NOTES.

An insolvent, who believes his estate has a remedy against a third person to recover a debt due, cannot compel his trustee to bring an action, where the trustee alleges that the estate has been wound up and there are no assets, and the applicant (the insolvent) does not tender the costs of such action (Du Plessis vs. Du Plessis' Trustee, 5 J. 220; Pratt vs. Pitman, 4 J. 190).

An insolvent will be ordered, on motion, to give up possession to the trustee of landed property in the insolvent's possession belonging to his estate. The insolvent cannot justify remaining in possession of landed property belonging to his estate, on the ground that the will by which the property was bequeathed to him gave the right of pre-emption to his brothers and sisters (Olivier's Trustee vs. Olivier, 9 J. 208).

A power of attorney to sue, signed by one of two trustees "for selt and co-trustee," is not sufficient to support a summons (Dodds & Co.'s Trustees vs. Watson, 1 M. 140).

85. At any meeting of creditors of any insolvent estate, by resolution passed by the votes of the greater part in value of the creditors, the trustee may be required to give full and sufficient security at his own cost, to be approved of by the Master of the High Court, and to be placed in his hands, for the due administration and liquidation of the estate.

Such security shall be provided within fourteen days after the passing of such resolution, and in default thereof his election, if not confirmed, shall be void, and if confirmed, he shall be removed from his trust; without prejudice, however, to the right of such trustee, or of any person interested in the due administration of the estate, to bring the amount of such security in review before the High Court.

86. As soon as the final account of liquidation and distribution shall have been confirmed, and receipts for all dividends awarded to creditors, as well as the amounts of unclaimed dividend lodged with the Master of the High Court, every security given by a trustee shall lapse and be cancelled by the said Master. Provided. however, that the cancellation of such security shall not be taken in any way to affect the liability of the said trustee incurred in respect to his management of the same.

87. It shall be the duty of the creditors of any insolvent estate, at the meeting held for the election of trustees, immediately after such election, by resolution of the majority of creditors, calculated upon the basis of the greater part in value of the said creditors, to nominate and appoint some certain bank or banks within this Republic, with which bank or banks it shall be the duty of the

Every

trustee to open an account in the name of the estate. provisional trustee appointed under the provisions of this Law, and every trustee whose election has been duly confirmed, shall open an account with one or more banks within this Republic, as he or they shall select, in case the creditors of any insolvent estate shall not have nominated any such bank or banks as aforesaid.

NOTES.

The transfer by a bank of the funds of an insolvent estate from the account of the estate to the private account of one of the two trustees, upon cheques signed by one trustee only, without the consent of his co-trustee, the bank knowing at the time of such transfer that the money had been deposited by such trustee on behalf of the estate, is no valid payment by the bank, to the trustees of the insolvent estate, of the funds of the estate which had been deposited in the bank (Marais' Trustees vs. Queenstown Bank Liquidators, B. 1876, p. 219).

This section is only directory as regards allowing the trustee to choose a bank, but is imperative as regards his choosing some bank and paying the moneys into it (In re Dallamore & Co., 9 C.L.J. 266).

88. All trustees, whether provisional or elected, shall, as soon as they have more than £20 in hand belonging to the estate, pay the same into some such bank or banks as aforesaid. All cheques or orders for the payment of any such moneys out of the bank shall truly express the cause of such payment, and the name of the person in whose favour it is drawn, and shall be signed by all the trustees, or by one of them on behalf of all. All trustees, whether provisional or elected, shall, in regard to all transactions with any such bank or banks, follow such directions as they shall receive from the creditors at any general meeting.

NOTES.

All cheques for the payment by a bank of money belonging to an insolvent estate are required truly to express the cause of such payment, and the name of the person in whose favour the cheque is drawn, and to be signed by all the trustees, or by one of them for himself and co-trustees; and the bank may refuse to pay cheques unless signed by all the trustees, or require the production of a power from the co-trustee before paying cheques signed by only one trustee (Marais' Trustees vs. Queenstown Bank Liquidators, B. 1876, p. 219).

After

A trustee in an insolvent estate received certain moneys due to the estate, and retained them in his own hands, instead of paying them into the bank account of the insolvent estate. He called a special meeting of creditors with reference to this money, and was instructed by the creditors to hold the money until the question of the preference of a claim filed against the estate by a certain creditor was decided. that decision another creditor applied, upon motion, to make the trustee liable for the penalty (the same as that stated in § 89 of the Transvaal Law). Under the circumstances the penalty was not imposed, but no order was made as to costs, as the trustee had not strictly complied with his duty to pay the money into a bank (Basson vs. Hodges, 5 S. 278).

89. Every trustee who, without any just and lawful cause, shall retain any sum of money exceeding £20 sterling, being part of the estate, or shall knowingly permit any co-trustee so to do, longer than until the first day after his receiving the same upon which it shall be possible for him or his co-trustee to pay the said sum or cause it to be paid into some bank, or who shall employ any sum of money belonging to the estate for his own benefit, or knowingly permit any co-trustee so to do, shall have to pay into the estate double the amount of the sum so retained or employed.

