(Hornfll Earn Bt\\tisi\ Etbrary CORNELL UNIVERSITY LIBRARY 924 067 62 254 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924067621254 A TREATISE UPON FRENCH MERCANTILE LAW PRACTICE OF THE COURTS, FORMS OF PROCEEDINGS AND PRACTICAL INSTRUCTIONS TO ENGLISH SUITORS, ACCOMPANIED BY A NEW TRANSLATION OP THE ENIIBE CODE OF COMMERCE' AND SPECIAL MERCANTILE LAWS IN FORCE IN FRANCE AT THE PRESENT TIME. KAPOLEOK 4RGLES, Solicitor of tie Supreme Court, London: WATEELOW BKQS- & LAYTON Pauis: GALIGNANI. 1882. 'g.MSU LOlfDOX : "WATEELOW BBOS, AKD LATTOJr, PBINTBES, BIBCHIK LAITB, LOXSOX, B.C. M. LEOPOLD GOIRAND, Avoue pres le Tribunal Civil de la Seine, IN GRATEFUL RECOGNITION OF « MANY YBABS OF FEIENDSHIP AND PROFESSIONAL ASSOCIATION, THIS WOEK IS DEDICATED BY THE AUTHOR, PREFACE. The following treatise lias been written principally for the use of the Legal Profession in the United Kingdom. Its aim is to guide and assist them, and to enable them to advise upon the subjects contained therein when called upon to institute proceedings in the French Coui'ts and Tribunals, or to transact other legal business in France ov behalf of their clients. The Author, having practised for several years as an English Solicitor in Paris, is familiar, from experience, with the points upon which Solicitors and Barristers in England most frequently seek for information in relation to French legal procedure, and his object has been, as a perusal of the Table of Contents will demonstrate, to render the work as exhaustive as the limits of a general treatise will admit. The first portion treats of the Judicial Organisation in France, the practice of the Courts, and contains a Commentary upon Bills of Exchange, Bankruptcy, Partnerships, Limited Liability Companies, ■and other important subjects, together with forms of proceedings and practical instructions to suitors. In Part II. will be found a textual translation, by the Author, of the entire existing French Code of Gomfnerce * and of the principal * Previous to the reign, of Louis XIV., no special code or body of laws existed in relation to mercajitile or maritime commerce. During the above reign, however, trade commenced to flourish, and the imperfections of the existing laws became manifest, and during the ministry of Colbert, the celebrated ordonnance of the month of March, 1673, was drawn up, comprising enactments upon inland commerce, and the most important mercantile contracts. This ordonnance, composed in great part by a merchant named Savary, contains 12 litres, or headings, corresponding principally with the titres of the existing Com- mercial Code. PREFACE. supplementary Mercantile Laws -wliic]! have been passed at various periods since its promulgation. The Appendix contains the provisions of the Givil Law referred to^ in the Commentary anji Text of the Code, The Anthor has arranged them in a separate chapter, in preference to encumbering the work with footnotes constantly repeated. Special attention is directed to the Dictionary of French LegaU Terms appearing'in the work, for which concise English equivalents' do not exist. A very complete and copious Index, an indispensable feature in a treatise upon foreign law, is added, and this, in conjunction with the In the same reign, and during tlie same ministry, the ordonnance of August, 1681, npon maritime law was published. It was divided into five books, and comprised the i following subjects : — 1. Admiralty; 2. Of ships and seamen ; 3. Of maritime contracts ;- 1 4. The regulation of ports ; 5. Fisheries. J This ordonnajnce was received with enthusiasm, and generally adopted throughout I Europe. ' Notvrithstanding the care with which commercial law was codified by the ordonnan ces- of 1673 and 1681, a revision of this division of the law became called for, and in 1787 J a commission was instituted to revise these ordonnances and mercantile law in general. The labours of this commission were iuterrnpted during the Eevolution, and it was not until the 3rd April, 1801, that a new commission was organised to draw up a project for a Code of Commerce. This project was communicated to the Tribunals of Commerce, the Court of Cassation, and to the Courts of Appeal, and subsequently revised and discussed in the Council of State, and alternately adopted by the Corps L^gislatif. Pursuant to Art. 1 of the law of the 15th September, 1807, the provisions of the- Code of Commerce were decreed to come iuto force on the 1st January, 1808. The Code of Commerce is divided into Four Books : The first is intituled Of Commerce in General. The second „ Of MaHUme Goirvmerce. The third „ Of Banh-uptcies and Fraudulmt Banlcruptcies. The fourth „ Of Jwisdiction in Commercial Cases. The FIEST Book comprises eight divisions or Titres : Titre I. treats of Traders... .... ... ... .._ Articles 1 7 II. ,, Books of Traders III. ,, ParinersTiips and Compa/nies IV. ,, Separation of Property ... T. ,, Stock Hxcha/nges and Brokers VI. ,, Pledges and Corrmiissionadres VII. „ Sales amd Purchases VIII. „ Bills of Exchange, Proimssoiij Notes and Prescription ... ... ... , j-^q -jga 8—17 18—64 65—70 71—90 91—108- 109 PEEFACE. vu Appendix will, it is trusted, materially assist in the elucidation of the Text and Commentary. NAPOLEON" ARGLBS. 85, Geacechtjech Steeet, London, E.G. May, 1882. The SECOND Book comprises fourteen divisiona or Titres : Titre I. treats of Ships (Mid other Vessels ... Seizwe and Sale of Ships Shi/powners ■ ... Of the Captain ... Hiring and Wages of Crews Charter -paHies ... Bills of Lading ... Freight ... Bottonwy Insurance II. „ III. „ IV. „ V. „ YI. ,. VII. „ VIII. ,. IX. „ X. „ „ XI. „ „ XII. ,, Jettison and Contribution „ XIII. „ Frescriptions XIV. ,, JExcepUons and Pleas in Ahatement The THIRD Book comprises three divisions or Titres : Titre I. treats of Bankruptcy „ in. ,, Fraudulent Bankruptcy ... „ III. „ iJeinstafemeni (in bankruptcy) The FOUBTH Book comprises four divisions or Titres : Titre I. treats of The Organisation of Trihimals of Convmerce II. ,, JwHsdictionof the Tribunals of Commerce... III_ ^^ TUe ProcedMre in the Tribunals of Convmerce IV. The Procedure in the CouHs of Appeal Articles 190—196 197—215 216— 22{) 221— 24» 250—272 273—280 281—285 286—310 311—331 332—399 397—409 410-429 430—434 435—436 Articles 437—583 584—603 604—614 Articles 615—630 631—641 „ 642—644 645—648 CONTENTS. Prbface Table of Contents Eefebencb CATALoeuB OF Feench Legal Wqbks CHAPTER I. Enumeration of tlie various Tribunals and Courts Order of precedence Degrees of Jurisdiction CHAPTER II. Description of the various Courts Justices of the Peace Tribunals of Commerce ... Conseils de Priidhommes ... Civil Tribunals of First Instance Courts of Appeal Court of Cassation PiGE V iz XV 4 4 4 6 8 CHAPTER III. The Judges The Minist4re Public The French Bar (Avocats) Avoues (solicitors) Agrees (solicitors) Notaries Suissiers Gi'effiers Coimnissaires — Priseurs CHAPTER IV. Description of the Tribunals of Commerce and practice therein Organisation thereof Jurisdiction Practical instructions to suitors 10 11 11 15 16 17 17 17 17 19 19 24 38 X CONTENTS. PAGE CHAPTEB V. Service of writs in France ■ . . ... ... • • • ■ ■ • ■*! CHAPTER VI. OfEyidenoe ... ... ... ... ... .• . 42 Books of Traders ... ... ... ... ■ ■ • 42 CHAPTER VII. Ot suing informs, pauperis (^assistancejudiciaire) ... ... •■ 44 CHAPTER VIII. Secnrity for Costs ... ... ... ... ... ... 46 CHAPTER IX. Attachments of property ... ... ... ... ... ... 47 CHAPTER X. OfExeoutioDS ... ... ... ... ... ... ... 49 CHAPTER XI. Notarial Deeds {Actes amfhentiques) ... ... ... ... 50 Deeds under private signature {Actes sous seinr/s priv^s) ... ... 51 CHAPTER XII. Interest and the Usury Laws ... ... ... ... ... 53 Different species of interest ... ... ... 53 — 56 Statute of Limitations ... ... ... ... ... ... 57 CHAPTER XIII. Lost and stolen securities to bearer ... ... ... ... 58 Formalities fo recover possession ... ... ... ... ... 58 CHAPTER XIV. Transfer of debts and claims ... ... ... ... ... 61 CHAPTER XV. Arbitration ... .., ... ... ... ... ... gs CHAPTER XVI. Set-off ... ... ... ... ... ... ... Qi .CONTENTS. XJ CHAPTER XVII. Foreigners in France Their rights, obligations and duties ... . . . .' CHAPTER XVIII. Actions between Frenchmen and Foreigners CHAPTER XIX. Execution of English and Foreign Judgments in France 67 68, 69 70 71 CHAPTER XX. Bankruptcy ... ... ... ... ... ... ... 75 Commentary upon the entire law, with forms of proceedings and practical instructions to English creditors (see also Text of Code of Commerce) 76 — 115 CHAPTER XXI. Private pairtnerships and limited liability Companies in France Forms of Deeds and Articles of Association (see also text of law upon Companies) ... 117 CHAPTER XXII. Bills of Exchange Promissory Notes Cheques and other negotiable instruments The entire law, with commentary ... The Stamp Laws Forms ... Assimilation of the Laws of various countries in relation to Bills of Exchange 177 319 220 231 228 234—239 CHAPTER XXIII. Stockbrokers {Agents de Change) ... The Bourse Eules, Kegulations, Duties, and Liabilities 241 245 246 246—256 CHAPTER XXIV. Contract of Affreightment Charter-parties ... Charterers Bills of Lading ... Forms ... 257 259 262 268 273; Xll CONTENTS. Patents and Trademarks . Eights of Foreigners Forms and Rules (See also text of law) CHAPTER XXV. THE CODE OP COMMERCE 275 278 279—288 468—494 289 The Code of Commerce is divided into Pour Books : The first is intituled Of Qonvmerce in Oeneral. The second „ Of Maritime Commerce. The third „ Of Bankruptcies and Fraudulent Banlcrujptcies. The fourth „ Of Jurisdiction in Commercial Cases. The FIRST Book comprises eight divisions, or Titres : Titj-e I. treats of Traders . . . Articles II. ,, BooTcs of Traders ... III. „ Partnerships and Companies IV. „ Separation of Froperty Y. „ Stock Exchanges and Brokers VI. ,, Pledges and Commissionaires VII. „ Sales and Purchases VIII. „ Bills of Exchange, Promissory Notes and Prescription . . . 1—7 8—17 18—64 65—70 71—90 91—108 109 110—189 The SECOND Book comprises fourteen divisions, or Titres : Titre I. treats of Ships and other Vessels Articles 190—196 II. „ Seizure and Sale of Ships ... ,, 197 — 215 III. „ Shipowners ... ... „ 216 — 220 IV. „ Of the Captain ... ... „ 221—249 V. „ Hiring and Wages of Crews „ 250 — 272 VI. ,, Charter-parties ... ... „ 273 — 280 VII. ., Bills of Lading ... ... „ 281—285 VIII. „ Freight... ... ... „ 286—310 IX. „ Bottomry ... ... „ 311-331 X. „ Insuramce ... ... „ 332 — 399 XI. „ Average ... ... „ 397 — 409 XII. ,, Jettison and Contribution „ 410 — 429 XIII. „ Prescriptions ... ... „ 430—434 XIV. „ MxceptionsandPleasin Abatement „ 435 — 436 The THIRD Book comprises three divisions, or Titres : litre I. treats of Bcmlcruptcy ... ... Articles 437 583 CONTENTS. ZUt litre II. „ FravduUnt Banlcrwptcy ... Articles 584—603 )» III- » Setnstotemejit (in bankruptcy) „ 604 614 The FOURTH Book comprises four divisions, or Titres : Tiire I. treats of The Organisation of Tribunals of Commerce ... ... Articles 615—630 ). II. I, Jurisdiction of the Tribunal of Commerce ... ... „ 631—641 ,) III. „ The Procedure in the Tribunals of Commerce ... ... „ 642—644 ,) IV. „ The Procedure in the Courts of Appeal „ 645—648. Law on Companies and Partnerships of 24th July, 1867 ... 42r Socidt4s en com-nw.ndite par actions ... ... ... _ 429' Sociites anonymes ... ... ... . . ^oq 8ociet4s cL capital variable ... ... ... ^gg. Tontine Insurance Companies ... ... ... ... ... 44^ SociSt^s anonymes d' assurance d primes ... ... ... ... 441 Mutual Insurance Companies ... ... ... ... ... 443. Law regulating negotiations concerning goods deposited in bonded warehouses ... ... ... ... ... ... 451 Law relating to taxes upon securities payable to bearer ... 455 Imperial decree concerning the negotiation of foreign railway stocks upon the Bourses of Paris and Departments ... ... 456 Law relating to stolen Or lost securities payable to bearer ... 457" Law on the mortgage of ships ... ... ... ... 463 Law upon patents of invention ... ... ... ... 468 Law establishing a stamp to be affixed to trade marks ... ... 484 Law relating to Commercial Patterns and Models ... ... 48& APPENDIX. Containing provisions of the Civil Law, and various subjects referred to jn the Commentary and Text of the Code of Commerce, and various Mercantile Laws ... ... ... ... ... ... 495 Imprisonment for Debt. Privileges. Legal Mortgages. Judicial Mortgages. Conventional Mortgages. Prescription. Limitation of Actions. Marriage Contracts. XIV CONTENTS. PASS Husband and Wife. Comnmnity. Separation of Debts. Separation of Property. Dotal System. Paraphernalia. Dictionary of French Legal Terms appearing in the Treatise and Text for which concise English equivalents do not exist . . . 540 Index ... ... .., ... ... ... ... 577 EEFEREJSTCE CATALOGUE FRENCH AND OTHER LEGAL WORKS MERCANTILE LAWS OF FRANCE CONSULTED BY THE AUTHOE. COMMENTARIES GENERAL TREATISES. Code of Commerce, Leopold Goirand, moue, 1880, 1 vol. inS"- Code Wapoleon, translated by Richards (Butterworths). The Civil Laws of France, byD. M.Aird (Longmans),' 1878. Dictionnaire de droit commercial, Euben de Couder, 6 vols., edition 1881. Journal du droit international priv6, conducted by Edouard Clunet, Aooaat a la Gour d'Appel de Paris, 10 vols. Observations des Tribunaux de Cassation et d'Appel, et des Tribunaux et Conseils de Commerce sur le proj6t de Code de Commerce ; an xi., 3 vols. in4°- Observations sur le proj6t de Code de Commerce, par Boiday-Paty, 1802, 1 vol. in 8''- Discours des orateurs du gouvernement et du Tribunal sur le Code de Commerce, 1807, 2 vols, in 8°- Commentaires sur le Code de Commerce, par Foumel, 1807, 1 vol. in S"- Esprit du Code de Commerce, par Socre, 1807, et ann^es suivantes, 10 vols, in 8°- II y a une deuxieme edition de 1829. Commentaire sur la legislation commerciale, par Maugeret, 1808, 3 vols, in 8°- Manuel des commer- Questions sur les Soci6t6s, par Beoane, 1846, br. in 4''- Trait6 des Soci6t6s commerciales, par Foureix, 1866, 1 vol. in S"- Explication de la loi du 17 JuUlet, 1856, relative aux Soei6t6s en commandite par actions, par H. F. Eiviere, 1867, 1 vol. in 8''- Des earact^res distinctifs des associations com- merciales en participation, par Daniel de Folleville, 1865, brooh in 8°- Commentaire de la loi du 24 Juillet, 1867, sur les Soei6t^s, par H. T. Eiviere, 1868, 1 vol. in 8°- Soci6t6s par actions et operations de Bourse, consider^es dans leurs rapports avec la pratique, la legislation, I'eeonomie politique, I'histoire et les r^formes dont elles sont susceptitoles, par Emile Worms, 1868, 1 vol. in 8''- REFERENCE CATALOGUE OF WORKS CONSULTEB. xxi Commentaire— Trait6 des Soci6t6s civiles et com- mereiales, par Paul Pont, 1872, 1 vol. in 8°- Bourses de oommeree, agents de change et courtiers, par MoUot, 3=- edition, 1853, 2 part in 8°- Manuel du courtier de commerce, par Durand Saint Amand, 1846, in 8°- Des operations de Bourse, par Oourtois, 4"- edition, 1860, in 18°- Le regime de la Bourse, etc., par Jules Leveille, 1868, br.'ia 8°- Trait6 du contrat de commission, par Delamarre et Lepoitvia, 1840—1841, 2 vols, in S"- Suite du traite du contrat de commission ou obli- gations conventionnelles en mati^re de commerce, 1846-1866, 4 vols, in 8°- par Delamarre et Lepoitvin. C'est le m^me ouvrage qui a et6 publie sous le titre de " Trait6 th6orique et pratique de droit commercial." Des droits et des obligations des divers commis- sionnaires, par Pouget, 1867-1858, 4 vols, in S"- Transport par eau et par terre, par Pouget, 1859, 2 vols, in 8''- Traite du contrat de transport par terre en g6n6ral, et sp6cialement par cliemins-de-fer, par Duverdy, 1861, 1 vol. in 8»- Du commis-voyageur et de son pr6posant, traits suivi d'un Appendice sur les repres6ntants de com- merce, par H. P. Riviere, 1863, 1 vol. in 8°- Commentaire sur les achats et ventes, par Persil et Croissant, 1838, 1 vol. in 8''- Traite du contrat et des lettres de change, par Pardessus, 1809, 2 vols, in 8''- Traite th6orique et pratique des lettres de change, par ScMebe, 1819, 1 vol. in 8''- Questions sur la lettre de change, par Becane, 1846, broch. in 4°- Des lettres de change et des eflfets de commerce, par Nouguier, 2' edition, 1851, 2 vols, in S"- Traite de la lettre de change et du billet a ordre, par Persil, 1857, in S"- Commentaire th^orique et pratique de la loi du 23 Mai, 1865, eoncernant les cheques, par Nougnier et Espinas, 1865, 1 vol, in 8'- xxii EIFEEENCE CATALOGUE OP WORKS CONSULTED Th^orie et pratique de la circulation mon6taire et flduciaire ou exposition rationnelle des questions se rattachant a I'histoire et lau r61e 6conomique de la monnaie, des traites, mandats, cheques, billets de Banque, etc., par E. "Worms, 1869, 1 vol. in 8°- La loi du 12 A6ut, 1870, et le cours forc6 des billets de la Banque de France, par Daniel de Folleville, 1871, broch. in S"- Commentaire de la loi du 14 Juin, 1865, sur les cheques, par Bedarride, 1873, 1 vol. in 8°- Code maritime compost des lois de la marine marchande, r6unies, coordonn6es et expliqu6es, par Beaussant, 1840, 2 vols, in 8°- Cours de droit commercial maritime, par Boulay- Paty, 1834, 4 vols, in 8°- Dictionnaire universal de droit commercial mari- time, par Caumont, 1857, 2 vol. gr. in 8°- , Droit maritime, par Dufour, 1859, 2 vols, in S"- Principes du droit maritime, par Pouget, 1859, 2 vols, m 8°- Des armateurs et propri6taires de navires, par Lehir, 1844, in 18°- Traits du contrat d'assurance de Pothier, aveo un discours pr^liminaire, des notes, etc., par Estrangin, 1810, 1 vol. in 8°- Trait6s des principes d'indemnit6 en mati6re d'assurance maritime et de grosse aventure, par Bencke, traduit par Dubernard, 1825, 2 vols, in 8°- Trait6 des assurances terrestres, par Qu&anlt, 1836, 1 vol. in 8''- Trait6 des assurances et contrats d, la grosse d'Emerigon, mis en rapport avec le Code de Commerce, par Boulay-Paty, 1827, 2 vols, in 4°- Trait6 des assurances terrestres et de I'assurance sur la vie des hommes, par Grun et Joliat, 1828, 1 vol. in 8°- Traits des assurances centre I'incendie, par Bou- dousquid, 1829, 1 vol. in 8°- Trait6 des assurances terrestres, par Persil, 1834, 1 vol. in 8°- Guide de I'assureur et de l'assur6 en matidre d'assurance maritime, par Lafond, 1837, 1 vol. in 8"- EBFEEENCB CATALOGUE OF WORKS CONSULTED. XXlll Trait6 des assurances maritimes, par Girandeau et Oourtois, 1841, 1 vol. in 18°- Commentaires sur les principales polices d'assu- rances maritime usit^es en Prance, par Lemonnier, 1843, 2 vosl. in 8°- Traits g6n6ral des assurances, par AJauzet, 1844, 2 vols, in 8"- Manuel de I'assur^, par Morel, 1848, 1 vol. in 8°- Guide gSn^ral des assurances maritimes et fluviales, par Laf ond, 1855, 1 vol. in 8°- Dictionnaire des assurances terrestres, par Pouget, 1855, a vols, in 8°- Traits g6n6ral des assurances sur la vie, par Merger, 1858, 1 vol. in S"- Manuel g6n6ral des assurances, par Agnel, 1861, 1 vol. in 8»- Guide de I'assureur, par Lagn^piere, 5' edition, 1862, 1 vol. in 18»- Trait6 sur les assurances maritimes comprenant la mati^re des assurances, du contrat a la grosse et des avaries, par Cauvet, 1863, 2 vols, in 8°- Trait6 des avaries particulidres sur les marchan- dises, dans leurs rapports avec le contrat a'assur- ance maritime, par Delaborde, 2«- edition, 1838, 1 vol. in 8°- Jurisprudence et doctrine en mati^re d'ataordage, par SibiUe, 1853, in 8°- Code des faillites et banqueroutes, par Thieriet, 1844, 3 vol. in S"- Trait6 des faillites et banqueroutes, par Saint Nexent, 1844, 3 vols, in 8«- Traits des faillites et banqueroutes, par Esnault, 1846, 3 vols, in 8<'- Trait6 des faillites et banqueroutes, par Boulay Paty et BoUeux, 2= edition, 1849, 2 vols, in 8°- Questions sur les faillites et banqueroutes, par Becane, 1846, br. in 4''- Faillites et banqueroutes, par Leveaque, 1847, 1 vol. inS"- Code pratique des faillites, par GeofEroy, 1853, 1 vol. in Bo- Traits des faillites et banqueroutes, par Eenourd, 3' edition, 1857, 2 vols, in 8"- xxiv EEPEEENCB CATALOCiTJE OP WOEKS CONSULTED. Des faillites et banqueroutes, par Laroque-Sayssind, 1862, 2 vols, in 8°- De la revendication des titres au porteur en mati6re de faiUite, par Daniel de ToUeville, 1871, broch. inS"- La faillite dans le droit international priv6, par Gruiseppe Carle, dooteur agr^g^ de I'lTniversite de Turin ; traduit et annote par Ernest Dubois, 1874, 1 vol. in 8°- Des efTets de la faillite relativement aux privi- leges et aux hypothdques, par B. Nicolas, 1872, 1 vol. inS"- Competence des Tribunaux de Commerce, par Despr^aux, 1836, 1 vol. in S"- Manuel abr6g6 des Tribunaux de Commerce, par Anger, 1839, 1 vol. in 12°- Des Tribunaux de Commerce, des commer INTEREST. 55 not bond fide, is bound to pay interest from the day on which ho received the sum so detained. Interest is also due, after a certain date, on money forming part of an inheritance, and on legacies (Oodo Civil, Ai-ts. 856, 1,014, 1,015). Ai-oites (solicitors) can only claim interest upon their costs incurred in legal proceedings from the date of the issuing of the writ to recover them ; but if an avoiii or a notary advances money to a glient provisionally, he has a right to interest from the date when his client has recovered the amount. The regulations of the Civil Code, in respect of interest, do not apply to comptes courants. Interest is mutually duo on such accounts, unless by express agreement to the contrary. 3. — Judicial Interest. By this term is understood the interest which is allowed by Juaicial the Courts by way of indemnity or damages, although not due as a matter of absolute right, nor agreed upon by the parties. Such interest is allowed on money overdue — e.g., on a bill Bills of of exchange not paid at maturity, when the creditor sues for his debt from the date of the summons, and is reckoned at the legal rate — i.e., 6 per cent, on commercial transactions. A special demand must be made with precision and proper formality for the interest, otherwise it will not be ordered by the Court. • Costs which a party is ordered to pay bear interest only from the date when a formal summons for payment of them is issued. The Courts have considerable latitude in allowing interest by way of compensation to a creditor, and are not restricted in any way by the date of default on the part of the debtor or of the summons. For instance, if a vendor has neglected to deliver goods, the Court may, if it think that the equity of the case requires it, allow interest from a date prior to the com- mencement of the action to compel delivery ; and there is no appeal from the amount allowed by the judge. 4.— Compound Interest. Interest overdue and unpaid wiU bear interest on two Compound conditions : — 1 There must be a special agreement to that effect, or Special agree- 1 , J! i. ment necessary, a summons must have been taken out tor payment. 56 INTEREST AND THE USURY LAWS. 2. The interest in question must be due for at least one year. Any agreement to pay a special rate of interest for money lent must be in writing. Other evidence is not admissible to prove the rate agreed, even if the amount of the loan be less than 160 francs. Exceptions. The following are exceptional cases, to which the regulation as to the legal rate of interest does not apply : — 1. To a loan of personal property, such as stock or shares ; ' 2. To a loan of perishable goods ; 3. To loans where the risk is excessive, as a bottomiy bond; 4. To annuities ; 5. To special loans to traders, or for commercial purposes, when arrangen[ients are made for payment by means of a sinking f imd ; 6. To the discounting of bills, &c. Foreigners. With regard to contracts for payment of interest in Prance to a foreigner, entered into in foreign countries, and in accor- dance with the law of the country in which they were made, the French Courts will order the payment to be made according to the contract rate, even if it exceeds the legal rate in France. In the same way contracts between Frenchmen domiciled in a foreign country are binding if sued on in France, although the rate reserved exceeds the five or six per cent, allowed by French law. In such cases the interest due up to the date of the commencement of legal proceedings is recoverable. Foreign loans. Contracts for loans payable in foreign countries may be entered into in France at any rate of interest allowed in such countries. An agreement entered into between Frenchmen abroad, with a stipulation for the payment of interest, according to the custom of the country, at the rate of 1 per cent, per month, is valid, although in excess of the legal rate permitted in France. The transaction is governed by the rule locus regit actum. (Civil Tribunal of Melun, 18th June, 1874.) It is now settled law in France that the contract of interest is governed by the law of the place in which it was entered into. (Court of Cassation, 21st December, 1874.) The Law of the 3rd September, 1807, appUes to loans made in France onlv. LIMITATION OP ACTIONS, 57 Statute of Limitations. Arrears of interest cannot be claimed after they have been statute ot due for five years, in the case of annuities, alimony, rent, ^™''*"™''- money lent, and generally speaking, money payable annually, or at any shorter periods. The following list contains most of the cases in which the claim wiU be barred by statute after five years have elapsed : — 1. Interest on Government stock or on money payable by the Government ; 2. Interest due from the Caisse des Consignations ■* 3. Salaries of clerks, employes, teachers, and others, not included in Arts. 2,271 and 2,272 of the Civil Code ; 4. Money advanced by one house of business in payment of bills due from another ; 5. Interest on protested bills, &c. ; 6. Money due from a partner to the partnership capital; 7. Annual premiums payable to insurance Companies; 8. Coupons of shares presented for payment to a Com- pany five years after they were become due and payable ; 9. Interest on the price of a sale of realty ; 10. Interest on dowry; 11. On the balance of a guardianship account ; 12. On a post obit bond relating to realty ; 13. On money paid by a surety for his principal. The principle on which this law is founded is, that when the time of payment is ascertainable, the person claiming interest is bound to exercise his rights within a reasonable period and not embarrass his debtor by leaving him indefinitely in the possession of the money lent, &o., and then demanding in full the payment of many years' arrears. The statute does not apply to persons retaining money do inauvaise foi, nor to advances made the exact date of which, from the number of transactions involved, cannot be ascer- tained ; as, for example, in the relations of principal and agent. It applies to minors and others under guardianship, whose remedy will be against their guardian, if he has failed to obtain payment from the debtor. It does not apply to husband and wife, nor to co-heirs in respect of profits earned since the ouvertwe do la succession. Lastly, the statute must be specially pleaded, and it is not the duty of the judge to take cognisance of it ex officio. * See " Dictionary of Legal Terms." 58 LOST ANIl STOLEN SECUEITIES TO BEAEEE. CHArTEE XIII. Lost or Stolen Securities to Bearer. Owner of lost The owTier of securities to bearer whicli have been lost or Sea^Stobe stolen has the choice of adopting one of the measures follov- adopted. ■ j^g ._ 1. To receive the dividends on the security, and pay- ment of the security itself if it becomes due : 2. To protect his ownership by preventing successive transfers of the security ; 3. To obtain a new certificate, in order to negotiate it, should he desire so to do. In order to insure the payment of the dividends, or the reimbursement of the security if it becomes due, three for- malities must be complied with : — o^>o8«ion must 1. An opposition must be lodged with the Companj-, or be lodge . ^^^^ ^-^^ department or the commune by which the securities were issued. 2. An order to receive payment must be obtained from the president of the CivU Tribunal. Such order can only be granted one year after the opposition has been lodged, and when, since that date, two distributions at least of dividends or interest have taken place. (Arts. 2 and 3.) It is considered that these distributions place the holder under the necessity of personally appearing to receive the dividends or interest ; and that if he does not so appear, pre- sumption exists of fraud on his part. In the event of refusal by the president to grant the autho- risation in question, the person desiring to enter oppoaiilou may bring the matter before the Civil Tribunal of the place of his residence, and such tribunal will decide after having heard the Minisiere Fuhllgue. Judgment of the tribunal is productive of all' the effects attaching to the order of authorisation. (Art. 7.) When it is a question of coupons to bearer detached from the security, if the opposition has' not been contested, the person lodging it may, after three years from matur'ity of the coupons and date of the opposition, claim the amount of the FOHMAHTIES TO BE COMPLIED WITH. 59 said coupons from the establishment liable to pay the same, without being bound to obtain an authorisation. 3. Lastly, the party making oppositioyi is bound to furnish Seoiirity must security for the dividends or interest accrued due, and for the amounts which may be distributed during the two years following the date of the opposiiluii. Such security may be replaced by a pledge, or by the deposit with the Gaisse de Depots et Consignai'wns of the sums to be received. (Arts. 4, 5 and 6.) Such guarantees only remain in force for two years from the date of the authorisation as regards dividends or interest, and as regards the capital, should it become liable to reim- bursem.ent, during 10 years from the date of such reimburse- ment, on condition that at least five years shall have elapsed since the date of the authorisation. Effect of the accomplishment of the above formalities. The party " opposing " has the right to receive the interest Effect of and dividends due at the time of the authorisation, or which °"^^ ''^''*' may have afterwards become due, and even the capital of his security should it become payable. Such payment immediately discharges the Company from Company liability, saving the right of the third party, to whose prejudice from iMrflity. the payment may have been made, against the party who may have lodged opposition without suflB.cient cause, and against the surety for the period of two years. (Art. 9.) If, therefore, the Company, instead of paying to the " opposing " party pay to the bearer, it will not be freed from liability. The law has, moreover, organised a special course of pro- cedure ia order to confront the holder with the " opposing" party. When the holder presents himself, the Company detains his security, giving him a receipt for the same, and gives notice by registered letter to the "opposing" party, thereby placing both parties under the necessity of settling their dispute before the Tribunals, both as regards the amounts received and the ownership of the security (Art. 10). We have now to examine the second proceeding to bo adopted by the " opposing '' party, viz., that of protecting his property. The formality to be fulfilled is to lodge an opposition with Seoond^_^ the syndicate of stockbrokers of Paris with a request to publish 60 LOST A\D STOLEN SECURITIES TO BEAEBR. the same. In view of this publication, a special daily bulletin has been founded, to which all persons, and notably stock- brokers, interested in knowing what oppositions may have been made, can subscribe (Art. 11). Stockbrokers. The Law further imposes on stockbrokers the obligation of registering in their books the numbers of the securities which they may buy or sell, in order that such securities may be traced in case of need (Art. 13). The effect of the accomplishment of this formality is to render the security untransferable in aU places from the moment when the bulletin arrives or might have reached a subscriber. From this date the law prohibits all negotiation of the security, not only in Paris, but in the provinces, and not only on the Stock Exchange, but by private sale. If the opposition has not been lodged, the security can be transferred, and the negotiations to which it may have given rise remain subject to common law (Art. 14). Further special The following is a consequence of the common law, viz. : — In the case of simple breach of trust, a party purchasing in good faith, before notification of the opposition to the syndi- cate, becomes indefeasible proprietor of the security. In case of loss or theft, the " opposing" party may reclaim the security during a period of three years, even when in the possession of a bond fide holder (Art. 2,279, par. 2 of the CivU Code). If, however, the holder has purchased the security on the Stock Exchange, or of a money-changer, the owner is only entitled to reclaim it on reimbursement to the holder of the price paid by him (Art. 2,280 of the CivU Code). A third party, being holder of a security, has the right to dispute the opposition as irregular in form : this case falls within the scope of the case provided for by Art. 14 of the Law. The transfer of securities may, in this case, therefore, be effected pursuant to common law, in the mode which we have just explained (Art. 12). be'^'onteste™"''*' '^^ third party may, in like manner, contest the opposition as having been unlawfully made. In this case the opposiag party must prove in the ordinary manner that he is owner of the securities, and the third party may establish that he pur- chased before the publication of the opposition. The third party may also proceed for indemnity against his vendor and against his stockbroker, but only when the EIGHTS OF THB PARTIES. 61 latter is in fault ; that is to say, if tlie publication of the opposition in the bulletin had taken place before the termina- tion of the bargain. The remaining proceeding of the " opposing " party is, as New certificate. has been before said, to obtain a nevr certificate in order to negotiate his security should he require so to do. He may obtain such certificate from the Company, bilt not After lo yeara. until 10 years after the authorisation of the President of the Civil Tribunal, nor unless no person has in the interval applied to receive the dividend or interest. Any period during which the Company may not have distributed dividends or interest is not included in the prescribed limit of 10 years. (Art. 15.) Lastly, the " opposing" party must guarantee by a deposit or surety that the number of the certificate, the nullity of which is demanded, shall be published by a special notice during 10 years in the daily stock and share list. The new certificate bears the same number as the original one, with a note that it is delivered in duplicate ; it confers the same rights as the original, which is thenceforward declared void. When once the duplicate is delivered, the third holder only retains a personal right of action against the "opposing" party, who may have entered opposifion without sufiicient cause. Such action may be brought within a period of 30 years. This Law only applies to securities issued by departments, Eestriction of cmnmunes, public establishments and Companies. Its applica- provisions. tion does not extend to bank notes and the public funds, which, in the interest of the State, are declared not liable to opposition. (Art. 16.) CHAPTER XIV. Transfer of Debts and Claims. Of the Transfer of Debts and Glioses in Action. The document pursuant to which a creditor transfers his Transfer of claim to another person, is called a transport or cession. claims ; The transferor is called the cklant, the transferee the ccssionnaire. The transfer of claims or debts can be effected in the same how effected. 62 TEANSFBE OF DEBTS A\D CLAIMS. Bills of exchange. Litigious rights. manner as any sale, by a notarial deed or by a writing sous seings prives. The transfer can even be effected verbally. Delivery takes place between the cedant and the eession- naire by the handing over of the conveyance, which is con- clusive between the parties themselves, but not as regards third parties. The transferee can render valid, and plead the transfer as against the debtor and third parties creditors of the transferor, by notifying the conveyance to them by a huisaier, or the debtor can acknowledge its validity by a notarial deed. If the debtor acknowledges the transfer by aete sous seiug j)rive, such acceptance is of no effect as regards third parties, but it is valid between the debtor and the transferee. The debtor can even be a party to the deed of transfer, and mention his acceptance therein. Ifotioe of the transfer can be served by the transferor as well as by the transferee. Bills of exchange and promissory notes can be transfen-ed by endorsement, even after maturity, and the transferee of Kuch securities is validly possessed thereof as regards the debtor and third parties without any notification or acknowledgment being requisite. The sale or transfer of a debt or claim includes the accessories thereto, such as security, privilege and hypotheque. The vendor is not responsible for the solvency of the debtor unless by special stipulation. Transfer of Claim to an Estate or Succession. A person can sell to a third party his rights to a succession, provided such succession be o avert e. Such sale or transfer can be made by notarial deed, or by acte sous seings prives. Transfer of Litigious Rights. Sales or transfers may be made by notarial deed or by acte sous seings prives, and must be notified to the defendant by the transferor or the transferee. A debtor against whom a right of action has been sold may acquit himself by reimbursing to the transferee the actual consideration paid by him for the right of action, with taxed costs and interest from the date of the payment of the con- sideration for the transfer. But the above provision does not take effect in two cases — 1. In the event of the sale having been made to a co-heir or co-proprietor of the droit ceded : AI5BITEAT10\. 63 2. When it has been made to a creditor in payment of a debt due to him ; 3. When it has been made to the possessor of the estate the subject of the litigation. CHAPTEE XY. Of Arbitration. Arbitrators, called arbitres, are persons appointed by the Arbitration; parties to decide upon a matter in dispute. Arbitration, in cases of mercantile partnerships, Tvas for- formerly merly compulsory in France ; but in 1856 a law was passed, ceS'Ss^ attributing to the Tribunals of Commerce iurisdiction in dis- putes between parties ; therefore arbitration at the present time is purely voluntary. The deed by which the parties submit their differences to submission. arliitration is called comjiromis. This submission to arbitration must be acted upon within three months from its date, otherwise it is void. (Code of Procedure, Arts. 1,006, 1,007.) The compro'rnis also terminates — 1. By the decease, refusal, resignation, or inability to act of one of the arbitrators, unless a clause exist providing for such contingencies ; 2. By the expiration of the period agreed upon, or of three months if no time had been fixed ; 3. By the conflict of opinions of two arbitrators, unless power be reserved to them to appoint an umpire. Arbitrators cannot resign if they have once commenced to act. The parties are compelled to jiroduce their evidence at least fifteen days before the expiration of the rompromis. In the event of difference of opinion, the arbitrators em- powered so to do must appoint an umpire at the time of giving their decision. If they cannot agree upon an umpire, they must make a declaration to that effect in their award, and an umpire will be appointed by the president of the Tribunal of Commerce upon application of either of the parties. The umpire must give his decision within one month of .accepting the appointment, unless a stipulation to the contrary 64 AKBITEATION — SET-OFF. Award. be drawn up. He must, before making his award, confer with the previous arbitrators who disagreed. The arbitrators and the umpire must base their decisions upon the ordinary rules of law, unless it be specially provided in the submission that they may be at liberty to decide as amiables compositeurs. The award is rendered executory by an order of the president of the Oivil Tribunal of First Instance. Awards cannot be set up in any case as against third parties (Code of Procedure, Art. 1,022). Awards cannot be attacked by way of opposition* Appeals against awards lie to the Civil Tribunals of First Appeals asainst jngtance in relation to matters which, if no arbitration had taken place, would have been within the jurisdiction of the justices of the peace, and to the Courts of Appeal in relation to matters which would have been within the jurisdiction of the Tribunals of First Instance. Begistration. The submission to arbitration must be registered. The fixed fee is 4 f s. 50 centimes. The award must also be registered. The fixed fee, if it is subject to appeal, is 7 fs. 50 centimes. For final awards, by consent of the parties, the fee is 15 fs. If the award be for payment of a sum of money, &c., an ad valorem duty of 50 centimes per 100 fs. is payable. If damages be ordered, the registration duty is two per cent. upon, the amount. Submissions and awards must be registered. Set-o£f. Debts must bo liquidated. CHAPTER XVI. Set-OflF. A set-off is a means of extinguishing liabilities when tw» persons are reciprocally creditors of and debtors to each other. Set-off cannot be effected unless the debts in question are either (a) definite sums of money ; or (5) specific quantities of perishable goods, e.g., wine, corn, &c., of the same kind. The debts must in all cases be liquidated. A claim genuinely contested cannot be admitted by way of set-off. If A. admits that he owes B. 1,000 fs., and A. claims that B. owes * See " Dictionary of Legal Terms.' GENERAL EOIiES. 65 him a similar sum, which B. denies, and is prepared bond fide to resist, there can be no set-ofE between them. However, if against an admitted debt an unliquidated claim is put in by- way of set-off, and can easily be made ascertainable and liqui- dated, the Court has power to postpone giving judgment on the admitted debt until the counterclaim has been definitely ascertained. Unliquidated damages cannot be pleaded by way of set-off or counterclaim. The decision as to the nature of the debt is left entirely to the discretion of the Court. The debts must be alike payable. A debt now due cannot be balanced by a contingent debt accruing due in the future. There is no set-off allowed between the amount which a Banki-uptcy. creditor of a bankrupt owes to the bankrupt and that which the bankrupt owes to him, which has become payable by the legal operations of the bankruptcy proceedings. In the case of deconfihire, or insolvency of a non-trader, insolvency ol set-off is allowed. non-tradert The debts to be set-off must be those for which the parties are personally liable, and not such as they owe in the right of another, e.g., debts due to a guardian, in his capacity as such, cannot be set-off against personal claims made on him. A joiat and several debtor cannot set off a debt due from the creditor to one of his co-creditors. A stockbroker who, in the ordinary course of business. Stockbrokers. receives nominative shares for sale from another broker, cannot set off, against a claim by the owner of them, the balance due to him from the broker who transferred them. But if the shares were " to bearer," and the broker had no means of knowing the owner, the rule is otherwise. A claim for alimony, or for payment of money declared by Alimony. law to be free from execution {insaissable) cannot be met by any kind of counterclaim. A simple contract debt may be set off against a debt secured by deed. It must farther be remarked, that not only may set-off be pleaded by a defendant in a cause, but, by mere operation of law, where the right to a set-off absolutely exists, the two debts are, ipso facto, extinguished. This is a legal fiction, which may operate even without the knowledge of the parties, i.e., the law will presume that the debts are mutually paid and F 6G SET-OFF extinguished by the existence of a set-off, which virtually cancels both obligations. Interest. Set-ofE being equivalent to payment, interest ceases to run from the date at which it is established. " Oompensation " is the French term for set-off. FOREIGNERS IN FRANCE. THEIR RIGHTS, OBLIGATIONS, AND DUTIES. I.— Bights. In the early ages foreigners, except traders, were looked Foreigners upon with disfavour in France, and subjected to heavy exac- up^vfth""^"'^ tions. Property left by them upon death devolved upon the disfavour, king or the lord. During their lives they were burdened with permanent or temporary taxes at the pleasure of the king, and according to the necessities of the times and the wants of the State. In 1790 these impositions were abolished, and a Decree of Decree oJ 1791. 13th April, 1791, put an end to all distinctions between French- men and foreigners as to the rights of succession. The Civil Code modified these enactments, and by Art. 2 Civil Code. provided that foreigners should enjoy in France the same civil rights as those granted to Frenchmen by the treaties of the nations to which such foreigners belonged. Concerning the rights of succession, Arts. 726 and 912 admitted foreigners in. the cases and in the manner only in which Frenchmen were themselves admitted, pursuant to the laws of the countries to which such foreigners belonged. But the Law of the 14th July, 1819, finally granted to foreigners in I819, rights the right to succeed to, to dispose of, and to receive property pro^rty ^'""^ in the same manner as Frenchmen throughout the kingdom, ^^^ers* without any conditions of reciprocity, upon the single condi- tion that, in the event of the same succession being divided between Frenchmen and foreigners, the French co-heirs should take from the estate situate in France a portion equal to the value of any estate situate abroad from which they might be excluded in any manner, pursuant to laws or local customs. 68 FOEEIGNEES IK FEANCE, Eights of foreigners at the present time. Authorisation to foreigners to establish domicils in France. De facto domicil. Civil rights. Becnrity for tosts; Contracts by foreigners. Ownership by foreigners of French ships. At the present day, foreigners are assimilated with French^ men in reference to the rights of succession, of disposition, and of receiving gratuitously. As regards other civil rights, they remain subject to the reciprocity established by Art. 11 of the Civil Code, ex- plained supra. But a foreigner who has been permitted by the authorisation of the government to establish his domicil in France, enjoys all civil rights so long as he continues to reside there. The formality of authorisation must be express. It is granted upon application in certain cases. It cannot be dispensed with by the fact of a foreigner having abandoned all idea of returning to his own country, having always resided in France, and ha^ang always accomplished there all the acts relating to civil life. But, however, the absence of authorisation does not prevent a foreigner habitually residing in France from acquiring a de facto domicil, attended with certain effects, though less exten- sive than those conferred by a grant of civil rights. Thus, a de facto doTcdcTl, governing the succession to personal property of which he dies intestate, may be acquired in France by a foreigner who has not obtained the government authorisation as the condition for the enjoyment of full civil rights. Droits civils, or civil rights, include, amongst others, family rights, marital and paternal authority, rights of guardianship and trusteeship, the privilege of compelling a foreign plaintiff to give security for costs, called in France caution judicatum solvi, and that of suing any foreigner, in personal actions, in the French Courts. The latter right applies to a foreigner authorised to establish his domicil in France, although the defendant sued by him may be of the same nationality. A foreigner, not authorised as above to fix his domicil in France, and notwithstanding the non-existence of any diplo- matic treaty establishing reciprocity between Frenchmen and citizens of his own country, can legally enter into all contracts with the object of the transmission of a thing or of a right. He can enter into all mercantile contracts, such as agreements for sale, purchase, exchange, hii-ing, agency, partnership, warehousing and the like. But no foreigner, unless enjoying civil rights, can own a French ship ; and the crews of French ships must be composed of Ijut a small proportion of foreigners. OBLIGATIONS AND DUTIES. 69 A foreigner cannot be a stockbroker, a commissaire prlseur Disabilities of or licensed auctioneer, a consul, a broker otter than a mer- *<"'«'g"ers. chandise broker, a judge of the Tribunal of Commerce, a prudhomme, an eleqtor in respect to voting upon the appointment of the judges in the Tribunal of Commerce, a witness to any acte puhlia or formal legal proceeding or deed, such as a notarial deed, a protest, an execution of property, a Tvill, &c. But a foreigner can be appointed cbnsular agent, and can also act as an arbitrator or expert. He can take out a patent and proceed against infringers of trade marks, drawings and models registered by him. He can also suppress the piracy of his name in commerce. He possesses the same rights as a Frenchman as regards works pubhshed by him in France. Obligations and duties of Foreigners in Prance. The laws of police and safety biud all persons inhabiting Obligations and French Territory (Art. 3 of the Civil Code). Thus, a foreigner, foref|n°e'rs. although not authorised to establish his domicil in France, where he carries on trade, can, if he suspends his payments, be adjudicated bankrupt in France. (See chap, on " Bank- ruptcy.") Crimes and misdemeanours committed by foreigners in Crimes and France, whether to the prejudice of Frenchmen or foreigners, misdemeanours, are punishable by the French Courts. The French tribunals have jurisdiction to punish crimes or offences committed on board a foreign merchant vessel stationed in a French port, even by the crew amongst themselves. (Cassation, 25th February, 1879.) Foreigners must conform to the local regulations of police customs and navigation in the ports and harbours of French , territory. Foreigners can be expelled from French territory by the Foreigners can Minister of the Interior, upon grounds of order or public rrSce."^'^^™"' policy. The French laws governing the capacity of persons are not applicable to foreigners, who continue in this respect in France to be governed by the laws of their respective countries. 70 rOBEIGNEES IN PEANCE. ACTIONS BETWEEN EEENCHMEN AND FOREIGNERS. Actions between Frenclimen and foreigners. Security for costs. Foreign defendant. When and "where foreigners can l)e sued. Eule as to rtomicil. Transfer of claims. 1.— Case in which a Foreigner is PlaintiflE". A foreigner having a claim against a Frenclinian, can in every case bring his action in the French Courts. It matters not whether it relates to a contract entered into by the French-' man in France or in a foreign country (OivU Code, Art. 15). It is equally unnecessary that reciprocity should have been stipulated by the country to which the foreigner belongs, Natural-bom French subjects and naturalised Frenchmen are placed upon the same footing, as are also partnerships, Com- panies and individuls. In civil cases a foreign plaintiff must furnish secui-ity for costs, unless he possesses realty in France of sufiBcient amount. (See chap, on " Security for Costs "). But in mercantile cases, as is fully explained infra, no security need be given. 2.— Case in which a Foreigner is Defendant. Any Frenchman, naturalised or otherwise, having a claim against a foreigner, can sue him in the French Courts (Civil Code, Art. 14). It is even so when, at the time of entering into the contract, the foreigner may have been ignorant of the nationality of the plaintiff. (Court of Appeal, Paris, 3rd June, 1872). The foreigner can be sued as above whether he resides in France or not, and whether the contract was entered into or the act complained of took place in France or abroad. These rules apply to foreign firms, Companies and corporations. The fact of a Frenchman possessing a domicil in the foreign coimtry at the time when the contract sued upon was; entered into, and his retaining such domicil without abdicating his status as a French subject, affords no obstacle to the application of the preceding rules. If a Frenchman having a claim against a foreigner sells or transfers such claim to another Frenchman, the French Courts win entertain an action by the latter against the defendant. The benefit of Art. 14 of the Civil Code follows the claim (Court of Cassation, 5th Nov., 1873) ; but it is considered that if the transferee were a foreigner he could not bruig his action in France. EXECUTION OP ENGLISH JUDGMEaSTS IN I'KAXCE. 71 A foreigner who accepts a bill of excliiuigc iibroad, of wliicli Foreign ac; a Frenchman is the holder at maturity, pursuant to a regular of^xchwgi"^ indorsement, can be sued in the French Courts for payment. ^'%^° ^^^^ This rule has been established by numerous decisions. A Frenchman, the holder of a bill pursuant to a blank Blank indorse- indorsement, possesses the same right, provided that the law ™®"''' of the country in which the instrument was drawn recognised the validity of blank indorsem.ents as transfers. Mode in which Foreigners must be sued.— Practice. Sei-vice of process upon foreigners amenable to the juris- Practice, diction of the French Courts must be eficctod at their domicil, or in default of domicU, at their residence in service of France. If they possess neither domicil nor residence upon |'o°e'i™^ ho - French teiTitory, service must be effected at the office of the ofEectod. Procureur of the Republic attached to the Court in which the action is brought. If the copy of the assignation or writ be left at the tem- porary residence of a foreigner in Franco after his departure, the sendee is void. The time for appearance varies according to distance. Time for The general rules of procedure are followed in actions appearance, against foreigners (see chap, on "Tribunal of Commerce.") "Writs are not served personally in France, as in England. They are left at the residences of the parties by huissiers. Actions between Foreigners. It is a settled rule that, in all cases, civil or commercial, Actions between the French Courts are incompetent to adjudicate between i, c ' -t foreigners who are neither domiciled nor resident in France, ineompotent to in relation to contracts entered into, and to be carried into ^ execution, in foreign parts. EXECUTION OF ENGLISH AND EOEEIGN JUDGMENTS IN EEANCE. Every judgment emanating from a French Coui't is con- Execution ot sidered to create a presumption of truth which pei-mits of no ments^in " ^" question being raised in reference to the points decided thereby. France. Such a judgment confers upon the successful party the right General rules. to attach or seize the present and future property of his debtor ; and further, if necessary, to call in the public force to 72 EXECUTION OP FOREIGN JUDGMENTS. Diplomatic treaties. Piiblic policy. Absence of treaty. Mode of exe- cuting foreign jiidgments. Actions npon foreign judg- ments are brought in the Civil Tribunals. English judg- ments liable to revision in France. compel his adversary by legal means to carry into execution the obligations imposed upon him by the judgment. The above rights appertain to French judgments alone, subject to the explanations which follow. In some cases diplomatic treaties provide for the execution in one State or country of judgments given in another. However precisely such treaties may be drawn, the exeou* tion in France of foreign judgments is not permitted if they violate the principles of public policy. The French Courts in such a case have no right to investigate whether the judgment has been properly rendered, but they are required to decide that it contains nothing contrary to public morals or order. In the absence of a treaty, it is a principle that no execution can issue upon a foreign judgment in France until the judg- ment has been declared executory by a French Tribunal. Judgments rendered by foreign Courts can only be rendered executory in France in the mode and in the cases provided by Art. 2,123 of the French Civil Code. A fresh action must be brought in France upon the foreign judgment; and the adverse party must be served with an assignation or writ, calling upon him to show cause why the judgment should not be declared executory. The application cannot be made ex parte by petition. The decision of the Tribunal in these actions must be delivered in public. Actions upon foreign judgments must be entered in the Civil Tribunals of First Instance. But the actions can be brought direct in the Courts of Appeal when the foreign judgment sought to be executed was delivered by a Court abroad of corresponding rank. The French Tribunals have power to render executory in France foreign judgments against foreigners as well as against Frenchmen. 3.— Of the Execution, in Prance, of English Judgments. There exist between France and various States of Europe — viz., Italy, Switzerland, and the Duchy of Baden and Alsace- Lorraine^ — diplomatic treaties which govern the mode of pro- cedure to be followed in order to render executory in France judgments i-endered by the Tribunals of those States. Such treaties stipulate a reciprocal right as regards decisions ren- dered by French Tribunals ; but no treaty of this nature has as yet been concluded with England, and therefore judgments E^fGLISH • JUDGMENTS, THEIE EXECUTION IN FRANCE. 