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London, England, 1826-08-24 00:00:00

eits,"g_ two commissioners of circuit with gross ignorance of
their jediciaicluties, and with corruption, partiality, and injustice.
Mouth, after the proceedings had been cencluded, the sale of
-Ilureetes property took place, and produced the aunt of I,arlo via
uolianr, wrath was given for the grant of land that was conferred
coon him by the acting Governor; a great part of the personal
properly had been disposed of by Burnett himself. between the
pehod pa which ;be first inventory was mode, and the conclusion
or the proceeding* by the commission of circuit. In the same in.
serval. also, very heavy stoma of rain had occurred, by which the
',llProvemeuts that he had effected upon the farm, and in the tear-
er:l of MT. Hart, had suffered great injury ; and one of the houses
that had beeninjudicioubly placed near the course of the river was
ant. aced.
"Si e have been induced to enter thus minutely in o the circum-
stancip nt. these proceedings, as Mr. Burnett has made them the
rtneipal ground of his complaint, both in this colony and in
imgland, and the pretext for a very violent representation to the
Glamor, for which he wall called upon to answer criminally
Wren the Court of Justice. In his first complaint, he adverted
to the vindictive spirit by which Ale. Hart was actuated in coin-
sieliing payment of his claim for 900 six dollars, and his attempt
to appropriate to himself the improvements he had made, and
was making upon his farm. If it were necessary to seek a justi-
fication of this proceeding on the part of Hart, it Wright, we
think, be naturally found in the very questionable transaction that
has in fact, na well as in law, been the cause of all Mr. Buroett's
elifficulties. After his drafts upon England had been publicly ale-
ei'nerl at Cape Town, and after he had incurred debts to two indi-
v.duals fot the means of cultivating his land, he made an arraign-
ment of all his property. for the purpose of securing a particular.
creditor, and avowedly for that of defeating the just claims of
others. Ile further state'', that an attempt was made by Mr. Hart
to obtain possession of the land contiguous to his farm that had been
granted to him by the Government, and has complained of the in.
justice of making it liable to execution, when the grants of other
settlers were not liable until the expiration of line yea.s, at which
taste they were to receive their titles. Mr. Bunco forgets, however,
to state, that he received the title to his grant the expiration of the
that year, at the solicitation of the creditor to whom he very aeon after
•,,irsned it, for the twofold purpose of emailiug him to give security
for the advances that had been made to him, and to protect
the property from the claims of others; ie justified this
proceeding, we observe, by a reference to the preferential nature of
the debt, in which we can by no means concur. The debts for which
lie was pressed by Mr. Hart and another creditor, arose front the
supplies of cattle and stock by which he was enabled to cultivate his
farm ; while the debt of the commercial firm consisted partly of a
pecuriary advance made to Mr. Burnett on his arrival in the co.
tory, of furniture for his house, and of a certain quantity of tea,
which was evidently intended for the purpose of retail or commer-
cial profit in the district.
Mr. Burnett alleges that he has expended the very considerable
sum of twenty thousand six dollars upon the farm of Mr. Hart, and
that it was an actor great injustice in him to attempt to appropriate
such a aim to himself. But it is necessary to observe that the im-
provements that were made by Mr. Burnett were not such as to in-
crease the value of the farm in the opinion of a practical settler—
nor were they made with the knowledge and consent of Mr. Hart,
the fardlord. The rustic lodge ti;at he built MA% a fanciful struc-
ture, and the garden was hid out more with a view to embellish-
ment than to profitable cultivation. The number of fruit trees,
however, was greatly augmented, and some pains were taken to
select the best kinds.

Much stress is 14.1 by Mr. Burnett upon the incompetence of
the persons who were appointed by the landdrost of the district to
appraise the improvements ; one of them we find was a builder,
ard the other was the veld cornet of the district, and persons who,
from their habits, might be considered competent to appraise the
value of the ordinary buildings and agricultural improvements in
the district. . . _ _

..... -----
Upon a review of the evidence that was given respecting the
value of these imprnvemcnta, before the Court of Citcuit, and
allowing for the novelty of sonic of them, we do not conceive
tine the auto of 1,315 rix dollars, fixed by the appraisers, was too
low an estimate. . . . .

- ..... -.
We hewn had occasion to advert to the declaratioa that was made
upon cash by 31r. Burnett, before the agent of the sequestraux, of
his posvmsing no property, and of having assiened It to a MeICIIII•
tile house In Cape Town for their benefit. it appears to us that
is eels of his embarrassment is attributable to these acts. They
in the fine place furnished a jest ground. in the abstmee of any eve
lar.atiott by which they could be palliated or justified towards
char creditors, fora deciara•ion of insolvency ; and we do not find
that either in the first trial that took place during the circuit of die
year 11.:2•7 or daring these that °relined in 1823, any evidence was
liffered cy Mr. Burnett to negative or disprove that fact.
On the first occasion the trio( was postponed to give him time to
pram:re evidence respecting it: but on the second lie never offered
a. r that tended to show diet the property that he had hem' allowed
rat hold was sufficient to discharge the debts that were brought
against him, cc that his creditors were willing to accept terma, or
tr
enter into atrangements for future .) mea. willing
loudly complained
t.! the infraction by Mr. Hart of the terms of the lease, in demand-
Log payment of the rent before it was due; but upon this point he
Ist routing to oppose to the arcing facts of having paid the rent
tar the fleet year, and having made a delusive tender of it for the
szcord; nor so the equitable construction of the lease, in which the
farm is described to " be let for the space of 3 yens certain, at the
rate of 800 Mx dollars per annum nor yet If. the certificate of the
otary who drew up the deed, that the parties had fully agreed, and
understood that the paymeut of the rent should be annual.
. . . .

