equally divided, (4) and the other of assurance, 
 whereby one of the partners secured the capital of 
 
 (6) Ulpianus, D. 17, 2, 29. 
 
 (c) Ut Andr. Gail, lib. 2, observ. 34, No. 4 et 5. 
 
 / 
 
 / 
 
 / 
 i 
 / 
 
81.] OPINIONS OF GKOTIUS. 585 
 
 his copartner. This method is not at all unreason- 
 able, when the capital of the one was secured, that 
 the other, the assurer, should receive more out of 
 the profit than he would otherwise be entitled to.(d) 
 Potest, ait, licite dari pecunia alteri, ut per eum 
 adhibita industria, quaesturia ars exerceatur, ita 
 contracta societate, ut pecunia salva sit, ejusque 
 periculum ad mercatorem pertineat, lucrum tamen, 
 quod alioquin sequis proportionibus commune foret 
 majori ex parte ad subeuntem periculum pecuniae 
 spectet.(e) Licet contractum societatis inire, ac cum 
 eodem socio contratum assecurationis capitalist/") 
 Videmus locupletes pecuniam suam in societate ita 
 conferre, ut aliquam lucri nullam damni partem 
 sustineant ; (g) quorum plerique allegant ; (h) (5) 
 aliqui etiam loquuntur in casu difiiciliore, nempe ubi 
 non tantum alter sociorum fortem salvam pactus est, 
 sed et lucrum aliquod certum pro spe incerta, et 
 dicunt valere etiam talem contractum. 
 
 To apply this to the case in question, it appears 
 from all the provisions of the ante-nuptial contract 
 that the capital sum brought in by the wife was very 
 much greater than that of the husband, yea, even to 
 
 {d) Gouvarr. lib. 3, Variarum resolutionum, cap. 2, No. 3. 
 
 (c) Gregorius Valentia, disp. 5, quaest. 24, puncto 2. 
 
 (/) Wesembecius paratit. pro socio, No. 7. 
 
 (g) Allegans Pert. Ang. in § 1, Instit. eod. eandem sententiam tuentur 
 Angelus in summa, verbo societas, No. 1, § 7 ; Gabriel in 4, d. 15, quaest. 11, 
 dub. 10 ; Moncr. in 4, d. 15, quaest. 24 ; Bartholomeus Fumus in verbo 
 societas ; Navarr. c. 17, No. 255 ; Ludovicus Molin de justit. et jure, tract. 
 3, disp. 417 ; Franciscus Gar. de contractibus, p. 2, cap. 17 ; Ludovicus 
 Lopez de contractibus, lib. 1, c. 65 ; Bart. Medin. in instructione, § 27 ; 
 Franc. Toletus, lib. 5, cap. 41 ; Joseph. Angloz in floribus et sententiarum 
 quaest. de societate. 
 
 (h) C. per vestras ; Ext. de donat. inter virum et uxorem. 
 
586 OPINIONS OF GROTIUS. [No. 
 
 such an extent that his labour, which he would never- 
 theless have had to expend on his own business, 
 cannot be compared with it. (6) The woman, even 
 when unmarried, if she had placed her money with 
 a merchant who had less capital, and if she had been 
 satisfied with half the profits, instead of with a far 
 greater amount in proportion to her capital, could, 
 with every reason and right, have stipulated for 
 security of her money. The rule societatem talem 
 coiri non posse, ut alter lucrum tantum, alter dam- 
 num sentiret,(i) does not affect the case. This 
 passage relates to what immediately precedes, and 
 was above referred to, and applies only to such 
 contracts whereby the one partner was debarred 
 from receiving any profits at all, whatever might be 
 the result of the business, which is contrary to the 
 nature of a partnership. Iniquissimum enim genus 
 societatis est, ex qua quis damnum, non etiam lucrum 
 spectet, ut ibidem dicitur, (8) or if the partners were to 
 reckon the profits without deducting the losses there- 
 from. Nam ilia conventio, ut quis lucri partem ferat, 
 de damno non teneatur (as in the present case), ita 
 intelligenda est, ut si in alia re lucrum, in alia dam- 
 num illatum sit, compensatione facta, solum quod 
 superest, intelligatur lucro esse. (A;) This, however, 
 does not affect the present issue, for had there been 
 any profits, the husband would have shared in them 
 largely, even to a greater extent than in proportion 
 to his capital, and the wife in such case would not 
 
 (i) D. 17, 2, 29, 2. 
 (k) Instit. 3, 25, 2. 
 
81. J OPINIONS OF GROTIUS. 587 
 
 have shared in the profits until the losses had first 
 been deducted from the profits made. And since 
 the present is a special convention, allowed both by 
 law and the highest authorities, no notice need be 
 taken of the arguments which others would like to 
 infer, ex natura relatorum, cum regula ilia correlati- 
 vorum habeat centum fallentias, (9) ut ostendit 
 Blasius in tractatu singulari de correlatis. Et cuique 
 liberum sit rei suae dicere legem, quam velit, (10) 
 especially in the case of ante-nuptial contracts ; for 
 if the liberty of making these contracts with certain 
 conditions were to be withdrawn, many marriages 
 would not take place, whereas it is better for the 
 common good that all opportunities and means for 
 contracting marriages should not only remain free 
 and unencumbered, but should be specially favoured. 
 It is clear beyond doubt that it was the intention 
 of both contracting parties, whatever might be the 
 result of the business, that the property brought in 
 or afterwards inherited by the wife should go to 
 her or her children, as clearly shown by the said 
 contract. For, in the first place, it was stated that, 
 upon dissolution of marriage, whether there be chil- 
 dren or not, the property brought in by the wife or 
 afterwards inherited by her stante matrimonii) should 
 first of all be deducted from the general estate to go 
 either to her or her children, whether there are any 
 profits or not. Regarding the husband, it was stated 
 that he or his heirs should succeed to his property, 
 not unqualifiedly, but to the extent of the indebted- 
 ness of the estate. to him, and no more. It was also 
 
588 OPINIONS OF GEOTIUS. [No. 
 
 further stated that the husband should keep and 
 leave the property in good condition, and that he 
 could not alienate, encumber, sell, or transfer the 
 same. This was explained by the subsequent deed 
 to the effect that he could use the property as he 
 used his own in so far as it would be profitable, but 
 that, nevertheless, the relations or heirs, upon the 
 dissolution of marriage, should be compensated out 
 of the property of the husband which was most 
 available, so that they or their heirs might sustain 
 no loss or damage. 
 
 Paris, 
 
 21st January 1631. 
 
 PARTNERSHIP. 
 
 Ad Opinions Nos. 80, 81. 
 
 Partnership is an agreement whereby two or more persons 
 combine their property, or their property and services, to 
 derive profit therefrom for the common benefit.(Z) 
 
 Societas est contractus juris gentium, bonee fide, con- 
 sensu constans, super re honesta de lucri et damni com- 
 munione.(m) 
 
 It is the relationship which subsists between persons who 
 have agreed to share the profits of a business carried on by 
 all or any of them on behalf of them all.(w) 
 
 Every agreement for a share in the profits does not 
 amount to a partnership (Van der Keessel, Thes. 698). 
 Thus an agreement whereunder Z. was to manage El's busi- 
 ness as a clerk at a salary of £30 per month, with a further 
 
 (Z) Grotius, Introd. 3, 21, 1. Digest, 17, 2, 3, 3. Code, 4, 37, 1. 
 
 (m) Voet, 17, 2, 1. 
 
 (») Pollock on the Law of Partnership, p. 1. 
 
81.] OPINIONS OF GEOTIUS. 589 
 
 condition that if the profits amounted to more, Z. was en- 
 titled to one-fourth of the profits instead, held not to be a 
 partnership {Keete v. Zeiler, S. A. R. 1892). 
 
 Under Roman law partnerships were of five kinds : — 
 
 I. Societas tmiversorum bonorum — a partnership which 
 extended over all the property of all the partners. This, 
 according to Grotius, never obtained in Holland, and was 
 prohibited by common law, except in the case of the com- 
 munio bonorum, ex lege subsisting between spouses. 
 
 II. Societas universorum guce ex gucestu veniunt — a trade 
 or professional partnership, the usual relationship between 
 partners unless otherwise specially agreed upon.(o) 
 
 III. Societas negotiations alicujus — when the partnership 
 is restricted to a single transaction. (p) 
 
 IV. Societas rei uniics vel certarum rerum — joint owner- 
 ship.fe) 
 
 V. Societas vectigalis — for the collection of taxes, treated 
 as a separate kind of partnership in the Digest, (r) 
 
 Partnership, as obtaining under Roman-Dutch law, is 
 divided by Grotius into General, of all profits ; Special, of 
 certain profits; and Universal, of community of goods 
 between spouses only. 
 
 The different kinds of partnerships are briefly mentioned 
 by Van der Linden, 4, 1, 12. 
 
 The following kinds of partnerships must be specially 
 noted. 
 
 Leonine partnership — Societas leonina, an agreement 
 whereby one of the partners is liable for a share in the 
 losses but is not entitled to a share in the profits. This 
 was at all times forbidden, as being contra bonos mores.(s} 
 Van Leeuwen (t) says that a leonine partnership is one in 
 which a share in the profits without a share in the loss is 
 
 (o) Digest, 17, 2, 7. 
 (p) Digest, 17, 2, 52, 5. 
 (q) Digest, 17, 2, 31. 
 (r) Digest, 17, 2, 35 and 59. 
 
 (s) Grotius, Opinion No. 80 (Holl. Cons. 3 (b.) 303), and Introd. 3, 21, 5. 
 Digest, 17, 2, 29, 1. 
 («) Van Leeuwen, ,R. H. B. 4 23, 1, and Decker's Note thereon. 
 
£90 OPINIONS OF GEOTIUS. [No. 
 
 stipulated for. This is, however, an error. The name is 
 derived from the well-known fable of iEsop about the lion, 
 the ass, and the fox. 
 
 An anonymous partnership, i.e., where several persons 
 agree to participate in the profits of a certain business 
 which is to be executed or carried on by one of the partners 
 in his own name.(w) 
 
 A partnership en commendite is one whereby some 
 particular person engages with a trader to supply the latter 
 with a certain amount of capital, and stipulates that the 
 trade is to be carried on in the name of such trader alone, 
 that he is to participate in the profits, and that he is not to 
 be liable for any losses in excess of the capital advanced by 
 him.('y) 
 
 Both an anonymous and en commendite partnership are 
 agreements strictly inter partes, and the undisclosed principals 
 are not liable to third parties contracting with the trader. 
 Where the terms of the partnership have not been made 
 public or brought to the notice of persons contracting with 
 the firm, it is essential, in order to obviate liability, that the 
 names of the other partners do not appear in the name of 
 the firm, and that these partners do not hold themselves 
 out as such. (a;) 
 
 These two kinds of partnerships were fully discussed in 
 Watermeyer v. Kerdel's Trustees,{y) Lamb Brothers' Executors 
 v. Brenner & Go.,(z) and the Gruardian Insurance and Trust 
 Company v. Lovemore's Executors. 
 
 The fact that all the partners openly take part in the 
 transaction of the partnership business is sufficient to dis- 
 prove the existence of an anonymous partnership or a societas 
 en commendite. {a) 
 
 In an action by a partnership, only the names of all the 
 partners who hold themselves out as such to, and are dealt 
 
 (u) Van der Linden, 4, 1, 12. Pothier on Partnership, § 61. 
 
 (t>) Van der Linden, 4, 1, 12. Pothier on Partnership, § 60. 
 
 (x) Van der Keessel, Thes. 704. 
 
 (y) 3 Menz. 424. 
 
 (z) 5 E. D. C. 152, and 5 J. 205 (Lovemore's case). 
 
 (a) Lamb Bros. v. Brenner & Co., 5 E. D. C. 152, 
 
81.] OPINIONS OF GEOTIUS. 591 
 
 with as such by, the public, and with whom, as such, the 
 debt was incurred, need be set out in the summons ; the 
 insertion of the names of sleeping partners is not neces- 
 sary.^) 
 
 As to what is sufficient proof of the existence of a partner- 
 ship, see Onlcruyd v. Haupt,(c) Weinert & Meyer v. Kohl,(d) 
 R. v. Thesen & Co.,(e) and Henwood & Co. v. Westlake & 
 Goles.(f) 
 
 When the deed of partnership provides for the continua- 
 tion of partnership after the death of any of the partners 
 on behalf of the surviving partners and the estate of the 
 deceased partner, the partnership is not dissolved by the 
 death of any of the partners.^) A fortiori, joint-stock 
 companies, formed with the intention of indefinite duration 
 beyond the lifetime of any particular shareholders, will not 
 be dissolved upon the death of any of the shareholders, (h) 
 
 The exact nature of the relationship between the parties 
 must be gathered from the circumstances of each case, if 
 any question arises as to the existence of a partnership. 
 This is of importance, for it affects both the criminal (i) 
 and civil liabilities of the parties.(&) Doubtful agreements 
 of partnership must be construed according to the rules 
 generally adopted for the construction of deeds and con- 
 tracts.^) 
 
 The partners are to a limited extent answerable in solidum 
 for all the partnership debts. Thus where one of the partners 
 was solvent and the other insolvent, the trustee of the 
 insolvent estate was allowed the oeneficium divisionis in 
 the case of a claim by a partnership creditor against the 
 
 (J) Lolly v. Gilbert, 1 Menz. 434. 
 
 (c) 2 Menz. 239. 
 
 (d) 2 Menz. 238. 
 (c) 6 J. 68. 
 
 (/) 5 J. 341. 
 
 (g) Torbet v. Executors of Attwell, Buc. 1879, 195. 
 
 (h) In re Paarl Bank in liquidation, 8 J. 131. Liquidators of the Union 
 Bank v. Kiver, Hofmeyr's Executrix, 8 J. 136. 
 (i) E. v. Thesen & Co., 6 J. 68. 
 (k) Henwood & Co. v. Westlake & Coles, 5 J. 341. 
 (I) Jameson v. Irvine's Executors, 5 J. 222.. 
 
592 OPINIONS OF GKOTIUS. [No. 
 
 estate,(m) payment having been demanded after dis- 
 solution. 
 
 As a rule, no agreement between partners can affect their 
 liability to third parties, and certainly no such subsequent 
 agreements can affect claims of prior date.(w) 
 
 Execution can be taken out against the estate of any one 
 of the partners, if a judgment has been obtained against 
 them as partners, and that without any further order of 
 court, (o) 
 
 The citation and joinder of all the members of a partner- 
 ship can be insisted upon when the firm is being sued.(^?) 
 In this respect the law recognises that the liability is joint, 
 and not absolutely separate. 
 
 If several persons carry on business under two different 
 names, but the profits are shared among the partners as 
 members of one joint concern or business, creditors who 
 have given credit to one of the firms, or rather to the firm 
 under one name, may prove their debts on the insolvent 
 estate of the firm under another name.(g') 
 
 In an action for a debt due to a partnership, compensation 
 or set-off of an amount due by one of the partners in his 
 individual capacity cannot be made.(r) 
 
 There is, however, an exception to this rule, namely, 
 where one of the partners is an undisclosed or dormant 
 partner, for such dormant partner who has incurred debts 
 cannot, merely by joining the non-dormant partner as co- 
 plaintiff, deprive the debtor who is also a creditor of his 
 right to compensate a debt due to him by the dormant 
 partner.(s) 
 
 A partner is not allowed to pledge the partnership 
 property for and on behalf of himself in security for his 
 
 (m) Luck v. Chabaud, 1 Menz. 531. See also Haarhoff v. Cape of Good 
 Hope Bank, 4 G. 304, and Blackburn v. Meintjes, 1 B. 56. 
 (») Long, Ebden, & Co's. Trustees v. Holmes, 2 S. 307. 
 (o) Theunissen v. Fleischer, Wheeldon, & Munnik, 3 K D. C. 291. 
 Qj) Meintjes & Co. v. Simpson Brothers & Co., 2 Menz. 230. 
 (g) Bate v. Hunt and Others, 2 J. 179. 
 (r) Voet, 16, 2, 10. 
 (s) Brider v. Wills, 4 J. 282. 
 
81.] OPINIONS OF GROTIUS. 593 
 
 private debts, and the pledgee therefore has no action on the 
 pledge as against the partnership.(i) 
 
 When a person becomes surety to another on behalf of a 
 debtor for goods supplied and to be supplied to such debtor, 
 the surety will be liable for the debts arising from the 
 supply of goods to the debtor both before and after the 
 debtor had entered into partnership with others, although 
 credit would not have been given to such debtor if it had 
 been known that he had a partner.(it) 
 
 When a third person deals with a manager or trading 
 partner of a firm, and elects to make such partner his sole 
 debtor, and secure his debts out of the private estate of 
 such partner, e.g., by accepting a pledge or mortgage bond 
 hypothecating the private property of the partner, with 
 a full knowledge that the transaction is on partnership 
 account, he cannot subsequently treat the other members of 
 the firm as debtors, (v) 
 
 If there is not clear proof that credit was given ex- 
 clusively to one of the partners upon his personal security, 
 the debt will become a partnership liability, and the debtor 
 will be entitled to claim payment from the firm.(a;) 
 
 A partnership is dissolved either ex tempore, ex re, ex 
 voluntate, or ex persona. Dissolution ex persona takes place 
 upon the death or insolvency of one of the partners, mortuus 
 aut civiliter mortuus, and the existence terminates ipso facto, 
 ipso jure. It seems, however, that the partnership can be 
 re-established by means of rehabilitation in the ordinary 
 way after insolvency, (y) 
 
 {t) Zeederberg v. Trustees of J. Norton & Co. and J. D. Norton & Co., 
 3 S. 12. 
 
 (m) Green v. Beveridge, 8 Juta, 154. 
 
 (v) Guardian Insurance and Trust Company v. Lovemore's Executors, 
 5 J. 205. 
 
 (cc) Benjamin v. Benjamin, 1 E. D. C. 273. 
 
 (y) Paulsmeier v. Lanham.(S. A. E.), 1893 ; and see Van Zijl's "Judicial 
 Practice," chap. "Behabilitation." 
 
 2 P 
 
OPINION No. 82. 
 
 HOLL. CONS. III. B. 175. 
 [GROTIUS III. 24, 5.] 
 
