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Citation
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Judgment date
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| December 1904 |
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Reported
A practitioner acting as both attorney and advocate may not tax fees for attendances by a clerk employed to attend upon himself.
Costs – taxation – attendances by employed clerk – whether taxable where privileged practitioner acts as counsel. Professional privilege – practitioner authorised to act as both attorney and advocate – limits on charging for services performed by employee. Civil procedure – bill of costs – striking out items that amount to charges for attending upon oneself
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10 December 1904 |
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Reported
An unprecedented flood (act of God) absolved the respondent from liability despite inadequate bridge waterway.
Tort — Negligence — Liability for flood damage — Whether narrowing of natural watercourse by bridge works caused damage or whether vis major intervened. Vis major/Act of God — Extraordinary rains and unprecedented flood as absolute defense to negligence claim
Foreseeability — Need for prior notice/experience of similar floods to establish negligence in river works
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5 December 1904 |
| November 1904 |
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Reported
A temporary wartime move does not establish the applicant's new domicile; court lacked jurisdiction to grant divorce.
Family law — Domicile — Domicile of choice — Presumption against change of domicile — Temporary wartime residence insufficient to establish abandonment of domicile of origin — Jurisdiction to grant divorce must be established by clear evidence.
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24 November 1904 |
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Reported
Prescription does not run during war where wartime suspension of civil proceedings prevents actions being brought.
Prescription – does not run during wartime where civil proceedings are suspended by law; Civil procedure – suspension of judicial proceedings under wartime ordinances and proclamations halts prescription; Effect of detention/prisoner-of-war status on running of prescription.
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23 November 1904 |
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Reported
A messenger informed of a landlord's lien cannot secretly remove attached goods to advantage another creditor.
Landlord's lien (tacit hypothec) — effect on execution by messenger; duties of court officer informed of prior lien; removal of goods by messenger takes them subject to landlord's lien; entitlement to attachment in security; resistance to improper execution conduct not necessarily contempt.
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21 November 1904 |
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Reported
An attorney’s failure to register a security bond through reasonable diligence constituted negligence; client recovered lost preferential dividend.
Attorney negligence; duty to exercise reasonable professional skill and diligence; failure to procure and register security bond; causation of loss of preferential claim; damages measured by lost preferential dividend.
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21 November 1904 |
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Reported
Articled clerk may represent litigant in magistrate's court; "agent" in rules not limited to admitted agents.
Magistrate's Court procedure – appearance by agent – meaning of "agent" in Rules 24 and 25 – articled clerk (passed examinations but not enrolled) entitled to appear – proceedings set aside and rehearing ordered.
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15 November 1904 |
| October 1904 |
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Reported
The applicant’s subdivision into named plots and streets constituted unlawful township formation without Government consent.
* Criminal procedure – wrongful laying out of township – Law 6 of 1894, art. 2 – subdivision into named plots and streets constitutes formation of a township – prior refusal of Government permission reinforces inference of intention – presumption rebuttable by evidence of restrictive use conditions
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31 October 1904 |
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Reported
A woman found in bed with a man is not guilty of keeping a brothel under Ordinance 11 of 1903.
Criminal law – Brothel (Ordinance 11 of 1903, s.2) – Definition of 'brothel'/'bawdy house' as premises resorted to by persons of both sexes for prostitution; single woman receiving men does not constitute keeping a brothel; evidence and unlawful presence of police noted; Singleton v. Ellison applied
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19 October 1904 |
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Reported
An heir receiving less under a will than his ab intestato entitlement may have transfer registered without paying transfer duty.
Transfer duty — testamentary bequest less than ab intestato share — exemption from transfer duty where intestate entitlement would have been greater — Registrar of Deeds ordered to register without payment.
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1 October 1904 |
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Reported
Practice.-Magistrate's court judgment.-Execution on funds due to respondent
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1 October 1904 |
| September 1904 |
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Reported
A contract made by an ill wife does not bind a present husband; nurse awarded reasonable remuneration (five guineas/week).
Agency and matrimonial contracts – capacity of an ill wife to bind husband; nursing services – enforceability of special terms vs. reasonable remuneration; evidence of customary fees (nurse's tariff card and medical evidence) determining reasonable rate; set-off and prior settlement defenses considered.