73 recovered in English Tribunals cannot be executed in France without being submitted to revision by the French Tribunals, which revision may affect both the substance and the form of the decision. The bankruptcy of a person adjudicated bankrupt by the English bank- decision of an English Court is recognised by French Tribunals Stio% how far without the English adjudication being declared executory in ^^^^^^ ™ France. An English trustee may therefore establish his quality as trustee by the simple production of the adjudication made by the English Court ; but if he desires to exercise, by virtue of such adjudication, the right of administration over the property situated in France of the bankrupt, and if he shpuld meet with opposition on the part of third persons to the exercise of his rights, he will be obliged, in order to overcome such opposition, to request that the French Tribunals render the English bankruptcy adjudication, which invested him with the functions of trustee, executory. Any party who desires to render executory, by the medium Foreign judg- of the French Courts, a judgment recovered abroad, must registerea in with this view summon the condemned party before the Civil ^^'^• Tribunal ; and previous to so doing, it is necessary to submit the judgment rendered ,abroad to the formality of enregistre- inent, or registration. The amount of duty on such registra- tion payable to the Treasury varies according to the nature of the judgment in question, and is the same as that to which French judgments are liable. The plaintiff must establish, both by documents and oerti- Evidence. fieats de coutume (legal certificates), that the foreign judgment has been legally given by a competent Tribunal, and that it is final according to the laws of the country in which it was delivered. The Civil Tribunal is alone competent to give executory force to foreign judgments, whether the question in litigation be civil or commercial. If the defendant be French, the Tribunal may require that ^^™*^^j_ the whole cause be pleaded over again before it, and may uncertainty at partiaUy modify the decision of the foreign Court, or even g'|'S'|Soe"' reverse it completely, and discharge the defendant from the jjg^|*^|™'^^^<'„f sentence pronounced against him. Some authors even main- foreign judg- tain that the French Tribunals may receive the counterclaim ^uyf ^™''" of the defendant, and wMle discharging him from the judg- ment pronounced against him by the foreign Court, may make 74 EXECUTION OP rOREIGK JQDGMElfTS. Rights of toTeiffners TOCiprocally, such, an order in respect to the case and against the plaintiff as it may deem equitable ; but this opinion is controverted, and the Tribunals in practice are not more agreed than writers on the subject. As we have previously said, no formal legal text governs this portion of the French law, which is aban- doned to the controversy of authors and to the arbitrary interpretation of the Tribunals. The execjition of a judgment can be demanded by a foreigner against a defendant, being also a foreigner, whether of the same nationahty as himself or of a different nationality. The Prench Tribunal cannot re-try the action, but should assure itself that the judgment which is submitted to it has been regularly rendered in the proper form ; such is, at least, the opinion of those authors whose decision carries the most weight, but the question is much controverted, and certain decisions have even recognised the right of the French Tri- bunals to revise such a foreign judgment. Execution in Arbitrators' awards rendered abroad, viz., out of France, trators' a-nards between foreigners or between French subjects and foreigners, abroacU ^° ^'^^' ^^ ^^ ^^^ ^^^^ with judgments, require to be submitted for revision to the French Courts, to enable execution to be issued upon them. In the case of arbitration, it is considered that the partiality of foreign Courts is not to be feared, as the decision in question has been given by the authority chosen by the parties themselves voluntarily. The only formahty necessary is an application to the president of the Tribunal to grant an exequatur, and the same procedure is followed as in French arbitrations. Practical instructions. Practical Instructions. A party seeking to obtain execution of an English judgment in the French Courts, must forward to his solicitor in France a certified copy of the EngUsh judgment, together with a complete statement of the case, and if necessary the entire documentary or written evidence used ia obtaining the decision in England. A writ is then issued in France, and the case set down to await its turn for hearing. The same rules of procedui'O are followed as in ordinary cases. Actions for the execution of foreign judgments are adjudicated upon in the Civil Tribunals, as we have explained supra, subject to appeal; but provisional execution can in certain cases be issued, subject to the condi■^ tions referred to iu another part of this work (see Index). BANKRUPTCY. General Points.* There is no special Bankruptcy Court iu France. The Jurisdiction ot Tribunals of Commerce have sole jurisdiction in bankruptcies, commerce" subject to appeals to the ordinary Courts of Appeal. The present law relating to Bankruptcy was passed iu 1838, Law of 1838. and has held its ground since that time with few modifications. Taking the whole of the bankruptcies in France, it is calculated that the creditors receive a mean dividend of nearly 20 per cent.* * Failures in Fbakce. — A report recently issued on the administra. tion of justice during 1878, gives a list of the bankruptcies that occurred during 1878, amounting to 6,021, which exceeded those of 1877 by 541, and those of 1876 by 829. The following is the proportion in which the various industries participated in the disasters : — Textiles, 290 ; wood and timber, 232; metals, 239; leather, 235; chemical works, 94 ; pottery, 49 ; buUding trades, 250 ; jewelry, 296 ; provisions, 2,017 ; clothing trades, 1,038; furniture, 142; business, 114; traffic, 170; hotel and inn- keeping, 383 ; sundry, 472. Of this Ust 2,435 were adjudicated bankrupts on their own declaration, and the remainder at the instance of creditors. It is a matter of some interest to know what was the result of all these bankruptcies. A dividend of 10 per cent, was realised in 997 cases, cf from 10 to 25 per cent, in 1,555, 26 to 50 per cent, in 109, and from 76 to 99 per cent, in 24. In 282 oases oiily the creditors received nothing. The liabilities did not exceed 5,000f. in 330 failures, and varied from 5,000f. to 10,000f . in 527 ; from 10,000f . to 50,000f . in 1,562, from 50,000f, to 100,000f. in 435, whUe they exceeded this amount in 469 cases. Failuees in England. — ^In England, in 1879, there were altogether 13,132 cases of bankruptcy, arrangement or composition ; but of the 1,156 bankruptcies, 79 were annulled on acceptance of composition or scheme of settlement nnder sec. 28, and 70 more for various other reasons, leaving only 1,000 cases, or about seven per cent, to which the more important provisions of the Act for preventing abuses by insolvent debtors and professional agents applied. The othei^ 12,000, or 93 per cent., escaping the provisions of the Act which refer to the examination 76 BANKEL'PTCT. Three kinds of toankniptcy. Only traders can be bank- rupts. Insolvency of non-traders , Fo^-eigners. SuBpension of payments the criterion of bankruptcy. Adjudication after death of debtor. There are three degrees of bankruptcy, 1. Ordinary bank- ruptoy oaXLed faillite ; 2. BaragMeroMie si /iipZe, a species of frau- dulent bankruptcy ; Banqueroute frauduleuse, viz., fraudulent bankruptcy of a more heinous character and involving severer penalties. Traders only can be adjudicated bankrupt. Non-traders cannot be made bankrupt except in relation to habitual acts of trade or mercantile dealings. Non-traders who do not meet their engagements, and whose assets are less than their liabilities, are said to be in a state of deconfiture or insolvency. They still remain governed by the rules of civil law. The provisions of bankruptcy do not apply to them in any way. Clerks, artisans and workmen cannot be adjudicated bankrupt. Minors, prodigals* and married women can only be declared bankrupt in certain cases. Foreigners residing in France are subject to the French bankruptcy laws. A trading firm with its chief establishment abroad, and with a branch only in France, can be declared bankrupt in that country. Bankruptcy in France is constituted by the fact alone that the debtor has suspended his payments, but a judgraent is indispensable in order to give publicity to the bankruptcy, and to determine the date at which it is deemed to commence. The question as to what constitutes suspension of payments IS one for the Court, viz., for the Tribunal of Commerce in the first instance. A debtor can be adjudicated bankrupt after his death upon two conditions, viz., 1. The suspension of payments must be proved to have existed previous to his death ; 2. The petition or application to obtain the adjudication of bankruptcy must be presented or made within one year from the date of the death of the debtor, but the adjudication can be validly made after the expiration of the year. and disoliarEte of a bankrupt, and to the accounts, cJiarges and conduct of agents employed. The total number of -compositions in 1870 was 1,116. Of these tiere were 565 over 7s. 6d. in the Pound, and only 76 under Is. ; whilst in 1879 the total was 4,809, of which the best class numbered 513 (52 fewer than in 1870), but the worst numbered l,056,iust/otM"iee)i times as many as iu the earlier year. * i.e., persons declared incapable of managing their own affairs on account of their extravagance, and subjected to a conseil defamille, with- out whose authority they cannot act in reference to their property. ^ THE ADJUDICATION. ?7 OP THE ADJUDICATION, Jiirisdiction of the Courts. We have already stated that there exists no special Bank- ruptcy Court in Trance, and that the Tribunals of Commerce in the various districts adjudicate in bankruptcies. The Tribunal having jurisdiction is that of the domicil of wiiat Tribunal the debtor, and in the case of a partnership, that of the district ''»«J™'s'^'<='i°'i- in which it has its de facto chief office. Two or more simultaneous and separate bankruptcies can be declared in oases where the debtor has carried on trades in different localities. A foreigner can be declared bankrupt in Trance even after having been adjudicated bankrupt in his own country or elsewhere. OP PARTIES ENTITLED TO PETITION POR BANKRUPTCY. The debtor himself should present a petition for bankruptcy Persons entitled within three days from ceasing his payments. In default, one ° ^ ' '°"' or more of the creditors can obtain an adjudication, or the Tribuijal of Conunerce can, ex officio, declare a debtor bankrupt when his insolvency has become notorious. In the case of a creditor, the application is made by way of Application. petition, ex parte, and upon cause being shown, a judgment by default, declaring the bankruptcy, is given; but the debtor can apply to set it aside, and can sue the petitioner for damages if an adjudication has been obtained against him without due cause. The creditors can appeal if their petition for adjudication is rejected. Appeals lie to the ordinary Courts of Appeal. FORM OP ADJUDICATION. The adjudication is declared by a judgment given in Foreign , , . ^ judgments. public* ■ An English or foreign adjudication of bankruptcy can be rendered executory in France in the same manner as any other judgment. Foreign trustees can, however, exercise their rights in Prance without obtaining an exequatur. Foreign adjudications are declared executory by the Civil Tribunals only, to the exclusion of the Tribunals of Commerce. * See 107, for form of judgment declaring a bankruptcy. 78 BANKEUPTCT. OP THE COMMENCEMENT OP THE SUSPEN- Slow OP PAYMENTS. Aaiudication The date at which the suspension of payments is deemed to fixes date of have commenced is fixed by the Tribunal at the time of Buspeiisioii 01 "^ payments. decreeing the adjudication, if it is in possession of sufficient information, or by a subsequent judgment rendered upon the report of the juge-commissaire. Importance of The above decision is of extreme importance, as the validity tlTe effect of the of certain acts executed by the bankrupt depends upon whether a judication, g^gj^ g^^^g ^qq]^ place previously or subsequently to the date from which the bankruptcy is considered to commence, as will be fully explained infra. The Tribunal, in fixing the date, is guided by the facts and evidence. Should no fixed date be stated, the bankruptcy is deemed to commence from the date of adjudication. In the parallel case of a bankruptcy declared after the death of a debtor, it would be deemed to commence at the date of his death. EFFECTS OP THE ADJUDICATION. 1. Upon the person of the Bankrupt. Disabilities of The adjudication deprives the bankrupt of certain privi- leges ; thus, he cannot present himself at the Bourse, and is debarred from discount at the Bank of France. He cannot act as a stockbroker or other broker, except a goods broker. He is deprived of the exercise of his rights as a citizen even after obtaining his discharge, and he may not fulfil any political function, such as become a member of the Chamber of Deputies, or of a Conseil General or District Gonseil. He cannot be a municipal councillor, a mayor, a juryman, an elector, &c. But he preserves the enjoyment of ordinary civil rights. He can consequently validly contract with third parties, with liberty to the trustees or syndics to disclaim such con- tracts and to prevent the property which they sold from being affected by them. Thus, if a bankrupt purchases goods of a third party, he cannot plead his non-capacity in order to avoid payment of the price, but the syndics can resist any proceed- ings taken against the goods belonging to the bankrupt, as such goods are their security, and the bankrupt who has been deprived of the administration of his property cannot dispose of them. The vendor would be compelled to wait until the close of the bankruptcy to enforce payment. Partnerships the hanknipt. EFFECTS OF ADJUDICATION. 79 of wliioh the bankrupt was a member are dissolved by tbe bankruptcy. 2. Upon the property of the Bankrupt. Pursuant to the provisions of Art. 443 of the Code of Bankrupt Iobw ^ , control over his ■Commerce, the adjudication deprives the bankrupt of the property, •administration of the whole of his property, even of that which naay accrue to him during the bankruptcy. Subsequent to the adjudication, all actions relating to his ^S'tosvnaf'"^ realty or personalty must be brought by or against the syndic. All transactions entered into by the bankrupt, either with •or -vrithout consideration, after the adjudication, are void as •against the creditors. ADMINISTBATIOIT OP THE ESTATE. The bankrupt is deprived by law of the administration of his property, and this deprivation dates from the adjudication. The bankrupt can, however, commence to trade anew. Right to trade Fresh creditors in respect of such subsequent trading cannot prove against the estate, and the creditors in the bankruptcy cannot interfere to prevent such trading. The bankrupt can also brine certain actions in his own What actions -i-i ■ : 1 J J J. 1. • 1 can to brought name. For instance, he can sue tor damage to his honour or ty bankrupt. reputation. He can .proceed against infringers of his patent-rights, &c., but the syndic can intervene and claim the damages for the benefit of the estate. He can recover sums due to him in relation to transactions entered into by him since the bankruptcy. EFFECTS OF THE ADJUDICATION UPON" DEBTS DUE BT THE BANKBUPT. All moneys owing by a bankrupt, but not yet accrued duo, Jg^^^'^Jt'^^me become payable immediately upon the adjudication. S^'te?'" ^™™*" Interest upon debts due by the bankrupt ceases to run, as ^^^^^^^"^^ regards the body of creditors, from the adjudication, except as regards debts which are secured by privilege, by a pledge, or by a mortgage. It is a principle in bankruptcy that the creditors should be placed upon an equal footing. To arrive at this result, it is enacted that from the date of the judgment declaring the bankruptcy, all dettes passives, or debts owing by the bankrupt, become forthwith payable, and thus no creditor can be excluded. 80 BANKEUPTCr. Landlord. Vendor to bank' nipt for future delivery Bills of exchange. Promissory notes. Acts to defraud creditors. on account of his debt not having accrued due, from taking part in the operations of the bankruptcy, and receiving dividends when distributed (Code of Commerce, Art, 444). This rule is apphed to the bankrupt only, and not to parties jointly and severally liable with him as sureties. The landlord of a house leased to the bankrupt can claim security, or the payment of a portion of the rent as fixed by Art. 560 of the Code of Commerce, revised by the law of 12th February 1872. The same right belongs to the vendor of goods the delivery of which is to take place at a future time. Such vendor, after the adjudication, can demand security for payment of the price of the goods at the term of delivery, and in default of the syndic furnishing such security, he can claim to have the contract cancelled. The bankruptcy of one of the parties to a bill or note gives no right of action against the other parties thereto. Formerly the parties in such an event were compellable to pay immedi- ately, or to give security. At the present time security is required to be given in the following cases : as regards bills of exchange, in the event of the bankruptcy of the acceptor, or the non-acceptance of the bill, by the drawer ; and as regards promissory notes (hilleis d ordre), in the case of the bankruptcy of the maker. Effect of the suspension of payments upon the transac- tions and dealings of the Bankrupt since the date thereof, and within the 10 days prior thereto.* We have already seen that the adjudication deprives the bankrupt, from its date, of the administration of his property, and that all actions relating to his realty or personalty must be brought by or against the syndics. All dealings by the bankrupt entered into after the date of the adjudication, whether gratuitously or for valuable considerr ation, are therefore void as against the creditors, as well as all judgments against him after such date, unless they relate exclusively to his person. The syndics have also the incontestable right of impeaching all acts of the bankrupt in fraud of his creditors which may have been committed by him at any period, (Court of Cassa- tion, 17th July, 1861). * These provisions directed thereto. are very important, and special attention is PREVIOUS TRANSACTIONS OF BANKRUPT, HOW AFFECTED. 81 A distinction is established between conveyances a titra Conveyances gratuit (gratuitous) and conveyances a titre onereux (for valu. ■"''''i 'i°d7i"'- able consideration). tion. The first are void, from the fact of their having been carried into effect by the bankrupt in the interval which elapsed between the cessation of payments and the adjudication, or even within the ten days which preceded the cessation of payments. The second are valid if the third parties who contracted with the bankrupt were ignorant of his insolvency at the time of entering into the contract. CONVEYAIfCES OP PROPERTY GRATTTITOTTSLT. A debtor who has stopped payment, or who is on the point Disposition of of so doing, cannot gratuitously dispose of any portion of his P™?^"^'?- estate. Such acts of generosity would be a fraud upon the creditors, and would not be upheld, notwithstanding that the donees might be ignorant of the insolvency of the donor. The provisions of Art. 446 of the Code of Commerce are absolute, and apply to both realty and personalty, and to pretended gifts disguised under the form of conveyances for valuable consideration. PAYMENT OP DEBTS NOT ACCRUED DUE. It is not customary in commerce to pay debts before Anticipated maturity. A trader who pays a debt by anticipation, upon the P"'^"'™ ^' eve of suspending payment, is presumed to have yielded to the pressure of the creditor or to a wish to favour him to the prejudice of the general body of creditors, and this presumption assumes greater force if the payment, instead of being made in cash, takes place by a sale or a transfer, or by similar means. The above considerations gave rise to the enactment that Limitof lodays the payment of all debts not accrued due by the bankrupt ruptoy. since the period fixed as that of the suspension of payments, or within the ten days preceding, either in cash or by transfer, sale, set-ofE, or otherwise, should be void. A bankrupt cannot, after his suspension of payments, or within the ten days prior thereto, legally pay money by way of security into the hands of a drawee of a bill of exchange which has not matured. (Court of Cassation, 17th December, 1850.) But the drawee, although compelled to refund such payment to the estate, cannot cancel the payment he may himself have G 82 BANKKtTPTCT. made to the holder of his acceptance, as he has but discharged his own debt. (Court of Cassation, 22nd December, 1869.)' DeUveryof The word dette, employed in Art. 446, has a general signiiication. It includes every species of obligation, also an engagement to deliver a thiug or to pay a sum of money. Thus, a trader who within ten days before his suspension delivers a quantity of corn or wine, which he was only bound to deliver at a future date, is considered as having made an anticipated payment, and such transaction is void. Payments with iphe fact of a pavment being made in anticipation under discounts. _ . . „ , discount does not render it valid ; at least the majority of the decisions are to this effect. In all cases in which the payments made are declared void, the creditor must refund the proceeds to the syndic for the benefit of the creditors. He must also pay interest upon the sums illegally received by him from the date of receipt. PAYMENT OF DEBTS ACCRUED DUE OTHER- WISE THAN IN CASH OR BILLS. Debts already The presumption of fraud, which renders payment made by the bankrupt in anticipation void, does not apply to debts which have accrued due at the time they are discharged. It can happen that, within the ten days which preceded the suspension of payments, or even in the interval which elapsed between that period and the adjudication, the bankrupt may have paid Soma fide debts to third parties who were ignorant of his real position. Bona-fde It -would be uniust to compel restitution of such pavments, payments not , "^ . ^ ^ , *' set aside; and the syndic cannot impeach or set them aside, unless he can prove that the payee had notice of the insolvency of the debtor at the time he received payment, tut must be in A settlement, however, so made in any other manner than in cash or bills, is void, whether the creditor had notice or not. (Court of Appeal, Paris, 28th June, 1877.) As a consequence of Art. 446, -the transfer by a debtor of a claim in extin- guishment of a debt within the ten days preceding his bankruptcy is void. Payment by A payment made by a debtor of the bankrupt to a creditor debtor.^ * of the latter is void under the like circumstances. Payment in goods is void whatever may be the motive alleged to justify it. A debtor may not return goods for which payment has not CHAEGES UPON BANKRUPT'S PROPERTY, HOW AFFECTED. 83 been made, for he is indebted in tlie price thereof alone ; but it would be otherwise if he restored goods which he had obtained by fraud, as he would then be liable to their restitution in kind. (Court of Appeal, Paris, 11th Dec. 1867.) Payment by biUs is placed in the same category as payments in cash, as in commerce bills in circulation are considered as cash. OP MORTGAGES AND CHARGES UPON THE BANKRUPT'S PROPERTY IN RESPECT OP DEBTS PREVIOUSLY CONTRACTED. It is enacted that all conventional and judicial mortgages Mortgages and {hypotheques conventionnelles et judioiaires), and all droits a charges. aiitichrese, or charges upon the property of the debtor, executed within the 10 days preceding the suspension of payments to secure debts preyiously owing, are Toid. Mortgages and charges executed at the time the contract No notice, is carried out are valid if the creditor had no notice of the insolvency of the debtor. If a charge is executed to secure a debt contracted at the time and one previously owing, it is void as regards the prior debt. Sypotheques judiciaires arising from judgments against the iii/pothequa debtor are placed upon the sam.e footing as hypotheques con- J>"i'"<'^"''- ventionnelles, because they result f roni the debtor's own act and might be based upon fraud. OP PAYMENT OP DEBTS ACCRUED DUB IN CASH OR BY BILLS, AND OP CONVEYANCES "A TITRES ONEREUX" (POR VALUABLE CONSIDERATION). Art. 446 of the Code of Commerce enumerates the various Acts from acts which are accompanied with a presumption of fraud by presnmedt^ reason of their special nature, and of the short period elapsing between their execution and the bankruptcy of the debtor. Such acts are voidable if it can be shown that the parties had notice of the insolvency of the debtor at the time they were carried into efiect. Third parties contracting with the debtor previous to his Onus of proof bankruptcy are presumed not to have notice of his insolvency, insolvency. The onus of proof is upon the syndic who seeks to annul transactions carried into effect in fraud of the body of creditors. As regards conveya/nces and compromises for valuable con- valuable sideration, other than payments, notice of the insolvency of the ^r deeds or Q 2 compromises. 84. BANKEnPTCT. debtor is not sufficient to raise a presumption of the mauvaise foi of the contracting parties. In addition to the above, the syndic must prove that the acts he is seeking to render void Howimpeached. have prejudiced the general body of creditors. If the holder of a bill of exchange receives payment before maturity from a debtor within the prohibited periods, he must refund the proceeds to the syndic. If he accepts payment at maturity, otherwise than in cash, for instance, by other bills or goods, he must deliver them to the syndic. Art. 449. Art. 449 of the Code of Commerce provides, that in cases where bills of exchange have been paid by the bankrupt after the period fixed as that of the supensionof payments, and before the adjudication of bankruptcy, actions for reimbursement or restitution can be instituted only against the party for whose account the bill was drawn, and in the case of a promissory note, against the first indorser only. But in either case proof \ that the party called upon to reimburse the amount of the in-, strument was aware of the suspension of payments at the period of the creation thereof must be made. Interest on sums In the event of parties being ordered by the Courts to recovered by the , , ,, ,. j_ j „ . , ,n ,-, tyndic. ' convey property to the syndic, pursuant to Art. 447, they are chargeable with interest upon sums improperly received by them at the rate of 6 per cent. ,per annum, calculated from th& date of such receipt. OF THE APPOINTMENT OP THE JUGE- COMMISSAIRE (BEGISTBAB). By the judgment declaring the bankruptcy, the Tribunal of Commerce appoints one of its members to the office of jwge- commissaire, to represent the body of creditors and to superin- tend the operations of the syndic or trustee. (See Arts. 451 to 454 of the Code of Commerce.) OP THE PLACING- OP THE SEALS UPON THE PROPERTY OP THE BANKRUPT. After the adjudication, the first measure adopted is the placing of seals upon the warehouses, safes, books, papers, furniture and effects belonging to the bankrupt. If the assets are small, the juge-commissaire can order this operation to be dispensed with. The seals are affixed by the justice of the peace. In the case of the bankruptcy of a partnership firm, the seals- can be affixed at the private residences of the partners. Juge. Commistavre , Sealing up of bankrupt's effects. Partnership. APPOINTMENT OF " SYNIJICS " OE TETJSTEES. 85 OP THE IMPRISONMENT OB DETENTION OF THE BANKRUPT. The Court can order the bankrupt to bo arrested and Arrest confined in a debtor's prison, or to be given into the custody °* "lebtor. of an officer of police. This measure, as regards ordinary bankrupts, is, however, rarely resorted to. At the present time it is confined to pecuniary penalties pronounced by the criminal, correctional, or police Courts.* OP THE PIBST COSTS AND EXPENSES OP A BANKBUPTCY. When the assets at the outset do not suffice for the expenses Preliminary of the adjudication and the publication thereof, the amount ''°^'^- requisite is advanced by the public treasury upon an order of the juge-commissaire. This advance is reimbursed, as a first charge, out of the first assets recovered by the syndic. OP THE APPOINTMENT OP THE " SYNDICS " OB TRUSTEES, AND OP THEIR DUTIES. In the principal cities the custom of appointing Profes- The syndics. sional syndics or trustees has arisen. Until the last few years, the Tribunal of Commerce of Paris settled and revised annually the list of syndics de faillites. Their nunaber was not limited, and they did not constitute a corporate body. Since the passing of two resolutions on the 30th January and 3rd February, 1876, bankruptcy trustees have in Paris been organised on a new system. They have received authority to form themselves into a corporation called the Gompagnie des Syndics de faillites pres, le Tribunal de Commerce de la Seine. But such authorisation was granted to them upon the condition, amongst others, of giving security, and of creating a guarantee fund by mutual subscription, and this fund at the present time amounts to over 1,000,000 fs. (£40,000). The number of syndics in Paris is limited to 20, who monopolise the whole of the bankruptcy business of the department of the Seine. They are governed by a chamber of * The law upon impriaomnent for debt in France will be found fully explained in another part of the present treatise. (Appendix.) 86 BANEUUFrCT. Trustees. System of accounts. discipline, whose president is appointed each year by the. president of the Tribnnal of Commerce. The above system has now been working about six years with satisfactory results, and it is probable that the other departments in Prance will adopt the same organisation. There are no proceedings in French law analogous to those relating to composition and liquidation by arrangement in the Bankruptcy Act, 1869, in England. A composition can be proposed to the creditors afl&i' tlie adjudication of bankruptcy (see chapter on Concordat) ; but such offer is subject to approval and confirmation by the Tribunal of Commerce after a, report has been made by the juge-commissaire on the character of the bankruptcy, and his opinion tendered as to the admissibility of the offer. DUTIES OP SYNDICS. Accounts. In Paris bankruptcy syndics are subjected to a prescribed mode of procedure, and to a system of checking of accounts, denominated comptabiUte centrcde des faillites.* This system was organised in 1850, and its object is to register day by day the operations carried through by each of the syndics in the various bankruptcies in which he is engaged. These daily declarations are entered up in an account-aheet containing debit and credit columns, showing not only receipts and disbursements, but also all moneys paid into and with- drawn from the caisse des depots et consignations. At the end of the month there are as many sheets filed as there are days in the month, with the exception of fete days. The debit and credit amounts on each sheet are carried forward to a general or recapitulation sheet, which shows the balance in respect of which the syndic is a debtor or creditor to each estate. The chief accountant of the tribunal keeps a special ledger for each syndic, in which a separate account is opened with each bankruptcy in which the syndic acts. Byndics are also required to file a balance-sheet each month (" Manuel Pratique des Trihunaux de Commerce," p. 558). The above system of accounts permits interested parties to exercise a daily check upon the dealings of syndics, and also facilitates the surveillEmce of the juge-convmissaires. A decree passed on the 25th March, 1880, has rendered the control over syndics still more efficacious, inasmuch as a special * Similar rules mi'glit advantageously be adopted in England. DUTIES AND EEMUNEBATION OP TRUSTEES IN FEANCE. 87 register is ordered to be kept at the greffe of each Tribunal of control over Commerce, and of each Civil Tribunal adjudicating commer- *™^'ees. cially, upon which all acts and transactions of the syndics in relation to each bankruptcy must be inscribed, and a resume of such register, which is entered up under the special superin- tendence of the juges-commissaires, must be forwarded by the greffier to the proeureur general. In this manner the management of the syndics is subjected to a double control, that of the procurews generaux and that of the juges-commissaires. Syndics, in the exercise of their duties, are considered as officials acting in the public service, and are protected by the provisions of Art. 224 of the Penal Code, pursuant to which, threats or abuse offered to officiers ministeriels are punished by fine and imprisonment. BEMTJWERATION OF SYNDICS Ilf BANKRUPTCY. When the syndics have rendered their accounts, they are Eemuneration entitled to receive a sum of money as remuneration, which is prance^™ "^ fixed by the tribunal upon the recommendation and report of the juge-cormnissaire.. The remuneration given is proportionate to the importance of the bankruptcy, the difficulties encountered in the winding- up, and the results obtained. Provisional as well as definitive syndics receive remunera- tion for their services. The syndics present a petition to the juge-commissaire, setting out the sum claimed by them and their reasons for its admission. Such petition can be contested by the bankrupt and by the creditors, and the claim is adjudicated upon by the Tribunal of Commerce, subject to appeal, if the amount claimed as remuneration exceeds 1 ,500 fs. (£60). The word syndic signifies trustee. In practice one syndic only is appointed, notwithstanding that the plural is employed in the text of the French law of bankruptcy. The power of appointing, replacing and maintaining the syndics appertains to the Tribunal of Commerce alone. The creditors are not consulted in the choice. Their duties consist principally in the administration of the assets in the double interest of the bankrupt and of the creditors, and in winding up the estate upon the most favour able conditions, and as speedily as possible. BANKRUPTCY. Allowance for support of bankrupt. Filing of the balance-sheet. Moneys received by syndics. Supervision of the public prosecutor. OF THE ADMINISTRATIOlf OP THE BAKK- RUPTCY UP TO THE " CONCOBDAT " OB DISCHABGE, OB UP TO THE " UNION " OP THE CEEDITOBS. The definition of the word " union " will be found in the present chapter. (See p. 100.) As soon as the syndics enter upon their duties, they are called upon to take certain protective measures or operations in the interest of the creditors, such as : — 1. The sealing up of the property of the bankrupt. 2. The sale of perishable or burdensome objects. 3. The carrying on of the business of the bankrupt. 4. The getting in of debts shortly accruing due. 5. Registering a charge upon the realty of the bankrupt in the name of the general body of creditors. 6. The doing of all general acts for the preservation of the rights'of the bankrupt against his debtors. Letters addressed to the bankrupt are taken possession of by the syndic. The bankrupt can apply for an allowance for the subsistence of himself and his family from the assets. The amount is fixed by the juge-commissaire. When the balance-sheet is drawn up, after examination of the books and accounts, it is filed by the syndics in the Tribunal of Commerce. The syndics can enforce all the rights belonging to the bankrupt and defend all actions brought against him. They may grant time for payment, but have no power to forgive debts entirely. The sums realised by sales made by the syndics must be immediately paid in by them to the caisse des depots et consig- nations, equivalent in England to payment into the Bank of England. Should they- retain moneys in their possession beyond three days, they are chargeable with interest thereon at 5 per cent, per annum. Moneys so paid in by the syndics or by third parties cannot be withdrawn without an order of the juge-commissaire. The operations of the bankruptcy are carried on under the surveillance of the public prosecutor or ministere public, who prosecutes the bankrupt in case of fraud. The syndics are required, within 15 days from their definite appointment, to furnish the public jDroseoutor with a report, setting out the apparent position and principal causes of the bankruptcy. MEETINGS aF CEEDITORS — PEACTICE. 89 VERIFICATIOlf OF CLAIMS. In order to apportion to each creditor his share in the Proof of claims bankrupt's estate, the several claims must be respectively "^ ^^^ °* '""• examined and proved. The syndics, if they allow a claim, grant a certificate to the creditor, which is signed by the judge. In case of a disputed claim, the Court decides on its validity. The creditor is bound to lodge an attestation of the genuineness of his claim within eight days after the same has been allowed. MEETING OF CBEDITOBS. All creditors whose claims have been allowed aresummoned Meeting of by the juge-commissaire, and also by advertisement in the prescribed newspapers. Creditors can appear in person or by proxy. The object of the meeting is — 1. Either to reinstate the debtor in his business, &c., by giving up a portion of their claims ; or, 2. To distribute his estate by liquidation. Agents who attend to represent creditors must have their Agents by powers* verified by the juge-commissaire, but one agent can attorney, represent any number of creditors. The debtor is summoned to the meeting, and is bouiid to appear in person, unless he can give satisfactory reasons for his absence. If the estate in question is that of a partnership or Com- p°™J™^i^ pany, it is represented by the partners, managers or directors, according to its constitution. The svndics present their report to this meeting, stating Eeport of the ... 1 1 ti IT syndics, what proceedings and formalities have been gone through and observed. This report must bo on stamped paper, and ought to be duly registered and signed by them and transmitted to the juge-commissaire, whose duty it is to draw up an abstract of the resolutions of the meeting. The debtor makes his statement at this meeting, after which Resolutions of the creditors : the creditors proceed to resolve as follows : — 1. If a majority of creditors, representing three-fourths 1. Concordat. of the claims allowed, accept the ofEer of payment di- composition made by the debtor, they arrange a concordat or agreement. An ordinary concordat re-instates the debtor in the management of his business. A special concordat hands over to the creditors either a part or the whole of the debtor's assets. 2. If the debtor's offer is rejected, the creditors are then 2. Vnion. * See p. 113 for regular form of procuration or power, and translation. 90 BANKRUPTCY. Where there are 310 Amounts subsequently recovered. Privileged creditors. Priority of charges. said to have the full rights of union, after which they proceed to sell all the property of the debtor, real and personal, and to divide it according to their respective claims. CLOSE OP PEOCEBDIITGS WHERE THERE ARE NO ASSETS. If the inventory of the debtor's property shows that he has practically no assets even to pay the expense of the bankruptcy, the Tribunal of Commerce has power to declare the proceedings suspended. The debtor can apply to have this sentence of the Court varied or reversed within one month from its date. The efEect of the sentence is to make the debtor again liable at the suit of his creditors, whereas their rights of action were sus- pended by the judgment which had pronounced him unable to pay his debts in accordance with his declaration of inability. If he can give security for costs, the sentence will be removed, and the proceedings in bankruptcy continue. It is the better opinion that any sums subsequently recovered by creditors against the debtor belong to the body of creditors, and not to the individual plaintiff in each action. PRIVILEGED CREDITORS. The various classes of privileged creditors are — 1. Creditors whose rights are secured by statute, con- stituting a lien on certain property belonging to the debtor. 2. Mortgagees and creditors holding similar security. 3. Creditors holding guarantees from the debtor's sureties or guarantors. 4. The debtor's partner, in respect of special rights belonging to him as partner. 5. Creditors by "running accounts," e.g., holders of bills of exchange, &c. To begin with the first division. This includes certain creditors whose rights are secured in certain cases, even in preference to holders of such securities as a mortgage. The law grants priority of this special kind to— 1. Costs. 2. Funeral expenses. 3. Expenses of a last illness. 4. Salaries and wages. COSTS, SALARIES AND WAGES. 91 5. Necessary, personal, and family expenses. 6. Costs of defending the debtor in any criminal or correctional Court. 7. Debts due to the State. All. secured creditors who are unaffected by the debtor's Secured suspension of payments, may realise any security which they "^ ''^^^' have in their possession in the same way as if the debtor had not failed. COSTS. It has been decided that the costs of sealing and making First costs. an inventory of the debtor's property take precedence of all other debts. Other costs, such as of the adjudication, declaring the Ordinary debtor's suppression of payments, of the meeting of creditors, &c., are not to prejudice the rights of mortgagees or secured creditors, to whom they are practically of no benefit. Costs incurred by a creditor suing on his own account do Costs of actions not take precedence ; but if any property is recovered for the benefit of the creditors generally, the costs of such recovery are a first charge upon it. As a general rule, as against those creditors who have Gteneral profited by legal proceedings, the costs of those proceedings '^ ^' have priority; but if a creditor derives no such profit, e.g., if he is a mortgagee and the proceedings were taken in the interests of the simple contract creditors only, the costs have no priority over his claim. SALARIES AND WAGES. Servants can recover their wages, if unpaid, for the current Salaries. year and for one year preceding the date of adjudication. Clerks can recover six months' salary, from the same date, '^S'S^S' if they are paid by fixed salary. Workmen (who are paid by the month or week) can recover one month's wages from the same date. TRADESMEN SUPPLYING NECESSARIES. A creditor to claim under this head (Art. 2,101), must be f^^^l^Ued either a wholesale or retail merchant, or a boarding-house keeper; and the goods, strictly necessaries, must have been supplied to the bankrupt or his family. The second division of privileged creditors, whose rights Second class of ^ ^ J preferred are secured on certain kinds of real or personal property, creditors. includes — 1. The State Treasury. 92 BANKROPTCT. EightB of land- lord, if lease for a fixed term. If for no specified time. As regards ■business pi^e- mises. 2. Landlords. 3. Creditors secured by a pledge. 4. Persons who have incurred expenses for the preser- vation of the debtor's property. 5. Unpaid vendors of personal property or goods. 6. Innkeepers. 7. Carriers. 8. Creditors of public officials for debts incurred in the exercise of their duties. 9. Workmen employed by contractors for public works. 10. Special charges on ships and their cargo. BIGHTS OP LANDLORD OB, LESSOR. If the lease is by acte authentique, or sous seing prive, for a fixed term, the landlord has a right over the year's harvest and produce, the furniture of the house, and everything employed to keep it up and (if a farm) to work it, in order to satisfy his claim to all rent due at the date of adjudication and to all which would fall due during the remainder of the term. This right is absolute, and cannot be set aside by depositing the amount of the rents in the caisse des consignations, for the landlord to receive each year's rent as it falls due, but the creditors can claim the remainder of the term and work the land for their profit, paying of course all that is due to ihe landlord. If the lease is by private deed, without a specified term, the landlord can only recover all rents due at the date of adjudica- tion, and the rent of the current year and of the year next following. Considerable modifications of these rights of the landlord were introduced by the law of February 12th, 1872, as regards leases of land or house property appropriated to the com- mercial or business operations of the bankrupt. In those cases, if the lease is cancelled, the landlord can only exercise his privilege over such property for two years' rent due before the adjudication, for the rent of the current year, and for such damages as may be awarded by the Courts. If the lease is not cancelled, the landlord is compelled to accept reasonable security if offered, and cannot demand immediate payment of rents accruing due, or which will accrue in the remainder of the term. But since this law only applies to property leased for commercial or business operations, the provisions above EIGHTS OP LANDLORD OE LESSOE. 93 set out still apply to lessees of houses or lands for their own occupation. Li assessing the two years' outstanding rent allowed by How rent is this law, the time is reckoned from the date of the lease, e.g., ™''''°=^«'l- if a lease is made in April, 1876, and the adjudication takes place in July, 1880, the landlord's claim is for the two years' rent (if unpaid) from April, 1878, to April, 1880 ; and from the latter date the rent of the current year is calculated. In the case of outstanding or future rents, not covered by Right to proye these privileges, the landlord can prove with the other ^^a'tef"*"' creditors against the bankrupt's estate. The right of the landlord to seize furniture extends only to Furniture. moveables which actually furnish the leased premises ; jewels, e.g., are not liable to his claim as landlord. Goods on leased premises are subject to this right of the Goods oi leased landlord, and also the price of goods sold if the money happens P''^™^^^^- to be on the premises at the time of bankruptcy. As a general rule, it makes no difference whether the f urni- Furniture on ture on the leased premises is or is not the property of the 1«™«'1P™"''=^- lessee. But this rule is sometimes relaxed on equitable grounds, e.g., if some piece of property is lent or pledged with the bankrupt, or if stolen property happened to be on the Exceptions. premises, in which case the owner can claim it. Similarly books sent to a binder, com entrusted to a miller to grind, ' in fact, goods bailed or deposited with the bankrupt, are not, as a rule, liable to be seized by the landlord. Again, the goods and furniture of a sub-lessee are not Goods of sub- liable to be seized by the landlord of his lessor: the sub-tenant ' is only bound to pay the rent of his sub-tenancy. And if the lessee has pledged or pawned any of his furniture, and it is no longer on the premises, the landlord has no rights over such pledge or pawn. If the landlord's claim exists, and no prior claims arc established, the ywgre-co»n.missaM'e will make an order authorising the immediate payment to him of his claim out of the proceeds of the sale of furniture, &c. If the syndics have continued to hold the leased premises When eyniicx after the expiration of the lease, the landlord has a claim to has expired, indemnity against the entire assets of the bankruptcy, and not merely against the value of, the furniture on the premises. 94 BANKEUPTCY. Pledge or pawn, Special claims. Unpaid vendors. Innkeeper's lien. Carriers. 'Security taken from o&cials. DEBTS SECURED BY PLEDGE. The creditor who receives an article in pledge (gage) can realise his debt out of the thing pledged. 'In civil transactions the contract, to be valid against third persons, must be in writ- ing, but this is not necessary in business matters. However, creditors thus secured should prove with the other creditors, since their rights may be disputed on various grounds ; and even if they exercise their legal right to seU after adjudication, it is safer to have their claim allowed and verified. If the price obtained exceeds the amount of their debt (with interest and expenses), the surplus must be paid to the syndics. Usually, if any person has incurred expense bond fide for the preservation of the property of the bankrupt, he has a special claim on the assets. As an instance may be given the case of a person supplying fresh boxes or bales to save goods from, damage, or the case of a warehouseman who by ware- housing goods saves them from injury. BIGHTS OF UNPAID VENDORS. The Article (2,102) of the Code which allowed an impaid vendor of moveables to reclaim them, in case of bankruptcy, was repealed by the law of 1838. But if the article sold has not been delivered into the actual or constructive possession of the vendee, the vendor can retain it. INNKEEPERS. An innkeeper has a lien in bankruptcy on all goods and effects which are brought to his house by a traveller staying there, even if they are not the property of the traveller, provided only that they are neither lost nor stolen goods. The lien does not extend to claims in respect of previous visits by the same traveller, and only extends to goods actually in the inn or on its premises. CARRIERS. The lien of carriers is based on the imphed contract between them and the consignor of goods that the charges of carriage shall be paid. PUBLIC OFFICIALS. The security given by an official for guarantee of good conduct is primarily liable for any debts incurred by him by misconduct, maladministration, &c. EIGHTS OF COITTEACTOES, MOETGAGEES AND OTHEES. 95 CONTRACTORS FOR PUBLIC WORKS. Moneys due from the State to public contractors are Charge on subject to a first charge in favour of workmen, sub-contractors, puUic con-'' persons who have supplied materials, &c., and this charge is '™<''°''^.' extended to security deposited with the State by the public contractor. MORTGAGEES AND CREDITORS SECURED ON IMMOVEABLE PROPERTY. The failure of a debtor does not affect any bond iide holder Rights of mort- . ./ ./ gagees not of a mortgage on his immoveable property. If the mortgage affleoted by- has been duly executed, and if there is no fraudulent preference ^ "'^' of one creditor above another, the mortgagee can exact pay- ment of his debt without reference to the proceedings in bankruptcy. He is not even required to go through the formalities of verifying and attesting his claim. If the mort- gaged property is insufficient to satisfy the claim, the mortgage creditor can prove with the others, but in that case aU the formalities (as in the case of creditors in possession of a pledge) should be observed. RIGHTS AGAINST CO-SURETIES AND GUARANTORS. A creditor who holds security in the shape of guarantees. Guarantees. or bonds signed by sureties to his debtor, can proceed against any one of the co-sureties and recover the whole sum from any one of them, provided that if his claim is once paid his rights lapse as aga,inst the remainder. If some of the co-sureties to Sureties. a joint and several bond fail, the creditor may claim the whole debt against the estates of each ; that is, by -proving in bank- ruptcy against A., and receiving a dividend, he does not lose his right to prove against the estates of B. and 0. for his whole debt ; but this is limited by a proviso that the sum total which he receives from all must not exceed the whole of his debt. But if the creditor has proved against the estate of one co-surety who has failed, and then proceeds against a solvent co-surety, the latter can compel him to deduct the dividend he has received under the bankruptcy. RIGHTS OE CO-SURETIES ON BANKRUPTCY OF PRINCIPAL. A co-suretv who has paid his principal's debt may prove Eights of .,-■ c, 11J.- j-i-t, sureties against against hia estate for the balance, after deductmg the share principal. which he was personally liable to pay. If the creditor has not been paid, and proves for the whole of his claim, no surety can prove with him. 96 BANKRUPTCY. Running- accounts. Effect of baiikru_ptcy upon bills accepted by bankrupt. Proceedings after wiion. Foreign creditors. CEEDITOBS HOLDING BILLS AND DKAPTS BY RUNNING ACCOUNTS. The failure of one of two merchants between whom a, running account existed stops the business transactions between them. Various questions arise when these transac- tions are carried on by bills of exchange. If the bankrupt is debtor in respect of bills not yet due, sent to him by his correspondent, the debt is said to be post- poned until the bills fall due; the payee therefore cannot receive any dividend in bankruptcy without giving security to meet the event of bills not being paid, otherwise the amount of his claim which will become due will be paid into the proper office (caisse des consignations). If the bankrupt has negotiated the bills sent to him, the holders may put in their claims in the bankruptcy proceedings ; in that case the payee has no need nor right to prove, in fact the holder's claim is his best guarantee. If there are mutual transactions by bills not yet due, on which bills a balance appears to be in favour of one of two merchants, this balance, existing only in the nominal value of the bills, cannot be demanded from the person apparently owing it to the bankrupt, because it is. only a conditional debt,, and by the failure of the bankrupt will never be paid in full. OF THE DIVISION AMONG THE CEEDITOBS AND THE REALISATION OF PERSONAL PROPERTY. When the bankruptcy results in imion* the syndics proceed to realise the bankrupt's effects and distribute the price pro- portionately among the creditors. After paying all privileged creditors, the expenses of the proceedings allowed by the juge-coTwrnissaire, and deducting the grants made to the- debtor's family, the creditors receive the composition payable on their claims verified and attested. The usual practice is to send notice to each of the creditors. Creditors domiciled in foreign countries are allowed by the law a special time, according to the circumstances, within which they must send in their claims for verification. Before any distribution takes place among creditors domiciled in France, a proportionate sum must be deposited in the proper office {caisse des consignations) to meet the claims of foreign creditors- ' which have been set out in the debtor's schedule. If the- * For definition see p. 100. POWERS OF THE FRENCH BANKRUPTCY COURTS. 97 schedule appears incomplete to the juge-coinmissaire, he can order the amount so reserved to be increased. If foreign creditors fail to send in and have their claims Limit for verified within the special limits allowed to them, they are cfaimsf ™ treated as in default, and the reserve fund set aside for them is distributed among creditors who have duly established their claims. POWERS OF THE TE.IBUWAL OP COMMERCE. The Tribunal of Commerce has power in matters of Jurisdiction of , , ^ the Tribunal of bankruptcy : Commerce. 1. To receive the debtor's statement of his suspension of payment and the schedule of his assets and liabilities. 2. To declare his bankruptcy, and to fix the date for the commencement of proceedings. 3. To name the juge-comviissaire who is to superintend the proceedings ; to name the syndics and to revoke their appointment or to add new syndics, and to decide all complaints against them. 4. To order seals to be afiixed to the debtor's property ; to arrest the debtor and to grant or refuse him a " safe conduct." 6. To fix the sum to be paid for the support of tbe family of the debtor. 6. To receive the schedule drawn by the syndics and their inventory of the debtor's property. 7. To confirm certain arrangements in respect of personal property made by the syndics and authorised by the juge-commissaire ; to examine the verification and attestation of claims; to decide on suspend- ing the proceedings in bankruptcy in the case of disputed claims ; to confirm, annul, and decide questions arising from the concordat; to decide disputes about the accounts furnished by the syndics, and to close the proceedings where bhe assets are insuflScient for their costs; to decide all claims of parties not creditors to property in the hands of the bankrupt ; and to annul any agree- ments giving a fraudulent preference to any creditor. The Civil Courts have power to deal with — 1 Certain arrangements in respect of immoveable pro- rower of Civil f _ ,. Courts. perty made by the syndics. 98 , BANKETIPTCT. 2. Claims disputed on grounds of civil law. 3. All opposition to the concordat when the decision entails questions outside the jurisdiction of the Tribunal of Commerce. 4. The sale of immoveable property belonging to the debtor and the distribution of the proceeds. 5. Claims made by the debtor's wife in virtue, of her relation to him. The TrihunavAB Correctionnels decide on — 1. Banqueroutes simples. 2. The appropriation, embezzlement, or concealment of the debtor's property by his partner or members of his family. 3. Actions for fraudulent mismanagement against the syndics in virtue of their duties. 4. Actions against creditors who have stipulated for special advantage in consideration of their voting in favour of the debtor. APPEALS IN BANKRUPTCY. Kuleson Special rules on the subject of appeals are in force under *^^ ' the law of 1838, according to the subjects dealt with by the judgment appealed against : — (1). Judgment declaring the bankruptcy and appointuig its commencement. Limit of time. This being equivalent to a judgment by default, it can be called in question by any interested party, either the bankrupt or his creditors. The bankrupt has eight days within which he must lodge an appeal, other parties are granted one month. Binding on These limits are absolute and are never extended, therefore creditors. all foreign creditors are bound by them. (2). Judgments which are merely ministerial, dealing with matters of practice. Where no No right of appeal of any kind is allowed against these luSwedf judgments. They include— 1. Nomination or discharge of the juge-commissaiye or syndics.' 2. The demand of " safe-conduct " (freedoin from arrest). 3. Of support for the family of the bankrupt. 4. Sale of goods of the bankrupt. 6. Suspension of the concordat. 6. Provisional admission of creditors whose claims are disputed. COMPOSITION, OR CONCOEDAT. 99 (3.) All other judgments, except those above mentioned, are liable to be set aside in the same manner and by the same means as an ordinary judgment of the Tribunal of Oommerco. In bankruptcy the time for appeal is limited- to 15 days, but Proportional with this proviso, that /or parties domiciled out of the jnrisdic- ^^^ ^' tion of the tribunal a further time of one day for every 31 miles of distance is allowed. Special penal provisions have been enacted to deal with offences and crimes committed by the bankrupt, his creditors, or the syndics. "Concordat," or Composition. The concordat corresponds to the composition under pro- Concordat. ceedings in an English Court of Bankruptcy. It is an arrangement by which the creditors of a bankrupt trader either grant to their debtor an exteiided time within which to meet his liabilities, or cede to him a certain proportion of their claims. 