 Insurance policy — Contraband — Nature of insurance — Duty of 
 an agent — Expenses bona fide incurred — Fraud — When the 
 agent represents his principal — Bona fides of tutors and 
 agents. 
 
 1. An insurer, who at the time of underwriting a 
 policy of insurance did not know that the goods 
 insured were contraband, whereas the insured was 
 aware of the fact, is not bound to indemnify the in- 
 sured for any confiscation suffered by reason thereof. 
 
 2. The nature of a contract of insurance includes 
 a certain kind of partnership (societas). 
 
 3. In societatis judicium non veniunt ea, quae ex 
 causis prohibitis amittuntur. 
 
 4. When notice of contraband has been given, and 
 the insurers either expressly or tacitly concurred 
 therein as if they were interested, they must obtain 
 relief from the court. 
 
 5. To what extent the insurers are bound to pay 
 the expenses stated to have been incurred by the 
 insured for the protection and recovery of the goods. 
 Under such circumstances the insured are the agents 
 (mandatarii) of the insurers. 
 
 594 
 
No. 82.] OPINIONS OF GEOTIUS. 595 
 
 6. In materia mandati non omnes sumptus in 
 infinitum restituuntur, sed impendia bona fide facta. 
 
 7. Mandatum cum libera, non extenditur ad dona- 
 tiones. 
 
 8. Tutor domini loco est, cum tutelam administrat, 
 non cum pupillum spoliat. 
 
 9. In the case submitted the costs incurred will 
 be confined ad ilium modum, quern secutus fuisset 
 vir diligens. 
 
 10. In bonse fidei judiciis dolus exclusus censeri 
 debet. 
 
 I have seen the documents in connection with the 
 actions heard first before the Chamber of Assurance, 
 and now pending before the Schepenen of Amsterdam. 
 These actions are : — Willem Muilman cum sociis, ap- 
 pellants and plaintiffs in the civil suit, v. Diego 
 Fernandes Diaz, respondent ; Ijsbrand Dobbe cum 
 sociis v. Antonio Martines Vegas ; the widow and 
 boedelhoudster of Jan van der Straten cum sociis v. 
 Pedro Homez Menderos ; Gijsbert Popta cum sociis 
 v. Jacob Gallus ; David A. Born cum sociis v. Euy 
 Somes Fontiera cum sociis; and Gijsbert Popta cum 
 sociis v. David Nunes. I have looked over the depo- 
 sitions made in the above cases before the Chamber of 
 Assurance, and also the documents filed by Muilman 
 and the rest, according to the date of their deposi- 
 tions, especially a certain Placaat of the King of 
 Spain dated 22nd April 1626, and a judgment given 
 in Madrid in 1630. In answer to the questions : 
 
 (1) I am of opinion that the insurers, Muilman 
 
596 OPINIONS OF GROTIUS. [No, 
 
 and others, are not bound to indemnify the insured 
 for any loss by confiscation of contraband goods, for 
 the following reasons : It appears that the baize in 
 question was of English make, such goods having 
 been declared contraband by the Placaat of 1626, and 
 it must be presumed that at the time the policy of 
 insurance was passed, the insurers were unaware of 
 the fact that the said baize was English, or that there 
 were other contraband goods, which must have been 
 known to the insured. The confiscation thus took 
 place ex facto ipsorum, qui assecurati fuerant, and 
 (2) the nature of an insurance contract comprises a 
 species of partnership, with reference to which it is 
 a well-known maxim, quod in societatis judicium non 
 veniant ea, quae ex causis prohibitis amittuntur.(a) (3) 
 And this is especially the case (&) in nostris terminis ; 
 si dominus mercium assecuratarum devehi fecit res 
 prohibitas, ignorante assecuratore, cujus causa per- 
 venitur ad perditionem mercium, vel navis, vel alterius 
 damni (D. 39, 4, 11) quod non teneatur assecurator. 
 (4) To strengthen their case, it is advisable for the 
 insurers to seek relief from the court, on account 
 of their having negotiated with the insured in 
 ignorance of the true cause of the damage after 
 they had received notice, or because they concurred 
 in such notice, either expressly or tacitly, as if they 
 were interested. 
 
 (5) Even should the insurers be unsuccessful in 
 obtaining this, the expenses which the insured alleged 
 
 (a) D. 17, 2, 59, § 1, and D. 17, 2, 52, § 18. 
 
 (6) Ait Petrus Santerna, traotatu de assecurationibus. 
 
82.] OPINIONS OF GEOTIUS. 597 
 
 they incurred for the protection and recovery of the 
 said baize need not be paid by the insurers to a greater 
 amount than a diligent and honest agent would 
 probably have incurred for his employer. Although 
 the insurance policies stipulate that the insurers 
 shall repay the insured the expenses incurred in 
 connection with the salvage of the goods in case of 
 loss or damage, and that the insurers shall be bound 
 by the oath of him who incurred the expense and 
 cannot go behind it, and, moreover, even after notice 
 had been given the insurers renewed the same 
 conditions, yet it must be remembered in these 
 transactions that the insured are the agents of the 
 insurers. (6) Et in materia mandati, non omnes 
 sumptus in infinitum restitui, sed impendia bona fide 
 facta,(c) sumptus ex justa ratione factos ut loquitur 
 in T).,(d) quod et de litis impendiis specialiter dicitur 
 in D. : — de procuratoribus.(e) (7) Et ideo manda- 
 tum, quamvis cum libera, non extenditur ad dona- 
 tiones.(y) (8) Et in re simili tutor domini loco est 
 cum tutelam administrat, non cum pupillum spoliat.(^) 
 (9) For these reasons the expenses must be reduced 
 ad ilium modum, quern secutus fuisset vir diligens. 
 In the present case this is rendered still more 
 necessary, for the exorbitant costs charged against 
 the insurers by the insured, although they made 
 large profits by the sale of the baize, convey a 
 
 (c) D. 17, 1, 27, 4. 
 
 (d) D. 17, 1, 45, 6. 
 
 (e) D. 3, 3, 46, 6. 
 
 (/) Gail, 11 obs. c. 72, n. 12. 
 (g) D. 41, 4, 7, 3. 
 
598 OPINIONS OF GEOTIUS. [No. 
 
 strong suspicion of fraud, (10) qui semper in bonse 
 
 fidei judiciis, etiamsi verba sint maxime generalia, 
 
 exclusus censeri debet. (h) This too is specially 
 
 enacted, in the case of insurance, by the 32nd Art. 
 
 of the Ordinance of this city (Amsterdam) treating 
 
 of this subject. 
 
 Amsterdam, 
 
 6th April 1622. 
 
 INSURANCE. 
 
 At the Cape of Good Hope the fire, life, and marine 
 insurance law of England has been adopted by the General 
 Law Amendment Act, No. 8 of 1879, and as a rale this law 
 is followed throughout South Africa, unless it directly con- 
 flicts with the common law of Holland or local statutory law. 
 
 It will therefore be unnecessary to make any further 
 general remarks upon this subject beyond referring to the 
 more important South African cases dealing therewith. 
 
 Insurance is a contract nominate, consensual, and of good 
 faith, whereby, in consideration of a certain price or premium, 
 the losses which may arise from unforeseen danger to the 
 property of another are undertaken to be made good (Van 
 der Keessel, Thes. 712). 
 
 The contract is completed by agreement, and upon the 
 execution of the policy and the giving of credit for the 
 payment of the premium, and the insurer has a lien upon 
 the undelivered policy in his possession until the premium 
 has been paid.(i) 
 
 The policy lapses, as a rule, upon the non-payment of the 
 premium on the due date, or after a certain period of grace 
 depending on the terms of the policy. If the premium is 
 payable yearly in advance with the option of half-yearly 
 
 (A) L. convenerit, D. 23, 4, et D. 2, 14, 27, 3. Jas. cons. 40. Gail, lib. 11, 
 obs. cap. 145, num. 3. 
 
 (i) Hollet v. Nisbet & Dickson, 1 Menz. 391. 
 
.82.] OPINIONS OF GEOTIUS. 599 
 
 payment, the payment of the first instalment does not keep 
 the policy alive for the whole year, and the next instalment 
 will have to be paid on its due date. If such is not done, 
 and the risk insured against is then incurred, the benefits 
 under the policy will lapse, (k) 
 
 No res prohibita can form the subject of a contract of 
 assurance. (I) The contracts require the strictest good faith, 
 uberrima fides,(m) and the conditions thereof must be strictly 
 complied with. A contract of life insurance, not being a 
 contract of indemnity, is not liable to be affected by mere 
 non-disclosure apart from fraud, (to) 
 
 Before instituting an action the plaintiff must have 
 complied with all the conditions of the policy. If the con- 
 ditions be precedent, the terms thereof must have been 
 previously carried out, e.g., submission to arbitration (o) or 
 the furnishing of proper accounts, (p) 
 
 The insured under warranty is bound by the terms of the 
 policy, and if he does not abide by such terms the policy 
 will be vitiated, for the condition is precedent and inherent 
 in the contract, and, if broken by the insured, the insurer is 
 freed from liability. 
 
 . ThuS, where an insured agreed under his policy of fire 
 insurance to keep only sufficient spirits on the premises for 
 the purpose of preparing his wines, and he kept in addition 
 spirits for sale, it was held that the coudition had been 
 broken and the policy vitiated, although the loss by fire was 
 not attributable to such spirits. (q) 
 
 In contracts of marine insurance there is an implied 
 warranty of seaworthiness,(r) and if the vessel founders 
 
 (h) Wood's Trustees u. South African Mutual Life Insurance Society, 
 9 J. 220. 
 . (I) Opinion No. 82 (Holl. Cons. 3 (b.) 175). 
 
 (m) Dalby v. India and London Life Insurance Co., 15 C. B. 365. 
 
 («) Wheelton v. Hardisty, 8 E. & B. 232. Broom's Common Law, 338. 
 
 (») Davies v. The South British Insurance Company, 3 J. 416. 
 
 (p) KafErarian Colonial Bank v. Grahamstown Fire Insurance Co., 5 E. 
 D. C. 61. Hollander & Co. v. The Royal Insurance Co., 4 J. 66. 
 
 (g) Calf v. Jarv4s and Others, 1 S. 1. 
 
 (r) Namaqua Mining Company v. Commercial Marine and Fire Insurance 
 Company, 3 S. 231. 
 
600 OPINIONS OF GEOTIUS. [No. 
 
 immediately after proceeding on her voyage, there is a 
 legal presumption that she was unseaworthy before the 
 voyage, (s) 
 
 The insured in the case of marine or fire insurance policy 
 must, as before stated, observe the strictest and utmost good 
 faith. He must disclose all material facts which may in- 
 fluence the rate of the premium, and must not conceal facts 
 within his knowledge which would affect the insurance 
 policy. (f) In practice these facts are generally contained 
 in a set of questions to be answered correctly by the insured 
 when submitting his proposal for insurance. If the facts 
 are not correctly answered or are purposely misstated, the 
 policy will be vitiated. Thus, where the insured replied 
 "No" to a question to the effect whether any loss by fire 
 had previously been sustained by the insured, and it was 
 proved that a small shop in another country belonging to 
 the insured had been destroyed by fire about ten years 
 before the present policy was entered into, the plaintiffs 
 (the insured) were held to be not entitled to recover 
 damages under the policy, on the ground that the terms 
 thereof had been vitiated by the misstatement.^) 
 
 The insurers will be liable for the acts of their agents. 
 If the agents themselves, after personal inspection, fill in 
 the proposal form, and the insured relies on the fact that 
 they were satisfied and were relying on such personal in- 
 spection, the policy is not vitiated, if the proposal contains 
 a misstatement of material facts or other material misde- 
 scription for which the agent is responsible, provided that 
 the insured acted bona fide and without intent to conceal or 
 mislead.(t>) See ante, p. 550. 
 
 The insured cannot fraudulently remove the articles 
 secured and then claim indemnification in the case of fire. (a:) 
 
 (s) Levy v. Calff and Others, W. 1. 
 
 (t) Jenssen & Co. v. Commercial Insurance Co., 4 J. 20. Malcher & 
 Malcomess v. King Williamstown Fire and Marine Insurance Co., 3 E. D. 
 C. 271. 
 
 (u) Israel Bros. v. Northern and Union Insurance Cos. (S. A. R.), 1892. 
 
 (v) Drysdale v. Union Fire Insurance Co., 8 J. 63. Simon v. The Equit- 
 able Marine and Fire Insurance Co., 2 Shiel, 338. 
 
 (x) Guites v. Queen Insurance Co., 1 A. 174. 
 
82.] OPINIONS OF GROTIUS. 601 
 
 The insurer is bound to pay the full amount of the 
 damage sustained, as far as it is covered by the policy of 
 insurance. The contract of marine and fire insurance is 
 one of indemnification, and the assured cannot therefore 
 recover from the insurers an amount in excess of the damage 
 sustained, although the full amount covered by the policy 
 be greater than the actual loss or the total value of goods 
 insured. 
 
 If the goods are insured with different insurers, each 
 insurer will be liable to make good a ratable amount of 
 the loss, (y) 
 
 Under the average clause in a policy of fire insurance, if 
 the insurer elects to rebuild or reinstate the property, he 
 must proceed with the work, and cannot compel the insured 
 to accept compensation, (s) He must erect a building of 
 equal value to the insured, if the original building was 
 fully covered by the amount of the policy, and if not so 
 covered, he must erect a building equal in value to the 
 amount thus covered. He cannot recover from the in- 
 sured the difference in value between the rebuilt or rein- 
 stated property and the amount covered by the policy, if 
 the former be in excess. On the other hand, the insured 
 can recover from the insurer the difference between the 
 amount covered and the value of the reinstated property, 
 if the latter is not of equal value to the property de- 
 stroyed.^) 
 
 When the property is insured against risk for a certain 
 period, the time will be computed civiliter, i.e., ultimus dies 
 inceptus pro completo habetur, and not naturaliter, i.e., de 
 momento in momentum. 
 
 Thus a policy of insurance for one year from 14th 
 January 1857 to 14th January 1858 lapses at midnight 
 on 13th January 1858, and if the loss is incurred on the 
 14th, the insured cannot recover. (5) 
 
 (y) Nathanson v. The Commercial Insurance Co., 4 J. 461. 
 (z) Smith's Mercantile Law, Fire Insurance. 
 
 (a) Kaffrarian Colonial Bank v. Grabamstown Fire Insurance Co., 5 E. D. 
 O. 61. See also Goldberg v. Phoenix Fire Office, 1 G. 216. 
 
 (6) Cock v. Cape of Good Hope Marine Assurance Co., 3 S. 114. 
 
OPINION No. 83. 
 
 HOLL. CONS. III. B. 168. 
 [GROTIUS III. 32, 7, & III. 33, 2, & II. 21, 5.] 
 
 Reconciliation-money — Widow's share — Acceptance thereof is 
 not adiation. 
 
 1. Reconciliation-money (soen-geld) is a compen- 
 sation made to interested parties when homicide has 
 been committed. To what portion of such propitia- 
 tion-money are the widow and the child or children 
 of the deceased entitled ? 
 
 2. The mere acceptance of the propitiation-money 
 does not necessarily involve the adiation of the 
 inheritance. 
 
 What must be done, prior to acceptance, to obviate 
 any dispute ? 
 
 Having been asked whether propitiation-money 
 on account of homicide goes to the benefit of the 
 orphan left by the deceased, or whether the widow 
 is also entitled to a share : 
 
 Item, whether the guardians of the orphan can 
 accept the money without placing themselves in the 
 position of heirs of the deceased on behalf of the 
 orphan : 
 
No. 83.] OPINIONS OF GEOTIUS. 603 
 
 (1) I am of opinion, concerning the first point, 
 that the reconciliation-money, according to the 
 tenor of the letters of remission, is a compensation 
 made to the interested parties when homicide has 
 been committed, and it cannot be denied that the 
 widow sustains damage by such homicide. The 
 widow is therefore entitled to a portion of the pro- 
 pitiation-money ; but to a smaller share than the 
 child, seeing that the child has a greater and deeper 
 interest. Accordingly the widow ought to be content 
 with one-third. 
 
 (2) Concerning the second point, I am of opinion 
 that the mere acceptance of the propitiation-money 
 does not necessarily entail adiation of the inherit- 
 ance. (a) But in order to obviate any dispute, it 
 would be advisable for the guardians, when accepting 
 the money, to protest expressly that their acceptance 
 thereof is not to be construed as an intention to 
 adiate the inheritance. (&) 
 
 Rotterdam. 
 
 In his chapter on " Obligations ex delicto " (3, 32), 
 Grotius gives a short sketch of the criminal law in his 
 day, with a brief review of its history, and of the manner 
 of purging a delict and making compensation. See also 
 
 (a) Bart, in D. 39, 2, 18, 11. Clarus, quajst. 58, No. 33. 
 (6) D. 29, 2, 20, 1. 
 
€04 OPINION'S OF GROTTUS. [No. 83. 
 
 Van Leeuwen's Oomm. on Eom. Dutch Law (4, 34), and 
 Matthseus de Oriminibus, 1. 48, 5, 7, 6, on this subject.(c) 
 
 No prosecution, whether private or public, is a bar to 
 a civil action for damages sustained through the delict.(<2) 
 
 (c) The English law with reference to compensation to interested 
 parties is regulated by Lord Campbell's Act, 9 & 10 "Vict. c. 93, amended 
 by 27 & 28 Vict. c. 95. 
 
 (d) Eaton v. Moller, R. 2, 85. Mostert v. Fuller, Buc. 1875, 32. Schoeman 
 ■i). Goosen, 3 E. D. C. 7. 
 
OPINION No. 84 
 
 HOLL. CONS. III. B. 165. 
 [GKOTITJS III. 32, 10, & I. 22 (Schorer ad ib.).] 
 
 Delicts generally extinguished by death — Action for damages ■ 
 
 No jus retentionis. 
 
 1. Delicts are extinguished by death, unless they 
 fall under the category of those in quibus post 
 mortem memoria damnatur. 
 
 2. The contract, of service with the East India 
 Company does not entail a punishment ipso jure et 
 sine facto judicis incurrendam. 
 