The said sum may be deducted out of any claim the said trustee may have against the said estate, or otherwise recovered by action in any competent Court.

See notes to § 88, above.

NOTES.

90. Any trustee who shall himself become insolvent whilst being indebted to the insolvent estate for any sum of money by him improperly retained and employed in manner as aforesaid, shall not be discharged from such debt by his rehabilitation, but shall remain liable for the amount in respect to any future property of which he may become possessed.

He shall moreover in such case be for ever incapable of being again elected as trustee.

91. The trustee shall keep a book, wherein he shall enter all moneys, goods, books, accounts and other documents received by him from the insolvent, or on account of the insolvent's estate, and all payments made by him on account of the insolvent's estate.

This book may be inspected at all reasonable times by every creditor who shall have proved his debt.

The Master of the High Court, whenever he shall think necessary, may order the said trustee by writing to produce the said book for inspection, examination, verification or otherwise.

92. It shall be lawful for the trustee at any time to call a general meeting of creditors, and require their directions concerning the recovery or sale of any part of the estate, or concerning any matter or question relating to the administration of the said

estate.

It shall be the duty of such trustee to call such meeting whenever he is thereto required by one-fourth of the creditors in value who have produced and proven their claims.

At least twenty-eight days' notice shall be given of every such meeting and of the purpose thereof in the Staatscourant, unless the presiding officer shall have allowed the trustee to call a meeting upon some shorter notice.

93. The trustee shall follow the directions of the majority of the creditors attending such meeting; such majority shall not, however, be competent to direct the said trustee to do anything calculated to interfere with or injure the just rights of any creditor who shall hold any conventional or tacit preference upon any part of the insolvent estate. In case any such direction shall nevertheless be given, any such creditor may apply to the High Court by motion to set aside such directions, which Court shall judge thereon as it shall deem just.

94. It shall be lawful for a trustee to take legal advice on any legal question affecting the insolvent estate or the administration thereof, and employ an attorney for the conduct of suits at law for or against the estate. All such costs as shall thereby be incurred shall be charged against the estate. They shall be taxed by the Master of the High Court, subject to the review of such Court upon the complaint of the attorney or of any other person interested.

95. If it shall appear to the High Court that any advising attorney has improperly advised the institution of an action or suit at law, with the purpose of thereby benefiting himself, and not the estate, or that he has improperly conducted such action, or has incurred any unnecessary or improper expense in such action, then it shall be lawful for the said Court to order the whole or any part of the costs to be borne by such attorney as the said Court shall think fit.

96. The trustee shall, subject to the direction of the creditors, as soon as may be, proceed to sell all the property belonging to the estate, after having given due notice thereof in the Staatscourant, and also such other notice as the creditors may deem necessary.

From the sale of the said movable property shall be excepted, until the creditors shall determine thereon, the wearing apparel, bedding, household furniture, and tools of the insolvent and his family. The sale of the immovable property shall take place in such manner and under such conditions as shall be determined on

by the majority of the creditors present at the meeting. The said conditions may, however, be submitted to the approval of the High Court or any Circuit Court on the application of any party interested.

The trustee, however, shall not be entitled to act as the auctioneer at the sale of the goods of any insolvent estate as hereinabove set forth.

NOTES.

A trustee in insolvency is not entitled to sell household furniture alleged by him to belong to the insolvent estate without directions to that effect given by the creditors, in terms of § 96 of this Law, at a duly convened meeting held after the second meeting of creditors (Bernstein vs. Bernstein's Trustee, 14 J. 161).

No one who is not a creditor having duly proved his debt has locus standi to set aside a sale in the insolvency (In re Anderson, 3 M. 222).

97. It shall be lawful for the Master of the High Court or any trustee, whether provisional or elected, to allow to the insolvent out of the assets of the insolvent estate, provisionally, such moderate sum or sums as to them shall seem indispensably necessary for the support of the insolvent and his family. The said Master or trustee, provisional or elected, may also employ the insolvent, or any other person, in the gathering and preservation of any crops or harvest or produce of any kind for any reasonable time necessary thereto : and also place the insolvent, or any other person, in charge of any immovable property, manufactory, or concern belonging to the insolvent estate, until the same shall be sold, disposed of, or wound up, and make to the said insolvent or other person so employed a reasonable allowance for his labour.

98. The amount of every such allowance granted either for support or labour before the meeting of creditors which shall be first held after the second meeting of creditors directed by this Law, shall be submitted to the approval of creditors, who snall have power to decide whether any such allowance shall be maintained, and if so, for what length of time, and what shall be the amount thereof.

Every trustee who shall make any such allowance to an insolvent, except with the consent of the creditors as aforesaid, shall forthwith report to the Master of the High Court the amount of and grounds for making such allowance. Every such allowance so made shall be subject to the review of the High Court upon the application of the said Master, or of any person interested.