1. The concordat can take place : — In ordinary cases, when the failure of the debtor is not when .-I TL n • • A J J advisable, the result of serious mismanagement or fraud on his part ; it is thus to the interest of the creditors to come to an arrangement with him and to avoid the delay and expense of bankruptcy proceedings. To protect the rights of individual creditors, it is a Conditions ■ condition precedent to the concordat that all the '"^""^ preliminary steps in the bankruptcy must haye been duly gone through, and the opening of the bank- ruptcy formally fixed. "So person convicted of fraudulent bankruptcy can at any when conmrdat ,.,,« . 1 .11 J not allowed, time m his life, or m any subsequent bankruptcy, obtain the benefit of a concordat. Bv the law of 1838 (Art. 531 of the Code of Commerce), in case of •^ 1.1 1 1 ._ partnership. if a business partnership becomes bankrupt, any individua.1 member of the firm can obtain a. concordat in his own favour. 2. Mode of arranging the concordat : — A'meetitig of the creditors is called within three days Howarranged. after the limit fixed for the verification and attesta- tion of claims. The concordat must be passed by a majority in 'number Hequisite of the creditors, representing three-fourths of the ™i*3onty. h2 100 BANKRUPTCY. Appeal against concordat. Praudulent preference. Concordat amiable. amount of the li9,bilities. It must be signed at the meeting, otherwise it is void. By Art. 516 it is enacted, that if the proper formalities are not complied with, the Court will refuse to con- firm the concordat. Opposition to or appeal against the concordat must be entered within eight days after the meeting at which it was signed. After this date the Court proceeds to confirm it. When confirmed, it can qnly be annulled on the ground of fraud on the part of the bankrupt. Any private arrangement, either with the bankrupt himself or with third parties, made by a creditor in consideration of his voting for the concordat, ren- ders the creditor making it liable to imprisonment not exceeding one year, and to a fine not exceediuj^ 2,000 fs. (£80). 3. Concordat amiahle .- — When certain creditors agree to compromise with a debtor, the arrangement is called concordat amiable. This is a private arrangement, not subject to the formalities of the concordat, and consequently only binding on those creditors who enter into it. Explanation of niiwa. Realisation of estate. Resolutions. Of the UNIOIf in French Bankruptcies. The union is said to exist when the composition or con- cordat offered by the bankrupt is not accepted by his creditors. It is a legal consequence of the refusal to accept the com- position, and results from the position of the bankruptcy immediately on such refusal, by mere operation of law. A meeting of the creditors must be called immediately, for the creditors under the union have full power to realise the bankrupt's estate as they please, and to divide it among them- selves. All creditors are summoned to this meeting, whether secured or not. Thepoints to be settled are: (1) the appointment of new or continuation of the syndics already appointed ; (2) the grant of an allowance to the bankrupt ; (3) the cari-ying on of the business by the syndics : but as the sole object of the union is to realise the estate, it is necessary for a majority of three-fourths, both in number and amount, to pass a resolution to this effect. When these points have been settled, the meeting proceeds to disQuss the realisation of the debtor's estate. OF UNION IN FRENCH EANKBDPTCIES. Suits in relation to the estate are usually comprorLeVcomSiso 0/ J under these circumstances ; doubtful debts are comprdniils&^^'?i^- - iA / or sold ; the real property is sold within eight days from the'^-J^g^.b-^ date of the union, with the sanction of the juge-commissaire, under the supervision of the Court, with an upset price fixed.' If a creditor is dissatisfied with the sale, he can have it. re- opened by offering one-tenth more than the price obtained. Personal property belonging to the estate is sold by the syndics under the direction of the juge-commissaire. Before distributing the assets, the following deductions are Preference made: — charges upou the assets. 1. The expenses of the bankruptcy ; 2. The advances or allowance made to the bankrupt for himself and his family ; 3. The sums due to mortgaged and privileged creditors. The dividends on the distribution are then efiected as Distribution of speedily as possible. surplus. Contingent creditors, i. e., those whose clainis are doubtful, Provision for receive dividends with the rest, but are bound to give security ''°'^'"*^ claims for the restitution of their dividends if their claims are after- wards set aside. Mortgagees or creditors secured on real property are paid Mortgages. directly out of the sale of the realty. If the distribution of the personalty precede, they receive an equivalent dividend, but must give security for its restitution, in case their debt is f uUy paid up by the subsequent sale of the realty. Creditors holding a pledge receive no dividend unless they pioijges. have realised the value of their pledge and fotmd it insufficient to pay their claim in fuU; they then prove for the balance. When the distribution is ended the final proceedings follow, rinal The creditors are convened by the juge-commissaire. The Proceedings, syndic then renders his accounts, and the bankrupt should also be present. The chief object of the meeting is to grant the debtor a provisional discharge, by declaring his failure excusable. However, the excusabilite, if declared, does not now affect the position of the bankrupt in any legal Vay. The creditors, though the union is closed at this meeting, imme- diately recover their rights to sue on their individual debts ; and if the debtor subsequently acquire property, they may seize it. They cannot, however, proceed against him again in bankruptcy on their original claims. 102 BANKRUPTCT. Kinds of tanqiieronte. Only traders liable. Sankrupt cannot be twice prosecuted in the same bankruptcy. Who may prosecute. French trader in foreign countries. BANQUEROUTB. Definition: Condition of a bankrupt who has been guilty of wrong dealing or fraud {fautes ou dol). There are two kinds of bangiteroute considered by the law — simple and fraudulent. Banqueroute simple is said to exist when the bankrupt has committed serious mistakes, or has been guilty of imprudence, without intending to injure his creditors. Fraudulent bankruptcy, as the term implies, is when the bankrupt has acted fraudulently, with a view to cheat his creditors. Banqweroute presupposes faillite. It follows, therefore, that only those who can be made bankrupts, i.e., traders, can be prosecuted for hanqueroute. However, proceedings in bank- ruptcy which are criminal may be taken before the adjudica- tion of bankruptcy has been pronounced. A bankrupt acquitted on a charge of baTiqueroute simple may be prosecuted as a hanqueroutier frauduleuse for other acts. But a bankrupt who has been acquitted at the Gour d^ Assises ou a charge of hanqueroute simple, in reference to his failure, cannot be again criminally prosecuted for hanque- route sim,ple on any charge arising out of the same failure. The various acts which constitute hanqueroute sim,ple are considered by the law as one criminal act, and the maxim of law, that no person once legally acquitted can be tried again on the same charge, applies in this case. WHO MAY PROSECUTE— MODE OP PROSECUTION. Banqueroute being treated as a crime or an offence {crime ou deUt), the accused may be prosecuted by the syndics or by a creditor, or by the public prosecutor acting either ex officio, or on the information of any third party. As a rule, the public prosecutor conducts the case. The acceptance of a composition does not interfere with a prosecution by any of the persons entitled by law to prosecute. A French trader residing in a foreign country can be prosecuted in France for fraudulent bankruptcy, if the acts charged have been committed in France to the injury of French subjects. OF BANQUEROUTE SIMPLE, ITS MEANING. 103 The same applies to a foreign trader. Foreigners. Prosecutions in the case of hanqueroute simple must' bo Limitation of brought within three years, and in the case of hanqueroute prosecution. frauduleuse, within 10 years ; in both cases, from the date on which the act charged was committed, if that act is subsequent to the commencement of the bankruptcy ; and from the date of suspension of payments, if the act was committed prior to the bankruptcy. The offence of hanqueroute simple is dealt with by the Costs in Coprt of Police Correctionnelle ; the frauduleuse by the Cour J^^'"*" (TAssises. In the former case, if the accused is condemned, the costs In lanqmroute fall upon the Treasury; if acquitted, upon the person or •^™"''"'*""'" authority prosecuting. In the case of fraudulent, bankruptcy, the costs are always borne by the Treasury, unless an individual creditor or creditors have acted as parties civiles, in which case the costs in the event of an acquittal are borne by him. BAWQUEROUTE SIMPLE. There are two classes of acts which constitute this offence. When The first necessarily entails conviction, if proved ; the second inevitalDle. may result in conviction : To the former class belong : — 1. If the bankrupt's personal or household expenses are considered excessive ; 2. If he has lost large sums of money in simple specu- lation ; 3. If, to avoid bankruptcy, he has bought goods with the intention of reselling, them below the market price, or raised money by borrowing, accepting bills, or other ruinous method ; 4. If, after suspending payment, he has paid one creditor in preference to the rest. These offences necessarily entail conviction ; the judge, Discretion of rt . 1 i 1 J ■ J. 3ndge as to however, has discretion to inflict a light sentence, accoramg to penalties. the circumstances. It should be added that the payment to one creditor must be a payment which gives him an unfair preference to the prejudice of the rest. A payment to a privileged creditor does not fall within this category. The following acts may entail conviction : — • 1. If the bankrupt has entered into engagements on When con^^(^^ 104 BANKRUPTCY. behalf of another which are considered too serious in view of his position at the time ; , 2. If he is declared bankrupt a second time without having satisfied the conditions of a previous com- position ; 3. If, being married under the I'egriTOe dotal or separation de liens, he has not published his marriage settle- ment. 4. If, within three days from his suspension of payments, he does not make the statutory declaration at the office as required by Arts. 438 & 439 of the Code of Commerce. 5. If he has failed to appear before the syndics, or hi Court, without sufficient reason ; 6. If he has not kept proper books or taken stock regularly, or if his books are so carelessly kept as not to state his real position. Penalties. Punishment. — Imprisonment for not less than one month and not more than two years. Stockbrokers. Stockbrokers and brokers who become bankrupt are, ipso facto, treated as hangueroutiers, and are punished by a term of hard labour. Further, the sentence of the Court is advertised in the newspapers of the district which are appointed for this purpose by the Tribunal of Commerce. BANQUEROUTE PRAUDULEUSE. Fra-ud. Under this head are included all cases of fraud. No enumeration is made of them, but the Court and jm-y decide upon the facts of each case laid before them. As instances may be mentioned the concealment of busiuess books, the embezzle- ment or concealment of a portion of the assets, or fraudulent entries made in favour of the bankrupt, e. .-r.- / tankruptoy. m J^t-ance), demeurant a Pans, rue (name of street), No. de representer a la Faillite de Pierre Duval, ^ ^ Fabricant de Vemis. S) H ■g 2. En consequence requdrir toutes appositions, recon- c»- 03. naissances et levees de scelles, proceder a tons inventaires 2. EJ" et rdcoUements, et faire en precedant, tous dires, H, ®^ requisitions et reserves ; demander la nomination de tous g syndics definitifs, presenter toutes requites et faire tous m dires et observations ; faire verifier ma creanoe, en g affirmer la sincerity comme je I'aflBrme par ce present g pouvoir, verifier, admettre ou rejetertous titres produits S- par les autres creanciers, se faire rendre compte de I'^tat de la dite faillite, prendre part a toutes delibe- rations ; consentir toutes remises, accorder termes et d^lais ; traiter, transiger, composer a cet efEet, signer tous actes, tous concordats ou arrangements particuliers, s'y opposer mSme par les voies estraordinaires; me repre- 00 senter ou faire representer a toutes audiences du Tribunal de Commerce, soit en demandant, soit en defendant sur tous incidents, remettre ou retirer tous titres et pieces, toucher tout' dividende, en donner quittance, substituer tout ou partie des presentes ; et gen&alement faire tout ce qui sera necessaire, quoique non prevu en ces pre- sentes ; promettant I'avouer et lui tenir compte de ses debourses et honoraires. Fait a Londres, " Bon pour pouvoir," JOHN" SMITH, Le 30 Mai, 1880. Certifie le present Pouvoir sincere et veritable par le mandataire soussignc a Londres, le 114 BANKKUPl'CT. Translation of above procura- tion. TBAIfSLATIOIT. Procuration to represent a Creditor in a Bankruptcy. I, the undersigned John Smith, merchant, residing at 65, Comhill, London, hereby give power to Mr. (name of agent in France), residing at (name of street) Paris, to repre- sent me in the bankruptcy of Pierre Duval, varnish manufacturer, and in consequence demand the affixing of the seals and with- drawal thereof, to proceed to draw up all inventories, and proofs, to make in pro- ceeding all observations, requisitions, and reserves, demand the appointment of definitive trustees, present all petitions, and make all remarks and observations, obtaia the verification of my claim, affirm its sincerity as I affirm it by these presents, verify, admit, or reject all or any documents produced by other creditors, obtain information as to the position of the said bankruptcy, take part iu all deliberations, consent to adjournments, give time, treat, settle, set off for this purpose, sign all documents, compositions, or special arrangements, or oppose the same by all legal means, represent me, or cause me to be represented, at all hearings at the Tribunal of Commerce, either as applicant or defendant in all cases, hand in or withdraw all papers and documents, receive dividends, and give receipts for same, appoint a substitute in relation to all or part of these presents, and generally do all that may be necessary, even though not provided by these presents, promising to acknowledge the same, and to pay his fees and disbursements. Given at London, "Bon pour pouvoir," JOHN SMITH. 30th May, 1880. Practical instructions. Printed forms of the above pouvoir in French, ready stamped, can be obtained from the French Bankruptcy Court through any solicitor. The creditor must fill in his christian name and surname, and profession or business, and also the full name of the agent and that of the bankrupt. At the foot of EVIDENCIS TO PROVE CLAIMS — PEACTICAL INSTRUCTIONS. 115 tte power the name of the place in which the instrument is signed must be iuserted. Underneath this the words " Bon pour pouvoir " must be written; and lastly, the full signa- ture of the creditor and the date. The printed forms are nof necessarily essential. Creditors can copy out the French form as above on plain paper, taking care to observe the instructions as to signature, and forward same to their agent in France, where it can be subsequently stamped. EVIDENCE. The agent should now proceed to put in evidence estab- Documents lishing the claim, obtain verification thereof, and attest its ai?^e)it for sincerity. For this purpose the creditor must forward to him * "reaitor. the above procuration, together with the documents upon which the claim is based. A statement in the regulated form is then made out and deposited, with the evidence, with the syndic, or with the proper ofl3.cial, at the Tribunal of Commerce, who delivers a receipt for the same. If the claim is in respect of a dishonoured bill of exchange, Dishonoured the instrument must be lodged together with the protest and account of expenses of dishonour, if any. If the claim is in respect of goods sold and delivered, or in Goods sola. respect of a general trade account, a detailed statement must be made out from the books of the creditor and lodged, and such statement must be signed at the foot as follows : — " Certifie sincere et veritable." (Signature of Creditor.) The various claims are examined and verified by the syndic. Procedure on and if found correct are admitted. If contested by the bank- rupt, the creditors, or the syndic, the claim is referred to the Tribunal of Commerce and there adjudicated upon, subject to appeal. i2 OF PRIVATE PAKTNERSHIPS AKD OF LIMITED LIABILITi^ COMPANIES IN FKANCE. INTBODUCTION. Defluition. — Essentials of the Contract. A partnership (Societe) is a contract by means of wMcli two Definition. or more persons agree to contribute something to a common fund, in order to share the profits arising therefrom. This is the general definition. The essentials of the contract of partnership are : — 1. Each one of the persons contracting must contribute some- The apport or thing to the partnership. — The contribution thus made may be of money, stock, plant, real property, or even of skiU. and labour. The only essential of the- contribution is that it should have a money value ; e. g., it would be possible for one member of a partnership to contribute nothing but the credit which he enjoys in the commercial world ; but this, as being a means of obtaining money for the purposes of the partnership, would be a valuable contribution. 2. Hach party contracting must have a common interest. — The nndertak- The meaning of this is that the subject-matter of a partnership joint enterprise, must be one shared in common by each partner. There is no partnership, for instance, when two persons agree that one of them shall use a certain sum of money for the purposes of his own business for three years, and the other then use the same sum for the purposes of his business for the same time. In 118 PAETNEESHIPS AND COMPANIES. other words, the partnership undertaking must be a joint enterprise. Profits the 3. The ohjed of the pcM-tnership WMst he the mdkmg of object. profits. — E. g., a mutual insurance agreement is not a partner- ship ; it is merely a guarantee against the losses of its members, not a means for any one of them to make profit. Profits must be 4. The profits made must he shared hetween the members of shared. ^^^ paHnershvp.—Ihe proportion may be arranged according to the wishes of the parties ; but there must be a proportion. 5. The ohject of the pwrinership must not he imUvwful. General Division. Partnerships are either civil or commercial. Test of civU Perhaps the best test by which to distinguish the charac- partnersMp. teristic of a partnership is to consider its object and its business. Acts of trade are characteristic of a commercial partnership; and to test the nature of a partnership more accurately, it will be found that " acts of trade " are enumerated in the Code of Commerce. (Arts. 632, 633.) It has been decided by the Court of Appeal, that the declaration of the parties joining in an undertaking cannot of itself give to that undertaking the nature of a commercial partnership. Chief points of The following important distinctions exist between civil difference , . , , t ■ between civil and commercial partnerships : — partnersWps?'^ 1- ^o prescribed forms are necessary for a civil partner- ship : special forms must be observed in forming a commercial partnership. 2. In civil partnerships, the liability of the partners towards third parties is limited by the power granted to the managers or directors of the partner- ship ; the managers have fuller powers, implied by the law, in commercial partnerships. 3. The time of legal prescription is longer in civil than in commercial partnerships. (Code Com. 64.) 4. A civil partnership, if insolvent, is said to be en de- confiture : a commercial partnership that stops pay- ment must go through the regime de lafailUte (i. e., bankruptcy resulting in imion or concordat). 5. Disputes between members of a civil partnership are decided by the ordinary Courts ; those between members of a commercial partnership by the Tribunals of Commerce. CIVIL AND COMMERCIAL PAETNEESHIPS. 119 Commercial or business partnerships are governed by the Prmoiples of agreement made between the parties and by commercial law. ingpartaerahip" There are also some principles , of civil law which concern these partnerships, which should be dealt with at starting. 1. Unless otherwise specially provided by the agree- Formation of ment, the partnership begias as soon as the con- "'^ contract, tract is formed. 2. Each partner is a debtor to the partnership for aU Liability of that he has contracted to contribute to it. If the FlS^t omeir contribution is of a certain definite thing, which is "-PPort. lost without any default of the partner who was to contribute it, no liability attaches to him. It is otherwise if, for instance, the contribution was to be a sum of money — ^the loss of that does not exonerate the partner. But if the article to be con- tributed is one of which the value naturally becomes depreciated by keeping, the loss falls upon the partnership, not upon the contributor. It may be noted, that when a partner has agreed to contribute Interest on a definate sum of money, interest upon that sum becomes "■^°''*' due from him to the partnership immediately, whereas, in ordinary cases of debt, interest only begins to run from the date of the commencement of legal proceedings. 3. If a partner appropriates even temporarily part of the Appropriation partnership funds for his own profit, he is bound to fn^o^.'''™^ ^ restore the amount withdrawn with interest from the time of withdrawal. He would also be liable to an action for damages at the suit of his partners if the partnership sustained any loss or missed any bargain by reason of his conduct in withdrawing a part of the funds. 4. Each partner has a claim against the partnership for Eights of part- all sums of money expended by him in the partner- i^ers «<«•«. ship business; for obligations incurred hond fide for the business ; and for compensation for any risks necessarily incurred by him on behalf of the business. 6 If no proportionate share of profits and losses has Eule of law as , T , ii 1 -u to profits in been assigned to each partner, the law prescribes default of agree- that each shall receive profits proportioned to his ™^°'- contribution, and contribute for losses in the same manner. If one member has contributed his skill 120 PAETNEESHIPS AND COMPANIES. Snle as to profits. and labour only, his share is reckoned equivalent to that of the partner who contributed the smallest amount to the common fund. However, the pro- portion of profits can be arranged between the partners according to their own wishes. A stipula- tion exonerating from liability from losses any member will be treated as illegal and void, except in the case of a member who contributes only his skiU and labour. DIVISION OF SOCIETES. The four kiads of conimercial partnerships. There are four kinds of partnerships in French law : — 1. The Societe en nmn collectif. 2. The Societe en commandite simple. 3. The Societe en cormnandite par actions. 4. Societes anonymes. The division in the Code (Article 19) is : — 1. En nom, collectif. '2. En commandite. 3. Anonyms. A fourth division is subsequently mentioned, the Asso- ciation comm,erciale en participation (Art. 47). Under this division it would be necessary to distinguish the Societe en commandite simple from the en commandite par actions ; and the Societe a capital variable might be added, which, however, is usually a civil, and not a commercial partnership. The law of May 23rd, 1863, which established limited liability partnerships (or Companies), was repealed by the law of July 24th, 1867. The first division, with which we now proceed to deal, is the Private part- nership firm. SOCIETE EN HOM COLLECTIP. This form of partnership wiU. be considered under the following heads : — 1. The name of the firm (raison sociale). 2. Distinctive characteristics of this Societe. 3. Liabilities of the members and of the firm towards third parties. 4. Domicil of the Societe. 6. Legal proceedings. SOCIlfiT^ EN KOM COLLECTIF. 121 ' ' Definition. The Societe en nom collectif is a partnership formed by two The name or or more persons for the purpose of trading as a firm. style of tbeflrm The raison sociale is the name of the partnership firm, the name by which the partnership is known to the rest of the world. This name is used by the firm in all liabilities incurred by it, the name in which it is sued, &c. For aU purposes of the partnership this corporate existence is essential. Durand Freres, or Durand Freres et Gompagnie, is an instance. There is no need to enumerate all the members who actually compose the firm. StiU, the names used as the style of a firm must be those What names of persons actually members of the firm. If other names are "'"'^ used without the sanction of the persons to whom they belong, this would be a fraud on the public. But if a person, not a member, knowingly allows his name to be thus used, he wUl be held bound jointly and severally with the real partners for all liabilities in favour of parties contracting with the firm. The real characteristic of the Societe en nom collectif, as Joint and distinguished from other partnerships, is what is called in iiaLmty of the French law the solidarite of the members, i.e., each member partners. has a joint and several liability towards all creditors of the firm, and a creditor can sue each individual member for the whole of his debt. That this Habilitv of the members distinguishes the Societe Distinction en nom collectif irora other forms of partnership may be seen en mm collectif in the fact that, in a Societe en commandite the members are ^^^andife. severally liable only to the extent of their contributions (thus resembling a limited liability concern) ; and in the Societe anonyme members are liable to the extent of their interest only. The Societe en nom collectif may therefore be defined more Further ,. ,iTinii defimtion. accurately than before, as " a partnership established between two or more persons jointly and severally liable for the debts of the business, having for its object the carrying on of trade as a firm." It is quite possible for a partner, when contracting with a Liability ,„ „ ... , ,- J- •■.„ towards third third party, to bind himseU personally without bmdmg ins parties. firm, if the third party agrees to accept his responsibility alone. But it is the better opinion that no such stipulation, doing away with the joint and several liability of the members, can be inserted in the partnership deed. 122 PAETNEESHIPS AND COMPANIES. Solidariie is, in short, of the essence of the contraot in this form of partnership. This special point, however, has not, we believe, been actually decided in practice by any Court, and is not one which is likely to arise. To continue : In order to bind the partners thus in any contract, the engagement must have been entered into — Who can (1.) By persons who have a right to contiract for the em^rac or partnership. These may be members of the firm who have been entrusted with the management of the firm's business. They are called aasoaies gerants. Their power is given to them either by a clause in the partnership contract — in which case it can only be revoked on sonae reasonable ground ; or by an arrangement after the contract has been made — -in which case it is, like aU powers, liable to be revoked at any time. If no such arrangement is made, each member is considered as the agent of the rest for the purposes of the partnership. (2.) The contract must be entered into as and on behalf of the firm. Signature of or It is, of course, usual to sign a contraot in the name of the firm. firm {raison sociale), but this formula is not absolutely binding, e.g., a partner contracting " as well for himseK as for his co- partners," will bind the firm, and it may often happen that the terms actually used by the contracting partner are more exphcit in imposing an obUgation on his co-partners than the firm name would be. Power of one It is important to notice that the partner who has entrusted the rest. to him the right to sign the name of the firm to any documents can bind his co-partners by such signature, even if he wrong- fully use it for purposes of his own business and not for the purposes of the firm. The Court of Appeal has even decided that such a partner, appointed to manage the business of the firm, can use the firm's signature to discharge his personal debts to a third party. Of course he remains personally Hable to his co-partners, but their duty, said the Court, was to choose a more honest man as their manager. In spite of tKis decision, which lays down in effect that Art. 22 of the Code of Commerce is absolute in its meaning, distinguished writers still maintain that, unless the manager so signing does contract for the purposes of the firm, he alone wiH be responsible. In English law the contract must, broadly speaking, be within the scope of the partnership business, and it is this principle which is defended by eminent French jurists as against the decision above quoted. However, if the partnership has pro- POWERS AND OBLIGATIONS OP PRIVATE PARTNERS. 123 fited by tte transaction, the third party or creditor will, in any case, have his remedy against the firm. If the manager signs for the firm the ordinary right of action vests in the creditor. If the signature is merely in the manager's own name, the Indirect action. action is called iadirect, i.e., the creditor would have an action in the name of the partner, with whom he personally con- tracted, against his co-partners. Lastly, the power to sign and contract for the firm may be Froeuration. entrusted by a special power of attorney {procuration) to a stranger or person not a member. His signature must in all cases be preceded by the words par procuration. If this is omitted, the person signing might make himself personally liable on the contract. The next question is : — What acts can be done by the managing partner acting for the rest ? As a general answer, it is obvious that, unless specially Power of tha limited, the manager has full power to perform all acts relating ^artnS"^ to matters of trade which are necessary to carry out the objects for which the partnership was formed. Thus, he can buy and seU goods, make and receive payments, draw, accept and iudorse biUs of exchange, &c. As a general rule, the manager cannot deal with real pro- RuLe as to perty {vnvmeubles) which belongs to the partnership, even if his ^^^ ^' dealing with it would be profitable to the firm. There is a difference of opinion as to the power of a manager As to to compromise or arrange any legal or other dispute between <'°™P™™^6. the members of the firm and third parties. In all cases it would be safe for the manager to consult his partners, and to obtain their special sanction before taking any such proceeding. The practical rule then for the assodes gerants is chiefly, Consent of that in matters of doubt they should always obtain the consent adTOaWe^ of their co-partners before acting on their own responsibility. The domicU of a firm is in the place where its principal Domioil of the place of business is situated, and where its affairs are carried on. The Court of the district in which the principal house or head ofiice is situated is the Court before which the firm ought to be sued. Actions against the firm must be brought in the name of Actions against . , ~, . the flrm ; the firm. The writ, or notice of it, is served at the omce or service of writ. the firm ; if it has no place of business, then upon one of the 124 PAETNEESHIPS AND COMPAKIES. partners at his residence. Notice, or a single copy of the writ, mentioning the defendants under the name and style of then- firm, is suflB.cient. It is not necessary to enumerate aU the individual members of the firm, which in some cases a plaiutifE might be unable to do. Origin of the SocUt6 en commandite }le. Definition. II.— SOCIETE EN COMMANDITE SIMPLE. This form of partnership, the rules of which were defined, and the name established by the Ordonnance of 1673, is of very ancient origin, and can be traced back to the middle ages. Its characteristics are best illustrated by the old practice. A person with money or goods entrusted them to a merchant or master of a vessel, in order that the latter might effect pur- chases or sales on their joint accounts, a proportion of the profits being given to the active partner, the merchant, or ship's captain, &c., and the rest being reserved to the person who may be called the " capitalist," or " dormant partner " in the venture. The latter's risk and liability only extended to the amount of money or value of the goods furnished by him. Definition. — The Bociete en commandite is a partnership formed between one or more persons who are jointly and severally liable to aU. creditors on the partnership contracts, and one or more persons who supply money {i.e., capita- lists) whose liability only extends to the amount of their contri- bution. In this partnership there are two distinct elements — the active members, with unlimited liability attaching to them ; tZm^fdUair^^ ^^^ ^^^ inactive members, whose liability is limited. E.g., A. and B. are the active members. To them C. and D. advance a sum of 10,000 fs. each. C. and D. contract never to interfere with the management of the business, and are not to be responsible for a greater amount than the 10,000 fs. which each furnishes. A. and B. are the active members, who engage to carry on the undertaking, and do aU the work of the partnership business, taking on themselves an unlimited liability in respect of the creditors of the firm. These active members of the partnership are called com- mandites* or com-plementaires. Active and tlormant memterSj * See the contract iiui/ndatmn in Roman law.- tit. 26. -Just. Instit. lib. iii. PAETNEESHIP EN COMMANDITE SIMPLE. 125 The dormant members who supply the funds are called commaiidltaires. It must be noted that the cominanditaires cannot, as in the The apport of case of a Societe en nom eolleciif, supply as their contribution membersr™ their credit, or -work and labour. It is of the essence of this partnership that the commanditairea have nothing whatever to do with its management. Money, goods, real property, or the like, are contributed by the commanditaires. The simplest form of this partnership is between two Combination of persons. A., active and responsible; B., dormant, and with the preceding. ^ limited liability. If there are several commandites, or active members, there is a combination of this partnership with the one previously dealt with. As between themselves, the active members form a Societe en nom eolleciif, being jointly and severally liable on the firm's contracts and engagements ; while the limited liability of the commcmditaires remains unaltered, or if there are several of them, each remains liable for the amount which he furnishes to the partnership, and for no more. Thus the Societe en comtnandite ordinaire is distinguished Poiiit of from the en commandite par actions simply by the fact that the capital of the latter is divided into shares, that of the former is not. This Bartnership has, in the eye of the law, a corporate Corporate _^ \ ,,i_i, jui. existence of tlie existence. When the contract, e.g., has been made between partnership. A. and B. (A. active, B. dormant), A. cannot engage in the business on his own account, but on account of the partner- ship only. This partnership is also carried on under the name and style of a firm. The name can only include the active member, whose liability is unlimited ; otherwise, the public would be deceived, if the commanditaires, whose liabihty is limited, were permitted to figure as active members. In fact, if a member aUows his name to be used for the style of the firm, he wiU be treated as jointly and severally liable in respect of third parties and creditors. The commanditaires are treated by the law as partners, and Resute rf fto not as simple lenders, or as persons who have advanced money, commanditams^ The result of this is that — lenders (1.) All disputes between the active and dormant part- ° "^P' '^ • ners must be settled by the Tribunal of Commerce and not by the Civil Courts. (2.) If a coinmanditaire stipulates for the withdrawal of 126 PARTNERSHIPS AND COMPANIES. the amount which he has advanced, the title of any creditors of the partnership is superior to his title. The creditors have a lien upon the money invested by him, and until they are satisfied he cannot with- draw it. Power of the The active members of this partnership can, at any time, to com^l'pay" compel the dormant members to contribute in full the amount ^^^^iOie T^v'hich they have undertaken to furnish. It is questioned whether creditors having claims against the partnership can compel the commanditaires to furnish their quota, if unpaid. So long as the active members continue to carry on the busi- ness of the firm in a proper manner, meeting all their engage- ments, &c., the creditors can have no claim against the commanditaires. Kightsof But a question arises, in the event of the partnership creditorsincase , ■ ■ i j. j j- j. t_ j.i. j.t_ of insolvency, becommg msolvent and suspending payment, whether the creditors can, by a direct action, compel the cormnanditai/res who have not completed their contribution to pay the deficiency, or whether the creditors have only an indirect action, i.e., must sue in the name of the active members, taking all the rights of the latter as against the commanditaires. Practice of the The authorities On this point, both text writers and Courts, of insolvency, ^^c divided. But the later decisions confirm the opinion that the creditors can proceed directly against the commanditai/res for the balance (if any) of their contribution. It may there- fore be laid down that the practice of the Courts at the present day is to give the creditors the right of a direct action in such cases. Necessity for It may be remarked that a real distinction is to be drawn the distinction , . ^j-o? ijetween direct between these two dmerent modes of action. If the action is action. ^° direct, the comtnanditaire cannot set off or raise, as against the partnership creditors, any counterclaim which he could raise against the active members. If the creditor merely stands in the place of the active members, he takes their place subject to all rights and claims which the commanditaire would have against them. The later decisions are therefore more favour- able to the position of the creditors, and certainly tend to lessen the possibility of fraud and collusion between active and dormant members of the partnership, while in most cases no special hardship would fall on the commanditaire. Analogy of It may be added that the relation between commanditaires piincipal and , , . agent. and commandites corresponds to that of principal and a^ent PARTNERSHIP EN COMMANDITE SIMPLE. 127 (mandant et tnarvdataire). The agent binds his principal directly by his acts ; it would therefore foUow that a right to proceed directly agaiast the commanditaires ought, by analogy, to vest in the creditors of the partnership. Next, it must be remarked that the commanditaires, though Traders and m^embers of a trading partnership, are not themselves traders. On this poiut most authorities agree. But a question arises, does the non-trader who promises to jurisdiction ot advance money for this form of partnership thereby perform Co™ts. an act of trade which would render him subject to the juris- diction of the Tribunal of Com.merce ? It is maiatained on the one hand, that his advance is of a peculiar kind and does not bind him as a trader ; that this liability undertaken by the commanditaire is not specified in Arts. 632 and 633 of the Code of Commerce, and that the object of all the legislation on the subject has been to allow non-traders to facilitate commerce without actually becoming traders — ^in fact many persons, whose position forbids them to trade, may invest their capital in this manner. However, the contrary opinion seems preferable and better Eeasons in established. The decisions are indeed conflicting, but they treaUng'the belong to an early period of the present century. The Code ^"^^^^t expresslv savs that commanditaires are partners ; they advance '"•'e as an act r Mt */ i- of commerce, capital, but they have the character of partners. Further, to support the former opinion, it must be shown that the com- manditaire is a simple lender of money. But a loan can only be made at a fixed rate of interest, or at all events the rate, which must not be exceeded, is fixed by law ; the commanditaire has a right to profits, which may enormously exceed the ordi- nary rate of interest on money lent. Secondly, the person lending acquires the rights of a creditor plus a right to interest ; the commanditaire, receiving a proportion of profits, is a joint- owner of the partnership property if the contract is dis- DifEerence solved. Thirdly, the lender has a right to have his capital ^^«^ ^^^ ^ replaced, and in case of insolvency, can prove with the rest of loan, the creditors : the commanditaire risks losing his contribution in payment of the partnership debts, and cannot prove against the firm. Again, the lender merely takes his interest when due, and receives back his capital according to agreement : the commanditaire is summoned to the meetings of the firm, and . ■ has a voice in the settlement of the dividend, &c. All the liabilities and rights of the commanditaire make him a genuine 128 PAETNEESHIPS ASD COMPANIES. Creditors cannot claim dividends .distributed prior to insolvency. Commandiiaire must not act in the business, but may be an emploi/£ija. it ; or give advice, &c. partner, and though his undertaking is not incljided in Arts. 632 and 633 of the Code of Commerce, there can hardly be a doubt that it enters into the spirit of that enactment. On the whole then, the undertaking to furnish capital for a commercial enterprise in this form of partnership renders the person so imdertaking subject to the jurisdiction of the Courts of Commerce. It has further been questioned, whether the creditors of a partnership of this kind can claim the dividends, or any part of the dividends, received by a commanditaire in the event of the insolvency of the firm. This question is answered in the negative. The law expressly limits the liability of the com- manditaire to the amount of the capital advanced by him to the firm. And further, if a creditor, whose claim had its origin in a transaction which took place in the seventh year of the existence of the firm, could demand from the partners the profits of the previous six years, he would thus be granted a lien on profits which were made before the existence of his rights — a violation of the commonest principles of the law. The commanditaires must remain completely outside the management of the partnership business. Their liability is limited : if they were allowed to act as managers, any person deahng with them would be liable to be deceived, believing that he was contracting with a person whose liability was unlimited, or was, at any rate, joint and several with his co-partners. And the prohibition to the commanditaires extends, not merely to acts done by him on behalf of the firm in his own name, but also to prevent him acting as manager par procuration ; for this, too, woTdd expose the public to risk of deceit in dealing with the firm. On the other hand, there is nothing to prevent the com,' manditaire from selling to the firm or buying from it, as he may with any other house of business. He may also be engaged as an employe in the firm ; provided always that he is not, by reason of his employment, put forward to third parties, who contract with the firm, as a responsible partner. A com- manditaire might thus be a clerk, book-keeper, Ac, ia the firm to which he had advanced a contribution, according to this form of partnership. This was settled by the law of May 6th, 1863, by which it was also enacted that the partner who was a commanditaire might assist the business of the firm by giving his advice. soci£t£ en commandite par actions. 129 examining the books, and exercising a general supervision over the internal affairs of the firm. The essential point to be always observed is, that the commanditawe must not be brought into relation with the outside public in such a way as to mislead them with reference to his real position. Incidentally, it may be added that the amounts of the AmountB of contributions are published on the formation of the partner- p^ushed! ship, but the names of the contributors are unknown to the outside world. If the commanditaire interfered personally in any dealings Liability ot with persons who contracted or had business with the firm, he ^ilo'^cta as" was, by the Code of Commerce, held liable for all the debts S"'""*- -and undertakings of the partnership. This was, as it were, a penalty for his interference, and was modified by the law of 1863. As it now stands, the first provision is to forbid all active interference on the part of the commanditaire. If he does interfere, and come into relation with third parties, he will be judicially declared liable for all debts and engagements incurred and entered into in reference to the acts done by him as part manager. If these acts are numerous and of import- ance, the Courts can declare him jointly and severally bound with the rest of the partners for all the partnership debts and liabilities. Further, he will be treated as a trader, the importance of which is that the creditors of the firm can proceed against him in bankruptcy (faillite), and that other obligations, e.g., the duty of keeping strict accounts, and of publishing his marriage settlement, wiU be imposed upon him. The whole of this part of the law is intended to protect Liability of strangers who contract with the firm. Therefore, if a com- ™f ™ manditaire is held jointly and severally liable with the active partner, he has a remedy by action against the latter for any surplus that he may have to pay over and above the contri- bution which he guaranteed. 3.— SOCIETE EN COMMANDITE PAR ACTIONS. This second division of the Societes en commandite has ^i' com»m«d»i considerable similarity with the first. The managers and managing members are jointly and severally liable for the engagements of the firm, and the commanditai/res only liable to the extent of their interest in the concern. But it differs in the point that its capital is mostly held in shares by the CapiW dmSei commanditaires ; and the individual shares are of an uniform 130 PARTNERSHIPS AND COMPANIES. Shares trans- ferable. Nominative Bhares, Shares to bearer. Modes of transfer. Regnlations of the Law of 1807. value, although one member may hold more in number than another. Further, the chief distinctive feature of this Societe is that it marks the point of departure leading from partner- ships to Companies. The relations, inter se, of the members belong to the characteristics of Companies rather than of ordinary partnerships. ' As distinct from the interet, or interest held by a com- manditawe in a Societe en commandite sim/ple, the action or share is an assignable property. The holder is always at liberty to sell or transfer his share to a third person not a member, and thus to substitute the latter in his place, and to invest him with his position and rights. The interet held by a commanditaire in the other kind of Societe is not transferable. The Code recognises this assignment of shares, and specially jjrovides for the manner in which it is to be efEected ; and other legislation, such as the revenue laws of 1796, 1850, and 1857, recognises the same. The interet then may be described as a transferable share. These shares are either " nominative," or " to bearer." Nominative shares are those which are made out in the name of the person who is to hold them, and have his name expressed on them. Shares to bearer substitute for the name of the holder the words au porteur, and prima facie, the person holding them is presumed to be the owner. Shares of the former kind are transferred by a declaration of transfer entered on the Company's register, and signed by the transferor or his authorised agent. The other shares pass, like ordinary chattels, by simple delivery, and possession is primti facie evidence of title, according to the maxim of the Civil Code.* It may be remarked that this latter form of shares is rarely to be met with, but it is not prohibited by the Code. The first division of the law of July 24th, 1867, deals witli this kind of Societe. In substance, the regulations are as follows : — • 1. Limitation of the value of the shares ; 2. Restrictions on the issue of shares to bearer; 3. The whole capital must be subscribed for, and each shareholder must pay up a certain proportion ; 4. The liability of shareholders and their assigns, the * Art. 2,279. SOCIjfiT^ EN COMMANDITE PAE ACTIONS. 131 appointment of a committee of inspection, restric- tions on the mode of transfer of shares, and other points. The omission to observe any of these regulations renders Penalties for the Societe null and void; and thus a serious responsibility is "nce?^^'''^^^' imposed iipon the managers and upon the members of the committee of inspection, who must be careful to see that they have been strictly followed. We now proceed to deal with these points in detail. Value of shares No shares can be issued of a less nominal value than 100 fs., if the capital of the Societe does not exceed 200,000 fs. ; nor less than 500 fs., if the capital is above that amount. Coupons of shares are subject to the same regulation. It Coupons, is obvious that, without this, the law would have been evaded with impunity. The entire capital of the Company must be subscribed Subscription of hef ore the Company can be finally established. This provision °*P''^'- is made in order to serve as a guarantee that the undertaking is at least considered genuine by the shareholders. Each shareholder is bound to pay up one-fourth of the One-fourtli to value of the shares for which he has subscribed. ^ ^°'' "''' It is not enough that one-fourth of the whole capital should How reckonea. be paid up, e.g., by some members paying more and others less than one-fourth; the terms of the law must be strictly complied with in the case of each individual member. Before any subscriptions are invited, the rules or Articles Articles of ■of Association are drawn up in the form of a deed, either an ^^°<="'''™- acte authentique or sous seings jprives. If in the latter form, two originals suffice, whatever be the number of the members •of the Societe. After the subscriptions have been taken up and one-fourth Declaration to of the value of the shares paid by the subscribers, the manager manage^r. ^ ^* is bound to make a statutory declaration to that effect in a notarial deed, and to ann^ex to it — 1. A list of the subscribers. 2. The position of the payments already made. 3. One of the ■deeds containing the Articles of Association, if soii,s seings frive ; or a copy of the deed, if notarial, and if acknowledged by a notary other than the one who takes the statutory decla- ration. When the notary who draws the deed also witnesses or "takes the declaration, the deed need not be annexed. The other original of the deed, if sous seings prives, is •deposited at the head office of the Company. E 2 132 PAETNERSHIPS AND COMPANIES. Conversion of With regard to the conversion of shares into shares payable to bearer, the law of 1867 enacts that this conversion can be efEected by a special clanse to that effect in the original Articles of Association, after one-half has been fully paid up ; a resolution agreeing to and authorising this conversion must be passed at a general meeting. Liability of There is a further enactment, which provides that, whether owners of con- . verted shares, these shares remain nominative after this resolution, or are converted into shares to bearer, the original owners who have assigned their shares, and the persons to whom they assigned them before one-half was paid up, remain liable to be called upon for payment in f uU of the balance at any time during a period of two years from the date of the resolution. With reference to this clause, there are three positions to consider : — Various alter- 1. Jf tJ^e rules permit the conversion of shares to those " to bearer," after one-half has been paid up, and a general meeting has passed a resolution allowing it, the rights and obligations differ accordingly as the assignor has assigned his shares before or after the payment of one-half of their value. If before, both he and the assignee are held liable for the full balance during the period above hmited. If after, the assignor is free from liability as soon as the assignment is complete ; and further, if his assignee transfers the share again, his liability thereupon ceases. 2. The rules may permit the conversion, but the general meeting may refuse to sanction it. The shares then remain in the name of the original subscriber ; and his liability to calls, either for the whole amount or for the balance in full, attaches to him for a period of two years from the date of the general meeting which refused to sanction this conversion. The same liability attaches to the assignee. 3. If the rules do not permit the conversion, and conse- quently the meeting cannot authorise it, the shares remain nominative, and the same liability- to calls as in (2) remains. Shares on which Further, shares on which one-fourth has not been paid np not been paid are declared by the law to be non-negotiable, i. c, not trausfer- *P- able by any of the ordinary commercial methods, for instance. SOClMi EN COMMANDITE PAIR ACTIONS. 133 by indorsement, or by transfer on the Company's register. At the same time they can pass by any assignment, snch as a ™- and they will have to make good any loss occasioned by their conduct jointly and severally. An agent to represent shareholders in any actions may be Agent to appointed by persons representing one-twentieth of the capital sharehrtders. of the Company. Penalties are attached to the violation of essential regula- Penalties. tions, as in the case of Societes en commandite par anions. Penalties are also inflicted for illegal issue or dealing in shares; fraudulent contrivances by which a fictitious majority is obtained at general meetings ; making up of sham subscrip- tions or payments, and wilful publication of fictitious subscrip- tions or payments, or other false statements made for the purpose of obtaining subscriptions ; false statements published as to persons who are to be connected with the Company ; distribution of fictitious dividends by the shareholders. The action for recovery of dividends against the share- holders, when the Company becomes insolvent, is governed by the same principles as in the case of Societes en coimnandite par actions. Soei6t6s a Capital variable. This special form of Societe may be defined as one the Articles of which provide that the capital may be further increased by additional payments by the members, or by the issue of fresh shares to new members. Complete freedom in the matter of increasing the capital is allowed to such Societes. The members must be left free to withdraw from the Company, and to take either all or a part of their contributions. This Societe is bound to adopt the form of one of the other special rales iu kinds of Bodete, being, in addition, subject to special rules as ^capital vlriaUr. foUoWS : — The capital must not be raised above 200,000 fs. at 142 PAETNBESHIPS AND COMPANIES. starting; but each year an addition of the same amount may be made. The shares must be nominative, not to bearer. The shares may be of the value of 50 fs. The transfer or negotiability of shares is regulated by the constitution of the Societe, in accordance with the regulations of Art. 50 of the Law of 1867. One-tenth only of the shares need be paid up in these Societes a capital variable. The total capital must not fall below one-tenth of that with which it started. Each member may retire when he thinks fit. This is usually qualified to some extent by the rules of the Societe. Members may be expelled by a general meeting. Members when they retire or are expelled, retain for five years their liability on contracts, &c., entered into while they were members. These Societes, which are usually formed by artisans in want of an investment for their naoney in times of crisis, are mostly civil, not commercial Societes. EVIDENCE. Evidence must Oral evidence of the existence and formation, &o., of Societes, is not allowed. All proofs, to be valid, must be in writing. Deeds sous seings prives, or else notarial deeds, are necessary for all alike. Rules in the case Jf the deed of partnership is sous seinqs vrives, the rule ■oi deeds sous , ^ *■ seiugsprivis. IS — 1. In the case of Societes en now, collectif, the deed of partnership must be executed in as many originals as there are beneficially-interested pa;rties. 2. It is the better opinion that the same necessity exists in the case of Societes en commandite simple. 3. In the ease of Societes en commandite par actions, and of Societes anonymes, the law expressly enacts that two duplicates, one annexed to the notarial declaration of the subscription of the capital, and the other deposited at the head office of the association, are sufficient for all purposes. Siipplementary j^ all cases the deed or Articles of Association speak for evidence maa- ^ missible. themselves, and their evidence cannot be supple- mented or varied by oral evidence. CONSTITUTION OF PAETNERSHIPS AND COMPANIES. 