CJorn^U ICam ^rl^ool Slibrary CORNELL UNIVERSITY JUL 23 1909 FLAW LIBRARY, Cornell University Library KG 3849.31858 Reports of cases In the Supreme court of 3 1924 025 018 411 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924025018411 REPORTS OF CASES IN THE SUPREME COURT OF NATAL. FROM ITS COMMENCEMENT, 15th APRIL, 1858. BY Tm(0>MA§ IPHIFS®!, \ y : -V ',7 Printed by May & Davis, 23, Church Street. 1858. WALTER HARDING, Esq., Chief Justice. HENRY CONNOR, Esa., Fiest Puisne Judge.* LUSHINGTON PHILLIPS, Esq., Second Puisne Judge. ,^, * MICHAEL HENRY GALLWEY, Esq., Attokney General. Mai SUITS, RULES, AND OFFICERS OF THE LATE DISTRICT COURT, CONTINUED. First took his seat, July 1st, 1858. REPORTS, William Hodgson v. Palmer, Trustee of James Hodgson. [May ^th, 1858.] Review of proceedings in Court below, including Trial by Jury and application for New Trial. This was a review of certain proceedings in the Court of the Resident Magistrate of Durban, terminating in a trial by Jury there and an application for a new trial. James Hodgson had, a short time previously to his insolvency, made over to his son William a wagon, in pay- ment of wages alleged to be due for services rendered by the son during several previous years, as a wagon-driver. The creditors claimed the wagon as part of the estate, and it was improperly attached previous to the trial, and sub- sequently released by the Magistrate; but the costs of the attachment were made costs in the cause. At the trial (October 83rd and 24th, 1857), a juryman was allowed to sit (though challenged by the defendant), who was partner of a firm creditors in the estate^ being only asked, whether he had an interest, direct or indirect, in the result of the trial. Points as to admission of evidence were also contested. The Magistrate was alleged to have misdirected the Jury by telling them that the question before them concerned only the solvency of the insolvent at the time of alienation ; without also informing them that the questions of bona fides, and of a valuable consideration for the wagon, were also to be considered by them, according to. Insolvent Ordinance, § 83. Verdict for plaintiff, with costs. A new trial being moved for (after notice on October 2nd), on November 6th, was refused by the Magistrate. Previously to the first of these dates, the verdict had been complied with by the delivery of the wagon. 4 BRICKHILL V. LEATHERN. Goodriche, for the respondent, took several exceptions to the form of the writ of review, and to the return and certificate made by the Magistrate's Clerk (the command in the writ being addressed to the Magistrate himself) ; as also to a writ of review applying to costs in the Court below, or to a trial by Jury ; contending that the process of appeal pointed out by Ordinance 8, 1853, ought to have been followed. [May 5th.] Huchanan, for applicant, replied. [May 6th.] The Court, having it in prospect to frame rules regula ting trials by Jury, declined at present adjudicating on the technical objections ; and on the merits declined to disturb the verdict of the Jury, considering that the law of the Insolvent Ordinance, § 83, had been sufficiently laid before them by the Magistrate, and that they had enjoyed the advantage of a personal examination of the witnesses. It distinguished the power of review inherent in this Court from the appeal provided for by Ordinance 8, 1852; and dismissed the application, with costs ; but ordering the costs of the attachment in the Court below to be borne by the applicant. Brickhill v. Leathern. [May 4th, 1858.] Presentation of Promissory Note payable at a Bank, good if made at Branch Bank in town wkere note is dated. Notice of protest when sufficiently early. This was an appeal from the Court of the Resident Magistrate of Durban. The appellant was Manager of the Durban Branch of the Natal Bank, and holder of a promissory note, endorsed by the respondent, dated Dur- ban, December 8th, 1857, and "payable at the Natal Bank." This was presented pro formd at the Branch Bank when due, on the 8th April, 1858, protested on the 9th, and notice of the protest served on respondent (a SHORTT V. C. MCDONALD AND A. MCDONALD. 5 resident in Durban) on the lOth. The Magistrate decided against the presentation as bad, and that the notice of protest was too late. The parties put in a case agreed on in terms of Ordi- nance 8, 1852, § 15. Pinsent, for the appellant, quoted Story on Promisso7'y Notes, §§ 236, note, 236, 239, 254, 255 ; Story on Bills, §354. Ooodricke, for respondent, quoted Bailey on Bills, p. 217, 269, Tyndallv. Brown; Story on Promissory Notes, § 327. The Court considered the presentation to be good, and the notice of protest sufficiently early ; and reversed the Magistrate's judgment, with costs. BooYSEN V. Hazel. [May 6th, 1858.] Putative Father not entitled to custody of Child. The applicant obtained a rule nisi for restoration of her child, born during a cohabitation with the respondent, which had now ceased. [May 18th, 1858.] Buchanan, for respondent, endeavoured to show that the applicant was not a proper person to be entrusted with the custody of the child ; but The rule was made absolute, with costs. Shoktt v. Charles McDonald and Ann McDonald. [May SIst, 1858.] Provisional Judgment refused against Endorser out of Order of Exchange. This was a provisional action on a promissory note, drawn by Charles McDonald in favor of the plaintiff, and endorsed by Ann McDonald first, and then by the plaintiff. The Court granted the provision against Charles McDonald, with costs ; but refused it against Ann QUEEN V. MALIN&A. McDonald ; her costs to be costs in the principal case ; which not having been proceeded with, costs were granted to her on November 30th. Behrems v. Ferreira. [July 13th, 1858.] Endorsement of agent, " q.q.," does not entitle to Provi- sional Judgment against the principal. Provisional judgment was sought for on a promissory note, endorsed " J. O. Francis, q.q. P. Ferreira." The defendant did not appear. Harding, C. J., and Phillips, J., held that the " (f.q." [qualitate qualibet'] required such an explanation as to destroy the liquidity of the document, and to prevent pro- visional sentence. Connor, J., considered that the defendant, having made default, must be considered as having admitted the sig* nature of his agent. Costs to be costs in the principal case, but Phillips, J., thought the plaintiff ought to bear the costs of his ovvn blunder. Queen v. Malinga. [July 22iid, 1858.] Caption of Indictment does not define the Venue ; but the Notice of Trial does. This was a case reserved by the Chief Justice from the Circuit Court at Ladismith ; the prisoner (who was unde- fended) having been tried there on an indictment headed " In the Supreme Court of Natal," and lodged accordingly ; but to which a notice of trial at the Circuit Court at Ladismith was appended. The majority of the Court (C. J. dissenting) over- ruled the objection, and held the trial to have been sufficiently transferred to the Circuit Court at Ladismith. BOSHOF V. LOTTER. f BOSHOF V. LoTTER. [July 22nd, 1858.] Judgment refused in the principal case on a promissory note given without valuable consideration. This was an action for the recovery of £23 16s., with interest, on a promissory note for that amount, dated 17th March, 1857. The plaintiff and defendant were neighbors, the former possessing farms lying on opposite sides of that of the latter, and between which there was an authorised road, passing close by the defendant's homestead. In the year 1856, defendant's cattle were lying near this road, dead and dying from lung-sickness ; and the plaintiff, therefore, having occasion to move his cattle from one farm to another, endeavoured to pass through the defendant's land at a different and more distant part. After proceeding some distance, he was met and stopped by the defendant, and ultimately, after some altercation, plaintiff turned back with his cattle ; but defendant brought an action for the trespass in the late District Court, which being defended by the present plaintiff, judgment was given for £1 dama- ges, with costs, amounting on both sides to £70 odd. Subsequently to this trial, Boshof prosecuted Lotter cri- minally, ia the Magistrate's Court at Weenen, for allowing his dead lung-sick cattle to remain unburied. Lotter was fined £10, and his own attorney's costs of the defence amounted to more than £20 in addition. Besides these matters of dispute, there were others ; of which those brought in evidence were about the alleged wilful obstruction by plaintiff of the flow of water to a dam in the Mooi River, by which defendant thought him- self injured in the supply of irrigation to his farm, and an alleged scandalous assertion by Boshof of Lotter, that the latter had stolen a mare belonging to the former; it having in fact been accidentally driven away from Boshof 's farm, among a number of stray horses belonging to Lotter. Both parties were members of the Dutch Reformed Church ; and Dr. Faure, their minister, having heard of these quarrels, arranged for a kerk-raad [church council] to be held at the defendant's residence, on the 17th March, 1857, where the various matters in dispute were discussed. 8 BOSHOF V. LOTTER. The memters of the raad thought that Letter had no real cause of complaint about the dam ; and the scandal about the mare was denied and explained away. The amount of £30 odd, fine and costs, paid by Letter, was subtracted from the £70 odd, damages and costs, paid by Beshof, and the difference was found te be £47 10s. The council thought that half of this (£23 15s.) ought to be paid by Letter to Boshof, thus equalizing their respective losses by litigation, and that henceforth they should live in peace as Christian brethren. Letter at first refused to accede te this decision, and was therefore teld that he would be put under an ecclesiastical " censure ;" the effect of which would be to exclude him personally from a participation in the ordinances of the church for the period of six months. Letter's wife and children, being informed of this result, besought him with weeping not to allow himself to be thus disgraced ; and he thereupon called Dr. Faure back, just as all the company were leaving, and expressed his willingness to submit to the decision of the Raad. Accordingly the note for £23 16s., due at a month, now sued upon, was drawn by the Secretary to the Raad, and signed by defendant. Before the note became due. Letter, by a letter, declined to pay it, on the ground that Boshof "s annoyances to him by the trespasses, dam, &c., were still continued; and the note was accordingly dishonored at maturity. Provisional judgment had been obtained in the District Court, and the defence now set up in the principal case was, that the note was obtained without consideration, and under duresse from Dr. Faure as Boshof 's agent. ' The latter part of the plea, however, was modified or withdrawn by Letter's counsel on the day of trial. [July 24th, 1858.] Buchanan, for the plaintiff, endeavored to show that a promise was good ground for a debt, and that the settlement of the disputes between the parties, by the raad, was a sufiicient consideration to support the note. Quoted Jacob's Law Dictionary, vol. 1, tit. "Consideration;" Harrison's Digest, tit. " Assumpsit," vol. 1, p. 379; Car- rington and Paynes Reports, vol. 3, p. 170, and vol. 2, pp. 378, 383; Chitty on Contracts, ed, 1841, pp. 26, 44, 46; Chitty on Pleading, vol. 1, p. 293, ed. 1836 ; Inleiding tot de Hollandsche Regtsgeleerdhcid, book 2, " Of Gifts," p. BOSHOF V. LOTTER. 