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39. No benefits bonâ fide given by any person under any riuis registered ante-nuptial contract, to wife or children, shall become null and roid by reason of the sequestration of the estate of sucli person, save and except when the order of sequestration of his estate shall be made within a period of two years after the registration of such contract as aforesaid, and it shall be proved that at the time of the execution of the said ante-nuptial contract the said person was actually then in an insolvent condition; in which case such benefits shall be null and void, and they shall be claimable unli recorerable by the trustee of any such estate for and on behalf of such estate. In every ante-nuptial contract registere:l before the taking effect of this Law, the period of two years as hereinabove stated shall commence from the date of the taking effect of this Law.

NOTES. A husband by ante-nuptial contract settled property on a trustee for the benefit of himself and his wife, and after their death for the benefit of the children of the marriage. On the insolvency of the husband, the trustee in his estate was held entitled to the usufruct only of the property during the joint lives of the spouses, and the life of the survivor: and it was held that the children of the marriage would be entitled to the dominium in the property after the death of the survivor of the spouses (Brown vs. Dary, 12 C.L.J. 138).

I husband by ante-nuptial contract settled a sum of money on his wife, to be paid to her out of his estate as a preferent charge upon it o! his death or insolvency. If, however, his wife predeceased him the money was to revert to and form part of his estate, and be disposed of by him in whaterer manner he pleased. During his and her lifetime and his insolvency the said sum was to remain in his possession and under his control for the benefit of both of them. The husband became insolvent, and the wife claimed as a concurrent creditor. It was held that the claim could not be sustained, but that it might be admitted as a colltingent claim, payable if shie survived her husband (Leigh's Trustee vs. Leigh, 1 J. 75).

40. Every alienation of any part of his estate, and every payment, acquittance or discharge made by any insolvent of any lawful debt, or of any security of such debt, or any other matter or thing whatsoever belonging to the estate, and every mortgage and pledge by him executed on any part of his estate, after the making of the order of sequestration and before the confirmation of the final plan of distribution of the estate, shall be null and void, save and except in so far as the insolvent was thereunto justly entitled by virtue of the provisions of $ 28.

NOTES. In Loescher is. Pelser, Kruger efi Co. (9 E.D.C. 195), the whole of the property in an insolvent estate had, by arrangement between the insolvent and one of the creditors, been applied to pay one two


favoured creditors to the esclusion of others. The debts were too small to enable the estate to be submitted to compulsory sequestration. The Court decided that the alienation was in fraud of creditors under the Common Law,

See the cases referred to in the notes to 28 of this Law.

41. Every payment or satisfaction made to any insolvent, by or on behalf of any person who was the debtor of such insolvent, after the making of an order for the sequestration of the insolvent's estate, shall be null and void : unless the person making such payment or satisfaction shall have done so bonâ fide and without knowledge of such sequestration.

42. It shall be lawful for any person who has sold or delivered, or caused to be sold or delivered, to any insolvent any matter or thing, whether inovable or immovable, personal or real, when such sale has been effected without determining any fixed period before the expiration of which the purchase price should not be payable, or with an express or tacit agreement that the purchase price shall immediately be paid or payable, to claiin and recover such matter or thing cut of the sequestrated estate, provided written notice of such claim shall have been made within a period of twenty-one days after delivery of the goods or property.

After the expiration of the aforesaid period, such claim for recovery may only be founded upon an act of fraud committed against him by the purchaser.

Any person having sold and delivered any such matter or thing upon credit, in the manner as hereinabove mentioned, shall not be entitled to have such sale cancelled, or to claim the purchase price from the trustee any other lawful administrator of the sequestrated estate; the latter shall retain pessession of the goods thus solil and delivered for the benefit of the estate.


NOTES. If the price of an article, not sold and delivered on credit, is not paid, the dominion in the thing sold remains with the seller, and may be vindicated by him, as above stated, within 21 days after delivery. If the goods sold are claimed within the 21 days, subject to the conditions stated in 42, the seller will have a preference on the insolvent estate to the extent of the proceeds of the goods in question, if sold (Commissioner for the Sequestrator vs. Vos, 1 M. 286).

43. Leases, or agreements to enter upon any lease or leases, undertaken and entered into by any insolvent, shall not lapse or be determined by any order of sequestration granted against his estate.

The trustee of such estate shall be bound, within a period of six weeks after the confirmation of his election as such trustee, to decide, in consultation with the creditors of such estate, whether he will adopt and carry out such leases or not, and in default of any such action on the part of the trustee they shall be held to have determined. The lessor or any other person making such contract may in every case summon the trustee before a competent Court for the recovery of the rent due up to the period of the cancellation or determination of such lease, or for any damages he shall prove to have sustained by reason of the non-performance of such lease or agreement of lease.

The trustee shall also have the right, as against the lessor or any other person making such contract, to summon such lessor er person before a competent Court for the recovery of the amou and value of the improvements made upon such property so leased before the sequestration.