143 PUBLICATION OF NOTICES. Before the expiration of the month in which any corameroial Deposit of desda association is formed, a dupUcate of the deed constituting it, if rB^ciatfon?'' sous seings prives, or a copy, if notarial, is deposited at the office of the justice of the peace and Tribunal of Commerce for the district within which the association is established. If the Societe has several houses of business in different districts, the deposit must be made at the corresponding offices in each. In the case of a Societe en commandite par actions, there Exhibits, must be annexed to the deed — 1. A copy of the notarial deed, certifying the subscrip- tion and payment of one-fourth of the shares (one- tenth, a capital variable). 2. A certified copy of the resolution of the general meeting relative to the unification and approval of the apports and privileges granted. In the case of a Societe anonyme, besides the above docu- ments, there must be deposited — 3. A certified copy of the resolution of the first general meeting called to verify the accuracy of the directors' declaration, -which states the subscription of the whole of the capital and the payments made. 4. A full list of the subscribers, with their christian and surnames, their residence, occupation, and the number of shares held by each. Further, before the expiration of the same period, an Advertise- ^bstract of the deed constituting the Societe, and of the docu- ments to be annexed thereto, must be advertised in one of the newspapers appointed to receive such advertisements. This insertion in the newspapers should be proved by a How proved. copy of the same, certified by the printer, legalised by the mayor, and registered within three months from its publication, The same deposit and publication are required — 1. On any change in the Articles of Association ; other cases 2. If the Societe is continued beyond the period fixed foi' foi-malities are • , J .. required, its duration; 3. If dissolved before that period, stating also how it is to be wound up ; 4. On any change or withdrawal of the members ; 6. On any change in the name of the firm ; 1.44 PARTNERSHIPS AND COMPANIES. 6. Any change of Socieies en commandite par actions, existing before the Law of 1867, into Societes anonymes ; change of Societes anonymes existing at the date of that law into Societes regulated according to its provisions ; change of limited liability Com- panies into Societes anonym,es; 7. If a resolution for winding up, after loss of three- fourths of the capital, is passed by a general meeting of a Societe anonyme ; 8. The increase of capital in a Societe a capital variahlc. WINDING-UP OF SOCIETES. ?»ciJ?JbToijera^ -^ partnership or Company may be dissolved or put an end tion of law. to either by operation of law or by way of action. Under the former division are arranged — The expiration of the time for which the contract was made. When this period is reached, the Societe is, ipso facto, at an end, whether its object has or has not been attained. Similarly, when the business for which the contract was made has been completed. Extinction of the subject-matter of the Societe. This may be either — 1. By loss of that for which the Societe was formed. 2. By exhaustion of the whole capital. 3. By loss of that which one of the members contributed as his apport. The death of one of the partners. This does not apply to Societes in which the capital, not the persons, forms the essence of the contract, e.g., the Societe anonyme. Death o£ active In the case of a Societe en commandite, the same prin- ciple is applied. If the manager (the active partner) dies, the Societe is at an end ; if a commanditavre dies, the i dissolution depends upon the question whether the formation of the Societe considered the individual members as essential to its existence, or whether the capital, being in shares, is transferable. A sentence of law taking away from one of the partners the right or power to act in the partnership. Bankruptcy of the firm. Express wish of some or one of the members to put an end to the Societe. This applies to Societes the duration of which is not limited to any period. WINDING UP. 145 "Witli regard to the second division, when certain acts or By action, the position of the Socieie give to its members the right to apply to a Court for its dissolution, the chief headings are — 1. The non-performance of contracts with the Societe which were included in the Articles which estab- lished it. 2. Acts subsequent to the establishment of the Societe Grounds for tlio which, according to Art. 1,871 of the Code Civil, ^PP""*''""- furnish " good grounds " for the dissolution. Such grounds may be any event which prevents the Societe from being carried on beneficially, e.g., a serious disagreement between the partners, or a chronic disease incapacitating one of them from performing his duties, or a depreciation of the capital so serious as to prevent further operations. The object of winding up a Societe is to obtain an exact Object of wmd- account of the assets and liabilities, and to conclude the under- ""^ "^' taking by realising the former and settling the latter, after which any surplus that remains is divided amongst the bene- ficial owners. One or more persons are appointed liquidators for this Liquidators purpose. If the liquidators are named in the Articles of Partnership or Association, they are thus appointed by agreement among all the members. ( If after the dissolution of the Societe, the agreement of Application to the members cannot be obtained, an application should be made event of dis- to the Court for this purpose. agreement The liquidators' duties are to do all that is beneficial for the Duties of tlie interests of the concern, to stop the running of the Statutes ' of Limitation, deal with mortgages made, &c. They should keep a strict account of their operations, and present it to all interested parties ; sell goods, pay debts due by the Societe, get in debts owing, and institute such legal processes as are requisite for this purpose. Whether they can compromise and arrange claims is a disputed point. A special authority is required to enable them to sell real their powers. property. They have no power to borrow money or effect mortgages. When their other duties are ended, they divide the surplus funds according to the rights of the members. 146 PARTNERSHIPS AND COMPANIES. LIMITATION OF ACTIONS AGAINST MEMBERS OF SOCIETBS. Limitation of During the continuance of the Societe, the right of action .against the individual members is only barred by the lapse of time, which runs in favour of ordinary debtors. Claims barred After the dissolution, all actions in reference to the Societe in certain cases, against members (who were not the liquidators), their widows, or heirs, must be brought within five years subsequent to the dissolution of the Societe, if the deed of the Societe which states its duration, or the deed of dissolution, has been published in accordance with the terms of the law. After five years, all actions in reference to the Societe against the above-named persons are barred. With regard to the words of the law, associes non-licpuda- teufs, it appears to be the better opinion that the persons who act as liquidators are, as regards creditors of the Societe, equally favoured by the law, and that actions against them by persons claiming against the Societe are barred after five years ; but that, as between them and the members whose agents they are for the purposes of winding up, that they are only freed from actions after the full period of limitations has expired. APPENDIX TO PARTNERSHIP. Pormalities to be complied with in constituting Formalities toi- conBtitution of ordinary Partnerships and Limited Companies. partnerships ■^ and Companies. I. f Socieies en nom colleatif. tSocietes en cormnandite simple. The deed of partner stip may be drawn np either in the Foi™ of deed. form of a document, sous seings prives, i.e., privately signed by the parties, or by notarial deed. The deed is essential, and must be executed in as many ^"umber of originals as there are parties. There is here a distinct differ- ence from. English law, which recognises a partnership merely agreed to orally by the parties. When the parties have signed the deed, it must be registered Resistmtion at the Registration Office, and the duty of 1-lOth per cent, upon the capital subscribed must be paid. After registration, and within one month from the date of the execution of the deed, its contents must be published and advertised in the prescribed form. In default of this regulation being observed, the deed becomes null and void. The advertisement in a local newspaper must contain :— Advortisement. 1. The names of the active partners who are not com- tnanditaires. 2. The style and office of the firm or Company; the names of the partners aiithorised to manage, transact business, or sign on behalf of the Company. 3. The amount of the capital, and the amount furnished by the commandUaires. 4. The date at which a copy of the deed of partnership was deposited at the office of the justice of the peace, and at l2 148 PAETNBESHIPS AND COMPANIES. the office of the Tribunal of Commerce, as required after registration. 5. The form of the Societe, whether en nom collectif, en com- mandite simple, &c. After these formahties have been fulfilled, the deed of part- nership is complete, and all the rights and liabilities of the partners or members begin to take effect. Draft of Axtiolea of Asaociation. Necessary for- malities. Publication of agreements. II. Of Companies divided into shares ; and firstly, of the formalities common to all. Any person desirous of forming a Societe par actions must previously draw up Articles of Association, which will be binding on all parties who subscribe for the shares. The Articles of the law prescribing the subscription of the capital, the payment of one-fourth of the capital, the manner in which the subscription and payment are authenticated, and the formalities to be observed as regards the verification of agreements entered into with the founders and others, must be strictly observed in all cases. With regard to the latter, all agreements entered into with the promoters, vendors or founders relating to the purchase of good-will, plant, stock, &c., or remuneration for services rendered in the formation of the Company, must be confirmed and approved at two distinct meetings of the shareholders, and no Company is legally and definitely constituted until such confirmation takes place. If it is refused or withheld, the undertaking is thereby null and void. Special reqiii- sites for a Societe en com- Tjumdite par actions. Special formalities necessary in the case ofSocietes en commandite par actions. A committee of inspection, to act for not longer than one year, must be appointed at the general meeting of shareholders immediately after the definite formation of the Societe and before the commencement of its business. At least three shareholders must form this committee. The conditions of its appointment are comprised in the Articles of Association. Its first duty is to see that the provisions of the law have thus far been complied with. This committee is responsible both to the shareholders and to third parties, if it turn out that the provisions of the law have not been observed. fOEMALITIES OP INCORPOEATION. 149 Special formalities relating to Societes anonymes. A Societe anonyme is conducted by a manager appointed, For SocUtes subject to revocation and with or without salary, from among »'«"W™«»- the members of the Societe. The number of members to constitute a Societe anonyme must be not less than seven. The depositions and declarations required must be made by the promoters. The general meeting appoints the directors of the Company (who may act as such for six years) and the auditors for the first year. The directors are bound to hold a certain number of shares in the Company, which are inalienable. When the directors and auditors have been thus appointed, the Societe anonyme is definitely constituted and may legally commence operations. Tor other regulations, the Law of July, 1867, may be consulted. Lastly, in the interest of the public and of those who may paing of the have dealings with firms or Companies, and in order that j|^gj|^^j;°^ information as to the rights and powers of the, members or managers may be readily ascertained, it is enacted that the partnership deed or Articles of Association must be filed at the ■office of the justice of the peace and of the Tribunal of Com- ■ merce, together with other documents relating to the constitu- tion and formation of the Company. We have already noticed the provision for publication in the newspapers of various items of information with reference to this point. Unless these formalities are strictly observed, the proposed partner- ship or Company becomes null and void. Chief points of contrast between English and French Law, in respect of Partnerships and Companies. 1. In France, partnership must be by deed. English and In England, a parol agreement will suffice. contrasted. 2. In France, dormant partners are only liable to the extent of their investment. In England, all partners, active or dormant, are equally responsible, with, the exceptions provided for by 28 and 29 Vic, cap. 86. 3 . In France, liability is evidenced by the deed of partnership . In England, no arrangement between partners is vaHd against third parties, though valid as between the parties who made it. 150 PAETNERSHU'S AND COMPANIES. Toreign Com- panies, No restrictions on rahie of shares. Sui'cty by way of guarantee required. 4. Companies of partly limited and partly unlimited liability do not exist in England. 5. Unlimited liability Companies arc recognised by English law. 6. In France, the value of shares to be issued is regulated by law. In England, the value of each share depends upon the will of the promoters, £1 (25 fs.) shares being often issued. English and Foreign Companies in Prance. English Companies legally constituted are entitled to carry on business, and to exercise all their rights in Prance, and especially to bring and defend actions in the French Courts. English Companies can be brought out in France, and issue shares without being compellable to conform to the provisions of the law which governs French Companies. We have already pointed out that the latter cannot issue shares of less than 100 f s., when the capital of the Company is less than 200,000 f s, (£8,000), or shares of less than 500 fs., when such capital is more than 200,000 fs. ; and that Fi-ench Companies cannot commence operations until the capital is entirely subscribed, and one-fourth paid up on aU the shares. These regulations, as weU as all those relating to the constitution of French Companies, are in no way applicable to English Companies, which latter. may therefore issue in France shares of any value which may seem to them expedient. They are liable to no other obUgation than that of faithfully observing the provisions of English law. Nevertheless, an exception has been made in regard to shares issued by railway Companies whose lines are constructed abroad, as to the value of their shares and the amount to be paid up thereon. English Companies must nevertheless comply with an obligation to which French Companies are not liable. Before making the issue of their shares, either by means of placards or hand-biUs, or through the medium of the public press, they must obtain the approval by the administration of the Stamp Office of a solvent surety, who guarantees the payment by the Company of the annual duty payable by Societes par actions to the French Government. ENGLISH COMPANIES IN FEANCi;. 151 Powers of English Limited Companies to carry on business, to issue capital, and to sue in France. English Limited Companies can trade and sue in France as freely as French Companies, subject to the two following con- ditions: — 1. They must be constituted in conformity with English law. 2. They must conform to French law. These provisions appear in the Treaty entered into between Treaty piovi- England and France, on 30th April, 1862, Art. 1 of which is as iria^idlni" follows : — Trance. ^ '• The high contracting Powers mutually declare that they grant to aU. Companies and other mercantile, industrial or financial associations, constituted and authorised pursuant to the particular laws of either of the two countries, the per- mission to exercise all their rights, and to sue in the Courts, either as plaintiffs or defendants, throughout the States and possessions of the other Power, without any further condition than that of conforming to the laws of the said States and possessions.'' The tei-ms of this Treaty are wider than those of the Law Extension of of the 30th May, 1857, which only granted the right of trading SiSg^'rights. and suing m France to " limited Companies and other com- mercial or industrial associations which were subject to the authorisation of foreign Governments," for the later Treaty, while applying to Companies subject to the above authorisation, also comprises limited Companies freed therefrom in addition to those incorporated by Act of Parliament or Eoyal charter. English Companies wishing to raise capital in France are not bound by Arts. 13 and 14 of the Law of the 24th July 1867, relating to the entire subscription of the capital, the payment up of one-fourth, the value of the shares and the pro- visions relating to the negotiability of the shares after payment of one-fourth, and the shares remaining as nominative until payment of one-half. It has been decided that the obligations contained in the Meaning o£ tha Treaty of 1862, to conform to the laws of France, relates form to laws o£ simply to " the general laws of police and security, and to the ^™'i''^- laws governing real property, and to the forms of procedure but not the particular laws which, in each country, regulate the actual constitution of industrial and mercantile associations, the object of the Treaty being on the contrary to carry into efEect the said laws abroad." (Court of Appeal, Paris, 22nd February, 1866.) 152 ■PAETN3ESHIPS AND COMPANIES. Foreign shares on the Bourse. Penalties for fraud. The Ghamhre Syndicate of Paris stockbrokers admits upon the Bourse the negotiation of shares in foreign Companies, although of a lesser value than shares in French Companies, provided that such foreign Companies have been duly constituted according to the laws of their respective countries. Limited, Companies' adveriisem,ents. Art. 15 of the Law of 24th July, 1867, upon French Com- panies, which renders penal the publication of mendacious statements in order to obtain subscriptions for shares, is applicable to advertisements and publications relating to foreign Companies as well as to French Companies. The Court of Appeal in Paris had decided in the contrary sense in the Trouville Association case, on the 13th June, 1872. The Court of Cassation has since, however, made the above salutary change in the law. (Cassation, 8th August, 1873). Formation of the partnership. Xame. Office. Duration. Signature. Apportt Stock-taking. FOBMS. PARTNEESHIPS. DEED OF PARTWEBSHIP EN IfOM COLLECTIP. Between Monsieur Louis Dupre, silk merchant, of , of the one part, and Monsieur Pierre Lagrange, also silk merchant, of , of the other part. It has been agreed as follows : — Art. 1. By these presents, a partnership en nom collectif is arranged between the undersigned for the purpose of manu- facturing and selling silk goods. Art. 2. This partnership shall be under the style and name of L. Dupre and P. Lagrange. Art. 3. The chief office of this partnership is fixed at Lyons, Eue Imperiale, No. 92. Art. 4. The partnership contract shall last for 10 years from the present date. Art. 5. Each partner may sign in the firm's name. They may use it together or separately, but only for the partnership business. Art. 6. Each of the undersigned undertakes to put into the partnership the sum of 30,000 francs, so as to form a part- nership capital of 60,000 francs. Art 7. The assets and liabilities of the firm shall be balanced on the 31st December in each year. PRIVATE PARTNERSHIP DEED EN NOM COLLECTIF. 153 The profits resulting shall be divided in equal shares between profit and loss. the two partners. The losses, if any, shall be shared in the same proportion. Art. 8. Each partner shall have the right to draw 800 francs Ordinary per month for his personal expenses on account of his share in ^^P^"^^^- the profits. Art. 9. If either partner has to travel for the purposes of Extraordinary the partnership, he shall have an allowance of 10 francs per day for his ordinary expenses. His extraordinary expenses shall be repaid to him in full. Art. 10. Each partner shall give all his time and attention Undertaking of to the business of the f)artnership, and engages not to interest himself in any undertaking similar to that which is the object of these presents. Art. 11. If more than half of the partnership capital is lost, Loss of half the the partnership shall be absolutely dissolved on the demand of °^^' ^ ' either partner. Art. 12. The partnership shall be absolutely dissolved by Death, the death of either partner. An account shall immediately be taken, on the death of Accounts, either partner, of the assets and liabilities of the partnership, based on the last balance struck. The value of the business connection and the right to the Bights of lease, which is to belong by special agreement to the survivor, ^'^'^™''' shall not be reckoned in this account. The surviving partner shall also be entitled to retain goods and book-debts at the value at which they stand in the inventory taken, provided he. give notice of his intention within a fortnight after the taking of the said inventory. If the surviving partner exercises this right, the heirs of Bights of heirs, the deceased partner shall not claim repayment from him of the capital except in three yearly instalments, the capital due to them bearing interest at 6 per cent. The surviving partner shall not be bound to give security for the payment of the amount in which he would in such case be indebted. If the surviving partner should decline to retain the goods and book-debts, &c., the goods shall be sold and the debts col- lected by a liquidator named jointly by the- surviving partner and the heirs of the deceased partner ; or in the event of their disagreeing, by the President of the Tribunal of Commerce, wten requested by either party. 154 PAETNEESHIPS AND COMPANIES. Winding-up and dissolution. Parties. Formation oi; partnership. Purposes. Oflicc. Duration, Signature of firm. Apporii. Art. 13. At the expiration of tlie ijartiiership at the end of the time fixed for its duration, or in case of dissolution other- wise than by the death of one of the partners, the winding-up shall be carried out by the two undersigned parties. If one refuses to carry it out, the other may do so alone ; if neither is willing to conduct it, then it shall be managed by a third person chosen by the parties ; and in case of disagreement between them, by a person chosen by the President of the Tribunal of Commerce, in accordance with a request to that effect made to him by either party. Art. 14. The bearer of either one of the originals of these presents shall have full power to ]3ublish them wherever necessary. Signed. Drawn in duplicate at Lyons, the 28th day of December, 1881. FORM OP PABTNERSHIP EN COMMANDITE SIMPLE. Between the undersigned M. Budin, Sculptor, of No. 30, Rue des Saints-Peres, Paris, of the one part ; Pierre Labry, of ; Antoine Menlieu, of Phihbert Drin, of ; and Denis VaUot, of , of the other part. Art. 1. A partnership is by these presents arranged between M. Budin as manager and sole responsible partner, and MM. , Labry, Menlieu, Drin, and Vallot as sole coimnanditmres. The coirvmanditaires shall only be liable up to the extent of the amount which they invest, and shall in no case be liable to- any call above their contribution. Art. 2. The object of this partnership is the reproduction of famous statues, and the sale of these reproductions, M. Budin to have the work done by the most competent persons. Art. 3. The ofiices of the firm are fixed at Paris, Sue Mont- martre, No. 16. Art. 4. The partnership is to last for 15 years from this day. Art. 6. The name and signature of the fii-m shall be Budin & Co. M. Budin alone has the right to use this signatui'e, and only for the purposes of the partnership. Art. 6. MM. Labry, Menlieu, Drin, and Vallot undertake to furnish to the partnership, by way of commandite, to be FORM OF PABTNEESHIP DEED EN COMMANDITE SIMPLE. 155 acknowledged by M. Budin, manager, each paying l-20tli per month, from the present date, the following sums, — M. Labry 20,000 fs. M. Menlieu 10,000 „ M. Driu 5,000 „ M. Yallot 5,000 „ Total .... 40,000 fs. Art. 7. Each commanditaire shall have the right to transfer Rights ot his interest in the partnership either to the other partners or t^iafertheii' to other persons. Each transfer or assignment so made shall ™t™est. be for a sum of not less than 5,000 fs., so that, under no circumstances, shall there bo more than eight commanditaires. The transfers, to be valid, shall bo cxeciited in duplicate, signed by the transferor and transferee, and notice thereof given to, or the transfer accepted by the manager. Art. 8. If, under any circumstances, a share of 6,000 fs. becomes the property of more than one person, they shall be bound to appoint one of themselves only to represent them all so long as the partnership exists. If one or more of the conimandiia i res should die, the part- Death of a uership shall not be thereby dissolved, but shall be continued """"'"' """'■ with his heirs. The heirs or creditors of the coimnanditaires shall under Rights of heirs no circumstances have any right to have the property of or securities held by the partnership {apposition des scelles, e.g.) sealed, nor to deal with the management of the business. They may have recourse to the partnership accounts only for the purpose of exercising their rights. Art. 9. The books, &c., of the partnership, shall be kept Books, ic. according to the regulations of the Code of Commerce. The commanditaires shall at all times have the right to examine all books and papers of the partnership and to verify the cash and other accounts. Art. 10. The manager shall receive an annual salary of Salary of 3,000 fs., payable by equal monthly instalments. manager. He shall further be entitled to a share in the profits, as fixed in Art. 12 of these presents. Art. 11. A balance-sheet of the assets and liabilities of the Balance-sheot. partnership shall be drawn up every year on the 31st of Dec. In this balance-sheet, aU goods and materials delivered shall How drawn, be entered at their net cost. Good debts shall be entered at their proper value, bad debts only by way of taking an account of them. 156 PAETNERSHIPS AND COMPANIES. Copy sent to coirtmanditairea. Profits: prefer' enee dividencl. Division of surplus profits. Loss of one- third of the capital. Dissolution — Winding-up, Disputes. Domicil. The expenses of rent, licence, lighting, salary of the manager and employes, as well as all general expenses, shall be deducted from the receipts. ...... The profits shall consist of -the surplus of the assets above the liabilities. A copy of the balance-sheet. shalLbe sent by the manager to each of the commanditaires, and they sh^U acknowledge the receipt of it within a fortnight" from the date on which it is drawn up. They shall send to the manager any criticisms which they wish to make within the following fortnight, in default of which it shall be treated as valid and approved. Art. 12. The first charge upon the profits, as shown by the annual balance-sheet, shall consist of a sum sufficient to pay five per cent, on the amount of the moneys contributed' by the com/manditaires, by way of preference dividend. The surplus shall be divided as follows : — Sixty per cent, to the commanditaires, byway of seoo'nd divi- dend, in proportion to their general contributions ; 40 per cent, to the manager. The dividends shall be payable at the partnership offices within the month in which the balance-sheet is finally settled. Art. 13. If one-third of the partnership capital should be lost, the manager shall call a meeting of the members, and they shall decide whether the partnership ought to be dis- solved. No decision on this point shall be valid tmless passed by a majority of the members representing four-fifths of the partnership property. Art. 14. Whenever the partnership is dissolved, the winding-up sha,U be conducted by the manager, with the co-operation of one of the commanditaires named by the majority of them. -Art. 16. -AH disputes that may arise, either during the existence of the business or in the winding-up, shall be decided at Paris in accordance with the law. For this purpose, each partner shall make choice of domicil at Paris ; and in default of his so doing, this choice of domicil shall be made at the office of the procureur of the Republic. Power to publish the Articles. Each person who holds one of these originals shall have the right to publish these presents, in accordance with the law. Signed. Drawn in duplicate originals, at Paris, the 28th day of December, 1881. FORM OF ARTICLES OF ASSOCIATION. 157 Form of STATUTES or ARTICLES OP ASSOCIA-. TION of a SOCIE'tE EUT COMMANDITE PAR ACTIONS. Before the undersigned, M. Faure and his partner, Form of Articles notaries at Bordeaux, appeared M. Jean Bournet, merchant, residing at and M. Jacques Raymond, merchant, residing at who have settled the following Articles of Association of the Company which they are forming for the object hereinafter specified. PARAGRAPH I. Formation and Object of the Soci6t6, &c. Art. 1. — ^A Societe en commandite par actions is by these Parties. presents formed between MM. Bournet and Raymond, sole and only members, en nom, colleciif, with joint and several.liability, of the one part, and all persons who shall hereafter become subscribers or owners of one or more of the shares hereinafter specified, as simple comm,andUaires, of the other part. The co7nm,anditaires shall only be liable for the amount of their shares, and shall not under any circumstances be hable to any further call, nor to any restitution of diyidends received. Art. 2. — ^The business of the Societe is : 1. To purchase and resell, in such manner as the law Objects of permits, and to take up all public stocks and all °™P^°y' shares or debentures in the various commercial undertakings now or hereafter to be established, both in France and in foreign countries. 2. To make advances on public stock, shares and debentures, and also on goods, warrants, and bills of lading. 3. To treat, by way of tender or otherwise, either alone or in association with other persons, for all State loans, or loans of towns or communes in France or abroad, and to realise the same. 4. To open credits on the deposit of such securities or on mortgages. 5. To undertake the receipt of subscriptions, manage all receipts and payments for financial Companies. 6. To open accounts for specie and shares and to dis- count commercial bills. 7. To conduct generally all ordinary business of banks. discount and commission agents. 158 PAETXBESHIPS AND COMPANIES. jSTo maritime undertakings and advances on secm'ities, the title to which is disputed, are allowed to the Societe. Art. 3. — The style and signature of the Company is Bournet, Eaymond et Cie. The name of the Company is also Banque Bordelaise. MM. Bournet and Eaymond, sole managers for the Com- pany, have alone the right to use the Company's signature, and only for the business and purposes of the Company. Art. 4. — This Societe shall begin from the day when it is definitely established, as hereinafter specified, and shall last until December 31st, 1890, subject to the conditions hereinafter expressed as to a prior dissolution or a prolongation of the Societe. Art. 5. — The chief oSice and domicil of the Company are at Bordeaux, Place de la Bourse, No. 4. PARAGRAPH II. Capital. Art. 6. — The Company's capital is fixed at 4,000,000 fs., divided into 8,000 shares, of 500 fs. each ; of these shares M. Bournet has subscribed 400, M. Raymond 400— total, 800. The 7,200 shares remaining are still to be subscribed for, and the present Company will not be definitely constituted until they are subscribed in full and all other conditions required by law to be observed have been fulfilled. If the 7,200 shared are not subsci-ibed within three months from the present date, these presents shall be treated as null and void. Art. 7. — The shares shall be paid up as follows : one-fourth on application, the three-fourths remaining by three equal monthly instalments, dating from the establishment of the present Company. Art. 8. — The share certificates are to be taken from a register with a counterfoil ; they are to be numbered in series, signed by one of the acting managers for the Company, examined by a member of the Committee of Inspection, and stamped with the Company's stamp. Art. 9. — When the first payment is made by the sub- scribers, they shall receive provisional fully paid-up nominative certificates of 125 fs., with the calls to be made in the future stated upon them. After the shares have been fully paid up, there shall be a final issue of nominative shares, or shares to bearer, according to the choice of the shareholder, to be given in exchange for the provisional certificates. FQKM OF AETICLES (COMMANDITE PAE ACTIONS). 159 Shares to bearer may be transferred by the simple delivery of the certificate : nominative shares, according to Art. 30 of the Code of Commerce. Art. 10. — If the calls are not paid at the time fixed, the shareholder will be liable to interest at five per cent, per annum for each day that he makes default. The person making default shall be required to complete hi.s payments by an advertisement inserted in the newspapers of Bordeaux used for the purpose of legal notices. This adver- tisement shall state the numbers of the shares in default. If the owner does not discharge the claim within one montli, and without any need to have recourse to a Court of justice, the shares so in default may be sold publicly in duplicate, by means of a stockbroker on the Bourse, or by means of a notary, :at the risk and peril of the person making default, without prejudice to the right reserved by the Company to sue the shareholder in person in the ordinary manner. The original certificates of shares thus sold are absolutely muU and void ; and therefore, any share which does not bear on the face of it a regular statement of the payments which ■ought to have been made will be non-negotiable and non- transferable. The numbers of the shares thus annulled are published in the newspapers above mentioned. Art. 11. — The rights and obligations that belong to the share become those of the holder. . The possession of shares implies acceptance of the Articles of Association and of the resolutions of the general meeting. Art. 12. — Shares, or coupons of shares, when half their value is paid up, may be converted into shares to bearer by a resolution passed at a general meeting. Whether the shares remain nominative after this meeting, or are converted into shares to bearer, original subscribers who have assigned their shares, and the persons to whom they have assigned before one-half is paid up, shall remain liable to pay the fuU value of their shares at any time within two yeais subsequent to the resolution of the general meeting. Art. 13. — ^With regard to the Company no shares ciin be divided, and no fraction of a share will be recognised. If a share is held in fractions by joint-owners, they shall be bound to be represented in the Company by one single person. Heirs and creditors of shareholders shall have no right to 160 PAETNEESHIPS AND .COMPANIES. interfere with, the business of the Company, or to have, e.g., the seals affixed on the property of the Company. Their rights will be contained in the books of the Company, and in the resolutions of the General Meeting. PABAORAPH III. Management and Committee of Inspection. Management. rpj^^ managers are invested with all the powers necessary for their position, in order to carry out all business of the Company. They are entitled (Art. 3) to the use of the signa- ture of the Company, but if they have to appoint general agents, the appoiutment, to be valid, must be signed by both. Art. 15. — The business of the Company shall be recorded in registers kept according to law. Art. 16. — Each of the managers, during his tenure of office, and as guarantee for his management, shall be owner of * 400 shares, which shall remain in the Company and shall not be handed over to him until his accounts have been passed. Art. 17. — An annual allowance of 16,000 fs. shall be- made to each of the managers, as remuneration for the part they take in the management, payable in twelve equal monthly instalments. Art. 18. — The Company shall not be dissolved by the death or retirement of either of the managers. MM. Boumet and Raymond covenant with each other that neither shall have power to resign his post before six years from the date of the- definite constitution of the Company. In the event of the decease or retirement of one of the managers, the survivor shall have the exclusive management and conduct of the business. He shall have power to select a joint manager, who, however, shall not enter upon his duties until approved by a general meeting. In the event of the retirement or decease of either of the- managers, the manager who has resigned, or the heirs of the- deceased manager, shall take the position of ordinary com- manditaires. Art. 19. — A committee of inspection of five shareholders is- to be appointed. The members of this committee shall be named by the- general meeting, directly after the establishment of the Com- pany and before any business has been transacted. FORM OF ARTICLES (COMMANDITE PAR ACTIONS). 161 The first committee shall only be appointed for one year. Subsequently, the committee shall be chosen every five years. Each member of the committee shall deposit with the Company 40 shares, which shall be inalienable during his tenure of office. The committee shall choose one of themselves as oliairman ; his tenure of office shall last for one year, and he may be re-elected. In the chairman's absence, the chair shall be taken by the oldest member present. If any member of the committee shall die or resign, his place shall be filled up by the next general meeting. The new member thus elected shall take the position of his predecessor. Art. 20. — The committee shall meet as often as it thinks fit, according to the regulations which it may make, but its meetings shall be held at least once a month. It may be summoned either by the chairman, or by one of the m^anagers, or by any two committee members. The meetings shall be held at the head office of the Company. Three members shall form a quorum, and the majority shall decide all questions. If the votes are equal, the chairman shall have a casting vote. The resolutions passed shall be entered in a book kept for that purpose, and shall be signed by all members present. Art. 21. — The first duty of the committee, after its appointment, shall be to examine whether all the conditions required for the definite establishment of the Company have been observed. Art. 22. — The Committee shall also examine the books, accounts, ledgers, &c., of the Company. , They shall also make an annual report to the general meeting, in which they shall point out any irregularities or inaccuracies in the books, &c., and state, if necessary, any objections to the dividend proposed by the managers. They may also call a general meeting, and according to its decision ask for a dissolution of the Company. Art. 23. — The members of the committee incur no liability by reason of the acts done by the managers and their results. Each member is only liable for his own mistakes or conduct. Art. 24. — -The members of the committee of inspection shall receive jetons de presence, the value of which shall be fixed by the General Meeting. 162 PAETNEESHIPS AND COMPANIES. PARAGRAPH IV. Of the General Meeting. General ^^_ 25. — The general meeting consists of all share-- holders, owners or holders of 10 shares at least. Ten shares count as one vote, and each shareholder has one vote for every 10 shares that he holds. One shareholder can only have 10 votes at most, whatever number of shares he may hold. The holders of shares to bearer, in order to take part at the general meeting, must leave their certificates of shares at the office of the Company a fortnight before the date of the general meeting. Each holder of shares to bearer receives a card of admission. This card bears his name, and is not transferable. It states the number of shares deposited at the office. Axt. 26. — The general meeting, properly convened, repre- sents the whole of the shareholders. Its resolutions are binding on all, whether present or not. Art. 27. — The general meeting is held in March of every year at Bordeaux. An extraordinary general meeting may be called whenever the managers or the committee of inspection think it desirable. Und^ all circumstances it must be convened by a notice, published at least one month prior to the meeting, in the journals of legal advertisements in Paris and Bordeaux. If the general meeting is called to consider the questions mentioned hereafter in Art. 33, the notice convening it shall state this fact. Art. 28. — ^Every shareholder entitled to vote at the general meeting may be represented .by an agent, provided always that his agent is a shareholder and a member of the general meeting. The form of authorisation shall be decided by the managers. The authorisation must be left at the Company's office a fortnight before the meeting. Art. 29. — The chairman of the committee of inspection presides at the general meeting, and in his absence the mem- ber chosen by the committee. The two largest shareholders present perform the duties of scrutineers. The president chooses the secretary. FOEM OP ARTICLES (COMMANDITE PAR ACTIONS). 163 Art. 30. — ^Eesolutions passed by the meeting arc valid if one-fourth of the Company's capital is represented. If at the first m.eeting one-fourth of the capital is not represented, a second meeting is called at an interval of one month from the first. Any resolutions passed at the second meeting with reference to the questions discussed at the first are valid, whatever be the number of members present or the amount of capital represented. Art. 31. — ^Eesolutions are passed by the majority of votes of the members present or represented. For any of the purposes mentioned in Art. 33, two-fifths of the capital must be represented at the meeting, and two- thirds in number of the members present must vote in the majority ; otherwise the resolutions cannot be passed. Art. 32. — Voting by ballot shall be allowed if demanded by five inembers at least. Art. 33. — The general meeting called according to Arts. 26 and 29, by the managers or the committee of inspection, shall discuss proposals for combinations, amalga- mation, &c., with other Companies or with individuals ; the increase of the Company's capital ; the continuance or dissolu- tion of the Company ; any modification of or additions to the rules. The general meeting grants the necessary powers to carry the above-mentioned resolutions into effect. Art. 34. — The general meeting receives the report of the managers, and discusses, objects to, or approves their accounts. The managers are bound to transmit all these to the committee of inspection, one month at least before the meeting. It also receives the committee's report. A fortnight at least before the general meeting each share- holder can obtain, at the head office, information as to the balance-sheet, stock accounts, and report of the committee. The general meeting appoints the members of the com- mittee of inspection, to replace those whose term of office has expired, or who have died or resigned, or retired for any reason. It decides, within the limits of the rules, on all the interests of the Company. Art. 35. — The resolutions of the general meeting are drawn up in the form of a report, signed by the members of the lureoM ; the abstract of these reports, to be used where necessary, are certified by the president of the committee of m2 164 PARTNERSHIPS AND COMPANIES. Accounts and division of profits. Alteration of miles. inspection, or by the member of tbe committee wbo takes bis place. An attendance sheet, to state the number of members attending each meeting and the number of shares represented by each, is annexed to the minute of the report, with any powers of attorney authorising agents to act for members. This sheet is signed by each shareholder on entering the meeting. PARAGRAPH v: Art. 36. — The first financial year for the purposes of the Company shall include the time that elapses from the date of its definite formation until the 31st of December, 1883. In the succeeding years an annual account shall be taken of the assets and liabilities of the Company. The profits shall consist of the excess of the assets above the liabilities, after deducting all general expenses and the salary of the managers. A first charge of five per cent., by way of first dividend, shall be taken on these profits, to stand in place of mterest. A fifth of the profits shall be set aside as a reserve fund, in order to meet any extraordinary or unforeseen charges upon the Company. The surplus shall be divided in the following proportions .- 80 per cent, on all the shares proportionately, by way of second dividend ; 20 per cent to the managers, in equal moieties. Art. 37. — When the reserve fund reaches 33 per cent, of the Company's capital, the fifth part of the profits shall cease to be added to, it but it shall be again added if the reserve fund is diminished below 33 per cent, of the capital. Art. 38. — The dividends shall be payable in the month following the general meeting which settles them. PARAGRAPH VI. Alteration of the Rules— Dissolution— Winding-up. Art. 39.- — If it become necessary to modify or add to the present rules, the general meeting shall have power to do so in the manner pointed out by Arts. 26, 31 and 33. Art. 40. — ^If more than one-half of the Company's capital is lost, the managers shall call a general meeting to decide whether the Company shall be dissolved, or carried on any longer. If the meeting vote for carrying on the Company, it shall FORM OP ARTICLES (COMMANDITE PAIJ ACTIONS). 165 bo ijiso facto dissolved as soon as the loss is equivalent to three-fourths of the capital. Art. 41. — When the Company comes to an end, or if it is Dissotatiou and dissolved before the term fixed, the winding-up shall be carried ™" ^'^^" on by the manager, with a joint liquidator appointed by the general meeting. The liquidators shall act jointly, unless one transfers his powers to the others. They shall have complete power to realise the assets of the Company without applying to a Court. After the dissolution, and until the end of the winding-up, the general meeting of shareholders shall retain the same powers and authority as during the existence of the Company ; that is to say, it can change the method of winding-up at first adopted, name new liquidators, settle their remuneration, decide on their powers, accept and give discharge for their accounts. The surplus of the winding-up, after paying all liabilities, shall be divided proportionately among all the shares. PARAGRAPH VII. Art. 42. — All disputes that arise during the continuance Disputes. of this Company, or in the winding-up proceedings, either between shareholders and the Company or between the share- holders themselves, with reference to the business of the Company, shaU be decided at Bordeaux according to the law. Art. 43. — For the purposes of any dispute, every share- holder shall be bound to elect his domicil at Bordeaux, and all notices and writs shall be valid if served within the domicil so chosen by him, without regard to his real residence. In default of election of domicil, all notices and writs shall be valid if served at the office of the Procureur of the Eepublio at the CivU Court of First Instance of Bordeaux. Art 44 — The present Company shall not be definitely Constitution , . , . 1 11 i 1 . J.-1 ofCompsuiy. established, and its business shall not begin, until — 1. All the shares have been subscribed, and a fourth of their value has been paid up on them ; 2. Nor until the managers have by notarial deed deposited, in accordance with these presents, the list of subscribers and of the payments already made; 3. Nor until a specially called general meeting, in which all shareholders have a right to take part, has 1G6 PAETNEESHH;S AND COMPANIES. estimated the value of the contributions not con- sisting of cash, and the privileges reserved in favour of MM ; 4. Nor until another general meeting, in which all the shareholders shall also have a right to take part, has confirmed these contributions and privileges, declared the Company definitely established, and named the committee of inspection. The second general meeting cannot decide on the confirma- tion, &c., until a printed report thereon has been at the disposal of the shareholders five days at least before this meeting is called. The resolutions must be passed by a majority of the share- holders present, and this majority must include one-fourth at least of the shareholders, and represent one-fourth of the cash capital of the Company. Members who have made the contributions in question or have had privileges reserved to them, shall have ho vote at this meeting. If the contributions and privileges are not confirmed, the present Company shall be null as regards all parties concerned. These meetings for the valuation and confirmation of con- tributions and privileges reserved, for deciding on the starting of the Company and for nominating the committee of inspec- tion, shall be announced only five days before their date and only in the Journal Officiel. Art. 45. — The bearer of copies or an abstract of these pre- sents is empowered to have them published within one month after the definite establishment of the Company. Bont acte, Sfc. Made at Bordeaux, at the (5tude (chambers) of in the year 18S4. After reading of the above, the parties have signed with the notaries. (Signatures.) Form of Declaration, by the Manager of a Bodete en com- mandite par actions, prior to its definite establishment (Law of 24th July, 1867). Date Before M appeared MM. Bournet and Raymond, merchants, residing at who have declared that the capital of the Societe en commandite par actions, of which they are FORM OF ARTICLES (sOCI^TlS ANONVMe). 167 to be managers, and the rules of which have been drawn up in accordance with a deed made before M. has been subscribed in full. And that each subscriber has paid up a sum equal to (or above) one-fourth of the value of the shares for which he sub- scribed. They produced to the undersigned notary a certified docu- ment, signed by themselves, comprising — ■ 1. A list of the subscribers, with surnames, christian names, occupations and domicils, and with the number of shares subscribed for by each ; 2. The amount of payments already made by the sub- scribers. This document drawn up on sheets of stamped paper, with a memorandum signed by the parties and the notaries affixed, is annexed to the present deed in accordance with the law. The general meeting will therefore be immediately summoned, first to examine and then to confirm, if necessary, the contributions of the managers and the special privileges reserved to them. By this confirmation, the Societe will be definitely established, and the same meeting shall immediately appoint the committee of inspection as prescribed by the law. The bearer of copies or of an abstract of the deed is empowered to publish it. Dont acte, Sfc. (Signatures) Form of Articles of Association of a Soci6t6 Anonyme.* Before M. appeared MM. who state that, by a resolution of the directorate dated one of them was empowered, both in his own name and in the name of the other parties to these presents, joint owners of lands situated at to establish and carry on upon the said lands, in accordance with the law, general warehouses with public sale-rooms, as in the plan annexed to the said resolution : That the intention of the parties is to establish a Soeieie anonyme for, &c. * This deed may also be sous seing privi. / 168 PAETNERSHIPS AND COMPANIES. Name of Company. Apports, For which purpose they have drawn up the following Articles of Association of the Company, vrhich will not be definitely established until after all the conditions prescribed by the law of 24th July, 1867, have been observed. PARA GRAPH I. Art. 1. — There is formed between the parties present, and all owners of shares hereafter to be issued, a Company for the purpose of building general warehouses, storehouses, &c., as authorised by the resolution of and for effecting sales or leases of lands hereafter to be owned by the Company, and not required by them for the establishment of such warehouses. Art. 2. — The Company's name shall be " Compagnie des magasins generaux de ." Art. S. — ^The head office shall be at Paris. Art. 4. — The Company is formed for a period of 40 years, to run from the date of its being definitely established, unless previously dissolved or further prolonged, as hereinafter pro- vided. Art. 5. — The Company shall not be definitely established until the whole of its shares have been subscribed for, and one-fourth paid up on such shares, nor until a general meeting has confirmed the valuation of the contributions made in kind and the nomination of the members who are to act as the Board of Directors and of the commiissaires, in accordance with Arts. 1, 4, 24 and 25 of the Law of 24th July, 1867. Until so definitely started the Company is only provisional, and the obligations of the parties now present and of the subscribers are purely conditional. PARAGRAPH II. Apports. Art. 6. — The parties now present contribute to the Com- pany:— 1. The land (here specify it) ; 2. The rights accruing from the Resolution of , authorising the building of general warehouses according to the terms of the said Eesolution; 3. The plans, documents, &c., which the parties have had drawn up for the purposes of the present Company. This contribution is made subject to the following con- ditions :— The price of the land, of the plans and other works, FOEM OF ARTICLES (SOCIISt^ ANONYME). 169 and of the advantages accruing from the authorisation obtained, is reckoned at three millions, payable in fully paid up shares, to be divided among the parties now present according to arrangement between them. This valuation shall be submitted to the general meeting for its consideration, according to Art. 4 of the Law of 24th July, 1867. If no understanding is reached at the second meeting, as ordered by the said Article, these presents shall be considered as cancelled. PARAGRAPH III. The Company's capital consists of: — Capital. 1. Six thousand shares fully paid up, representing the property, &o., in Art. 6 ; 2. Two millions of francs, to be raised by subscriptions for 4,000 shares, to be issued at the value of 500 f s. each ; total, 10,000 shares, each giving a title to one ten-thousandth of the Company's assets and of its profits. Art. 8. — The shares shall be delivered as follows : — The 6,000 shares, after the formal acquisition of the land assigned to the Company and after the formal purge has been effected ; The 4,000 shares after one-fourth has been paid up. Until then, provisional certificates stating the pay- ments made shall be delivered to the subscribers, to be exchanged afterwards for shares. Art. 9. — The liability of each subscriber is absolutely limited to the amount of the shares subscribed by him. Art. 10. — ^The provisional as well as the ordinary shares shall be taken from a register with counterfoils, stamped with the Company's seal, and signed by two directors, or by one director and a delegate appointed for this purpose by the board of directors. Art. 11. — The shares are nominative until fully paid up. They cannot be dealt with until one-fourth has been paid up. Any assignment of them must be effected by a transfer in the Company's books, signed by the transferor and transferee and by one of the directors. The assignment is to be endorsed on the share. Art. 12.— After the shares have been fully paid up, they may be nominative or to bearer, according to the wish of the person entitled to them. Nominative shares must be trans- 170 . PAETNEESHIPS AND COMPANIES. ferred as regulated by Art. 11, shares to bearer by simple delivery. Art. 13. — The board of directors may authorise the deposit of shares with the Company ; it shall decide the form of certificates for such deposit, the manner of taking them out, the expenses of the deposit, and all guarantees on such deal- ings as may be considered necessary in the interests of the Company and the shareholders. Art. 14. — The rights and duties attaching to the shares belong to it in whatsoever hands it may come. Possession of the shares implies complete acquiescence in the Articles of Association. Art. 15. — All shares are indivisible, and the Company does not recognise any fraction of a share. If a share is held by several joint owners, they are bound to have themselves represented by one of themselves only. Heirs, or others claim- ing under a shareholder, shall have no right to demand the apposition des scelles on the property and effects of the Com- pany, nor m any manner to interfere in the business of the Company, their rights are decided by the inventaires sociaux, and by the resolutions passed by the general nieeting. Art. 16. — If a nominative share is lost, the Company will only supply a new share in its place on condition of receiving proper security, in accordance with Arts. 151, 152, and 155 of the Code of Commerce. Such new share shall not be delivered until after three months from the advertisement of such loss in two of the newspapers used for legal advertise- ments. PARAGBAPH IV. Accounts and Art. 17. — A summary of the position of the Company in ance-s eetB. j.ggpQQt Qf assets and liabilities shall be published every six months. Further, a balance-sheet shall be drawn up on the 31st . December in each year, stating the value of the Company's property and aU the assets and liabilities of the Company. This statement and balance-sheet, with the profit and loss account, shall be presented to the annual general meeting of Shareholders. Art. 18. — The profits of the Company shall be devoted in' the first instance to the expenses of the Company and all charges upon it. POEM OF ARTICLES (sOCI^TlS ANONTME). 171 Art. 19.