Cases decided in the Supreme Court of the Cape of Good Hope : with table of cases and alphabetical index

Front matter

KG 3809 C 3°1879 UniVer8i,y Librar "

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Cornell University Library

Index To The Volume

Act 15, 1866, c. v. §§ 3, 4.— See Master and Servant.

20, 1856, § 8.^See Magistrate.

20, 1856, § 47.— See Summary Punishment.

3, 1861, § 8.— See Conviction.

■ 4, 1865. — See Divisional Council.

■ 17, 1867.— See Spare Diet.

Adiation. — See Will. pagk

Antenuptial Contract. — Effect of on the communio qumstuum not

specially excluded. Steyn vs. Trustee of Steyn .. . . . . 105

Arrest. — Civil.'] — Provisional sentence granted and arrest confirmed,

on the return day of the writ. Standen vs. Clark .. ... 27

Writ of personal attachment issued against a trustee for not

complying with order of Court to file liquidation and distribution account. In re MashelVs Estate .. .. .. ..28

Where the defendant, on being arrested, has paid the amount

claimed into the hands of the sheriff as security, and was released, and entered appearance to defend the claim, it is not necessary for the plaintiff on the return day of the writ to move for the confirmation of- the arrest. Ryan vs. Abrams ,. .. 93

Plaintiff and defendant being peregrini, plaintiff ordered to find

security for costs or the arrest to be discharged . . . . . . Ibid.

Assault.- — On an indictment charging rape, a conviction of common assault is good. - Queen vs. Andries. Pieter and Another . . 25

Attachment.— PersoreaZ. — See Arrest.

Attorney. — Admission of. — An articled clerk must serve the whole ef his time within the Colony to qualify for admission as attorney of the Supreme Court. In Re Hartzenburg .. .. ...01

A clerk articled to an attorney, a member of a firm, who had,

after the departure from the-Colony. of the partner to whom he was articled, continued to serve in the office of the remaining partners, allowed without fresh articles to qualify for admission as an attorney of the Supreme Court, by reckoning the time so served towards the period of service required by the Rules of Court. -In Re Laws .. .. .. .. .. .. 99

An application made on behalf of an advocate and attorney of

the Supreme Court of Natal, praying for a Eule of Court under the 46th- section of the Charter of Justice, by which he might be admitted an attorney of the Supreme Court of this Colony, refused. In Re Goodricke . . .. .. .. .. .. 100

BiLLOP Costs. — See Costs.

VI

PAGE

Bill of Lading. — Where the defendant, a ship-master, received a quantity of iron in good order, to bo delivered to the plaintiff in like good order, and signed Bills of Lading, in which liability for damage arising from rust was specially excepted, and on delivery of the iron it was found to be unmerchantable from rust, and the plaintiff brought an action for damages, the Court gave absolution from the instance on the ground that the damage was not proved to have arisen. from the negligence of- the defendant or of his servants. Krohn vs. Nurse .. .. .. .. 85

Breach op Contract. — See Contract.

Civil Commissioner. — The DivisionaLCouncils' Act, No. 4, 1865, does not authorize a Civil Commissioner to inquire into and determine an objection to the qualification, on the ground of non-registration as a voter, of a candidate nominated for election or elected a member of a Divisional Council. Octree vs. Bergh & Mader .. 102 Clerical Influence. — See Undue Influence.

Codicil. — A codicil set aside on the grounds of incapacity from bodily disease and mental debility, and of undue clerical influence on the part of the spiritual adviser of the testatrix. Executors of Gerfonteyn vs. O'Haire . . . . . . . . . . . . 47

A codicil made under a reservatory clause in a will is valid,

though signed by the testator only, and unattested. Such a codicil is not affected by Ordnance No. 15, 1845. In Be the late

Sir John Wylde's Will . . . . . . 113

Collation. — An executrix, survivor of a second marriage, can not, in her own right, in taking an account of the first wife's estate, require collation to be made by a child of the first marriage, such claim having been waived by the acts of the deceased spouse the executor. Scheepers vs. Scheepers .. .. . , . . , ^ i

Conspiracy. — A prisoner cannot be guilty of conspiracy, or confederating with another prisoner to escape from custody, unless such other prisoner consent and join in the conspiracy. Magistrates' Beviewed Gases .. ., .. .. ., .111

Contempt of Court. — Writ of personal attachment issued against a Trustee for not complying with order of Court to file liquidation and distribution account. In Be MasheWs Estate ., .., 28

Contract.— Damages recovered for breach of a contract entered into in England for service within this Colony. Stuttaford & Co. vs. Barrow .. .. .. .. ., -# 94.

