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1836.

RRY

t'. BUTLIN.

ing, until the final judgment is pronounced, is part of the hearing, and to be considered as one continuous act. That has always been my own impression, and I am confirmed in it by two cases, the notes of which, upon a short search, I have found. The one was the case of Ansley v. before Sir William Wynn, where an application was made to allow further time to bring in an allegation, which the Judge refused, observing that he should proceed with the cause, and that the party aggrieved might appeal from the whole decree if he thought fit. The other was the case of Raybould v. Raybould, which was a divorce cause. After the hearing had commenced the wife brought in an affidavit offering to prove fresh facts, which the Court refused to admit, as she might appeal from the whole decree as a continuous grievance. That was a case of great length, and the argument was not concluded in one and the same term. In a case of this nature, if an inhibition were granted and served, the Court could not proceed, for it would then become a contempt in the Judges to continue the hearing; but if a mere appeal were permitted to be interposed in such a stage, and to stop the proceedings, no cause could be effectively concluded : besides, in the present case this Court could come to no satisfactory determination upon the grievance complained of without seeing all the proceedings in the Court below, and the expense and delay which parties desirous of protracting the cause might thus occasion would be nearly incalculable. I think the passage cited from Oughton bears strongly on this incidental question, and that if the sentence of the Court below upon the merits (which after all may be in favour of the present appellant) is sought to be reversed, the subject of the present appeal

1836.

may be urged as part of the grievance complained of.
We are of opinion, therefore, that this appeal must be
disallowed; but under the circumstances of the case,
their Lordships think only nominal costs ought to be
given.

Appeal dismissed, with 101. Costs.

BARRY

v. BUTLIN.

ON APPEAL FROM THE SUPREME COURT

OF THE MAURITIUS.

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This was an appeal promoted by the appellants 25 June

1836. (syndics definitifs) of the bankruptcy of Messrs. Saun

Refusal to • Present: Mr. Baron Parke, Mr. Justice Bosanquet, Sir John Nicholl and Sir Herbert Jenner.

followed by a

cessation of payment is not sufficient to establish the "ouverture de la faillite" under the 441 article of the Code de Commerce of France; and a suspension of payment does not necessarily amount to a cessation within the terms of that article: but as a general stoppage of payments necessarily amounts to a refusal at the time, if such stoppage has taken place, the ourerture de la faillite" may be carried back to the time of the antecedent refusal.

Where a house in the Mauritius carried on trade in co-partnership with one in London, and suspended its payments in consequence of the stoppage of the London house, though not till some time after the arrival of intelli. gence of such stoppage, the Judicial Committee (affirming the judgment of the Court of First Instance and the Supreme Court in the island) refused to carry back the date of the “ourerture de la faillite" to the failure of the London house, but held it fixed only from the period of the actual stoppage of payments in the island.

H4

1836.

D'EPINAY

ders and Wiché, merchants in the island of Mauritius,

on behalf of the general body of creditors in that COCKERELL. island, against the said bankrupts and the other

respondents, who were creditors of the firm of Saunders, Brothers, & Co of London, partners of the said Messrs. Saunders and Wiché, from the judgment of the Supreme Court of the island, affirming the decree of the Court of First Instance, and declaring the bankruptcy of the said house of Saunders and Wiché open from the 1st day October 1831; the appellants insisting that the bankruptcy ought to be open from the 25th day of August 1829.

The question turned on the true construction of the French law regulating proceedings against persons declared to be “en faillite," contained in the 437th (a) and following articles of the “ Code de Commerce,” those principally relied on were 440 (6), 441 (c), and

442 (d).

As the general facts of the case are fully stated in

(a) 437. Tout commerçant qui cesse ses paiemens, est en état de faillite.

(b) 440. Tout failli sera tenu, dans les trois jours de la cessation de paiemens, d'en faire la déclaration au greffe du tribunal de commerce; le jour où il aura cessé ses paiemens sera compris dans ces trois jours. En cas de faillite d'une société en nom collectif, la déclaration du failli contiendra le nom et l'indication du domicile de chacun des associés solidaires.

(c) 441. L'ouverture de la faillite est déclarée par le tribunal de commerce; son epoque est fixée, soit par la retraite du débiteur, soit par la clôture de ses magasins, soit par la date de tous actes constatant le refus d'acquitter ou de payer des engagemens de commerce.

Tous les actes ci-dessus mentionnés ne constaterant néanmoins l'ouverture de la faillite, que lorsqu'il y aura cessation de paiemens ou déclaration du failli.

(d) 442. Le failli, à compte du jour de la faillite, est dessaisi de plein droit, de l'administration de tous ses biens.

1836.

the judgment, and the authorities cited at the bar repeated and commented on by the learned Judge, D'EPINAY and as the decree in the Court below was affirmed, it is COCKERELL. thought unnecessary to repeat the arguments of counsel, which were necessarily directed rather to the facts than the law of the case.

Dr. Lushington and Pemberton, K. C., for the

Appellants.
Knight, K. C., and Wigram, K. C., for the Re-

spondents.

Mr. JUSTICE BOSANQUET: The appellants in this case are the assignees (syndics definitifs) of Messrs. Saunders and Wiché, merchants in the island of Mauritius, who have been declared by a competent Court of that island to be en faillite.

The respondents are the said Messrs. Saunders and Wiché; Messrs. Ripley, Brothers, of London; Messrs. Cockerell, Trail & Co., of London, merchants, and certain other persons interested whom it is not material to specify. Johan Jacob Wiché and William Septimus Saunders, at the Mauritius, carried on business in partnership with James Ferguson Saunders and Charles Alexander Saunders, in London; the business at the Mauritius being conducted under the firm of Saunders and Wiché, and that in London under the firm of Saunders, Brothers, & Co.

In the year 1829, in consequence of the failure of crops at the Mauritius, the London house was unable to meet the bills drawn upon it; and on the 25th August 1829 an arrangement, by deed, was made with the creditors in London, to which the respond

1836.

D'EPINAY

V.

ents, Messrs. Ripley, Brothers, and Messrs. Cockerell,

Trail & Co., who were large creditors, became parCOCKERELL. ties. By this deed, after reciting the failure of crops

at the Mauritius, that the consignments had lately fallen short, and that Messrs. Saunders had therefore been compelled to solicit forbearance, time was given to them for payment of their debts in 9, 12, 18, and 21 months from the date of the deed, under the control of inspectors. The stoppage of the London house finally ended in a bankruptcy, but the date of that bankruptcy does not appear upon these proceedings.

Intelligence of what had taken place in London on the 25th August is stated to have arrived in the Mauritius on the 15th November 1829, but no step appears to have been taken in that island until the 15th Fe. bruary 1830, when Mr. Wiché, the only partner then at the Mauritius (for his co-partner, Mr. S. Saunders, had gone to Europe for his health), having called together the creditors of the house of Saunders and Wiché, and laid before them a statement of the affairs, an arrangement was entered into, called an acte d'atermoiement, whereby the periods of 12, 18 and 24 months were granted to Messrs. Saunders and Wiché, for the reimbursement in principal and interest of all their obligations; and it was agreed that, from that day forward, the house should enter into a state of liquidation, and it should not be competent for it to undertake any new affairs until the old ones should be totally liquidated; that the liquidation should be carried on by Mr. Wiché, who should account and be responsible to the creditors; that he should be invested with all powers necessary to effect a liquidation, and be authorized to buy, sell, effect arrangements, sue and compromise in all cases in which he should think it

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