— After the payment of all expenses, a fixed sum, not less than one-twentieth of the net profits, shall be set apart as a reserve fund. If this reserve fund at any time amounts to 500,000 fs., all payments in respect of it shall cease, but they shall be renewed as usual if the fund falls below that amount. Art. 20. — Dividends shall be payable annually at the times fixed by the board of directors. If by the 30th June, in any year, there shall be suMcient profits earned to justify, a provisional dividend, a special meeting of the shareholders may be summoned and may authorise the distribution of such dividend. Any dividend not claimed within five years after it becomes payable shall become the property of the Company, according to Art. 2,277 of the Civil Code. PARAGRAPH V. Art. 21. — The Company is managed by a board of directors Management of consisting of 11 members. Company. Art. 22. — Each director must own 50 shares, these shares to serve as guarantee for 'the management of the Com- pany. They are nominative, non-transferable, and stamped to indicate their inalienability, and are deposited in the caisse sociale. Art. 23. — The directors are appointed by the general meet- ing, by personal and secret ballot. The first appointment of directors shall take place at the first general meeting held after the contributions have been confirmed and the conditions complied with in respect of the subscription of the shares and the payment of one-fourth of the capital. The minutes of this meeting are evidence that the directors present at it accept their appointment, in accordance with Art. 25 of the Law of 24th July, 1867. Art. 24— The directors are appointed for six years and are capable of re-election. Two directors retire each year, the retiring directors to be drawn by lot at the annual general meeting. Art. 25. — The general meeting is to provide for the appointment of a successor in the place of any director who may die, resign, or be prevented from acting. If at any time between two general meetings the number "172 PAETNEESHIPS AHD COMPANIES. of directors should fall below eight, the board shall have power to appoint provisional directors, so that the number of directors may be at least eight. Any director so appointed can only act for the term for which his predecessor would have acted. Art. 26. — A chairman and vice-chairman of the board are to be appointed every year. If both are absent, the directors present are to choose one of themselves to act as chairman. The chairman and vice-chairman may be re-elected. Art. 27. — The board shall meet at least twice a month. Five members shall form a quorum. Art. 28. — Resolutions shall be passed by a majority of the directors present at the meeting. If the votes are equal, the chairman shall have a casting vote. No proxies wOl be allowed at these naeetings. Art. 29. — The Resolutions are to be drawn up in the minutes and entered in a book, and signed by the member who acts as chairman of the meeting. Copies or extracts from the resolutions for use in Court or elsewhere are certified by the chairman of the meeting, or the member who performs his duties. Art. 30. — The Board of Directors is to have full power in all matters concerning the management and direction of the Company, viz. : — To settle the general expenses of the management ; To authorise bargains of every kind, sales of land, &c., necessary to carry on the business of the Company ; To purchase machines, engines, and generally all things requisite for the undertaking ; To authorise purchases and sales of moveable property; To authorise a resale of land or buildings not required by the Company, and to receive the price of the same, provided that the total value does not on any occasion exceed 300,000 fs. To grant and accept all leases ; To authorise the removal of opposition or mortgage ; To undertake all judical suits, either as plaintiB or defendant ; to deal with all arrangements, com- promises, &c. To authorise all withdrawals, transfers or assignments of property, stock, and shares belonging to the Company, and to give receipts and discharges ; To decide on the investment of any available funds ; FORM OF ARTICLES (SOCI^T:^ ANONYMls). 173 To decide all rules relative to the organisatioii of the employes, and the control of the Company's estab- lishments ; To appoint or revoke the appointment of all managers and agents ; to define their duties and powers, fix their salaries, and, if necessary, to settle the amount of the security which they are to give ; To fix and modify prices, and to carry out all arrange- ments in respect thereof ; To draw up the accounts to be submitted to the general meeting. To report to the general meeting of shareholders upon the position of the Company's business ; To borrow money, with the authorisation of the general meeting, either by issuing bonds or otherwise ; Finally, to manage generally all the business, and look after all the interests of the Company. Art. 31.— The Board of Directors -may delegate to one or more of its members general and special powers, and for one or more special purposes. It may also delegate to one or more of its members permanent powers for current business, or it may delegate to persons not members such powers as may be required by the conduct of the business and the profit- able management of the undertaking, and, in particular, the management of one or more of the Company's establishments. Art. 32. — Transfers of Shares and negotiable instruments belonging to the Company, deeds of purchase, sale and ex- change of real property belonging to the Company, orders on the bank and on all depositees of the Company's funds, negotiations, bargains, and generally all deeds importing con- tracts or obligations on the part of the Company, must be signed by two Directors, unless in the case of an express delegation to one single Director. Art. 33. — The Directors shall receive a jeton of attend- ance, the value and form of which shall be decided by the general meeting. Art. 34. — The directors do not incur by reason of their administrative acts any personal or joint and several liability in regard to the obligations of the Company. They are only responsible for the performance of the duties entrusted to them. Art. 36. — The directors may not take or keep any interest, direct or indirect, in an undertaking or a bargain 174 PAETNBESHIPS AND COMPANIES. made with the Company or on account of it, unless so authorised to do by the general meeting. Every year a special account is rendered to the Company of the undertakings or bargains authorised by it. If three-fourths of the Company's capital should be lost, the directors are bound to summon a general meeting of all the shareholders for the purpose of deciding upon the question of winding up the Company. Committee. Committee. Art. 36. — A committee of three persons is appointed, the members to bo nominated at the first general meeting of the Company immediately after the directors, and in the same manner. The committee may be selected from non-share- holders. Their duties last for one year, and they are eligible for re-election. If any of the committee so appointed refuse or arc unable to act, a substitute is to be appointed by order of the president of the Tribunal of Commerce on the applica- tion of any person interested, and after due notice to the directors. .Art. 37. — The committee are to report to the general meeting on the position of the Company, and on the balance- sheet and accounts presented by the directors. The com- mittee may inspect all books and examine all the operations of the Company as often as they think fit within the three months preceding the date of the annual general meeting. In case of urgency, the committee may summon a general meeting. The half-yearly accounts are to be laid before the committee. The stock-taking, balamce-sheet and profit and loss account, are to be transmitted to the committee at least 40 days before the general meeting. Art 38. — The committee shall receive a jeion of attend- ance, or a remuneration to be decided by the general meeting. General meeting. PARAGRAPH VI. General Meeting. Art. 39. — The general meeting, duly constituted, repre- sents the whole of the shareholders. Art. 40. — ^It meets annually before April 1st, and extra- ordinary meetings may be summoned by the directors or the committee. Art. 41. — Every holder of, or person entitled to 10 shares, is ipso fado a member of the general meeting. At tho FORM OF ARTICLES (SOCi:gT^ ANONYME.) 175 meetings conTened for the purpose of examining or confirming the contributions or the privileges reserved, and for the .election of the first directors and of the committee, every shareholder, whatever be the amount of his shares, may take part. Only shareholders can represent or act as proxy for other shareholders. The form of powers of attorney for this purpose is decided by the board of directors. Art 42. — The general assembly is regularly established when the shareholders actually present or represented hold at least one-fourth of the Company's capital. If the members present do not represent this amount, the meeting stands adjourned for a fortnight. Any resolutions passed at this second meeting are binding, whatever amount of capital is represented at it, provided that they deal only with questions which were in the paper for the previous meeting. Art. 43. — General meetings are summoned by advertise- ments inserted in two of the chief Paris newspapers for legal advertisements a fortnight before they are held. Notice is to be given of the object for which the meeting is summoned. Art. 44. — Resolutions dealing with the examination of the apports. The appointment of the first directors, The statement of the promoters. The raising of loans extending over a long period. Arrangements for incorporation with other Companies, Alterations of the Articles of .'Association, and Extension or winding-up of the Company must be passed at a meeting comprising at least one-half of the capital of the Company. If at the meeting summoned for the above purposes less than one-half of the capital is represented, it can only pass provisional resolutions. A new meeting is convened ; two advertisements, published at intervals of a week at least one month before the meeting, in one of the above-mentioned newspapers, inform the shareholders of the provisional resolu- tions, and the resolutions are carried if confirmed by the second meeting provided at least one-fifth of the capital is represented at it. Art. 45. — Shares are left at the head ofiice five days before the date of the meeting. Each shareholder so depositing his shares receives a ticket of admission bearing his name. 176 paetnee'ships and companies. the number of shares deposited, and the number of votes to which he is entitled on them. At meetings called to examine, the apports or the statement of the promoters, or to appoint the first directors, no shareholder can under any circumstances be entitled to more than 10 votes. Art. 46. — The general meeting is presided over by the chairman of the board of directors, or, if he is unable to attend, by the vice-chairman, and in default of both, by the senior member of the board. The largest shareholders present act as scrutineers; the secretary is appointed by the bureau. Art. 47. — ^The general meeting receives the report ot the directors and the report of the committee. It discusses the accounts and confirms them if approved. BILLS OF EXCHANGE. CHAPTEE I. BiUs of Exchange, Promissory Notes, Cheques, and other Negotiable Instruments. Definition of Bills of Exchange. The Parties thereto. The Laws relating to the subject. A lettre de change (bill of exchange) is a document drawn Deftnition np in the form prescribed by law, pursuant to which the exSia^gef di-awer orders a person resident in another place to pay a certain sum to the party named in the instrument, or to the transferee of such party. Three persons are necessarily parties to a bill of exchange : Parties, the tireur, the preneur, and the tire. The' tireur, or drawer, is he who draws the bill, and who, Tirmr. receiving value in one place, binds himself that a sum of money shall be payable in another place. The preneur is the party who receives the bill in payment JPreneur. of the consideration furnished to the drawer. The tire, or drawee, is the person to whom the drawer Twi. addresses the order to pay. Other parties can be comprised in a bill, such as the Other parties. tireur pour compte (drawer for a third person) ; I'accepteur (the acceptor), who is, in fact, the drawee when he has accepted the command to pay given by the drawer ; I'accepteu/r par inter- vention (acceptor for honour) ; the payeur par intervention (payer for honour) ; the recommandataire or hesoin (person to pay in case of need) ; the domiciliataire (person at whose residence the bill will be paid) ; and the donneur d'a/val (surety). N 178 BILLS OF EXCHANGE. The Frencli law relating to bills of exchange and negotiable instruments is based upon Arts. 110 to 189, inchisive, of the Code of Commerce, promulgated 21st September, 1807. The succeeding chapters contain a textual translation of the Articles of the Code and of the other special laws appertaining thereto. To each Article have been appended explanatory notes embodying subsequent legislation, and pointing out the divergences and contrasts existing between the laws of Prance and England upon the subject. CHAPTER II. BILLS OP EXCHANGE. Beflnition. Component parts. Value received must be ex- present with precision. OP THE POEM OP A BILL OP EXCHANGE. 1. Of the requisite and component parts of a hill of exchange. 2. Of hills drawn on account of third parties. 3. The legal effect of fraudulent statements contained in hills. 4. Of married women and their capacity to contract. 5. Of minors, their capacities and disabilities. 6. Of partnerships and Oompa/nies, Art. IIO.—A. toil! of exchange* is drawn from one place upon another (112, 189). It is dated. It states the sum payable, the name of the party to pay the same, the date and place where payment should be made (129). The value received in cash, goods, in account or otherwise (137). It is payable to the order of a third party, or to the order of the drawer (137). If the bill is drawn in sets of 1st, 2nd, 3rd, &c., it is so expressed (147). The nature of the value received must be expressed: — valeur en especes signifies value received in cash; valeur en marchandises represents the price upon a sale of goods; valeur en compte a sum due in account between the parties. The value can also be expressed in other ways, such as for commissions due, brokerage, &o. The words valeur regite (value received) alone are not sufficient, neither can the value * hettre de change. HOW BILLS CAN BE DRAWN, ETC. 179 be vaguely expressed, viz., valeiir awivant nos conventions de ee jour (value according to agreement between us of this date). In ease of omission of any of the essential conditions of Effect of omis- Art. 110, the bill will be void and of no effect. The above- con'cHtions.^ mentioned clause does not specifically pronounce such nullity, but it results from the context that a writing which does not contain the particulars thereby required is not a bill of exchange. It has been admitted at all periods that the above forms were compulsory under penalty of nullity, and the code was designed to give effect to the same doctrines. Bills of exchange drawn payable to bearer are illegal in Bills to bearer. France. A bill of exchange should be drawn in one place to be Place, forwarded to another for acceptance or payment. A bill of exchange is the means of carrying into execution the contract of exchange pursuant to which a valeur or consideration is given in one place in order to receive a sum of money in another. This constitutes the essence of the contract. The two places need not necessarily be commercial towns or cities, and no distance has been fixed by law as requisite to exist between them. Such questions are in the discretion of the Courts. Art. 111.— A bill of exeh.ange can be drawn How wus can upon one party and payable at the domieil or residence of a third. It can be drawn by the order and for the account of a third party. The drawee will arrange to provide the funds at the domieil of the third party at maturity. In default the latter is not compelled to pay the bill. A bill can be drawn by an agent acting in the name of his Bill drawn by principal ; thus a clerk or the wife of a trader signing such *^™ ' bill would add par procuration de .... In this case the trader, donor of the power, would be alone liable. The above practice is apt to throw doubt upon the validity of the bill, as the procuration can be disputed. The Bank of France does not discount such bills. Art. 113.— AR bills of exchange containing Effect of false false statements in respect of name, profession/'^'^"®""'- domieil, or the places where the same are drawn n2 180 BILLS OF EXCHANGE. or payable, have the force and effect of " simple promises " only. Validity o{ The decisions are somewhat conflicting as to whether any tmderthis of the defences arising nnder Art. 112 can be pleaded against ^^^°^®' a lona fide holder for valuable consideration. The weight of authorities, however, is in favour of the hona fide holder. Married Art. 113. — The signatures of m.arried and un- married women, non- traders, upon a bill of exchange, bind them only to the extent of " simple promises " (promesses simples). Women traders Bills of exohanee accepted by women, being traders, are bills for the perfectly valid. The presumption is that such bills are signed ^^tasiness. ^J them for the requirements of their business, and before 1867 they were liable to imprisonment for debt in relation thereto. Baia signed by Bills signed by women being non-traders, and by married traders. women without the authorisation of their husbands, are void as against them, and have not even the force of a "simple promise." The law is the same in respect to bills accepted by women traders which do not relate to their particular business. A married woman can sign a bill as the agent of her husband. Husband and If the wife carries on a business distinct from her husband, in business. she may, without his authority, bind herself for things which appertain to her business. In this case the husband also is bound by her acts, unless their estates are separate. Minors non- Art. lii.— Bills of exchange signed by minors, non-traders, are void as against them, without preju- dice to the rights of the other parties thereto, pursuant to Art. 1,312 of the " Code Civil." Minors who are Art. 1,312 of the Code Civil provides that minors cannot be exonerated from their engagements if they have benefited by them. A minor, being a trader, has full capacity to sign a bill of exchange, provided it concerns his business. The fact of his signature raises that presumption ; and the employment by him of a form habitually used in commerce is equivalent to a declaration upon his part that the instrument was signed by him as a trader, and the onu5 of proof is upon him to establish the contrary. Minors non- As regards minors, non-traders. Art. 114 enacts that the traders. obligation is Toid, and has not even the force of a " simple THE LAW AS TO MINORS. 181 promise." In effect a minor is incapable of binding himself, even civilly, without the authority of his guardian. He is in the same position in this respect as a married woman. A bill of exchange accepted by a minor and ratified after Ratacation his majority becomes a perfect bill to all intents and purposes, majorityt"""^ The other parties to the bill remain severally liable notwith- Liability of standing the disability of the minor, and his incapacity applies ° ^'^ ^^^ ^^^' whether he be drawer, acceptor, indorser, or guarantor. The defence of infancy can be pleaded against a liond fide Against lond holder. The onus of proof that the bill does not relate to his " trade lies upon the minor pleading it. Majority is fixed at the completion of the 21st year, at Emancipation. which age every man is considered in full possession of all civil rights. Marriage virtually emancipates a minor, and a minor, though unmarried, may be emancipated by his father, and if the father is dead, by his mother, when he attains the full age of 18. This is effected by a simple declaration of the father or mother before a justice of the peace. A minor who is an orphan may also be emancipated by the family council, but he must have attained the full age of 18. An emancipated minor cannot borrow under any pretext Conseil de without the authority of the family council, ofiicially confirmed '""' ' by the Court of First Instance, nor can he sell or alienate his estates otherwise than by the rules applicable to minors. In the event of his having contracted obligations, the Court will , take into consideration the nature of the transactions and the bona fides of the contracting parties, and may reduce thern. accordingly. An emancipated minor engaged in trade is considered as of Authorisation full age in all transactions that relate to his business. At) emancipated minor cannot trade until he has received the authorisation of his parents or of the family council, con- firmed by the Civil Court. The deed of authorisation must be registered and affixed in the Tribunal of Commerce of the place in which the minor intends to establish his domicil. In mercantile partnerships, each partner can bind his co- Liabiuty of partners by becoming a party to bills or notes in the name ^l^gct ofbills, of the firm or Societe. In France the law recognises three species of commercial Kinds of partnerships, viz., The Societe en nom collectif, the Societe en P* ° "^^ commandite, the Societe Anonyme. » The Societe en nom collectif is a partnership in which the SocUtSenmm whole of the members are known to the public, and are jointly fjabufty of members. 182 BILLS OF EXCHANGE. JBb commandite. Distinct liabilities. SocUUs anonymea. and severally liable in respect of the partnership debts. The partnership must carry on business under a style or firm containing the names of some or all of the partners. The partnership deed must be registered and advertised. The firm can agree to delegate one or more of its members to administer and manage the partnership business, and in this event the appointment must be published, to serve as notice to third parties that the remaining partners have no further power to accept bills, or pledge the credit of the Societe. In default of such appointment, all or either of the members can act. The Societe en commandite is a species of partnership, entered into between one or several traders and one or several parties or capitalists, called commanditaires, or associes en commandite. In the above Societe there are two kinds of partners — ^the actual responsible partners to the world, and the oommanditaire, viz., the party who advances money to the existing firm. The former are jointly and severally liable for all the debts of the concern, the latter to the extent only of his investment in the undertaking. The commanditaire cannot interfere nor take part in the management or operations of the Societe. He cannot bind the partnership by becoming a party to bills or notes, as his name does not appear in the style or firm of the under- taking, neither is he bound beyond his venture in respect to any transactions entered into by the acting partners. The deed setting out his participation as commanditaire must be registered, and an extract therefrom published. (Law of 24th July, 1867.) Societes anonymes are Companies divided into shares, and resemble limited liability Companies in England. The same general principles of law apply in cases relating to bills of exchange. The subject of partnerships and Companies will be found fully discussed in another place (see p. 117). I. O. TI.'s are not known in France. OP PEOTISION. 183 CHAPTER III. OP PKOVISION. 1. Of the ohligations of the drawer as regards furnishing provision. 2. Of the effect of provision at maturity. 3. Of the absence of provision and the effects thereof, ^rt. 115. — HhB provision should be furnished Duty of the by the drawer, or by the party for whose account ^TSa'as*?^" the bill is drawn, but the drawer for account of a™®^'*ii8biii. third party remains nevertheless personally respon- sible towards the indorsers and the holder alone an, 117.). Upon the drawing of a bill the drawer alone is liable to the Liability of holder. He has bound himself that the amount of the bill ^^'^^^'■ shall be paid at maturity by the drawee. Apart from this first obligation, he has undertaken to procure the acceptance of Provision. the drawee before maturity. In order to compel the drawee to pay the bill and to accept the same before maturity, the drawer must furnish him with the means of fulfilling the engagement, which means are denominated provision. Thus, by provision is meant the sum destined for the pay- ment of the bill. The drawer must either obtain payment by the drawee of the bUl at maturity, or he must himself provide for pay- ment being made. The drawer, therefore, must furnish the provision. The fact of the drawee having received provision is Effect of non- important, as, if the holder is not paid at maturity, he must Payment, protest the bill the following day, and notify the non-payment to the sureties, and proceed against them. In default of making the protest within the periods fixed by law, he cannot sue the drawer if the latter can prove that he furnished pro- vision. If he cannot prove this, it is an admission that he Accomodation has not provided the needful funds to meet the bill, and ^^^" therefore he cannot be prejudiced by the default or delay in making the protest, and the holder retains his recourse against him. But indorsers can plead the default without being obliged to prove that provision was given. 184 BILLS OF EXCHANGE. Bill "onaocount of third party." Bill drawn ' account o£ drawer." JProvision implied. Presumption in case of acceptance. A bill can be drawn for the account of a third party. We are therefore led to consider the obligations of the drawer, and of the party on whose behalf he drew (the donneur. d'ordre). Art. 115, above cited, enacts that when a bill is drawn on behalf of a third party, the latter, the donneur d'ordre, must furnish the provision ; but that the drawer on his behalf remains, nevertheless, personally liable to the indorsers and to the holder alone. Thus, the fact of the donneur _d'ord/re being compelled to furnish provision does not release the drawer from so doing, but the obligation of the latter applies only to the indorsers and the hold,er. for A drawer of a bill on his own account, being the principal of the drawee or acceptor, is bound to indemnify him for that which he pays in the execution of his mandate. Therefore, should the drawer not provide the funds for the drawee to meet the bill, the latter can sue him for reimbursement of the sum he paid at maturity. Should the acceptor fail to pay the biU at maturity, and be sued and compelled to pay, he can further recover from the drawer the amount of the bill and the expenses he has been put to in the action. But a drawer on behalf of another (tireur pour oompte) is not liable as above to a drawee who purely and simply accepts the bill. As regards the drawee, the tireur pour coTivpte is simply the agent of the donneur d'ordre, and binds his principal without becoming responsible himself. At^t. JI 6. — There exists "provision" if, at the maturity of the bill, the party upon whom it is drawn be indebted to the drawer, or to the party upon whose account the bill was drawn, in a sum at least equal to the amount of the bill of exchange. Art. 117. — By acceptance "provision" is pre- sumed to exist, and as regards indorsers acceptance establishes proof thereof. Whether there be acceptance or not, the drawer alone is bound to prove, if it be disputed, that the parties upon whom the bill was drawn had pro- vision at maturity : otherwise he is compelled to give security for the same, although the protest may have been made after the periods fixed by law (118, 170, 173). OF ACCEPTANCE. 185 CHAPTER IV. OP ACCEPTANCE. 1. Of tlie guarantee of the droMer and indorsers in regard to acceptance and payment. 2. Of protest in default of acceptance. 3. Of the liahilities of the drawer and indorsers thereupon. 4. Of the ohligations of the acceptor. • 5. Of the form of acceptance. 6. Of hills payable elsewhere than at the residence of the acceptor. 7. Of conditional and partial acceptances. 8. Of presentation for acceptance. Art. 118. — The drawer and indorsers of a bill Position of of exchange are jointly and severaUy sureties forSdOTlerX'' the acceptor and for the payment of the bUl at maturity. (121, 128, 136, 140, 143, 144). Art. I19. — Th.e refusal to accept is proved Refusal to by a document caUed protest for non-acceptance.* ^'"^^''• (126, 156, 163, 173). Art. 120. — Upon notification of the protest Notification of for non-acceptance, the indorsers and the drawer acceptance."""" are respectively bound to give seeiirity to ensure the payment of the bill at maturity, or to pay the same, together with the expenses of protest and of re -exchange. The party giving security for the drawer or for an indorser is jointly and severally liable only with the parties for whom his security is given. The holder and indorsers are all compellable to give Who mtiEt give security, but it can only be obtained from one of them. ^®°""'''" They are liable respectively, that is to say, the party having furnished security can enforce the same right against his co-guarantors. The object of the above security is to replace the personal guarantee of the drawee in providing, where default has been made. When the drawee refuses acceptance, the law provides that When accept- the drawer and indorsers are respectively Halle to furnish * Prot$tfaute d' acceptation. 186 BILLS OF EXCHANGE. Rights of holder in respect of security. Bights of par- ties inter se. Presentation for payment. Acceptor. Liability of acceptor. Duress. security. The object of the word respectiveh/ is to indicate the recourse of each and all of the parties against each other. Thus, upon non-acceptance, the drawer proceeds against the last indorser and obtains security, and the latter can sue the indorser preceding him and obtain the like, avnsi de suite up to the drawer inclusive. The holder cannot compel all the parties to the bill to give security. He must choose between the drawer and any one of the indoisers. When one has furnished security, the others are liberated. This question has been much controverted, but the above ruling is the law. Instead of giving security, any party from whom it is demanded by the holder can pay the amount of the biU, together with the expenses of protest and re-exchange, which we shall discuss infra. Each of the parties liable is free to select the mode he prefers, viz., to give security or to pay the bill. It there- fore follows that, if one of the parties has preferred to pay, he cannot in his turn compel the other parties to pay, but must accept security should they elect to furnish it. At maturity, the holder should always present the bill to the drawee, although he may have refused acceptance (Art. 163), as he is the principal charged with the payment, and he may have altered his decision from having received provision in the meantime. An indorser, having given security, can proceed against his immediate indorser to compel him to do the like in his turn, and so on up to the drawer. Art. 121.— A party accepting a bill of exchange takes upon himself the obligation of pasdng the amount thereof. An acceptor cannot recall his acceptance even if the drawer had suspended payment without his (acceptor's) knowledge before he had accepted the biU. The above Article must not be construed as precluding can- cellation under any circumstances. In the case in question, the hypothesis relied upon is that the error is not considered as substantial. In effect it is not certain that the drawee would not have accepted if he had known of the suspension of the drawer ; he might have accepted for his honour. An acceptance extorted by violence is absolutely void. OF ACCEPTANCE. 187 An acceptance obtained by fraud is void as against the Fraud, wrongdoer if he remain the holder at maturity, but as regards third parties without notice, the acceptor is liable. (See also • Art. 114.) An acceptance cannot be cancelled even in the event of the signature of the drawer being a forgery. Acceptance is the declaration pursuant to which the drawee Explanation of contracts with the holder of the bill an engagement to pay ^''°®P*^"<^- the amount thereof at maturity, and at the place in which the instrument is payable. This contract is essentially unilateral, and is in the nature of a guarantee, as the drawee promises to the holder to carry into effect the engagement entered into by the drawer and guaranteed by the indorsers. A drawee who accepts must have legal capacity to bind himself by a bill of exchange. The holder of a bill has the right to require acceptance before maturity, but no obligation so to do is imposed upon him. He is at liberty to dispense with acceptance, and to present the bill at maturity only for payment. Presentation for acceptance is, however, necessary in the BUls payaWe at case of a bill payable at a certain time after siglii. after sight. The law of France grants the drawee 24 hours to give or Time allowed to refuse his acceptance from the presentation of the instrument, to enable him to verify the signature of the drawer, and to examine his accounts with him to ascertain whether he is or not indebted to him. Should he fail to return the bill after the expiration of the 24 hours, accepted or not, he is liable in damages to the holder. Art. 122. — The aeeeptanee of a bill of exchange signature of , , . J acceptor. must be signed. The acceptance is expressed by the word "accepts." The acceptance must be dated if the bill is payable at one or several days or months after sight; and in , the latter case, in default of the acceptance being dated, the bill is payable at the expiration of the term expressed, calculated from the date of the bill. The acceptance of a bill of exchange must be iu writing. Essentials of The signature of the acceptor is necessary, and would be aoo^Ptanoe- sufficient alone to bind him if placed upon the instrument. This is apparent from Art. 140, which renders all parties 188 BILLS OF EXCHAKGE. Formal woriJa. Amount of bill. Where payable, Unconditional, ConditionEil acceptance not valid. Partial acceptance. Time for acceptance. ■who have signed the bill jointly and severally liable for the amount thereof. The word accepts, however, renders the acceptance formal, but it could be replaced by the French equivalent for "I will pay," " I will discharge," " I will honour'." The acceptor need not set out in writing the amount of the bill, as he refers to the sum mentioned by the drawer, but as a precaution against forgery it is prudent that he should write the amount for which he accepts in full. Art. 123.— mhe acceptance of a bill of exchange payable in a place other than the residence of the acceptor must state the domicil at which payment will be made, or the requisite legal formalities com- plied with (143, 111). Art. 124.— An acceptance cannot be conditional; but it can be limited as regards the amount accepted for, and in this event the holder must protest the bill for the surplus (156). The acceptance must be pure and simple. The holder could refuse a conditional acceptance, oi* one changing the date of maturity or the mode or place of payment set out in the bUl. The holder is compelled to receive a bill which is accepted for a portion of the amount, and should protest it for the surplus and obtain security from the drawer and indorsers, as explained elsewhere. Art. 123.— A bill of exchange should be accepted upon presentation, or at latest within 24 hours there- from. After the expiration of 24 hours, if the bill be not returned accepted or non-accepted, the party retaining the same is liable for damages to the holder. OF AOCEPTANCE BT IXTEETENTION OR FOR HONOUR. 189 CHAPTEE V. OF ACCEPTANCE BY INTEUVENTION.* 1. Of the parties and necessary conditions to acceptance hy ■intervention. 2. Of notice of intervention. 3. Effect of acceptance hy intervention upon the parties to the ■bill. Art. 126. — In the case of protest for non-aceept- Aooeptanoe by anee, the bill of exchange can be accepted by a third '^'''^ ^^' party intervening for the drawer or for one of the indorsers (119). The intervention is mentioned in the protest and must be signed by the party intervening (Art. 158). Intervention is equivalent to becoming voluntary surety ; Acceptance tor it is also called acceptation par honneur, or sous-protet. honour. Three conditions are necessary for intervention : (1) That Essential oon- the acceptor by intervention be not otherwise liable to pay the ^ '™^' bill, as in that event his intervention would afford no fresh security. (2) The protest must have been made ; it must be proved that the drawer will not accept. (3) The acceptance must be mentioned in the protest and s'igned by the party intervening. An acceptance by intervention cannot be given by the -drawer or by one of the indorsers, because they are already .sureties for the payment of the bill. The drawee can accept by intervention. It may happen that not having received provision from the drawer he may refuse to accept purely and simply, but he may intervene for the honour of one of the indorsers. The protest need not precede the acceptance of the drawee by intervention. The party intervening should immediately notify his inter- vention to the person for whom he intervened. * 8wpra protest, or for honour. 190 BILLS OF EXCHANGE. Notice to bo given by- acceptor for honour. Art. 127. — The party intervening is bound to notify his intervention -writhout delay to the person for whom he intervened. This is to enable the latter to adopt the necessary measures to protect his interests. Should it be the drawer, for instance, he wiU not send the provision to the drawee who has refused to accept, or he would withdraw that furnished by him. It will be observed that no stated time is prescribed. The law says that the notification must be made without delay. In case of dispute the decision rests with the Courts. Art. 128. — The holder of a biU of exchange preserves all his rights against the drawer and indorsers in the case of the drawee refusing accept- ance, notwithstanding all acceptances by intervention (" droits du porteur," 118, 160). The effects of an acceptance by intervention are not the ^ffeotthe".^^ ^°^ same as those produced by a direct acceptance of the drawee, holder's rights. "We have already seen that the acceptance of the drawee discharges the drawer and the indorsers from the obligation of procuring such acceptance, but when an acceptance is given by a third party who intervenes, the substitution of the latter for the drawee is a change with which the holder is not bound ta content himself. Thus, it is enacted that notwithstanding all acceptances for honour, the holder preserves all his rights against the drawer and the indorsers, resulting from the non- acceptance of the drawee ; consequently, the holder, notwith- standing the acceptance by intervention or for honour, can pro- ceed against the parties for whom intervention was made and compel them to furnish security, or to pay the bill in the manner explained in the observations upon Art. 120. If the intervening party is solvent the holder wiU obviously be satisfied with his acceptance. Acceptance for" OF MATUEITT, 191 CHAPTEE VI. OE MATUEIIY. 1. Of the periods at which a hill of exchange can he drawn. 2. Bills drawn at sight, when payahle, 3. Bills draivn at sight, maturity how fixed. 4. Of usances and calendar months. 5. Of hills payahle in fair time. 6. Of hills payahle upon puhlia Iwlidays, 7. Of days of grace and local customs. Art. 129. —A bill of exchange can be drawn asBiUsdrawnat follows :— At sight ^^^^ ^^^• At one or several days At one or several months J- after sight. At one or several usances ] ] At one or several days At one or several months ^ after date. At one or several usances At a day fixed or determined. At fair time (133). Art. 130. — A bill of exchange drawn at sight is At sigM. payable upon presentation (160). Art. 131. — The maturity of a bill of exchange At one or several days ^ At one or several months [■ after sight At one or several usances j is fixed by the date of acceptance, pr by that of the pirotest for want of acceptance (126). Art. 132. — A usance is reckoned as thirty days, Usances, commencing the day following the date of the bill. Months are calendar months, calculated according to the Grregorian Calendar. Art. 133. — A. bill of exchange payable diiring Fairs, fair time matures the day previous to the closing of the fair, or the day of the fair if the same last but one day. (Arts. 161, 162.) Art. 134.— vrhen a biU of exchange matures HoUdaya. upon a legal holiday, it is payable the day preceding (Arts. 161, 162, and note). 192 BILLS OF EXCHANGE. Days of grace, &c., aboUshed. Art. 135. — All days of grace, favour, usage or local custom for the payment of bills of exchange are abolished (Arts. 157, 161). If a bill is drawn payable one or several months after date, it matures on the date of the month of payment corresponding with that of the month in which it was drawn. Thus, a bill drawn on the 10th January at two months is payable on the 10th March. A bill drawn on the 31st day of January at three months would be payable on the 30th April, and so on in corresponding cases where the number of days in different months is unequal. These points are of importance, as will be seen in the chapter upon Protests. CHAPTEE Vn. Indorsement. Common form. Signature of indorser. Law of tlie place where Indorsement made. , OF INBOESEMENT. 1. Of the form and effect of indorsements. 2. Of the date and consideration. 3. Of the effect of irregular indorsements. Blanhi/iidorsements. 4. Of antedating of indorsements. Forgery. Art. 136. — The property in a bill of exchange is transmissible by indorsement. The indorsement must be in writing, and is usually placed at the back of the bill, but indorsements can be commenced upon the face of the instrument upon the right hand and con- tinued to the back of the document, or can be continued upon a slip annexed to the bill. The following is the common form of indorsement : — " Payez a 1' ordre de M . . . valeur rejue .... " Le 1 Avril, 1878. (See forms.) Signed.) " Duval." The indorsement need not be written by the indorser him- self, his signature thereto is sufSoient, The signature need not be preceded by the words bon or approuve. The indorse- ment can be made by an agent duly authorised. The form of indorsement is governed by the law of the place in which it is made — locus regit actum. If the bill, for instance, were indorsed in London, although it had been drawn in France and would be payable there, the validity thereof and its effects would be governed by English law. Bills can be indorsed after maturity. OF INDOESEMENTS. 193 Art. 137. — The indorsement is dated. It sets out the value received. It mentions the name of the party to whose order it is passed. (Art. 110.) The statement of the value received is required in order Value received that it may be seen what security exists for payment of the bill, but in practice little importance is attached thereto. The object of inserting the date in indorsements is to ascer- Date of tain whether, in case of the bankruptcy of the indorser, the indorsement was made subsequently thereto, in which event it is void. Art. 138.— If the indorsement be not in con- P^^ct of incomplete formity with the preceding section, it does not take indorsement. efifect as a transfer, but operates as a procuration only. If a biU. is indorsed in blank, the particulars required by Indorsement in Art. 137 can be filled in by any person, even by the party to filled up. whom the bill is transferred, and the indorsement can thus be made regular ; and neither the holder nor the other parties will be allowed to set up that such particulars were filled in ■ subsequently to the blank indorsement for the purpose of rendering it complete. The holder of a blank indorsement has, however, no power to fill in the details above-mentioned after the death or bank- ruptcy of the indorser. The indorsement of a bill drawn in a foreign country, and payable therein, has force in France when it is made in the form prescribed by such country. An indorsement in blank confers upon the holder the Sights of right to sue the acceptor for payment, but the latter can plead the same defence against the holder as he could against the indorsee through whom the holder acquired his right. A blank indoraement contains the signature only of the in- Effect of a blank dorser. In practice a party negotiating a biU often simply affixes Lis signature thereto and passes on the instrument, the object being to save time, but with the intention of transferring his property iti the bill. This mode of transfer is admitted as sufficient in several countries, among others Belgium and England (See Appendix A, "Blank Indorsements"), and the French law admits its sufficiency to transfer the property in 194 BJLLS OP EXCHANGE. Results of irregular indorsement. Antedating indorsement is forgery. "cheques payable to order" (Law 14th June, 1865). A blank indorsement presents other advantages, viz., it can circulate in the same manner as a titre au porteiw; it can be passed from hand to hand without any mention of the successive holders, the last holder having simply to fill in the blanks to become the legal holder. In this way, however, the guarantee of the successive holders is lost, as no trace remains of their having been parties to the bill. The holder of a bill transferred by an irregular indorsement is subject to all the equities attaching thereto, and the drawee, acceptor, or prior indorser can plead the same defences against the holder in an action on the bill as they could against the previous indorser from whom he received the bill. An indorsement which does not fulfil all the conditions mentioned in Art. 137 is called irregulier (irregular), and does not transfer the property in the bill ; the holder then is merely the agent of the indorser. The consequences of an irregular indorsement are : (1) The creditors of the indorser can attach the amount of the bill of exchange in the hands of the drawee. (2) The drawee, when he is a creditor of the indorser, can plead a set-ofB in an action on the bill. (3) The indorser can, provided the bill has not been paid, and the holder has not negotiated the bill by means of a regular indorsement, revoke the procuration and prevent the holder from receiving payment. The holder, pursuant to a blank indorsement, has a right to demand of the drawee acceptance of the bill and to receive payment at maturity, and give a receipt ; he can also transfer the property in the bill by a regular indorsement. Art. 139.— It is forbidden to antedate indorse- ments. Such an oflFenee is forgery. The object of the above provision is to prevent a holder of a bill, pursuant to a blank indorsement, from antedating the same after his bankruptcy, in order to receive payment of the bill by means of a third party. (The law upon forged bills will be found in the notes to Art. 149, infra.) OP SOLIDARITY AND ATAL. 195 CHAPTEE Vin. OF JOINT AND SEVERAL LIABILITY. (dE la SOLID AKITE.) 1. Of the relation of the 'parties to a hill of exchange towards the holder. Art. 14:0. — All the parties who have signed, accepted, or indorsed a bill of exchange are jointly and severally liable to the holder (Arts. 118, 160, 164, 187). The parties are jointly and severally liable. The holder Joint and must apply in the first instance to the acceptor of the bill of parties to or the maker of the promissory note ; he cannot exercise • his right of proceeding against all the parties to the instru- ment until after the protest has been made against the ac- ceptor or maker as above. A party paying the bill has recourse against all preceding indorsers. The holder can sue all the parties collectively or indi- vidually. See Art. 5 of the Law of 5th June, 1850, as to the rights of the holder of an unstamped bill against the other parties. CHAPTEE IX. OP AN "aval" (sUKETy). 1. Payment of a hill of exchange can he guaranteed hy an " aval." 2. Form and effect of guarantee and parties thereto. Art. 141.— The payment of a bill of exchange. Aval. independently of acceptance and indorsement, can be guaranteed by an "aval" (surety). The person who becomes surety is termed the donneur Svnety for payment. d aval. "Aval" is a species of suretyship entered into by a person who can capable of becoming a party to a bill of exchange. An aval ^''°^^ ^^^ ^' cannot be given by a party already liable on the bill, as such a surety would not increase the guarantee possessed by the holder. An aval can be given on the bill itself, or by a separate instrument ; a letter is suflBcient. ^ 02 196 BILLS OF EXCHANGE. Formal words. The guarantee maybe conditional. Gnarantees how given. Liability of guarantor. The words aval or hon pour aval are not absolutely requisite ; their equivalents will suflBce, thus — " cautionne- inent or hon pour la somme de , or hon pour la garantie du inontant d'autre part. The simple signature of the surety near that of the party he wishes to guarantee has been held sufficient. An aval can be conditional. It can be given for part of the amount of the bill only, or for a limited time, also upon condition that the donor be not subjected to the jurisdiction of the Tribunal of Commerce, &c. The surety can avail himself of the same defences and remedies as the party for whom he became security. Art. 142. — This guarantee is given by a third party, upon the bill itself or by a separate docu- ment. The guarantor is liable jointly and severally with the drawer and indorsers, u.nless the parties other- wise agree. An aval can be given after maturity. CHAPTEE X. OP PAYMENT. 1. In ivhat currcncij a hill inust he paid, and hereon of legal tender. 2. Effect of paying hill hefore maturity. 3. Effect of payment at maturity. 4. Holder not compellahle to accept payment hefore maiuriiy. 6. When payment on a second or third of exchange valid. 6. Effect of ahove when hill hearing acceptance not retired. 7. Of lost, stolen, and forged hills. 8. Remedy of owner of lost unaccepted hill. 9. Of proceedings in case of lost accepted hill. 10. Proceedings to ohtain judge's order for payment of lost hill, and mode of proof, and hereon of traders' hoohs. 11. Of a deed of protestation. Eifferencehetween same and deed of protest. 12. Measures to he adopted hy oivner of lost hill to procure a second called " deuxieme de change." 13. Buration of security mentioned in Arts. 151 and 152. OF PAYMENT. 197 14. Effect of payments made on account of a hill. 15. Poiuer of Courts to give time for payment of hills of e.vcliange. Art. 143.— A bill of exchange must be paid in the currency indicated thereon (Art. 187.) It vrould seem, however, that a bill of exchange drawn in Currency in Pounds sterling in London upon Paris can be paid in the p^^le ''^ '^ equivalent in French money. The construction of the above Article depends upon the circumstances, and it may be taken as a general rule that payment may be made in the currency of the country in which the instrument is payable. In default of stipulation to the contrary, the bill must bo paid it the currency of the time and place of payment ; thus a bill payable in France must be paid in French gold or silver. Five francs is the limit allowable to be paid in bronze coinage Limits of (decree of 12th August, 1810), and 60 francs for silver pieces of teonze and 20 centimes, 50 centimes, 1 franc and 2 francs. (Law of 25th silver coin. May, 1864, Art. 2, and Law of 14th July, 1866, Art. 1 and 5.) A bill formerly could not be paid in banknotes without the Bank notes a consent of the holder (1805), but at the present time the holder ^^ ™ ^'^' must accept payment in notes if required. (Law of 12th August, 1870). The drawee, upon payment of a bill of exchange, should demand that the bill be handed to him with the receipt of the holder indorsed thereon. Should he not demand delivery of the bill, he would be Necessity for liable if the holder put it into circulation. The drawee should S6ntof°th6 MU. insist upon the receipt apart from the delivery of the bill, as he thus is assured of the identity of the holder, since the party presenting the bill is under the necessity of 'committing forgeiy should he be a fraudulent holder. In other ways also possession of the bill alone is not sufficient evidence of pay- ment, as bills are often delivered into the possession of the drawee for acceptance, as also for verification before payment (ride infra, notes to Art. 145). Art. 144.— A. party paying a bill of exchange payment before -.-.,- X, maturity. before maturity is responsible for the validity or sucn payment (Arts. 129, 146, 161). This arises (Art. 144) where the holder is unknown to LiabiUty of , . . . •j!_-u- T4- acceptor after the acceptor, and the latter has not time to verity ins quality payment. or identity, as the bill must be immediately paid under penalty 198 BILLS or EXCHANGE. of protest. This rule applies in the cases of the holder being bankrupt or being a fraudulent holder, or where the indorse- ment or receipt is forged. But the acceptor is only presumably discharged. He will be held liable if it can be proved that he had notice of the incapacity of the holder or the illegality of his possession of the bill, or if he could have ascertained the same by verification of the indorsements and making the pre- tended holder sign a receipt, or where a valid attachment had been duly served upon him. Forged In all the above cases the acceptor should refuse payment, as a holder, through a forged indorsement, though hondficle cannot sue on the bill. Parties liable The holder and all the indorsers subsequently to the forgery indorsement. wiU have recourse against each other in their turn to recover the amount of a bill improperly paid by them, up to the indorser who received the bill from the forger. The indorser in question can only exercise his remedy against the forger. Bankrupt A drawee who becomes bankrupt cannot legally pay a hill of exchange, as he has been deprived by the adjudication of the administration of his property, and of the exercise of his rights. Paymentbefore If however, the drawee is simply in a state of insolvencv, adjudication m. ii. .,,. „ bankruptcy. having ceased his payments, without the date of cessation having been judicially decided by the Bankruptcy Court, payment by him of bills is valid, and the holder cannot be called upon to refund the amount received to the trustee or syndic of the bankruptcy. Payment Aft, 143. — A party who pays a bill of exchange •without notice ....,.., . . of opporition. at maturity and without receiving notice of opposi- tion to the payment is presumed to be legally dis- charged (Arts. 129, 149, 161). Art. 146.— The holder of a bill of exchange can- not be compelled to accept payment thereof before maturity. In the case of a bill of exchange, the holder may have an interest and object in receiving his money at the period and place named therein for payment. There occurs one exception, however (see ante, Art. 120), In default of acceptance an indorser may immediately pay the bill, to avoid giving security. co1wS't''biu°' ^''*' i^?"-— The payment of a bill of exchange drawn in sets. OF PAYMENT. 199 made upon a second, third, or fourth of exchange, &c., is valid when the second, third, fourth, &c., state that the payment thereof annuls the others (Arts. 110, 148). Art. 148. — TTie party who pays a bill of ex- withdvawai of change on a second, third, fourth, &c., without ''"'"^""''^'"■ retiring the bill upon which his acceptance appears, is not discharged as regards the holder of such acceptance (Arts. 110, 121), Art. J 49. — Opposition to payment of a bill of exchange is admissible only in the case of the bill being lost or the bankruptcy of the holder (Arts. 143, 150). The drawee cannot pay when oppositions have been served Oppositions. upon him, viz., when he has been served with notice in the prescribed French legal form not to pay. The law recognises two cases in which such an opposition When tliey may can be lodged— 1. The loss of the bill. 2. The bankruptcy '"' ^°''8®'^- of the holder. Let us examine these hypotheses — 1. Case of loss of the bill. — ^When a bill of exchange is lost Lost bill. or mislaid, the first care of the holder should be to lodge an opposition in the hands of the holder. (This is done by applying to a huissier, who will draw up and serve the necessary document, previous to which a judge's order must be obtained.) This will prevent the finder, if dishonest, from receiving payment upon presentation of the bill at maturity. 2. Bankruptcy of the holder. — When a holder of a bill is Bankruptcy of adjudicated bankrupt, and the trustee (syndic) is advised that the bankrupt is the holder of a bill not yet matured, he should proceed at once to lodge an "opposition" with the drawee, otherwise the latter, upon paying the bill without notice to the holder, would be discharged. If by chance the. accbptor had already paid the bill before maturity, he would, as explained ante (Art. 144), be compelled to pay the amount over again. {See also Arts. 150, 151, 152 and 153, and notes.) We may examine in this place the cases of forgery Forgery, what ■',.,,„, 1 ,, Ti constitutes it. apphcable to bills of exchange and the consequences result- ing therefrom. The following acts constitute forgery:— (1.) Fraudulently counterfeiting the signature of an existing 200 BILLS OF EXCHANGE. Drawer's signa- ture tovged. Forged acceptance. Alteration of amount. rorged indorsement. Drawee discharged if no opposition lodged. person as drawer. (2.) Signing a bill of exchange with an imaginary name, (3.) Fraudulently causing a bill to be drawn to one's order with the intention of negotiating the same. (4.) Fraudulent alteration of the amount payable in a genuine bill. (5.) Affixing an acceptance upon a bill followed by the forged signature of the drawee. (6.) The fraudulent per- sonification of the holder of a lost or stolen bill, (7.) The negotiation by means of a forged indorsement of a lost or stolen bill. Of forgery in the dramng of a hill. — The drawee is not com- pelled to pay a bill that he has not accepted, but in case of acceptance of a forged bill he must pay a bond Jlde holder for value. Of forgery in the acceptance. — The drawee having never accepted need not pay. The holder for valuable consideration has only rights against the drawer and preceding indorsers. Of the forged aU&ratton of the amount of the hill. — ^We must distinguish whether the alteration took place before or after acceptance. In the first case the drawee who has accepted must pay the bill to a hondfide holder, but he, the .acceptor, can exercise his remedy against the drawer if he issued the bill with the clause sans autre avis (without further advice), and thus deprived the drawee of the means of verification, or if the drawer negligently inserted the amount payable in figures instead of words. In the second case, the drawee is only compelled to pay the sum for which he originally accepted the bill. Of a forged indorsement. — ^We must distinguish the case of a forgery being committed by a party who has stolen the bill, and the case of a party who, in order to indorse in his turn, has filled in a blank indorsement by fraudulently writing the name of another person. In the first case the drawee is discharged by payment of the bill to the holder, provided he has not received an " oppo- sition " from the genuine holder of the bill. In the second case, the drawee who pays the amount of the bill to the holder is validly discharged; but if he becomes bankrupt, the holder cannot have recourse against the person whose name has been fraudulently used to fill in the blank indorsement. He can only proceed against the drawer and the prior indorsers. The above rules apply equally to the acceptor by inter- or LOST BILLS. 