1836.

V.

proper to do so, subject to give account of his proceedings to his creditors; and should call his creditors D'EPINAY together within two months after the before-men- COCKERELL. tioned periods for the purpose of rendering accounts of his administration.

This act was signed on behalf of Messrs. Ripley, Brothers, and of Messrs. Cockerell, Trail & Co.; by the former, however, without prejudice to their rights, from any assignment made to them.

The statements laid before the creditors were, of Saunders and Wiche's bills on Messrs. Saunders, Brothers, & Co., payable in Paris, accepted by them, and unpaid, of which the first was due the 25th August, the day of the stoppage of the house in London; the amount of these bills is 10,7087. 17s. 7d. Of bills payable in London, accepted by Messrs. Saunders, Brothers, & Co., unpaid; the first of these was due 22d September, and the amount altogether 5,9221. 7s. 7d. Of bills on Messrs. Saunders, Brothers, & Co., unaccepted in London; these appear to have been drawn by Saunders and Wiché in favour of different persons, and amount to 12,4387. 8s. 8d. Of drafts on Messrs. Saunders, Brothers, & Co., unaccepted, payable in France. These also appear to have been drawn by Saunders and Wiché in favour of different persons, and amounted to 3877. 12s. 9d.

The periods at which the bills contained in these two last statements became due does not appear. The total amount of bills contained in these five statements is 29,4571. 68. 7d.

There was also a statement of indorsements of Saunders and Wiché, of bills of various persons returned protested, amounting to 52,0297. 14s. 8d. These bills, however, do not appear to have been

1836.

drawn by Saunders and Wiché, or to have been D'EPINAY accepted by Saunders, Brothers, & Co.

ย.

COCKERELL. A further statement was also laid before the creditors on the same 15th February, of debts and assets of the house. This included the amount of all the bills contained in the above statements, except the indorsements, upon which the partnership was not primarily liable; and exhibited on the face of it a balance in favour of the house, of piastres, 188,391. 6. 6., or between 37,000l. and 38,000l. Further statements were laid before the creditors in June and September 1830, still exhibiting balances in favour of the house.

From the 15th February 1830 to the beginning of October 1831 Mr. Wiché acted as liquidator of the estate of Saunders and Wiché, and transacted business in that capacity during every month within that period without objection, as far as appears, from any of the creditors.

In the latter end of 1829, and in the beginning of 1830, securities to a considerable amount were assigned by Saunders and Wiché to Messrs. Ripley, Brothers; and in the course of 1830, other securities to a large amount also were assigned to Messrs. Cockerell, Trail & Co.; but under what particular circumstances those assignments were made has not been shown. To invalidate these assignments is the principal object of this appeal.

Until the end of September 1831, no legal proceedings appear to have been taken against the house of Saunders and Wiché; but on the 27th of that month, a colonial creditor having obtained a judgment against them, as endorsers of some of the bills returned protested from Europe, presented a petition to the Court of First Instance, stating that the cessation of pay

ments and the judgments obtained against them, on the protested returned bills, and placed them in en état de faillite, complaining that they had not made a declaration in conformity with the 440th article of the "Code de Commerce," and praying the Court to declare the faillite of Messrs. Saunders and Wiché opened, and to fix the opening as having taken place on the 1st January 1830, without prejudice to its being carried further back.

Upon this petition the President of the Court, on the 3d October, declared Messrs. Saunders and Wiché en état de faillite, and fixed the date of the ouverture de la faillite as having taken place on the 1st October 1831. Provisional syndics or assignees having been appointed, a further application was made to the same Court to fix the ouverture de la faillite on the 25th August 1829, when the establishment in London stopped payment; but the Court, on the 4th June 1832, confirmed the order of the President.

From this decision the syndics appealed to the Supreme Court, and there adduced additional evidence to show the insolvency of the house by the balance sheets made upon the 1st October 1831; and urged that the situation of the house was hopeless from the time of the failure of the house in London, and the return of the protested bills.

The Supreme Court, however, affirmed the decree of the Court below, and the syndics have appealed from the judgment of the Supreme Court to His Majesty in Council.

The propriety of the orignal order of the 3d October 1831, declaring the house of Saunders and Wiché en faillite at that time, has not been disputed.

The only question is, whether the ouverture de la

1836.

D'EPINAY

บ.

COCKERELL.

1836.

D'EPINAY

v.

COCKERELL.

faillite ought to be fixed at an earlier, and if an earlier, at what period earlier than the 1st October 1831.

This question turns upon the construction of the 441st article of the "Code de Commerce," and its application to the circumstances of this case.

It having been declared in the 437th article, that every trader who ceases to make his payments (qui cesse ses paiemens) is in a state of faillite, and in the 440th that every such person is bound, within three days after the cessation of payments, to make a declaration thereof an greffe du Tribunal de Commerce, proceeds in the article 441 as follows: L'ouverture de la faillite is declared by the Tribunal of Commerce; its date is fixed either by the debtor's absenting himself, or by the shutting up of his warehouses, or by the date of any act establishing the refusal to fulfil or to pay commercial engagements.

Nevertheless, the several acts above mentioned shall only establish the ouverture de la faillite, when there shall be a cessation of payments, or a declaration of the party who has failed.

The 442d article declares, that from the date of the faillite the party failing is absolutely deprived by law of the administration of his property.

In this case there has been no absenting, nor closing of warehouses, nor declaration of insolvency.

The point to be considered therefore is, whether there has been a cessation of payments, or a refusal to pay within the meaning of the law, prior to the time specified in the order of the 3d October 1831.

Refusal to pay, unless followed by a cessation of payments, is not sufficient to establish the faillite ; and a suspension of payment does not necessarily amount to cessation within the terms of the article.

1836.

D'EPINAY

V.

The language of the article is qui cesse ses paiemens, not qui cesse ou suspend; and it has been shown that the words ou suspend, inserted in the original projêt, COCKERELL. were purposely omitted. Locré Esprit du Code de Commerce, ed. 1829, vol. 3, pp. 5, 6, 7.

But a general stoppage of payments by the trader necessarily amounts to a refusal at the time of such stoppage; and if such stoppage has taken place, the ouverture de la faillite may, according to the provisions of the law, be carried back to the time of an antecedent refusal.

It has therefore been contended, that the ouverture de la faillite ought to be carried back either to the 25th August 1829, the date of the letter of license to the house in London, or to the 15th November 1829, when the intelligence of that event is stated to have arrived in the Mauritius, or to the 15th February 1830, the date of the acte d'atermoiement in the Mauritius.

But their Lordships are of opinion that no sufficient grounds have been established for carrying back the faillite to either of those periods. The transaction in London of the 25th August 1829 could not bring parties in the Mauritius within the provisions of the French law; and nothing appears to have been done in the Mauritius, by the house there, which amounts either to a general stoppage of payments by that house, or to a refusal to pay at any of the periods above mentioned.

For a considerable time after the arrival of the news in the Mauritius, nothing appears to have been done, either by the house or the creditors. But in the early part of February 1830, Mr. Wiché, of his own accord, called together his creditors, and, with the consent of all those who became parties to the engagement, ob