Antenuptial. See Antenuptial Contract.

Conviction. — Sentences pronounced the same day all regarded as first

convictions. Magistrates' Beviewed Cases .. .. ,18

Conviction of common assault good on an indictment charging

rape only. Queen vs. Andri.e.s Pieter and Another .. ,°„ 25

Costs.— The plaintiff, in a successful action to compel transfer is entitled to deduct his costs from purchase-money which may be payable by him. Van Wyk vs. Van Wyk .. .. 32

Plaintiff and defendant being peregrini, and plaintiff having

arrested defendant, plaintiff ordered, to find security for costs or the arrest to be discharged. Byan vs. Atirams ., .. 93

Vll

PAGE

Costs. — A taxed bill of costs not such a " written acknowledgment of ■ debt commonly called a liquid document," as to be within the jurisdiction of the Resident Magistrate under section 8 of Act No. 20, 1856. Swemmer, Trustee of Heyns, vs. Wehmeyer .. 96

In an action to obtain the condemnation of goods seized by the

Customs, and for penalties, the owner of the goods must, under section 67 of Act No. 10, 1872, before he can be admitted to defend such action, find security for costs in the sum of £100 sterling. Graham, N. 0. vs. Levi .. ,. .. ..98

Criminal Lonatic. — See Lunatic.

Divisional Council. — Registration as a voter under the Constitutional Ordinance is necessary to qualify a person to become a member of a Divisional Council. Cane vs. Bergh & Mader .. 102

The Civil Commissioner is not authorized, under the Divisional

Councils' Act, to inquire into and determine an objection to the qualification, on the ground of non-registration as a voter, of a candidate nominated for election or elected a member of a Divisional Council .. .. .. .. .. .. „ 102

Divorce. — In an action for divorce on the ground of malicious desertion, the defendant being in default, the service of order of Court must be proved by the best evidence, like any other material fact in the case. Affidavit is not such evidence. Otto vs. Otto. 20

Evidence. — Affidavit not admissible in an action for divorce on the ground of malicious desertion, the defendant being in default, to prove service of order of Court. Otto vs. Otto .. .. ..20

A prisoner who has pleaded guilty must be sentenced before

he is admissible as a witness in the same case against the remaining prisoners. Magistrates' Reviewed Cases .. .. .. Ill

Exceptions. — Of co-proprietorship and non-joinder. See Pleadings.

Execution. — Issue of execution for amount of judgment on appeal of the Privy Council, with interest, and the taxed costs on appeal. S. A. Association vs. Mostert .. .. .. .. ..27

Executor Dative. — Removed, on motion, from his office, on the ground of his having become of unsound mind, and totally incapable of attending to any business whatever. In Be Esterhuysen .. .. .. .. .. .. .. .. 6

Good-For. — Provisional sentence prayed on. See Provisional Sentence.

Insanitv. — Affidavits received in proof of an allegation of unsound mind, in an application to remove an Executor Dative from his office as such. In Be Esterhuysen .. .. .. ..96

Criminal Lunatic. See Lunatic.

Incapacity arising from bodily disease and mental debility. See

Mental Incapacity.

Insolvency. — Rehabilitation of joint estate of husband and wife, granted on the application of the widow, the executrix and surviving spouse, without filing the usual accounts. In Re Widow Swart .. .. .. .. .. .. .. .. 91

— - — Interest on a mortgage bond accruing after sequestration, allowed at the rate stipulated for in the bond. In Re Insolvent Estate of Stan den .. .. .. .. .. .. .. 92

Till

PAGE

Interest. — Interest which has accrued after the time a legacy should be paid over belongs to the legatee. The rate of such interest depends on the amount of profits earned. Wright's Trustees vs. Wright's Executors .. .. .. .. .. •■ ..10

Interest on a mortgage bond, accruing after sequestration,

allowed at the rate stipulated for in the bond. In Be Insolvent Estate of Standen .. .. . . . . . . . . . . 92

Joint Estate. — Rehabilitation of. See Insolvency.