NOTES. By § 104 of the Cape Ordinance, differing in this respect from $ 43 of the Transvaal Law, the lessee's insolvency terminates the lease absolutely.

If a person first mortgages his land to one party, and then leases it to another, the proper course for the trustee, on the mortgagor's insolvency, is to offer the land for sale provisionally subject to the lease, and if the offer is not sufficient to cover the mortgages, then to sell the land free from the lease (Dreyer's Trustee vs. Lutley, 3 J. 59; Keed's Trustees rs. Reed, 5 E.D.C. 23).

In insolvent haul bound himself, before his insolvency, as the lessee of a piece of land for a term of years, to effect improvements to the property, in consideration of a reduced rental, and had effected such improvements. His estate was held entitled to compensation, calculated in accordance with the increase in value of the ground for the remaining period during which the lease would have run but for the insolvency (Langermm vs. Erans, H. 295). In this case the law had terminated the lease on insolvency.


Meetings of Creditors. 44. The Master of the High Court shall, in the notice mentioned by Art. 22, appoint two public meetings of the creditors of such estate at such times and places as he shall deem most convenient for all the parties concerned; the first for receiving proofs of debt against the said estate, and the second for the same purpose, and for the election of a trustee.

It shall be lawful for him, moreover, to alter the times and places so fixed for the holding of any of the meetings aforesaid, provided timely notice of such alteration be given in the Staatscourant. When the assets of the estate do not exceed the value of £75 sterling, he shall give notice of the same in the said advertisement and he shall therein also announce that unless it shall be shown at the first meeting called as aforesaid that the goods and effects of the insolvent exceed the value of £75, he shall proceed to act under the provisions of $ 47.

NOTES. If creditors fail to appear at the first or second meeting of creditors called under $ 44, the Master may call a fresh meeting without the special authority of the Court (In re Coetzee, 12 J. 423).

The Court will order a meeting to be called at any town where it may appear most convenient. An estate was sequestrated by the High Court at Kimberley. The first and second meetings were held there. It clearly appeared to be for the benefit of all persons interested in the estate that the third meeting should be held in Cape Town. The Cape Supreme Court granted an order to that effect (In re Firbank, Pauling & Co., 4 J. 337).

45. The Master of the High Court may, so soon as the election of the trustee had at the second meeting of creditors shall have been duly confirmed, appoint a third meeting, to be held at such time and place as shall appear to him most convenient for all persons concerned, for receiving the proof of debts against the said estate, as well as the report of the trustee as to the state and condition of the estate of the insolvent, and also to give to the said trustee directions as to the management thereof.

The trustee shall specify, in the same advertisement in which he shall give notice of the confirmation of his election as trustec, the time, place and purpose of every such meeting.

46. any creditor may, after the second meeting of creditors, at his own expense, call another meeting of creditors expressly for the purpose of proving his debt.

47. Whenever it shall appear at the first meeting of creditors that the assets of the estate do not exceed the value of £75, a trustee shall be then and there elected, the debts shall be proved, ranked, and the estate distributed ; and at the same time it shall be decided what part of their wearing apparel, bedding, household furniture, and tools of trade shall be allowed to the insolvent and his family.

48. If no creditors shall appear at any meeting appointed for the purpose of electing a trustee, then the Master of the High Court shall apply to the Court by petition to appoint a trustee for the due administration of the estate, or otherwise to set aside the order of sequestration.

NOTES. If at a meeting of creditors no trustee is elected, and there appears to be no likelihood that a proper election will take place if the creditors are again summoned for the purpose, the Court will grant full power of administration and liquidation to the provisional trustee of the estate (Ex parte Moller, O.R. 1895, p. 115; In re Lyons Brothers, 2 J. 136).

49. Where any meeting of creditors for the proof of debts of the election of a trustee shall be appointed to be held at Pretoria, the Master of the High Court at Pretoria shall preside at the same : and if in any district of this Republic, other than the district of Pretoria, the Landdrost of such district, or the Special Landdrost of the public diggings, shall preside.

The presiding official may adjourn the meeting from time to time, if ne shall deem it necessary.

50. Whenever the Master of the High Court, or the Landdrost, or any Special Landdrost, shall be prevented by illness or any unavoidable cause from holding any meeting of creditors, the High Court or any Circuit Court may appoint a Special Commissioner for such purpose, who shall have the same powers as are given to the said Master, or Landdrost, or Special Landdrost respectively in that behalf.

In default of such appointment, the Chief Clerk of the Landdrost or of the Special Landdrost, as the case may be, shall be charged with the duty of holding such meeting.

51. The Landdrost, Special Landdrost, Special Commissioner, or Chief Clerk, as the case may be, shall forth with report to the Master of the High Court on everything done by them in their aforesaid capacity:

52. In all cases of votes given by creditors in pursuance of this Law, when the creditors are to be counted in number, no creditor whose delt is below £30 sterling shall be reckoned in number, but the debt due to such creditor shall be computed in value.

Every creditor may attend and vote at such meeting either personally, or by agent authorised by power of attorney to that effect duly executed.

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