It any doubt haeremaiited upon our minds respecting that fact,
it would have been removed by perusing the contents of a letter,
addressed 'by Mr. Burnett to his commercial friend in Cape
Town, dated the 2d of March, 11121. in which he expresses his hope
that remittances from England, or his *Klee of green forage. will
enable him to discharge Mr. Hsrt's demands Air nine hundred nix
collars, "as well as his rent, due the end of 3lay." With this
evidence before them, it cannot be matter of sucpritie that the Com-
missioners of the Court of Circuit should have hi 1d that the notice
out the ejectment was legally given'; that the lease was cancelled for
the non-payment of rent, and that Mr. Halt was entitled to be put
into immediate possession.
Mr. Burnett lies also complained of the conduct of the seques-
trator, both in publishing his insolvency, and in suspending the
proceedings after it had been declared; and he has imputed the last
et these acts fo some sinister influence of a person whom he does not
name. From the hest view we have been able to take of the order
u' suspension that was issued by the sequestrator, we are led to be-
lieve that it arose out of his mistake of the intentions of Messrs.
*Arden and Eaton wi:h regard to Mr. Burnett, and his imperfect
krowledge of the language in which they were conveyed, and
further from not having given dear iestructions to his agents at
Graham's Town. It is attributable also to certain defects in the
toestitution of the sequeatrator's office, and the mode In which the
{easiness of it was conducted.
:t remains for us to consider the veh. ment accusations that M
Burnett has brought forward against the Commissioners of the
Court of Circuit in the year 1823. We have already had occasion
to notice the arrangement that was made by these gentlemen, re-
repecting the priority in which the several causes should be taken,
sad ;he reduction that was proposed in the rumber of them, and
acquiesced in by the parties They gave precedence to the action
that had been postponed at the circuit of the former year, both on
account of its importance to the parties themselves, as well as of that
,tomcii it derived front halving been made the subject of special re-
tereace to them by the Court of Justice, before whom it had been
brought In the month of May preceding.
Mr. Burnett alleges, thit it was the duty of the Commis. I
s'oaers to have decided at once upon the question of his insolve.ney.
This point was certainly at issue in the year 1822, when the ac.l
ton of ejectment was brought by 3lr. Hart, and when time was'
given to Mr. Burnett to disprove it ; but during the interval that
Dad elapsed between the Circuit of 1822 and 1823, more than two
eesra* rent had become due; Mr. Hart was allowed to add this
iiaim to his former grounds of action. The Court was of opinion
that the payment of rent was annual and not triennial, and the ae-
ton and sentence of ejectment was maintained upon this ground,
although no declaration to that effect appoint in the sentence. We
slansld not, indeed, have ventursd to assert the grounds of this
decteion, if we had not been able to eullect them front a subsequent
explanation afforded us by one of the Commissioners, who has de-
clared, that It was the opinion of the Court of Circuit that the
question of insolvency could not fairly be tried unless the mopes-
teator was made a party. By a colonial law of rather recent date,
this officer combints the executive duties that in England are per-
formed by the Sheriff, with those of consetvator and judge of
Mu-kit:et and insolvent estates. An indefinite kind of appeal is
a"owesi against his decisions to the Court of Jmliee, where they do
not appear to receive the prompt consideration which the nature of
a..ch references require. In this case, however. instead of address-
-1,-.4,-.4 himself to the Court of Justice against the declaration of in.
bpi veskey of which he so much complained, Mr. Burnett transmit-
ted a memorial to the Governor, by whom it was referred to the
linderost and agent of the sequestrator in the .11bauy district, as
wedi as to the sequestrator himself, for explanation. The Court of
:waits., therefore, was never in possession of the question of in-
soiventy, until the action above mentioned had been referred to
tneir cognizance by the Connnisaion of Circuit.
It is necessary to observe, that as no professional assis.ance is to
be obtained in the several districts of the Colony, the proceedings
a the Court of Circuit are not conducted with the regularity that
desirable, and that parties frequently suffer front their ignorance
lei the forms, which, however, are in themselves execediritly simple
sad lutelligilde. On the present occasion the parties conducted
the+r own causes, and Mr. Burnett delivered a written defence., in
the course of which he indulged in a strain of virulent souse of
Mr. llart. which-the Court found it difficult to check. The inter-
rogation of .he witnesses appears to have been irregular ; and al-
though every opportunity seems to have been given by the f`ornmis-
sioners of Circuit for the investigation of the grounds of action,
sod of defence, a sentient% silence and reserve of their opinion is,
however, observable upon the question of insolvency, which was
tiodoubteelly mixed up with the oihn,4, notwithstazeteg the we.
rmces that they subsequently made of it to the full Court. Appeals
wore entered by Mr. Burnett to the Court of the Governor, against
as tite decisions, at the same time that the agent of the sequestretor
..s instructed by the President of die Court of Justice, end after
cammanictition with the Court of Appeals, to proceed to the exe-
eation of the sentence of ejectment, and the sale of slr. Bishop
Bornett's property, in musfaction of the other sentences that had
been obtained agumst him, and which had been long delayed.
It ass found that the personal property had been much dimi-
muted, and certain articles of merchandise that had been sent by
Mr. Burnett to Cape Town for sale, were arrested by the sequestra.
tor in the hands of the consignee, anti the proceeds were added to
ttsb estate, for the benclitof the creditors.
Erato the aceaunt that has been rendered by the %elaefttratde, It
*pears that the assets, after the deduction of the cost and illUtei
payable to government, amount to 4,4314 viz dtilats; nod that