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All questions at any meeting of creditors shall be determined by a majority in value of creditors present and entitled to vote, uniess otherwise expressly provided in law.
53. The insolvent, or the lawful administrator of any insolvent estate placed under sequestration, shall of his own accord attend before the creditors at the first, second, and third meetings of creditors to be held under and by virtue of the provisions of this Law, as also at any meeting which may have been adjourned and continued, unless he shall have obtained leave from the presiding officer not to attend such meetings.
He shall moreover attend any other meeting of creditors held in pursuance of the provisions of this Law, whenever he shall be required so to do by a written notice from the officer presiding.
54. The insolvent shall, at every meeting of creditors which he shall attend, answer all such lawful questions as shall be put to him by the officer before whom the meeting is held concerning his affairs and estate, and the cause and reasons of his insolvency.
He shall, at the second meeting, being thereunto required by the creditors, 10ge with the aforesaid presiding officer a true inventory of his estate, containing a true statement of all his effects, movable or immovable, personal or real, wheresoever the same may be situatel, and of all estates and effects in expectancy or contingency, or to which the insolvent may have any right, and of all debts due to and by him, to the best of his knowledge and belief, and of all books, accounts, vouchers, and other documents relating to his estate which he has in his possession.
The said insolvent shall moreover upon being thereunto required surrender the said books, accounts, vouchers, and other documents to the presiding officer.
The presiding officer shall hand over the inventory and the said books, accounts, vouchers, and other documents to the trustee so soon as the latter's appointment shall have been confirmed.
55. It shall be lawful for any presiding officer, and also for every creditor, or his attorney or agent, at any meeting to examine the insolvent upon oath concerning all matters relating to his trade, dealings, or estate, which may tend to disclose any secret alienation or concealment of his estate, or any part thereof. The presiding officer shall cause his examination to be reduced to writing, and signed by him, and annexed to the proceedings in the said estate.
If at such examination it shall appear that there are reasonable grounds for suspecting that the said insolvent has been guilty of culpable or fraudulent insolvency, it shall be the duty of such presiding officer to transmit the statements of the insolvent, with the other documents, to the State Attorney in order to enable him to take such steps as he may deem necessary for instituting criminal proceedings against such insolvent.
The insolvent shall not be entitled at such examination to refuse to answer any question put to him concerning his estate on the ground that he would incriminate himself by such answer.
Proof and Ranking of Debts.
56. Every debt against the sequestrated estate which was due or the cause of which arose prior to the order for sequestration of any estate, may be proved at any meeting of the creditors, held at any time before the final distribution of the estate.
Provided always that when any debt is so proved at any meeting specified under Art. 46, no dividends which shall already have been paid shall in any way be disturbed or prejudiced: provided also, that when any such debt is proved after the plan of distribution of such estate has been confirmed, and in consequence of the proof of such debt any alteration in such plan of distribution or in any further proceedings in the sequestration shall be rendered necessary, the creditor proving such debt shall be liable for all expenses which may be incurred in consequence of any such alteration.
A creditor who has proved his claim on an insolvent estate may withdraw his proof of debt by giving notice thereof to the trustee, and need not obtain an order of Court for that purpose. Such creditor, however, remains liable to be placed on a contribution account for a pro rata share of all costs lawfully and bona fide incurred by the trustee previous to his receipt of the notice of withdrawal (Cressey vs. Haarhoff's Trustee, 12 J. 123).
57. Every creditor shall prove his claim to the satisfaction of the officer presiding, who shall admit or reject any debt.
Such creditor shall prove his debts by affidavit, which shall be sworn before the Master of the High Court, Landdrost, or Justice of the Peace, or any Commissioner specially appointed by the High Court for administering oaths. Therein the creditor shall state the amount and nature of the said debt, what persons, if any, besides the insolvent, are liable for the said debt, the pledges or other securities given for the said debt; and shall depose, to the best of his knowledge and belief, that the debt is a true and lawful debt, and that all vouchers or evidence of debt which he shall produce with his affidavit are genuine.
Colony that a claim for unliquidated by action, and net proved as a debt Klerk vs. Zeeman, 13 J. 181).
It has been held in Can damages should be substantiate against an insolvent estate (De
In Cape Colony it has been held that, under § 130 of the Cape Ordinance, the creditors who have proved in a previous insolvent estate may again prove in the case of a subsequent sequestration where the insolvent has not been rehabilitated (De Klerk vs. Winterbach, 13 J. 179; Lindenburg vs. Gibson, 13 J. 24). See §§ 139, 143, and 144 of the Transvaal Law.
Spouses having a foreign domicile were married out of community of property. Rights were secured to the wife by ante-nuptial contract validly made at the domicile of marriage. The subsequent removal of the parties to Cape Colony was held not to deprive the wife of her rights, or prevent her from proving concurrently with other creditors on the insolvency of the husband in Cape Colony (Bosman's Trustees vs. Bosman, 14 J. 323; Bernstein vs. Bernstein's Trustees, 14 J. 161).
