No creditor shall, however, be entitled to exercise such right without first obtaining from the trustee, and producing a certificate that the trustee declines to institute such prosecution. NOTES. It is sufficient for the purposes of prosecution by a creditor under this section if he obtains from the trustee a certificate that he declines to prosecute "at present" (Vorster vs. Lilienfeld, 5 E.D.C. 254). 149. The crimes of fraudulent and culpable insolvency shall be tried before a jury. CHAPTER IX. Miscellaneous Provisions. 150. Any person who shall alienate, remove, conceal, embezzle, or receive any property belonging to any insolvent estate which has been attached by virtue of any order for the sequestration thereof, knowing the same to have been so attached and with intent to defeat the said attachment, shall be punished by imprisonment, with or without hard labour, for a period not exceeding seven years. 151. Any person who shall accept from any insolvent any alienation, mortgage, or pledge, knowing at the time the same to have been fraudulently made or passed with the intent thereby to prejudice the rights of his creditors, shall be punished by imprisonment, with or without hard labour, for a period not exceeding seven years. 152. When from declarations made under oath it shall appear to the satisfaction of any Judge of the High Court, or of any Landdrost, or of any Justice of the Peace, that there is reason to believe or suspect that property belonging to any insolvent estate is concealed in a house or other place not belonging to the insolvent, it shall be lawful for the said Judge, Landdrost, or Justice of the Peace, upon the application of the Master of the High Court or of the trustee of the estate, to grant a warrant to search for and take possession of the said property. Such warrant shall be executed in like manner as a search warrant for property reputed to be stolen or concealed. Any property of the insolvent so found shall be delivered to the Master of the High Court, as long as no trustee has hitherto been appointed, or otherwise to the trustee, or to any person appointed by the said Master or trustee to receive the same. or 153. Any person, whether actually a creditor or not, who shall be obliged by virtue of the 35th, 37th and 38th Articles to restore the amount of any undue preference which had been granted to him, when such preference was received by such person through any fraudulent arrangement, mutual agreement, or common consent between such person and the insolvent, shall not be entitled to prove as a debt the amount of the undue preference so restored upon the estate. 154. It shall be lawful for the trustee of any insolvent estate in any suit or action which he may institute against any person for the restoration of the amount of any undue preference, to claim in such suit or action that such person shall be declared by the judgment of the Court to have forfeited, on behalf of the insolvent estate, the amount in which he shall be found to have been unduly preferred by reason of the fraudulent arrangement, mutual agreement, or common consent in the last preceding section mentioned. In case no such action is instituted as above set forth, but the claim of any such last-mentioned person for the amount so restored be disputed, then such right shall be determined in accordance with the provisions of this Law for the regulation of the proof of debts. 155. In case a creditor has received an undue preference, but under circumstances which do not by virtue of the above Article occasion a forfeiture, viz.: in respect of any bill of exchange or promissory note with recourse on other parties, payable by the insolvent, and in possession of the creditor, or in respect of any dept of the insolvent for which such creditor had any security which by reason of the act of the insolvent constituting such undue preference such creditor has bonâ fide given up, or which he has omitted to take legal proceedings to recover, he shall not be liable to restore to the trustee the value of such undue preference, unless the trustee will indemnify him in respect of whatever loss such creditor would sustain in case he were unconditionally condemned to restore the amount or value aforesaid. NOTES. This section (155) practically embodies the decision of the Cape Supreme Court in Thorne's Trustee vs. Friedlander (B. 1875, p. 81). In that case the creditor, under the direction of the Court, refunded the amount paid to him on a promissory note, on receiving an indemnity from the trustee. The creditor then sued on the indemnity bond. The Court enquired into the position of the indorser of the note (the insolvent having been the maker) at the time the note became due and was paid and given up, and gave judgment for the creditor for the amount which at that time he might have recovered from the indoiser (Friedlander vs. Thorne's Trustee, B. 1876, p. 72). 156. In case any third party shall bonâ fide purchase or otherwise acquire for lawful consideration any bills of exchange, promissory notes, or other money securities, or any goods or effects from any person to whom they have been alienated by the insolvent under circumstances which would, in accordance with the provisions of this Law, make them null and void, then and in such case the rights which such third party so buying or obtaining shall have lawfully acquired in such goods and effects shall not lapse or be impeachable. But the person to whom the same were alienated, as above, shall be obliged to pay the true value of all such goods and effects by him disposed of to any third party, to the trustee of the insolvent estate, for the benefit of the creditors thereof. 