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PUBLIC
RECORD OFFICE
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Reference :-
C.O. 885
2
debentures by the Pretoria-Pietersburg Railway Company to the Netherlands Railway Company and the substantiation of a claim against the latter Company for the damage done to British property in South Africa during the war.
·
That Mr. Graham was accordingly to request us to report :-
1. Whether if the Pretoria-Pietersburg Railway Company declined to issue the debentures called for by the Netherlands Railway Company, it would be a good defence to any action brought by the Netherlands Railway Company, that that Company was an alien enemy and not entitled to sue in British Courts ?
2. Whether the fact that the liability of the Pretoria Pietersburg Railway Company ``to issue the debentures arose prior to the outbreak of war would prevent that defenci
being successfully raised ?
3. Whether if that defence were successful, the Netherlands Railway Company could. nevertheless, after the termination of the war, successfully prosecute proceedings for the recovery of the debentures ?
4. Whether any and what proceedings could be successfully undertaken by His Majesty's Government to obtain damages from the Netherlands Railway Company for the injury done to British property in British Colonies during the war?
5. Whether, if a claim were made by His Majesty's Government for damages, it would be possible, without a judgment of a Court of Law in favour of His Majesty's Government to take any proceedings to prevent the issue of debentures, or the payment of cash, by the 'retoria-Pietersburg Railway Company to the Netherlands Railway Com- pany in respect of the liability of the former to the latter Company until the Netherlands Railway Company had satisfied the claim of His Majesty's Governinent?
6. If the answer to the last question was in the negative, whether, if a judgment of a Court of Law giving damages to His Majesty's Government were obtained, such proceedings as were mentioned in the last question could be successfully taken, and, if so, what proceedings?
7. And, generally, what action was it possible for His Majesty's Government to take under the circumstances above set forth ?
We have taken the papers into our consideration and in obedience to your commands have the honour to
Report-
1 and 2. That, this would not constitute a defence as the fact that the plaintiff was in alien enemy at the date of the commencement of the action was matter only of plea in abatement. The case of the Netherlands Railway Company . Fisher is erroneously reported in 18" Times" Law Reports, 116; the defence alleged that at the time of the alleged tort the plaintiff's were alien enemies. If the fact could be established it would now support a summons to stay the action, but in spite of the part which the Netherlands Railway Company at one time took in the hostilities it is questionable whether it could be established that they are now alien enemies.
(3.) Upon the termination of the war the Netherlands Railway Company would be entitled to prosecute proceedings for the delivery of the debentures.
(4.) We do not know of any proceedings which could be taken at law by His Majesty's Government to recover dages from the Netherlands Railway Company for injury done to British property during the war. It is open to His Majesty's Government in dealing with the property of the Company to consider to what extent the damages inflicted by the Company should be insisted upon in estimating the claims of the Netherlands Company to restitution or compensation.
(5.) We think not.
(6.) Does not arise having regard to the answer to No. 4. (7.) We do not see that any effective steps can be taken.
17034.
No. 146.
(MAURITIUS.)
LAW OFFICERS to COLONIAL OFFICE.
[Alleged Abolition of Mr. de Bourcherville's Office of Inspector of Schools.] SIR,
Royal Courts of Justice, April 30, 1902. We were honoured with your commands, signifted to us. in Mr. Bertram Cox's letter of the 24th instant, stating that with reference to our Report of the 15th November last, respecting the alleged abolition of Mr. de Bourcherville's office of Inspector of Schools in Mauritius, he was directed by you to lay before us a despatch, No. 81, of the 25th of February, from the Governor of Mauritius, transmitting (together with two other enclosures-all of which accompanied Mr. Bertram Cox's letter) two memorials from Mr. de Bourcherville, in which he asked for a reconsideration of his position as affected by the Education Ordinance 33 of 1899.
That Mr. Bertram Cox was also to lay before us all the papers previously submitted for our consideration, and was to request us to be good enough to consider the Governor's despatch and its enclosures, and to report:
1. Whether the papers now laid before us afforded any answer to the questions of fact referred to in the 2nd and 3rd paragraphs of our Report of the 15th of November last? and if so,
2. Whether the office previously held by Mr. de Bourcherville had in fact since the passing of Ordinance 33 of 1899 been abolished?
3. Generally,
We have taken the papers into our consideration, and in obedience to your commands
have the honour to
Report-
1. That there is nothing in the papers now submitted to us to show that the differences between the post formerly held by Mr. de Bourcherville and that of Inspector under the Education Ordinance of 1899 are such as to lead to the conclusion that the former has been abolished and a new office created. One of Mr. de Bourcherville's con-
tentions seems to be that his office was one which was free from the control of the Superintendent of Education, and that as inspectors in future will be under the Director of Public Instruction such an office will be an inferior one to that which he held before the Ordinance of 1899 was passed. We do not think that this contention can be acceded to, having regard to Lord Kimberley's despatch of the 27th of April, 1882, authorizing the appointment of Mr. de Bourcherville, and having regard to the fact that such a contention, when raised from time to time by Mr. de Bourcherville, was never admitted. We may also refer in this connection to the Acting Colonial Secretary's letter of 4th May, 1882, and to Lord Kimberley's despatches of 20th August and 26th October, 1882, as cited in the Acting Governor's Minute of 19th April, 1894.
The other point made on behalf of Mr. de Bourcherville is that the office is so changed in its duties that the old office has been virtually abolished. It is no doubt true that he may now be required to inspect non-Roman Catholic Schools, and that the Director of Public Instruction has control of the inspection of all schools. But he remains as he was before-an Inspector of Schools. (See Ordinance of 1899, No. 33, Section 13 (4) (iii.), and we cannot regard the change in the duties and powers of the office as equivalent to its abolition.
2. Upon the materials before us, and we have no reason to suppose that any further materials are available, we see no sufficient reason for the contention that Mr. de Bourcher- ville has been retired or removed from the public service in consequence of the abolition of his office within the meaning of Ordinance No. 30 of 1881, Article 12.
The Right Hon. J. Chamberlain, M.P.
&C.,
&c.
&c.
15 PUBLIC RECORD OFFICE, LONDON
We have, &c.,
We have, &c.
R. B. FINLAY, EDWARD CARSON.
R. B. FINLAY. EDWARD CARSON,
&c.
The Right Hon. Joseph Chamberlain, M.P.,
&c.
&c.
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