Legacy. — Interest which has accrued on a legacy after the time it should be paid over belongs to the legatee. — Wright's Trustees vs. Wright's Executors .. .. .. .. .. ..10

Lis Pendens. — Plea of. See Pleading.

Lunatic. — Criminal. — -Jurisdiction over criminal lunatic ordered to

be detained during the pleasure of the Crown. In Se Dr. Breda 29

Magistrate. — Where a trustee of an insolvent estate sought to recover in the Resident Magistrates' Court, from one of the creditors, a sum of £28, being part of a taxed bill of costs paid by the trustee to his attorney on account of an action brought in the Circuit Court against the estate, Held — not to be a claim on such a " written acknowledgment of debt, commonly called a liquid document," as to be within the magistrate's jurisdiction under section 8 of Act No. 20 of 1856. Swemmer, Trustee of Seyns,vs. Wehmeyer .. .. .. .. .. .. 9

Master and Servant. — Magistrate's sentence under Act No. 15, 1856, c. 5, sections 3 and 4, amended. Magistrates' Beviewed Cases .. .. .. .. .. .. .. .. 16

Mental Incapacity.: — A codicil set aside on the grounds of incapacity on the part of the testatrix, arising from bodily disease and mental debility, and of undue clerical influence. Executors of Cerfonteyn vs. O'Eaire .. .. .. .. . . 47

Minor. — Transfer of his portion to one part owner of a farm, on division, not an alienation of the property of minors, owners of another undivided share in the same farm, within the meaning of Ordinance No. 105, section 24. In Be Widow Pienaar . . 19

Mortgage. — Interest accruing on a bond after sequestration allowed at the rate stipulated for in the bond. In Be Insolvent Estate of Standen .. .. .. .. .. .. .. ,. 92

Mutual Will.— See Will.

Non-Joinder. — Exception of. See Pleading.

Ordinance 105, § 24. See Minor.

6, 1843, § 33. See Insolvency.

15, 1845. See Codicil.

Pauper. — The defendant in an action brought to obtain condemnation of goods seized by the Customs, and for penalties, applying for leave to defend in forma pauperis, his petition was referred to counsel for report as to whether he had good cause of defence notwithstanding the provisions of sec. 67 of Act No. 10 1872. Graham, N. 0. vs. Levi .. .. .. . . . . gg

IX

PAGE

Placaat — Of 6th October, 1840. — Whether extending to others besides

merchants. Steyn vs. Trustee of Steyn .. .. .. .. 105

Pleading.— On the hearing of a cause, lis pendens having been pleaded, the Court ordered the case to stand over until the records had been purged of the former suit. Postea, this special plea being again urged, though the grounds of exception had been removed, the Court ordered the hearing to proceed on the merits, but gave to the defendant the costs of the exception. Laubscher vs. Vigors and Another ... .. .. .. .. .. 20

— Exceptions to declaration that the plaintiff and defendant are co-proprietors in undivided shares in a farm, and that all the co-proprietors have not joined in suing, overruled in an action for damages sustained by reason of defendant's trespass on a defined portion of the farm occupied by the plaintiff. Strydom vs. Tircm 83

Exception to plea, that both executors, defendants, had not

joined in the defence, overruled. Taute vs. Executors of Van Rensburg .. .. ... .. .. .. .. .. 95

Procedure. — Sentence of imprisonment and an order to find security to keep the peace ought to be kept distinct. Magistrates' Reviewed Cases .. .. .. .. .. .. .. .. 17

Provisional sentence granted, and arrest confirmed, on the return-day of the writ. Standen vs. Clark .. .. ..27

Where the defendant, on being arrested, paid the amount

claimed into the hands of the sheriff as security, and was released, and entered appearance to defend, it is not necessary for the plaintiff, on the return-day of the writ, to move for the confirmation of the arrest. Ryan vs. Abrams .. .. .. ..93

A prisoner pleading guilty must be sentenced before he is admissible as a witness in the same case against any remaining prisoners. Magistrates' Reviewed Cases .. .. .. .. Ill

Provisional Sentence — Refused, for the balance due on a " good-for," the defence being that the money was given for the purposes of a joint speculation in diamonds, which speculation had partially failed, and the defendant had paid to the plaintiff his share of the loss. Thornton vs. Brook .. .. .. .. ..82

Rape. — On an indictment charging rape, a conviction of common

assault is good. Queen vs. Andries Pieter and Another .. 25

Rehabilitation. — See Insolvency.

