over her husband if insane or prodigal. Grotius (1, 11, 7) draws a distinction, stating that "the wife, being a minor, cannot be appointed guardian to her husband in case he should be afflicted by lunacy or prodigality, though she may sometimes be allowed the management of the property." Schorer (note 47) contents himself with quoting Voet, whom he interprets to lay down that the wife may have the curatorship of her husband's goods and her own. This view was followed by the Cape Supreme Court (In re De Jager, Buch. 1876, p. 228), which laid down that a wife cannot be appointed curator of the person of her lunatic husband, though she may be allowed the management of the property. The power of the Court to appoint curators over the property of prodigals is undoubted (In re Chism, 9 S. C. 61). At the Cape, a drunken father has been placed under curatorship on the petition of his daughter (In re Miller, 9 S. C. 414). Where the Court was unable to declare a respondent of unsound mind, yet, as some restraint over the administration of his property was necessary, and as the defendant himself consented to the order, a curator bonis was appointed (The Master vs. Lehmann, 4 E. D. C. 308) to administer his estate and (in accordance with § 25 of the Cape Ordinance 105, 1833) pay over the proceeds to the Master. See also In re Filmer (Buch. 1875, p. 2); In re Prinsloo (9 E. D. C. 181); In re De Jager (16 S. C. 222); and Combrinck vs. Combrinck and Another (Buch. 1877, p. 72).

348. As to the validity of a decree, appointing a curator over the prodigal, beyond the jurisdiction of the Judge making the order, Voet holds that, as there has been no publication of the decree beyond the jurisdiction, a person who contracts in good faith with the prodigal beyond the jurisdiction will have a just ground of action against the prodigal, on the score of justus error, in the same manner as if there had been no interdict (27, 10 §§ 11, 12).

349. Curators may also be appointed to persons who suffer from such bodily defects as render them unable to have the sole control of their affairs, wherefore they require the assistance of others to some extent in their transactions, such as deaf and dumb persons, and those who suffer from a perpetual disease (such as leprosy). The curator in such a case is only required to give his assistance or authority in transactions to such an extent as the person suffering from such bodily defect is incapable, on account of his infirmity, from completing the transaction by himself—in the same way as curators to lunatics who have lucid intervals act as curators only while such lunatics are insane (27, 10 § 13).

Where curators (since dead) had been appointed to a deaf and dumb person, and there was a sum of money belonging to him in the hands of the Master, and he applied for an order (1) declaring him capable of managing his own affairs, (2) releasing his property from curatorship, and (3) authorising the Master to pay

to applicant the sum in the Master's hands, the Court held that there had not been sufficient cause shown for releasing applicant entirely from curatorship, and appointed a curator, who would, however, "only exercise such powers as are required to supplement the applicant's physical defects" (In re Rens, Foord, 92; see also In re Rens, 3 M. 100). Such curators are not appointed over the persons of deaf and dumb people. See Grot. 1, 11, 2; Van der Keessel, § 164; Vinnius on the Institutes, 1, 2, 3, 4; Digest, 29, 2, 5, and In re Rensburgh (3 M. 99).

350. Curatorship ends, in the case of lunatics, with their restoration to sanity; in the case of prodigals, with their reformation, and the certainty that they may be once more trusted to manage their concerns properly. In their case, it appears that a judicial discharge from curatorship is necessary. In the case of minors, guardianship ends with attainment of the age of majority, or marriage, or obtaining venia aetatis (27, 10 §§ 14-16).

See In re Kemp (3 M. 101), where the Court, on motion, released a person who had been declared to be of unsound mind from curatorship on the ground of his recovery.

CHAPTER IV.

HUSBAND AND WIFE.

(1) PROMISE OF MARRIAGE.

351. Simple consent of parties is sufficient to constitute a binding agreement to marry, and this may be signified in person or, when the parties are away from each other, by letter or messenger. All persons who may validly contract marriage may enter into a promise to marry. Minors may promise to marry, and so may widows within the annus luctus, although the former cannot marry without the consent of parents or guardians, nor the latter during the year of mourning (23, 1 §§ 1, 2).

A minor making a promise to marry without the consent of parents cannot be sued for breach of promise of marriage (Gray vs. Rynhoud, 1 M. 150). But a minor may sue, duly assisted, for damages for breach of promise of marriage.

352. There is nothing to prevent prodigals from making a promise to marry, since marriage has more relation to the persons than to the property of the contracting parties. This is the rule of the civil law. But Voet prefers to hold that, as marriage is followed by a statutory community of property, prodigals who have been interdicted cannot make a valid promise of marriage. This would, therefore, seem to be the modern law (23, 1 § 3).

353. Fraud or intimidation (duress, metus) are sufficient grounds to avoid a contract to marry. If the fraud is discovered, or the intimidation ceases, and a fresh promise of marriage, free from fraud or duress, is made, this will bind the parties (23, 1 § 4).

