CO885-(15-16) — Page 438

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

3. This question is answered by the preceding answers.

4. We think that Article IV. of the Modus Vivendi, with reference to Mozambique, cannot in strictness be applied to the situation which has now arisen in reference to the new line from Bethlehem to Kroonstad. Article IV. deals with the relation which existed between rates on lines to the Transvaal before the war, and it re-establishes that relation among those lines in 1901, with the further provi- sion that should the tariffs on any such lines be modified there should be propor- tionate modifications on the other lines so as to preserve the same relation between them. The Article, however, aims at maintaining a definite and pre-existing relation which can only apply in the case of then existing lines. At the same time we think that as the agreement for the Modus Vivendi is an international document it should be liberally construed according to its general intention, and that the parties should therefore endeavour to agree to such a modification as will equitably meet the new situation.

We have, &c.,

JOHN L. WALTON, W. S. ROBSON,

The Right Honourable

The Earl of Elgin, K.G.,

&c., &c..

&c.

26147

No. 38.

(General; South Africa; RHODESIA.)

LAW OFFICERS to COLONIAL OFFICE.

[Construction of Section 3 of the Colonial Probates Act, 1892, and action to be taken to upply the provisions of the Act to Rhodesia.]

Royal Courts of Justice,

MY LORD,

July 17, 1906. WE were honoured by your Lordship's commands, signified to us by Mr. Graham in his letter of the 1st June last, stating that he was directed by your Lordship to request the favour of our report with regard to the true construction of Section 3 of the Colonial Probates Act, 1892.

That he was to enclose a copy of a letter from the British South Africa Com- May 15th, pany requesting that the necessary action might be taken to apply the provisions 1906. of the Act to Rhodesia, and a copy of the Cape of Good Hope "Foreign Letters of Administration Act, 1888," referred to, and to state that, in connection with an application made by the Chartered Company in 1895, the then legal Assistant Under Secretary of State advised that the territories of the Chartered Company not con- stituting a British possession, Section 3 of the Colonial Probates Act, 1892, appeared to give to the British Court of Matabeleland, without any further proceedings, the same privileges as were conceded to the Courts of a "British Possession" after reciprocal legislation in the Colony and the issue of an Order in Council, and that it was not necessary for the Protectorate to adopt legislation providing for the recognition of British probates such as a Colony is required to pass under Section 1

of the Act.

That your Lordship was, however, disposed to doubt whether this construction of Section 3 was correct, in view of the words in that section "in like manner as it authorises the sealing of a probate or letters of administration granted in a British possession to which this Act applies," that is, a British possession which has legis- lated as required by Section 1.

That he was, therefore, to request us to take this matter into our consideration and to report :-

(1) Whether according to the true construction of Section 3 of the Act provision must be made by local law for the recognition in the Protectorate of probates and letters of administration granted by Courts of the United Kingdom before the Act could be recognised as extending to grants of probate of administration by the Courts of the Protectorate?

(2) If so, whether the legislation referred to in the letter from the British South Africa Company constituted a sufficient local law within the meaning of the preceding question?

(3) Generally?

We have taken the matter into our consideration, and in obedience to your Lordship's commands have the honour to

Report—

That in our opinion adequate provision must be made by local law for the recognition in the Protectorate of probates and letters of administration granted by Courts of the United Kingdom before the Colonial Probates Act, 1892, can be recognised as extending to the grant of probates or letters of administration by the Courts of the Protectorate.

(2) The legislation referred to in this question is, in our opinion, adequate provision for the recognition in the Courts of the Protectorate of probates and letters of administration granted by the Court of the United Kingdom.

(3) The case is, therefore, one in which an Order in Council, under Section 1, may properly issue.

We have, &c.,

The Earl of Elgin, K.G.,

&c., &c.,

&c.

The Right Honourable

23 Wt 1649 8,00

D & 8 3

26300

JOHN L. WALTON. W. S. ROBSON.