Reservatory Clause. — See Will.

Rule of Court. — The Court ought not to make a general rule to meet a special case. In Re Goodricke .. .. .. .. 100

No. 125. See Pauper.

— — No. 149. See Attorney.

Ship Owner. — Liability of. See Bill of Lading.

Spare Diet. — Where a prisoner is sentenced to imprisonment with hard labour he cannot be also sentenced . to spare diet more frequently than on two days in each week, on which days he is not to be put to hard labour. Magistrates' Reviewed Cases .. 112

PAGE

Summary Punishment.— The request of a prisoner to receive his punishment at once, under Act No. 20, 1856, section 47, must be recorded, signed by the prisoner, and also witnessed. Magistrates' Reviewed- Cases .. .. .. .. ■• ..16

Subvivob. — An executrix, survivor of a second marriage, cannot, in her own right, in taking an account of the first wife's estate, require collation to be made by a child of the first marriage, such claim having been waived by the acts of the deceased spouse, the executor. Scheepers vs. Scheepers .. .. .. .. • ■ 1

Tender.— Where plaintiff said to the Deputy- Sheriff, "Do not attach my things; I will pay you immediately" Q' net nu") but no money was produced, though it was given in evidence there was sufficient money in the house to satisfy the writ, and the defendant, the Deputy-Sheriff, replied, " Unless you sign this power of attorney, I cannot receive the money," and plaintiff refused to sign, and an attachment was made. Eeld — to be a tender sufficient to found an action for malicious seizure. Lavbscher vs. Vigors and Another .. .. .. .. .. .. 20

Trustee. — Writ of personal attachment issued against a trustee for contempt of Court in not complying with an order to file liquidation and distribution account. In Be Mashell's Estate.. .. 28

Undue Influence. — A codicil made at the instance of a Eoman Catholic priest, and signed shortly before death, on the day of the decease of the testatrix, the testatrix having been, for some time previously, suffering from pulmonary consumption, and in the habit of taking opiates, set aside on the grounds of incapacity arising from bodily disease and mental debility, and of undue clerical influence on the part of the priest, the spiritual adviser of the testatrix. Executors of Cerfonteyn vs. CHaire .. .. 47

Will, Mutual. — Construction and effect of. — By the Roman-Dutch. law the mutual will of a husband and wife, notwithstanding its form, is to be read as the separate will of each. The dispositions of each spouse are to be treated as applicable to his or her half of the joint property. S. A. Association vs. Mostert .. .. 31

Power of Revocation. — Either husband or wife is at liberty to

revoke his or her part of a mutual will during the co-testator's lifetime, with or without communication with the co-testator, and after the co-testator's death .. .. .. .. ..Ibid.

Adiation. — Where a spouse who first dies has bequeathed in a

mutual will any benefit in favour of the survivor, and has afterwards limited the disposal of the property in- general after the death of such survivor, then such survivor, if he or she accepts such benefits, may not afterwards dispose of his or her share in any manner at variance with the will of the deceased spouse ..Ibid.

A reservatory clause has equal force whether in a notarial will

or in an underhand or non-notarial will. In Be Sir John Wylde's Will 113

SUPREME COURT REPORTS.

Part I

J. M. Soheepees, Appellant, vs. C. F. Scheepees' Executrix, Eespondbnt.

Survivor. Second Marriage. Collation.

' An Executrix, survivor of a second marriage, can not, in her own right, in taking an account of the first wife's estate, require collation to he made by a child of the first marriage, such claim having been waived by the acts of the 'deceased spouse.

This was an aetion brought by Johannes Marthinus im. Scheepers for the payment of -the maternal inheritance due N ?M3 26 ' "him from the estate of his mother, the first wife of the late Feb ™»y i- Coenraad Fredrik Scheepers, against Jacomina Aletta J - M - scheepers Scheepers, the widow of his father, the said C. F. Scheepers, c. f. scheepers' by a second marriage, and his executrix testamentary. Executrix - The facts of the qase will be found fully stated in the Judgments given below.

- The cause came before the Eastern Districts Court on the 22nd and 23rd February, 1872, when after hearing the 'evidence it was declared the plaintiff was entitled to such sum, if any, as should appear to be due to him upon certain accounts and inquiries being taken and made. Afterwards, on the 27th of the same month, the case having been set down by the plaintiff for final judgment, the plaintiff's counsel declining to go into the accounts ordered, the Eastern Districts Court gave judgment for defendant with costs.

