1836. tained time for the liquidation of the debts of the D'EPINAY house, and undertook to act in the liquidation of them. COCKERELL. At this time the statements produced to the creditors v. did not represent the house to be insolvent, though the account of endorsements laid before them might ultimately subject the house to payments beyond what they might be able to meet. On the contrary, a considerable balance in favour of the house was exhibited, and no suggestion has been made of unfairness in the statements produced. The acte d'atermoiement contemplated payment to all the creditors in full, with principal and interest; and all the property was left in the possession of the house, there being no assignment of it to trustees. Mr. Wiché continued to act in the disposition of the property from the 15th February 1830 to the beginning of October 1831, without objection. The suspension of payment in full took place either with the express approbation of those who were parties to the arrangement, or with the acquiescence of those who were not; and no occasion for refusal to pay appears to have arisen, no demands for payment having been insisted upon. Applying the terms of the 441st article, in their plain and obvious sense, to the circumstances of the case, they afford no grounds for carrying the ouverture de la faillite further back than the proceedings which occasioned the order of the President of the Court in October 1831. But two cases have been referred to, in which the Appellate Court at Paris is supposed to have put a construction upon the article more favourable to the appellants' view of the case. The first of these was decided in the Court of Ap peal in the year 1807 (Journal du Palais, vol. 20, The next case was decided in the Court of Cassation, on the 30th April 1810 (Journal du Palais, vol. 27, art. 57). Renault, Brothers, glass-manufacturers at Tours, having called together their creditors, an arrangement was made with 11 of the creditors on the 17th December 1808, giving two years' time to pay principal and interest from eight months to eight months. On the 21st February 1809 certain creditors, who were not parties to this arrangement, petitioned the Tribunal of Commerce at Nevers, that Renault, Brothers, might be declared faillis, without regard to the said atermoiement; and upon the ground of several protests having been made of their bills, 1836. D'EPINAY V. COCKERELL. 1836. v. several judgments given against them, and finally D'EPINAY the acte d'atermoiement, recently signed, the Court COCKERELL. declared la faillite ouverte, and ordered seals to be put upon the property. Upon appeal to the Court at Bourges, this judgment was set aside; but, on a further appeal to the Court of Cassation at Paris, the judgment of the Court of Appeal at Bourges was reversed, on the ground that it recognized the existence of two judgments, several protests of bills of exchange, and an acte d'atermoiement solicited by Renault, Brothers, and signed by several of their creditors; and that, under this concurrence of facts and circumstances, it was impossible not to recognize both the refusal to discharge the engagements of commerce and the cessation of payments, which characterize (caracterisent, in the plural number; that is, which refusal and cessation together characterize), the faillite. The third principle stated that the head of the report is, that cessation of payments is sufficiently established by protests, judgments and an atermoie ment. The chief arguments, in support of the judgment of the Court of Bourges, were, that Renault, Brothers, had continued to carry on their works; that atermoiement did not indicate faillite, since it intended to prevent it; and that absolute insolvency was not proved by suspension or delay of payment, arguments which ought not to prevail against creditors who dissented from the Act, and with respect to whom it operated as a denial from the time of their dissent. Ne pas payer aux termes, ni acquitter que partie de ses dettes, est un refus a l'égard de ceux qui ne veulent pas accéder à de telles propositions. Pardessus, tom. 4 par. 1836. D'EPINAY It does not appear that the ouverture de la faillite was, in fact, carried back to the 17th December either by the Court of First Instance or the Court of Cassa- COCKERELL. tion. But as the protests and judgments existed at the date of the atermoiement, the speedy assent of the creditors from the arrangement of the 17th December might have fully justified the court in considering what was then done by the debtor and 11 only of his creditors after the protests and judgments, as amounting to evidence of his intention from that time to refuse payment of his debts in the regular course. It is to be observed that the first court had declared the faillite, notwithstanding the atermoiement sans égard au dit atermoiement. The Court of Appeal at Bourges reversed the declaration of faillite altogether, and ordered the seals to be taken off. The argument of the appellant before the Court of Cassation was, that the refusal of Renault, Brothers, to pay their commercial engagements had been proved by several protests, that the protests had been followed by judgments, and the judgments had brought on the atermoiement, which alone, it was contended, proved the cessation of payment, which the law regarded as the infallible sign of the ouverture de la faillite. The Court of Cassation merely reversed the last judgment, and established the faillite upon the concurrence of circumstances, not upon the ground of the atermoiement alone. Pardessus, in a subsequent part of his work, which treats of the suspension of payments, parag. 1319, refers to this last case. After saying that creditors for sums actually due, who dissent from an atermoiement, may proceed against their debtor, goes on to say, C'es V. 1836. v. créanciers pourraient même, en réunissant à la circonD'EPINAY stance que le débiteur ne paie pas, celle quil a pris des COCKERELL. arrangemens avec d'autres créanciers, prétendre quil doit être déclaré en faillite; for which he cites the case Cours de Cassation, April 30, 1810; and adds, that upon this it would be for the court to pronounce according to the rules before propounded at the 1100th and following paragraphs. Against such debtors seeking a declaration of faillite, he says the debtor cannot be allowed to set up that he has merely suspended his payments. The 1107th paragraph, the last of those above referred to concludes thus, On voit par ce qui précède que les juges du fonds ont necessairement dans l'applica tion des règles que nous venons de proposer, et dans l'appréciation des faits un pouvoir discretionnaire. Their Lordships are therefore of opinion that neither of the decisions which have been relied upon affect a case in which no dissent was manifested, nor any pressure made upon the debtor by an adverse creditor till immediately before the application to the court for a declaration of faillite, and more than a year and a half after the acte d'atermoiement had taken effect, and must have been notorious. Their Lordships have not relied upon the decision in the case of Pitots' appeal from the Mauritius, which was mentioned at the close of the argument, because the case turned in a great measure upon the uncalled for interference of the Procureur du Roi, though the judicial committee, upon that occasion, was of opinion that an acte d'atermoiement alone was not sufficient to establish a faillite. This appeal having been brought against the judgment of two successive courts, their Lordships are of opinion that it must be dismissed with costs. |