201 vention and to the persons designated to accept au besoin (in case of need) who have accepted the bill. Ai't. 130.— In the case of loss of a bill of TTnaooepted exchange unaccepted, the party to whom it belongs ' °^'' can sue for payment on a second, third, fourth, &c. Art. 131. — If an acceptance be written upon a Proceedings bill of exchange which is lost, proceedings for pay- j'uage'!^'^ °* * ment upon a second, third, fourth, &c., cannot be instituted without a judge's order and after giving security. The President of the Tribunal will fix the amount of security. If there has been no acceptance, and a second biU has been created, the law does not require security to be given, as the drawee can always refuse to pay upon the last bill. In the case of a bill having been drawn in sets, one of which Bills drawn in has been accepted by the drawee, the latter can refuse to pay should one of the imaccepted copies be presented to him, as he would reipain liable to the holder of the accepted bill. The owner of a lost bill, in order to obtain payment of a second or third, must obtain a judge's order, and furnish security to indemnify the drawee in the event of his being sued on the accepted bill. Such, security endures for three years only. (See Art. 155.) Art. 152. — If the party having lost the bill of Proof in respect exchange, whether accepted or not, cannot produce the second, third, fourth, &c., he can demand payment of the lost bill, and obtain same by a judge's order, upon proving his title thereto by his books, and upon giving security (Arts. 8, 12, 109, 155). He cannot prove his title by his correspondence alone. Evidence of This has been expressly provided, as it is held that the holder should keep his books correctly. As regards a non- trader, however, the above rule would not prevail. The right of the applicant is adjudicated upon by the President of the- Tribunal. Art. 8 of the Code of Commerce obliges every trader to Code of -, PI- Commerce, keep a journal, in which daily entries must be made of his Art. 8. receipts and payments, of dealings in his business, and of his negotiations, acceptances, and indorsements of bills ; entries must also be made month by month of his housekeeping 202 BILLS OF EXCHANGE. Art. 9. Penalties for non- compliance. Protest. Notice. expenses. This journal must be kept independently of dther trade books customary in commerce. A trader must also file all letters he receives, and take press copies of aU letters he sends. By Art. 9 of the same code he must draw up every year an inventory of his realty and personalty, and of his assets and liabilities, and this inventory must be copied every year into a special register kept for the purpose. Traders must preserve their books for a period of 10 years. Business books properly kept can be admitted by the judges as evidence between traders in relation to actes de corrimerce. A trader who makes default in compliance with the above enactm.ents cannot produce his books as evidence in a Court of justice in favour of himself, and he renders himself also liable to the penalties attaching to fraudulent bankrupts should he suspend payment, viz., imprisonment from one month to two years. (See Art. 586 of the Code of Commerce.) Aft. 133.— In the event of payment being refused upon demand, made pursuant to the two preceding sections, the owner of the lost bill pre- serves all Ms rights thereunder by making an act of protest. This formality must be complied with upon the day follow- ing the maturity of the lost bill. The protest must be notified to the drawer and indorsers in the forms and within the time specified hereafter for the notification of protests. The deed of protestation differs from a protest, inasmuch as a copy of the bill does not appear thereon. It is impossible for it to appear, as the bill is lost. Art. i 54,— The owner of the missing bill should, to procure the second, apply to his immediate indorser, who is bound to lend him his name and services to proceed against his own indorser ; and so on through all the indorsers up to the drawer. The owner of the missing bill bears all the costs of the above. He retraces the line of indorsements with the aid of the He must pay the expenses attendant thereon, as He should obtain a fresh bill from the drawer, called deuxieme de change, containing a statement that payment thereof annuls the previous bill. He Necessary steps to obtain payment, .when mdorsers. the bill was lost through his default. OF PAYMENT BY INTEEYENTION. 203 will then re-establisli the indorsements, and the drawee can then safely pay the bill (Ai-t. 147). In the event of the first bill having been accepted by the drawee, the holder must indemnify him in case he should bo compelled to pay the same {vide infra). Art. 153.— The obligation of giving security, Security. mentioned in Arts. 151 and 152, becomes inopera- tive after three years, if, in the meantime, proceed- ings have not been instituted (Arts. 189). The acceptor nevertheless remains liable to be sued on the Statute of bill for five years, but practically it has been found that there 1™^**"°''^- is little danger after the expiration of three years. Art. J 56.— Payments made on account of the Payment on amount of a bill of exchange relieve the drawer and ^'""^^*- indorsers pro tanto. The law is unsettled as to whether the holder is compelled Part payment. to accept partial payment. The holder must protest the bill for any surplus due. Art. 137. — The Cotirts cannot give time for pay- ment of a bill of exchange. In practice, this Article is not acted upon in Paris, as in the Time for case of bills the judges give the debtor twenty-five days to^Sedbythe pay, with the consent of the creditor. The defendant, by C!°™''s- defending an action, could always gain the sam.e delay. CHAPTER XI. 01' PAYMENT BY INTERVENTION. 1. Payment by intervention takes place after protest only. 2. Position of party paying hy intervention and effects thereof. Art. 138.— A protested bill of exchange can be Protested wii. paid by any person intervening for the drawer or one of the indorsers. The intervention and the payment must be stated either in or at the end of the deed of protest. Payment by iutervention is also called paiement sous protet Payment for - ^ honour after ov par Iwnneur.^ protest. * For honour. 204 BILLS OP EXCHANGE. May be made ior any party to the bill. Formalities. Position of party paying by intervention. On account of drawer. On account of indorser. Eights of intervening party. What interventions preferred. Payment by intervention can only take place after protest. The party thus paying a bill should clearly state for -whom he paid it in order to secure his remedy against him. (See notes to Art. 126, supra.) Payment by intervention can take place, not only for the drawer or for one of the indorsers pursuant to Art. 158, but also for the acceptor, for the donneur d'aval, in a word, for any of the parties liable on the bill. The intervention and payment are set out in or following the protest, thus : a third person presents himself and offers to pay the bill for the honour of one of the parties ; the Imissier inscribes a note of such intervention in the document as above, receives payment from the intervener, and hands him the bill. Art. 159. — A party paying a bill of exchange by intervention stands in the same position as the' holder before payment, and must go through the same formalities. If payment by intervention be made on account of the drawer, all the indorsers are discharged. If it be made on account of an indorser, the subse- quent indorsers are discharged. If several parties present themselves to accept by intervention, the party operating the greatest number of " liberations " will be preferred. If the party upon whom the bill was originally drawn and against whom the bill has been protested for non-acceptance, desires to pay the bill, he is pre- ferred to the others. A person intervening for all the parties on a bill wiU be preferred to a party accepting for one of the indorsers only. The party paying by intervention is legally substituted for the holder as above. This provision is inserted to encourage the payment of bills of exchange. {See notes to Art. 126, supra.) A party intervening for the drawer is preferred to one intervening for t\e first indorser, and one intervening for the latter to the intervener on behalf of the second indorser, and so on. If several persons ofEer to pay for the same indorser, the first shall be chosen, unless the indorser has specially named one of them to pay for him. EIGHTS AKD OBLIGATIONS OF HOLDERS. 205 A party paying a bill by intervention is not bound, as an No notice acceptor by intervention, to notify witbout delay bis inter- SS^enin™"" vention to tbe person in wbose favour he intervened. party. CHAPTER XII. OP THE E.IGHTS AND OBLIGATIONS OP THE HOLDER. 1. Of foreign and inland hills, time for enforcing payment ■or acceptance, penalties. 2. Ohligation of holder to enforce payment at m,aturity, and reasons thereof. 3. Of protest. 4. Effect of hanhrupicy, or death of drawee, on protest. 5. Rights of holder of protested hill. 6. Of notification of the protest and action upon the hill. 7. Actions upon hills payable ahroad against parties thereto in France. 8. Bemedies of holder against drawer and indorsers collec- tively. 9. Gases in which holder is deprived of his. rights. 10. Cases in which indorsers are deprived of their rights. 11. Effect of existence of provision at m,aturity upon the rights of the parties. 12. Rights of holder against parties receiving funds in pay- ment of hill after expiration of certain periods. 13. Holder of protested hill may attach personalty, of the ■drawer, acceptor, and indorsers. Art. 160.— The holder of a bill of exchange buis drawn on Frencli drawn upon the continent or islands of Europe or possessions in Algeria, and payable within the European possessions coimlriesana of Prance or in Algeria, either at sight, or at one or ■■eaprocaUy. several days or months or usances after sight, must enforce payment or acceptance within six months from the date, under the penalty of losing his recourse against the Indorsers, and even against the drawer, should the latter have furnished provision. The delay is fouj months for bills of exchange Time allowed. drawn in the States of the littoral of the Mediter- ranean, and of the littoral of the Black Sea, upon the 206 BILIS OP EXCHANGE. Time allowed. Effect of not enforcing payment at maturity. European possessions of France, and reciprocally in the continent and islands of Europe upon the French establishments in the Mediterranean and Black Seas. The delay is six months for bills of exchange drawn in the States of Africa beyond the Cape of Good Hope, and the islands of America beyond Cape Horn, upon the European possessions of France; and reciprocally in the continents and islands of Europe, upon the French establishments or pos- sessions in the States of Africa beyond the Cape of Good Hope, and in the States of America beyond Cape Horn. The delay is one year for bills of ex- change drawn in any other part of the world, upon the European possessions of France, and recipro- cally in the continent and islands of Europe, upon the French possessions and establishments in any other part of the world. The same consequences apply to the holder of a bill of exchange payable at sight, at one or several days, months, or usances after sight, drawn in France, or in the French establish- ments or possessions, and payable in foreign parts, unless he enforces payment or acceptance within the times above mentioned for each of the distances respectively. The above periods are doubled in case of maritime war. The above provisions do not pre- judice any stipulations to the contrary that may be agreed upon between the holder and the drawer, and even the indorsers. Art. 160 has been twice modified since the Code of Commerce was first promulgated in 1808. The first modifica- tion took place by the law of 19th March, 1817. The last bj- the law of 3rd May, 1862. The effect of the Article and the amendments thereof are as above stated. Art. J6'l.— The holder of a bill of exchange must enforce payment thereof at maturity. This obligation is not imposed upon him in the interest of the acceptor or maker, as the holder can always sue until barred by the statutes of limitation ; but the acceptor can liberate himself if he wishes by paying the amount of the bill into the Caisses des Depots et Consignations, three days after maturity, and without tendering the same in payment, as the OF PROTESTS. 207 holder is doubtless unknown to him. The obligation is im- Release of posed upon the holder in the interest of the sureties against ^™^''®^- whom he has recourse. If he fail to protest the day after maturity, he loses his right of action against them {vide Art. 168). But he is not bound to present the bill the very ' day it matures. He will comply with Art. 168 by present- ing the bill the day following, and protesting it immediately ; but if the acceptor becomes bankrupt in the meantime, it is considered that the holder would forfeit his rights against the indorsers. Art. 162.—'I!h.e refusal or default or payment Necessary must be stated the day following the maturity pr^St.'^ °^ by an " acte," called protest for non-payment ("protSt faute de paiement ")• If this day falls upon a legal holiday, the protest must be made on the day following (Arts. 133, 173, 184), The last day of maturity belongs entirely to the debtor. When protest A J. J. j.T_ J ij u -J should be made. A protest then made would be void. The day following the due date the debtor can pay the bill at the time of protest being made, but to prevent same he must tender, beyond the amount of the bill, the expenses of a summons which precedes the protest. In default the protest is legal. Art. 163. — The holder is not relieved from Necessity of protest for non- making the protest for non-payment " by the payment. protest for non-acceptance, nor by the death or bank- ruptcy of the party upon whom the bill was drawn. In the case of the bankruptcy of the acceptor Bankruptcy of before maturity, the holder can protest the bill S?Ti™. and proceed against the other parties thereto forth- with (119, 156, 173). In the event of death of the drawee, his representatives can Deatli or bank- pay the bill. In case of bankruptcy of the drawee, neither he drawee? nor his trustees can pay, therefore the utility of the protest is not apparent, but it is the mode pointed out by the law to establish the impossibility of payment. The protest may, however, induce some other party to pay the bill by inter- vention. A protest for non-acceptance does not discharge the holder from making the protest for non-payment, as the drawee may. 208 BILLS OF EXCHANGE. Costs. Actions by holder. Against his indorser. Time allowed for action. Limit of time for actions on tills payaWe tn foreign . countries. since lie refused acceptance, have received the provision from th.e drawer, and thus have no reason for refusing to pay the bill, or he may for other reasons have changed his mind. When a party liable on a bill refuses to pay, the huissier who calls the following day to draw up the protest can proceed to do so, notwithstanding a tender of the amount of the hill, unless such tender be accompanied with the expenses of the copy already prepared, viz., two francs in Paris. The protest is dispensed with in two cases— ^viz., forct majeure, and pursuant to the clause "retour sans frais.'' Art. 164. — The holder of a bill of exchange pro- tested for want of payment can bring his action against the drawer and each of the indorsers in- dividually, or collectively against the drawer and in- dorsers. The same right is accorded to each of the indorsers in i-egard to the drawer and preceding indorsers (Arts. 140, 153, 165, 172). Art. 165. — If the holder enforces his remedy against the party from whom he received the bill, he must notify the protest to him, and in default of pay- ment must bring his action to obtain judgment within fifteen days after the date of the protest, if the debtor reside within five myriametres.. This time allowed to a party domiciled beyond five myriamstres from the place in which the bill was payable, is increased by one day for each two and a-half myriametres exceeding the five myriametres (Arts. 164^167, 168, 171). The holder need not proceed against the acceptor within the short periods prescribed for his action against the drawer in certain cases and against the indorsers. Art. J 66. —(Modified by the Law of 3rd May, 1862.) Upon bills of exchange, drawn in France and payable beyond the continental territory of Prance, in Europe, being protested, the drawers and indorsers residing in France must be sued within the periods hereinafter mentioned :— Within one month for bills payable in Corsica, Algeria, Gfreat Britain, Italy, the Low Countries, and the States or Confederations con- tained within the frontiers of France; within two ACTIONS rPON BILLS, ETC. 209 months for bills payable in the other States of Europe, the littoral of the Mediterranean and the Black Sea ; five months for bills payable out of Europe, within the Straits of Malacca and the Sunda Islands, and within Cape Horn; and eight months for bills payable beyond the Straits of Malacca and the Sunda Islands, and beyond Cape Horn. . The same periods must be proportionately observed in respect of proceedings against drawers and in- dorsers residing in French possessions situate beyond Evirope. The above delays are doubled for places beyond the seas in case of maritime war (Arts. 160, 164, 165, 167, 171). Art. 167. — If the holder exercises his remedy CoUeotiTe or . collectively against the indorsers and the drawer, he houter." ""^ ^ is entitled, in respect of each of them, to the periods speeifled in the preceding section. Each of the indorsers has the right to exercise the , same remedy, either individually or collectively, within the same periods. The time commences to run, as regards them, from the date of the citation in the action (Arts. 165, 168, 189). When the holder, in default of payment, sues the drawer, when drawer the latter cannot have recourse against the indorsers, as he ^"® '*'" ''°^^^'- is surety for them. If an indorser is sued on the bill, he can, when he has Whenindorser paid, sue the drawer and also the indorsers who precede him, as 3 they were his sureties. He can even sue them before he has paid, and his right to commence proceedings accrues upon being served with the writ himself. Art. 168. — After the expiration of the delays how remedies above mentioned (viz.: For the presentation of ahoiae?*'^ bill of exchange at sight, or at one or several days or months or usances after sight; for the protest for want of payment, and for the institution of pro- ceedings against the guarantors), the holder of a bill of exchange is deprived of all remedies against the indorsers (Arts. 160, 162, 164, 171). p 210 BILLS OF EXCHANGE. When provision has been fur- nished. Byindorsers, Art. 169.— The indorsers are also deprived of their rights to sue their immediate indorsers as guarantors, after the periods applicable to them above m.entioned. Art. 170.— The holder and indorsers are in like manner deprived of their rights as against the drawer if the latter can prove that provision existed at the maturity of the bill. In this event the holder can only exercise his remedy against the drawee (115, 160, 171). The holder of a bill of exchange for which provision has been furnished must protest the same at maturity, or lose his remedy against the drawer, even should the drawee have suspended payment ; he can only be released from the neces- sity of the protest in the event of the bankruptcy of the drawee being actually declared, which would render nna- vailable the provision in the hands of the drawee. The holder of a bill preserves all his rights against the drawer, although he makes default in protesting at maturity , in the event of the drawer being unable to prove that he had provided the drawee with funds .to meet the bill. Art. 171.— The deprivation of the remedies men- tioned in the three preceding sections does not apply in the case of the holder of a bill as respects the drawer and indorsers, who, after the expiration of the delays fixed for the protest, the notification thereof, or the citation to judgment, receive in account, set off or otherwise, funds applicable to the payment of the bill of exchange (168). Attachment. Art. 172. — Independently of the remedies pre- scribed for action against the guarantors, the holder of a bill of exchange, protested for non-payment, can, with the leave of a judge, attach the personalty of the drawer, acceptors, and indorsers (Art. 164). The operation of this section has been suspended, owing to uncertainty existing as to which tribunal the application for ■ attachment should be made. If no provisioiif rights against drawer remain. Funds for pay- ment received hy drawer or indorsers. PROTESTS. 211 CHAPTEE XIII. OP PBOTESTS. 1. By wlhoin protests must he made. 2. Forin and contents of deed of protest. 3. WJien protest can be dispensed with. 4. Obligations and formalities to be complied with hy official making protest. Art. i73. — (" Modified by Decree of 23rd of By whom pro- March, 1848, Art. 2.")-Protests for non-acceptance mlde?"" ''^ or non-payment are made by two notaries, or by one notary and "two witnesses," or by a " huissier " and "two witnesses." The protest must be made at the domicil or last- known domicil of the party by whom the bill of exchange was payable, also at the domicil of the parties named on the bill to pay the same in case of need, and at the domicil of a third party accept- ing by intervention. The above must be stated in one deed of protest. In the event of a false address, the protest is pre- ceded by an "acte de perquisition" (see note). In case of refusal to pay the bill, the holder must fulfil Duties of holder three obligations : — ^(1) protest ; (2) give notice of the protest, and issue a summons to pay directed to the parties he wishes to sue; (-S) in default of payment take legal proceedings {assignation en justice). The protest constitutes the legal proof of the refusal to pay Valueof protest, or accept the bill. There are two kinds of protest^iroie^ faute d'aeceptaiipn and protet faute de paiement. Both are drawn up in the same form, but there is no time fixed for making the protest for want of acceptance. The necessity for witnesses was abolished in 1848. An " acte de perquisition" is the document setting out the measures taken by the official to discover the persons named in the bill {see Arts. 174, 175, and 176). Protests are always made by huissiers. Huissiers are public Suiatiers, functionaries, established in each district to draw up and serve citations, notifications, and signijieabiona, required for the institution of legal proceedings, and also all documents and writs necessary in the execution of judgments and decrees. p2 212 BILLS, OF EXCHANGE. Payment au besoin. Contents of the deed of protest. Protest indispensable. Official copies. If any person is indicated to pay au hesom (in case of need), the protest must be made at Hs domicil, but tbe holder is not compelled to protest the bill at all the addresses of the hesoins unless they were originally indicated in the bill. He is not obliged to protest at the domicil of persons indicated as hesoins by the indorsers. The protest for non-payment should be made at the domicil of the acceptor by intervention (see p. 211). Art. 174. — The deed of protest contains a copy of the bill of exchange, the acceptance, the indorse- ments, and other things appearing thereon, and a summons to pay the amount of the bill. It also states whether the party liable to pay the bill was present or absent, and the reasons assigned for refusal or inability to pay and refusal to accept. Protests contain: a literal transcription of the bill of exchange, the indorsements and " recommendaiions," viz., the persons indicated {au hesoin) in case of need to accept or pay ,the bill in default of the drawee; the transcription of the acceptance, if the protest is made for non-payment; the summons to accept, in the case of a protest for non-accept- ance ; and the summons to pay, in the case of a protest for non-payment ; the refusal to accept or to pay, with the reasons, when given ; the signature of the party refusing or his declara- tion of inability or refusal to sign. Art. 175. — TSo act on the part of the holder of a bill of exchange can dispense with the protest, with the exception of the case provided for by section 150 (et seq.), respecting the loss of a bill. Art. 176. — Notaries and "huissiers" are com- pelled, under pain of costs and damages, to leave exact copies of all protests, and to transcribe the same literally day by day and by order of date in a special register, indexed and paragraphed, and kept in the form prescribed for " repertoires." * The object of this formality is to remedy the inconvenience resulting from the loss of the original of the protest. * Registers in which all deeds and documents are tranaoribed by notaries and other officiers ministeriels. EE- EXCHANGE AKD EETEAITE. 213 CHAPTER XrV. OP EE-EXCHAN&E. 1. Re-exchange, lioiv effected. 2. " Retralte," what it is. 3. Re-excliange, how calculated. 4. Betraite accompanied hy " compte de retour." 5. Explanation of " compte de retour." 6. One " compte de retour " only permitted. 7. Me-exclianges cannot he made cumulative. 8. Of interest upon protested hills. 9. Of interest upon expenses of protest, re-exchange, S^c. 10. Effect of non-compliance with Art. 181. Art. J 77. —He-exchange is effected by a " re- se-exohange traite " (Arts, 178, 187, 168). how effected. The retraite is drawn at a short date, to enable the Eeason for holder, if it be unpaid, to sue within fifteen days from the first '■«''™'^- protest. It frequently happens in mercantile dealings, that the holder, instead of exercising his remedy against the drawer and indorsers, draws a fresh bill upon one of them to reimburse himself the amount of principal and expenses owing to him in respect of the first bill. This operation is called re-exchange, and the bill thus Substituted bill. drawn retraite. The word reahange is also employed to designate the rate of exchange at which the bill is negotiated. It is so used in Arts. 179, 183, 185 and 186. The party who draws a retraite is not absolved from fulfilling the formalities relating to notification of protest and proceedings to enforce payment within the periods required by law. The re-exchange is an endeavour to obtain a settlement At holder's risk, without recourse to law, and is at the risk and peril of the holder. Art. ITS. — Th.e "retraite" is a fresh bill of Meaning ot the exchange, by means of which the holder reimburses "''"'"**■ himself against the drawer or one of the indorsers, the amount of the principal of the protested bill, with expenses, and the new rate of exchange paid 214 BILLS OF EXCHANGE. by him (Arts. 110, 140, 181, 184). See chapter on Forms, and Note to Art. 181, infra. Contents of the Art. 178 was modified as follows by the decree of 24th re rat e. March, 1848, which has. not been repealed, and is still applied in practice : — " The retraite comprises, with the detailed state- ment signed by the drawer only, and transcribed upon' the back of the instrument, the following : — (1) the amount of the priacipal of the protested bill; (2) the expenses of protest and notification; (3) the interest since default ; (4) loss of exchange; and (6) the stamp, which is fixed at 35 centimes." (S'ee Law of 6th June, 1850 ; Art. 1, stamps.) How Art. 179. — The " reehange " is calculated, as is Scuiatla. regards the drawer, by the rate of exchange between the place in which the bill of exchange was payable and the place in which it was drawn ; and as regards the indorsers, by the rate of exchange between the place in which the bill was negotiated by them and the place of payment (Arts. 72, 76, 181). Yide note to Art. 181, infra. Expenses. Art. 180. — The " retraite " is accompanied by an account of expenses of return called " compte de retour." (See chapter on Forms). Art. 181. — The "compte de retour" comprises the following: — The amount of the principal of the protested bill ; the expenses of protest and other legitimate charges, such as bankers' commission, brokerage, stamps and postage. It states the name of the party upon whom the " retraite" is made and the rate of exchange at which it is negotiated. It is certified by an " agent de change," or by two traders in places in which there are no " agents de change." It is accompanied by the protested bill, the pro- test, and a copy of the deed of protest. In the case in which the "retraite " is made upon one of the Indorsers, it is also accompanied by a certificate stating the rate of exchange between the INTEREST ON BILLS. 215 place where the bill was payable and the place in which it was drawn. (See chapter on Forms.) ' A decree of 24th March, 1848, modified Arts. 178 and 179 of the Code de Commerce, and susjJended the execution of Arts. ISO, 181, and 186. The stamp was modified by the law of 6th June, 18.50, which subjected retraites to the same ad valorem stamps as- other bills of exchange. Art. 182.— One " compte de retour » only can be c not make this obligatory. 3. The consideration ; value (valeur) . — The Codes of Ger- many, Austria; Hungary, Russia ; Belgium, Art. 1, 1872 ; the Laws of England and the -United States, and those of Russia and Denmark, do not require that the word " Value " (valeur) or any equivalent expression, should appear on the face of the bill itseH, nor in any subsequent indorsement. The Code de Commerce, Art. 110, on the contrary ; the, Codes of Spain, Aj-t. 429 ; Italy, Art. 196 ; Portugal, Art. 321 ; Brazil, Art. 354; the Dutch Law; and the systems based on theise Codes, render it obligatory that the term valeur repiie, or an equivalent, be stated. 4. Bills payable to hearer. — The Laws of England, of the United States, and of Denmark, permit the issuing of a biU of exchange payable to bearer. The German Law, Art. 7 ; the Code de Commerce, Art, 112 ; Cod. Com. Ital., Art. 198 ; Cod. Com. Espan., Art. 488 ; the Commercial Code of Holland, Art. 102 ; and the Russian Rules on bills of exchange (Rule 227), forbid the issuing of bills of exchange to bearer. 6. Blanh indorsement. — The German Law, Art. 12 ; the Laws of England and of Scotland ; of the United States ; the Belgian Law, 20th May, 1872, Art. 27 ; the Portuguese Code, Arts. 354 and 356.} that of Hungary; the Russian Law; the Danish Law ; the Laws of Holland'; and the Austrian Code permit in dorsement in blank ; whilst the Italian Code, Art. 223 ; the Code de Commerce, AvI.. 137 ; and the Spanish Code, Art. LAWS OF VAEIOUS COUNTRIES. 243 467, prohibit such indorsement, giving only a partial validity to it, or even (Spanish Code) forbidding recovery. 6. Indorsement after due date (echeance). — ^Nearly all the various Codes and Laws give to an indorsement after due date the effect of a simple " cession," that is, an assignment with equities attaching. The Dutch Law requires a deed of cession. The German Law, 'Art. 16, makes this distinction : that, where due protest has been made, the right to indorse as before due date continues. 7. Usances. — The Code de Commerce (France), Art. 129 ; that of Spain, Art. 439 ; the Laws of England ; of the United States ; the Belgian Law, Art. 20 ; the Italian Code, Art. 216 ; the Portuguese Code, Art. 370 ; the Law of Holland ; and the Hungarian Law, all allow the drawing of a bill at usance, whilst the German Law, Art. 30, and the Austrian Law, have abolished all reference to usance. 8. Days of Grace. — The laws of all countries (except France) aUow days of grace, these varying from one to fourteen days ; whilst usances vary from fourteen days to three months. 9. Duplicates; copies. — The German Law, Art. 67; the Code de Commerce, Art. 147 ; the Belgian Law, Art. 57 ; the Italian Code, Art. 232 ; and the Codes based on these laws do not require the annulling clause to be inserted on the face of the duplicate of a bUl of exchange ; Whilst the Laws of England and those of the United States and the Dutch Code, Art. 160, require this. 10. Acceptance. — ^What constitutes acceptance varies greatly in different countries. The English Law ; the German Law, Art. 21 ; the French Code, Art. 122 ; the Spanish Code, Art. 461 ; the Portuguese Code, Art. 336 ; that of Brazil, Art. 394 ; the Belgian Laws, Arts. 7 and 16 ; the Laws of most of the Swiss Cantons; and the Dutch Code require that the acceptance be expressed in writing by the word " Accepted," or some equivalent term. The American Law permits verbal acceptance, though a holder may insist on the acceptance being in writing ; wrong- ful retention over twenty-four hours, by the Law of Spain and several of the South American Codes, being deemed acceptance. According to the Danish and Swedish Laws, retention is construed to mean refusal. 11. Dishonour for non-acceptance. — The German Law, Art. 25, and the Austrian Law ; the Code de Commerce (France), E 2 244 BILLS OF EXCHANGE. Art. 120 ; the Belgian Law, Art. 10 ; the Italian Com. Code, Art. 207 ; the Spanish Com. Code. Art. 465; most of the Can- tons of Switzerland ; and most of the Laws and Codes of South America, require security to be given in case of dishonour for non-acceptance ; "Whilst the laws of England, those of the United States of America, those of Sweden and Denmark, the Hungarian Code, the Finnish Code, and some of the South American States, give to the holder on dishonour for non-aooeptance, an imme- diate right of action for payment. 12. Notice of dis1ionour.-r-N otice to antecedent parties is required, both on non-acceptance and non-payment, by the Laws of England, the United States, Russia, Bolivia, and Brazil. The Code de Commerce (France), Arts. 173 and 175 ; the German Law, Art. 45 ; the Spanish Code, Art. 522 ; the Chilian, the Argentine, and the Italian Codes, require protest. The Code de Commerce requires that proceedings be taken against antecedent parties within 14 days, and a further period, according to the distaniia loci, after protest ; each successive •indorser having the same period of delay allowed to him. The German Law differs from the French Law, and adopts in part the rule of the Dutch and Portuguese Codes, rendering notice necessary to protect any claim for interest and re- exchange, and to protect against any claim for damage occa- sioned by delay ; it likewise limits a time within which proceedings have to be instituted. 13. Limitation of actions ; time of prescrijition. — The law as regards limitation of actions varies greatly in different countries. The German Law prescribes three months, six months, and 18 months, according to place (further time being allowed, in case of fraud, against the acceptor and drawer). Code de Commerce (France), Art. 189 - 5-years. Belgian Code, Art. 82 - - - 6 „ Italian Code, Art. 282 . - - . - 5 „ Portuguese, Art. 323, and Spanish, Art. 557, Codes 4 „ German Law, Art. 77 - - - 3 „ As against the acceptor. As against other parties — rhe Dutch Code, Arts. 206, 207 - - 10 years. England - ... . - 6 „ Hungary - . -. . . 2 „ United States --..-.. Various. STOCKBROKERS. (Agents de Change). A stockbroker is an official person whose business it is, Position of a exclusively of all other persons, to conduct the sale of public or stockbroker, other securities which are negotiable, and to publish authentic iuformation of the position of their securities, as also of the gold and silver market. The law enacts that there are stockbrokers in all towns which have a Bourse de Commerce or Exchange. In towns where there is no Bourse, private securities are Where there is negotiated between individuals or by the medium of bankers. Public securities are sold or transferred by stockbrokers on established Bourses, in accordance with orders transmitted to them by the reoettes generales. The same person may unite the duties of a stockbroker with those of an insurance broker or shipbroker, if so authorised by the certificate of his appointment, or by a special certificate granted to him. after *his appointment. Stockbrokers are appointed by a certificate granted by the Certificate. President of the Eepublic. The following are the conditions . of the appointment : — 1. The candidate must be a French subject or a conditions o£ naturalised foreigner. appointment. 2. He must be not under 25 years of age. 3. He must produce certificates of capacity and character signed by the heads of banking or trading firms. 4. He must be introduced by a member of the Stock Exchange, or by the widow, heirs, or representatives of a member, except in the case of appointment to a post newly established. 5. He must be accepted by the syndicate or committee of the Stock Exchange, 246 STOCKBEOKERS. 6. And also by the Minister of Finance in Paris, and on Bourses which have a jparquet : by the Minister of Commerce, on Bourses which have no parquet. 7. He must be under none of the following legal dis- abilities : — Disqualiflca- ('^■) ^^ undischarged and uncertificated bank- *'™^- rupt; or if he has assigned all his property for the benefit of his creditors, or made a private composition with his creditors, he must have received legal restoration to his original position (rehabilitation), (h.) A person who has been dismissed from the ofiBce of stockbroker, (c.) A person who has been twice convicted of illegally exercising the duties of a stock- broker in places where such duties are only allowed to persons appointed by the Government. 8. He must furnish security to the amount required. In Paris the sum is 250,000 f s. ; at Lyons, 40,000 f s. ; at Marseilles and Bordeaux, 30,000 fs. ; at Toulon and Lille, 12,000 fs. Bight to intra- Each broker, on retiring, has the right to introduce a duce a successor, guccggggj.^ unless he has been dismissed from his post ; and this right, which thus makes the position of broker a valuable property, passes to the widow, heirs, or representatives of a broker who dies while holding office. Kates on the In Paris the broker must, before introducing a successor, obtain the consent of the Committee of the Stock Exchange in favour of his nominee. If the Committee assent, it is their duty to notify the same, with the name of the candidate, to the Minister of Finance. Practice in the In the departments, the Committee notify their consent epartments. ^^^^ ^j^^ name of the candidate to the prefect of the district, who in turn transmits them to the Minister of Commerce. The papers should be accompanied by the resignation of the member retiring, the agreement made with him, and docu- ments showing that all the legal conditions have been complied with. Devolution ot The right to appoint a successor, being personal property, is reckoned in the cormnunaute de hiens between husband and wife, and is included among the " inheritance " of a member. DISMISSAL, RESIGNATION, ETC. 247 and must be entered in the accounts of the member's heirs. Further, a member who has sold his right but not received payment, has a lien upon his right, except in the event of the •bankruptcy of his vendee. The law provides that a broker who has been dismissed Dismissal. from his post i^ deprived of all right to introduce a successor. Since, however, this .operates so as to deprive his creditors of a valuable security, it is usual for the Government, when .appointing a successor in such a case, to impose upon him an obligation to pay a fixed sum to the person entitled to receive it, e.g., to the syndics of the bankrupt member, or to some authorised person, whose duty it is to distribute this among the creditors. This is a matter of custom, and in reality an act of generosity on the part of the Grovernment. If the Committee, for good cause, resolve that a member deserves expulsion, they may, instead, order him to send in his resignation within a fixed date, and to introduce a successor. . If he complies, he avoids the penalties of dismissal. It follows from the formalities and regulations prescribed, Restrictions on that a stockbroker cannot sell his post by auction, or dispose of it in any but the regular way. Until the resignation of a member is accepted, it may be Resignation, withdrawn at any time. Therefore, if a member withdraws his resignation, after having agreed to take a certain price from his successor, the latter cannot compel him to resign. His proper remedy is by action for damages. The amount charged by a member to his successor may be V^ice paid by disallowed by the Government, if the price seems to be higher than the real value of the position. It follows that if the member retiring exacts from his successor an agreement to pay a price above that submitted to the Committee and to the Government, the agreement is absolutely void. Any deed, defeasance, compromise or arrangement, having practically the same object, is equally void. Briefly, any agreement which alters in any way, either in the interest of the vendor or vendee (the member or his successor), the arrangement sub- mitted- to the Government will be treated as nuU and void, and any payment made in pursuance of such an agreement is void as against the creditors of the person making the payment. Any disputes which arise in reference to the assignment Jurisdiction of or sale of a right to membership of the Stock Exchange are decided by the civil Courts. 248 STOCKBEOKEES. Formation ot a new Bourse Deposit. Tiiccncc, Quaere, ai;e stockbrokers traclers ? liimitation of Members. Supervision. Special partner ships Where no Bourse exists, and it is intended to establish one, a special committee of 10. bankers or inerchants draws up a list of candidates, inserting twice as many names as are to be appointed. This is sent to the Prefect, who may make addi- tions to it, and by him to the Minister of Commerce, who may also add the names of other candidates. The President of the Republic finally makes the appointments. In Paris, each broker deposits, besides his security, a further sum of 100,000 fs., as payment to the general re- serA'e fund, which is held to secure the payment of UabihtieB between members. If a member finds that his dealings show a deficit, the committee has power to advance him a loan, not exceeding 500,000 fs. Each stockbroker, after being admitted, must take out a licence to deal. In Paris this costs 1,000 fs. ; in other towns, it varies according to their population. Stockbrokers in France, it is thus seen, are State ofiScials. They are strictly forbidden to engage, directly or indirectly, in any commercial or banking business ; and their strict duty is to serve as agents between genuine buyers and sellers of stock. It is stiU a point in dispute whether stockbrokers are to be considered as traders, for the purpose, that is, of being subject to the Tribunals of Commerce in matters relating to their engagements, for publishing their marriage settlements and regime, &c. The number of brokers in Paris is limited to 60. The certificate of appointment states the town in which the broker is to carry on his dealings ; and it is his duty to reside within the commune to which he is assigned. Further, they are under the supervision of the municipal authorities and cannot carry on their business outside their official residence. In the more important Bourses, where there is a, parquet, a special place set apart for stockbrokers and also an official list of quotations of prices, stockbrokers are allowed to form a kind of partnership with outsiders, thus increasing the capital at their command, and improving their own credit. Such associations are not allowed elsewhere. The capital thus subscribed may not be divided into shares ; and the capitalists take the position of special commanditaires, who cannot under any circumstances take the place of the managing member. The funds supplied by them form part of the assets which may be claimed by the business creditors of the stockbroker. EIGHTS AND PEIVILEGES — PETITE BOUTiSE. 249 The exclusive rights and privileges of stockbrokers, which nights and they possess as a monopoly, are — privUeges. 1. To conduct negotiations or transfers of public stocks and funds, and of all securities that have a market value, and can be entered on the current list of quotations. 2. To negotiate for clients bills of exchange, promissory notes, and all negotiable instruments. 3. To publish an authorised or official list of the various prices of negotiable stocks and securities, and of the fluctuations in the money market. 4. To certify accounts of " difEerences " of bills of exchange and promissory notes. While enjoying this monopoly, the rights of stockbrokers How far these are only protected against the action of outsiders infringing "Shts extend. upon them. Por instance, no person not a member of the Sourse can negotiate for commission a sale of securities. At the same time, the owners of shares or other securities may, if they please, transfer or sell them to each other without the medium of a broker. Heavy penalties are inflicted upon any penalties for persons, not properly qualifled, who transact the business of iJi*=^iiige™8nt. stockbrokers ; the dealings are declared null and void, and the ofEending party is liable to be flned 3,000 fs., imposed by the Tribunal Gorrectionnel. The prosecution for this offence must be instituted within Limitation of three years after its committal ; and if an action for damages ^'''''°'''- is claimed by a party injured, he must pursue his remedy within , the same time. The Petite Bourse, in which the dealers are known as Petite Bom-se, coulissiers, is in law illegal. However, its reduced tariff of brokerage and commission attracts speculators, and it is still in existence. Considering the extensive privileges of stockbrokers, the Duties of law imposes upon them various obligatory duties. Thus, a stockbrokers. broTter is bound to act for a client who applies to him in any legitimate operation ; and in case of refusal to act, a complaint may be lodged with the Procv/reur of the Republic, whose duty it is to prosecute the delinquent. Unless specially authorised, it is the duty of a broker not Secrecy. to reveal the name of anyone of his clients ; in this particular, his position of trust demands special secrecy and caution on his part. It results from this, that the clients have no right 250 STOCKBEOKEES. Rights of clients. Personal liability of brokers. Cover. Time bargains. Lieu on secu- rities pledged. Lien on purchases. of action against eacli other, but only against their respective brokers ; and also that the broker alone can enforce, by action, a bargain made for his undisclosed principal. If, however, the clients wish to be known to each other, the broker's duty of secrecy ceases, and they possess the right of action against each other. Strictly speaking, a broker should demand and obtain from his client any stock which he is authorised to sell, and the price of any stock which he is to buy, before conducting the opera- tion. It is superfluous to say that this is by no means uniformly observed. In case of default, however, the broker becomes personally liable, and his security may be seized to meet bis liabilities. The deposit of money or stock for this purpose is called " cover " (couverture), and is acknowledged by a formal receipt from the broker. In default of such receipt, the broker's memorandum book or ledger, &o., will be evidence of the deposit. The refusal to give this receipt entailed originally a fine of 300 livres and the penalty of dismissal, but the law of 1862 contains no such penal enactment. Bargains may be made on the Stock Exchange to be taken up at a definite time, usually the end of the current month. Of these some are absolutely bindmg, by which the buyer or seller is compelled to complete them at the time fixed ; others are allowed to go o£E, on payment of an agreed premium. If a client has pledged securities by way of cover for any transaction with his broker, the latter has a lien upon them for the purposes of the sale or purchase which he is authorised to make ; and if the client assigns his own right to such shares, &c., so pledged, the assignee takes, subject to the broker's right to dispose of them for ,the- amount due to him from his client. If a broker has purchased for his client securities a terme (i.e., to be taken up at a fixed date), without having received from him the price for them, the broker has a right, called " right to execution," to retain and sell the securities, and in preference to other creditors, should the client fail. He is bound, however, to wait until the date'fixed for the completion of the bargain ; and he must give the client formal notice of his intention, either by summons or by letter, requiring him to take up the bargain and to pay the price due. Else, the broker can have the stock carried over to the next account day; but only after consulting with his client, who might BOOK-KEEPING — PROHIBITIONS. 251 prefer to settle at the existing loss (if any) rather than to risk a further fall in the stock. A stockbroker is also bound to keep a day-book, ledger, Nooeasary and memorandum-book, examined and approved by the judge *""''^'' of the Tribunal of Commerce, or by the mayor or adjoint of the commune, and to enter therein aU particulars of his sales and purchases and all business transacted by him. As a matter of practice, brokers are very strict in entering their bargains in a memorandum-book at the time they are made. In case of necessity, these books can be admitted in evidence, but not until the claim made by a broker is disputed by the other side. Any wilful alteration in the day-books or ledger is treated as a forgery and punishable by the criminal Courts. The books should be preserved for 10 years at least, as they frequently contain the only evidence of the transactions recorded in them. It is the practice for each broker to deliver to the other a note of the bargain made between them. If this note or memo- randum is signed by the parties, containing, as it should, the details of the sale or purchase, its evidence is incontestable. PROHIBITIONS IMPOSED UPOlf STOCKBROKERS. No stockbroker is permitted to engage in any commercial Brokers not or banking undertaking on his own account, nor to take part lii other trades, directly or indirectly in any such trading enterprise. This must be understood with the qualification that regular trading only is forbidden to them. A broker, e.g., may invest his money in a Societe en commandite, or in shares in a SociSte anonyme ; but he might not become a member of an ordinary partnership firm (en nam collectif). It has also been decided that a stock- broker may not act as promoter of a Company, or take a commission for getting its shares taken up. Brokers are forbidden to guarantee the execution of Advances to bargains in which they engage for on behalf of their clients. " ™ ^" However, if a broker advance money to a client, for the purposes of a transaction on the Bourse, the client cannot repudiate the advance. ISTo civil penalty, in other words, iS entailed upon a broker who disregards the prohibitions to which he is subject ; but he may be dismissed from his post and fined by the Tribunal Correctionnel : and if once dismissed, he cannot be restored to his original position. Further, a broker may not negotiate a bill of exchange Prohibitions. 252 STOCKBROKERS. belonging to persons who have failed or suspended payment, if he knows their position ; he may not negotiate in blank bills or promissory notes ; assign French Rentes above shares of 60 f s. belonging to minors or to persons under legal guardians, or incapacitated otherwise ; assign French Eentes or shares in the Bank of France applied to des 'majorats, of any amount what- soever ; negotiate undertakings for shares in railway Companies before the Company is formed ; negotiate shares, scrip, &c., in Companies not formed according to the requirements of the law ; negotiate shares or certificates of shares not properly stamped ; undertake purely gambling bargains, nor allow himself to be represented by anyone else on the Bov/rse, except by a duly qualified broker. Various fines, from 300 tolO,000 fs., are attached to these offences. Neither may a broker keep in France, or in any foreign country, an accredited agent as his representative, or to transmit orders directly to him ; nor carry on Stock Exchange operations at any time beyond the hours appointed. The penalties of bankruptcy are more severe in the case of a stockbroker. The criminal Court decides whether he is to be declared simple or fraudulent bankrupt ; if simple, the punishment is imprisonment with hard labour for a varying term ; if fraudulent, with hard labour for hfe. The charge or commission which brokers can exact is due to them independently of any express promise. Certain percentages are payable to them, varying on the different stocks, as on the English Stock Exchange. The rates on short accounts are higher than the others. They also vary in different towns. Double Stockbrokers have a twofold responsibilitv, as paid agents responsibility of , a. . uj-i mi ti -,■ i ■, „ -i Btockbroters. and as Ibtate oincials. ihey are personally liable for the execu- tion of any contracts into which they have entered, although these are for third parties ; they virtually guarantee the solvency of their clients ; and in regard to the transfer of stock, they are responsible to the public treasury for the validity of the transfer, so far as it concerns the identity of the transferor, his signature, &c. Their position of paid agents makes them responsible for mistakes or negligence in the conduct of their business. Penalties in case of bankniptC3\ Commissious, A^ent and principal. 1. In reference to their Clients. The broker is an agent and his client the principal. He is therefore bound to execute his orders with care and fidelity. DUTIES AND LIABILITIES. 253 It follows from' this position, that if a broker sells stock Results of this and neglects to receive the price of it within the proper time ''^'^*'°"- fixed, he becomes personally liable for that amount to his client ; or if he buys stock, and neglects to accept delivery of it. In this latter case, the delivery may be of the utmost importance to the cUent ; the stock, for instance, may be redeemable at certain definite drawings, and the client, not holding the coupons, may miss his chance in the drawing. Again, if the broker's instructions are to buy or sell at a Fulfilment of certain price, he has no right to buy at a higher or sell at a °"^^''^- lower price : if he disregards his orders, he wiU be liable for the difference. Or, if after having received a sufficient cover, the broker delays to execute his orders, he is Liable for any loss that may be sustained by his delay. Besides having the capacity and functions of agent, the Duties as stockbroker is also a depositaire in respect of the shares, &c., entrusted to him ; and being in his capacity liable to all the obligations involved in a bailment, he is responsiblfe for loss or embezzlement by his clerks or employes, or by any person whom he has allowed to be in his office as his representative. He would also be responsible for the m.isconduct of any third party, if, e.g., he placed in the hands of some friend, without authority from his client, the proceeds of a sale concluded for the client. On the other hand, he is not bound to warn his clients of the risks which they may incur by investing in any particular securities. There is an important question which arises in the event Effects of of the stockbroker becoming bankrupt, namely : At what ^iroieronltHL moment do the shares bought by the broker become the pro- P'lrehased by perty of the client ? If the client has become the legal owner, he can claim them, and will not be obliged to prove for a dividend merely. In the first place, shares payable to bearer follow the ordi- shares to nary rules of sale. The client becomes owner as soon as the "^*™''- shares are delivered to him. Constructive delivery, e.g., if the broker has entered in his books the name of his chent as pur- chaser of certain specific shares, is equivalent to delivery; as is also a letter to the client, indioatiiig the numbers of the shares, and specifying them as bought for him, if the pur- chase really has been made. Unless some such delivery is made, the client is not the owner of the shares, and must prove like another creditor. 254 STOCKBEOKEKS. 2. In reference to other BroTcers. Duties to other Towards other brokers the broker contracts to guarantee brokers. ^^^ execution of the, bargain concluded with him; that is, he undertakes to deliver what he sells, or to pay for whr4 he buys. This always holds so long as the parties are not known to each other. The liabilities just mentioned are all that can be incurred between broker and broker. If the seller does not deliver the stock dealt with, or if the buyer does not pay the price of the stock bought, the broker must meet the engagement. The broker injured by the default can sue the other in his own name. In the relations established between a broker in the country and one in Paris, as the principal is undisclosed, each stands in the position of principal to the other, and any action by one against the other is direct. 