354. If the persons who enter into a contract to marry are under guardianship, the authority of the guardian is necessary, according to Roman Law. But this is not the case in Dutch Law, according to Voet (23, 1 § 5). This consent refers more to the actual

marriage than to the promise to marry; though, as above stated, a minor is not liable in damages for breach of promise.

Voet (in 23, 2 § 16) says that the law of Holland does not require the consent of guardians to the marriage of minors, and quotes an edict of the Government of Holland, dated 1580 (art. 3). Van Leeuwen also (R. D. L., 1, 14, 9; Kotzé, 1, 106) says: "The consent of guardians to the marriage of their wards is not necessary." Van der Linden (1, 3, 6; Juta, p. 20) says that if the parents of the parties who wish to marry each other are alive, their assent or consent must be previously obtained. But with regard to guardians, he holds that at Common (Dutch) Law their consent is not necessary. Van der Keessel (§ 77) says: "Under the term 'parents,' without whose consent the proclamation of espousals (i.e., of banns) is not permitted to minors, are not included grandfathers and grandmothers, uncles, or guardians." The Cape Marriage Order in Council of 1838, $ 10, 17, requires, however, the consent of guardians. There is no difference between the consent to a marriage and the consent to a promise to marry, and, therefore, the consent required is the same for both. In the Transvaal, by Law 3, 1871, §§ 4 and 16, the consent of parents or guardians, failing which, that of the magistrate, is required. As to Natal, see Law 7, 1889, § 4. As to Orange River Colony, see Law 26, 1899, § 19. The Rhodesia law is the same as that of the Cape.

355. A condition, a modus, or a day may be incorporated in a promise to marry. The condition must be in accordance with public policy, and not immoral. It must be a possible condition, and must be fulfilled before the obligation to marry can arise, unless the contracting parties have foregone the condition, either expressly, or tacitly by having carnal intercourse with each other. The condition must be of a kind, the fulfilment of or omission to perform which depends on the will of the parties who have promised to marry (23, 1 § 6).

See Van Leeuwen (Cens. For. 1, 1, 11, 5); Dutch Consultations (part 5, No. 106, p. 358); Vinnius on the Institutes (on paternal power, 1, 9, 1, 5, ed. 1709, p. 44). 356. Mere intercourse, though it will avoid such a condition as that just mentioned, will not constitute marriage, according to Dutch Law (23, 1 § 6). From this it follows that, if the condition attached to the promise of marriage depends upon the will of a third person, the act of the parties who are to marry cannot affect the fulfilment of the condition by such third person. Thus Van Leeuwen (Cens. For. 1, 1, 11, 6) holds that if the promise be made subject to the father's consent, and intercourse takes place between the parties before such consent is obtained, such consent on the part of the father will still be required to confirm the promise of marriage (23, 1 §§ 6, 7).

357. In Dutch Law, adopting the Roman Law (to which the Canon Law is contrary), an impossible condition attached to a promise of marriage vitiates the contract-unless the condition is attached by way of negation, as a promise to marry "if you shall not touch the sky with your finger." In such a case the contract is regarded as unconditional, and it is clear that an obligation thereon immediately arises (23, 1 § 8).

In other words, where the performance of the contract of marriage depends upon the performance of a thing which is impossible, the whole contract is avoided. Where a condition is attached to the contract that the marriage shall take place if an impossible thing does not happen, such a condition is treated as non scripta, and the promise to marry is binding.

358. Where an impossible condition, or one which infringes good morals, public utility, truth and honour is attached to the promise, the law will regard such a promise as entered into with no serious. intention to marry, and the agreement will therefore be treated as null and void. But, where a serious and binding agreement to marry was originally entered into, the subsequent addition of an immoral condition (although immoral conditions generally vitiate contracts) will not discharge the contract to marry. So, if a youth promises marriage to a girl whom he has seduced, on condition that she shall procure abortion by means of poison, the promise will stand, the desire to avoid public disgrace being the motive for the procuration of abortion, and the seduction constituting a sufficient consideration for the promise to marry. The same rule will hold, if the man promises marriage on condition that the girl will permit of previous intercourse. It makes no difference whether such conditions are fulfilled or not. In either case, the girl may sue for breach of promise of marriage (23, 1 §§ 8, 9).

359. If the day has been fixed for the marriage, no suit on the promise of marriage can be brought until such day has elapsed. If consent is required to a promise to marry, failure to obtain such consent avoids the promise of marriage. If the statutes of any place prescribe any form for a binding promise of marriage, noncompliance with such statutes renders the marriage null and void (23, 1 §§ 10, 11).

360. The opinion of Van Leeuwen (Cens. For. 1, 1, 11, 10), and