9 455; Menzies Reports, pp. 25 and 26; Blackstones Com- mentaries, vol. 2, p. 445 ; Harrison's Digest, vol. 1, p. 1608. The Attorney General, for defendant, maintained that this was a nudum pactum, void of consideration, and as such, not capable of being enforced at law ; and that the settlement of claims, made by the defendant against the plaintiflF, could not be construed into a legal consideiation for this note. He quoted Bacon's Abridgment, pp. 293, 301; Voet on the Pandects, lib. 2, tit. 14, §§ 1, 2; and lib. 4, tit. 8, § 18 ; Pothi^r on Contracts, vol. 1, p. 24; Van der Linden's Institutes, p. 190 ; Domat's Civil Law, vol. 1, p. 33, § 5; Smith's Leading Cases, Lamplough v. Braith- waite. If the kerk-raad were regarded as arbitrators, they gave an imperfect and one-sided award, and one which they had no legal power to enforce ; and no legal consi- deration could arise out of an abandonment of any except a legal right. [July 29th.] The Court (C J. dissenting) gave judgment for the defendant ; but ordiered each party to pay their own costs. Harding, C. J., considered the plea of duresse as being entirely unsustained, and as therefore carrying away with it in its fall the plea of no consideration. So long as there was any causa debiti not forbidden by law, there could not be a nudum pactum; and such a causa might be found in the liability incurred by Lotter in driving away the plaintiff's mare, as also perhaps in some concession by the plaintiff about the dam, or even only in the procuring of neighbourly peace between the parties. He quoted 2%e Institutes, lib. 3, tit. 20, § 16; and Starkie on Evi- dence, vol. 1, p. 56, note (a) ; and stated that his judgment would be for the plaintiff. Connor, J., could not see any reciprocity or mutual be- nefit accruing to the defendant, as a consideration for this note, and therefore, as ex nudo pacta non oritur actio, the Court must decline to interfere to enforce its payment, whatever moral obligation the defendant m ight be under to pay it. The plea of duresse might be regarded as an 10 COPE AND ANOTHER V. JACQUES. unfortunate technical addition to that of no consideration. The kerk-raad were an ecclesiastical body, and not arhi- trators ; and it did not appear that at their meeting any consideration for the note had been mentioned i nor was any right of action surrendered by the plaintiff in return for it, that of trespass (as suggested by the Chief Justice) never having been contemplated. If the kerk-raad were arbitrators, their award was bad, being one-sided, Chitty on Contracts, ed. 1841, p. 761, and p. 15. Phillips, J., regarded the two pleas as possibly meant to be alternative — no consideration except the escape from the "censure." The kerk-raad were in the legitimate exercise of their functions, as quasi-arbitrators. No duresse whatever was proved as emanating from Dr.Faure; and the decision of the raad might, perhaps, be considered as abstractly equitable. The " censure " would have followed, not the refusal to give the note, but the unfor- giving spirit that would thereby have been evinced , nor would it, even otherwise, have been a sufficient duresse in law. The plea of no consideration had, however, been sustained ; defendant being under no legal or civil obli- gation to pay half of the total costs to which both parties had jointly been put. The Court, therefore, could not assist the plaintiff in recovering or enforcing payment of what could only be a voluntary gift. Nor could any set- tlement of the claims about the dam and the slander, or avoidance of litigation thereon by the defendant, be a legal consideration. Cope and Another v. Jacques. [July 29th, 1858.J Defendant in default allowed to give Counsel a ivatching brief only. Defendant had failed to enter appearance or file plea. JSacAanaw applied to appear for him on the day of trial. The Court allowed a watching brief only. VANDERPLANK V. JACQUES. 11 Behrens V. Cartwright. [September 2nd, 1858.] Resident Magistrates not empowered to issue provisiofial summons along with arrest. The defendant had been arrested on a writ issued by the Resident Magistrate of Durban, under authority of Ordi- nance 5, 1852; which writ also included a provisional summons. The arrest had been dissolved. Walker, for defendant, besides technical exceptions to the form and attestation of the writ of summons, contended that the Magistrate had no power to issue a provisional summons at all ; and on this ground the Court, after hearing Buchanan in reply, dismissed the summons, with costs. Insolvent Estate of G. A. Cope. [September 2ad, 1858.] Trustee has a Lien on Books of Estate for Ms expenses. Bvxihanan, on behalf of late insolvent (whos^ estate had been released from sequestration, on payment of a com- position), applied for an order to the trustee to deliver up the books 4ind other property of the estate. Walkffr, for the trustee, objected, on the ground that there had been legal and other expenses incurred in the management of the estate, the bills for which had not yet been presented or paid ; and the Court refused the appli- cation, with costs. Vanderplank, appellant, v. Jacques, respondents. [September 9t\ 18S8.J Execution issued, notwithstanding appeal. In this case an appeal had been noted from a judgment of the late District Court, given in 1855; but. as the 12 BEHRENS V. REGISTRAR OF DEEDS. Supreme Court at Cape Town had subsequently refused to entertain such appeals, no steps had been taken by the Registrar for forwarding the papers. Buchanan, for respondents, now applied for execution to issue, notwithstanding the appeal. Walker objected. The Court ordered execution to issue, upon A. Jacques, the remaining trustee, in his capacity as such, entering into security under the 31st section of Ordinance No. 14, 1845. Insolvent Estate of James Greetham. [September 9th, 1858.] Notice of objections affecting other Creditors in an Insolvent Estate to he given to all such Creditors, and not to the Trustee only. Buchanan, for Ernst Landsberg, a creditor on a bond, claimed a preference, instead of the concurrent rank awarded him by the trustee in the liquidation account. Notice had been given to the trustee; but the Court refused the application until notice had been given to all the other creditors through the Government Gazette. Behrens v. Registrar of Deeds. [September 9th, 1858.] Consti~uction of ^ 18, of Ordinance No. 3, 1846, as to set- tlement of disputes between Transferees and Registrar of Deeds. A diiference had arisen in 18.56 between the applicant and the Registrar of Deeds, as to the payment of duty on certain transfers arising out of the division of joint or partnership properties. The dues were ultimately paid on the 8th January, 1856, and, at the suggestion of the Registrar of Deeds, application was made to the Lieutenant Governor for their remission, which was subsequently re- fused. BuchanoTif for applicant, now applied for an order re- SYMONS V. FOSTER. lo quiring the Registrar of Deeds to appear before a judge at chambers, under § 18 of Ordinance No. 3, 1846. It was by consent agreed to regard this application as now referred to the full Court from a judge at chambers. The Attorney Genej-al, for respondent, contended that the section did not apply excepting to disputes pending before the Registrar of Deeds himself, and in which the dues had not been paid; the jurisdiction and responsibility of that officer ceasing when the dues and fees were received into the Treasury. [September 14th.] The Court agreed with the Attorney General, and dis- missed the application, with costs. Symons v. Foster. [September 21st, 1858.] Suspicions communicated lo Attorney General, and deposed to under summons before a Magistrate, not exempted from liability to damages as libellous. How far they are pri- vileged communications. Defendant was now Clerk to the Legislative Council, and formerly Clerk to the Magistrate at Durban. Plaintiff was now Master of the Supreme Court, and formerly Clerk to the Treasurer General ; during which clerkship, and about the end of October, 1853, a robbeiy of the Treasury Chest was committed, the perpetrators of which had not up to this time been discovered; and plaintiff's keys of the chest had been taken by violence from his office desk, where they were kept. In the year 1854, defendant performed for a time the duties of the plaintiff for their mutual convenience, and also lived in defendant's house in Pietermaritzburg, where he discovered and read a letter from one Paul Anstie, demanding payment of £200 on two bills due to Mr. Thackwray, of Graham's Town. Defendant also heard that application had been made to plaintiff for payment of about £150 for a farm, and that he had invested money in a mortgage, when it appeared to defendant on other grounds that plaintiff had then no 14 SYMONS V. FOSTER. pecuniary means of his own. Defendant had also observed plaintiff's conduct shortly after the robbery, at Durban, whither he was sent to watch certain parties who were supposed to be leaving the colony ; and imagined that it afforded farther grounds for suspicion- Defendant had mentioned his suspicions in 1854' to Mr. Allen, the Colonial Treasurer, then to Mr. Harding, Crown Prosecutor, and subsequently to Mr. Meller, Acting Crown Prosecutor; none of whom considered tiiem as sufiBcient ground for a judicial inquiry. In November, 1857, plaintiff was about to proceed on leave of absence to England, having pre- viously sent his family to the Cape Colony. On the 26th of that month, defendant spoke to Mr. Cope, Acting Attorney General, and mentioned his former communi- cations made to that gentleman's predecessors in office. On the 28th, he was formally summoned before the Resi- dent Magistrate as witness in a preliminary examination, and there recounted in his evidence all his former commu- nications to the legal officers of the Crown, including the last to Mr. Cope. For this last communication, and the subsequent evidence, he was now sued in an action for libel, for damages to the amount of £1000. Besides the general issue, there was a special plea of 6oKa_^(ie communication, with probable cause, and without malicious intent, in the course of a judicial proceeding or investigation. Henry Cope, late Acting Attorney General, being called to prove the conversation with defendant, BucJuman, for defendant, objected to the disclosure of a privileged communication to an official person, and quoted Phillips on Evidence, vol. I , pp. 284, 286, ed. 1829, and Roscoe on Evidence, p. 378. Walker replied, and quoted Stephens' Commentaries, vol 3, p. 460, The Court held that it was competent for the witness to object, but not for the defendant. Witness accordingly declined to give the evidence. Philip Allen, Colonial Treasurer, deposed to various conversations with defendant (Buchanan^s objection to this being overruled), and stated that, having made inquiries, he had found that the bills for £200 had. never been met, and that he had informed defendant accordingly. It was subsequently stated by defendant's own counsel. SYMONS V. FOSTER. 