3. In reference to third parties. Special Towards third parties a stockbroker has certain special third parties, liabilities, resulting from the special nature of his functions, besides those common to ordinary agents. Mcnten, How trans- ferred. Forged signatiire*. Liability of Treasury. the 1. In reference to French Rentes. There are two distinct operations in these securities — 1. The sale on the Bourse; 2. The transfer at the Treasury Office. The sale on the Bozirse merely establishes, as already seen, a contract between the two brokers — the one agreeing to deliver and the other to pay for a certain amount of stock. The transfer of the stock at the Treasury Office imposes a distinct set of obligations on the broker. The transfer is made in his presence, and he certifies the identity of the owner, veri- fies his signature, and also the documents relating to the sale. Therefore, if the signature is forged, the broker is liable to make good to the real owner the value of the stock sold ; and a purchaser honafido for value, having paid the price, cannot be sued, unless the stock was stolen, in which case he will have to restore it or tender the price of the purchase. The remedy of the agent is against the client who gave him his orders, and who is either the author of or an accomplice in the forgery. , The only case in which the Treasury is liable, is when the forged transfer has taken place by a breach of trust on the part of one of its employes in the ezercise of his functions. LOST OE STOLEN SECURITIES — PEOCEBDINGS. 255 If J however, the transfer is of stock belonging to a person Dealings by legaUy incapacitated to deal with it, the agent is not responsible persons!'*'"* to the real owner, unless the stock or shares express on the face of them that they are the property of a person under dis- ability. This liability of a broker is limited to five years subsequent Limitation of to the transfer. ^'="°"'- 2. Bank Shares and dealings in Commercial Bills. In the transfer of bank shares, the duty of the broker as to Bank shares. certifying the identity of the drawer who signs the declaration of transfer is the same as in the transfer of Rentes. In respect of bills of exchange and other bills negotiated by Bills of . him, the broker guarantees the signature of the person who ^™ ^^B^, c. last signed the documents. This rule only applies when the negotiation of the instruments is carried on in the regular way on the Bourse, not for instance when it is done outside, and the parties are known to each other, the broker being merely the medium through which they act. Limitation of right of action — five years. '3. Transfer of lost or stolen Securities payable to hearer. This subject, which was before indefinite and undecided, was settled by the Law of 1872, June 15th. The chief enact- ments of this law are as follows : — (See special chapter.) The owner of shares, who has lost them in any way, should Proceedings .,, .i.,-,!//.. . when securities first take the necessary steps for stoppmg them {faire opposi- are lost or tion), as prescribed by Art. 2 of this law. He most then ^'"'^'i- give notice by exploit d'huissier (writ signed by a huissier), to the Paris Committee of the Stock Exchange, that the shares are stopped (opposition), specifying the number, character, nominal value, numbers, and if possible, the series of the shares. This notice should also contain, when possible, the time and place when and at which the claimant became owner, the man- ner in which he acquired his title, and the circumstances under which he has lost the shares. An official bulletin contaias these oppositions, as presented Publication of .ojj. uiiiijAu, .^ J.X ■, . , ^ the onwnlwns. by the person who claims to be owner. When this has been published — it is issued daily — the broker who deals in the shares stopped becomes responsible for them to the owner. Practically, therefore, the broker, before dealing in shares to bearer, should inform himself that they are not mentioned in the Bulletin; or if, receiving shares from an unknown client. 256 STOCKBEOKEES. Venue for suits against stock- brokers. Jurisdiction of the Courts. Duty. Stanips, he negotiates them immediately, without waiting to see if they are advertised in the Bulletin, he becom.es personally respon- sible, for in this case ordmary prudence should induce him to take precautions. In respect of French Rentes, those which are Hires nomina- tifs can be effectually stopped by lodging an opposition with the Treasury. Titres au porteur (Rentes payable to bearer) can also be similarly stopped; but as these can be transferred without recourse to any brokers or agents, the party purchasing them without making inquiries wiU be liable to'' restore them to the rightful owner if they have been stolen or lost. Actions against stockbrokers for any act done by them as such are brought before the Tribunal of Commerce of the broker's domicil. The penalties differ according to the facts of each case, a difference being observed between default made in matters where the broker's character of agent is of the essence of the contract, and default committed in his ministerial capacity {faits de charge), e.g., relative to the signature which he has to certify to, &c. In the latter case the client has a special privilege in his action against the broker ; in the former his remedy is one of common law. Actions by brokers against their clients are, aa a rule, only capable of being tried before the civil Courts, unless the business is of a purely commercial character, and this is a question of fact. The special functions of the Stock Exchange Committee are beyond the scope of the present work. The appointments of stockbrokers are registered at the Tribunal of Commerce, and the broker is sworn in befdre the same tribunal. The duty on the registration is reckoned at two per cent, on the price stated in the deed of assignment. If the assignment is gratuitous, the duties payable on deeds of gift, inter vivos, are payable. If the right to the oflace passes to the broker's heir, the duty of two per cent, is charged on a valuation of the office and its appurtenances. If a new office is created, the registration duty is reckoned at two per cent, on the security required from the candidate. The memoranda and accounts of stockbrokers are stamped with 50 centimes up to 10,000 fs., and with 1 f. 60 c. for all sums above this amount. CONTRACTS OF AFFREIGHTMENT. The term fret (in the Mediterranean styled nolis or nolisse- Deflnition of ■ment) is defined as the contract for hiring a vessel or part of a vessel for the carriage of goods. The word/rei (like the English /reijr/ii) is also used for the price at which the hiring is fixed. There are three essentials to a contract of aSreightment : — Essentials of the ^ contract, 1. A vessel that is hired. 2. A use to which the vessel is to be put. 3. A price to be paid for this use. The owner or person who lets the ship on hire is called the freteur; the merchant or consignor who hires the ship is called affreteur or chargeur. The contract of afEreightment may be entered into either Persons by by the owners, or by their duly appointed agent, or by the tract may ba master of the vessel acting as their agent. As a rule of law, ''*'"■'^^• the power of the master to act as such agent is tolerably general, and he can bind the owners by his contract, even without special authority from them, if the circumstances of the case prevent him from obtaining instructions from them or their duly appointed agents. It is to the interest of trade, and of the owners themselves, that the master of a vessel should have this power to make bargains in the absence of his Powers of the principals ; but if the owners are present in the place where the contract is to be made, the master shotdd apply to them for instructions ; and if owners to the extent of one -half of tho vahie of tho vessel are present, the master cannot contract without special authority from them. This rule, however, though binding on the master, is not binding on third parties who have contracted .with him in ignorance of the fact that the owners or their duly authorised agents were present at the parties. ' 258 CONTEACTS OF AFFEEIGHTMENT. place of making the contract, but were not consulted by him. A contract thus made binds the owners as against third parties, while the master is liable to an action for damages at the suit of the owners. Rights of third It follows that if a merchant or consignor of goods, in ignorance of the fact that the master has been expressly for- bidden to enter into a contract of afPreightment, hond fide contracts with him, the contract cannot be imjoeaGhed by the owuers. Foreign vessels A contract of affreightment may be entered into with the and owners. j? j? ■ i ■ xi -ii master or owners of a foreign vessel ua the same way as with the master or owners of a French vessel. The preference formerly granted to the latter, that no foreign vessel could be hired if there were any French vessels at the port of hiring willing to undertake the contract, has been abolished. DifiFerent Methods of Forming the Contract. Eulesthat 1. jf the contract of affreightment be for the whole vessel, of a whole ship, it is usually made either for the whole voyage (whatever time this may take), or for a definite time, or from month to month, and the price to be paid is arranged beforehand, according to the circumstances of the hiring. The hiring of the whole vessel includes all portions of the vessel capable of receiving and carrying goods, but does not mclude the master's cabin nor the room necessarily reserved for the crew, rigging, ship's stores, &c. By custom, the master is authorised to convey goods in these parts of the vessel, which are excluded from the general contract ; but it is usual to insert a clause expressly stipulating that goods shall not be so conveyed by any members of the crew of the vessel hired. Contract from When the affreightment is from month to naonth, at a ' certain sum per month, the freight runs, in the absence of any contrary agreement, from the day of sailing until the day of unloading at the port of destination. Part of a month is reckoned as a whole month, and the unloading must be actual, not constructive ; therefore, if a vessel is detained in quaran- tine, the freight runs until the cargo is actually discharged. 2. If the contract is partial, being only for a portion of the vessel, it may be : — Various fonns (^j) j^ forfait, i.e., at a gross sum agreed upon for the partial cargo shipped, whether its weight is ascertained or affreightment. o rr > & not. CHARTEit-PARTT. 259 <&.) In a specified part of the ship put at the disposal of the consignor, (c.) A cueillette, when the cargo is taken on condition that the master succeeds in completing his cargo from other sources. {d.) By weight or measure, e.g., at so much per ton of goods shippsd. Charter-Party. Definition. — ^The contract by which the owner of a vessel, Definition of a. or the captain as his agent, agrees to let the whole or a portion charter-partj-. of the vessel for the carriage of goods. A form of charter- party will be found in the Appendix. This instrument defines the engagemient entered into by the parties, and according to its terms the contract must be construed. Foreign vessels as well as French have all the benefits of this form of contract. Essentials of the Contract. A charter-party must be in writing, and must be signed by contract must the parties. The presence of a notary, or of a shipbroker, is ano^iene™^ not necessary; but if the parties are unable to sign their names, in that case the contract should be made before a notary. The same rule applies if the charterer (affreteiir) contracts with some third party. If a contract for affreightment, not by charter-party, is Presumption in ■entered into by telegram, the telegram is considered as equiva- contracts. ^"^ lent to a charter-party, and the parties are presumed to contract subject to the customs of the localities. If a charter-party is drawn up in a foreign language, it charter-party in win be valid; but if, when so drawn np, it is signed by a guage!^ *"' master who does not understand the language usedran inter- preter or a consul should be present (and his presence shoidd be mentioned by the document) : otherwise, it may be impugned by the party signing or by those on whose behalf he signed. If the contract is lost or destroyed, or if it has not been How proved, if signed by the parties, the engagement may be proved by °"S""i "st, correspondence, or the log-book of the ship, or by the bill of lading. S2 260 CONTEACTS OF AFFEEIGHTMEJS'T. Contents of the contract. Effect of omis- sions. Results of mis- representation. Local usages govern the load- ing and unload- ing. Demurrage. Payment. The charter-party should state — The name and tonnage of the ship ; The names of the naaster, owner (or other person in whose behalf the contract is made) and charterer ; The place and time arranged for loading and unloading j The price of the freight ; And also, whether the contract is for the whole or part of the ship, and the indemnity payable in case of delay. An omission to state in the charter-party the name of the ship annuls the contract; and if the affreightment is made a cueillette (supra, p. 259), the tonnage must be mentioned; otherwise, the first charterer has a right to have the contract annulled. , The names of the freteur and affreteur (owner and charterer) are also indispensable. In the case of mis-statement made by the master as to the tonnage of the vessel, the charterer can maintain an action for damages against him ; but the onus of proof of damage really sustained rests upon the plaintiff. It may be mentioned that in estimating the tonnage of a vessel, the English method is, by the Law of May 24th, 1873, invariably adopted. With regard to foreign vessels, the tonnage inserted in a charter-party entered into in a Trench port is considered to mean the tonnage according to the official measurement of the country to which the vessel belongs. The charter-party should state the manner in which the unloading of the cargo is to be carried out. The time for loading and unloading is regulated by the customs which prevail at the different ports. The custom varies considerably in different plaoes^an average of 15 days will be usually allowed. The term applied to the days thus allowed (lay days) is staries, or jours de planche. It is usual to insert a clause in the charter-party, pro- viding for a fixed payment par diem f or> the time which may be occupied in loading or unloading beyond the lay days allowed ; otherwise, the custom of the port regulates the pay- ment to be made. Fifty centimes per ton of the ship's registered tonnage is allowed, to sailing vessels, and one franc per ton for steamers. It is also usual to insert in the contract the mode in which this payment shall be made, whether in French money or . DUTIES OF THE AFFREIGHTOE. 261 loreign. If no such stipulation is inserted, the master must accept payment in the coin or paper current at the port of unloading, i.e., he must himself sustain any loss incurred by the rate of exchange. * Any ambiguity in a charter-party, e.g., in the sum stipu- Charter-party lated for as freight, may be cleared up by reference to the bill by bill of lading. of lading. As a rule, in case of disagreement between the ■charter-party and the bill of lading, the Court will decide as to the intention of the parties. And, to explain the charter- party, the Court will look to the law of the place where it was signed, applying the maxim. Locus regit actum : and the Tribunal of Commerce of the place where the contract is to be ■executed has full jurisdiction. Duties of the AflFreightor (Pr^teur). The fretetir must put his ship at the disposition of the Duties of the ■charterer, according to the terms of the contract. He must not substitute another ship for the one mentioned in the charter-party ; and if he sell the ship, he will be bound to indemnify the charterer for any loss that may have been ■caused to him thereby. In all contracts of afEreightment there is an implied war- Warrajity of . /. .1 - in 1 J 1 j_i seaworthiness, ranty of seaworthiness ; and lor any loss caused by the unfitness of the vessel hired the freteur is responsible in •damages. It has been decided, that if the ship has to put into port for repairs, owing to its having been unseaworthy a,t the time of starting, and afterwards completes its voyage, no freight can be demanded from the charterer. The onus of proof in the matter of unseaworthiness, after Legal presump- the ship has been duly inspected, rests upon the charterer. If not inspected, the presumption of law is that it was unsea- worthy. However, if the bad condition of the ship was known to the charterer at starting, he will be considered to have •accepted the risk, and will have no claim to compensation. If the unseaworthiness is proved during the voyage, and in • consequence the cargo does not arrive at the port of destina- tion, according to the conditions of the charter-party no freight is due. In case of a contract of afEreightment for the entire vessel, Deficiency in the freteur cannot, without the consent of the charterer, accept lanother cargo, in the event of the charterer not completely load- ing the vessel ; and if he does, the freight on the goods so 262 CONTRACTS OF AFFREIGHTMENT. Duties of the charterer. Certificat de visite. XiOSs of goods. loaded belongs to tlie charterer. But the freieur may dispose of the remainder of the vessel [as he pleases, in the case of a contract for partial affreightment. In all cases where damages are claimed, the judge of the Tribunal of Commerce assesses them. It is also the duty of the captain or of the freteur — 1. To carry out and oversee the loading of the cargo ; and for this purpose he is bound to. see that the loading is so effected as to dispose of the cargo in the best and safest manner. 2. To give to the consignor a biH of lading. 3. To start at the date fixed. 4. To exercise all proper care in the conveyance of the cargo, 6. To unload at the port of destination within the date fixed. 6. To deliver the goods to the consignee named in the bill of lading. Duties of the Charterer. The chief obligation of the charterer is to pay the freight agreed upon, and he ought therefore to furnish a sufficient quantity of goods to answer for it. The whole freight is pay- able, whether the cargo is or is not fully loaded, but the captain should protest to the charterer, before signing the biUs of lading, if he wishes to claim freight for the part of his vessel which has not been fiUed up according to the charter-party.. If the captain sails without declaration on the biUs of lading of the deficit, or without giving notice or entering a protest to. the affreighter, he will be liable to him in damages. Local usage governs the incidence of the costs of this- declaration. If the Admiralty officials refuse the certificat de visite, on the ground that the charterer has loaded too many goods on board, the captain incurs no responsibility if he starts at the fixed time with a cargo which has become incomplete owing to the orders of the officials. The duties of the charterer may be further divided : — 1. If the goods reach their destination without delay the charterer must pay the freight in full, but he may deduct from it the amount of any danaages due to himself. If the goods shipped are liquids {e.g., wine, spirits, oil, &c., or such articles as molasses), in casks, and without any default of the consignor the contents have been lost on the voyage, no freight is payable. The charterer must abandon the empty DUTIES OF CHAETEEEE. 263 Casks to tho captain, and if part only has been lost, he may- abandon part and claim that -vThich remains. The freight becomes payable so soon as the goods are Rights o£ cap- unloaded. If the consignee refuses to- accept them, the of'consil^eeTo captain may obtain an order from the Court for their sale in accept cargo. order to obtain payment of his freight ; and if the proceeds do not realise a sufficient sum to satisfy his claim, he may bring an action against the charterer. But he should first proceed against the consignee, who is personally liable to him for the freight, if by his own conduct he has done any acts which show that he intended to accept the position of consignee. If the bill of lading is payable " to the consignee or order," Bills of lading and no person appears with the bill endorsed to his order by "to bearer." the consignee, the captain may sell the goods for his freight on the refusal of the consignee, whose name is on the bill of lading, to accept. If it is simply to bearer, the fact that no . one appears to accept the consignment is equivalent to a , refusal to accept. On such refusal, the captain should obtain a summons and Power? ot the call on the consignee to attend when the Court grants power °^^ ' to sell the goods m payment of freight. The Tribunal of Com- merce grants this power in France ; the French consul in foreign countries ; or, where there is no consul, the magis- trate. In some places, local custom allows the captain to sell without any judicial or quasi-judicial authorisation. If by the charter-party freight is agreed for a voyage out Voyage out ana and home, it is payable although the return voyage is made without a cargo ; provided that the default in loading the return cargo is due to the act of the consignee, and that the captain has given proper notice to him and entered his pro- test ; and if the return cargo is incomplete, the charterer is liable to tho captain in damages. 2. When the goods are delayed reaching their destination. Delay, the general rule is that the party to whose default or act the delay is due will have to bear the costs incurred thereby. But if the delay is caused by some unforeseen and unavoidable occurrence, the freight is payable in full. As special instances in which the costs of delay fall upon when charterer the charterer may be mentioned r— " P"'^'" '"'^ ^^^''^• 1. If he has shipped goods which are forbidden to be shipped, and thus caused the detention of the vessel at the port of loading. 264 CONTRACTS OF AFFREIGHTMENT. 2. If, in time of war, lie has shipped goods that come under the category of contraband of war, and the vessel has in consequence been delayed on the voyage. 3. If he has shipped goods forbidden to be imported at the port of unloading, and in consequence the un- loading is delayed or rendered impossible. When captain The costs of delay fall upon the captain : — dday?^'''^^ ^°^ 1- If he does not start at the proper time, owing to his own default. 2. If, during the voyage, he unnecessarily makes port, or is stopped for want of proper papers. If he knowingly has taken on board contraband goods from the consignor, the costs of delay attending their seizure are divided between the captain and the consignor. 3. If, at the port of -unloading, he has not immediately complied with all formalities required by the laws of the country in order to effect his unloading. Necessai-y for- In order to charge the captain with damages for delay, either mahties to , ,p, . pi-t,-,. c -, ■, • charge captain, at the port 01 starting or or his destination, a formal claim against him must be made by the ordinary legal process, unless in the case where a fixed sum per day has been agreed upon by the charter-party by way of demurrage. Accidents at If rep:iirs become necessary during the voyage in con- sequence of accidents at sea, the charterer has no claim for the delay, and if he decide to tranship his goods, he must first pay the freight. On the other hand, if the repairs are neces- (iary before starting and after the signing of the charter-party, owing to the had condition of the ship, the charterer may un- ship his cargo and also sue the captain for damages sustained; if necessary before starting, owing to some accidental occur- rence, the charterer may unship his cargo, but must pay either the whole or half of the freight, according to circumstances. BEfect of clause The ceHificat de visite is no protection to the captain or of exemption .j_t.j?t ••(. -,i j from liability Owner agamst a claim tor damages arising from delay caused from accidents. ^,y ^^i^e detention of t^e ship during the voyage for repairs, if it can be shown that the defects existed at the time when the cer- tificate was given. And a clause in the charter-party, expressly releasing the captain or owner from liability with respect to u-.^cidents of all kinds, does not exempt them from an action for damages when the unseaworthiness existed at the time of ' starting. DUTIES OF CHAKTEEEES AND CAPTAINS. 265 When the delay necessitated by repairs would result in the Transhipment. loss of the cargo {e.g., goods of a perishable nature), the consignor may tranship them on paying a_ proportionate freight for the part of the voyage then accomplished. It should be added, that all interested parties who know- Criminal pro- ingly allow a vessel to start in an nnseaworthy condition are ''"^ ^'^^^' ' liable to be proceeded against criminally. In case of the ship chartered becoming so disabled as to Disablement of be incapable of repairs, the captain is bound to engage another *''° ^'"P' ship ; if he succeed in doing so, he earns his whole freight, ibut he cannot claim even a proportionate amount, in case of failure to obtain another ship, unless he has been absolutely Sand unavoidably prevented from obtaining it. If the second ship can only be engaged at a higher price than that agreed on by the original charter-party, the consignor wiU have to pay the difference to the captain. If the particular port of destination is blockaded, the Duties of the ■captain is bound to proceed to the nearest open port of the of blookESe. ^^ same country, and is entitled to a proportionate increase of freight for the extended voyage ; and if all the ports of that country are under blockade, he should proceed to the nearest port of another country, or even return. He alone is judge of the best course to be taken in the interests of the cargo entrusted to him. 3. When the goods do not reach their destination. — If Default of the this arises from the default of the charterer, owing to his shipping a full shipping an incomplete cargo, he must pay the freight that "^^o. would be due on a fuU cargo ; but if, after signing the charter- party, he supplies no cargo, he is onlyjliable to pay half freight. On his side the captain is bound to make formal claim in the legal manner before leaving with an incomplete cargo. If the merchant withdraws the cargo during the voyage, he Withdrawal of is liable for the whole freight due on the entire voyage, and the^°oyage"^ also for the costs of unloading, and any additional expenses caused thereby. But the i^rivileges granted to the captain by Art. 307 of the Code of Commerce only extend in respect of the portion of the freight earned by that part of the voyage actually performed ; that is, his lien for that portion only win extend for a fortnight after delivery of the goods, if they have not been transferred during that time to a third party. For the surplus he must sue the charterer. 26(3 CONTEACT OF AFFREIGHTMENT. Rule on Bale of damaged goods. Abandonment, of vessel. Jettison. General average. Duration of liability. Default of the charterer, total and partial. In the case of i general ship. Effect of declaration of hostilities. If, during the voyage, goods become so damaged that the captain is comjjellcd to sell them, the established principle as to his right to the entire freight is as foUows : If the captain is directly or indirectly to blame for the damage, the loss falls upon him ; if the damage is due to force "majeure, the whole freight is due. But if the loss of the cargo is complete, so that no compensation at all is made to the merchant, e.g., by ship- wreck or capture, and generally speaking by accident, no freight is payable ; and in case of recapture or salvage from the wreck, freight is duo for the part of the voyage performed. In the case of a ship abandoned at sea by its crew and taken to its destination by salvors, if the consignee of the goods receives them subject to a payment to the salvors of one-third of their value, the captain can only claim from him two-thirds of his freight. If goods are jettisoned for the benefit of the general safety of the ship or the rest of the cargo, the captain receives freight for them by way of general average ; and the owners of the goods saved and the shipowner contribute to indemnify the owners of the goods jettisoned. But no claim for freight can be made on account of goods loaded on deck' and jettisoned, even if such freight has been specially stipulated for in the charter-party. Lastly, the liability to risks by sea remains untU the cargo is actually unloaded from the vessel. If, therefore, the cargo is lost by the foundering of the ship when in port, no freight is due except upon such part of the cargo as is saved. Execution of the Contract. If a merchant or consignor of goods, after entering into a contract or charter-party, refuses to comply with it by furnish- ing any c&rgo, he must pay the captain an indemnity, iixed by law at one-half of the freight agreed upon. If he has. furnished only a part of the cargo, the whole freight wiU be due. In the case of a general ship (a cueillette), there is an exception to this rule. The consignee of goods on a general ship may break the contract after furnishing a part only of his- cargo, on payment of one-half of the freight which he agrtjed to pay. If, before the vessel starts, there is a prohibition of com- merce with the. country to which the cargo was destined, the EIGHTS OF ACTION — JUBISDICTION. 267 contract is thereby cancelled, and no claim for damages can be sustained by any of the parties. The consignor has to bear the loss of loading and unloading of his cargo. Such cancel- ling of the contract takes place if, e.g., hostilities have begun Cancellmg of between the two countries from and to whose ports the vessel *'"' ''™*™<=t. is to sail ; if the vessel is detaiued by order of the Govern- ment when loading in a French port ; if the cargo consists of goods the export of which has been forbidden after the arrival of the vessel at its port of loading. In all such cases the contract is, ipso facto, cancelled. In the case of unavoidable occurrences, which delay for a Vis major. time the starting of the vessel, e.g., the existence of contrary winds or delay caused by the Custom House officers, the contract remains in force; and neither party has any claim to damages. But such unavoidable occurrences must be such as were entirely beyond the control of the parties ; for if a charter-party is signed for the transport of a cargo to a port, which in all probability will or may be closed by ice before the vessel arrives there, and if the vessel consequently does not start, the contract is not thereby cancelled, but the consignor is liable to pay half the freight. Eights of Action. The right to sue f Qr payment of freight becomes due — • At what time 1. When the cargo has arrived at its destination, unless the payaWe!'^°°" °^ contract is for payment in advance ; 2. When the consignor withdraws his cargo before or during the voyage ; 3. When the ship becomes disabled by perils of the sea, and the captain is unable to procure another vessel on to which he can trans- ship the goods. The captain who has entered into the contract has power Persons who to sue for payment, to receive the freight, and to give a ^ ™ • receipt for it. This right, at the same time, belongs to the owners of the ship. During the voyage all actions in respect of the equipment of the vessel belong to the captain. The Tribunals of Commerce can adjudicate on any action Jurisdiction of relating to the payment of freight. Interest on the freight claimed in a suit begins to accrue from the date of the com- mencement of the action. The captain's lien upon the cargo for payment of his freight Lien of the extends for a fortnight after delivery, provided that the cargo '^"''^ ^™" has not during that time passed into the hands of other parties, who must be bona fide purchasers or assigns, and 268 CONTEACTS OF AFFREIGHTMENT. Bankruptcy of ■consignor. Limitation of actions. -Characteristics of a bill of lading ; its forin ; its contents. must have received actual delivery of the goods. But if the goods have in the meantime lost their identity — as e. g., if they consist of raw material converted during that period into manufactured articles — his lien is gone; and the captain must not have either expressly or tacitly renounced his lien. If the entire freight is due for goods taken out of the ship during the voyage, the captain's lien ojily extends to the pro-' portional freight for the part of the voyage completed. He must bring an action for the remainder. If the consignors, or those who claim the cargo, become bankrupt before the fortnight expires, the captain's hen is a preferential claim that takes precedence of all other creditors. All actions in respect of freight must be brought within 0110 year from the termination of the voyage. Bills of Lading. A bUl of lading, a form of which is added below, is a docu- ment signed by the captain of a vessel or someone on his behalf, acknowledging the receipt of goods or a cargo on board. It differs from a charter-party in that the latter contains the contract for the hire of the vessel, while the signed bill of lading is evidence that the cargo has been shipped. As .supplementary to the charter-party, it shows that the contract of affreightment has been carried out. A biU of lading may be drawn either to bearer generally or to order, or to a specified person. The form in France varies according to the port of lading, many French ports having a customary form of their own. The contents, however, should bo the same in all ; thus, there should be expressed — 1. The nature, quantity, kinds, and quality of the goods ; 2. The name of the consignor, the name and address of the consignee, and the name and domicU of the captain ; 3. The name and tonnage of the ship ; 4. The port of departure and of destination ; 6. The price agreed upon as freight ; 6. And, in the margin, the marks and numbers of the consignments. It is obvious that these points, though useful for identi- fying both goods and parties, are not absolutely necessary in all cases. Thus, a biU drawn to bearer can have no name of a consignee, although this is expressly required by the Code of BILLS OF LADING. 269 Oommerce. But the name of the consignor is indispensable, as it may be necessary in certain cases to have recourse to him. The document must be on stamped paper, and executed in Bill ot lading- four originals at least. These are aU signed within 24 hours originlds" after the completion of the lading by the consignor and the captain. One of these originals is delivered to the consignor, the second is for the consignee, the third for the captain, and the fourth for the shipowner, in order to enable him to settle his accounts with the captain. It is usual, and even in accor- dance with strict law, that if several copies of the bill are drawn up, the number so drawn should be stated on each. The duty of presenting the biU of lading to the captain Consignor's devolves upon the consignor. The captain is not bound to go of'thobii/oP^ to the consignor for the purpose of signing the bill of lading ; ^^^s ; and if any delay in carrying this out is caused by the con- signor, he is answerable in damages to the captain. Without the signature of the captain the instrument is absolutely void. By the Ordonnance of 1681, if the consignor were a relative of the captain, and within the degree of relations whose testimony was prohibited in favour of each other, it was necessary that the bill should be initialled by the French consul in a foreign country, or by one of the chief owners of the ship in France, signatures. This regulation should be still observed ; and in order to avoid any suspicion of fraud or collusion, it is better to have the bill signed by one or two of the principal officers of the crew as well. If the regulation of 1681 is not observed, a bill of lading, with the signature of the captain only, would not be accepted as evidence in case of loss by jettison or shipwreck. Foreign bills of lading are not subject to French law, nor Foreign bills. is the captain signing a foreign bill compelled to be assisted by an interpreter, as in the case of a charter-party. Transfer of Bill of Lfiding. If the instrument is to bearer, the holder is entitled to the Transfer of the goods in accordance with the terms of the instrument. A bill ' i drawn simply " to order," with no consignee named, is on the same footing as one drawn " to bearer.'' The nature of the bill of lading is not changed by an indorsement in indorsement in blank. This question, which was decided by the Court of Cassation, arose in reference to a bill of lading drawn in England and made out, according to English custom, to order or assigns. 270 CONTRACTS OP AFrEEIGIITMENT. Assignment of the bill. Bill "to order,' Informal n- ■doTsement. "Stoppage ill itransiiti. mights of the Tiolder. Kilonsignoir's lien. Duty of the -captain as to •delivery of ^oodB. If the instrument is made out to a specified person, and by him transferred to a third party, the transfer should be effected by an acte cle cession and notified to the captain. In. this case the transferee takes subject to the liabilities of his transferor, and an unpaid vendor can exercise against him all the rights that he had against the transferor. A biU of lading " to order " is transferable by indorsement, and has the quality of a bill of exchange ; provided always that it has the conditions to which a bill of exchange is subject, that is, it must be dated, must state the value, and also the name of the party to whose order it is given. Irregular indorsement does not transfer the property, though it may act as a procuration : and even if by the law of a foreign country such indorsement transferred the property, this will not be the result if the assignment to a third party were made in Prance. Further, if the indorser in such a case become bankrupt, the holder of the bill irregularly indorsed cannot dispose of it. A regular indorsement transfers the property in the goods named in the instrument. In certain cases, the original vendor has a right analogous to the English stoppage in transitu, by which he can claim the goods in the event of the bankruptcy of the purchaser ; and if the purchaser has transferred the goods to a third party, with- out assigning also' to him the bill of lading and an invoice of the goods, this vendor's right remains. But if the vendor has indorsed the bUl to his purchaser, then, in the event of the latter's bankruptcy after assignment to a third party, who has taken the goods hand fide, the vendor must indemnify the third party for any advances made by him before exercising this right to claim the goods. It follows that the holder of a properly indorsed bill lading may deal with the goods comprised in it as owner them. The vendor's lien does not extend to third parties claiming through him. A re-sale by the buyer defeats their rights, and is not impeachable. The captain is bound to deliver the goods to the person who holds a regularly indorsed bill of lading. It is not part of his duty to examine whether the holder is in point of fact bene- ficially entitled. No oppositions can stop the delivery of the goods, unless the ground for them is that the bill of lading has EFFECTS OF BILLS OF LADING. 2?! been lost, and. if the consignor wish to withdraw the goods ■during the voyago, the captain must refuse to allow him to do •so, unless he produces and gives up all the copies of the bill of lading which the captain had signed. Freight and other dues must in all cases be paid before •delivery of the goods can be demanded. As to a transfer by a practically insolvent holder : if the Effect of holder transfer (by indorsement) is made after suspending payment, rupt. * the unpaid vendor can follow the goods into the hands of the transferee, it being incumbent on the vendor to prove that the transferee was aware of the insolvency of his transferor. Effects of a Bill of Lading. If duly drawn and signed, the bill of lading is evidence as Effect of the between all parties concerned and as against the insurers ; but proof is admitted on the part of insurers or third parties to show that it is not a genuine document. It imposes on the captain the duty of delivering the goods as named in it, in the same condition as they were shipped, subject of course to unavoidable damage or loss by perils of the sea. The usual L'sual pro- practice, for the captain's protection, is to insert at the foot of -the instrument the words sans approuver or que dit etre ; by this addition, the captain expresses that hedoes not guarantee the weight or quantity, &c., stated by the consignor. If the consignor refuses to allow this qualification, he is bound to have the quantity and quality, &c. verified at his own cost before the voyage. But no further limitation of his liability is .allowed to the captain : e.g., he cannot disclaim responsibility for any default of himseK or his crew. On the other hand, the •shipowner can refuse to be responsible for default of the cap- tain or crew. The obligation to have on board the bills of lading of goods -consigned is imperative on the captain ; therefore, if he has lost them, he is responsible to the consignors for the value of the goods. If there is a difierence between the charter-party and the Conflict IbUl of lading with respect to the freight of the goods, the Court charter-party will decide any dispute that may arise by investigating the ^^^^] °* circumstances of each case. The question thus becomes one -of fact and of the intention of the parties. 272 CONTRACTS OF AFFBEIGHTMENT. Delivery at port of unload- ing. Duties of the. captain towanls the consignee. Demurrage, Adverse claimiuits. iiimitation of actions. Stamps. Stamps on foreign bUls. On copies. Penalties. Delivery of the Goods. On arrival at the port of unloading, the captain's duty is to hand over the goods to the consignee named in the bill of lading. He is bound not to cause any delay in unloading them,, nor can he refuse delivery on the ground that the consignor- forbids it ; in fact, nothing but an execution issued against the- goods can stop their delivery. It is also the duty of the captain to inform the consignee of his arrival, in order that the latter may claim the goods, or- if the bill of lading is to bearer or order, -without naming any definite consignee, he must, in that case, publish the fact of' his arrival, &o., in the local ne-wspapers. Any delay in accepting delivery on the part of the consignee renders him liable to demurrage, -which is usually fixed by the charter-party. If two persons, claiming as consignees, and holding bills of lading for the same goods, demand them from the captain, the proper course for him is to refrain from making delivery to either until their rights have been settled by a decision of the Court. On effecting delivery, if there has been any disp-ate,. the practice is for the consignee to indorse a receipt for the goods upon his copy of the bill and to hand it to the captain, -who, in return, hands over his copy -with an indorsement of the receipt of the freight. No action can be brought by the consignor in respect of goods, contained in the bill of lading after the expiration of one year from the arrival of the vessel at its destination. The stamp on a bill of lading is two francs. This is stamped on the captain's copy, the others being stamped at the same time with a stamp mark containing no indication of value. Foreign biUs of lading, befqre being used in France, must be stamped according to French law ; this is done by affixing an adhesive stamp to the copyhold by the captain. Copies over and above the four originals in which the instrument is executed are chargeable with a duty of 50 centimes. The flue for drawing a bill of lading without a proper stamp is 50 fs. ; and for not exhibiting a bill of lading to the custom house officers, f ronai 100 to 600 fs. There is no ad valorem duty on bills of lading, whatever be ^ the value they represent. CHAETEE-PAETT. 273 Form of a Charter-party. Marseilles, the 1st day of January, One thousand eight hundred and eighty-one, Captain commanding the named registering tons, now lying at has chartered, with the authorisation of Mr, to Mr. merchant in this town, his said ship to the full extent of its capacity, without regard to its measure- ment ; for intended to take a full and complete cargo in and to convey it at the price and subject to the clauses and condi- tions following : — Art. 1. — ^The captain shall have his ship in good condition, equipped and furnished with all requisites, and fit to make the intended voyage ; and this shall be declared by the certificate of inspection. Art. 2. — To carry out the loading and unloading of the said ship, the captain allows Mr. charterer, or his correspondent running days or staries reversihles, which shall begin to run at the port of loading from the Aajy after his arrival there ready to load, and end the day on which the loading is completed ; and to begin again at the port of imloading on the day after he is admitted to the port, and is ready to unload. Art. 3. — If at the port of loading or unloading there is need of running days, or days of demurrage, the captain is bound to allow them, on payment to him at that place French money, or its equivalent value, for every day. Art. 4. — ^When the lay days and days of demurrage have expired at the port of loading, the captain, after fulfilling all necessary formalities, shall be at liberty to sail to his destina- tion ; and in the event of safe arrival there, the deficit of the cargo (if any) shall be paid for as though he had a full cargo. Art. 5. — ^Loading and unloading to be effected according to local customs, and porters to be at the expense of Mr. the charterer. Art. 6. — During the now intended voyage the captain shall pay all expenses and duties on his ship, and Mr. the charterer, all expenses on the cargo. T 274 CONTEACTS OF AFFREIGHTMENT. Art. 7. — The said captain is forbidden to take on board goods belonging to other persons than Mr. , the charterer, or Mr. , his correspondent, without leave from them in -writing, under penalty of forfeiting half his freight. The captain undertakes to sail within 24 hours after receiving the last consignments from Mr. , the charterer, or Mr. , his correspondent, weather permitting ; and to proceed straight to his destination with- out entering any other port, unless compelled to do so ; and if so compelled, he undertakes not to load or unload any- thing there, under penalty of paying all damages and interest, except in the event of overwhelming necessity legally certified. Art. 8. — The captain shall sign the bills of lading, what- ever freight may be stipulated in them, and shall only have a claim to the freight stated in Art. 9, whether more or less than that stated in the biUs of lading. Art. 9. — The present affreightment is made and agreed at , and for per cent, primage , the whole to be paid in cash after the unloading is completed. Art. 10. — ^The and boards necessary for the safe-keeping of the cargo shall be provided by Art. 11. — Payment shall be made to the captain at on account of his freight, to the amount of francs^ leaving to him only the expense of the insurance premium. Art. 12. — On arrival at the port of unloading, the captain shall notify his vessel and the cargo to Mr. , the charterer, or to Mr. , his correspondent. (Signed) PATENTS AND TMDE MAEKS. PATENTS. The rights of patentees and inventors are regulated by a law Law of 18«. of 1844, which consolidated and amended the various enact- ments passed on this subject during the period from 1791 to 1807. Every new discovery relating to industry confers wpon its . author, subject to the conditions and the periods hereinafter stated, the exclusive right to work the said discovery or invention for his own benefit. The following are considered as inventions or new dis- what may bo coveries for which patents may be granted : — 1. The invention of new industrial products. 2. The invention of new means, or a new application of known means for obtaining an industrial jaroduct or result. Medical compositions and medicines of every kind, as also What cannot be pla,ns and combinations of credit or finance, cannot be patented. The decree of August 18th, 1810, regulates the production of medicines. Patents are granted in France for a period of five, ten or Limitation of fifteen years. The fees payable in each case are : — - ^ ' For a patent of 5 years 500 fs. 5'ees. 10 years 1,000 fs. „ 16 years 1,500 fs. These fees are payable by annual sums of 100 fs. The patent is forfeited if the patentee allows a term to pass without payment of the instalment then due. t2 276 PATENTS. DocuznentB to be deposited. Specification, Agent, First dnty. Certificate of application. FORMALITIES ATTENDING THE TAKING OUT OP PATENTS. In order to obtain a patent, the applicant must deposit under seal, at the office of the Secretary of the Prefecture in the department in which he is domiciled, or in any other department after having elected domicil therein — • 1. His petition to the Minister of Agriculture and Commerce. 2. A description of the discovery, invention, or applica* cation that forms the subject of the patent. 3. Any drawings or samples necessary to the elucidation of the description given. 4. A schedule of the documents deposited. The application must not be for more than one patent. It must also mention the period for which the petitioner desires to have the patent granted, within the limits above prescribed, No conditions, restrictions, or reservations may be included io the form of petition. The title of the object for which a patent is required must be designated by a summary and precise description of the invention. Great care and accuracy must be observed in the wording of the petition ; foreign words must not be used, and no alterations or erasures are allowed. Drawings must be traced in ink according to the metric scale ; and duplicates of these drawings and of the description must be annexed to the petition. If the petitioner applies in person, he must sign his name to all the documents employed. If he applies by his agent, the agent must be duly autho- rised* by procuration, and the procuration must be annexed to the petition. With the deposit of the documents and petition must be filed a receipt showing that the applicant has already paid 1 00 f s . on account of the whole fee due for the patent. Without this receipt no deposit is accepted. The Secretary-General of the Prefecture draws up a certi- ficate (for which no fee is charged) upon a register kept for that purpose; this certificate states the' day and hour when the deposit was made, and when signed by the petitioner is evidence of the deposit. The petitioner can take a copy of it ♦ See Form, PATENTS. 277 on paying the stamp duty. The patent begins to run from the date of the deposit of the petition. Any person other than the patentee may obtain a patent Rights of for an improvement on the article patented, but he cannot ""P™^^™- work it until the period for which the original patentee holds has expired. If the original patentee applies within a year from the date of the deposit for a patent for the same improve- ment, he has a right of priority over all other applicants. The petitions of parties other than the original patentee are there- fore deposited under seal, and are not opened until after the expii-ation of the year during which the rights of priority remain in the original patentee. DELIVERY OP THE PATENT. When the petition has been properly made, and all the Effect of documents duly deposited, the patent is delivered to the peti- p|tMit7 ° tioner. This delivery merely indicates the fact that the deposit has been made and the patent granted ; the Government does not thereby guarantee anything to the patentee, neither the exis- tence, novelty, or merit of the invention, nor the fidelity and accuracy of the description. It is delivered solely at the risk of the petitioner, and therefore the words sans garantie du Oouvernemeni (s. g. cl. g.) are required by law to be affixed to all patented articles. The decree delivered by the Ministere to the petitioner, fixing the regularity of his demand, is that which constitutes his patent. Every three months a statement of all patents delivered Publication of within, that period is published in the Bulletin des Lois. ^^ ™''°" The period for which a patent is granted can only be ex- tended by a special law. IWPRIlfaEMENT— PROCEEDINGS AND PENALITIES. Any violation of the rights of the patentee is an offence Penalties for punishable by a fine of 100 to 2,000 fs. If the offence is i-^f^gement. repeated, a penalty of imprisonment for a term of not less than one and not more than six months, may be pronounced, in addition to the imposition of the prescribed fine. The offence is considered to be repeated if the offender has been convicted within the previous five years of the same offence. Imprisonment for the terms specified above may be inflicted penalties on if the person infringing be a workman or employe who has ™p'°!'^'- 278 PATENTS. worked in the factory or establishment of the patentee, or if the infringer has associated himseK with such em;ploye, or obtained from him knowledge of the details comprised in the patent. In the latter case, the employe may be prosecuted as an accomplice. Action for Actions for repeal or forfeiture of the patent must be forfeiture. brought before the civil Courts in a Court of First Instance ; other actions, involving penalties, come before the Tribimal Gorrectionnel, Vhich has in all cases a right, after action once brought, to decide upon the defences pleaded by the defendant, either as regards the repeal or forfeiture of the patent, or upon questions relating to property in the said patent. BearoliTTarrant. Further, the patentee can obtain from a Court of First Instance an order for a search warrant, and may proceed by means of a Tiuissier to designate in detail, with or without seizure, the objects which are alleged to infringe the patent. Security re- If an application is made for an order, of seizure, the order plaintiff, may require the plaintifE to furnish security, and to pay the amount required into the Caisse des Consignations before pro- ceeding further. The plaintifE must prosecute within eight days, otherwise the seizure becomes void. THE EIGHTS OF FOREIGNERS. Foreign patents An Englishman or foreigner can obtain a patent in France upon comphance with the usual formalities and conditions. The author of an invention or discovery already patented abroad can obtain a patent for it in France. This kind of patent is called brevet d'vmportation. The duration of the French patent wiU be the same as that of the foreign patent, unless the duration of the foreign patent exceeds 15 years, as in France the maximum duration of patents is only 15 years. Therefore a brevet d'importation, taken out in France, based on an English patent, lasts 14 years only, as in England patents are only granted for 14 years. Requisites for A foreigner having obtained a patent abroad can obtain a ^tent!"™^'^ French patent. A patentee having obtained a patent abroad cannot obtain a brevet d'importation in France unless his invention is new. Thus, a patentee out of France who works his patent before applying for a French patent, or who, without working it, pubUshes a specification as in England, cannot obtain a valid patent in France ; therefore a brevet d'importation should be taken out in France upon a date approaching as EIGHT OF FOEEIGNEES TO TAKE OUT PATENTS. 279 nearly as possible that upon whicli the foreign patent is granted ; any delay is dangerous. The existence of a hrevet d'iviportation depends upon a prior Foreigner patent ; therefore, if the prior patent is cancelled, the brevet (Vimioortation also falls to the ground or becomes void. (Cas- sation, 14th January, 1864.) We should also repeat that a foreigner, suing for infringment of a patent, must furnish security when he seizes the goods in the hands of the infringer, as a preliminary to subsequent proceedings. He must also furnish security for costs at the time when his action is brought before the Court, if the defendant demands. Such security for costs is quite distinct from the security to be furnished upon seizure above mentioned. A patent, like all other property of the inventor, is an asset Patents can be which his creditors may seize, with the patented articles and attached. the property in the patent. The proper method is by saisie- arref, and not by execution and distraint, the theory being that the patent is in the hands of the Government. If sold, the sale of the patent must be made in the presence of a notary. FORM of a PoUVOir. Form of procu- ration to take T - ' ,, 1 -n !< 01* patent. Jc, soussigne A. Ja. Desirant obtenir un brevet Donne pouvoir a " C. D." de pour moi et en mon nom, tant en ma presence qu'en mon absence, presenter a Son Excellence le Ministre de 1' Agricul- ture, du Commerce et des Travaux Publics ou a toute autre autorite legale, toute requete, petition et demande, dresser et signer tous proces-verbaux et declarations ; ddposer, rectifier et signer tons memoires, dessins et documents, contracter tout engagement et faire generalement tout ce qui sera necessaire dans mon interet pour I'obtention du dit Brevet comme je le ferais moi-meme sij'etais present, promettant de ratifier et d'approuver, tout comme de fait je ratifie et approuve tout ce que et quoi mon dit Fonde de pouvoir jugera convenable de faire pour I'eiecution pleine et entiere des prdsentes. ' " A. B." 280 PATENTS. 'Rules and regulations. Formalities, Sealed packet. REGULATIONS IN EBSPEOT OF PATENTS ISSUED BY THE MINISTEE OF AGEICULTURE AND COMMERCE. 