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the amount of his claim in other respects. He shall be entitled to vote to the full amount of his debt in the election of a trustee, and in all matters relating to the property over which he holds such security; in all other cases, however, for the balance only. He shall only be ranked for and receive payment or dividend for the balance.

If any dispute shall arise about the value of such security, the creditor shall upon oath put a value upon it.

The trustee shall then have an option either of taking over the security for the benefit of the creditors at large on payment of the amount of the valuation out of the assets of the estate, or of leaving the full realisation of it to the creditor himself.

NOTES.

In seeking to sequestrate the estate of a debtor as insolvent, the petitioning creditor must mention and value all securities he holds for the debt (Standard Bank vs. l'an Buuren, 11 J. 316; Standard Bank vs. Kruger & Co., 4 E.D.C. 47).

In the Transvaal it is only in matters relating to (1) the election of a trustee and (2) the property over which he holds his security that a preferent creditor may vote to the full extent of his claim; in other matters he votes to the extent of the difference between his claim and the value of his security. In Cape Colony it has been held that a creditor who holds a general bond over movables may vote to the full extent of his claim with regard to the disposal of such movables (Burger vs. De Villiers, 15 J. 180).

A provisional order of sequestration was granted upon an affidavit which alleged a debt due, upon which judgment had been obtained, and a return of nulla bona. Upon the motion for the final order it appeared that the petitioning creditor held certain bonds as security for the debt, which security had not been valued in the affidavit. The evidence was conflicting as to whether the bonds were of sufficient value to cover the debt. The Court discharged the provisional order, saying that if the security had been mentioned and valued in the first instance the matter would have been enquired into, and a commissioner might have been appointed to value the property held as security (Standard Bank vs. Winterbach, 4 J. 329).

The Witwatersrand High Court (In re Anderson, 1904, not yet reported) has held that, where it is impossible to place a value on the security, no value need be given in the affidavit on the application for sequestration.

63. No creditor whose debt depends upon a contingency or upon a condition shall be entitled to petition or join in the petition for sequestration of any estate, or to vote in the choice of trustee, or on any other matters relating to the estate, so long as the contingency shall not have happened, or the condition shall not have been fulfilled.

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The trustee shall, however, at the creditor's request set a value upon such debt, and admit such creditor to prove the amount so ascertained. Such creditor shall then be entitled to vote, and to receive payment or dividend for the amount of such valuation. If the contingency or condition upon which such debt depends shall have happened or shall have been fulfilled, then such creditor shall be ranked for the whole amount of his debt, and shall receive payment or dividend thereon.

NOTES.

The holder of a promissory note, payable three months after the death of insolvent's father, is not such a contingent creditor as to be prohibited from voting for the election of a trustee. 'The death of the insolvent's father was an event which must happen. It was only the time when it would happen that was uncertain (In re Du Toit, 16 J. 416).

Creditors holding bonds in which the surety and co-principal debtor has renounced the benefits of excussion and division (in consequence whereof he may be sued directly, without notice to or demand on the principal debtor) are not contingent creditors where the principal debtor has not surrendered or been excussed, but are entitled to prove immediately on the surety's insolvent estate, and to vote in the election of trustee (In re Deneys, 3 M. 309).

See Leigh's Trustee vs. Leigh (1 J. 75) in the notes under § 39, above.

64. Whenever a value has not been placed upon any conditional debt as above specified, the trustees shall rank the same as if the contingency had happened, or the condition been fulfilled. The Court in such case shall grant an order, upon the petition of the trustee, securing to him the amount or the dividend to which such creditor shall be entitled so soon as the contingency shall have happened or the condition has been fulfilled. Any interest, however, which may in the meantime be received thereupon shall accrue to the benefit of the other creditors. For the purpose of voting on any offer of composition, a debt ranked in manner as above set forth shall be valued at an amount to be fixed by the Master, subject to an appeal to the High Court.

65. When the Court shall be of opinion that by reason of the absence of any person from this Republic, or for any other cause appearing to the High Court, a creditor who has not proved a debt to the satisfaction of the Court may eventually be able to establish the same, it shall be lawful for the Court to cause such debt to be provisionally ranked in the proceedings of the insolvent estate, and to give such creditor reasonable time for proving the same, and in the meantime to make such order for securing the amount thereof, in case the said claim shall be afterwards proved.

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66. Each debt upon which the payment of interest has been stipulated shall be entered and ranked for the amount due thereon, together with the arrears of interest.

NOTES.

In the Cape Colony interest on a mortgage bond accruing after sequestration has been allowed at the rate stipulated for in the bond (In re Standen, B. 1873, p. 92). This decision proceeded on the construction of § 33 of the Cape Ordinance. Whether the same construction will be placed on § 66 of the Transvaal Law is uncertain.