 3. The managers of the East India Company 
 cannot retain the goods of one of their servants on 
 the mere allegation and pretext that he traded 
 contrary to the articles of his contract of service. 
 They have an action for damages sustained by the 
 Company. 
 
 I have seen a certain pleading filed in the Court of 
 Amsterdam by Mr. Adv. Jan Dictorinus, as guardian 
 of Aafge Dirks, Duifge Dirks, Lucia Dirks, Jan Elis, 
 husband and guardian of Fortina Dirks, and by the 
 guardians of their minor brother and sister, all of 
 
 605 
 
€06 OPINIONS OF GEOTIUS. [No. 
 
 them heirs ab intestato of the Dr. Martinus Souft, 
 in his lifetime Commander-in-chief in Pehou and 
 on the coasts of China, who died in the service of 
 the United East India Company, plaintiff v. The 
 Managers of the Dutch East India Company, 
 defendants. I have also seen the 62nd article of 
 the contract entered into by the servants of the 
 Company, and the 3rd article of the oath taken by 
 commanders, chief merchants, captains, skippers, 
 and other officers when entering into service with 
 the said Company. I am instructed that the said 
 defendants refuse to allow the goods of the afore- 
 mentioned Dr. Martinus Souft to devolve upon the 
 said plaintiffs, on the ground, as alleged by the 
 defendants, that the said Dr. Martinus Souft has 
 committed a delict by trading for himself in the 
 East Indies, in contravention of his contract of 
 service and his oath. 
 
 With reference to the question submitted : 
 (l) I am of opinion, presuming that the afore- 
 mentioned Dr. M. Souft has never been accused of the 
 contravention during his lifetime, and much less 
 convicted, that the contention of the defendants is 
 bad in law, cum notissimi sit juris, crimina morte 
 exstingui.(a) Moreover, the alleged delict does not 
 fall under the category of those in quibus post 
 mortem memoria damnatur, and the contract of 
 service does not entail a punishment ipso jure et 
 sine facto judicis incurrendam. The defendants 
 
 (o) D. 48, 1, 6, et c. 9, 6, 1. 
 
84. J OPINIONS OF GROTIUS. 607 
 
 must therefore allow the plaintiffs to have the said 
 property, whilst they retain their action for the 
 amount of damages which they think they can prove 
 that the East India Company suffered by reason of 
 the said trade carried on by Martinus Souft. 
 
 Thus advised 13th March 1632. 
 
OPINION No. 85. 
 
 HOLL. CONS. III. B. 166. 
 [GEOTIUS III. 32, 20, & I. 2, 2, & II. 48, 15.] 
 
 Has the State a preferent claim for (a) fines, (5) costs of 
 prosecution. 
 
 1. Although the public Treasury has no preferent 
 claim for fines as against other creditors of the 
 delinquent, it or its officer is nevertheless preferred 
 before other creditors as regards the costs of pro- 
 secution. The reason for this : 
 
 2. Publice interest est delicta puniri. 
 
 A delinquent was apprehended by an officer of 
 justice and prosecuted, with the result that he was 
 sentenced to be flogged and his property was de- 
 clared confiscated. The question is whether the 
 officer is to be preferred before the other creditors 
 as regards the costs of prosecution. 
 
 (1) I am of opinion that although he who confis- 
 cates property is also bound to pay the debts of the 
 person whose property is confiscated up to the value 
 of the said property, and although the public Treasury 
 has no preferent claim for fines as against other 
 creditors, yet the Fisc or its oificer is to be preferred 
 
 608 
 
No. 85.] OPINIONS OF GROTIUS. 609 
 
 before other creditors as regards the costs of prose- 
 cution. (2) Idque propter favorem publicam, quia 
 publice interest delicta puniri (a) et bona committen- 
 tium.(&) This was daily practised by the officers of 
 the Government of Holland according to ancient 
 custom. 
 
 Rotterdam, 
 1614. 
 
 The following authorities may be consulted on this 
 subject : — 
 
 Van der Keessel, Thes. 419, 420, and 459. 
 Regtsgeleerde, Observation 2, obs. 61. 
 
 Treasurer- General v. Bosnian's Trustees, 2 J. 262, and the 
 authorities there quoted. 
 
 (a) Ita in terminis Afflict, in tit. quae sint Regalia in verbo. 
 (6) Num. 119, et Peregrinus de jure Fisoi, lib. 6, tit. 1, n. 193. 
 
 2Q 
 
OPINION No. 86. 
 
 HOLL. CONS. III. B. 342. 
 [GROTIUS III. 35, 9.] 
 
 Adultery — Proof of — Confession. 
 
 1. Evidence required to prove that any one has 
 committed adultery. Et num. 3. 
 
 2. Confessio extrajudicial, concurrente verisi- 
 militudine, facit probationem semiplenam ; et sufficit 
 ad plenam probationem, si accedat unus testis, clare 
 deponens. 
 
 3. Adulterium probatur per testes singulares ; et 
 sufficit si unus deponit de una re inhonesta et alius 
 de alia. 
 
 I have seen certain certificates drawn up on behalf 
 of Rachel de Fourmesteaux against Heyndrik van 
 der Putten, her husband, and have been asked what 
 she should do in consequence of the evidence afore- 
 mentioned. 
 
 I am of opinion that it is sufficiently clear from 
 the evidence that the said Heyndrik van der Putten 
 has committed adultery : Firstly, through his own 
 admission that he had had connection with Cornelia 
 Jans van Haarlem, laid down in the presence of 
 
No. 86.] OPINIONS OF GROTIUS. 611 
 
 the three witnesses Susanna Jacobs, Frans Jans, and 
 Pieter Adriaans, his servants, and also through 
 another general admission that he had not been 
 content with his wife, deposed before Klaas Buyk. 
 This confession is strengthened by. the report that 
 the said Heyndrik van der Putten led an immoral 1 
 life, deposed to by Maurits Ooms, who was heard at 
 the request of Van der Putten. (2) Quse quidem con- 
 fessio extrajudicialis, concurrente verisimilitudine^ 
 facit probationem semiplenam,(a) PrcesesEverhardus, 
 Cons. 131, ibi dicit, ad plenam probationem sufficere, 
 si accedat unus testis clare deponens. In addition 
 to this confession there is the deposition of the afore- 
 mentioned Cornelia Jans van Haarlem, which states 
 that she had had connection with Van der Putten on' 
 three occasions ; the deposition of Geertge Gillis, who 
 states that she saw that the said Van der Putten had 
 had intercourse with Sara Pieters ; the deposition of 
 Susanna Jacobs afore-mentioned, stating that Van der 
 Putten had also cohabited with her, (3) this deposi- 
 tion being strengthened by the declaration of Klaas 
 Buyk, stating that Van der Putten had retired with 
 the said Susanna Jacobs into one room of a house of 
 ill fame ; a deposition of Brechtge Jans, stating that 
 Van der Putten had also made immoral overtures to 
 her; and lastly, several other depositions as to his 
 frequenting houses of ill fame, and his immoral 
 habits in word and action. All this taken together 
 supplement what was wanting to prove the adultery 
 
 (a) Imola in c. si cautio Ext. de fide instrum. Doot. in o fin. Ext. de 
 ■Confessis. 
 
612 OPINIONS OF GKOTIUS. [No. 
 
 over and above the confession above mentioned. 
 (4) The law is clear, quod adulterium probetur etiam 
 per testes singulares,(6)i Thomas Gram, infra, ait 
 sufficere testes singulares quorum unus deponeret de 
 una re inhonesta, et alius de alia. Quibus accedit.(c) 
 It is also accepted law quod in iis, quae a communiter 
 accidentibus fiunt et nascuntur, testes inhabiles et 
 minime idonei habentur pro idoneis et habilibus,(c£) 
 quod prsecipue locum habere debet, aliis adminiculis 
 accidentibus ut in hac causa. The adultery having 
 been proved, it follows that the said Eachel de 
 Fourmesteaux is entitled, according to the Political 
 Ordinance of the States-General of Holland and 
 West Friesland and the general practice, confirmed 
 by divers decisions of the Court of Justice, to sue 
 for divorce a vinculis matrimonii. If any one should 
 deem that the afore-mentioned evidence is not 
 strong enough for such purpose, the said Eachel de 
 Fourmesteaux will at least be entitled, for the sake 
 of her health, and of the property which she might 
 possess or acquire, to live apart and to be separated 
 from her husband, and further to obtain an order 
 of court for such separation, per ea quce tradit 
 Bayardus.(e) She is also entitled to a separation 
 of the property, and to interdict her husband, the said 
 Van der Putten, from administering her property. 
 
 (J) Felin. in c. prasterea de testibus. Boerius. deois. 23, num. 46. Thomas- 
 Gram, decis. 106, num. 9 
 
 (c) Johannes Baptista Bayar. in additionibus ad Jul. Clarum, § adulterium,. 
 n. 33, allegens Zasium. Socinum juniorem, Salicetum et alios. 
 
 (d) Thomas Gram, decis. 34, num. 37. 
 
 (e) Bayardus d. § adulterium, num. 85. 
 
86.] OPINIONS OF GROTIUS. 613 
 
 This interdict, when granted by the court and pub- 
 lished, will have the effect that she, Eachel, will not 
 be liable for the subsequent debts contracted by the 
 said Van der Putten. 
 
 20th March 1632." 
 
 The laws on adultery in relation to divorce, as interpreted 
 and applied by the Colonial courts, will be found fully dis- 
 cussed in Van Zijl's Judicial Practice, title " Divorce," and 
 more especially the subdivision "Adultery," pp. 479-494. 
 
 To the numerous cases there mentioned must be added the 
 cases of Chester v. Chester and Graham, decided in the High 
 Court of the Transvaal in 1893 (10 C. L. J. 340), as regards 
 sufficient proof to substantiate the charge of adultery, and 
 Weatherley v. Weatherley (Transvaal, Kotze's Eeps., p. 66), 
 as regards collusion. 
 
 In the former case, the defendant, the wife, was proved 
 to have been intimate with the co-respondent, who was also 
 a friend of the plaintiff. On one occasion when the plaintiff 
 was away from home, the co-respondent came to the house 
 and stayed there during the afternoon. He came again in 
 the evening, and stayed there that night, occupying the bed 
 usually slept in by plaintiff and defendant. Some of de- 
 fendant's underclothing was found next morning, not in the 
 only other bedroom in the house, occupied by a nurse, but 
 in the dining-room ; there was no accurate proof where the 
 defendant slept that night. Under these circumstances, the 
 court granted absolution, on the ground of insufficient proof 
 
 In the case of Weatherley v. Weatherley, the plaintiff, the 
 husband, having determined to sue his wife for a divorce, 
 proposed a marriage between her and the man with whom 
 she had committed adultery, and promised to give her £400 
 at once, and a monthly allowance of £30. The Transvaal 
 court held that this amounted to collusion, for the plaintiff 
 thus encouraged an illicit intercourse and union between the 
 parties, a marriage between the wife and the adulterer being 
 forbidden by Eoman-Dutch law, and the case was dismissed. 
 
OPINION No. 87. 
 
 HOLL. CONS. III. B. 167. 
 [GKOTITJS III. 36, & III. 34, 7.] 
 
 Libel — Person libelled must be Darned — Injury — None where 
 no person is mentioned — Evidence of a relative and party 
 to a fight — Of otherwise reproachable witnesses — Of those 
 testifying to innocence — Aggressor, presumptions as to who 
 is the — Self-defence, presumptions as to — Presumptions only 
 not sufficient for a verdict of guilty. 
 
 1. An accusation of a public libel cannot be 
 upheld if no person is named or specially designated 
 therein, or if it speaks in general. 
 
 2. The delict of publishing a libel presupposes 
 an actual injury sustained by some one by reason 
 thereof. 
 
 3. An injury cannot be inflicted without mention 
 or designation of the person. 
 
 4. A relative of the deceased participating in 
 the fight is not an admissible witness against a 
 third person who is alleged to have committed the 
 murder. 
 
 5. No one can be criminally punished on mere 
 presumptions, (a) 
 
 (a) Where, however, a person is found in possession of stolen property 
 shortly after the theft has been committed, he is presumed to have 
 stolen the same, unless he can reasonably account for his possession 
 thereof.— [Ed.] 
 
 614 
 
No. 87.] OPINIONS OF GROTTOS. 615 
 
 6. Defence in case of need is not punishable 
 according to law. 
 
 7. Minans prsesumitur aggressor. 
 
 8. Qui accedit ad locum alterum exspectans, is 
 aggressor prsesumitur. 
 
 9. Is prsesumitur aggressor, qui creditur fuisse 
 audacior. 
 
 10. Is prsesumitur aggressor, qui melius est 
 armatus. 
 
 11. Strong and violent presumptions, even with- 
 out other witnesses, are sufficient to prove that a 
 certain person was the aggressor. 
 
 12. Defensio necessaria probata ex insultu, non est 
 opus aliis probationibus. 
 
 13. Coarctatio in loco facta, ita ut exire non liceat, 
 probat necessariam defensionem. 
 
 14. A witness — even an otherwise reproachable 
 one — will be believed in matters where no one else 
 was present, especially in favour of the accused ; 
 and all the more so when his deposition bears the 
 stamp of probability and is supported by presumptive 
 evidence. 
 
 15. When the accused has proved his innocence 
 with a larger number of witnesses, the evidence 
 of a smaller number against him will not receive 
 credence. 
 
 16. Testibus duobusnegantibus maleficium, magis 
 credendum est, quam mille affirmantibus. 
 
 I have seen the documents relating to the defence 
 of young Mr. Vincent de Trieux in respect of three 
 
616 OPINIONS OF GEOTIUS. [No. 
 
 crimes with which he has been charged by the 
 Attorney-General of the Court of. Utrecht. These 
 crimes are : — (l).The publication of a libel; (2) the 
 alleged murder of young Mr. Adriaan van Oosterom 
 on the 21st January 1612 ; (3) an assault committed 
 on the person of Drossaart van Culenburg on 15th 
 September 1613. Having been asked to express an 
 opinion on these defences : 
 
 (1) I think, first, as regards the accusation of a 
 public libel, that this is bad in law, for it appears 
 from the said documents that the ballad composed by 
 De Trieux does not mention or designate any one 
 in particular, but refers generally to those who had 
 made certain damaging ballads on him. (2) And 
 the crime of publishing a libel presupposes an injury 
 sustained by some one by means thereof. (3) It is, 
 moreover, accepted law that no injury can be sus- 
 tained unless the person is mentioned and desig- 
 nated. The authority is perfectly clear,(6) Ibi ait 
 jurisconsultus " si incertse personse convicium fiat, 
 nulla executio est." It must further be noted that 
 the afore-mentioned Mr. Adriaan van Oosterom, jun., 
 as well as his father, were of opinion that the said 
 ballad had been so worded by De Trieux that they 
 could not consider it to refer to themselves. 
 
 (4) Secondly, with regard to the alleged murder, 
 it appears sufficiently from the said documents that 
 it is impossible to prove that the said Vincent de 
 Trieux inflicted the wound on the person of the 
 said Adriaan van Oosterom of which he died, since 
 
 (6) D. 47, 10, 15, 9. 
 
87.] OPINIONS OF GEOTIUS. 617 
 
 no one else besides De Trieux and Oosterom were 
 present and witnessed the fight, except young Gert 
 van Rhede and Jan Baarents van Haastenberg. The 
 former had to admit that he participated at first in the 
 fight against De Trieux ; being therefore a party to 
 the quarrel as well as a near relative of the deceased, 
 he is not a qualified witness, and the latter, a servant 
 of the said De Trieux, knows nothing about the 
 infliction of the wound. (5) And even if it is held 
 that such must be inferred (viz., that Oosterom died 
 of the wounds inflicted by De Trieux) from certain 
 presumptions (although no one can be. criminally 
 punished on mere presumptions) (c), the said wounds 
 must in any case be taken to have been inflicted 
 on Van Oosterom by De Trieux in necessary self- 
 defence, which, as is well known, is not punishable 
 in law. (6) And it is, moreover, to be noted that 
 it must be presumed that the said Oosterom and 
 Van Rhede, and not De Trieux, were the aggressors, 
 and that they assaulted him, of which there are 
 several infallible indications. (7) First, it was proved 
 that the said Oosterom and his mother had used 
 threats towards the accused, which were overheard. 
 Minans enim presumitur aggressor, (d) Secondly, it 
 cannot be presumed that De Trieux premeditated an 
 assault on Van Rhede or Oosterom, for when bidden 
 by Oosterom to come to the inn, he excused himself 
 in real earnest, whereas Oosterom, on the contrary, 
 
 (c) Grat. cons. 130 ; Dec. cons. 175 ; Marsil. in rubr. de prob. No. 237. 
 Grand, de males, in tit. de prajs. circa finem. 
 
 (d) Felin. in C. delicti de exept. ; Csepoll. cons. 29, vers. 8 ; Mars. cons. 
 41 ; Gramniat. cons. 29. 
 
•618 OPINIONS OF GEOTIUS. [No. 
 
 proceeded to the inn after having bidden De Trieux 
 to meet him there, and told Van Khede to look 
 him up in the same place. (8) Qui enim accessit 
 ad locum alterum exspectans, is aggressor prsesum- 
 itur ; (e) quam legem ad hoc ipsum citat Carrerius — 
 Pract. Crim. fol. 360, post Ccepoll. in d. cons. 29. 
 Thirdly, De Trieux was alone in the room without 
 help, whereas the others were two together. (9) 
 Prsesumitur enim aggressor is, qui creditur fuisse 
 audacior.(y) Fourthly, the said Van Khede had his 
 gun slung over his shoulder, and Oosterom had his. 
 De Trieux, on the other hand, had not his rapier, 
 but only a poniard, which he was in the habit of 
 carrying about with him. (10) Prsesumitur enim 
 aggressor is, qui melius est armatus.^) 
 
 (11) All these strong and conclusive presumptions 
 taken together are sufficient, without further evi- 
 dence, to prove that the said De Trieux had been 
 attacked by the other two. In addition we have 
 the evidence of the witnesses regarding the words 
 spoken by Van Rhede and Oosterom, clearly indi- 
 cating a previous " complot," and the words of a 
 certain housemaid living in the house of the parents 
 of the deceased. We further have the valuable 
 evidence of the afore-mentioned Jan Barents con- 
 cerning the whole occurrence, and this declaration 
 is worthy of great credit, since immediately after the 
 event, and before he had interviewed De Trieux at 
 
 (e) D. 43, 16, 1, 28. 
 (/) Flor. in D. 9, 1, 1, 11. 
 