157. Whenever in any action for setting aside an undue preference, under and by virtue of Articles 35, 36, 37 and 38 of this Law, it shall be proved that the alienation, payment, mortgage or pledge in respect of which the action is brought, was made or passed within six months of the sequestration of the insolvent's estate, and at a time when the liabilities of the insolvent fairly calculated exceeded his assets fairly valued, it shall be deemed that the insolvent might reasonably have expected the sequestration of his estate at the time, unless the defendant in such action shall prove the contrary. The evidence of the insolvent alone shall not be deemed sufficient proof to the contrary. NOTES. In the case of a bond given within six months of insolvency, the onus lies on the mortgagee to prove that the insolvent did not at the time of passing the bond contemplate the sequestration of his estate, and did not intend unduly to prefer the mortgagee (Jordaan's Trustee vs. Fletcher & Co., 11 J. 43). 158. Every provision of this Law relative to what shall be deemed undue preferences made by an insolvent, shall be deemed and taken to apply to preferences given out of the assets of the estate which they administer by persons lawfully charged with the administration of such estates. Where such undue preferences as aforesaid have been granted by any person who was lawfully charged with the administration of any estate before the sequestration, the trustee may prosecuteeither the person legally administering the estate or the person to whom or for whose benefit such undue preference shall have been given, first one and then another, but not both concurrently, for the repayment of the value or amount of any such undue preference. Provided always, however, that he shall in no case recover more than the amount or value of such undue preference, together with his costs and charges. 159. In all cases under Article 103, or in any action instituteď between parties relating to and concerning the legality of the debt of any person claiming to be a creditor on the estate, or in respect of the right of any person to have a preference upon any part thereof, it shall be competent for any insolvent to give evidence either in favour of or against the trustee. 160. It shall be lawful for the High Court or any Circuit Court, whenever such Court shall think fit, upon the application of the trustee, to summon the insolvent to appear before such Court or the Commissioner of such Court, to be examined under oath upon all such matters and things as are under Article 55 of this Law referred to. The said Court or the said Commissioner shall cause every such examination of the insolvent to be reduced to writing, and signed by him, and annexed to the proceedings of his estate. NOTES. A Judge of the Supreme Court has taken an examination in the capacity of Commissioner appointed under § 160 (In re Brink, 1 R. 338). 161. If any insolvent being duly summoned as aforesaid shall not come at the time and place appointed in the summons for his appearance (without his having proved to the satisfaction of such Court or Commissioner that he was prevented from doing so by some lawful cause), it shall be lawful for such Court or Commissioner to grant a warrant authorising any officer of the law or other person to apprehend such insolvent and bring him before such Court or Commissioner, or to lodge him in any prison, therein to be detained until the time which such Court or Commissioner shall have appointed anew for his examination upon application of the trustee. In the latter case the gaoler of every such prison shall be bound to produce the said insolvent before the Court or before the Commissioner aforesaid. NOTES. An insolvent who is suspected of being about to abscond may be called upon to give bail for his appearance, and in default may be arrested (In re Edwards, 1 R. 41). 162. If any insolvent shall at the second meeting of creditors, or any adjournment thereof, being thereunto required, refuse to lodge a true inventory of his estate, as provided by Article 54, or to surrender the books, accounts, vouchers or other documents as provided by the same Article, or shall at any meeting of creditors, or before the Court or the Commissioner of such Court as aforesaid, refuse to be sworn, or shall refuse to answer any lawful questions put to him by such Court or such Commissioner, or by the presiding officer, or by any creditor, touching any of the matters provided for under Article 55, or shall without lawful cause refuse to sign or subscribe his examination so reduced into writing as aforesaid, it shall be lawful for the Court or the Commissioner or the presiding officer, by warrant under their hand, wherein shall be set out whatever questions the insolvent may have refused to answer, to commit him to such prison as the Court or presiding officer shall think fit, there to remain without bail until he shall withdraw his said refusal. NOTES. This section practically embodies the decision In re Holtman (3 M. 302). The insolvent can only refuse to answer questions having a tendency to prejudice him on his trial; otherwise it is the duty of the Commissioner to commit him for contempt, in case of refusal. 163. It shall be lawful for the High Court or any Circuit Court after the sequestration of any estate, upon the application of the trustee, to summon before the said Court, or the said Circuit Court, the wife of the insolvent, or any person known or suspected to have in possession any of the estate of the insolvent or to be indebted to the insolvent, or any person whom the Court may see reason to believe capable of giving information concerning the person, trade, business or estate of such insolvent, or any infor |