16 that up to the time of this trial these bills had not been paid. Walker, for plaintiff, dwelt strongly on the malice alleged to be exhibited by the defendant in his reiterated informations, as destroying the privilege of the commu- nications, and of the deposition ; and quoted Bacon's Abridgment ; Starkie on Libel, vol. 2, pp. 268, 74, 77, vol. 1, p. 95; Holt on Libel, p. 164; Cowper's Reports, p. 276, Peaks V. Oldham ; Stephens' Commentaries, voL 3, p. 460. Muchanan, for defendant, maintained that the commu- nications virere bona fide, and without malice ; and that their reiteration was justifiable, if their commencement was. Quoted Ordinance No. 18, 1845, §§ 32,33,34; and Jurist for 1856, p. 616, Reeves v. Smith. [Septemlier 28th.] Phillips, J., delivered the judgment of the Court (C J. dissenting) for the plaintiff, with £60 damages and costs. He regarded this as establishing no principle which could affect the safety of an honest witness in a judicial pro- ceeding ; there being no doubt that every deposition made bond, fide by such a witness is a privileged communication, and not liable to an action for libel. But if the bona fides be taken away and malice proved, the privilege is gone ; nor does the case of Reeves v. Smith , go further than to require external proof of express malice and ill-will ; and these appeared to have been sufficiently proved against defendant by the reading of the letter, the persisting in the charge after hearing from Mr. Allen that the £200 had not been paid, and the reiterated accusations before three different Crown Prosecutors. Connor, J., concurred, but grounded his opinion of legal and actual malice on the conversation with the Acting Attorney General, as referred to and proved by the depo- sition before the Magistrate, rather than on the deposition itself, which the conversation had probably occasioned. As to the legality of proof by the evidence of the deposition he quoted Roscoe's Criminal Reports, pp. 48, 49, ed. 1857 ; Jurist, 1856, p. 1096, Queen v. Scott; and regarded the reiteration of the defendant's suspicions, after they had been at first disregarded by the authorities, as evidence both of malevolence and of technical malice. Harding, C. J., was of opinion that the deposition 16 IN RE PLAYER AND GRANT AND MINOR CHILDREN. could not be received as legal evidence of the previous conversation, and quoted Phillips on Evidence, vol 2, pp. 560, 668. The case cited by Connor, J., was under the statute bankrupt lawr of England. Nor did the deposition prove the words as laid in the declaration. The only evi- dence of anything like express malice was to be drawn from Mr. Allen's testimony; and defendant was legally justified in going to Mr. Cope, and also in giving his deposition upon suminons before the Magistrate. Nor could malice be alleged because this summons had been procured by the previous conversation. Quoted Ordinance 18, 1845, §§ S2, 33, and 34, as showing that the defendant was compelled to give his testimony. Kerstemann clearly exempts a witness in a judicial matter from the imputation of legal malice ; nor did the first finding of the letter warrant such an imputation. Quoted Holt on Libel, p. 177 ; Espiiiasse's Reports, vol. 3, p. 32, Johnson v. Evans; CawpbeWs Reports, vol. 3, p. 293, Fowler v. Homer ; Jurist for 1856, p. 614, Reeves v. Smith; Chitty on Evi- dence, vol. 2, p. 411. On the authority of Kerstemann, however, voce " Injuria," he would, while giving a verdict for defendant, have adjudged him to pay all the costs of this action. In re Playjer and Ghant, and the Minor Children OF EACH. [September 28th, 1858.] Property of Minors not allowed to be sold even at an advance. Player and Grant were partners in trade, and had severally bought two contiguous plots of land, which had been transferred into the names of a minor child of each respectively. The firm, iiad subsequently built business premises on the conjoined plots, which premises were now valued as being worth £550. The plots of land, without the buildings, were valued at £110 and £120 respectively, having originally cost £80 and £62. Buchanan now, for the firm, applied for leave to pur- chase the two lots of land for an advance of £45 on the IN THE INSOLVENT ESTATE OF GOULDEN. 17 ]iurchase price of each, with a view to benefit the minors as well as the firm ; there being, in the advocate's opinion, some want of legality in the minors' titles. The Court {Phillips, J., dissenting) refused the appli- cation. LandoBerg v. Teustee and Creditors of Gbeetham, Insolvent. [September 29tli, 1858.] A Bond given for Mortgagor's own convenience, and to pro- tect his property from other Creditors, not entitled to preference in an Insolvent Estate, The Insolvent had, by a notarial bond for £500, dated 23rd September, 1857, mortgaged to his wife's father, the present applicant, all his moveable and immoveable pro- perty. Subsequently, wanting to borrow £150 on the pledge of some horses and mares, from one Archbell, he, on the 22nd October, 1857, made a declaration before a Justice of the Peace, that the bond above named was given orlly for his own convenience, and to protect his property from his other creditors. In consequence of this, and other information, the trustee had refused the bond a pre- ference in the estate. Buchanan, for applicant, claimed a preference ; notice having now been duly given to the creditors as well as the trustee. Quoted Insolvent Ordinance, § 108 ; Van Leeu- wens Manier van Procedeeren, p. 657 ; Tennant's Notary's Manual, p. 164. Walker replied ; and the Court refused the application, with costs. In the Insolvent Estate of Goulden. [September 30th, 1858.] Creditor, when called as witness, is bound to disclose all matters concerning his debt, as proved in Insolvent Estate. Adcock a creditor in the estate, had refused to be ejca- c 18 JONAS BEBQTHEIL, Q.Q., V. JAMES ARCHBELL. mined by the Judge at Chambers, touching matters tending to invalidate his claim on the estate. Buchanan, for the trustee, now applied for an order to compel him to answer, under § 65 of the Insolvent Ordi- nance. Walker objected. The Court ordered the witness to answer respecting all matters connected with his debt as proved. Costs of the trustee to be borne by the estate, and Adcock's by himself. Behrenb, Trustee of Greetham, v. Edmonstone. [November 2nd, 1868.] Award not final, not made a Rule of Court. Certain matters in dispute between these parties had been submitted to arbitration ; and the respondent, not having been able to produce his witnesses before the arbi- trators, they had awarded certain matters in favor of the application, and left the respondent liberty to prosecute his counter-claims at law. Buchanan, for applicant, moved that the award be made a rule of Court. Walker objected that it was not final, and was uncertain. Quoted Watson on Arbitration. The Court refused the application, on the ground of a want of finality in the arbitration. No order as to costs. Jonas Bergtheil, q.q. Helena Christina Fryer v. James Archbell, late Trustee of the Insolvent Estate of Charles McDonald. [November 6th, Tfh, and Sth, 1858]. Payment to authorised agents, by settlements in principals' accounts, good payment to principals. Richard Fryer, of Cape Town, was entitled to two JONAS BERGTHEIIi, Q.Q., V. JAMES ARCHBELI.. 19 dividends in the insolvent estate of Charles McDonald, of Natal, which subsequently and respectively were allocated by the trustee Archbell as £329 6s. lOd. and £318 13s. 3d. Before the dividends were payable, Fryer died, leaving his claim to his widow, in whose name, as principal, the present action was brought, and who had ceded it in trust, with other claims, to Home, Eagar, and Co., of Cape Town, in satisfaction of a debt due from the deceased to them, of £20,000 odd ; the surplus (if any) to be repaid to the widow. Home, Eagar, and Co. authorised the firm of Jung, Bergtheil, and Co. (of which the plaintiff Bergtheil was then a member, but resident in England) to receive the first dividend. On the 19th January, 1852, and before the liquidation account of McDonald's estate was con- firmed, the defendant Archbell, who was also agent for one Carl Landmann, went to Jung and Co's place of bu- siness, for the purpose apparently of demanding a debt due to Landmann of £320, in part payment for a farm. Jung, the resident partner, stated that the farm had been bought for, or made over to Home, Eagar, and Co., who would have to find the means of payment ; and as the di- vidend in McDonald's estate was shortly about to become due, the defendant gave to Jung a receipt for £320, on account of Landmann, and £9 6s. lOd. in cash ; taking in return a receipt for £329 6s. lOd., dictated by Jung, and written and signed by West, the managing clerk of the firm. Landmann's farm was never transferred to Home, Eagar, and Co., and in March, 1852, Jung died at sea; the estate of his firm was sequestrated, and ultimately be- came insolvent ; paying a dividend of 3s. 5d. in the pound, which dividend had been received on the £329 6s. lOd., by the plaintiff Bergtheil, during the course of this action. On 27th April, 1852, the defendant Archbell wrote to Edward Eagar, a partner in the firm of Home, Eagar, and Co., mentioning the fact of Jung and Co.'s insolvency ; and Edward Eagar, in his reply, dated 4th June, referred to " a sum of £300 odd," as being due to his firm from Jung and Co., for moneys received from the defendant. Jung and Co's books were also produced at this trial by the plaintiff. In the journal the £329 6s. lOd. was entered as received from Archbell to the credit of Richard Fryer; but was conjoined with other items, and balanced in a dif- ferent manner from that above described ; the entries being in the handwriting of Overbeek, then a clerk to the firm. 20 JONAS BERGTHEIIi, Q.Q., V. JAMES ARCHBEUi. In the ledger, Home, Eagar, and Co. were credited with the £329 6s. lOd. Of the second dividend £200 was first paid on account to Robert Eagar, son of Edward Eagar, who was autho- rised as Home, Eagar, and Co.'s agent, by letters, verbal instructions, and one or two powers of attorney, and who, in the defendant's presence, paid it over to one Repaold, who at the time was represented to defendant as having some undefined connexion with Home, Eagar, and Co. The balance of £118 12s. 3d. was placed to the credit of a general account between Robert Eagar and the defen- dant; which account included several drafts on Home, Eagar, and Co., that were duly honored ; and was finally balanced by a draft for £50, similarly honored and paid by that firm. The present action was brought for the recovery of the two amounts, with interest thereon. Seven preliminary objections were taken by the Attorney General to the plaintiff's standing in Court,right of action, and documentary evidence; but the majority of the Court {Connor, J., dissenting) preferred to hear the merits of the case before deciding on these objections. Buchanan, for the plaintiff, contended that the proba-- bility of Jung and Co.'s insolvency was known to the defendant, and that the settlement above described was premature, being before the confirmation of the liquidation account. He cited at length from the Commercial Adver~ tiser and Cape Town Mail of September, 1858, the case of Muller v. Kemp, with reference to both claims, and especially the latter. The Court, without calling upon the Attorney General to reply, gave judgment for the defendant, with costs. Harding, C. J., agreed with Justice Cloete's judgment in the case of Muller v. Kemp, that a settlement of ac- counts was good payment, even if the coined money did not actually pass ; but there was this difference between that case and the present, that there the auctioneers set off their own private debts, while here the agent set off only that of the same principal, to whom also the payment was credited in Jung and Co.'s ledger, and who, in Edward Eagar's letter, acknowledged its receipt by their agents. A considerable period liad elapsed between the date of the BEHEENS V. EDMONSTONE. 