 (g) Csepoll. cons. 28, et d. cons. 29 ; Bald. cons. 82, incip. quidam 
 insultatus. 
 
87.] .OPINIONS OF GROTIUS. 619 
 
 all, he gave a similar account of the matter as that 
 contained in his deposition. From all this it is 
 perfectly evident that Van Ehede and Oosterom 
 were the aggressors. It follows from this that 
 everything which De Trieux may have done must 
 be presumed to have been done in necessary self- 
 defence. (12) Ex insultu enim probata est defensio 
 necessaria, ita ut aliis probationibus non sit opus.(^) 
 And this was specially the case here, since it is 
 quite clear, that the door of the room was locked, 
 so that De Trieux could not have escaped even if 
 he had wished. (13) Coarctatio enim in loco facta, 
 ita ut exire non lieeret, probat necessariam defen- 
 sionem.(i) Nor must the several severe wounds 
 sustained by De Trieux be lost sight of.. When all 
 this is added to the deposition of the said Jan 
 Barents, the fact of the afore-mentioned defence is 
 removed beyond all doubt. 
 
 (14) The fact that Jan Barents is the sole witness, 
 and that he may be presumed to bear De Trieux a 
 certain amount of affection, does not conflict with this 
 view ; for it is accepted law that a witness, even if 
 reproachable in other respects, will be believed in 
 matters where no one else was present,^) especially 
 in favour of the accused,(Z) and more so when the 
 occurrence deposed to is likely to have happened, 
 and is supported by strong presumptions, as above 
 
 (k) Bart, in D. 9, 2, 6. Bald, in d. § cum arietes, et in 1, 2, 0. de sio ; 
 Jas. in D. 1, 1, 3. 
 
 (•£) Csepoll. d. cops. 29 ; Mart. sing. 692 ; Florian in D. 9, 2, 29, 2. 
 (1c) Dec. cons. 342, num. 8. Clarus, Pract. crim. quaest. 24, num. 19. 
 (I) Gomes, c. 12, delictorum, num. 23. 
 
«20 OPINIONS OF GEOTIUS. [No. 
 
 set forth. Testi enim alioquin inhabili creditur, si 
 testimonium ejus adjuvetur alus indiciis aut prse- 
 sumptionibus.(m) 
 
 (15) With, reference to the third point, the said 
 De Trieux has proved his innocence by seven corro- 
 borating witnesses, and a lesser number giving evi- 
 dence against him cannot be believed in preference. 
 (16) Cum testibus etiam duobus negantibus male- 
 ficium, magis credatur, quam mille adfirmantibus.(n) 
 
 For the reasons here stated, and for others advanced 
 during previous consultations on this case, I am of 
 opinion that the said De Trieux has a good defence, 
 and is not guilty of the delicts with which he is 
 charged, and certainly not of those which are criminally 
 punishable. He is also entitled to appear before the 
 Court of Utrecht, should the case pend much longer, 
 and, having summarily proved his innocence, to 
 claim that he be released, under security, from fur- 
 ther appearance in person, and be allowed to appear 
 by agent on giving proper verbal or other security 
 (handtasting), per ea, qua? tractant(o) 
 
 The Attorney-General of the Court of Utrecht, in 
 his official capacity, after he had seen the documents 
 relating to De Trieux, ought not to neglect to have 
 Van Rhede summoned in person and detained. 
 
 Thus advised at Rotterdam, 
 1th February 1616. 
 
 (m) Thorn. Gram, deois. 34, No. 35 ; Sooin. cons. 54, 3. Cacialup. in D. 
 12, 2, 31. 
 
 (m) Mart. Gl. in C. Clerioi, 85 dist. Lud. in D. 45, 1, 8. Lud. Carr. 
 tract, crim. 367. 
 
 (o) Dd. in D. 48, 3, 1. 
 
87.] OPINIONS OF GEOTIUS. 621 
 
 AD SECTS. 1, 2, 3. 
 
 The term " injuria " in Eoman jurisprudence embraced 
 also libel and slander or defamation, although the latter is 
 sometimes specially referred to as " famosus libellus." No 
 distinction was made between libel and slander.(j?) The 
 Roman-Dutch jurisprudence, founded on the Eoman law, 
 follows the same principles.^) 
 
 The law of criminal libel is regulated in the Cape 
 Colony by Acts 46 of 1882 and 29 of 1886. 
 
 Recent legislation in the South African Republic on- 
 this subject will be found in the local laws, No. 11 of 1893. 
 
 AD SECTS. 14, 15, 16. 
 
 Consult also § 20 of Grotius, Opinion No. I., where he 
 states the reason why two witnesses were required, in his 
 time, to prove the commission of a crime. " Bona fama rei 
 tantundem valet, quantum testis unus neque vinci potest,. 
 nisi majore numero." 
 
 (p) Just. Inst. 4, 4. Digest 47, 10. Code, 9, 35. 
 
 (a) Grotius, 3, 36. Schorer ad ib. Van Leeuwen, K. H. K. 4, 37. Voet 
 Pand. 47, 10. In connection with this subject consult " A Few Notes on> 
 Defamation " in Cape Law Journal, vol. ix. p. 150. 
 
OPINION No. 88. 
 
 HOLL. CONS. III. B. 199. 
 [GROTITJS III. 45.] 
 
 Bills of exchange 1 — Payment — Protest. 
 
 1. When the amount for which a bill of exchange 
 has been passed is paid, the bill loses all legal force. 
 
 2. The holder of a bill of exchange, whether he 
 holds it as principal or as agent for another, must 
 within three days draw up a protest of non-accept- 
 ance, should such acceptance have been refused, and 
 must send the same to the drawer of the bill ; and in 
 default thereof he will lose his recourse against such 
 drawer. 
 
 3. Nemo plus juris in alium transferre potest, 
 quam ipse habet. 
 
 (1) I am of opinion that the bill of exchange 
 referred to gives no right of action, since he has 
 been fully paid the amount for which the bill was 
 drawn, whereby the said bill has lost all legal value. 
 (2) And it is a well-known practice that the holder 
 of a bill of exchange, whether he holds it for him- 
 self or as agent for another, must within three days 
 draw up a protest of non-acceptance should such 
 
No. 88.] OPINION'S OF GROTIUS. 623 
 
 acceptance have been refused, and must send the 
 said protest together with the bill to the drawer 
 thereof; and in default thereof he loses his recourse 
 against such drawer. Now since, in the present case, 
 this has not been done by the factors referred to 
 after the refusal by Daam, N.N., it follows that 
 neither they nor the guardian appointed by them are 
 entitled to any rights arising from the said bill. 
 Further, since the said factors were not entitled to 
 any rights arising from the bill, they could not 
 transfer any rights to the said guardian, even if they 
 had wished it : (3) cum nemo plus juris in alium 
 transferre potest, quam ipse habeat. 
 
 Amsterdam, 
 
 2nd April 1632. 
 
 PRESENTING AND PROTESTING- OF BILLS AND NOTES. 
 
 The Koman-Dutch authorities on this subject are : — 
 
 Grotius, 3, 12, 13 ; 3, 13 ; 3, 45. 
 
 Van Leeuwen, R. H. R. 4, 27. 
 
 Schorer ad Grot., supra. 
 
 Van der Keessel, Thes. 574-628, 838-873. 
 
 Van der Linden, B. 4, c. 7. 
 
 Asser-Wisselrecht, and the writers quoted by them. 
 
 And in connection with these, Pothier on Bills of Exchange. 
 
 In the case of bills of exchange, notice of dishonour by- 
 non-acceptance or non-payment must be given to the in- 
 terested parties, for there is a legal presumption that the 
 drawer is injured if no such notice is given at the proper 
 time, for he might have withdrawn his effects from the 
 hands of the drawee or otherwise secured himself; and as 
 
624: OPINIONS OF GROTIU8. [No. 
 
 regards the indorser, that the want of timely notice imperils 
 his remedies at law and renders them more precarious. 
 Consequently, neglect to give timely notice discharges the 
 interested party from all liability. 
 
 A drawer is not considered interested when the drawee 
 is not indebted to him, or when he has no effects in the 
 hands of the drawee, and protest or notice then becomes 
 unnecessary.(a) 
 
 A preliminary step to a "protest" is the noting of the 
 bill ; it is unknown in law, as distinguished from the 
 protest.(J) 
 
 By " noting " is meant the minute made by a notary 
 public on a dishonoured bill at the time of its dishonour. 
 It consists of the notary's initials, the month, day, and year, 
 and his charges. A ticket or label is also attached to the 
 bill, on which is written the answer given to him who pre- 
 sents the bill, e.g., "no orders," "no funds." (c) 
 
 The formal notarial certificate or protest is based upon 
 the noting. This is a solemn declaration by the notary 
 under a fair copy of the bill, stating that payment or 
 acceptance has been demanded and refused, and the reason, 
 if any, assigned.(c) 
 
 A bill or note may be presented and noted by the 
 notary's clerk, but the duty of giving notice of dishonour 
 of a bill or note is one which the notary has no power to 
 delegate, (d) 
 
 The entries by a notary's clerk, since deceased, will be 
 admitted as evidence to prove notice of dishonour, (e) 
 
 There must have been due negotiations, omni erant rite et 
 solemniter acta, in order to render the drawer and indorsers 
 liable, and there must be presentment for acceptance or sight, 
 and for payment. These facts must be set out in a summons 
 
 (a) Van der Keessel, Thes. 858. 
 
 (5) Per Buller, J., in Leftley v. Mills, i T. B. 170. 
 
 (c) Chalmers on Bills of Exchange, Notes, and Cheques, p. 160, and Byles 
 on Bills (Protest and Noting). See also W. de Gelder, Formulier — Boek voor 
 Notarissen, pp. 340-346. 
 
 (d) Wilken v. Ritchie, 4 S. 78. 
 
 (e) Blackburn v. Webb, 3 S. 35. 
 
88.] OPINIONS OF GROTIUS. 625 
 
 for provisional sentence.(/) Presentment three days after 
 due date is not " due negotiation."^) In the Colony there 
 are no days of grace.(^) 
 
 When the estate of the interested party is under seques- 
 tration at the due date of the bill or note, notice may be 
 given to his assignee or other legal representative.(A) 
 
 In order to bind the indorser, presentment must be made 
 on the due date of a promissory note.(i) If the note is 
 presented for payment after due date, and the answer given 
 was simply " no funds," the indorsers will be discharged 
 from liability, for the law provides certain safeguards 
 for the protection of the indorser, who in some respects 
 is treated as a surety ; and one of these safeguards is, that 
 on the date the note falls due, presentment should be made, 
 or some statement to the effect that on tbat day there were 
 no funds.(A) 
 
 If the indorser is a notary public, and he protests the 
 bill or note for non-payment in his capacity as notary, the 
 summons must allege that notice had been given to himself 
 as indorser. (I) 
 
 A letter of demand to pay the note is not due negotiation, 
 and does not constitute proper presentment. (m) 
 
 After dishonour by the drawer, the note may be protested 
 on the very day it is due.(n) 
 
 In Ziervogel v. Bekker (2 S. 139), provisional sentence was 
 granted on a promissory note payable at sight, subject to 
 proof of presentment given to the Eegistrar of the Court. 
 
 (/) Norton v. Speck and Another, 1 Menz. 65. Philips & King v. 
 Ridwood, 1 Menz. 66 ; and compare Rens v. Van der Poel and Another, - 
 
 1 Menz. 122. 
 
 (g) Randall's Trustees v. Haupt, 1 Menz. 79. See also Cruywagen v. 
 Oliviera & Van Hellings, 2 Menz. 268. 
 
 (K) Ross v. Matthews, 3 G. 278. 
 
 (i) Twentyman & Warner v. Norden, 2 M. 285. 
 
 (A) "Wethmar v. Lombard, 2 J. 13, and judgment of the Chief-Justice 
 Et vide Meeser v. Combrinck & Albertyn, 2 S. 110. 
 
 {I) Oriental Bank Corporation v. Shaw and Others, 1 B. D. C. 141. 
 
 (m) Hay v. Codrington & McMaster, 2 Menz. 301. Steytler r. De Villiers 
 
 2 Menz. 300. 
 
 (re) Eston v. Hitzeroth & Leewner, 1 Menz. 569. 
 
 2 R 
 
626 OPINIONS OF GROTIUS. [No. 
 
 A note for the accommodation of the indorser need not 
 be protested to such indorser for non-payment by the 
 maker, (o) 
 
 Likewise, if a note is endorsed by a party merely as 
 surety or aval, formal notice of presentment and dishonour 
 is unnecessary, (p) 
 
 The mere fact that the drawer of a bill has made part 
 payment on account thereof does not give rise to the 
 presumption that the bill is an accommodation bill. In 
 the absence of proof to the contrary, such payments 
 must be presumed to have been made in relief of the 
 acceptor.^) 
 
 If a note is made payable at a particular place, it must be 
 presented at that place for payment, (r) If it is not payable 
 at any particular place,(s) or if the description is vague,(£) 
 the note must be presented to the interested party personally 
 or at his residence or business place for payment, and a 
 notarial protest becomes unnecessary. (u) 
 
 If a particular place of payment is merely designated in 
 the margin, and not in the body of the note, a notarial 
 protest is likewise not required, (v) 
 
 If a note is made payable at a particular place on a 
 particular day, it is unnecessary to present it at such place 
 after the due date, for the debtor is neither under any obliga- 
 tion to have, nor is there any legal presumption that he 
 will have, funds at that place after that date. (a;) 
 
 The foreign acceptor of a foreign bill of exchange will 
 be bound by the law of the place where the bill was drawn, 
 and if presentment at a particular place becomes unnecessary 
 under that law under certain circumstances, he cannot claim 
 
 (o) Discount Bank v. Heirs of Crous. 
 
 (p) Hjul Brothers v. Lyons, 1 G. 164. 
 
 (q) Tier v. Tonkin, 1 S. 140. 
 
 (r) Verwey v. Hannay Brothers & Dell, 2 S. 270. 
 
 (s) Steytler v. De Villiers, 2 Menz. 30Q. 
 
 (2) Verwey v. O'Reilly, 2 S. 190. 
 
 (m) Twentyman & Warner v. Norden. Schaffner v. Mytrargh, 1876, 14. 
 
 (v) Hodgson & Co. v. Nefdt, 1876, 163. 
 
 (x) Beukes *, Van Wijk, 2 Menz. 296. 
 
88.] OPINIONS OF GKOTIUS. 627 
 
 the right of notice because the payee resides in a country 
 where such notice is essential, (y) 
 
 Payment of a promissory note can be demanded at any 
 time after due date within the period of prescription.^) 
 
 If presentment is not made before summons, and the 
 party liable at once tenders the amount of the note, he will 
 not be liable for the costs of summons ; (a) not so, however, 
 when he only tenders the amount in court on the day of 
 hearing, (b) 
 
 Presentment after summons is only necessary when, on 
 the receipt of the summons, the defendant alleged that he 
 had funds on that date.(c) 
 
 (y) Twentyman & Co. v. Butler, 1874, 156. 
 
 (s) Beitz v. Kock, 1 Menz. 38. Watermeyer i>. Denyssen, 1 Menz. 26. 
 (a) Brink v. Gough, 2 Menz. 270. Orlandini v. Pope, 2 Menz. 274. 
 (6) Redelinghuys v. Theunissen, 2 Menz. 272. Steytler v. De Villiers 
 2 Menz. 300. 
 
 (c) Villiers v. De Kock, 2 Menz. 299. 
 
OPINION No. 89. 
 
 HOLL. CONS. III. B. 304. 
 [GROTITJS 3, 48, 5 & 9, & 3, 52.] 
 
 Minors — Relief — Lcesio enormis — Fraud. 
 
 1. Minors can obtain relief in respect of all trans- 
 actions, negotiations, and sales whereby they have 
 sustained a loss. 
 
 2. Majors can obtain relief in respect of all trans- 
 actions and sales whereby they have sustained a great 
 and serious loss, and, irrespective of such loss, all 
 transactions can be rescinded which have been 
 brought about by withholding or doing away with 
 some documents. 
 
 I have seen a certain deed entered into on the 4th 
 of January 1575, whereby Klaas Leenderts enters 
 into a purchase of the estate (uitkoop) of his three chil- 
 dren, Leentge, Jan, and Adriaantge, begotten in mar- 
 riage with Grietje Jans, and also a deed of the 3rd of 
 May 1592, whereby the said Klaas Leenderts makes 
 a certain division of land, as against Pieter Engel- 
 brechts, who had married the afore-mentioned 
 Leentge, and also a deed of the same date whereby 
 the said Leenderts enters into a further purchase of 
 
89.] OPINIONS OF GROTIUS. 629 
 
 the estate (uitkoop), as against the afore-mentioned 
 Jan, his son, to be approved of by the uncle of the 
 said Jan as guardian and relation, and by the Schout 
 as supreme guardian. By this last deed it was 
 stipulated that the said Jan Klaas, in lieu of the 
 inheritance to which he had become entitled at the 
 death of his mother, Grietje Jans aforesaid, and his 
 sister Adriaantge Klaas, and which he resigned in 
 favour of his father, should be supplied with food, 
 drink, and clothing by his father, and upon the 
 father's death that Leentge Klaas, his sister, or 
 Pieter Engelbrechts, her husband, should receive 
 him, the said Jan Klaas, into their house and supply 
 him with the necessaries of life, as before ; in con- 
 sideration whereof they were to have the usufruct 
 of certain 700 Carolus guldens, which the said Klaas 
 Leenderts had promised to the afore-mentioneed Jan 
 out of his mother's estate. Pieter Engelbrechts by 
 the document afore-mentioned accepted the mainten- 
 ance during his or his wife's lifetime, the said 700 
 guldens to be paid in four yearly instalments by the 
 heirs. I have also seen the copy of a certain deed 
 entered into on the 18th of October 1615, between 
 Maritge Jans, widow of Klaas Leenderts aforesaid, 
 Pieter Engelbrechts, in his capacity as afore-men- 
 tioned, and the children of the said Klaas Leenderts 
 and Maritge Jans, whereby it was stipulated that the 
 said Jan Klaas, who was stated to be an idiot, should 
 at once receive the 700 gulden which was to have 
 been paid to him in four equal instalments accord- 
 ing to the agreement of 18th of October 1615, and 
 
630 OPINIONS OF GROTIUS. [No. 
 
 should receive in addition 750 gulden out of the 
 estate, payable in three instalments, together with 
 the woollen and linen clothing of his father, and 
 also a bed ; under condition that if the said Jan 
 Klaas could not be maintained as herein afore- 
 mentioned, the half of such deficiency should be 
 borne by the said Pieter Engelbrechts, and the other 
 half by him and the said children, seven in number. 
 I have also been instructed that at the time of 
 the passing of the last deed (1615) the children 
 afore-mentioned were kept in ignorance by Pieter 
 Engelbrechts of the original deed of uitkoop entered 
 into with Jan Klaas or his guardian in 1592, nor 
 had they ever seen it, although the last deed refers 
 to a certain extent to the former. I have been asked 
 whether the said children, among whom there are 
 some minors, are entitled to relief as against the said 
 last deed, and whether they can legally compel the 
 said Pieter Engelbrechts to carry out his agreement 
 of 1592. 
 
