NOTE. It is only incumbent on the petitioning creditor to prove the amount of the respondent's debts, and it is for the respondent to prove the amount of his assets, if he alleges that they are sufficient for the discharge of his debts, and the applicant (the creditor) is not under the necessity of proving the insufficiency of the assets for that purpose (Simpson & Co. vs. Fleck, 3 M. 217). As stated above (§ 8), the refusal of the defendant to point out property in satisfaction of an illegal writ, and of a judgment which could not at the time be legally enforced, is no act of insolvency (Brink vs. De Lima, 3 M. 304). 14. Whenever it shall appear to the Court that the petition was unfounded and vexatious, it shall be lawful for the Court to allow the said debtor, on his application for leave to do so, forthwith to prove any damage alleged to have been by him sustained by reason of the provisional sequestration, and to award him such compensation as the Court shall deem fit, or to leave him to his action for damages. 15. It shall be lawful for the Court, if and after any order for the provisional sequestration of any estate has been set aside on the ground that the claims of the petitioning creditor or creditors were insufficient, or in consequence of the consent or the default of the petitioning creditor, or his collusion with the insolvent, upon the application of any other creditor who has fulfilled the requirements of the law, to order that the said sequestration shall be revived and continued with all the consequences and effects thereof as if such order had never been set aside: save only that every alienation, payment, acquittance, surrender, or discharge made by the insolvent, and every hypothec or pledge by him executed between the time of the setting aside of the order for the sequestration and the time of the making of the order reviving the sequestration, shall be judged of and decided upon the like ground as if such order for revival were an original order for sequestration. NOTE. No payment, pledge, or mortgage, voluntarily made and constituted to or in favour of a creditor at a time when either creditor or debtor knows that the debtor is insolvent, in satisfaction of a debt then due and claimable by the creditor, can, in respect of such knowledge, and of its being the voluntary act of the debtor, be set aside as fraudulent, except where made or constituted at a time when another creditor or other creditors have had recourse to such proceedings for recovering their debts as in law to make them be deemed equally vigilant with the creditor to whom the payment is made, or in whose favour the pledge or mortgage is constituted. A bond creditor who has given notice calling up his bond is not, especially before expiry of the term of notice, equally vigilant with a creditor who has obtained judgment, and sued out a writ of execution on such judgment (Neethling vs. Blommestein's Trustees, 3 M. 276; In re Dusing, 1 M. 480). These cases were decided under the old Cape Insolvent Ordinance (No. 64, 1828). 16. If any debtor against whom any order for provisional sequestration has been made shall give or deliver to any creditor who obtained the same any satisfaction or security for his debt or any portion thereof, whereby the latter shall obtain more than he would be entitled to receive if the sequestration had been proceeded in, with the intent thereby to secure the assistance of such creditor in the setting aside of the order for sequestration, he shall be held to have committed a new act of insolvency. Every creditor so receiving such satisfaction or security shall, in the event of the sequestration being afterwards proceeded in, on petition of any other creditor in manner hereinbefore mentioned, deliver up the said security and repay the said excess over what he ought to have received for the benefit of the estate to such person as the Court shall appoint. He shall, in addition, pay all the costs incurred for obtaining the revival of the said sequestration, and he shall forfeit the whole of his claim against the estate. See note to § 8 (c), above. NOTE. 17. And it shall be lawful in like manner, and upon due observance of the previous provisions, on a petition of one or more creditors, setting forth valid grounds for the same, to place under sequestration the estate of any partnership in consequence of any act of insolvency committed by one or more of the partners, or upon any other ground that to the Court may seem sufficient. And independently of such sequestration, it shall be lawful for the creditors of any individual partner to proceed against the separate estate of any such partner in the ordinary manner, for the amount of the debt due to him personally. NOTES. Where there is a dispute as to whether a debt is due by a partnership or by an individual partner, it lies on the petitioning creditor to show that he is a creditor of the partnership (Mocke vs. Peacock & Co., 4 J. 62). An act of insolvency committed by one partner of a firm in his capacity as partner justifies the sequestration of the partnership estate, without proof that all the partners have committed acts of insolvency or have all made voluntary surrender (In re Phillips, 3 M. 210). Where a partnership estate has been surrendered, and it is sought to sequestrate the estates of individual partners, such individual partners must be called upon in the ordinary way to show cause why their estates should not be sequestrated (In re Benjamin, B. 1875, p. 117). A member of a partnership firm gave promissory notes bearing the signature of the firm, and discounted these notes. He applied the proceeds to his own use. With intent or in such manner as to defeat or delay the creditors of the firm he allowed the holders of the notes to obtain provisional sentence thereon, and to attach the partnership assets. This was decided to be such an alienation" within the meaning of the 4th section of the Cape Insolvent Ordinance (or § 8 (c) of the Transvaal Law) as to amount to an act of insolvency by the partnership (Anderson & Co. vs. Hutton & Co., B. 1875, p. 73). 