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30 September 1904 |
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Reported
Court quashed pass-law conviction because authorised English translation governed and mistranslation could not be judicially corrected.
Criminal law – Pass provisions – literal effect of authorized English translation of statute law – mistranslation (afdeeling rendered "chapter") cannot be judicially corrected where statute (Ordinance 3 of 1902 s.3) gives translation statutory force – conviction under pass law quashed where accused was within his resident ward
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6 September 1904 |
| August 1904 |
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Reported
An architect is entitled to reasonable remuneration on quantum meruit when an employer abandons commissioned plans absent an agreement otherwise.
Architects – professional services – employment to prepare plans and estimates – entitlement to reasonable remuneration on quantum meruit where employer abandons scheme; approval as condition of payment must be expressly agreed; court not bound by professional tariff.
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31 August 1904 |
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Reported
Conviction under Ordinance 21(26)(5) quashed where no evidence showed the officer was a municipal official.
Criminal procedure — Police offences — Ordinance 21 of 1902, section 26(5) — Scope of authority — Necessity of evidence that person resisted was an officer of a local authority (municipal official)
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31 August 1904 |
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Reported
Filing a confirmed liquidation account does not, without clear evidence, prove a survivor took estate property at valuation; sale thereafter may be void.
Wills — Mutual will — Survivor's election to take joint estate at valuation — Whether filing and confirmation of liquidation and distribution account constitutes taking over — Admissibility of evidence of Master's office practice to prove legal effect of filing — Validity of subsequent sale and transfer by survivor — Compensation for improvements.
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26 August 1904 |
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Reported
Private property on land is protected in war except in three narrow exceptions; mere flight does not justify capture.
Martial law; capture of private property on land; exceptions to protection of private property in war — (1) penalty for military offences, (2) forced contributions, (3) property taken on the field of battle; mere flight of owners does not make property liable to capture.
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5 August 1904 |
| July 1904 |
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Reported
Minors can validly contract service without parental consent if the contract benefits them; convictions affirmed.
Criminal procedure; master and servant; minors' contracts of service; interpretation of sec.34 Ordinance 7 of 1904 as enabling; benefit test for minors' contracts; burden on enforcer; conviction under sec.37(5) affirmed
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14 July 1904 |
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Reported
A protection pass does not make a burgher’s property liable to capture by his own commando; magistrate’s factual finding upheld.
Martial law/capture – protection pass under Lord Roberts’ proclamation – surrender does not make burgher’s property liable to capture by his own commando; factual finding on whether property lay within enemy lines – appellate review limited; authority of commando officer to appropriate and transfer private property – no power to vest ownership in third party.
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7 July 1904 |
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Reported
Conviction for permitting drunkenness requires licence-allegation and proof of (constructive) knowledge; surrender to occupying forces does not automatically render property capturable.
Criminal law – liquor licensing – permitting drunkenness – information must allege licence-holder status; conviction requires proof of actual or constructive knowledge or culpable ignorance by licensee or staff. Property/martial law – wartime capture – surrender and protection pass do not ipso facto render property liable to capture; appellate deference to magistrate’s factual findings about whether property lay within occupying lines
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7 July 1904 |
| May 1904 |
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Reported
Legacy under spouses' mutual will vested at first death and passed to legatee's heir despite deferred payment.
Will construction; spouses' mutual will; usufruct vs fideicommissum; vesting of legacy on first death with deferred possession/payment; devolution to legatee's descendants
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16 May 1904 |
| March 1904 |
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Reported
Fair comment on public‑health administration protected newspaper against libel claim despite one inadvertent factual error.
Defamation — Newspaper — Fair comment defence — Criticism of public health measures — Single unintentional factual error does not necessarily defeat fair comment — Distinction between attack on system and personal libel.
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28 March 1904 |
| February 1904 |
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Reported
Whether an idiot's inability to express consent negates consent for rape, though animal instinct may suffice.
Criminal law – Rape – Consent – Capacity to express assent or dissent – Idiot person incapable of communicating – Consent arising from mere 'animal instinct' may suffice – English authorities applied (Reg. v. Fletcher; Reg. v. Barratt)
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24 February 1904 |