21 settlement and that of Jung and Go's insolvency ; and it was impossible to make the defendant responsible, either for their misconduct, or for that of Robert Eagar, to whom the second dividend had been paid in account, and who had been put into the position he held by the very parties who were the substantial plaintiffs in the present action. Connor, J., entirely concurred. Whether the plaintiff were to be regarded as representing Mrs. Fryer, or as former partner of Jung and Co.'s firm, he could not claim a verdict ; she having ceded the debt to Home, Eagar, and Co., and the plaintiff's partner having received part of it for them. This case was not analogous to that of Muller V. Kemp, the whole transaction with Jung having been (according to the evidence) confined to the dealings of the principal, to the exclusion of those of the agent. The balance of £118 12s. 3d., placed to R. Eagar's account, was more analogous to the case tried at Cape Town ; but even with regard to this it would be almost impossible for Home, Eagar, and Co. to maintain an action against the present defendant, without at the same time having their own culpable agent before the Court, in such a manner as to give the defendant a power over him again. Phillips, J., entirely and wholly concurred with the Chief Justice ; but went farther, and thought that this action ought never to have been brought in face of the receipts filed in Court, and accessible to the plaintiff. Notliing but overwhelming evidence could justify such a course; and even if the verdict could by any possibility have been given for the plaintiff, yet be, for one, would have ordered the costs incurred by the defendant, in sup • porting the receipts by evidence, to be borne by the plaintiff. Behrens, Trustee of Greetham, v. Edmonstone, [November 13th, 1858.] Provision refused on promissory notes included in a pending arbitration. Defendant was sued for provisional payment of three promissory notes, being part of the matters included in the award mentioned supra, p. 18. 22 GREEN V. WOOD. Walker objected, on the ground of the pending award. Provision refused. Costs reserved. Forbes v. Forbes. [Novemljer 25th, 1858.] Father entitled to custody of Minor Children. About five years previously, applicant's wife had left him, taking with her two boys of tender age ; and a daughter was subsequently born. Affidavits were put in to prove that subsequently she had cohabited with other men, and had borne other children. Buchanan now, for the father, applied for the custody of the children, and put in affidavits of the Congregational Minister and Deacon, attesting applicant's good character during the last two years. Walker, for the respondent, replied that she had been compelled to leave her husband in consequence of his in- temperance and ill-treatment; and that applicant had never, during the separation, contributed towards the chil- dren's support. Counter affidavits were exhibited to prove that the applicant had formerly been an habitual drunkard, and had been convicted of theft. The Court (Phillips, J., refusing to interfere) ordered the children to be given up to the father forthwith. No order as to costs. Green v. Wood. [November 30th, 1858.] Variance between summons and document sued on, not fatal to provision. Provisional judgment was sought for on a cheque for £,2\ 17s. 3d. The summons, by a clerical error, claimed only £21 7s. 3d. ; but the copy of the cheque annexed was correct. The Court overruled the objection taken by Walker to the summons. queen v. moreland. 23 In the Insolvent Estate of John Morel and. Taking over a principal's debt good consideration for a pro- missory note by agent. The insolvent, having settled with his creditors, was about to receive back the balance of his estate ; but ob- jected to pay £55 6s. 4d. on a promissory note to G. C. Cato, which had been given by him for the purpose of avoiding litigation, by meeting a dishonored bill drawn by him personally on his principals, Byrne and Co., and for their business. The Court held the consideration good, and the debt valid. GUEEN V. MoRELAND. poth, 21st, and 22nd November, 1858.] Defendant not to address Jury unless he also cross-examines the Witnesses. Evidence of hand-writing, facts, and malice of libel. Crown witnesses not made available for the defence. This indictment was for injury to the character of a public officer, by writing certain anonymous letters, and also by certain words spoken upon another occasion, or other occasions, to the effect that Mr. Allen, the Colonial Treasurer, was suspected to be guilty of the robbery of the Treasury Chest, mentioned supra, p. 13. Defendant, Laving commenced the cross-examination of the witnesses for the Crown, by leave of the Court gave over that task to his counsel ; and was therefore subse- quently not allowed by Phillips, J., the presiding judge, to address the jury, Archbold's Pleading and Evidence, pp. 142, 145. It was also ruled, that for the purposes of this trial, it was not necessary for the Attorney General to prove that 24 QUEEM V. MORELANO. there had been a robbery, or that it was not a theft or a petty larceny. The Attorney General pat into a witness's hand a certain letter admitted to be written by the defendant, for the purpose of comparison with the hand-writing of the ano- nymous libel. Cope, for the defendant, objected to the comparison of any selected document not already put in evidence for other purposes during the trial. Quoted JRoscoe on Cri- minal Evidence, Documentary, pp. 202, 203, ed. 1857 ; Archbold's Criminal Pleading and Practice, p. 220, 12th edition ; Greenleaf's Law of Evidence — Criminal Cases, pp. 611,615, ed. 1842 (an Aaierican work); Willes on Circumstdntial Evidence, TpTp. 110, 112. The Attorney General replied, and quoted StarMe on Libel and Slander, vai 2,, p. 26, case of Goodtitle, dem. Rivett, V. Braham; Espinasse's Reports, yo\. i, Kinc/ v. Cater; The Times, June 19th, 1858, containing case of Hvghes v. Lady Dinorhen, under the Common Law Pro- cedure Act of 1854; and Taylor on Evidence (American), pp. 324 and 428. Phillips, J., referred to Judge Powell's dictum on Al- gernon Sidney's trial, and following the superior weight of authorities, sustained Cope's objection. He only allowed one slander to go to the jury under the second count ; two or three of different dates having been conjoined ; and would not permit the verbal slander to be given as evidence of malice in the written libel. Goodricke, for the defendant, applied to have the wit- nesses subpoenaed for the Crown, but not called, made available for the defence ; and quoted Archbold's Pleading and Evidence, p. 248 ; but the application was refused. The jury acquitted the prisoner of the libel, bat con- victed him of the slander ; and (in consequence of a hint dropped by the judge) the defendant's counsel moved in arrest of judgment. Judgment was therefore deferred until the last day of next term. AROHBELL V. LANDSBERG. 25 CrOWDER V. COKPOEATION OF DuRBAN. [January 4th, 1859.] Technical exceptions discountenanced ; additional information not a variance ; name of Corporations of Boroughs. This was an argument on exceptions. The action waS for damages on account of a large quantity of damaged rice destroyed as being a public nuisance. Walker, for the defendant, had filed a bill of exceptions; two of which were argued ; viz. that the summons did not allege any persons as perpetrators of the destruction of the rice, while the declaration did ; and that the Corporation were wrongly sued as the " Mayor, Councillors, and Burgesses," instead of the " Mayor and Councillors " only. The Court, without calling on the Attorney General to reply, dismissed the exceptions with costs. It discouraged altogether the practice of bringing technical exceptions, or "special demurrers " in the nomenclature of the English law ; held that the additional information given in the declaration respecting the same subject matter did not (like an additional claim or a change of persons or objects) constitute a variance under the I6th rule of Court ; and that the Corporation were properly sued under the " name " of •' Mayor, Councillors, and Burgesses " given them in Ordinance 1, 1854, ^ 3 ; the name in the Ordi- nance 10, 1856, applying only to acts done under that Ordinance. In the Insolvent Estate of Greetham. Archbell - AND OTHERS V, LaNDSBERG. [January 4th, 1859.] Bona fides in a bond entitles it to rank in an Insolvent Estate. Certain creditors of the Insolvent had joined in an appli- cation, on November 2, 1858, to deprive the bond men- tioned supra, p, 17, of all title to a dividend, Buchanan now put in an affidavit of the respondent, attesting his bona fides in the transaction ; and no evidence being adduced in rebuttal, the application was dismissed with costs ; but the applicants were allowed to prove for D 26 QUEEN V. BOTHA. these costs as concurrent creditors hi tlie Estate of the Insolvent ; this being the only possibility the Court could see of ultimately throwing upon him the costs occasioued by his fault. Queen v. Botha. [January 6th, 1859.] Trial removed to Circuit Court for convenience of Prisoner. The prisoner had been indicted in the Supreme Court for an offence conimitted within the extreme northern boundary of the Colony, and was now confined in the gaol of Pieternoaritzburg. Walker now applied to have the trial removed to the Circuit Court at Ladismith, on the ground of the presence in that neighborhood of the prisoner's witnesses, family, and friends. The Attorney General objected ; put in an aflBdavit of the Clerk of the Peace for Pietermaritzburg that, in' the opinion of some of the English inhabitants of Ladismith, the prisoner would be acquitted by a Klip River jury of whatever crime he might be accused (such were the sym- pathies of the Dutch population there) ; and offisred, on the part of the Crown, to pay the witnesses both for the prosecution and the defence an advanced daily sum for their expenses in coming down to Pietermaritzburg. Being repeatedly asked by the Court if he considered that it would not be for the interests of public justice to have the trial at Ladismith, he declined giving any opinion of his own to that effect, further than he had already e::- pressed it by filing the indictment here. The Court therefore unanimously ordered the removal of the trial to the Circuit Court at Ladismith. Harding, C. J., held that the Attorney General had the right, without giving reasons, to state that the ends of public justice required the trial to be in this Court ; and had such statement been made, it would have had great weight with him ; but as it had not, the 35th section of Law 10, 1857, seemed to include the "convenience" of the prisoner as well as that of the Crown ; and it was therefore the duty of the Court to follow that law, and to IN THE INSOLVENT ESTATE OF JOHN MORELAND. 