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![handle is hein.slavery/ssactsengr0146 and id is 1 raw text is: VAN ROOYEN V. VANDER REIT [1838]
Ferguson-Davie v. Ferguson-Davie, 1890, 15 P.D. 109. See also Hitchings v.
Wood; Wood v. Ilitchings, 1838, 1841, 2 Moo. P.C. 355. As to execution of wills,
see Wills Act, 1837 (1 Vict. c. 26), s. 9.]
[177] ON APPEAL FROM THE SUPREME COURT OF THE CAPE OF GOOD
HOPE.
ANNA MAGDALENA VAN ROOYEN, GERT VAN ROOYEN, and SAMUEL KERR,
Executrix and Executors of JAMES SWAN, deceased,-Appellants;
JOHANNES WERENDLY VANDER REIT, Civil Commissioner of Uitenhage,
at the Cape of Good Hope,-Respondent * [Feb. 8 and 14, 1838].
In an action brought against the Government for the amount of fees due for
surveys which by their regulations were payable in advance, and had been
received by the District Secretary, who subsequently became insolvent, it
appeared that that officer had received them in pursuance of an arrangement
entered into between him and the Surveyor, and not in virtue of his authority
as an officer of the Government. The Judicial Committee, in affirming the
judgment of the Court below, held that such arrangement precluded the right to
claim the arrears from the Government, and that they were only recoverable
from the District Secretary.
This was an appeal from a judgment in an action of debt originally brought by
James Swan, and prosecuted by the Appellants his executors, for recovery of [178]
7056 rix-dollars 6 skillings and 2j stivers colonial currency, the balance of an account
claimed by him from the District Treasury of Uitenhage in the Cape of Good Hope,
for surveys effeeted in the district from April 1824 to January 1833.
Mr. Swan wsts a sworn land surveyor residing in the District of Uitenhage, and
from 1823 to 1833 was employed by the Board of Landdrost and Heemraden (who
formed a commission of inspection in each district) to survey such of the Government
lands in that district as were applied for by the inhabitants.
These surveys were made under certain regulations set forth in a Government
advertisement of the l1th of July 1813, and two several proclamations of the 6th
of August 1813, and the 30th of September 1814, by which it was stipulated that the
expenses incurred in making surveys of land were to be paid by the persons applying
for grants of the land, who were to deposit the probable amount with the District
Secretary, and the surveyor was to be paid by a bill upon the District Treasury
quarterly, upon his making a return of the surveys, valuations, and diagrams.
By an arrangement between Swan and the District Secretary, the latter received
the fees payable on account of the surveys from the applicants for Grants, and paid
them, over from time to time to the surveyor, without bringing them into the accounts
of the Landdrost and Heemraden.
From February 1824 till January 1828, Mr. Roselt was the District Secretary,
and by the express desire of Swan, collected the fees and charges due to him, both on
account of former surveys, and such as were from time to time made.
By a law enacted in the Colony in 1828, the office [179] of Landdrost and
Heemraden was abolished, and the duties transferred to the Civil Commissioners of
the District.
In 1829, Roselt became insolvent, having in his hands a sum of 3195 rix-dollars
4 skillings j stiver, which he had received on account of Swan from persons for whom
surveys had been made.
On the 8th of August 1833 Swan brought an action for debt against the Re-
spondent, who was the Civil Commissioner of the District of Uitenhage, for recovery
* Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the
Chief Judge of the Court of Bankruptcy [The Hon. Sir Thomas Erskine].
971
II MOORE, 177](ViewImageLocal?handle=hein.slavery/ssactsengr0146&div=1&collection=&method=preview&ext=.png&size=3)