 (1)1 am of opinion that, according to law, minors 
 are entitled to relief in respect of all transactions, 
 negotiations, and sales whereby they have sustained 
 any loss,(a) and that also the majors, according to the 
 general opinion of lawyers, as confirmed by practice, 
 are entitled to relief in respect of all transactions 
 and sales whereby they have sustained a great and 
 serious loss, (2) and that, irrespective of such loss, all 
 transactions can be rescinded which have been brought 
 
 (a) C. 2, 32, 1 and 2. 
 
89.] OPINIONS OF GROTIUS. 631 
 
 about by withholding or doing away with certain docu- 
 ments.^) For this reason the said children are quite 
 justified to claim relief in respect of the last deed of 
 uiikoop, provided that the said Jan Klaas sustained 
 no loss by the deed of uiikoop of 1592, and that the 
 said children allowed him one-ninth portion of his 
 father's estate in addition to the 700 gulden which 
 was to be paid in four instalments, in which case the 
 said Pieter Engelbrechts and his wife will be bound 
 to maintain the said Jan Klaas during their lives in 
 consideration of the usufruct of the 700 gulden. 
 
 Rotterdam, 
 
 11th August 1616. 
 
 L.ESIO EXORMIS — RELIEF. 
 
 Relief is afforded by the court on equitable grounds. 
 Sometimes it is granted by way of amendment in case of 
 omissions, e.g., where certain formalities have not been 
 complied with, as in ante-nuptial contracts (see page 142), 
 or where documents have been erroneously executed, as in 
 diagrams (see page 449). 
 
 Restitutio in integrum is granted on the grounds of 
 fear, fraud, or mistake, (c) 
 
 The fear must be great, and the court will require very 
 clear proof of its existence, and that it was the direct cause 
 in forcing the party seeking relief into the contract, before 
 it will comply with the request- 
 Fraud cancels all contracts. 
 Mistake, like fraud, is an extensive term. 
 It includes any error of fact as well as implied ignorantia 
 
 (6) C. 2, 4, 29. 
 
 (c) Van der Linden, 1, 18, 10. 
 
632 OPINIONS OF GEOTIUS. - [No. 
 
 facti, on the grounds of absence, minority, idiocy,(<2) an ^ 
 drunkenness,(e) and also presumptive error in the case of 
 Icesio enormis.(f) 
 
 Belief on the ground of Icesio enormis was not granted 
 in the case of — 
 
 (1.) Public sales. (g) 
 
 (2.) Sales in execution, (h) 
 
 (3.) Sales in terms of a last will. (A) 
 
 (4.) Sales accompanied by an intention to make a 
 donation. (A) 
 
 (5.) In mercantile speculative contracts.(i) 
 
 (6.) Sales of a "hope," e.g., a season's orange crop, a 
 day's fishing. (k) 
 
 See also Morkel v. Morkel (0. F. S., April 27, 1880), where 
 relief in case of the sale of doubtful rights is discussed. 
 
 Enormous loss is, speaking generally, considered to be 
 damage sustained to the extent of one-half of the value 
 of the property in question. 
 
 Thus where A. bought a property for less than one- 
 half of its real value, and it was proved that the vendor was 
 of infirm mind, the court granted relief both on the ground 
 of Icesio enormis and idiocy. (I) Likewise where a ring had 
 been sold for £45, and it was proved that the fair market- 
 able value thereof was only £20, the court, in an action by 
 the vendor for the payment of the full purchase-price, gave 
 judgment in favour of the vendee.(m). 
 
 By the General Law Amendment Act of 1879, relief on 
 the ground of Icesio enormis was abolished, the reason being 
 that it was in conflict with free commerce, ample relief being 
 afforded by the common law in cases of fraud or mistake. 
 
 {d) Broekman — Executor of Durr v. Eens, 3 Menz. 365. 
 
 (e) Konitsky v. Freeman (S. A. K. ), 1892. 
 
 (/) Grotius, 3, 48, and 52. Voet, 18, 5, 3 ; 2 Burge on Colonial and Foreign 
 Laws, 473. Van Leeuwen, 4, 20, 5. Sohorer ad Grot. 3, 52, 1. Van der 
 Keessel, Thes. 896-901. 
 
 (g) Van Leeuwen, supra. (h) Grotius, 3, 52, 2. 
 
 (i) Voet, 18, 5, 15. (£) Schorer ad Grot. 3, 52, 1. 
 
 ({) Broekman — Executor of Durr v. Eens, 3 Mens. 365. 
 
 (m) Levisohn v. Williams, Buc. 1875, 108. 
 
89.] OPINIONS OF GROTIUS. 633 
 
 VENIA ^BTATIS. 
 
 In order to be liberated from the disabilities attaching to 
 minority, relief is granted to minors who can give satis- 
 factory proof of competency to manage their own affairs. 
 This relief, which is known as Venia cetatis, is granted by 
 the Government (see In re Barrett, Staats Courant, S. A. E., 
 Feb. 1894), and not by the Courts (Ex parte Botha, 10 0. 
 L. J. p. 174). 
 
INDEX. 
 
 A. 
 
 Aasdoms law, 149, 354. 
 Abeogation, 
 
 of privileges, 108. 
 
 of Common Law by Statute, 3S2. 
 Absence, 
 
 relief, 631. 
 
 prolonged, of spouse, 45. 
 
 of trustees, 146. 
 ACCUNS, 137. 
 Accoed, verbal, 531. 
 ACCBETION, see JUS ACCBESCENDI. 
 
 Acquittance of debts not absolute proof of payment, 540. 
 Act, 
 
 12 of 1856, 53, 367. 
 
 16 of 1860, 368. 
 5 of 1861, 471. 
 
 5 of 1864, 390. 
 11 of 1868, 244. 
 Bankruptcy, 1869, 105. 
 3 of 1871 (S. A. R.), 84. 
 23 of 1873, 185. 
 
 26 of 1873, 51, 225. 
 
 23 of 1874, 206, 224, 244. 
 
 21 of 1875, 142, 152. 
 
 22 of 1876, 188. 
 22 of 1877, 119. 
 3 of 1878, 187. 
 46 of 1882, 621. 
 38 of 1884, 504. 
 
 17 of 1886, 504. 
 29 of 1886, 621. 
 
 6 of 1892 (S. A. R.), 120. 
 Actes Heeeditaiebs, 197. 
 Actio, 
 
 ad id quod interest, 567, 569. 
 astimatoria, 567, 569. 
 condictio furtiva, 470. 
 damni injuria, 470. 
 
636 INDEX. 
 
 Actio — continued. 
 
 de rationibus distrahendis, 470. 
 
 hypothecaria, 413. 
 
 Puuliana, 503. 
 
 fietitia, 503. 
 
 quanti minoris, 567, 569. 
 
 redhibitoria, 567, 569. 
 
 revocatoria, 477, 481. 
 
 tutelce directa, 470. 
 utilis, 470. 
 Actions, 
 
 vindicatory, by wife, 146, 147. 
 by heirs, 221-222. 
 
 by and against married women, 146-147. 
 Acts, when void, 2, 3, 6. 
 Addictio Bonorum, 169. 
 ADIATION, see WILLS. 
 Administrators, agency, 540-541. 
 Admiral, Lord, rights of the, 107. 
 Adoption, 169. 
 Adultery, 
 
 punishment of, 13-15, 45-46, 153. 
 
 forfeiture of benefits, 45, 46, 153. 
 
 proof of, 610. 
 
 confession of, 610. 
 Advertisements, sale, warranty, 568. 
 Advice, fraudulent, 300-302. 
 Agency — see also Agent. 
 
 Note on, 546-552. 
 
 a contract ex consensu, 546. 
 
 remuneration, 546, 552. 
 
 Express, 
 
 general, 547. 
 special, 547. 
 
 Implied, 547. 
 
 negotiorium gestor, 547. 
 
 delegation and substitution, 547. 
 
 procurator in rem suam, 548. 
 
 extinction of, 548. 
 
 ultra vires, 548, 552. 
 
 promissory note signed, pp., 548. 
 
 locus standi of agent, 548-549. 
 
 civil procedure, summons, 549. 
 
 no profit to be made by Agent to the detriment of his Principal, 549. 
 
 good faith, 549. 
 
 ratification, 549. 
 
 liability of principal, 550, 552. 
 
 co-principals, 550. 
 
 insurance, 550-552, 594, 600. 
 
 " course of business," 550. 
 
IJNUKX. C37 
 
 Agent, 
 
 reasonable care, 300-303. 
 
 compliance with instructions, 540. 
 
 presumption as to who is, 536, 579. 
 
 liability of, 300, 536, 539, 540, 551-552. 
 
 fraud, 536, 540. 
 
 culpa, 536, 540. 
 
 lending out principal's money, 541. 
 
 duties of, 300, 536, 540-541, 546-552. 
 
 delegation, 547. 
 
 locus standi in judicio, 548. 
 
 service of summons, 548. 
 
 purchasing Principal's goods, 549. 
 
 transfer in name of, 549. 
 
 disabilities of Principal attach to Agent, 550. 
 
 liability of Principal, 550, 552. I 
 
 co-principals, 550. £ , 
 
 duties of, summarised, 652. 
 
 principal summarised, 552. 
 beneficial management, 579. 
 Agreements, interpretation, 516-519, 553-556. 
 Akte, 
 
 van Opening, 181. 
 Superscriptie, 181. 
 Alienation, 
 
 before delivery, 2, 5. 
 naturaliter, 2, 5. 
 right of, death, 2, 5. 
 conditional, 5. 
 by husband, see Husband. 
 by fiduciary and usufructuary heirs, 220-224. 
 
 prohibition of, does not prevent imposition of a servitude, 413-415. 
 Alimentation, 242, 243. 
 Ambassadors, 
 
 jurisdiction over, 2, 5. 
 domicile of, 71, 72. 
 Anastasiana Lex, 578. 
 Anatocismus, 514. 
 Annus Luctus, 21. 
 Antenuptial Contracts, 
 election by wife, 27, 28. 
 can vary liability of spouses, 32. 
 stipulations in, 36, 38, 144. 
 excluding certain property, 37, 40, 144, 248. 
 interpretation of, 37, 38, 148, 155-161. 
 change of domicile, 87-90, 153. 
 community of property, 138, 144, 148. 
 foreign property, 138. 
 defined, 141. 
 uses of, 141. 
 
638 INDEX. 
 
 Antenuptial Contracts— continued. 
 
 execution of, 142-144. 
 
 registration of, 142-143. 
 
 revocation of, 144-145, 154-155. 
 
 trustees, 144-146, 149. 
 
 pacta successoria, 145, 148, 154, 161. 
 
 election of law, 149, 396-399, 583. 
 
 inventory, 145. 
 
 sole administration by husband, 146. 
 
 marital power, 139, 146-148. 
 
 vindicatory action by wife, 146. 
 
 " assistance " of husband in civil suits, 146, 147. 
 
 service of summons on wife, 147. 
 
 donations stante matrimonio, 147. 
 
 dowry, dos, 147-148. 
 
 favoured transactions, 148. 
 
 fruits of excluded property, 148. 
 
 profits and loss, 148. 
 
 liability of wife, 149-150. 
 
 execution against property of wife, 149, 150, 464, 582. 
 
 tacit hypothec of wife, 149-150. 
 
 insolvency of husband, 150, 152. 
 
 when impeachable, 152. 
 
 contingent claims, 153. 
 
 divorce, forfeiture of benefits, 45-46, 153. 
 Antichresis Pactum, 516-519. 
 Appelaar, drainage of the, 136. 
 Arbitration, 530-535. 
 
 award must be final, 530, 534. 
 
 partial award, 530. 
 
 evidence, 530, 535. 
 
 umpire, 533, 535. 
 
 refusal of arbitrator to proceed, 533. 
 
 time and place of meeting, 533. 
 
 suspicious award, 534. 
 
 revocation of deed of submission, 534. 
 ARREST, ad fundandum jurisdictionem, 87, 102. 
 Assault, 614-621. 
 
 presumptions of, 615. 
 Attachment, 
 
 pignus prostoriwm, 482. 
 
 delivery, 486-489. 
 AUTHENTICA si qua mulier, 46-50. 
 Aval, 626. 
 Average, 601. 
 
 B. 
 
 Bad, what is naturally, contrasted with what is morally good, 
 
 402, 409. 
 Bank-Notes, transfer of, 483. 
 
INDEX. 639 
 
 Bankruptcy, see Insolvency. 
 Banns, publication of, 25, 368. 
 Baealong marriage case, 86. 
 Bastaeds, inheritance, see Succession. 
 Bays, jurisdictional waters, 133. 
 Beneficial, 
 
 laws, 108. 
 
 management presumes agency, 579. 
 Beneficium, 
 
 authentica si qua mulier, 46-50. 
 
 S. VeUianum, 46-50. 
 Benefits, see Beneficium. 
 
 of inventory, 199. 
 Bequests, constructive delivery of, 493. 
 Bill of Lading, cession, 494. 
 Bills of Exchange, 622-626. 
 
 payment, 622. 
 
 protest, 622-627. 
 
 transfer of, 622. 
 
 presentation, 623-627. 
 
 who "interested parties," 623-624. 
 
 noting, 624-625. 
 
 " due negotiation," 624-625. 
 
 summons, 624-625. 
 
 "aval," 626. 
 Blading, burdens, 284, 286. 
 Blind Peesons, wills of, 173. 
 Boedelhoudee, 51, 224, 466. 
 Boedelscheyding, 53. 
 
 see TJitkoop. 
 
 BONOEUM, 
 
 addictio, 169. 
 
 venditio, 169. 
 Building Lots, sale of, servitude, 425-429. 
 
 BUEDENS OVEE PEOPEETY, 562. 
 
 Business, usual course of, 510-511. 
 
 Causa and Consideeation, 390. 
 
 justa, 390, 484. 
 
 lucrativa, 484. 
 
 onerosa, 484. 
 Caveat Emptor, 566-567. 
 Cessio, 483. 
 Cession, 
 
 of action, 492, 578. 
 
 of real rights, 493. 
 
640 INDEX. 
 
 Cession — continued. 
 
 of negotiable instruments, 494. 
 
 of shares, &c. , 494. 
 Character, 
 
 of accused, 3, 7, 624. 
 
 good, of notary in executing wills, 3, 7, 8. 
 Charitable Institutions, succession, 175. 
 Charter of Dutch East India Co., 1661 a.d., 363, 370. 
 Chens, 137. 
 Cheyns, 137. 
 Chijns, 137. 
 Children, 
 
 custody of, 46. 
 
 curator ad litem, 46. 
 
 domicile, 65. 
 
 succession, antenuptial contracts, 145, 161-164. 
 
 who are, under a will, 210-211. 
 
 education, 211-212. 
 
 donations, 386. 
 Choice of law, 149, 396-399, 583. 
 Cijs-Cijns, 137. 
 
 ClJNZEN EN TlJNZEN, 137. 
 
 Citizenship, acquisition of, 325. 
 
 Civil Action not barred by prosecution, 604. 
 
 Civil Law as opposed to Jus Gentium, 60. 
 
 Civiliter Modo, exercise of rights, 430. 
 
 Claim-holders, lateral support, 454-455. 
 
 Clausula, 
 
 cassatoria, see WILLS. 
 
 codicillaris, „ 
 
 derogativa, „ 
 
 (jencralis, „ 
 
 reservatoria, „ 
 Clothes, legacy of, 232, 317-318. 
 
 CODICILLART CLAUSE, see WILLS. 
 
 Codicils, 
 
 formalities under Jus Gentium, 3, 8, 200. 
 
 vide Wills. 
 Coin, transfer of dominium, 483. 
 Coinage, fluctuation in value of, 512-513. 
 Collation, vide Wills. 
 Collusion, 
 
 divorce, 46. 
 
 vide Insolvency. 
 Commissions, frequent, of prohibited acts, no plea, 528. 
 
 COMMODATUM, 483. 
 
 usury, 527-528. 
 Commotio Bonorum, vide Community op Property. 
 
 QU.33STUUM, vide Community op Property. 
 Community of debts, 298-299. 
 
INDEX. 641 
 
 Community of profit and loss, 148. 
 
 Community of Property, 41-43, 87-90. 
 
 kinds of, 41-42. 
 
 minors marrying without consent, 20-21. 
 
 under antenuptial contracts, 37, 40, 138, 144, 148. 
 
 non-Christian marriages, 43. 
 
 domicile, 87-90, 138-139. 
 
 marital power, 27, 28, 43, 90, 138, 139, 146-148. 
 Compensation, 
 
 arbitrio boni viri, 210, 266, 268. 
 
 feudal succession, 377-383. 
 Concubsus Creditorum, 101-103. 
 Conditions, 
 
 resolutive, 484. 
 
 suspensive, 484, 487. 
 Consent, how inferred, 300-302. 
 Construction of wills, laws, &c. 
 
 see Interpretation. 
 Consuls, domicile, 71, 72. 
 Contraband, 594. 
 Contracts, 
 
 verbis, litteris, consensu, 482. 
 
 when void, 2, 3, 6. 
 
 void testaments are void as, 250-252. 
 
 between spouses, 388. 
 
 feigned, interpretation of, 516-519, 553-556. 
 
 vitiated by fraud, 628, 631. 
 
 by wife, 30, 44. , 
 
 and status, 73. 
 
 foreign domicile, 72, 95-97. 
 operation of, 95-97. 
 jurisdiction, 95-97. 
 Copyright, 125. 
 
 see Trade Marks. 
 Costs of prosecution preferent, 608. 
 Course of Business, 510, 511, 550. 
 