27 transfer the trial to Ladismith, for the " convenience " ot the prisoner, as attested in his aflidavit, Phillips, J., objected altogether to the Crown dragging a prisoner from one end of the Colony to the other in order to try him ; and while he concurred in the view taken by the Chief Justice of the present state of the law, he hoped that it would soon be altered so that every prisoner should be tried in the county or neighborhood where the offence was alleged to have been committed, Connor, J., also agreed in the exposition given by the Chief Justice of the present state of the law. Whether it were right or wrong was not now the question. It may possibly have been formerly thought requisite under the peculiar circumstances of Natal. It was the province of the legislature to change it, and of the Court to act upon it while it existed. In the Insolvent Estate or John Moreland. [January 6th, 1859.] Interest at 6 "per cent, payable on all debts proved in an Insolvent Estate, when there is a surplus left in the Estate. Vide supra, p. 23. Cope, for E. P. Lamport, as representing Byrne's estate, claimed interest on the sum of £63 12s. 9d. costs in an action for the reduction of certain deeds of transfer in 1852. Judgment had been given, execution issued, and a levy made to the full amount, in March, 1852, when the insol- vent surrendered his estate, and thus necessitated the with- drawal of the writ, in which interest was not claimed. Quoted Grotius, pp. 323, 324, §§ 8, 9, 326, § 10 and note ; Van Leeuwen (English edition), pp. 339, § I ; 342, |§ 8, 9 ; Archbold's Practice, ed. 1853, pp. 178, 613 ; Van der Linden's Institutes, pp. 422, 423, | 2, 218, 197 ; Domat's Civil Law, vol. 1, pp. 131, 132, 407, 408, 416, 417, 419, 420 ; Insolvent Ordinance, W 33, 107. Buchanan, for G. C, Cato, made a similar claim for in- terest on two promissory notes, and £67 6s. 8d. for goods sold and delivered ; all which had been proved in the same insolvent estate ; and argued ihe abstract justice of the al- 28 IN THE INSOLVENT ESTATE OF JOHN MORELAND. lowance of interest upon them, and its accordance with the sections 33 and 107 of the Insolvent Ordinance. It was ascertained, by the documents of the estate filed in Court, that the surrender took place in March, 1852, and that no liquidation account had been filed (nor appli- cation made for extension of time so to do) until October, 1868,— Vide Insolvent Ordinance, % 108. Walker, for the insolvent, dwelt on the hardship of com- pelling his client to pay six years' interest on debts proved in his estate ; the creditors having, through their trustees, themselves kept the estate from being wound up ; and never having previously demanded interest. Quoted Merlin's Repertory of Roman Jurisprudence (French), vol. 15, p. 435. It was, however, shown by the other side, that, until re- cently, no eflfects whatever had been available in the estate ; and that a surplus was an unexpected contingency. The Court {Harding, C. J., dissenting) gave judgment for 6 per cent, interest on all the debts now claiming in- terest, from the date of the order of sequestration to the time of payment. Costs to be paid out of the surplus. Phillips, J„ grounded this decision not upon the Roman Dutch law, but upon the Insolvent Ordinance alone, and particularly on § 107, as explained by § 33. It appeared probable that the framers of the Ordinance did not contem- plate interest continuing beyond the six months limited for the first liquidation account; but this not being expressed in the statute, interest must be adjudged up to the time of payment of the debt, when a surplus existed. Connor, J,, concurred. While the present question was to be decided by the Insolvent Ordinance, doubtless the framers of that Ordinance had been influenced by the Bo- man Dutch law, which appeared to be liberal in the allow- ance of interest on debts generally. If a creditor is kept out of his just debt, after demand made, he should get what alone makes his money valuable, viz., interest or " fruits " — so called in Grotius, and other Roman Dutch books — or otherwise he is robbed of that which ought inva- riably to follow the principal. In Van der Linden, interest or fruits withheld was reckoned among damages to be re- covered ; and this was a piece of justice in the Roman Dutch law that the English law was gradually coming to. The former gives interest on a debt from the time of a ju- IN THE INSOLVENT ESTATE OF JOHN MOKELAND. 29 dicial demand, signified by tlie commencement of an action ; and the order for sequestration, stopping all pro- ceedings by the creditors, "was analogous to the commence- ment of actions by all of them simultaneously. A similar analogy was recognized in Ireland under the Encumbered Estates' Act, with reference to the Statute of Limitations. It appeared to be the intention of the framers of the Insol- vent Ordinance that every creditor's claim should be ren- dered complete np to the date of the order of seques- tration, and then, instead of allowing interest on all equally, to allow interest on none, as the more con- venient course where there was a deficiency ; this amounting to the same thing as regarded the mutual rela- tion of the creditors to each other ; but where there was a surplus, and the creditors then came into relation with the insolvent himself, it was not unduly straining the words " all claims " in § 33 to allow interest on all demands whateveJ", understanding by " claims " the accumulated debts of principal and interest up to the date of sequestration. A similar provision was introduced in England by an act of 6 Geo. IV. that where there was a surplus in a bankrupt estate, interest should be paid. The creditors, being supposed to have all commenced their actions simultaneously, at the date of the order of sequestration, must be supposed by the principles of Roman Dutch law to be all on a par, and all equally well entitled to interest ; and 6 per cent, being recognized by I 29 of the Ordinance, it must be computed at that rate. Harding, C. J., distinguished between the several claims made by the present applications. That of Lamport for a bill of costs, and that of Cato for goods sold and delivered, were not entitled to interest as made before the Master, nor in fact was interest then claimed upon them. Cato's two promissory notes then claimed and were entitled to interest. If then what took place before the Master was tantamount to the commencement of an action, the action for the former debts was commenced without any claim for interest, and in an action no plaintiff can be awarded by the Court more than he has claimed in his declaration, or in what the Roman Dutch law calls " interpellation." The words " all claims," in § 33 of the Insolvent Ordinance, must be restricted to all claims entitled to and bearing 30 BEHHENS, Q.Q., V. HARTLET. interest ; and not be extended to those which otherwise would bear no interest. Else it would be a positive dis- advantage to an insolvent to pay 20s. in the pound, and have a surplus in his estate, as he would thus have to pay interest, which he would not have to pay but for his insolvency. It was doubtful whether, under the Roman Dutch law, a bill of costs could, under any circumstances, be chargeable with interest ; nor was any interest claimed in the writ originally issued for these very costs. To award interest now was adding to the judgment of the late District Court what that judgment never intended to give, and did not at all express. IS'o ore can legally be charged with interest, except by an agreement expressly made or tacitly implied by a demand made for the principal and mora incurred ; — Van Leeuwen, p. 142; Potliier, book 1, chap. 2, §145; Voet, lib. 45, tit. 1, §| 24,25,26. To make that mora available against the insolvent, interest should at all events have been claimed by Lamport and Cato, which (in the case of the two claims above specified) had not been done. According to § 108 of the Ordinance the first liquidation account in this estate should have beea filed in September 1852 ; and if the trustees had failed in thus complying with the Ordinance (without showing the Court that they required further time), it was no reasoa why the Insolvent should be mulcted of six years' interest out of the balance of his estate, and thus pay the penalty of their neglect. Even on the promissory notes to Oaio no Interest should be payable beyond 6 per cent for 1 he six months allowed for the filing of the first liquidation account; while on the other claims it was not properly payable at all. Behhens. Trustee of Gou index's Insolvent Estate, V. Hartley. [January 6tli, 1859.] Suit for undue alienation of property of Insolvent not a "simple original claim" under the 1 5th rule of Court. Defendant had been sued for £16 odd, the value of goods unduly received previous to the insolvency, and also to show cause why be should not be adjudged to have for- feited his debt under the 88th and 89th sections of the DAWNEY, QQ., V. COWARD. 31 Insolvent Ordinance. Without waiting for a declaration or notice to plead he had pleaded to the summons under the 16th rule of Court ; and the plaintiff had subsequently filed his declaration. Walker^ for defendant, now applied to have the de- claration taken off the file ; but the Court, without calling on Buchanan to reply, refused the application with costs. BosHOF V. Williamson. [January 11th, 1859.] Provision refused on prohahility shown by Affidavit of Promissory Note having been settled. Provisional judgment was sought on a promissory note for £\6, dated in 1851, and payable at a month after date. Affidavits were put in to show that various and numerous settlements had since been made between the parties ; and the defendant swore that to the best of his belief this note had been included in one of (hem. Ah action had also been brought in 1857, and had been settled by the defen* dant, with a set-ofi" allowed as claimed by him. No affi- davit of the plaintiff's was brought in rebuttal, and r demand had been made until Angust last. Provisional judgment was refused by the Court — costs reserved. Phillips, J., would have given the costs of the provision in favor of-the defendant, in consequence of the absence of plaintiff's affidavit in support of his case. Dawney, Executor of Paxton, v. Coward. [.January 11th, 1859.] Venue changed for connenietice of defendant to Ike county where the cause of action arose. Walker applied to remove this case to the Circuit Court at D' Urban or Verulara ; the defendant and nearly all his witnesses residing not far from the latter place. Buchanan objected, on the ground that the plaintiff had a right to choose his own forum, and preferred to have the case tried in this Court. 32 CHOWDEB V. CORPORATION OF DURBAN, It was ascertained that the cause of action had arisen within the county of Victoria. The Court therefore ordered the removal of the case- to the next Circuit Court that should be held for the county of Victoria.