66 18. And it shall moreover be competent for the Court to include in the same order for sequestration as well the separate estate or estates of any partner or partners of any company as the joint estate of such company. In this case the creditors of the separate estate or estates, and of the estate of the partnership respectively, shall be equally entitled to vote in the election of trustees, and in all matters relating to the said estates. The trustees shall, however, be bound to keep separate the administration and settlement of the joint and separate estates, as hereinafter prescribed. NOTE. See Mocke vs. Peacock & Co., referred to under § 17. 19. And it shall be lawful for any creditor or creditors of the estate of any person deceased, or of any person legally or actually incapable of the administration of his estate, in like manner, and upon due observance of what is herein before provided, to have such estate placed under sequestration as insolvent, on the ground that the person in whom the administration of the estate is legally vested committed an act of insolvency, or upon any other ground which to the Court aforesaid may seem sufficient. NOTE. An execution debtor committed suicide after the seizure of certain of his goods in execution of a judgment of the Cape Supreme Court. By the Cape Ordinance 104, 1833, § 31 (which is identical with § 46 of the Transvaal Proclamation No. 28, 1902), only the issuing out and not the subsequent progress of a writ of execution against a deceased person is barred. It was decided that, as the estate of the deceased had not been declared insolvent, the sale in execution must be proceeded with for the benefit of the execution creditor (Du Toit and De Waal vs. Heydenrych, 11 J. 197). 20. Every partner in a partnership, and every person legally charged with the administration of the estate of any person deceased, or of any person legally or actually incapable of the administration of his estate, shall have the same rights and liabilities in respect to the claims of any such partnership, or any such estate against any other estate placed under sequestration, as is granted to and imposed upon any creditor by virtue of the provisions of this Law. The joint partners, however, of any partnership, and any persons in whom the joint administration of any estate is vested as aforesaid, shall be entitled to one vote only, and shall be considered as one person. 21. The party obtaining an order for sequestration, whether such order be granted in respect to his own estate, or in respect to the estate of his debtor, shall immediately lodge the same with the High Sheriff of the Court, at his office in Pretoria, or with the Deputy Sheriff of the district in which such order has been granted. 22. And the Deputy Sheriff shall enregister the said order, and note thereon the day and hour of its production, and shall immediately transmit the same to the High Sheriff at his office. The High Sheriff shall enregister every such order lodged with him, or received by him from the Deputy Sheriff, and note thereon the day and hour in which it was lodged or received, and shall immediately deliver the same to the Master of the High Court. The Master of the High Court shall cause such order to be published in the Staatscourant. 23. Every insolvent obtaining an order for sequestration upon his own petition shall, within eight days after the granting of such order of sequestration of his estate as insolvent, transmit to the Master of the High Court a list containing, to the best of his knowledge and belief, the names and places of abode of his several creditors. 24. And the Master of the High Court shall, by the High Sheriff, or by his subordinate, or by any messenger of the Court, thereafter to be appointed, enter and lay an attachment upon every estate placed under sequestration, and make an inventory thereof. It shall be lawful for the creditor upon whose petition an order of sequestration has been obtained, or any person authorised by him, to be present at the framing of the inventory aforesaid. When the estate has been sequestrated upon the voluntary surrender of any insolvent, it shall be lawful for any of the creditors to be present with the messenger while framing the inventory aforesaid. 25. It shall be lawful for the officer charged as above with the attachment of any property, to secure any movable article belonging to the estate by sealing up any chamber, closet or repository, provided he cause no unnecessary hindrance or inconvenience to any party by so doing, or to appoint some person in custody thereof. When such person, however, leaves such goods in the possession of the person possessing them at the moment of attachment, he shall leave with the latter person a copy of the inventory, together with a notice that the property therein specified has been attached by him by virtue of an order for sequestration. This notice shall also contain a statement of the penalty provided under Article 150. The said officer shall forthwith report his execution of the attachment as aforesaid to the said Master. 26. The legal effect of every order of sequestration shall be that the custody of the estate placed under sequestration passes over to, and shall be legally vested in, the Master of the High Court, until such time as the appointment of a provisional trustee has been made, or until the final election and confirmation of such trustee. The Master of the High Court shall, for the time being, in respect to any estate placed under sequestration, have the same powers and shall be subject to the same duties as are given and imposed upon the trustee elected by the vote of the creditors, in accordance with the provisions of this Law. NOTES. VESTING OF THE ESTATE. If a person sells his immovable property to another, for which the seller receives the purchase price, and the seller thereafter becomes insolvent before effecting transfer of the property to the purchaser, the ownership of the property becomes vested in the Master of the Supreme Court, and ultimately in the trustee, for the benefit of the creditors. The purchaser then has a personal claim against the estate for damage sustained by non-fulfilment of the vendor's undertaking to perfect the sale by making legal transfer, and for restitution of the price. For such claim he is entitled to be ranked concurrently with the other personal creditors of the vendor, but has no right of preference whatever (Harris vs. Buissinne's Trustee, 2 M. 105). In such a case, where no transfer has been given, though the title deeds of the property have been handed over to the purchaser, |