 Crimes, 
 
 jurisdiction, 97. 
 
 extinction, 604. 
 
 punishment of, in public interest, 608. 
 
 presumptive evidence, 614. 
 Cubatob, 
 
 ad litem in divorce cases, 46. 
 
 of lunatic husband, 45. 
 Customs, 351-354. 
 
 interpretation of, 400-410. 
 
 dues, permits, 522, 523. 
 
642 INDEX. 
 
 D. 
 
 Damages, 
 
 action for, not barred by prosecution, 604. 
 
 retention of property for, 605. 
 Deaf persons, wills of, 175. 
 Death extinguishes crimes, 604. 
 Debtok, transactions vnfraudem creditorum, 414-416. 
 Debts, 
 
 and obligations, a third kind of property, 293-296. 
 
 liability of spouses, 30-35. 
 
 payment of deceased persons', 300, 301. 
 Deed of deliberation, 196-199. 
 Delegation, agency, 547. 
 Delicts, 
 
 extinguished by death, 605. 
 when not, 605. 
 
 punishment of, is in public interest, 608. 
 Delivery, 
 
 alienation naturaliter before, 2, 5. 
 
 colourable and collusive, 475-481, 484. 
 
 meubele heefi geen vervoLg, 476, 479. 
 
 precario, 476, 478, 487. 
 
 pledge, 476, 478, 482, 494-495. 
 
 Note on, 482-496. 
 
 essential in contracts made re, 482. 
 
 acquisition of ownership, 483. 
 
 res incorporates, 483. 
 
 real rights, 483, 501, 503. 
 
 rights of transferee, 483-484. 
 
 transfer by owner, 483-484. 
 
 intention to transfer, 484. 
 
 causa, consideration, 484. 
 
 vitiated by fraud, 484. 
 
 resolutive condition, 484, 487. 
 
 suspensive condition, 484. 
 
 physical control, 484. 
 
 denned, 485. 
 
 kinds of, 485. 
 
 Actual or real, 485, 489. 
 when void, 486, 489. 
 
 Constructive, 485, 489-494. 
 
 (a.) Brevis manus, 485, 487, 489-492. 
 
 1. Ordinary, 489. 
 
 2. Constitutum possessorium, 485, 491. 
 
 3. Upon insolvency and by will, 492. 
 (b.) Symbolic, 492-494. 
 
 1. Ordinary, 492. 
 
 2. Cession of action, 492-493. 
 
 3. By title-deeds, 493. 
 (c.) Longce manus, 494. 
 
INDEX. 643 
 
 Delivery — continued. 
 
 transfer and registration, 495-496. 
 " reasonable time," 564-566. 
 Depositum, 483. 
 Detention, 
 
 wrongful, ejectment, damages, 523. 
 
 punishment, 523. 
 Diagrams, errors in, 448, 449, 560. 
 Diking of marsh lands, 136-137. 
 Divorce, 
 
 forfeiture of benefits, 45, 46, 153. 
 custody of children, 46. 
 collusion, curator ad litem, 46. 
 domicile, 72, 90-94. 
 change of status, 92. 
 Dolus, 
 
 presumption of, 300, 302. 
 benefits arising from, 300, 302. 
 vide Fraud. 
 Domicile, 
 
 of origin, 54, 56, 62, 65. 
 
 habitationis, 57, 93. 
 
 of choice, 65, 68. 
 
 what constitutes, 54-55, 60-76 
 
 change of, 54-57, 65-71 
 proof of, 66, 70. 
 
 abandonment of, intention, 65-69. 
 
 effects of change, 25, 54, 88-90. 
 
 citizenship, how acquired, 325-326. 
 
 immovables, 54, 55, 61, 94, 95. 
 
 movables. 54, 56, 61, 94, 95. 
 
 ambassadors, 2, 5, 71. 
 
 children, 65, 72. 
 
 consuls, 71-72. 
 
 ecclesiastics, 71. 
 
 exiles, 71. 
 
 invalids, 71. 
 
 lunatics, 65, 71. 
 
 minors, 65, 72, 76-79. 
 
 officials, 71-72. 
 
 persons non sui juris, 65. 
 
 prisoners, 71. 
 
 sailors, 71. 
 
 servants, 71-72. 
 
 soldiers, 71. 
 
 students, 71. 
 
 widows, 65. 
 
 wives, 65, 67, 155, 159, 325, 326. 
 Marriage, 72, 79-94. 
 
 banns, 25. 
 
 community, 87-90. 
 
644 INDEX. 
 
 Dom icile — continued. 
 
 distinction between formalities and essentials, 80, 81-84. 
 
 Transvaal law, 84. 
 
 property of spouses, 87, 88. 
 
 antenuptial contracts, 88, 153. 
 Majority and minority, 76-79. 
 Status, 72-76. 
 
 and contract, 73. 
 
 slavery, 74, 75. 
 
 heresy, 74. 
 
 polygamy, 74. 
 
 marriage, 85. 
 Succession, 54-56, 72, 94, 95. 
 Testaments, 3, 8, 95. 
 Insolvency, 72, 100, 106. 
 
 vesting of assets, 100-102. 
 
 process-in-aid, 101. 
 
 locus concursus creditorum, 101, 103. 
 
 plea ne continentia causes dividatur, 101. 
 
 rehabilitation, 104. 
 
 trustees, 101-105. 
 
 request-in-aid, 105-106. 
 Divorce, 90-94. 
 
 jurisdiction, residence, 92-93. 
 Legitimacy, 95. 
 Primogeniture, 95. 
 Foreign contracts, 72, 95-97. 
 
 jurisdiction, 97. 
 
 lex loci contractus, 78-80, 84, 96, 294-297. 
 Foreign judgments, 72, 97-99. 
 
 writs of execution, 97, 98. 
 
 proof of, 98. 
 Dominium, 
 
 vesting of, under wills, 215-224. 
 
 upon registration, 250. 
 
 upon transfer, 495, 496. 
 plenus, 278. 
 
 sub certo onere, 396, 398. 
 in soil of common road, 428. 
 utile, 572, 573. 
 Donations, 
 
 inter vivos stante matrimonii, 144, 387-390. 
 
 before marriage, 147. 
 
 propter nuptias, 147, 385, 390. 
 
 post nuptias, 147. 
 
 testamentary dispositions, 191. 
 
 coUation, 266-269, 373-375, 378, 381, 384, 391-395. 
 
 duties of donor, 311, 313, 386. 
 
 remuneratoria vel impropria, 311, 314, 390. 
 
 of mortgage bond, 311, 314. 
 
INDEX. 645 
 
 Donations — continued. 
 
 kinds of, 385. 
 
 from parent to child, 385, 386. 
 
 registration of, 386. 
 
 validity of, 386, 387. 
 
 second marriage ,386. 
 
 insolvency, 386-388. 
 
 donee's rights against transferee with notice, 388. 
 
 mortis causa, 385, 388-389. 
 
 agency, 594. 
 
 sale, 632. 
 Dos, 
 
 what is, 147, 148. 
 
 profectitia, 148. 
 
 adventitia, 148. 
 
 tacit hypothec of wife, 149-150. 
 
 devolution of, 165. 
 Dowry, what is, 147, 148. 
 Drunkenness, 632. 
 
 Due Negotiation, vide Bills of Exchange. 
 Dumb Persons, wills of, 175. 
 
 E. 
 
 East India Company's Service, 605. 
 Ecclesiastics, domicile of, 71. , 
 Edict, 
 
 of 1560, 495. 
 
 of May 13, 1594, 362, 363, 368-372. 
 Education of Children, 211-212, 377-384. 
 
 vide Wills. 
 Ejectment, 
 
 damages for detention, 523. 
 
 punishment for detention, 523. 
 
 lis pendens, 523. 
 Election of Law, 149, 396-399, 583. 
 Emptor Famili-s:, 171-172. 
 Erf, meaning of, 411. 
 Errors in Wills, 284, 285. 
 
 in title-deeds, 448, 449, 560. 
 Espousals, 
 
 breach of, 22-24. 
 
 what are, 23. 
 
 how ratified, 23. 
 
 kinds, 23. 
 
 consequences, 24. 
 
 specific performance, 24. 
 
 of minors, 24. 
 Estate, partition among heirs, 51, 466-467. 
 Evidence, 
 
 wills, 3, 7, et vide Wills. 
 
646 INDEX. 
 
 Evidence— continued. 
 
 crimes, 3, 7, 615-621. 
 
 adultery, 610. 
 
 good character, 3, 7, 615-621 
 
 good quality, sale, 564. 
 
 confession, 610. 
 
 incompetent witness, 614. 
 
 impeachable witness, 615. 
 
 presumptions, 614-621. 
 of self-defence, 615. 
 in case of assault, 614-615. 
 Execution, 
 
 writ of, foreign judgments, 97-98. 
 
 against property of wife, 149, 150, 152, 464. 
 
 sale in, relief, 632. 
 
 EXECUTOBS, 
 
 duties of, 208. 
 
 liabilities of heirs, 208. 
 
 unduly preferring themselves, 300, 303. 
 
 agency, 541. 
 
 charges, 541. 
 Exercise op Eights, civttiter modo, 430. 
 Exiles, domicile of, 71. 
 Extent, sale by, plus, minus, 557-561. 
 
 Falcidian Poktion, 225-227, 264, 276-279, 285, 287, 329-333. 
 
 Fear, relief, 631. 
 
 Fenus, 513, 514. 
 
 Feudatories, testation, 176. 
 
 Feuds, 
 
 compensation, 377, 379, 458, 459. 
 
 payment of rent, 460-462. 
 
 personal service, 378, 383. 
 
 substitution, 280, 282. 
 
 succession, 458-459, 523. 
 
 special grant required for testamentary disposition of, 176, 280, 282, 
 337-339. 
 
 retraction, 572-574. 
 
 considered ad instar aUodialium, 572-574. 
 
 conveyance of, 572-574. 
 Fiction, legal, 401-409. 
 Fidei Commissa, vide Wills. 
 
 FlDEI COMMISSARY HEIES, 215-224. 
 FlLIALE POETIE, 50. 
 
 Fines, 
 
 liability of spouses, 35. 
 preference of Crown, 608. 
 
INDEX. 647 
 
 Fishing Eights, 130-135. 
 Forfeiture op Benefits, divorce, 153. 
 Fraud, 
 
 in bequests, 260, 263. 
 
 presumption of, 300, 302. 
 
 advice coupled with, 300, 302. 
 
 no one can benefit from his own, 300, 302, 402, 409. 
 
 vitiates delivery, 484. 
 
 in circumventing laws, 527. 
 
 usury, 527. 
 
 dolus, agency, 536, 539, 540, 542. 
 
 gross negligence equivalent to, 541. 
 
 when presumption of existence rebutted, 595.. 
 
 vitiates contracts, 628, 631. 
 
 G. 
 
 General Plans, 
 
 sale of building lots according to, servitude, 425-429. 
 Gifts, see Donations. 
 Grond-Chijns, 137. 
 Guardians, 
 
 husband and wife, 27, 41, 44. 
 
 succession to wards, 177. 
 
 wives of, succession, 178, 260-263. 
 
 children of, succession, 178. 
 
 attestation of wills by, 184. 
 
 adiation by, 199, 602. 
 
 excuse from becoming, 401, 406. 
 
 security to be given by, 466, 468, 471. 
 
 court officials liable in default thereof, 466. 
 
 insolvency, 468-469. 
 
 tacit hypothec of ward, 466, 468-474. 
 
 remedies of ward, 466, 468, 470, 476-480. 
 
 removal, 468, 470. 
 
 prescription, 471. 
 
 letters of confirmation, 472. 
 
 co-guardians, 472-473. 
 
 powers of, 473. 
 
 liability, 470-474. 
 
 pro-tutors, 471-474. 
 
 as dominus, 595. 
 
 HABITATIO as a servitude, 421. 
 Heirs, vide Wills. 
 
 cannot attest wills, 184 
 Heresy, 74. 
 
648 INDEX. 
 
 Hermaphrodites, attestation of wills, 184. 
 Heyninge, draining of the, 136. 
 Holland, cities of, not sovereign, 154-157. 
 Homicide, 
 
 accidental, 523-526. 
 
 se defendendo, 526. 
 
 reparation, 602. 
 
 Lord Campbell's Act, 604. 
 division of " soen-geld," 603. 
 Hope, sale of a, 632. 
 Husband and Wipe, 
 
 is guardian, 27, 41, 44. 
 
 rights of, 43, 44, 45. 
 
 alienation of wife's property, 27, 138, 139, 146. 
 
 ratification of wife's actions by, 29. 
 
 effect of such ratification, 29. 
 
 liability of, 30-35, 149-150. 
 
 liability of spouses tabulated, 35. 
 
 and wife are corrclativa, 36, 38. 
 
 wife, agent of her, 44. 
 
 wife, no curator of lunatic, 45. 
 
 remarriage of spouses, 50-53. 
 
 actions by and against wife, 146-147. 
 
 "assistance" of, 146-147. 
 
 donations between spouses, 144, 147, 386-388, 390. 
 
 antenuptial contracts, 138-153. 
 
 community of profit and loss, 148. 
 
 insolvency, position of wife, 150-152. 
 
 execution against wife's estate, 149-152. 
 
 mutual wills, 175, 176, 195-196. 
 
 and wife,, not heirs ab intestato, 260-263. 
 contracts between, 388. 
 Hypothec, see Mortgage. 
 Hypothecary Action, see Mortgage. 
 
 Idiot, vide Lunatic. 
 Ignorance, 
 
 presumption of, continued, 540 
 
 relief, 631. 
 Immovables, Res pretiosw, 521. 
 Incest, 13-16. 
 
 punishment, 13, 14. 
 
 marriage, 84. 
 
 jut gentium, 402-410. 
 Injuria, 614-621. 
 Insane, vide Lunatic. 
 
INDEX. 649 
 
 Insolvency, 
 
 notice of — of debtors must be given by agent to principal, 541. 
 
 of guardians, 466, 468, 469. 
 
 of husband, 150-152. 
 
 of trustees under antenuptial contract, 146. 
 
 of legatees, 234. 
 
 invalidity of donations, 386-388. 
 
 actions infraudem creditorum, 414, 416. 
 
 collusive delivery, 492. 
 
 undue preference by executors, 300, 303. 
 
 by wife as agent for husband, 44. 
 
 by insolvent debtor, 464-466. 
 
 vigilant creditor, 465, 508. 
 
 Note on, 503-511. 
 
 lex jElia Sentia, 503. 
 
 actio PatUiana, 503. 
 
 in South Africa, 503 et seq. 
 
 when alienations void, 505. 
 
 contemplation of sequestration, 505-507. 
 
 intention to prefer, 505, 507, 509. 
 
 transactions in the "ordinary course of business," 505, 509, 511. 
 
 fraudulent transfer, 501. 
 foreign, 72, 100-106— vide DOMICILE, 
 vests property in trustee, 100. 
 distribution of estate, 100. 
 process-in-aid, 101. 
 rehabilitation of partnerships, 593. 
 
 preference of the State for fines and costs of prosecution, 608. 
 Insurance, 
 
 agency, 551, 552. 
 
 non-disclosure through fault of agent, 500, 501, 600. 
 salvage expenses, 552. 
 bona fide expenses, 594. 
 contraband, 594. 
 a quasi-partnership, 594. 
 liability of insurer, 594-601. 
 duty of insured, 594, 598-601. 
 law in South Africa, 598. 
 defined, 598. 
 execution of policy, 598. 
 termination of, 598-601. 
 res jprohibita, 594-599. 
 non-disclosure, 500, £01, 594, 599, 600. 
 seaworthiness, 599. 
 indemnification, 600-601. 
 average, 601. 
 
 reinstatement of insured property, 601. 
 computation of time, 601. 
 Interest, 
 
 fenus, 513, 514. 
 
650 INDEX. 
 
 Interest — continued. 
 
 under Roman law, 513, 514. 
 
 under Roman-Dutch law, 514-529. 
 
 anatocismus, 514. 
 
 usual rate of, 514. 
 
 accumulation of, 515. 
 International Law, 606, et vide Domicile. 
 Interpretation, 
 
 of stipulations, 36, 38. 
 
 of general phrases, 37, 38, 39. 
 
 general rules of, 36-39, 107-112, 154, 155, 159, 160, 165, 352-358, 400- 
 410, 579, 583. 
 
 of customary law, 400-410. 
 
 of custom recedens a jure cornmuni, 476, 480. 
 
 of contract, pledge, sale, 516-519. 
 
 of feigned contracts, 519, 553-556. 
 Interpretation op Mat 1594, 362-372. 
 Invalids, domicile of, 71. 
 Inventory, 
 
 antenuptial contracts, 145. 
 
 succession, 200, 222. 
 
 J. 
 
 Judgments, 
 
 foreign, 72, 97, 99. 
 
 writ of execution, 97, 98. 
 proof of, 98. 
 
 arrest ad fundandum jurisdictioncm, 97, 98. 
 Jurisdiction, vide Laws and Domicile. 
 
 ambassadors, 2, 5, 71. 
 
 bona fide residence, 92-93. 
 
 to afford redress, 92-93. 
 
 arrest, to found, 97-99, 102. 
 
 assumption of, by foreign courts, 97. 
 Jurisdictional Waters, 133. 
 Jus ACCRBSCBNDI et rum decrescendi, 321, 322. 
 
 Retractus, 572-578. 
 Jus Gentium, 60. 
 
 marita, vide Marital Power. 
 
 piscandi, 135. 
 
 accrescendi, 199-200, 207, 217, 260, 262. 
 Justice, foreign administration of, 97. 
 
