Salm v Kohn [1914] ZATPD 17 (3 March 1914)

Arrest.-Incola.-Peregrinus.-Writ issued by a judge.-Mention of discharge on security or return day in writ.-Effect of omission.-Rules of Court 16, 17 and 18. Estoppel.-lrregularities in writ of arrest.-Acquiescence.

S, a peregrinus, was arrested under a writ issued by a judge ad fundandam jurisdictionem. The writ did not set forth that the arrest might be discharged upon security being given to the satisfaction of the sheriff, nor did it mention a retum day. On his arrest, S signed an agreement selecting domicilium citandi in the Transvaal, and arranged with a friend of his, who gave security for the amount of the claim against him -by the plaintiff, whereupon he was
released. .
Held, by the majority of the Court, that Rules of Court 16, 17 and 18 only applied to writs of arrest against incolae suspecti de fuga and not to writs issued by a judge against peregrini ad fundandam jurisdictionem. That writs of the latter kind should set forth that the arrest could be discharged upon security being given to the satisfaction of the sheriff, but that the omission of same could not prevent a person arrested from having the arrest discharged upon giving such security. That in case of such omission, the Court may, in a proper case, set aside the whole proceedings on the ground of irregularity.
That it was not an essential of such a writ to fix a return day, but that its omission could not prevent a person arrested from at any time moving to have the writ set aside.
Held further (BRISTOWII, J., diss.), that the agreement by S amounted to a voluntary acquiescence in any irregularities which the writ migM have contained, that such irregularities had been cured by his agreement and that he was therefore estopped from challenging the validity of the writ.