An appeal was noted, and the case argued before the? Supreme Court (November 26, 1872) by Jacobs, Acting

I 8 "- A.G. (v\Ith him Hodges) for the plaintiff and appellant, m'3 26 ' and by Cole (with Lim Be Villiers) for the defendant and

February!. respondent J. M. Scheepera

c.f. scheepers' Postea (February 1). — The Court reversed the decision of Executnx. the Cour( . below ^ ani gave judgment for plaintiff for the

amount claimed, with costs.

Bell, C.J. — This -was an appeal from a decision of the Eastern Districts Court, pronounced in an action brought by the son of the first marriage, against the widow and executrix testamentary of his father by a second marriage for payment of £247 15s. lid., as his share of his maternal inheritance derived from his mother, the wife of the first marriage.

The declaration states that the plaintiff is one of eleven children of Coenraad F. Scheepers by Elsie Elizabetha, his first wife, to whom he was married in community of property, and also one of the heirs under the last will of the spouses, bearing date the 15th of December, 1857. That his mother died in or about the year 1858, leaving her husband her surviving, who, by the will, was appointed executor . of her estate, and who duly acted as such. The declaration further says that afterwards the said Coenraad F. Scheepers caused to be made a liquidation and distribution account of the estate of the said spouses, whereby the balance of the estate for distribution was shown to be £5451 lis., and whereby the portion due to the plaintiff as his maternal inheritance was shown to be £247 15s. lid. That afterwards, the said Coenraad F. Scheepers intermarried with the defendant, and died in or about 1870, leaving the defendant him surviving, who, on the 24th of September in that year, received letters of administration as executrix testamentary of the estate of Coenraad F. Scheepers. That although the said Coenraad F, Scheepers during his lifetime, and the defendant since his death, have been so requested, neither of them has paid to the plaintiff any part of his maternal inheritance; wherefore he prays that the defendant may be adjudged to pay him such inheritance, to wit, the sum of £247 15s. lid.

To this the defendant pleaded the general issue, and specially that during the subsistence of the marriage of Coenraad F. Scheepers and Elsie Elizabetha, the plaintiff, together with several of his brothers, purchased from the said Coenraad F. Scheepers certain farms belonging to the said Coenraad F. Scheepers, situated in the rield-cornetcy of Olifantshoek, for the nominal sum of £1,500 or thereabouts, and that when the abovementioned sales were effected, " it was mutually agreed by and between them, the several ^"ig

Earties thereto, including the plaintiff, that such sale should ism. ' e in lieu and stead of the legitimate portion to which any of Fe}> ^ 7 '• the parties, and amongst them the plaintiff, would be J - x - ^ hee P er s entitled, on the death of the first dying of their parents, c-F-Scheepera' and that, in consideration of the premises, no purchase money was passed by the plaintiff in payment of the share in the said property which was subsequently transferred to him."

As the actic m was brought for the payment of the plaintiffs maternal inheritance, and the special plea is to a ■claim for his legitimate portion, which was not in question, the plea does not in fact ■ meet the case, and the defence rests entirely upon the general issue.

•,.: Such being the state of the pleadings, I shall now state the history of the case, as it appears from the evidence, oral and documentary.

The father seems, at one time, to have been possessed of considerable landed property. In the year 1850, during the subsistence of the first marriage, the spouses being iminded to remove their residence to another part of the country from where they had hitherto resided, the husband> Tto reliteve himself of the burden of his landed estate, and, possibly, in anticipation of its descent to his children at his death, went through the form of a sale of his different farms to his children, of whom there were eleven, and regularly executed a deed of transfer in their favour, sixty pounds (£60) being stated to be the purchase money. But in the declaration of purchase made by the children in order to satisfy the transfer duty payable on a sale, the price was declared to be £1,000. *

Why the form of a deed of gift was not adopted does not appear, for it was not pretended that £1,000 or any other sum was paid by the children to the father.

At the time of this transaction the spouses had been

already married at least upwards of thirty-tWo years, as

there was. produced a will executed by them in September,

,1818, and, as before observed, they had had eleven children

born to them.

After having mflde the gift to their children, the spouses removed to an erf which they had at Hertzog, in the district of Fort Beaufort, their former residence having been in Olifantshoek, and they lived at Hertzog till the close of their lives — the children, so far as appears, possessing, cultivating, reaping, and enjoying the produce of the farms in Olifantshoek which their father had transferred to them.