 K. 
 
 Kaveling, 52. 
 
 Kinderbewijs, 51-53, 368, 473. 
 
 King, position of son of, before his father began to reign, 400, 403. 
 
 KUSTING-BRIEVEN, 471. 
 
INDEX. 651 
 
 L. 
 
 L^esio Enokmis, 628-632. 
 
 Landlord, lien over property of wife, invecta et illata, 150. 
 
 Landwinning, 523, 525, 526. 
 
 Lateral Support, servitude, 454-455. 
 
 Laws, 
 
 vide Interpretation. 
 
 vide Statutes, 1, 4. 
 
 personal, real, mixed, 1-12. 
 definitions, 1-10. 
 operation of, 1-12. 
 vide Domicile. 
 testamentary laws, 24. 
 
 ambassadors, 2, 5, 71. 
 
 extra-territorial force of, 8, 59. 
 
 alternative, 17. 
 Laws, 
 
 lawgiver bound by, 130. 
 
 choice of, vide CHOICE. 
 
 circumvention of, equivalent to fraud, 527. 
 Lease of mortgage property, 451. 
 Legacies, 
 
 are not donations, 154. 
 
 contrasted with donations mortis causa, 389. 
 Legalisation of signature of foreign officials, 98. 
 Legitimate contrasted with " Legitimated," 401, 405. 
 Legitimate Portion, 
 
 must be left free, 148. 
 
 child cannot renounce, 148. 
 
 children entitled to, 206, 224-225. 
 
 at Cape of Good Hope, 206, 224. 
 
 how reckoned, 377-384. 
 Legitimation after marriage, 401, 405. 
 Letters of Confirmation, guardians, 472. 
 Lex Mjjia Sentia, 503. 
 
 Anastasiana, 578. 
 
 Falcidia, 225-226. 
 
 Genucia, 514. 
 
 Loci Contractus, 25, 88. 
 
 Loci Eei Sims, 54, 56, 61, 88, 95, 101, 293-296. 
 
 Voconia, 226. 
 Libel, 614-621. 
 
 no designation of person, 614. 
 Libripens, 170-172. 
 Life Policy, cession of, 493. 
 Lis Pendens, 523. 
 LOAN, contract of usury, 527. 
 Locus Concubsus Ceeditorum, 101. 
 Lord Campbell's Act, 604. 
 
652 INDEX. 
 
 Lotinge, Blindb, 52. 
 Lunatic, 
 
 wife cannot be curator of — husband, 45. 
 
 domicile of, 71. 
 
 contract, relief, 631. 
 
 testation, 174. 
 
 attestation of will by, 184. 
 
 M. 
 
 Mahommedan Marriage, 85-87. 
 
 Malicious Desertion, 45, 46, 153. 
 
 Management, beneficial, presumes agency, 579. 
 
 Mancipatio, 483. 
 
 Mandament Pcenaal, 531. 
 
 Mandate, vide Agency. 
 
 Mare Liberum, 132. 
 
 Mare Vastum, 133. 
 
 Marital Power, 27, 28, 43, 44, 90, 138, 139, 146-148. 
 
 Marriage, 
 
 definition of, 19, 85. 
 
 banns, when unnecessary, 25. 
 
 consequences of, 41-53, 145-146. 
 
 effects of, 30-35, 36, 41-53. 
 
 a qualified partnership, 36, 39, 41, 582-583. 
 
 foreign, domicile, 25, 72, 79-94, 138-140. 
 
 Gretna Green, 81. 
 
 non-Christian, 43, 74, 84, 86. 
 
 of minors, 17-21. 
 
 voidable, 20, 21. 
 
 second, 21, 50-53, 178, 197, 245, 246. 
 succession in case of, 367. 
 preliminaries, if there be children of a prior marriage, 367-368. 
 
 in the Transvaal, 21, 84. 
 
 status, 85. 
 
 collation of, expenses, 377-384. 
 
 encouragement of, 583. 
 
 et vide Husband and Wife. 
 Marriage-Penny, 23. 
 Married Women, 
 
 actions by and against, 146. 
 
 service of summons, 147. 
 Merchant Vessels, what are, 110. 
 Merger, servitudes, 455-457. 
 Meubele heeft geen vervolg, 476, 479. 
 Meurs, Counts of, 311, 314. 
 Minors, 
 
 espousals, 24. 
 
 marriage, 17-21. 
 
 married women are, 30, 41, 45. 
 
 liable for civil reparation, 44. 
 
INDEX. 653 
 
 Minors — continued. 
 
 division of property, 51. 
 protection, 51. 
 tacit hypothec, 53, 464-467. 
 relief, 220, 628-632. 
 domicile of, 65, 72. 
 Icesio enormia, 628-632. 
 venia cetatis, 633. 
 Mistake, 631. 
 
 Mobilia non Jiabent sequelam, 482. 
 Monet, transfer of ownership in, 483. 
 Mooetsche Polders, draining of, 137. 
 Morally bad contrasted with naturally good, 402, 409. 
 Mortgages, 463, 475-481. 
 
 tacit, of wards, 466, 468-476, 480, 481. 
 of wife, 149, 150. 
 of landlord, 150. 
 of heirs, 213-214, 220-224. 
 of minors, 53, 464, 467. 
 by husband in favour of wife, 90. 
 
 of estate property by fiduciary and usufructuary heirs, 220-224. 
 bond, as donation inter vivos, 311, 314. 
 
 as legacy, transfer, 319, 320. 
 hypothecary action against those in possession, 413, 416. 
 imposition of burdens on mortgage property, 413, 416. 
 in competition with servitude, 413, 416, 450-452. 
 is accessory to a principal debt, 460, 462. 
 collusive and colourable delivery, 475-481. 
 General, Legal, Special, 475-481. 
 constitution of, 475-481, 497, 498. 
 movables, 476, 479. 
 equitable, 494. 
 of title-deeds, 494. 
 
 cession of, no registration required, 493. 
 essentials of registration, 497, 498. 
 
 registration is not substantia actus, but serves as evidence, 497-498. 
 registration, how, if officers of court absent, 497. 
 dating of, 499, 500. 
 
 legal effect of bonds registered at the same time, 499. 
 Movables, 11, 12, 54, 56, 61, 88, 94-95, 100, 293, 296, 476, 479, 482. 
 
 obligations and debts, not movable or immovable property, 293-296. 
 cannot be followed, 476, 479, 482. 
 Mututjm, 483. 
 usury, 527. 
 
 N. 
 
 Naasting, 572-578. 
 NAKOOP, 572-578. 
 Native Marriages, 86, 87. 
 succession, 372. 
 
654 INDEX. 
 
 Negligence, gross, equivalent to fraud, 540. 
 Negotiable Instruments, delivery, 494. 
 Negotioeum Gestor, 197, 547. 
 Negotium hereditatis, 300-303. 
 
 Notaey, good character, execution of wills, 3, 7, 8. 
 attestation of wills, 184. 
 
 O. 
 
 Oath, 
 
 reference to, 540. 
 
 of heirs, 229, 232, 288, 289. 
 Obligations and Debts are strictly neither movable nor immovable 
 
 property, 293-296. 
 Occupatio, acquisition of rights, 118, 130. 
 Officials, domicile of, 71, 72. 
 Order in Council (marriage) of 1838, 20, 24. 
 Ordinance, 
 
 39 of 1828, 495. 
 
 68 of 1830, 244. 
 
 104 of 1833, 200, 208. 
 
 105 of 1833, 471, 472. 
 6 of 1843, 504. 
 
 15 of 1845, 24, 182, 185, 187, 188, 190, 191. 
 
 2 of 1856 (a F. S.), 188. 
 
 3 of 1871 (S. A. K.), 21. 
 
 4 of 1880(0. P. S.), 225, 244. 
 11 of 1880, 225. 
 
 Ordinary course of business, 510, 511. 
 Orphans, tacit hypothec, 476, 480. 
 Owner, transfer of real rights by, 483, 484. 
 Ownership, 
 
 alienation of, 483. 
 
 acquisition of, 118, 130, 483. 
 
 Pacta Antenuptialia, vide Antenuptial Conteacts. 
 
 successoria, 141, 145, 149. 
 Pactum Anticheesios, 516-519. 
 
 dotale, 144. 
 
 adjectum, 520. 
 
 commissorium, 520. 
 Pandgenot, 519. 
 Parate Executie, 520. 
 Partition of Pbopeety of Minoes, 51-53. 
 Partnership, 
 
 marriage a qualified, 36, 39, 41. 
 
 interpretation of, agreement of, 36, 39. 
 
 liability of partners, 579-581, 591-593. 
 
 illustrations of, 579-580, 588, 591. 
 
 agency, 579, 580. 
 
 shares, 582. 
 
INDEX. 655 
 
 Partnership— continued. 
 
 insurance, 582, 694. 
 
 leonine, 40, 582, 589. 
 
 profits, what are, 583. 
 
 antenuptial contracts, 582-584. 
 
 definitions of, 588. 
 
 kinds of, 589. 
 
 anonymous, 590. 
 
 en commendite, 590. 
 
 dissolution of, 591, 593. 
 
 action against, 592. 
 
 dormant partner, 590, 592. 
 
 surety on behalf of, 579, 593. 
 
 rehabilitation, 593. 
 
 loss, illegal cause, 594. 
 Patent, 115 et seq.—vide Trade Marks. 
 Payment, 
 
 change in value of coinage, 512, 513. 
 
 receipts not absolute proof of, 540. 
 Pignus, 483. 
 
 ex lege of ward, 470. 
 
 judiciale, 482. 
 
 prcetorium, 482. 
 
 mobilium, 482. 
 Placaat, 
 
 of March 20, 1524, 243. 
 
 of October 15, 1531, 243, 413. 
 
 of 1540, 17-21, 33, 42, 90, 150, 151, 260, 2G1, 262, 503. 
 
 of May 4, 177. 
 
 of 1571, 514. 
 
 of 1655, 243. 
 Plea of Frequent Commission of Prohibited Acts, 528 
 Pledge, 
 
 rights of pledgor and pledgee, 413-416. 
 
 alienation of pledged property, 482. 
 
 by title-deeds, 493-494. 
 
 defined, 518. 
 
 distinguished from hypothec, 518, 519. 
 
 interpretation of contract of, 516-519, 553-556. 
 
 pactum amtichresios, 516, 517, 519. 
 adjectum, 520. 
 commissormm, 520. 
 
 Sale of Pledge, 
 
 (1.) Movables, 520-521. 
 (2.) Immovables, 520-521. 
 (3.) Res pretiosce, 520-521. 
 
 sale of partnership property, 592. 
 Political Ordinance, 14, 20, 24, 42, 362, 364, 365, 370. 
 Poltgamt, 43. 
 
 domicile, 74, 84-87. 
 
656 INDEX. 
 
 Power op Attorney, actions against, or by wife, 147. 
 Preference of State for Fines and Costs of Prosecution, 608. 
 Prelegacy, 373-375, 390, 391. 
 Presumptions, 
 
 in case of crimes, 614-621. 
 
 in case of assault, 615. 
 
 of self-defence, 615. 
 Principal, vide Agent. 
 Prisoners, domicile of, 71. 
 Privileges, interpretation of grant of, 108. 
 Prooess-in-aid, 101-106. 
 Procurator in rem suam, 548. 
 Prodigals, 
 
 power of testation, 175. 
 
 attestation of wills by, 184. 
 Profit and Loss, community of, 148. 
 Promise, tacit, 300. 
 Promissory Notes, 623-627. 
 
 presentation, 623. 
 
 protest, 623. 
 
 noting, 624. 
 
 interested parties, 623, 624. 
 
 et vide Bills of Exchange. 
 Property, 
 
 alienation of, before delivery, 2, 5. 
 
 conditional alienation of, 5. 
 
 acquisition of, stante matrimonii), 36-46. 
 
 of minors, 51-53. 
 Prosecution, 
 
 no bar to civil action, 604. 
 
 costs of, preference of State, 608. 
 protutors, 471-472, 474. 
 Punishment of Delicts is in Public Interest, 608. 
 
 B. 
 
 Real Rights, 
 
 transfer of, 483. 
 
 cession of, 493, 494. 
 Reasonable Time, 566. 
 
 Receipts, not absolute proof of payment, 540. 
 Reconciliation Money, 602. 
 
 Redeemable, burdens must be borne by heirs, and not by legatees, 311-312. 
 Redemption of minor's portions, 53. 
 Redhibition, 567, 569. 
 Reference to oath, vide Oath. 
 Registration oifidei commissa, 222. 
 
 vests dominium, 250. 
 when not, 496. 
 
 of mortgages, vide Mortgages. 
 given as legacies, 319, 320. 
 
INDEX. 657 
 
 REGISTEATION — continued. 
 
 of servitudes, 413-415, 445-452. 
 
 of debts, 495. 
 
 of donations, 386. 
 
 public, is not substantia actus, but required adfacilioremprobationem, 497. 
 
 transfer, 456. 
 Rehabilitation, vide Insolvency. 
 
 of partnership, 593. 
 
 foreign, 104. 
 Rei Vindicatio, by wife, 146. 
 Relief, 541, 631-632. 
 
 in case of error, 209, 377, 383, 631-632. 
 
 insurance, 594. 
 Religion, disherison on account of, 175. 
 Remuneration is equivalent to payment, 311, 314. 
 Repeesentation, see Succession. 
 REQUEST-seeking-aid, 105, 106. 
 Res Incoepokales, 483. 
 
 nullius, 130-132. 
 
 pretiosa, considered as immovable, 521. 
 Reseevatoey Clause, vide Wills. 
 Residence, bond fide, founds jurisdiction, 92-93. 
 Restitutio m integrum, 220, 628, 631, 632. 
 Reteaction, 572-578. 
 Revocation of terms of antenuptial contract, 144-145. 
 
 of wills, vide Wills. 
 Rivebs, jurisdiction over, 133. 
 
 S. 
 
 Sailors, domicile of, 71. 
 
 Sale, resolutive and suspensive conditions, 484, 487, 488. 
 transfer of ownership, 485, 486. 
 pactum commissorium, 520. 
 usurious, 516, 522. 
 
 or pledge, interpretation of agreement of, 516-519, 553-555. 
 of pledge, 520. 
 
 of land by extent, plus, minus, 557-561. 
 voetstoots, 557 et seq., 562, 563, 569, 570. 
 of building lots, 425-429. 
 by diagram, 560. 
 payment of purchase price, 562. 
 security by vendor, 562. 
 delivery within fixed period, 564, 565. 
 reasonable time, 566. 
 Warranty, presumption of good quality, 564. 
 
 evidence of good quality, 564. 
 
 Note on, 566-571. 
 
 caveat emptor, 566, 567. 
 
 actio redhibitoria, 567, 5G9. 
 
 2 T 
 
658 INDEX. 
 
 Sale — continued. 
 Warranty, 
 
 actio quanti minoris, 567, 569. 
 actio csstimatoria, 567, 569. 
 actio ad id quod interest, 567, 569. 
 implied, of title, 567. 
 written conditions, 568. 
 by sample, 568. 
 advertisements, 568. 
 quality, 567-569. 
 
 voetstoots, 557 et seq., 562, 563, 565, 569, 570. 
 remedies of vendee, 568, 569. 
 public, 632. 
 in execution, 632. 
 of a "hope," 632. 
 by last will, 632. 
 donation, relief, 632. 
 of doubtful rights, 632. 
 Uitkoop, 51, 464, 467, 628. 
 
 SCHEPENDOMS LAW, 149. 
 
 Schuddeboes, drainage of, 136. 
 Scrip, delivery of, 494. 
 Sea-shore, 
 
 right to use of, 135. 
 
 Government custodians of, 135. 
 Security, 
 
 by fiduciary heirs, 229, 255, 270, 280, 283. 
 
 by guardians, 466, 468-469. 
 
 rem pupilli salvam fore, 471. 
 
 upon succession of fiscus, 523. 
 See-gebiet, 133. 
 
 Self-defence, assault, homicide, 615. 
 Separation a thoro, 276, 278. 
 Servants, 
 
 domicile, 71, 72. 
 
 cannot attest wills, 184. 
 Servitudes, 411-457. 
 
 sunt individucs, 411. 
 
 competition of mortgages and servitudes, 413, 416, 450-452. 
 
 interpretation of, 417, 418, 420, 422. 
 
 kinds of, 419. 
 
 personal and real, 420, 421. 
 
 habitatio usus, usufructus, 421. 
 
 urban and rural, 421-425. 
 
 prcedium rusticum, 421. 
 
 prcedvum urbanum, 421. 
 
 of common wall, 422. 
 
 obstruction of view, 422. 
 
 cutting fuel, 422, 429. 
 
 kinds of rural, 422-423. 
 
INDEX. 659 
 
 Servitudes — continued. 
 right of way, 424-429. 
 actus, 424-425. 
 via vicinalis, 425. 
 via publica, 425. 
 
 sale of building lots by general plan, 425-429. 
 dominium in soil of common road vests in original owner, 428. 
 water-rights, 429-444. 
 aqua ductus, 429. 
 aqua haustus, 430. 
 watering-place, 431. 
 exercise, civiliter modo, 430. 
 right of drainage, 432. 
 riparian and lower proprietors, 432. 
 public and private streams, 432-435. 
 flumina perennia, 433-434. 
 fiumina torrentia, 433-434. 
 rivus, 433. 
 
 underground rivers, 435. 
 springs, opening up of, 435. 
 use of public and private streams, 435. 
 use, prescription, 439. 
 parties to action concerning, 444. 
 registration, 413-415, 429, 445-452. 
 
 successor bound by personal notice, 445-448. 
 effect of attached diagrams, 448-450. 
 remedies, 422, 444, 456. 
 over mortaged property, 450. 
 affirmative and negative, 419, 452. 
 continuous and discontinuous, 419, 453. 
 natural, (legal), and conventional, (by compact), 453. 
 lateral support, 454. 
 qualified and non-qualified, 455. 
 constitution and extinction of, 413-416, 455-457. 
 prescription, 417, 418, 439, 455-457. 
 merger, 455, 457. 
 non-user, 455, 456. 
 waiver, 456. 
 Set-off on partnership account, 592. 
 Shakes in a partnership, 36. 
 Ships, 
 
 of war belong to the State, 107, 108, 112. 
 considered as immovable property, 108, 112. 
 Silence does not necessarily imply consent, 300, 302. 
 Slander, vide Libel. 
 Slavery, 74-75. 
 SLOBBEGORS, drainage of, 136. 
 Soen-Geld, 602. 
 Soldiers, domicile of, 71. 
 Spes Successionis, 315. 
 
