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Citation
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Judgment date
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| December 1903 |
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Reported
A third person may lawfully prevent a constable’s assault when the attempted arrest is unlawful.
Criminal procedure – Illegal arrest – Right of a third person to prevent a police constable’s assault where arrest is wrongful – Limits on constable’s arrest powers under Ordinance No. 21 of 1902 – Use of force by police
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8 December 1903 |
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Reported
Magistrate has jurisdiction despite a higher statutory penalty, but Crown must prove purchaser was not entitled to hold fixed property.
Criminal procedure – magistrate’s jurisdiction where statute prescribes larger penalty – magistrate may impose smaller fine; Proof requirements in offences restricting transfer to certain classes – Crown need not prove accused’s ownership of property but must prove purchaser is not among those entitled to transfer under statutory qualification
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3 December 1903 |
| November 1903 |
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Reported
Mineral rights in the soil are immovable property and subject to transfer duty on sale.
Transfer duty; sale of mineral rights; minerals in situ are immovable (real) property; servitude to extract; registration contingent on payment of transfer duty.
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19 November 1903 |
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Reported
A notary who drafts an underhand will cannot validly obtain a testamentary benefit for his wife; intervention requires court leave.
Notary and wills — drafter of testament must not benefit; underhand wills prepared by a notary which confer benefit on the notary’s wife are tainted by a presumption of fraud; attesting witnesses — under common law a legatee or relation may attest an underhand will; intervention in pending actions requires court leave.
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17 November 1903 |
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Reported
Improper or informal commandeering by an unauthorised officer does not divest the original owner of title.
Martial law; Commando Law (No.10 of 1899) – commandeering private property – delegation of power to field-cornet – requisition formalities; effect of unlawful requisition – ownership not divested; annexation and surrender – not automatically converting inhabitants into subjects or making property enemy property; belligerent rights governed by pre-annexation law.
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17 November 1903 |
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Reported
The applicant is entitled to half the purchase-price and a child's portion of the other half; deferred transfer does not change sellers' rights.
Wills – mutual will; usufruct reserved to survivor; conditional sale to children taking effect after survivor's death; community of property – entitlement to purchase-price; deferred transfer does not alter sellers' rights.
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16 November 1903 |
| August 1903 |
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Reported
In active war, necessity permits a field commander to appropriate private funds for military purposes.
Martial law; Law No. 10 of 1899 s.48 — applicability limited to peace or external wars; law of war — necessity; field commander’s power to commandeer private funds for military purposes.
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25 August 1903 |
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Reported
A prospecting right (and purchase option) is a personal right that may be ceded without owner consent or notice unless delectus personae exists.
Mines and minerals — prospecting contract — distinction between lease of praedium rusticum and personal right to prospect; cession of personal rights and actions without grantor's consent; delegatio inapplicable to cession of rights; delectus personae limitation — test whether substitution makes reasonable or substantial difference; notice of cession to owner not required.
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21 August 1903 |
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Reported
Payment to the de facto Treasurer at a temporary seat validly discharged a State mortgage; Proclamation No.11 did not bar debt release.
Trust funds; occupation and confiscation—occupier cannot appropriate trust funds; Validity of payments to de facto government at temporary seat; Proclamation No.11/1901 concerns alienation/encumbrances on land, not release of State debts; Mortgage bond is security, not an interest in land.
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15 August 1903 |
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Reported
Belligerent burghers could lawfully capture and retain private property used for military purposes despite annexation.
Belligerent rights of irregular forces – effect of annexation on recognition of local government – capture of private property in military operations distinguished from pure confiscation – transfer of title by capture for warlike purposes.
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10 August 1903 |
| July 1903 |
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Reported
Whether enemy occupation and indicia of use suffice to divest ownership, and whether occupiers may confiscate trust funds.
Martial law / occupation – Effective occupation required before property in occupied territory acquires enemy character; mere indicia of enemy use insufficient to prove capture. International law / confiscation – Conqueror not entitled to confiscate trust funds of an occupied independent State for State purposes. Government receipts – Displaced government may validly accept trust payments and issue receipts at temporary seat of government. Statutory interpretation – Proclamation No. 11 of 1901 addresses encumbrances on property, not release of governmental debts. Property law – Mortgage bond does not constitute an interest in land
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30 July 1903 |
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Reported
Property brought into or situated within enemy-occupied territory, or sent into enemy lines with consent, is liable to capture.
