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Colonial Cases

Denysson v Mostert, 1872

[Roman Dutch law]

Denysson v Mostert

Judicial Committee of the Privy Council
20 April 1872
Source: The Times, 22 April 1872

(Present - Sir J. Colville, Sir M. Smith, and Sir R. Collier.)
  This case, which came before their Lordships on an appeal from the colony of the Cape of Good Hope, involving a question of Roman-Dutch law, was resumed and occupied the sitting.
  Sir Roundell Palmer, Q.C., Mr. Rigby and Mr. Myburgh were for the appellant; Sir John Kerslake, Q.C., and Mr. Busk were for the respondent.
  One Cornelius Mostert and his wife had been married in "community of property," and had executed a joint will.  The husband had died, and the appellant sued on a mortgage bond for 3,750 l. and failed. By the law of the colony a marriage in community created, it was alleged, a partnership between husband and wife in equal shares of all the property they acquired.
  Sir Roundell Palmer was nearly two days in opening the case, and was followed by Mr. Rigby, who occupied the remainder of Saturday.
  Sir J. Kerslake will be heard on Tuesday, to which day the case was adjourned, as their Lordships will not sit on Monday.

Source: The Times, 24 April, 1872

This case, an appeal from the colony of the Cape of Good Hope, mentioned in The Times on Monday, was resumed, and concluded on the argument.
.  .  .  
  The question arose under the Roman-Dutch law as to the "community of property" under a joint will. The husband died, and the appellant sued to recover a debt on mortgage, and the point was whether the respondent was liable. The Court below decided in favour of the defendant. According to the law of the colony a marriage in community creates a partnership between husband and wife as to property.
  Sir J. Kerslake, Q.C., today addressed their Lordships on the part of the respondent, and occupied several hours.
  Mr. Busk followed on the same side.
  Mr. Rigby was heard in reply.
  Sir J. Colville said their Lordships would consider their judgment.

Source: The Times, 7 June, 1872

.  .  .  
  Sir R. Collier, in delivering judgment, reviewed the Roman-Dutch law and the difference of opinion among the Judges who had tried the case at the Cape of Good Hope.  Applying the law to the facts of this case, their Lordships found that the widow, who had survived her husband, had a right to claim half of the property. Their Lordships would advise Her Majesty that, if the widow was entitled to a moiety of the bond given, the judgment of the High Court be reversed, and the appeal be allowed, with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School