660 INDEX. 
 
 Spiebs, Chamber Council of, has jurisdiction over Meurs, 411. 
 
 Sponsalia, vide Espousals. 
 
 Status, 
 
 defined, 72-76. 
 of marriage, 85. 
 changed by divorce, 92. 
 Statutes, 
 
 personal, real, and mixed, 1-5. 
 interpretation of, vide Inteepbetation. 
 Steaits, jurisdiction over, 133. 
 Students, domicile of, 71. 
 Substitution, 
 
 vulgaris, 270, 272, 276, 279. 
 to feuds, 280, 282. 
 Succession, 
 domicile, 72. 
 
 rights of children upon change of domicile, 89, 90. 
 foreign, to property, 94-95. 
 legitimacy, 95. 
 primogeniture, 95. 
 feudal, vide Feuds. 
 antenuptial contracts, 145, 161-164. 
 of parents ab intestato, 372. 
 of fiscus, 321-322, 351, 523. 
 Ab Intestato, 
 
 husband and wife not heirs, 260-263. 
 not regulated by Civil Law, 351, 354. 
 Schependoms law, 351, 354, 363. 
 Aasdoms law, 149, 354, 363. 
 rules of, 149, 352-372. 
 pro jure civile, 353. 
 four quarters, 351-356. 
 representation of quarters, 352, 355. 
 representation, 352-359, 365-372. 
 how far allowed, 361-363. 
 of illegitimates, 95, 351-372, 400, 401, 404. 
 of children under Roman law, 402, 408. 
 by half-hand, 353-358, 361-363, 368-372. 
 Edict of May 13, 1594, 362-366, 368-372. 
 Modification of 1661, Dutch East India Co., 363, 366, 370. 
 at Cape of Good Hope, 364-372. 
 history of, 364, 365, 368, 370. 
 Political Ordinance of 1580, 363, 364, 370. 
 of illegitimates, 365, 366. 
 
 of children, in case of remarriage of surviving parent, 367, 368. 
 collation, 209, 210, 266, 269, 373-384, 391-395. 
 
 none by children, of gifts to grandchildren, 384. 
 none by ascendants and collaterals, 391-395. 
 of fruits, 392. 
 to foreign property, vide Domicile. 
 
INDEX. 661 
 
 Successor Singularis, 298, 299. 
 Sui Juris, domicile of persons non, 65. 
 Summons, 
 
 service of, on wife, 147. 
 on agent, 549. 
 Surety Bond, Kinderbewijs, 51-53. 
 Suretyship of Wipe, 46, 47. 
 
 T. 
 
 Tacit Hypothec, vide Mortgage. 
 ,Territorium Nullius, open sea, 132. 
 Territory, maritime, 133. 
 Testamentary Disposition, 
 
 under Civil Law, 2-5. 
 
 under Natural Law, 2-5. 
 
 forfeiture of right of, 2, 6, 
 
 Solon's rule, 6. 
 
 Roman rule, uti legasset, 6. 
 
 laws, classification of, 2, 5. 
 
 effect of, 2, 5. 
 Testaments, vide Wills. 
 Tijnzen en Cijnzen, 137. 
 Time, 
 
 reasonable, 566. 
 
 computation of, 304, 307. 
 Title, warranty of, 567. 
 Title-Deeds, 
 
 delivery of, 493, 494. 
 
 pledge of, 493, 494. 
 
 value of diagrams, 448, 449, 560. 
 Trade Marks, 
 
 when assignable, 115, 116, 127-128. 
 
 infringement, remedies, 115, 116, 121-129. 
 
 infringement encouraged by commercial prosperity, 117. 
 
 acquisition of rights in, 117-121. 
 
 Equity and Common Law, 120. 
 
 incorporeal chattels, 118. 
 
 definition of, under Statute Law, 118, 119. 
 
 registration of, is prima facie evidence of good title, 120. 
 
 when cannot be registered, 120. 
 
 infringement of, restrained by injunction, 121, 126. 
 
 damages, injunction, 121. 
 
 trade name, 123, 127. 
 
 copyright, 124. 
 
 Roman-Dutch authorities on, 125. 
 
 rights of foreign manufacturers, 128, 129. 
 Trade Name, 123, 127. 
 Tradition, vide Delivery. 
 
662 INDEX. 
 
 Transfer, 
 
 of estate property by heirs, 220-224. 
 
 of mortgage bonds given as legacies, 319, 320. 
 
 of movables and immovables, 483 et seq. 
 
 oijura vn re, 483. 
 
 intention to, 483. 
 
 by owner, 483. 
 
 delivery, 483. 
 
 registration, 495, 496. 
 Treaty of Trefves, 136, 137. 
 
 Trebellianic Portion, 225-227, 264, 276-279, 285-287. 
 Trefves, Treaty of, 136, 137. 
 Tria Capita, 73. 
 
 Trouwbeloften, vide Espousals. 
 Trouwpenning, 23. 
 Trustees, vide Insolvency. 
 
 foreign domicile, 105. 
 
 under antenuptial contract, 144-146. 
 Turbe van Getuigen, 477. 
 Tutors, vide Guardians. 
 
 U. 
 
 UlTKOOP, 51, 464, 467, 628. 
 
 Ultra Vires, 548, 552. 
 
 Undue Preference, vide Insolvency. 
 
 by executors, 300-303. 
 Universal Community includes community of debts, 298, 299. 
 
 succession, 169. 
 Universitas Juris, 168, 169. 
 Use, honourable and proper, 502, 503. 
 Usucapio, 483. 
 Usufruct as a servitude, 421. 
 Usufructuary Heirs, 215-224. 
 Usury, 513-529. 
 
 is it a crime ? 514. 
 
 anatocismus, 514. 
 
 accumulation of interest, 515. 
 
 usual rate of interest, 514. 
 local customs, 517-519. 
 
 excess charged goes in reduction of the capital, 517-518. 
 
 sale, when usurious, 516, 522. 
 
 possible in all contracts, 522. 
 
 punishment of, 522-524, 527-528. 
 
 in contracts of loan, 527. 
 mutuum, 527. 
 commodatum, 527. 
 
 frequent commission without punishment is no excuse, 528. 
 Usus, servitude, 421. 
 Uti Legasset, 6. 
 Utile Dominium, 572, 573. 
 
INDEX. 663 
 
 V. 
 
 Validity of acts, 2, 3, 6. 
 
 Valuation of estate property, 212, 213, 280, 283. 
 
 Venditio Bonoeum, 169. 
 
 Venia ^tatis, 479, 633. 
 
 Verbal Accoed, 531. 
 
 Via Publica, 425. 
 
 Via Vicinalis, 425. 
 
 vlndicatoey action, 
 
 by wife, 146, 147. 
 
 movables, 482. 
 Voetstoots, vide Sale. 
 Vouchees, agent, 541. 
 
 "W. 
 
 Was, ships of, property of State, 107, 109. 
 Waed, vide Guaedian. 
 Wateb-eights, vide Seevitude. 
 Way, Eight of, vide Seevitude. 
 Widow, 
 
 remarriage of, 21. 
 
 domicile of, 65, 155, 158. 
 Widowee, remarriage, 21. 
 Wife, vide Husband and Wife. 
 
 liabilities, 30-35, 44, 147-150. 
 
 a minor, 29, 30, 41-45. 
 
 contracts, 30. 
 
 rights of, 37, 39. 
 
 summons against, 44. 
 
 liable for civil reparation, 44. 
 
 duties of, 45. 
 
 benefits of, 46-50. 
 
 domicile of, 65, 67, 93, 325. 
 
 vindication and damages in case of wrongful alienation by hus- 
 band, 146. 
 
 procedure when instituting or defending actions, 146. 
 
 execution against, 149-152, 464. 
 
 WlLLIGE CONDEMNATIE, 531. 
 WlLLIGE DEELING, 53. 
 
 Wills, 
 
 foreign, vide Domicile, 3, 8, 293-296. 
 
 liberty of testation, 155, 159, 170, 205, 214, 290, 291, 373-375. 
 Among the Romans, 168-173. 
 early history, 168-173. 
 in comitia calata, 170 et seq. 
 definitions of, 169, 173. 
 
664 INDEX. 
 
 Wills — continued, 
 
 testamentum tripartituw,, 172. 
 testamentum per as et libram, 172. 
 Capacity to testate, 174-176. 
 incapacitated persons, 174. 
 
 those under age of puberty, 174, 
 
 lunatics, 174. /" 
 
 drunken p rsons, 174. 
 
 prodigals, 175. / 
 
 deaf and dumb, 175. • / 
 
 persons supported by charitable institutions, 175. 
 
 religious fanatics ignoring their lawful successors, 175. 
 
 spouses under a mutual will after adiation, 176. 
 
 feudatories, 176. 
 
 concerning the property of the heir, 321, 322, 371-375. 
 Capacity to succeed, 1745-180. 
 Incapacitated persons, 
 
 guardians and administrators, 177. 
 
 godparents of minors, 177. 
 
 concubines, 177. ' 
 
 honorary guardians, 177. 
 
 children of guardians, 178. 
 
 wives/of guardians, 178. 
 
 officiating notary, 179. 
 
 upon second marriage, 178, 245-246. 
 
 those contracting a marriage against the law, 178. 
 
 illegitimate children, 179. 
 ' prohibited religious sects, 179, 242, 243, 349. 
 
 charitable institutions, if bequests informal, 179. 
 
 clerical persons, if using undue influence, 179. 
 Kinds of, 180-182. 
 
 Oral or nuncupative, 172, 173, 180. 
 
 (1.) Before seven witnesses, 180. 
 
 (2.) Before notary and two witnesses. 180, 186, 340, 343, 347, 348. 
 
 (3.) Before the court, 180. 
 Written, 
 
 (a.) Open, 
 
 (1.) Before notary and two witnesses, 180, 186. 
 (2.) Before the court, 180. 
 
 (6.) Closed, 181, 186. 
 at Cape of Good Hope, 182. 
 perfect, 200. 
 imperfect, 200, 254, 257. 
 special and privileged, 173. 
 military, 181. 
 holograph, 181, 182. 
 during time of pestilence, 181. 
 Validity and Invalidity, 
 
 formalities under jus gentium, 2, 3, 6, 7. 
 
 under jus naturce, 2, 3, 6. 
 
INDEX. 665 
 
 Wills — continued. 
 
 Validity and Invalidity, 
 
 proof of due execution, 3, 6, 7, 8. 
 
 execution of codicils, 3, 8. 
 
 wrong motive, 155, 159. 
 
 error in wills, 284, 285. 
 
 essentials of a valid will, 183, 201, 247-249, 253. 
 
 fraud, 260. 
 
 two testamentary writings of same date, 284, 286, 336, 337. 
 Attestation, 
 
 under jus gentium, 2, 6. 
 
 under jus naturce, 2, 6. 
 
 witnesses to, ad pias causas, 2, 6. 
 
 under Koman-Dutch law, 180-182, 247-255. 
 
 at Cape of Good Hope, 182. 
 
 qualification of witnesses, 184-185. 
 
 attendance of witnesses, 185, 191. 
 
 signature of witnesses, 185-191. 
 
 reading over of, 187. 
 Revocation, 154, 155, 158, 183, 191-196. 
 
 express, 191, 340-345. 
 
 deletio, inductio, inscriptio, superseriptio, 192, 340, 343, 347, 
 348. 
 
 implied, 194, 347, 348. 
 
 effect of, 194, 195, 334, 335. 
 
 of mutual wills, 176, 195, 196. 
 Adiation and Repudiation, 183, 196-200, 207. 
 
 deed of deliberation, 196, 197, 199. 
 
 actes hereditaires, 197, 198, 602. 
 
 taking out letters of administration is not adiation, 198. 
 
 must be done personally, 199. 
 
 consequences of adiation, 199-200, 304-310. 
 
 consequences of repudiation, 200, 298, 299. 
 
 inventory, 200. 
 
 collateral inheritance cannot be transmitted if no adiation, 293, 
 294. 
 
 want of knowledge, 293, 294. 
 
 collation, 392. 
 
 acceptance of soen-geld, 602. 
 Codicils, 200-203. 
 
 formalities, 3, 8. 
 
 origin of, 200. 
 
 distinction between wills and, 200, 201. 
 
 validity of, 201, 203. 
 
 scope of, 201, 202. 
 
 invalid codicils cannot validate informal wills, 201. 
 
 can exist independently of wills, 203. 
 Clauses in, 
 
 codicillary, 203. 
 definition, 203. 
 
666 INDEX. 
 
 Wills — continued. 
 Clauses in, 
 
 use of, 203. 
 
 associated with fidei-commissary institutions, 204. 
 reservatory, 201-203. 
 
 usual form of, 204. 
 
 its objects, 204. 
 derogative, 183, 191, 205. 
 cassatoria, 203, 205. 
 generalis, 203, 205. 
 Heirs, 206-224, 340, 343, 396, 398. 
 
 institution of, 183, 201, 204, 340, 343* 396, 398. 
 
 liability and duty of, 199-200, 207, 208, 220, 222, 298-299, 321, 
 
 322. 
 accretion among, 199-200, 207, 217, 260, 262. 
 direct institution, 206. 
 fidei-commissary institution, 206. 
 condition of institution, 206, 207. 
 pretermission of lawful, 175, 206. 
 acquiescence, 209, 377, 379. 
 is heir bound in conscience 1 253, 349, 350. 
 children must be instituted unburdened, 304. 
 Collation, 209-210, 266-269, 373-384, 391-395. 
 compensation must be reasonable, 210, 266. 
 marriage and education expenses, 377-384, 391. 
 gifts, 394. 
 pre-legacies, 391. 
 
 none by ascendants and collaterals, 391. 
 Children, 
 
 who are, 210, 211. 
 as heirs, 336, 338. 
 education of, 211-213, 377-384. 
 valuation of estate, when to be made, 212. 
 valuation of estate must be reasonable, 280, 321, 323. 
 tacit hypothec of, 213-214, 224. 
 Mutual, 214-224. 
 inventory, 222. 
 second marriage, 223. 
 substitution, 270, 272, 276, 279. 
 rights of survivor, 214-224. 
 
 rights of creditors and innocent deliverees, 220-222. 
 Usufructuary Heirs, 
 
 difference between fiduciary and, 215-223. 
 
 presumption in favour of a fidei-commissum, 216, 284, 286. 
 
 legal remedies of, 213, 214, 220-224. 
 
 alienation by fiduciaries, 220-224. 
 
 boedel-Jiouder, 224. 
 
 effect of no institution of heir, 215, 224, 322. 
 
 can transmit inheritance, 304-307, 310. 
 
 retain ownership of property coming to them pro diviso, 315. 
 
INDEX. 667 
 
 WILLS — continued. 
 
 Legitimate Portion, 148, 206, 224-225. 
 
 how calculated, 224-225, 264, 377-384. 
 
 must be unencumbered, 224-225. 
 
 option of heirs, 321-322. 
 
 education expenses, 378, 380. 
 Falcidian and Trebellianic Portions, 
 
 when could be claimed, 225, 227, 264, 276-279, 285, 287. 
 
 how calculated, 329-333. 
 
 deduction of, 329-333. 
 
 heirs not bound to accept money value, 329, 333. 
 
 deducted from pre-legacies, 391. 
 Legacies, 
 
 heirs presumed burdened with legacies, redeemable rents, &c, 
 207, 208, 232, 277-279, 311-314. 
 
 tacit hypothec of legatees, 213. 
 
 remedies of legatees, 213, 220-224, 233, 325. 
 
 definition of, 231. 
 
 validity of, 232, 288, 289. 
 wrong motive, 272. 
 
 of life-usufruct, 232, 290, 292, 304, 305, 307, 308. 
 
 of clothes, 232, 317. 
 
 vesting of, 233, 304-316. 
 
 conditional, 234. 
 
 of usufruct and ownership of part of estate, 315. 
 
 of mortgage bonds, transfer, 319. 
 
 copulative, 321. 
 
 Falcidian portion, 329-333. 
 
 is not a donation, 154. 
 
 difference between donations mortis causa and legacies; 389. 
 Fide i Commissa, 
 
 history of, 200. 
 
 tacit hypothec of fidei-commissary heirs, 213. 
 
 residfui, 223. 
 
 registration of, 222. 
 
 Note on, 227-241. 
 
 what are, 227. 
 
 universal, 228. 
 
 particular, 228. 
 
 vesting of dominium, 215-220, 229, 398. 
 
 construed strictly, 228, 229, 260, 261, 290, 291. 
 
 security by fiduciaries, 229, 270, 275, 280, 283. 
 
 prohibition of alienation, 290-292. 
 favore agnatorum, 336, 338. 
 Interpretation of, 
 
 intention, 7, 238, 341, 345, 376. 
 
 language must be understood by testator, 3. 
 
 evidence, when admissible, 176-177. 
 
 fidei commissa and burdens strictly interpreted, 228, 236, 290. 
 
 the will speaks from testator's death, 230. 
 
668 INDEX. 
 
 Wills — continued. 
 
 Interpretation of, 
 
 rules for, 235-241, 253-259, 270-275, 304-310, 336, 338, 341, 345. 
 
 favourable construction, 236, 290, 292. 
 
 by inference, 281, 282. 
 
 an abmrdus inteUectus must be avoided, 304-310. 
 
 wills of same date, 336. 
 
 '! my heirs and relatives," 336, 338. 
 
 extrinsic evidence, 376. 
 
 "first succession," 458. 
 Witnesses, vide Wills and Evidence. 
 Writ op Execution, vide Execution. 
 Wrong, no benefit from one's own, 402. 
 
 Zeeland, cities of, not sovereign, 154. 
 Zierikzee, 
 
 citizenship of, 325. 
 
 Keuren of, 325. 
 
 Printed by Bali.antyne, Hanson & Co. 
 Edinburgh and London 
 
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