- — Costs to be costs in the cause ; Connor, J., considering that, as the plaintiif had a right to bring his action here at first, the costs of the removal were legitimately incident to its prosecution. Buchanaris objection struck at the existence of Circuit Courts alto- gether. Phillips, J., would have made each party pay his own costs ; defendant as he came to ask for a favor and had got it, and plaintiff because he had improperly opposed the application. Chowder v. Corporation of D'Urban. [January IStli and 25th, 1859.] Venue of Jury Trial to remain unchanged, for the sake of impartiality. Vide supra, p. 25. Walker, for the defendants, moved to have the trial re- moved to the Circuit Court at D'Urban, on account of the inconvenience and expense attending the transport of an expected large number of witnesses. It was stated that a jury trial would, in that case, be demanded. The Attorney General objected, on the ground that the jury there would be mainly composed of rate-payers of the Borough, and as such would have an interest in the result of the case. The application was refused, with costs ; Harding, C. J., considering that the word " conve- niently " in Law 10, 1857, § 35, had reference to other matters besides witnesses, and that the removal sought would not probably be " convenient " for so impartial a trial as one had before the Supreme Court, Connor, J., regarded this application as being wholly within the discretion of the Court; and as no specific statement had been obtained of the probable number of rate-payers on the next panel, the Court would not exercise a wise discretion in ordering the removal from the Court in which the suit was originally instituted. QUEEN V. MORELAND. 33 Phillips, J,, was further of opinion, that not the direct interest of the ratepayers merely, but the interest and dis- cussion aheady occasioned on this subject in the Borough and neighboring parts of the county, might possibly inter- fere with the ends of justice. MiLLAN V. MiLLAN. [January 27th, 1859.] Divorce not allowed until after action brought for restitution of conjugal rights, when both spouses are within the jurisdiction of the Court. This was a suit for a divorce a vinculo matrimonii, on the ground of malicious desertion ; the wife having left her husband's house about two years since, and gone to live with her father, in another street of the same town. Resti- tution of conjugal rights had been formally demanded by notarial letter ; but had not been made the subject of a suit, nor sought as an alternative in the present decla- ration. The defendant wife did not appear. The Court (after hearing Walher for the plaintiff) unani- mously refused to grant either the divorce or a decree for the restitution of conjugal rights under the present action ; maintaining that the latter should be the subject of a dis- tinct suit, the decree on which, with proof of disobedience thereto, could alone be the foundation of the subsequent action for divorce. Quoted Menzies' Reports, pp. 146 et seqq. Defendant was, therefore, absolved from the instance. Queen v, Mobeland. [January 27th, 1859.] Verbal Slander of a Public Officer an Indictable Crime. Vide supra, pp. 23, 24. Cope, for the defendant, moved in arrest of judgment and to quash the conviction, on six grounds; viz., 1st, E 34 QUEEN V. MORELAND. That verbal slander of any kind was not an indictable of- fence ; 2ndly, That three separate and distinct charges (as appeared by the evidence) had been conjoined and appeared as if one in ihe indictment; 3rdly, That the two not sent to the Jury had been practically before them in aggravation of the third ; 4thly, That the indictment was not sufficiently specific to warrant a conviction, being for " conamitting an injury hy writing to," and for " speaking words detrimental to the character of a public officer ; " thus conjoining the two alleged offences of libel and slander in one indictment, though in two counts; 5thly, That there was no averment of the circulation of the slander, or that it was against the "honor and reputation " of Mr. Allen ; and 6thly, That the day of the month was not specified, as required by the Cape Rules of Court, which were the rules of this Court in criminal cases. Under the first objection, he quoted Gro- tius, Herbert's edition, pp. 435 § 17 ; 443, 444 ^§ 1, 2; 447, 448 §§ 1, 2, 3 ; Van Zeeuwen, p 481, cb. 37 §§ 1, 2 ; Van der Linden, pp. 260, 340, 341 § 16 ; Stephens' Commentaries-, vol. 3 p. 466 ; Woolridge on Misdemeanours, p. 377. Un- der the other heads, Rides of the Cape Supreme Court, pp. 56, 57, ^^ 58, 63, 64 ; Archbold's Crown Practice, pp. 7, 8, 9, 13 ; Van der Linden, ubi supra. The Court decided that the first objection only should be answered by the Attorney Genei'al ; the rest having no material weight in themselves, even if they were not, at this stage of the proceeding, (by the 39th and 40th rules of Court) expressly excluded from consideration as in arrest of judgment. The Attorv£y General contended that this offence was, by the Roman Dutch law, a crime, and as such to be pro- secnted in the usual course of criminal procedure. He quoted Carpzovius on Punishments, vol 2, chap. 86, ^^1, 3, 4, 7, 8, 22, chap. 91, § 1 ; Holt on Libel, p. 9; Starkie on Libel, vol. 1, p. 29 of Preliminary/ Discourse; Voet, lib. 47, tit, 10, §§ 8, 9, 17, 18; Menzies Reports, p. 464, Machay v. Philip, and p. 469 ; Grotius, pp. 430, 432, 435, 448. Tliis last work, as quoted by Cope, he considered to be confined to the civil claims arising out of criminal torts. Archbold's Criminal Pleading, 13th edition, p. 698. He claimed for Mr. Allen, as Treasurer of Natal, and a member of the Executive Government, a position different from that of a private person, and such as would fully justify the public prosecution of the scandal. QUEEN V. MORELAND. 35 Coipe, in reply, drew a distinction between an indictable offence and one which subjected to a penal action, under the Roman Dutch law, for reparation and a penalty to the poor, or to some public institution. Quoted Bacon's Abridgment, vol. 7, p. 122, Woolridge ubi supra, Menzies' Reports ubi supra. The Court affirmed the conviction. Hardirtg, C. J., gave a short review of the Roman Dutch law of slander and libel, as compared with the law of England. All published writings or representations which reflect moral turpitude on any one, or place him in such an ignominious or ridiculous light as to have a pro- bable tendency to provoke to private acts of revenge and a breach of the peace, are considered libels and punishable as such. There is, however, a difference between libel and verbal slander or defamation. Both, however, while sub- ject to public prosecution, as provoking to a breach of the peace, are now usually redressed by a civil action for da- mages, similar to that which, under the law in force here, is also open for damages accruing from other crimes ; and here slander (in particular) when not affecting a public officer, or some matter in which the public were concerned, may properly be left to this remedy of a civil action. The law of England is also analogous in this respect; see Blackstone's Commentaries, Christians e(fi^JOK,1803,pp. 122, 125 ; Russell on Crimes and Misdemeanours ; and the case of Rex V. Weltje, in CampbelVs Reports, vol. 2, p. 142. The Roman Dutch law is laid down in the quotations al- ready given from Carpzovius, Voet, and Van der Linden. The particular course of procedure laid down, however, by Voet, could not obtain here under a trial by jury ; an in- stitution unknown to the Roman Dutch law ; but as libels and defamatory writings were criminal offences in Eng- land and under the Roman Dutch law, so also slander here might, in some grave cases of a public nature, be the subject of an indictment, as the only available method of prosecuting a criminal offence; but the law of this colony does not contemplate this, unless the calumny is of a very grave nature, or one in the consequences of which the public are interested. Otherwise, both in England and here, there would be what is called in English law " an action on the case " for libel and slander, or else for the amende honorable et profitable, or damages only. The slander of which the present defendant had been convicted 36 QUEEN V. MORELAND. was both a great calumny and also one of public interest ; for surely it was a grave calumny falsely to accuse the Treasurer of robbing the chest confided to his care ; and the public were deeply interested in the safe custody of the public purse, and the probity, honesty, and integrity of its keeper. The conviction by the jury was, therefore, right ; and the law must take its course in the punishment of this offence. Connor, J., concurred. How far an indictment might lie for verbal slander, or whether the only remedy was by a civil action, was an extremely important question. So far as the English law was concerned, it was clear that, in- dependently of the scandalum magnatum, offences against judges and justices of the peace, and eases directly tending to a breach of the peace, indictments do not lie. But the authorities of Carpzovim and Voet, adduced by the Attor- ney General, had satisfied him that the Court could not decide otherwise than it had done, under that Roman Dutch law which was in force here (except so far as altered by statute) in consequence of its having been in use at the Cape, at the time that that colony was ceded to the British Government. Voet, in particular, was a leading authority ; and as the Court were without decisions that they could resort to, they could not get on at all without having re- course to such books as Voet, Carpzovius, Van der Linden, Van Leeuwen, and Grotius ; unsatisfactory as they were on the whole. Carpzovius expressly assigned criminal " pu- nishment " to slander ^ and this could in practice now only be secured by indictment, and not by any penal aciio injuriarum, which was here impracticable. According to Voet and Carpzovius, no criminal action would lie if the defendant could justify his slanderous words; but in the present case this had not been done ; and it had been held as an addition to the crime, that Mr. Allen was a member of the Local Government. Van der Linden indeed said that a criminal prosecution was " seldom " instituted, ex- cepting when the person slandered was a member of the government, or in the case of some uncommon calumny in which the public were interested on account of its conse- quences; and it must be considered an uncommonly grave calumny, and one in the consequences of which the public were interested, to have the Colonial Treasurer, whose office it was to keep the custody of the public monies, falsely charged with a robbery of those funds ; tending, as DUBOIS V. BAUMANN. 