On the 15th September, 1857, the spouses executed a will by which they revoked all prior ones. They bequeathed by

B 2

.Ian".- it to the ^survivor "a complete bullock-wagon with two

•February i. sadd i e ana bridle, a gun, a complete bed, 2 tables and 6

g j. a. scheepers c hairs, besides the erf situated at Hertzog, at present

C f. scieepert' occupied by us; all which are to be entered upon and

-ifcecutnx. p 0sgesse( j as f ree and unencumbered property."

; By this will the spouses instituted the survivor of them, together with the children procreated in this their marriage, heirs in all their property, nothing excepted, except what -has already been disposed of, and the whole was directed to ■'be " realized by public auction by the survivor, within three months of the first dying, so as to be better able to ascer^ 'tain and distribute the portions of our heirs." This will appointed "the survivor of us as executor or executrix of this our will, and also administrator or administratrix of our iestate and effects."

I think it reasonable to suppose that the exception in 'this will, from the inheritance of "what has already been •disposed of," referred to the bullock-wagon and other things bequeathed to the survivor at the outset of the will, and had not any reference to the farms which had already been given away to the children.

Some time in the year 1858 the wife died, being survived by the husband, who took but letters of administration as her executor. So far as appears, he does not seem to have 'turned the estate into money, or "ascertained and distributed the portions of our heirs," as directed by the mutual will. .Three or four months after the death of his wile the husband married the present defendant.

In the year 1860 the husband, whom I shall henceforth

call the father, accompanied by one of his sons, waited Upon

Campbell, a notary in Graham's Town, and expressed a wish

that an account, should be made out of the first wile's

property. Campbell, at the dictation of the father, made

out an account entitled "in the joint estate of Elsie Eliza-

;betha Scheepers, born Landmann, and surviving husband

« Coenraad Fredrik Scheepers : liquidation account."

' _ On the debit side of this account, there are only two

items— "valuation of property movable, £2,431 10s.,'" and

;" valuation of property immovable, £3,100, making together

c£5,5iil 10s." On the credit side there are several items of

/disbursements connected with the administration, amounting

to -£79' 19s. ; these being- deducted from the debit side, the

, " balance as per distribution " is stated. to be £5,431 lis.

There is another account entitled " distribution account."

To the debit of this account is placed £5,451 lis., and to

I the credit side thete are entries to the surviving spouse of

£2,725 15s. fid., being the half of £5,451 .lis., and eleven entries of £247 15s. lid. to each of the eleven children by 18 «- name, making together £2,725 15s. 6d., the other half of ^im™'

£5,451 lis. February 1,

Another document produced bore the title, " In the joint J < M - s^eepera estate of Elsie Elizabetha Scheepers, born Landmann, and o. f. sciieepere', surviving husband, Coenraad Frederick Scheepers;. in ven- Bxeeutr1 ^ tory of property and valuation thereof." There then follow nineteen entries of property, immovable and movable, with the values, amounting in all to £5,531 10s., the sum entered to the debit of " liquidation account."

None of these accounts have the signature of the father, or anything on the face of them to show that they were, either known or assented to by him ; indeed; Oamphell swears the account was not signed by testator, and he .adds the accounts were made out "from dictation of the father, of which a minute was made, the account was submitted to him and approved, the value was put down and is fair. It was mutually agreed upon by father and son. The account puts it at £5,531 10s. I can't remember he said it was the estate in lifetime of his former wife. The two sons," Coenraad and a younger one, " assisted the father in making out the inventory. I made out the valuation from a statement of the two sons and the father. I did not see the property."

Eleven separate papers for each of the children, saying he or she had examined and approved the liquidation ao-, count, and acknowledged that he or she had received £247 16s., the sum awarded by it, all dated the 31st day of July, 1860, but not one of them signed by anybody, are among the documentary evidence, but by whom they are produced, and for what purpose, does not appear.

Campbell swears " he directed me to draw up promissory notes. I made out the promissory notes before the date they bear, but they were to bear date from the time mentioned." Whether by " he " the father was intended or the son Coenraad, whose name is last mentioned, does not ap-^ pear, neither is it explained what the promissory notes were for, nor by whom they were to be signed, nor what was meant by their " bearing date from the time men-- tioned."