When the Master has not sufficient proof before him to admit a proof of debt, he ought expressly to reject it, and not to enter it short. A trustee has no right to admit a proof of debt not admitted by the Master, although he has the consent of a majority of creditors (In re Anderson, 3 M. 222).
58. It shall be lawful for the affidavit in the last preceding section mentioned to be sworn to by any clerk, agent, or other person, who is more fully cognisant of the nature of the debt than the creditor himself.
Any creditor who may be out of this Republic, in case he have no known agent or mandatory within the Republic, may make the necessary affidavits for the proof of his debt before any person duly qualified to administer oaths in the place where he resides. Such affidavits shall be duly legalised or certified in accordance with the customs and rules of the High Court.
59. It shall be lawful for every person interested to appeal to the High Court or any Circuit Court against the decision of the presiding officer as to the admission or rejection of any debt.
Such Court as aforesaid shall adjudge finally, whether such debt shall be admitted or rejected. Before adjudging finally, however, as to the admission or rejection of any debt, it may remit such case to the presiding officer for further proof, or may direct that the validity of the claim be tried by such course as to the Court shall seem fit.
It shall be lawful further for the Court to direct any action against the insolvent, which has in consequence of the sequestration been stayed, to be proceeded with after the election of a trustee. If the creditor thereafter shall obtain judgment thereon, he shall be ranked on the insolvent's estate for the amount of such judgment.
At an election of a trustee there were two candidates. After the election one of them, who was not a creditor, moved the Court to expunge a certain proof of debt and to have it declared that he was duly elected as sole trustee. He showed that an election had taken place, and that if the proof of debt had not been admitted he would have been duly elected as sole trustee. The Court held that under these circumstances he had a sufficient locus standi to make the application (Elliott vs. Taylor, 6 J. 2).
The Court has no jurisdiction until after the Master has rejected a claim sought to be proved (In re Anderson, 3 M. 222).
60. When there has been mutual credit given by the insolvent and any creditor, or where there are mutual debts between the insolvent and any creditor, the presiding officer shall make up and strike a balance on either side of such account, and shall rank the creditor for such balance as may be found to be in his favour: provided always that when such credit was given, or when the cause of his debt accrued, he shall have had no knowledge that any order of sequestration had been granted.
Any person interested, who shall consider himself aggrieved by any such decision of the presiding officer, may appeal against the same to the High Court, or any Circuit Court, which shall pronounce final judgment thereon, or direct such further proceedings as to the Court shall appear just.
A person died in August, 1884, indebted to an auctioneer to the amount of £199. The debtor's executors, through their agent, employed the auctioneer in September, 1884, to sell the movables in the estate. They were sold by the auctioneer, and realised £491. After the sale it was discovered that the deceased had been insolvent at his death, and his estate was surrendered. The auctioneer, who had not made any claim upon the estate, now sought to set off £199 of the proceeds in his hands against the debt due to him, and to pay the balance to the trustees
of the debtor's estate. It was decided that he was bound to hand over the whole amount of the proceeds and to prove on the estate as a concurrent creditor. The Court held that this was no such "mutual debt" as the Insolvency Law contemplates, there being no mutuality between the parties (Brink's Trustee vs. Theron, 4 J. 25).
Section 60 of the Law sustains the right of every creditor to plead compensation after the surrender of the insolvent's estate, in respect of any debt due by the insolvent to him, and against any debt due by him to the insolvent, in respect of and against which he might have pleaded compensation in a question with the insolvent, if he had been solvent, provided the creditor. "when such credit was given, or when the cause of his debt accrued, had no knowledge that any order of sequestration had been granted" (Manuel's Trustee vs. Norden, 3 M. 288).
A employed B as his attorney in an action in which he obtained judgment with costs, and was also indebted to B for previous legal expenses. Before the amount of the judgment could be recovered A became insolvent, and B then obtained the amount on instructions received from A's trustee. It was held that B was not entitled to set off against the amount so obtained by him his previous claims against the insolvent, but must prove for them in the ordinary manner (Murtha's Trustee vs. Coghlan, 1 G.W.R. 511).
The non-proof by a creditor of his claim on the estate of an insolvent debtor does not deprive such creditor of the right to set off his claim against a debt due by him to the insolvent (Gammer's Trustee vs. Joseph, B. 1876, p. 229).
61. It shall be lawful for a creditor whose debt was not due and payable by the insolvent at the date of the granting of the order for the sequestration of his estate, to prove such debt; but he shall in such case only receive payment thereof or dividend thereon after deduction therefrom of a rebate of interest at the rate of six per cent. per annum, to be computed from the date of the order of sequestration to the time when such debt would have been payable. Such debt shall also be valued for voting at this reduced
62. Any creditor who shall hold a con onventional or tacit right of preference upon any part of the insolvent estate shall, when he is the petitioning creditor, be obliged upon oath in the affidavit accompanying the petition, and when he is not the petitioning creditor in the affidavit produced by him at the time of proving his debt, to make mention of such preferer ce. In case he has any security for his aforesaid preferent claim, he shall put a value upon such security, and deduct the amount of such value from the debt so proved by him, without prejudice, however, to any such valuation being afterwards corrected, and without any prejudice to