37 it did, to sap the foundation of all government, if such guilt had been incurred without any inquiry being made into it. Phillips, J., was not prepared to say that the conclusion come to by the majority of the Court was wrong ; but he did not like to see a criminail prosecution conducted under laws not clearly laid down in decisions, but raked up out of books published one or two hundred years ago. He was not sure, however, but that, after anxious deliberation, he should be compelled to conclude that there was no other course left open to the Court, under the circum- stances, but to say that the conviction was right according to the law at present in force. The defendant was then reprimanded by Phillips, J., who had presided at the trial, and sentenced to pay a fine of 20s. to the Queen, and to enter into recognizances to be of good behaviour to Philip Allen, and all Her Ma- jesty's subjects, for a period of twelve months. Corporation of Pibtermaritzburg v. Wagner. Same v. Pistorius. [January 27th, 1859.] Corporation allowed to conduct their own cases as Attorneys, with the Mayor as Counsel. Walker, as a member of the Corporation, applied for leave to them to conduct these cases themselves ; various circumstances having prevented them from obtaining an attorney in whom they felt confidence. Leave was given, on condition that the Mayor only should conduct the cases on the days of trial. Dubois v. Baumann. [January 31st, 1859.] Trespass and Aggravations may form one Claim for Damages. This was a review of a case in the Magistrate's Court at D'Urban ; which had been dismissed on the technical ground of uncertainty in the summons. Defendant had bought a house and garden at D'Urban, of which the plaintiff ' as at the time occupier. As she 38 BEHRENS (trustee OF GOULDEN) V. HARTLEY. refused to give up possession of the premises, defendant had obtained an order from the Magistrate for her eject- ment at the end of a month ; but, as for that month she refused to pay any rent, defendant considered himself justified in attempting her immediate ejectment at once. During a succession of three or four days, therefore, he had come upon the premises, throwing down the fence and gate, breaking the windows, killing the plaintiff's fowls, drawing away her wagon, driving away her cattle, and using words alleged to be abusive. These and similar grievances were detailed in the summons under nine different counts, and a claim of £50 damages was made for the whole of them. It was objected by the defendant's agent, in the Court below, that some certain amount of da- mages should have been claimed under each head ; and the plaintiff's agent not having effectually disputed this view, but having only offered to confine his claim to one head, the Magistrate bad dismissed the summons on this ground, Goodricke now appeared in support of the judgment; but, without hearing Buchanan in reply, The Court reversed the judgment; ordering- the Ma- gistrate to proceed with the case. Costs of the review to follow the ultimate decision on the merits. Behrens (Trustee of Goulden) v. Hartley. [January 31st, 1859.] Bona fide pressure by a Creditor, and Purchase of Goods to account shortly before Insolvency, not necessarily an undv£ preference under the Insolvent Law. Vide supra, p. 30. Buchanan, for the Trustee, in this action claimed the re- stitution of £16 14s. 6d. to the estate from the defendant, and the forfeiture of his claim or dividend thereon, under the 84th and 88th sections of the Insolvent Law. Defendant had done business with the Insolvent from the first entrance of the latter into business, about two years before the cause of action arose ; and in one of his periodical visits to Pietermaritzburg, for the purpose of collecting his accounts, had called upon Goulden for the purpose of collecting an account due of £30 odd. Goulden was then in difficulties from the pressure of his creditors, and had two or more judgments out against him. The BEHEENS (tRUSTKE OF GOULDEN) V. HARTLEY, 39 former circumstance he stated to the defendant (but de- fendant was not aware of the latter) ; and further stated that he could not then pay the account, but believed him- self solvent, and hoped to pay everybody 20s. in the pound, if he could get time. Defendant threatened him with legal proceedings; but afterwards (in accordance with his cus- tomary method of doing business) asked if he had not any produce he could give to account ; in which case he offered to give him time for the balance. Several parcels of timber were pointed out ; which, with one or two other trifling articles, were bought by defendant for the amount now sued for, and a promissory note at a month was given by Gonlden for the balance of the account. Before making out the bill of parcels, Goulden expressed a doubt as to whether he was doing right in thus selling the timber ; when defendant said he would take the responsibility of that on himself, if Goulden were solvent. On entering the transaction in his ledger, Goulden had appended a me- morandum to the effect that Mr. Hartley would take the responsibility of the transaction ; which, attracting the notice of the trustee and of the creditors, had given rise to the present action. About ten days after the transaction above detailed, the insolvent surrendered his estate ; and his promissory note for £13 8s. -Sd. was proved by defen- dant in the estate, which paid about 4s. in the pound. On the same day when the transaction had taken place with defendant, Goulden had applied to purchase timber of another person on credit; and he had at the time other goods in his store, which defendant might have purchased in the same manner as the timber. The defendant had always distrusted Goulden, and had previously forbidden his clerks to sell goods again on credit to him. The Court, without calling on Goodricke to reply, gave judgment for the defendant, with costs. Harding, C. J., could not see one tittle of evidence to show that any " sequestration " of his estate was then "contemplated" by Goulden {Insolvent Law, § 84), though he was "in difficulties ; " or to bring home to the defendant any knowledge of such contemplated sequestration. No intention to prefer this creditor to others could, therefore, be inferred by the Court. It was necessary, (§ 86), " to show the existence of some collusive arrange- ment, mutual understanding, or common consent, between the insolvent and the creditor ; " but none such had been 40 In re player & grant and minor children. shown, bat the clear contrary ; especially as it-was evident that only a portion of the debt had been thus settled, when the whole might have been. The trustee, therefore, had not a leg to stand upon in this action ; the transaction hav- ing evidently been bona fide, and in the usual course of business. Connor, J., considered that § 84 ought to be construed strictly, and ^ 86 liberally, and both in favor of the creditor. The refusal of further credit, the pressure for the debt, the threatening of proceedings, and the taking of part of the debt, all concurred to show that defendant was rather hos- tile to the insolvent ; and clearly distinguished this case from an undue preference of a private friend. Phillips, J., concurred generally. [Harding, C. J., was absent from February until May terra, 1869.] In re Player & Grant and the Minor Children OF EACH OF THEM, [March 8th, 1859.] Sale of Minors' property again refused. Vide supra, p. 16. The Attorney General applied to the Court to authorize the transfer of the two portions of land and premises thereon to John Brown, and put in affidavit of the recent dissolution of the partnership, and of the" large amount expended by the firm on buildings, fittings, and materials, for a soap and candle manufactory there. He argued that no legal acceptance for the minors had been had of the donation, there having been no guardians appointed by the Court for that purpose. Quoted Grotius, p. 284. Connor, J., considered that, after the acts of the fathers as natural guardians, they were estopped from this objection now ; and he did not see what right they had to sell the children's property, unless for the full value of both the land and the buildings thereon. Phillips, J., regarded this application a& identical with that of Sept. 28th, last year ; and although he had then differed from the majority of the Court, he thought it improper for the applicants now to come and ask the Court COQUI V. BLOCH. 41 to do what was then refused, with no new facts alleged, except the subsequent dissolution of partnership. Application ordered to stand over. Cjiowder v. Corporation of D' Urban. [March 8th, 1859.] Application for further particulars of declaration refused. Fide supra, pp. 25, 32, Mr. Goodricke, the Mayor of Durban, applied for further particulars as to the " merchantable and marketable com- modities," besides starch, into which plaintiff might have converted the damaged rice ; this description being, as he contended, too loose and vague to be met by evidence on the day of trial. He referred to the practice of England, the Common Law Procedure Act, and Chittys Archbold's Practice, p. 1382. The Court dismissed the application with costs ; con- sidering the description in the declaration sufficient for the information of the defendants previously to the trial. CoQui V. Block. [March lOth, 1859.] Compulsory sequestration superseded by a voluntary surrender. The respondent had surrendered voluntarily, after the order and summons for compulsory sequestration had been issued and served. Buchanan applied for confirmation, of the order, for the sake of securing the costs to his client. The respondent did not appear. The Court declined making any order, leaving the taxation and allocation of costs to the Master, according to dates. Connor, J., thought it proper that some notice of the order for compulsory sequestration should accompany the petition for voluntary surrender, and that notice of the petition should be served on the suing creditor at the time of making it. Phillips, J., considered that the notice of surrender in the Gazette was information to all the world, and stopped all further proceedings against the insolvent. 42 CROWJDER V. CORPORATrON OF d'uRBAN. Crowder V. Corporation of D'Uebak. [March 28th, 1859.] Corporation hyelaws invalid when beyond the limits of the Ordinance. Special Town Council Meetings competent only for the purposes for which they were summoned. Nuisances to he abated by the act of the Town Council, and by express resolution. Vide s^ipra, pp. 25, 32, 41. This was a trial by Jury, Connor, J., presiding. The claim was for damages for the destruction of 1660 bags of damaged rice, and of the bags themselves, by the Cor- poration officers, on the alleged ground of its being a public nuisance by the effluvia emitted, and by its being liable to be surreptitiously mixed with breadstuffs exposed for sale, and thereby rendering them unwholesome. The rice in question was originally bought at public auction, at the Point near D'Urban, whence a portion had been subsequently removed to a house belonging to one Brunton, within the town, under the provisional and con- ditional sanction of the Mayor. The Council (at an adjourned special meeting, on 21st June, not called for this purpose), " considering it to be a public nuisance," had directed the Mayor to give notices to prevent its being brought into the borough, and requiring that already intro- duced to be removed and destroyed ; and, in case of non- compliance with the notices, vested him with discretionary powers to act. Repeated notices were, in consequence, given by the Mayor to the plaintiff, that the rice, if not removed, would be destroyed ; and on the 25th June the Mayor reported to the Council what he had done. No formal resolution having been come to at that meeting, the Mayor caused the Town Clerk to record upon the minutes his impression that it was the wish of the Council that the rice should be destroyed. The minutes, with this addition, were read and confirmed on the 28th. A plaint was lodged with the Magistrate against the nuisance by a constable, at the instance of the Corporation, on the 25th ; a summons was issued by the Clerk of the Peace thereupon on the 4th of August ; and on the 21st of that month the present plaintiff was convicted of a nuisance, and fined 5s. About the 7th of July the rice at Brunton's was inspected by the District Surgeon and another medical man, and certified CROWDEU V. CORPORATION OF d'uEBAN. 