International law — capture of private property — enemy occupation — intercourse with the enemy — property brought into enemy lines with owner's consent liable to confiscation — capture divests title; purchaser from captors acquires good title.
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21 July 1903 |
| May 1903 |
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Reported
Later Ordinance supersedes earlier prohibition; marriage to deceased brother's wife held lawful.
Marriage law — validity of marriage with deceased brother's wife; statutory interpretation — later Ordinance supersedes inconsistent earlier Placaat; application of expressio unius est exclusio alterius; statutory translation errors may require legislative correction
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15 May 1903 |
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Reported
Joining the enemy as a burgher makes property liable to capture and divests ownership upon lawful seizure.
Martial law; confiscation of property of burghers who join enemy forces; capture by competent military authority divests ownership; distinction from surrender with oath of neutrality.
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15 May 1903 |
| April 1903 |
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Reported
Forgery upheld for fabricated liquor passes despite no monetary loss; convictions quashed for lack of master-servant proof.
Criminal law – Forgery – Fabricated liquor permits and fictitious signatures – Prejudice need not be monetary; legal peril to licensed dealer suffices; Criminal procedure – Conviction under chap. 111 sec. 6(q) requires proof of master-and-servant relationship
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8 April 1903 |
| March 1903 |
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Reported
Interdict plus a third party's power of attorney to a defendants' representative does not create privity or cession allowing suit against the defendants.
Contract law – privity of contract – third party power of attorney does not create privity or cession enabling suit by subcontractor against employer
Pleading – declaration must disclose cause of action and allege fulfilment of conditions (e.g., expert determination of quantum) stipulated in settlement instruments. Civil procedure – exceptions for absence of cause of action and defective allegation upheld
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26 March 1903 |
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Reported
An Asiatic agent assisting an auctioneer was not "carrying on" a business under s.8; magistrates may impose consecutive sentences for multiple liquor offences.
* Interpretation of Chap. 33 s.8 – "carrying on a commercial business" – agent/servant acting for absent firm does not necessarily carry on business. Criminal procedure – sentencing – Chap. 108 ss.14 & 20 – magistrate may impose consecutive sentences for multiple offences
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24 March 1903 |
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Reported
A magistrate may impose consecutive sentences for multiple offences, though aggregating beyond jurisdiction is undesirable without preparatory examination.
Criminal procedure – consecutive sentences – Magistrate may impose consecutive sentences for multiple offences under ch.108 (secs.14,20) – Undesirable to aggregate sentences exceeding magistrate’s jurisdiction – preparatory examination advised
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24 March 1903 |
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Reported
Altering a date on a native travelling pass without intent to defraud does not constitute forgery.
Criminal procedure – Forgery – Alteration of document – Essential requirement of intent to defraud – Changing date on native travelling pass without evidence of fraudulent intent not forgery
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24 March 1903 |
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Reported
A confirmed liquidation and distribution account is not a liquid document and cannot sustain provisional sentence.
Civil procedure – Provisional sentence – Nature of document – Confirmed liquidation and distribution account is not a liquid document and cannot support provisional sentence.
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17 March 1903 |
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Reported
A sworn bona fide counter-claim exceeding magistrate jurisdiction suffices to uphold a jurisdictional exception.
Magistrates’ court — jurisdiction — exception — counter-claim above monetary jurisdiction — defendant’s sworn statement of bona fides — magistrate not bound to hear plaintiff’s evidence — adjournment and notice objections.
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5 March 1903 |
| February 1903 |
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Reported
An acquittal by an incompetent court does not bar retrial; obedience to superior orders defends only if not manifestly illegal.
Criminal law – autrefois acquit and competency of court-martial; martial law – defence of obedience to superior orders; onus of proof as to manifest illegality; circumstantial evidence and identification of body
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20 February 1903 |