67. In every case in which it shall happen that the estate of any partnership, and the estate or estates of one or more of the partners of such partnership shall be concurrently placed under sequestration, the ranking of the debts of the different creditors shall take place in accordance with the following rules :

(a) The debts of the creditors of the said partnership shall be ranked upon the estate of the partnership, and the debts of the creditors of each partner separately in the separate estate of such partner.

(b) If there are no assets in the estate of the partnership, or insufficient to satisfy the creditors of the partnership, then the debts of such creditors shall be ranked upon the surplus of each estate of the individual partners which may remain after satisfying the separate creditors of that estate, either for the residue or the whole of his debt, as the case may be; provided, however, that no creditor shall receive in all more than the whole amount of his debt.

(c) If there are no assets in the separate estate, or insufficient to satisfy the creditors of that estate, then the debts of such creditors shall be ranked upon any surplus of the partnership estate which shall remain after satisfying the creditors of that estate in proportion to the share of such surplus to which the particular partner would be entitled.

(d) If in the case specified under (b) the creditors of the partnership shall receive satisfaction wholly or in par out of the surplus of the separate estate of any of the partners, the trustee of the latter's estate shall be entitled to rank as creditor upon each separate estate of each of the partners for the whole amount he has paid out in satisfaction of the debts of the partnership ; provided, however, that such shall not operate to the prejudice of preferent claims.

Provided always that such can be done without any detriment to the rights of creditors of the partnership against each individual partner whose estate shall not have been placed under sequestration, and vice versa.

NOTES.

A partner has no authority to pledge securities belonging to the partnership for his private debt, and the pledgee will not be entitled to claim in respect of such securities on the sequestrated estate of the partnership (Zeederberg vs. Norton's Trustees, 3 S. 12).

A partnership known as C & Co., of which A and B were the members, was dissolved. A took over the assets of the firm, and, in consideration of his receiving the assets, agreed to indemnify B, who retired from business, against all claims which might be made against B in respect of the late partnership of C & Co. Thereafter A's estate was both surrendered and sequestrated. B was held entitled to prove on A's estate in respect of any sums which he might be called upon to pay for debts owing by C & Co. (Copestake vs. Alexander, 2 J. 137).

The same persons were partners in two firms which carried on business in the same town in two distinct capacities. The profits earned by the one firm were paid into the account of the other firm, which became insolvent. The holders of promissory notes drawn in the name of the former firm were held entitled to prove for them on the insolvent estate of the latter firm, which would in the ordinary course have derived the profits from the notes (Bate vs. Hunt, 2 J. 179).

68. The creditors of any partnership, whether the estate of such partnership has been sequestrated or not, may prove their debts in the sequestrated separate estate of any one of the partners for the purpose of voting at the election of trustees, or on any offer of composition.

They shall not, however, be entitled to receive any dividend out of such separate estate before the creditors of such estate have been fully paid, unless the order for the sequestration of such estate has been granted upon their petition.

69. In every case not expressly provided for in this Law relating to the ranking as between each other of the creditors of any partnership, or of those of the separate estate of any partner. the general principles of law shall apply and be resorted to.

70. The assets of the estate shall, after payment of all costs lawfully incurred as hereinafter provided, be applied: In the first place to the payment of the preferent debts, together with such. interest due thereon as shall according to law be preferent: thereafter to the payment of the capital sums of all concurrent debts,

without interest, where the assets of the estate are insufficient to satisfy all the claims against the estate, but with interest from the date of the granting of the order of sequestration, in case there should be a surplus left after satisfying all claims against the

estate.

CHAPTER IV.

Provisional and Elected Trustees.

71. It shall be lawful for the High Court or any Circuit Court upon petition made in writing, setting forth the grounds upon which such petition is based, by the Master of the High Court, or any person interested. to appoint one or more fit persons as provisional trustee of any insolvent estate, whether provisionally or finally sequestrated.

Thereupon such estate shall pass out of the hands of the Master of the High Court and vest in the provisional trustee so appointed, and shall so remain vested in him until such time as an election of a trustee shall have been definitely made by the creditors and been duly confirmed, and otherwise until the account and final plan of distribution of the estate shall have been confirmed.

In the event of the death or the removal of a provisional trustee before that time, the estate shall revert to the Master of the High Court.

NOTES.

The fullest information should be given to the Court at the time when an application is made for the appointment of provisional trustees (In re Lewin, 11 J. 103).

After the granting of a provisional sequestration, and before the return day of the order, the Court granted an application for the appointment of a provisional trustee, on the ground that certain partially reaped corn required immediate attention, giving the trustee power merely to gather in the crops, and reserving leave to the insolvent to have the appointment set aside (In re Mostert, 5 S. 309).

A petition for the appointment of a provisional trustee should give some idea of the value of the estate, and the proportion of the petitioner's claim (In re Dacey, 2 C.L.J. 155).

See note to § 48, above.

A provisional trustee was appointed where the assets in the estate consisted mainly of ostriches and other live stock (Rubidge vs. Foxcroft, 9 E.D.C. 134).

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