43 to be unfit for food ; and it was thereupon destroyed ; a wagon load or more taken from it having also been pre- viously destroyed in one of the streets of the town ; but this last quantity was withdrawn from the claim during the present trial. Policemen were also stationed to prevent the rice left at the Point wharf from being brought into or through the borough ; and it was in consequence of this ultimately abandoned by its owner, the plaintiff. On the 9th July the Town Council, by resolution, approved of the Mayor's acts in this matter. The Attorney General, for the plaintiff, objected that the adjourned special meeting (called for " ordinary business ") was not competent to take this matter of the rice into con- sideration ; that no resolution formally authorizing the destruction of the rice was passed until after the destruction bad taken place, and that the 23rd Corporation byelaw (relied on by Mr. Goodricke, the Mayor, who appeared in person) if applicable to this matter, was contradictory to the 56th section of Ordinance 1, 1854. He therefore objected to any evidence being led by the defendants to prove the nuisance. Quoted Taylor on Evidence, p. 1277, and Amory v. Delamere, 1 Smith's Leading Cases. Connor, J., sustained the Attorney General's objections. The Ordinance 1, 1854, conferred on Corporations, in his opinion, the power of destroying nuisances without giving compensation ; but so extensive a power over individual property should be exercised only in the most accurate, formal, and deliberate manner; which did not seem to have been the case on the present occasion ; the destruction having been left to the discretion of the Mayor by meetings not having proper authority, and having been carried into effect before the conviction for a nuisance was obtained. The 23rd byelaw appeared to apply only to ordinary scavengering, and, if read otherwise, and contradictory to the Ordinance 1, 1854, the Ordinance must be followed; the promulgation and confirmation of the byelaws by the Executive not giving them the force of law beyond the limits of the Ordinance under which they were enacted. No further evidence was therefore allowed to be given of the nuisance, and the Jury returned a verdict of £150 damages. Costs ordered by the Judge to follow the verdict. 44 BEHHENS (trustee OF GEEETHAM) V. EDMONSTONE. Jacques v. Gouws. [March 31st, 1859.] Whether presentation of an order must he alleged in a summons for provisional judgment. Buchanan sought provisional judgment on an order addressed lo certain parties in D'Urban, but which had not been paid. Walker, for the defendant, objected that the fact of the presentation should have been alleged in the summons. Quoted Menzies' Reports, pp. 61, 78, 79; Story on Pro- missory Notes ; and the case in the late District Court of Green v. Van Stade. The Court sustained the objection ; but on a subsequent occasion Connor, J., announced his intention of not con- sidering this as a precedent ; having subsequently recon- sidered the matter. Behkens, Trustee of Greetham, v. Edmonstone. [May 30th, 1859.] Surety can only claim for so much of amount secured as he has actually paid. Lien on chattels kept as security allowed. The insolvent Greetham and the defendant had had various transactions together ; in the course of which the former had, by endorsement of promissory notes and otherwise, become security for some of the defendant's debts. The promissory notes and other claims thus eventually proved upon the defendant's estate, or already paid by him previously to his insolvency, were sued upon by the trustee for their full amount ; and a claim was brought in reconvention by the defendant for wagon hire, and work, and fittings to wagons. The work consisted principally or entirely in breaking in oxen, of which defendant had retained six as security for payment for his trouble thereon. The Court unanimously permitted only the amounts paid by the insolvent or his estate on the promissory notes and other securities to be charged against the defendant ; and allowed the latter to retain the six oxen, and to have BEHRENS V, REGISTEAR OP DEEDS. 45 the balance due for his wagon hire and fittings proved as a claim against the estate. Costs awarded against the plaintiff simply, and not against the estate of Greetham. Behrens v. Registrar of Deeds. [May 30th, 1859.] Head " G." of Schedule No. 1, Ordinance 3, 1846, applies to a "partition" by metes and hounds between joint owners or owners in comfnon, and not to a transfer of an equitable interest under a secret trust. The applicant, Behrens, had purchased, as a joint speculation for himself and his friend Coqui, a building lot in Pietermaritzburg, and had had it transferred into his own name, Coqui, however, wished to have his half share of the interest in the whole conveyed to him, and on a deed prepared for this purpose the Registrar of Deeds had required payment of the usual transfer duty of 4 per cent, on the value. Buchanan, for the applicant, sought for a remission of the duty, under head G. of Schedule No. 1 of Ordinance No. 3, 1846. The Attorney General opposed the application on the grounds that the head G. in the schedule referred only to a partition between joint or common owners who appeared as such on the records of the Deeds Registration OfiGce, and to a partition in dimensions and not in interest. The Court refused the application on the last ground principally, without deciding on the former ; Harding, C. J., considering that " partition " respected an actual severment of landed property ; and that " share " meant the portion so severed. Connor, J., concurred ; and was of opinion that any other interpretation would give applicant a right to avail himself of head G, twice over, and would virtually put an end to transfer dues altogether, by enabling the claimant of an equitable or " conscientious " interest, however large it might be, to obtain under colour of it the virtual transfer of an entire property, free of duty. " Partitions " in English law, between tenants in common, always involved the mutual exchange of an abstract share for a tangible 46 BOSHOF V. WILLIAMSON. possession in the case of each individual interested ; but under the present deed Coqni had ostensibly nothing to convey or resign on his part in return for what he got; and, while the present case might perhaps involve some hardship in its principle, this would not be greater than that of many other cases resulting from the Ordinance. Phillips, J., was very unwilling to throw any discourage- ment in the way of secret, fiduciary, or (in the parlance of English law) cestuique or " equitable " trusts ; but must agree with the other judges that the partition under the head G. referred to materialities, and not to abstract interests or rights. No costs were claimed by the Attorney General in this particular case. BosHOF V. Williamson. [May 31st, 1859.] Lapse of time does not create a legal presumption of payment of a promissory note. Vide supra, p. 31. This was a trial by Jury, on a suit for payment of a pro- missory note for about £16, dated in July 1851, and pay- able at a month after date. The parties had had since then numerous transactions together ; and an action had been brought by plaintiff, and settled by defendant, in the course of last year. Defendant swore that he believed the note to have been settled for at some time, in the course of busi- ness; but plaintiff deposed more positively to the contrary being the fact. Buchanan, for defendant, contended that the delay did not legally and of itself create a presumption of payment, and quoted Menzies' Reports, p. 26, Watermeyer y. Neeth- ling. Phillips, J-, the presiding Judge, informed the Jury that the delay per se did not, under the colonial law, create a legal presumption of payment. The Jury found a verdict for the plaintiff; but the Judge refused to allow him any costs, after so long a slumbering on his rights. TROMP V. COLBORNE. 4-7 RyDEU V. COLENSO. [July 7tli, 1859.] New trial granted as to part of a Jury's Verdiot ; and not on the whoh'. The plaintiff had obtained a verdict from a Jury on various claims, to the amount in the aggregate of £143 2s. 6d., including a sum of £29 for board, lodging, and wages, in lieu of three months' tiotice to quit as a servant. The Attorney General now moved for a new trial, on the ground of a conflict between the verdict and the evidence (as given in the Judge's notes) ; and on the further ground of a want of precision on the part of the Judge in laying down the law as to summary dismissals of servants, and their justification. The Court unanimously declined to disturb the verdict of the Jury, excepting upon the matter of the £29 in respect of which they considered it contrary to the evidence and the law of the ease ; the former (as it appeared to their Lordships) indicating such a connection between the parties as might be dissolved by either of them at pleasure, and without any notice being requisite on either side. A new trial was therefore granted as to this sum only ; on condition of the defendant paying to the plaintiff the balance of £114 2s. 6d., and costs. No order made as to the costs of this application. Tromp v. Colbobne. [July J 9th, 1859.] Putative father not entitled to custody of a child. Buchanan applied for the giving up of a female child, alleged to be the above applicant's. Walker, for respondent, produced prima facie and unrebutted evidence to show that the applicant had not been legally married to the mother of the child. Application dismissed, with costs. 48 1% re player and gkant and minor children. In re Player & Grant and the Minor CniLDr.EX OF EACH. [July 30tli, 185U.] Leave granted to sell Minors fixed property if such sale be . shown to ie for the Minors' advenlage . Vide supra, pp. 16 and 40. The Attorney General, for the parents of the minors, renewed the application for leave to sell the properties herein ; produced a valuation by a tradesman of the land and buildings thereon (apart from the trade fixtures), appraising the piece of land belonging' to the infant Player at £110, that of the infant Grant at £120, and the buildings on the two jointly at J6205. He referred in support to a case recently decided at Cape Town, and reported in the newspapers ; but the title of which he did not give. Some discussion ensued as to how far arid under what circumstances buildings let into the freehold " by a tenant became the property of the proprietor ; but it was agreed that the decision of these points was not necessary to that of the present case. Leave was, therefore, granted to the guardians to sell the properties, on the parties finding real security, to the satis- faction of the Master, for £212 10s. for the infant Player, and £222 10s. for the infant Grant, with interest (at what rate was not specified). Harding, C. J., regarding this Court as superior guardian of the infants, considered it autliorized m sanctioning this transaction, as being for their advantage under the circumstances. CoTmar, J., had refused the former application, because it had not appeared to him to be to the advantage of the minors to sell the land for its mere value, when the minors might probably have a legal claim to the buildings also. That objection now being obviated, he concurred in granting leave. Phillips, J., had never regarded the buildings (being for purposes of trade) as belonging to the minors as owners of the land ; and considered the present transaction, there- fore, as being obviously in their favor.