1. — Duration and Duties. Patents are granted for a period of 6, 10, or 15 years, as the inventors require. The duration of the patent runs from the day when the application is deposited ; it can only be extended by a special enactment of the Legislature. Each patent is subject to a duty of 100 fs., payable annually, under pain of forfeiture if the patentee does not pay this duty before the beginning of each year during which his patent lasts. II. — What cannot he Patented. No patent will be granted for — Medicinal compositions or medicines of any kind ; these remain under the special laws and regulations that deal with them, in particular the decree of 18th August, 1810, dealing with secret remedies. Proposals and combinations of credit or finance. (Law of 5th July, 1844, Art. 3.) III. — Formalities to he ohserved. Any person may take out a patent of invention, provided the following' formalities have been observed: — A sum of 100 f s. must be first paid in at Paris with the Collector-General of the Finances of the Seine, and in the departments, with the collectors of finance. The payment of this amount, which con- stitutes the first yearly charge payable, is acknowledged by a receipt granted by the collector. The next step is for the applicant to go to the General Secretary's office of the depart- ment in which he is domiciled (or of another department, if the applicant elects domicU therein), and to deposit, together with the receipt for the first annual payment, a sealed packet containing — 1. An application to the Minister of Agriculture and Commerce. 2. A description of the invention. 3. The drawings necessary to explain the description. 4. A schedule of the papers deposited. If an agent is to take out the patent, or ntierely to make this deposit of papers, he must make an exhibit of the power granted to him, and deposit it also. EULES AND EEGULATIONS, 281 The application must be confined to one principal object, together with the details of which it consists, and the purposes for which it is intended, and it must not contain any limita- tions, conditions or reservations. If these rules are not complied with the application is dismissed. (Law of July 6th, Law of isu on 1844, Arts. 6 & 12.) , p**™*^- The description must be supplied in duplicate, one being the original and one the copy. The original should be marked at the top " Original," and the copy "Duplicata." If the two do not correspond exactly, or if the original is not so marked, the application is dismissed. It will also be dismissed if the description is written in a foreign language. (Law as above.) Two sets of drawings must also be supplied, an original and a copy. The original must be marked at the top " Original," and the copy " Duplicate." If the two do not exactly corres- pond, or if the original is not so marked, the application will be dismissed. It will also be dismissed if the drawings are made in pencil. (Law as above.) If the applicant intends to add to the drawing any explana- tory words, he must insert them in the margin, both in the original and on the copy. If the two sets of explanatory words do not correspond, and if the original is not so marked, the application is dismissed. It will also be if the words are in a foreign language. (Law as above.) It is necessary to specify in the application the duration required for the patent by selecting one of the periods fixed 'by the law, and also to express in a concise and exact manner the object of the invention. The description must not contain any erasure, interlineation, or any alteration whatever, or any expression of weights or measures except those based on the metric system. Any words struck out must be counted and specified. The original and the duplicate must be signed by the inventor or his authorised agent. Drawings must be made in ink, according to the metric Drawings must ° . , . , . oe m mk, scale. They must not contam any erasure, mterlmeation, or any alteration whatever, or any expression of measures except those based on the metric system. The original and the duplicate must be signed by the inventor or his authorised agent. Neither these signatures, nor those appended to the description, are to be legalised. The explanatory words must not contain any erasure, inter- 282 PATENTS. Eiffhts of foreigners. Grant of patents. lineation, or any alteration whatever, or words interlined, or any expression of weights or measures except those based on the metric system. Words struck out must be counted andi specified, and pages and notes initialled. A sufficient margin for the remarks which are to be entered by the authorities must be left in the descriptions, drawings, and explanations. The object of the invention must be specified in the same manner in the application and in the abstract of the deposit. These two papers must also specify the same owner and the sam.e duration for the patent. Any neglect to com.ply with the formalities above pre- scribed may, according to circumstances, entail the dismissal of the application. Samples, patterns, or models which the inventors consider necessary for a proper understanding of the description, must be deposited at the same time as the packet mentioned above, but in a different sealed packet. If the samples, patterns, or models are too cumbersome to be sent by post, they must be brought in a wooden bos, provided and closed by the person making the deposit. The deposit is certified by a formal document (proces-verbal), which is transmitted to the applicant on receipt of the neces- sary postage. TV.— Rights of Foreigners. Foreigners can take out patents in France. Further, the author of an invention or discovery already patented abroad can take out a patent for it in France ; the period for which it can be taken is in no case to exceed that for which the> previous foreign patent has been granted. For this purpose, the inventor should give authority to a person residing in France to apply for the patent in his name (the inventor's), or merely to see to the deposit of documents, as specified in paragraph 3 of the present notice. V. — Grant of Patents. Patents for which the application has been made in due form, are granted without previous examination of them, at the risk and peril of the patentees, and without guarantee either of the genuineness, novelty, or value of the invention, or of the truth or accuracy of the description ; the grant of the patent does not release the owner from the observance of any law or any regulation. EULES AND EEGULATIOKS. 283 Patents are granted in the order of the applications made at the office. VI. — Changes, Improvements, or Additions to Patents. The patentee or his assigns, during the specified period, Changes, im- may reserve to themselves the exclusive right to carry out, adclltion™*^ '"^'^ for their own profit, any alterations, improvements or additions to the patent, by obtaining a grant of a " certificate of addition." The formalities are the same as for applications for patents, except that the only charge for the certificate is a special duty of 20 fs. Each "certificate of addition" operates from the date of the deposit and ceases with the patent. Certificates of addition taken out by one of the assigns enure to all the others. Every patentee may also take out, instead of a certificate of addition, which expires with the origmal patent, a second original patent, for five, ten, or fifteen years, for an alteration, improvement, or addition. The formalities are the same as for an ordinary patent. Any other person may also take out a patent for an altera- tion, improvement, or addition to the invention already patented. But the original patentee has a preference for alterations, improvements, or additions for which he has taken out during the first year a patent or a " certificate of addition." VII. — What Patents are void. Patents delivered under the following circumstances are Patents, wten void : — 1. If the discovery, invention, or process is not new ; 2. If the discovery, invention, or process consists either of a medicinal compound or any kind of medicine, or of a pro- posal or combination of credit or finance ; 3. If the patents deal with purely theoretical or scientific principles, methods, systems, discoveries, or ideas, without specifying any com- mercial application of the same ; 4. If the discovery, inven- tion, or process is opposed to public order or safety, or to morality and the laws of the State, without prejudice to the penalties which might be incurred by the manufacture or exposure for sale of prohibited articles ; 5. If the title imder which the patent is applied for fraudulently specifies an article different from the article invented; 6. If the description attached to the patent is not sufficient for the execution, or if it does not express in a complete, honest and straightforward manner the real process used by the inventor ; 7. If the patent 284 PATENTS. has been taken within the year for an alteration, improvement, or addition to a patent taken by another person, and the latter has within the proper time availed himself of the preference granted to him by Art. 18 of 'the Law of July 5th, 1844 Cer- tiiicates dealing with alterations, improvements, or additions which are not connected with the principal patent, are also void. A discovery, invention, or process which, in France or abroad, and previous to the date of the deposit of the applica- tion, has been made sufficiently public to be executed, is not reckoned as new. Patents, when forfeited. YIII. — Forfeitures. All rights are forfeited by :■. — 1. A patentee who has not made his annual payment before the beginning of each year of the duration of his patent. 2. A patentee who has not put in working order his discovery, invention or process in France, within two years from the date of the grant of the patent, or who has ceased to work his patent for two consecutive years, unless in either case he gives sufficient reasons'for his conduct. 3. A patentee who has introduced into France articles manu- factured abroad and similar to those protected by his patent. The Minister of Agriculture and Commerce has power to authorise the introduction of models of machinery and of articles manufactured abroad for the purpose of being exhibited at the public exhibitions, or at trials made with the permission of the Government. Copies and specifications. IX. — Copies and Puhlieations. Any person may obtain a copy of a description relative to a patent by applying for it to the Minister and forwarding to him the duty of 25 fs., paid like the duty on the patent. For a copy of a description relative to a certificate of addition the application should be accompanied by a remittance of a duty of 20 fs. Persons requiring copies of drawings must come to the office and make them in person, or send some one at their own expense to take copies. Descriptions, drawings and models of the patents granted remain deposited at the office of the Minister of Agriculture and Oomimerce until the expiration of the patent, and are filed there free of expense. Descriptions and drawings of expired patents are to be found at the Conservatoire of Arts and Trades. — May, 1880. TRADE MARKS. 285 TRADE MARKS. The law which at present regulates trade marks in France Law o£ 1857. was passed in 1867. Previous legislation was, in early times, both severe in its penalties and injurious to trade, while the disconnected attempts made since 1789 to deal with the subject, resulted in an incoherent mass of unsatisfactory enactments. Compulsory marks are required by statute to be used by CompulaoiT printers, jewellers and goldsmiths, playing-card makers, gun- ™^^^- makers and some others. Other manufacturers may affix a trade mark to the goods which they produce. It is intended to guarantee to the consumer the quality and the origin of the articles sold. The requisites of a trade mark are that it should be both new and distinctive. A trade mark used in a foreign country, unless protected ForeiRn trade in France by treaty or special legislation, may be used as a ™'^'''^^' new mark by a manufacturer in France. Names, initials, and almost any words, may be used as a trade mark. Property in Trade Marks. The first person who uses a specific mark has the property Property in in it, and this property is protected by depositing (registering) h™w^pre?erVod. the mark. It is preserved by use, and may be lost by non- user, but the non-user naust be definite and not merely tem- porary. If a firm possess a trade mark, in the case of dissolution of partnership it should be sold by auction ; otherwise, each member of the firm retains the right to use it, unless one of the conditions of the dissolution is that each partner reserves the right to continue in the same business, in which case the trade mark is extinguished. Transfer and Assignment of Trade Maries. No formalities are necessary for this purpose. Though Aaeignment of registration of the transfer is not compulsory, it is always *™*^ mark. desirable, in order to protect the transferee against other parties who may have obtained subsequent transfers, A general sale or transfer of a business transfers any trade Transfer of mark belonging to that business, bnsmeas, ^Registration — Foreigners. Foreigners who possess mercantile establishments in Rights of France enjoy, so far as regards the products of their manu- foreigners. factures, the same rights as Frenchmen concerning the deposit of their trade marks. 286 TEADE-MAKKS. Beciprocal treatieB. Oertificate of deposit. Elegiatratlou. Agent. Duration of registration. Infringement. Traud. CriminaJ pro- ceedings But foreigners who carry on business out of France only do not possess the same privileges, unless the same facilities have, pursuant to laws or diplomatic conventions, been recipro- caUy granted to Frenchmen in their respective countries. A foreigner or a foreign Company or firm, having only an agent in France, is not entitled to the above rights. The registration or deposit is made at the offices of the Civil Tribunal of the Seine in a special register, and the certificate of deposit sets out the country in which the com- mercial or agricultural establishment of the proprietor of the mark is situate, in addition to the treaties of reciprocity. It is effected by depositing two copies of the drawing or print representing the mark at the office of the Tribunal of Commerce of the district in which the manufacturer is domi- oiled: or, where there is no Tribunal of Commerce, at the office of the Civil Tribunal. , The manufacturer, or his agent empowered by special authority, can effect the registration. The document autho- rising the agent should be under private seal, and registered. The registration, when effected, holds good for 16 years. It may be renewed at the expiration of that time. The effect of registration is to give the proprietor of the trade mark the right to prosecute fraudulent imitators. The effect of non- renewal after 15 years is to take away this right. An English manufacturer cannot register a trade mark in France which has lapsed in England. (Court of Cassation, 21st March, 1874.) A treaty for trade mark registration exists between England and France. (Treaty of 25th January, 1860.) Infringements of Trade Marks. The infringement of a registered trade mark is punishable by fine and imprisonment, by confiscation of the articles in which the infringement occurs, and by publication of the sentence and penalties inflicted. By infringement is understood generally the substantial reproduction of the trade mark. If the reproduction is such as is calculated to mislead the purchaser, although it does not correspond in detail to the original, the person so reproducing it is liable to the. penalties for infringement. The infringement is a question of fact for the Court to decide. The remedy by criminal proceeding is open to the party LAW AS TO INFRINGEMENTS. 287 aggrieved, even if no actual loss has been sustained by him as a result of the infringement. If the infringement has been committed by a foreigner out of France, no penalty is entailed upon him unless he further commits the offence of introducing the spurious articles into France. On the other hand, the infringement of a French trade mark by a French subject in a foreign country is punishable in France, provided that the act is an offence in the country where it was committed. Fraudulent imitation, the use or sale of an article bearing Fraudulent such fraudulent imitation, fraudulent use of a trade mark belotiging to another, and similar offences, are punishable under the Law of 1857. The remedy is by proceeding either before the Civil or Who may Correctionnel Conrts. Either the proprietor of the mark or the Ministere puhlique can prosecute ; and in respect of trade marks, the latter can prosecute without complaint from the proprietor. With regard to foreigners, they have no right of action imless the same right is reciprocally granted to French- men by the Courts of the country to which the foreigner belong^. Before proceeding by action, the proprietor of a trade mark Seizure. can, on preferring a request in the prescribed form, obtain the seizure of the articles on which his trade mark is counterfeited, or his rights otherwise infringed. Civil suits must be brought before the civil Courts, and Jurisdiction, are of the nature of summary proceedings. The Tribunals of Commerce have no power to decide these cases. A prosecution before the Tribunal Correctionnel may be Venue of instituted either in the place where the alleged offence was committed, or before the Court of the offender's domicU, or before the Court within whose jurisdiction he is found. Decisions of foreign Courts, e.g., a judgment of an English Foreign Court declaring the trade mark of an English house of business null and void, cannot be pleaded by the defendant in a French Court. In all cases the action must be brought within three years Limitation of from the time when the right to bring it first accrued, i.e., from the date of the infringement complained of. Each repetition of the infringement gives a fresh right of action. The penalties for — Penalties in -. -r. T . • • / T 1 criminal 1. Producing or usmg a spurious trade mark ; proceedings. 288 TEADE-MAKKS. Remedies in civil proceed- ings. Powers of the Court, Stamps and fees. Powers of consuls. Rights of foreigners to bring actions. 2. Fraudulently using a trade mark belonging tb another person ; 3. Knowingly selling or offering for sale articles with a spurious or fraudulently affixed trade mark ; are a fine of from 50 to 3,000 fs. and imprisonment for not less than three months and not more than three years, or one of these punishments. And for — 1. Fraudulent imitation ; 2. Use of marks intended to deceive the purchaser ; 3. Knowingly selling articles with such marks ; a fine of not less than 60 and not more than 2,000 f s., imprison- ment for not less than one month and not more than one year, or either of these punishments. Other penalties, such as the loss of the right to vote in elections of Tribunals and Chambers of Commerce, &c., may be inflicted by the Court, The remedies in a civil action are — Either (1) confiscation of the articles bearing the spurious or fraudulent mark and transfer of them to the injured party. Or (2) damages. The Courts have no power to order both of these remedies. The damages are assessed in all cases by the Courts, and all costs and expenses incurred by the injured party may be included in the assessment. By a law of November 26th, 1873, the proprietor of a mark registered under the Law of 1857 can have a special stamp or mark, affixed by the State, upon the tickets, bands, envelopes, &o., which bear his trade mark, as a guarantee of its authen- ticity. Special fees, varying from one centime to a franc for each stamping, are to be paid. Further, French consuls in foreign countries are qualified by certain clauses of this law to draw up official reports of the usurpation of trade marks and to forward them to the proper authorities. All rights of action above described may be exercised by a foreigner if the Courts of the country to which he belongs grant reciprocal rights to French subjects. THE CODE OF COIylMEECE. BOOK I. OF COMMENCE IN GENERAL. liaw passed lOth Septemlier, 1801.* TITLE I. OF TRADERS. Art. 1. — All persons are traders who exercise acts of trade, and whose habitual employment such business constitutes. Art. 2. — No emancipated minor (mineur 6man- cip6) of the age of 18 years complete, who would avail himself of the power and faculty granted to him by Art. 487 of the Code Civil to carry on trade, can commence business or be reputed major as to obligations contracted by him in the way of trade, unless 1st, he shall have been previously authorised by his father, or in case of the decease, interdiction or absence of the father, by his mother, or, in default of the father and mother, by a reso- lution of the family council (conseil de famille) confirmed by the Tribunal Civil ; and 2nd, that the deed empowering the minor to act shall have more- over been registered and posted up at the Tribunal de Commerce of the place where he wishes to establish his domicil. * For liistorique, see " Code de Commerce." 290 CODE OF COMMEECE. Art. 3. — The provisions contained in the pre- ceding Article apply to minors even non-traders, as regards all proceedings declared to be acts of commerce by virtue of Arts. 632 and 633 of the present Code. Art. 4. — Wo ijaarried woman can be a trader ■without the consent of her husband. Art. 5. — If a married -woman is a trader, she can, without the authority of her husband, bind herself for that which relates to her own business, and in the same case, if a communaut^ de biens exists between her and her husband, she can bind her husband also. She is not considered a trader when she merely retails the merchandise which belongs to her husband. She is accounted such only when she carries on a separate trade. Art. 6. — Minors, being traders and authorised as hereinbefore mentioned, may burden and mort- gage their real estates. They can even alienate them, but that only according to the forms pre- scribed by the 457th and succeeding Articles of the Code Civil. Art. 7. — Married women, being traders, can in like manner burden, mortgage, and alienate their real estates. Wevertheless, their estate declared dotal when the parties are married under the regime dotal cannot be mortgaged nor alien- ated, except in the cases fixed and forms pre- scribed by the Code Civil. TITLE II. OF THE BOOKS BEQTJIRED TO BE KEPT BY TRADERS. Art. 8. — Every trader is bound to keep a journal, which should exhibit day by day his debts and assets, the operations of his trade, his negotations, acceptances, and endorsements of bills, and generally all that he receives or pays on any OF traders' books. 291 account whatever; and should set out month by month the sum.s disbursed in housekeeping ex- penses ; the above irrespective of the other books used in his trade, but which are not obligatory. He is required to file the letters which he receives, and to copy into a letter-book those which he sends. Art. 9. — He must every year make and sub- scribe an inventory of his estate, both real and personal, and of his debts and assets, and copy the same year by year into a book especially appro- priated for that purpose. Art. 10.— The journal and inventory books shall be compared and revised once every year. The letter-book shall not be subject to this formality. The whole shall be kept in the order of the dates, without blanks or omissions or marginal additions. Art. 11. — The books required to be kept by Arts. 8 and 9 shall be marked and signed in the margin, and examined either by one of the judges of the Tribunal de Commerce, or by the Mayor or his colleague, in the ordinary form, and without fee. Traders are bound to preserve their books for the space of 10 years. Art. 12. — Business books, regularly kept, may be received by a judge as evidence in questions between traders in reference to matters of trade. Art. 13.— The books which persons carrying on trade are compelled to keep, and in which they shall not have observed the formalities above pre- scribed, cannot be produced as evidence in favour of the parties who have kept the same, without prejudice to the pains and penalties contained in the enactments relating to bankruptcies and fraudu- lent bankruptcies. Art. 14. — The production of books and inventories can be enforced in law only in questions of succes- sion, communautd, dissolution of partnership, and in cases of bankruptcy. Art. 15. — In the course of an action the production of books may be ordered by the judge of his own v2 292 CODE OF COMMERCE. accord, to the end that extracts may be taken of such entries as relate to the question in dispute. Art. 18.— In case the books, the exhibition of ■which is offered, required, or ordered, happen to be in a place at a distance from the seat of the tribunal where the action depends, the judges may address a commission rogatoire to the Tribunal of Commerce of that place, or grant commission to a justice of the peace to examine and draw up a report of the contents, and send it to the tribunal before which the action depends. Art. 17.— If the party whose books are appealed to in proof of any fact refuse to exhibit them, the judge may receive the oath of the opposite party in evidence. TITLE III. OF CO-PARTNERSHIPS AND COMPANIES. SECTION I. OP THE VARIOUS KINDS OP CO-PARTNBB- SHIPS, AND THE RULES PECULIAR TO EACH. Art. 18.— The contract of partnership is governed by the Code Civil, the laws peculiar to trade, and the agreement of the parties. Art. 19. — The Prench law recognises three kinds of trading partnerships :— The Soci6t6 en nom coUeetif. The Soci6t6 en commandite. The Soci6t6 anonyme. Art. 20.— The Soci6t6 en nom collectif is that into which two or more persons enter, and which has for its object the carrying on of trade under a style or firm. Art. 21.— The names of the partners can alone appear in the style or firm. PARTNEESIIIPS AND COMPANIES. 293 Art. 22.— ThQ partners en nom colleetif specified in tlie deed of partnership are jointly and severally liable in respect of all the engagements of the firm, although but one of the members may have signed, provided he used the name of the firm. Art. 23.— The Soci6t6 en commandite is entered into between one or several responsible partners, either of ■whom is answerable for the whole, and one or more partners, simply capitalists, who are named eommanditaires or associ6s en commandite. It is carried oh under a style or firm which must necessarily be that of one or several of the respon- sible partners answerable as aforesaid. Art. 24. — Where there are several partners, jointly and severally liable as aforesaid, whose names appear in the style or firm, whether they be all in the management together, or but one or more be so for the whole, the Soci6t6 is at once , in regard to them, a Soci6t6 en nom colleetif, and a Soci6t6 en commandite as regards the parties simply pro- ■viding the capital. Art. 25.— The name of a member en commandite cannot appear in the firm. Art. 26.— The commanditaire partner is subject to loss only to the extent of the funds which he has put, or should have put, into the concern. Art. 27. (Thus modified by the Law of 6th May, 1863.) The commanditaire partner can under- take no act of management even by virtue of a power of attorney. Art. 28. (Thus modified by the Law of 6th May, 1863.) In case of contravention of the pro- hibition in the preceding Article, the commanditaire partner is liable, jointly and severally, with the partners en nom colleetif, for all the debts and engagements of the undertaking arising from the acts of management done by him; and he can, according to the number or importance of such acts, be declared jointly and severally liable in respect of all the engagements of the undertaking, or in respect of one or more thereof only. The notices 294 CODE OF COMMEECE. and advice, and acts of control, do not bind the associ^ commanditaire. Art. 29.— The Soci6t6 anonyme* is not carried on Tinder a style or firm; it is not distinguished by the names of any of the members thereof. Art. 30. — It is named after the nature of the trade which it purports to carry on. Art. 31. (Bepealed by the Law of 24th July, 1867, Art. 47.) Art. 32. — The managers are only responsible for the due execution of the mandates they have received. They do not incur by their acts any liability personally, nor jointly and severally, in respect of the engagements of the Soci6t6. Art. 33.— The members are subject to no loss beyond the amount of their interest in the concern. Art. 34.— The capital of the Soci6t6 anonyme is divided into shares, and even into share coupons of equal value. Art. 35.— A share may be constituted under form of a voucher to bearer (titre au porteur). In this case the transfer takes place by delivery. Art. 36.— The property in the shares may be established by an entry in the books of the Com- pany. In this case the transfer is carried out by a declaration thereof written in the books and signed by the transferor or by his agent. Art. 37. (Repealed by the Law of 24th July,. 1867, Art. 47.) Art. 38.— The capital of Soci6t6 en commandite may be likewise divided into shares without pre- judice to the rules established for this species of partner ship. t Art. 39.— The Soci6t6s en nom collectif, or en * The SocietS Anonymes are governed by a special Law of the 27th July, 1867. See further for the text of this Law. t The Sooi^tSs eu oommandite whose capital is divided into shares, are governed by a special Law of the 27th July, 1867. See further for the text of this Law. PAETNEESHIPS AND COMPANIES. 295 commandite, must be drawn up by actes publics or sous seing priv6e, in conforming in the latter case to Art. 1,325 of tlie Code Civil.* Art. 40. (Repealed by the Law of 24th July, 1867.) Art. 41.— Ifo proof by witness can be received against what is contained in the deeds constituting the Sooi6t6, nor of anything exti^insic of their con- tents, nor of anything alleged to have been agreed to before or after, or since the deed, although it relates to a sum under 150 fs.f Arts. 42, 43, 44, 45, 46. (Bepealed by the Law of 24th July, 1867.) Art. 47. — Independently of the three kinds of Soci6t6s hereinbefore mentioned, the law recognises the associations eommerciales en participation. Art. 48. — These associations relate to one or several descriptions of trade ; they may be carried on for the purposes, according to the forms, in the proportions of interest, and on the conditions agreed upon amongst the shareholders. Art. 49. — The establishment of associations en participation may be proved by books, correspon- dence, and by parol evidence, if the tribunal decides that the same can be admitted. Art. 50. — Commercial associations en partici- pation are not subjected to the formalities pre- scribed for the other descriptions of Soei6t6s. * Th.e Actes sous seing privS, containing reciprocal agree- ments, are valid only "when executed in as many originals as tliere are parties interested therein. Sach. original must men- tion th.e number of originals whioli have been executed. t In civil contracts, viva voce evidence is only received in oases -where the matter in dispute amounts to less than 150 fs. This principle does not apply to commercial suits, in which all kinds of evidence are admitted, whatever may bo the amount in dispute. Art. 41 applying to both civil and commercial Sooi^tS, it is necessary to explain that viva voce evidence is not allowed in actions arising out of Soci^tS, in oases above 150 fs. 296 CODE OF COMMEECE. SECTION II. OP DIPPEBENCES BETWEEN CO-PARTNEBS, AND OP THE MANNBB OP ADJUSTING THEM. Arts. 51 to 63 were repealed by the Law of 17tlL July, 1856, whieli suppressed compulsory arbitration. Disputes between partners are now adjudicated upon by the Tribunal of Commerce. (See Art. 631 of the Code of Commerce.) Art. 64.— All actions against partners, not being liquidateurs de la Soci6t6, and their widows, heirs or representatives, are barred after five years from the termination or dissolution of the partner- ship, if the deed of partnership, stating its duration or term, or the deed of dissolution, were posted up and registered in conformity with Arts. 42, 43, 44, and 46 ;• and if, since the fulfilment of the above formality, the prescription (statute of limitations) has not been interrupted as regards them by any judicial proceedings. TITLE IV. OP SEPABATION OP PBOPEBTY (Separation de biens). Art. 65. — Every petition for the separation of property shall be prosecuted, conducted, and adjudicated upon pursuant to the enactments contained in the Code Civil, book iii. title v. chap, ii., and in the Code de Procedure, Second Part, book i. title viii. Art 66. — Every judgment which pronounces a separation between the persons, or a divorcet between husband and wife, one of whom is a trader, shall be subjected to the formalities prescribed by • The formalities prescribed by these Articles were modified by the Lai^r of 27th July, 1867, and it is to this new La'w that Art. 64 here refers. t Divorce is abolished in Prance. (Law of 8th May, 1816.) SUI'AEATION OF PROPERTY. 297 Art. 872 of the Code de Procedure Civile;* in de- fault it shall always be competent for the creditors to resist the judgment, so far as it affects their interests, and to challenge the liquidation which may have followed by virtue thereof. Art. 67.— An extract of the marriage contract between the husband and the wife, one of whom carries on trade, shall be transmitted within one month from the date of the contract, to the registry and other places mentioned in Art. 872 of the Code de Procedure Civile, in order to be posted up on the notice-board, pursuant to the terms of the same Article. This extract must state whether the husband and wife are married under the r6gime de eommunaut^, Avhether they are separate as regards property, or whether they have contracted under the regime dotal. Art. 68. — The notary who prepares the con- tract of marriage is compelled to make the trans- mission required by the preceding Article, under a penalty of 100 fs.,t and even of deprivation of his oflB.ce; he is also liable to the creditors, if it be proved that the omission occurred through collusion. • The following is a translation of Art. 872 :— " The judg- ment decreeing the separation shall be read publicly, at the same hearing, at the Tribunal of Commerce of the place, if there be one. An extract of the judgment, containing the date, the designation of the tribunal in which the judgment w^as rendered, the Christian names, surnames, pro- fessions, and residence of the married parties, will be inscribed on a notice-board used for the purpose, and exposed during one year in the audience chamber of the Tribunal de Premiere Instance and of the Tribunal de Commerce of the domicil of the husband, even when he is not a trader ; and if there be no Tribunal de Commerce, in the principal chamber of the Towti Hall of the domicil of the husband. A similar extract shall be affixed to the notice-board exposed in the Chamber of the Avou6s and Notaries, if one exist. The wife cannot commence the execution of the judgment, except from the date upon which the above-mentioned formalities have been complied with, without it being nevertheless necessary that she should await the expiration of the above-mentioned delay of one year." t Since reduced to 20 fs. (Law of 16th June, 1824, Art. 10.) 298 CODE OF COMMEECE. Art. 69.— (Thus modified by the Law of 28tli May, 1838.)— A husband, separated as regards property, or married under the regime dotal, who engages in trade subsectuent to the marriage, shall be bound to make the same transmission within one month from, the day he has commenced busi- ness, under pain, in case of insolvency, of being eondem.ned as a fraudulent bankrupt. Art. 70. — The same transmission shall be made, under the same penalty, within one year from the publication of the present law, by all married persons, separate as regards property, or married under the regime dotal, who, at the time of such publication, are engaged in trade. TITLE V- OF EXCHANGES OF COMMEBCE (Bourses de Commerce), STOCKBROKERS (Agents de Change), AND BROKERS (Courtiers). SECTION I. OF EXCHANGES OF COMMERCE. Art. 71.— The Bourse de Commerce is a meet- ing which takes place under the authority of Government, and is composed of merchants, ship- masters, stockbrokers and brokers. Art. 72.— The result of the negotiations and transactions which take place upon 'Change determines the rate of exchange on goods, in- surance, freights, carriage by land and water, in the public and all other funds, the rates of which are susceptible of being quoted. Art. 73.— These several rates are determined by the exchange agents and brokers, according to the forms prescribed by general or particular rules.— (R6glements de Police G6n6raux ou par- tiouliers.) STOCKBEOKEES AND BEOKEES. 299 SECTION II. OF STOCKBROKERS AND BROKERS.* Art. 74.— The law recognises, in the carrying on of trade, intermediate agents, namely: — stock or exchange Ibrokers and brokers. These are estab- lished in every town in which there is a Bourse de Commerce. They are appointed by the Government. (Thus modified by the Law of 2nd July, 1862.) Art. 75.— Stockbrokers belonging to Bourses provided with a Parquet can associate with them- selves capitalists, who can share in the profits and losses resulting from the working of the o£Q.ce, or of the sale thereof. These capitalists are only liable for the losses to the extent of the capital they embark in the business. The party who holds the oflB.ce must always be a proprietor in his own name of one-fourth at least of the amount representing the value of the same and the amount of the cautionnement. An extract of the deed and of the changes therein must be published, under pain of nullity as regards the parties interested, but such default cannot be alleged as against the rights of third parties. Art. 76.— Stockbrokers appointed in the manner prescribed by law have alone the right of operating in the public and other funds susceptible of quota- tion, of negotiating on account of other bills or notes of exchange, and all other negotiable paper, and of fixing the current market price thereof. The exchange agents can, jointly with the merchandise brokers, negotiate and carry out the sale or purchase of bullion or specie. They alone have the right to fix the current market price. Art. 77.— There are merchandise brokers, insur- ance brokers, interpreting and ship brokers, land and water carriage brokers. Art. 78. — Merchandise brokers, constituted in * For commentary, sep p. 245 et seq. 300 CODE or COMMEECE. the manner prescribed by law,* have alone the right to perform the brokerage of goods, and to fix the current market price thereof. They exercise, concurrently with agents de change, the brokerage of metals and metallic substances. Art. 79. — The insurance brokers, jointly with the notaries, draw up all contracts and policies of insurance. They attest, under signature, the truth of such writings, certifying the rate of premium for all voyages by sea or river. Art. 80.— The interpreting or ship brokers have the brokerage of freights and charter-parties; they have moreover alone the right of translating, in contested matters brought before the tribunals, the declarations, charter-parties, bills of lading, contracts, and all commercial writings, the transla- tion of which shall be necessary; and lastly, of fixing the rates of freight or carriage. For all commercial disputes, and where the interest of the customs is concerned, they alone interpret for all foreigners, masters of ships, merchants, crews, and other seafaring persons. Art. 81. — The same individual may, if the Crown deed by which he is appointed authorises it, exer- cise the functions of agent de change, merchan- dise, insurance, interpreting and ship broker. Art. 82. — The land and water carriage brokers, constituted according to law, have alone in the places where they are established, the right of brokerage in transports by land and by water. They cannot in any case, or under any pretext, exercise the functions of merchandise, insurance, or ship brokers, mentioned in Arts. 78, 79 and 80. Art. 83.— No bankrupt can be an agent de change or broker unless he has been reinstated. Art. 84. — Agents de change and brokers are bound to have a book after the form prescribed by * The monopoly of merohandiae brokers is suppressed by the La-w of 18 Juill., 1866. STOCKBROKEES AND BEOKEES. 301 Art. 11. They are bound to enter in this book day by day, and in order of the dates, without erasures, interlineations or transferences, and with- out abbreviations or cyphers, the whole conditions of their sales, purchases, insurances, negotiations, and in general of all their acts of agency. Art. 85. — An agent 'de change or broker cannot, in any case, or under any pretext, effect commercial or banking operations on his own account. He cannot be interested directly or indirectly in his own name or under a borrowed name in any commercial enterprise. Art. 86.. — H.e cannot become guarantee for the performance of the bargains which he makes for his employers. Art. 87.— Every infraction of the provisions con- tained in the two preceding Articles incurs the punishment of privation of office, and a fine, to be imposed by the Tribunal de Police Correctionnelle, not exceeding the sum of 3,000 fs., without preju- dice to the right of the party injured to an action for damages. Art. 88.— No agent de change or broker dismissed from office, in virtue of the preceding Article, can be restored to his functions. Art. 89. — In case of failure, every agent de change or broker shall be prosecuted as a fraudulent bankrupt. Art. 90. (Thus modified by Law of 2nd July, 1862.)- Provision shaU be made by r^glements d'ad- ministration publique concerning the following, viz. :— 1. The rate of caution money, the same not to exceed 250,000 fs. 2. The negotiation and transfer of the property in public securities, and generally as regards the execution of the provisions contained in the present chapter. 302 CODE OF COMMEECE. TITLE VI. OF PLEDGES, AGENTS AND COMMON CABRIEBS. (Du Gage et des Commissioiinaires.) Law of Z3rd May, 1863. SECTION I. OF PLEDGES. Art. 91.— A pledge made by a trader or by a non-trader in respect of a commercial transaction must be carried out, as regards third parties as ■vsrell as regards the contracting parties, accord- ing to the provisions of Art. 109 of the Code de Com.nierce. The pledge, as regards negotiable, securities, can also be established by a regular endorsement, stating that the securities have been deposited as guarantee. With respect to shares, shares of interest (part d'int6r§ts), and nominative obligations (obligations nominatives) of financial, manufacturing, commercial, or civil Companies, the transmission of which is carried out by transfers in the books of the Company, a pledge thereof can also be established by a transfer as a document of security inscribed in the said registers. The present Article does not repeal the clauses of Art. 2,075 of the Code Civil as regards claims of personalty, to which the creditor cannot become entitled as regards third parties, but pursuant to a notice to the debtor of the conveyance made by the creditor. Bills of exchange given in pledge can be sued upon by the holder of the pledge. Art. 92.— In all cases the prior claim to the property pledged does not exist thereon unless the security be placed and remain in the possession of the creditor, or of a third person agreed upop OF FACTORS. 303 between the parties.* The creditor is reputed to have the goods in his possession when they aro at his disposal in his warehouses or ships, in the Custom House or public bonded warehouses, or if, before he possesses the same, by virtue of a bill of lading or carrier's receipt. Art. 93. — In default of payment at maturity, the creditor can, eight days after a simple notifi- cation to the debtor and to the third party holding the security (in that event), proceed to public sale of the property pledged. Sales, other than those undertaken by stockbrokers, must be effected by brokers. Nevertheless, upon the petition of the parties, the president of the Tribunal de Com- merce can appoint a member of another body of public ofllcials to carry out the sale. In the latter case the public ofB.cial, whoever he may be, entrusted with the sale, is subjected to the pro- visions governing brokers as respects the formali- ties, the tariffs, and the responsibility attending the same. The provisions of Arts. 2 and 7, inclusive of the Law of 28th May, 1858, respecting public sales, are applicable to sales carried out in pursuance of the preceding paragraph. Any clause authorising a creditor to realise the security and dispose of the same, without complying with the formalities herein- before mentioned, is void and of no effect. (Thus modified by the Law of 28th May, 1858.) SECTION II. OP FACTORS IN GENERAL. Art. 94. — ^A factor is he who transacts business in his own name, or under a partnership firm for account of his employer or principal. The duties and rights of factors and agents who act in the * Bills of sale do not exist in Prance. It is n6t possible to borrcw money upon property wliioh. is to remain in the pos- session of the borrower, as is customary in England. 04 CODE OP COMMEECE. name of an employer are determined by the Code Civil, book iii. title xiii. Art. 95. — Every factor has a prior claim or lien upon the goods sent to, deposited with, or eon- signed to him, from the simple fact of such send- ing, deposit, or consignation, in respect of all loans, advances, or payments, made by him either before the receipt of the same, or during the time they remained in his possession. This lien subsists only pursuant to the condition contained in Art. 92, supra. In the lien of a factor, principal, interest, commission and expenses are included. If the goods are sold and delivered on account of the principal, the factor repays himself, from the pro- duce of the sale, the amount of his claim in priority to the creditors of the principal. SECTION III. OP COMMISSIONIfAIRES FOB CABIIIAGE BY LAND OR WATEE. Art. 96. — The commissionnaire who undertakes a transport by land or water must make an entry in his journal of the nature and quantity of the merchandise, and if required, of the value thereof. Art. 97. — He is responsible for the arrival of the goods within the time limited in the bill of parcels, except in the case of force majeure, as defined by law. Art. 98. — He is responsible for all damage or loss of the merchandise and goods, unless a con- trary stipulation appears in the bill of parcels, or unless in case of force majeure. Art. 99.— He is responsible for the acts of the agent to whom he addresses the merchandise. Art. 100. — The merchandise, when once out of the warehouse of the vendor or party despatching the same, is forwarded, unless it be agreed other- wise, at the risk of the owner, the latter reserving OF CAEKIEES. 305 his right of indemnity against the commissionnaire «ntrusted with the carriage. Art. 101. — The way-bill (lettre de voiture), amounts to a contract between the consignor and the carrier; or between the consignor, the com- missionnaire and the carrier. Art. 102.— The way-bill must be dated ; it should set out— the nature, the weight, or contents of the object to be carried ; the period within which the carriage must be eflfected. It must also state the name and domicil of the commissionnaire through whose medium the carriage is to be effected, should one exist; the name of the consignee; the name and address of the carrier; also the rate of carriage, and the indemnity payable for delay. The document must be signed by the sender or the ■commissionnaire ; the marks and numbers of the goods must be inserted in the margin. The bill of parcels must be copied by the commissionnaire into a register, each entry in which must be made consecutively and without blanks. SECTION IV. OP CAERIEKS. Art. 103. — A carrier is responsible for the loss of the objects entrusted to him to deliver, unless in case of force majexire. He is responsible for all damage other than such as may inherently exist in the goods, the case of force majeure excepted. Art. 104.— If, through the cause of force majeure, the transport is not carried out w^ithin the period stipulated, no indemnity is payable by the carrier on account of the delay. Art. 105. — The receipt of the objects trans- ported, and the payment of the price of carriage, Telieves the carrier from all legal proceedings. 306 CODE OF COMMEECE. Art. 106. — In case of refusal or dispute con- cerning the receipt of the objects transported, their condition must be verified and reported on by- experts appointed by the president of the Tribunal of Commerce, or, in his absence, by the justice of the peace, or by an order made upon petition. The deposit or seizure, and afterwards the transport of the goods to a public warehouse, can be ordered. A sale can be ordered in favour of the carrier to the extent of the amount due for carriage. Art. 107. — The provisions contained in th© present title apply also to shipmasters and pro- prietors of diligences and public conveyances. Art. 108. — All actions against commissionnaires and carriers for loss or damage to goods are barred after six months, in respect of goods forwarded in the interior of Prance, and after one year in respect of goods forwarded to foreign parts ; the whole to be calculated, in case of loss, from the date when the transport of the goods should have been effected : and in case of damage, from the date when the delivery of the goods should have taken place ; without prejudice to cases of fraud or dishonesty. TITLE VII. OP PUKCHASES AND SALES. Art. 109. — Purchases and sales are proved:— By actes publics. By actes sous seing priv6. " By the note-book or memorandum of an agent de change or broker, duly signed by the parties. By an invoice or bill of parcels accepted. By the correspondence of the parties. By the books of the parties. By parol testimony in cases where the tribunal shall determine it to be admissible. >1J?!; BILLS OF EXCHANGE. 307, TITLE VIII. OF BILLS OF EXCHANGE, PROMISSORY NOTES (BILLETS A ORDRE), AND PRE- SCRIPTION. SECTION I. OF BILLS OF EXCHANGE. § 1.— OP THE FORM OF A BILL OP EXCHANGE. Art. 110.— A bill of exchange (lettre de change> is drawn from one place upon another. It is dated. It states the sum payable, the name of the party to pay the same, the date and place where payment should be made, and the value received in cash, goods, in account, or otherwise. It is payable to the order of a third party, or to the order of the drawer. If the bill is drawn in sets of first, second, third, &e., it is so expressed. Art. ill.— A bill of exchange can be drawn upon one party, and payable at the domicil or residence of a third. It can be drawn by order and for account of a third party. Art. 112.— All biUs of excha,nge containing false statements in respect of name, profession, domicil, or the places where the same are drawn or payable, have the force and effect of simple promesse only. Art. 113.— The signatures of married and un- married women, non-traders, upon a bill of ex- change, bind them only to the extent of simples promesses. Art. 114.— Bills of exchange signed by minors, non-traders, are void as against them, subject to the provisions of Art. 1,312 of the Code Civil,* but * Art. 1,312 of the Civil Code provides that minors cannot be exonerated from their engagements if they have benefited by the same. X 2 308 CODE OP COMMERCE. such bills are valid as between the other parties thereto. § 2.— OP PROVISION (de la Provision). Art. 115.— The provision should be furnished by the drawer, or by the party for whose account the bill is drawn, but the drawer for account of a third party remains nevertheless personally responsible towards the indorsers and the holder alone. Art. 116. — Provision exists, if, at the maturity of the bill, the party upon whom it is drawn be Indebted to the drawer, or to the party upon whose account the bill was drawn, in a sum at least equal to the amount of the bill of exchange. Art. 117. — By acceptance, provision is presumed to exist, and as regards indorsers, acceptance establishes proof thereof. "Whether there be accept- ance or not, the drawer alone is bound to prove, if it be disputed, that the parties upon whom the bill ^was drawn had provisions at maturity, otherwise he is compelled to give security for the same, although the protest may have been made after the periods fixed by law. § 3.— OF ACCEPTANCE. Art. 118. — The drawer and indorsers of a bill of exchange are jointly and severally sureties for the acceptor and the payment of the bill at maturity. Art. 119.— The refusal to accept is proved by a document called " protest for non-acceptance." Art. 120.— Upon notification of the protest for non-acceptance, the indorsers and the drawer are respectively bound to give security to insure the payment of the bill at maturity, or to pay the same, together with the expenses of protest and of re- exchange. The party giving security for the drawer, or for an indorser, is jointly and severally liable only with the parties for whom his security is given. BILLS OF EXCHANGE. 309 Art. 121.— A party accepting a bill of exchange takes upon himself the obligation of paying the amount thereof. An acceptor cannot recall his acceptance, even if the drawer had suspended pay- ment without the acceptor's knowledge, before he had accepted the bill. Art. 122. — The acceptance of a bill of exchange must be signed. The acceptance is expressed by the word " accepts." The acceptance must, be dated if the bill is payable at one or several days or months after date ; and in the latter case, the non-existence of the date of acceptance renders the instrument payable at the period expressed calculated from its date. Art. 123.— The acceptance of a bill of exchange, payable in a place other than the residence of the acceptor, must state the domicil at which payment will be made, or the requisite legal formalities com- plied with. Art. 124. — An acceptance cannot be conditional ; but it can be limited as regards the amount accepted for, and in this event the bearer must protest the bill for the surplus. Art. 125.— A biU of exchange should be accepted upon presentation, or at latest within 24 hours therefrom. After the expiration of 24 hours, if the bill be not returned accepted or non-accepted, the party retaining the same is liable for damages to the holder. § 4.— OF ACCEPTANCE BY INTERVENTION. Art. 126.— In the case of protest for non- acceptance, the bill of exchange can be accepted by a third party intervening for the drawer or for one of the indorsers. The intervention is mentioned in the protest, and must be signed by the party intervening. Art. 127. — The party intervening is bound to 310 CODE OP COMMEKCE. notify his intervention without delay to the person for whom he intervened. Art. 128.— The holder of a biU of exchange pre- serves all his rights against the drawer and indorsers in the case of the drawee refusing acceptance, not- withstanding all acceptances by intervention. § 5.— OF MATUEITY. Art. 129.— A bill of exchange can be drawn as follows :— At sight. At one or several days ^ At one or several months > after sight. At one or several usances ) At one or several days ) At one or several months > after date. At one or several usances } At a day fixed or determined. At fair time. Art. 130.— A bill of exchange drawn at sight is payable upon presentation. Art. 131.— The maturity of a bill of exchange At one or several days ") At one or several months > after sight At one or several usances J is fixed by the date of acceptance or by that of the protest for non-acceptance. Art. 132. — A usance is reckoned thirty days, commencing the day following the date of the biU of exchange. Months are calculated according to the Gregorian calendar. Art. 133.— A bill of exchange payable during fair time matures the day previous to the closing of the fair, or the day of the fair, if the same last but one day. Art. 134.— When a bill of exchange matures upon a legal holiday, it is payable the day preceding. Art. 135.— All days of grace, favour, usage, or local custom for the payment of bills of exchange are abolished. BILLS OF EXCHANGE. 311 § 6— OF THE IWDORSEMElfT. Art. 136.— The property in a bill of exchange is transmissible by indorsement. Art. 137.— The indorsement is dated. It sets out the value received. It mentions the name of the party to whose order it is passed. Art. 138. — If the indorsement be not in con- formity with the preceding section, it does not take effect as a transfer, but operates as a "procuration" only. Art. 139. — It is forbidden to antedate indorse- ments. Such an offence is forgery. § 7.— OP JOINT AND SEVEBAL LIABILITY. Art. 140. — All the parties who have signed, accepted, or indorsed a bill of exchange are jointly and severally liable to the holder. § 8.— OF STJBETY (Aval). Art. 141.— The payment of a bill' of exchange, independently of the acceptance and endorsement, can be guaranteed by an "aval" (surety). Art. 142.— This guarantee is given by a third party upon the bill itself or by a separate document. The guarantor is liable, jointly and severally, with the drawer and indorsers, and subject to the same measures unless the parties agree otherwise. § 9.— OP PAYMENT. Art. 143.— A bill of exchange must be paid in the currency indicated thereon. Art. 144.— A party paying a bill of exchange before maturity is responsible for the validity of such payment. Art. 145.— A party who pays a bill of exchange at maturity, and without receiving notice of opposi- tion to the payment, is presumed to be legally discharged. -31^ .CODE OP COMMEECE. Art. 146.— The holder of a bill of exchange cannot be compelled to accept payment thereof before maturity. Art. 147.— The payment of a bill of exchange^ made upon a second, third, or fourth of exchange, &c., is valid when the second, third, foiirth, &e.,. state that the payment thereof annuls the others. Art. 148.— The party who pays a biU of ex- change on a second, third, fourth, &c., without retiring the bill upon which his acceptance appears, is not discharged as regards the holder of such acceptance. Art. 149.— "Opposition" to payment of a bill of exchange is admissible only in the case of the biU being lost, or the bankruptcy of the holder. Art. 150.— In the case of loss of a bill of ex- change unaccepted, the party to whom it belongs can sue for payment on a second, third, fourth, &e. Art. 151. — If an acceptance be written upon a bill of exchange which is lost, proceedings for pay- ment upon a second, third, fourth, &c., cannot be instituted without a judge's order and giving security. Art. 152.— If the party having lost the bill of exchange, whether accepted or not, cannot produce the second, third, foTirth, &c., he can, demand pay- ment of the lost bill, and obtain same by a judge's order, upon proving his title thereto by his books,, and upon giving security. Art. 153.— In the event of payment being refused upon demand raade pursuant to the two preceding Articles, the owner of the lost bill preserves all rights thereunder by making an act of protest. This formality must be complied with upon the day following the maturity of the lost bill. The protest must be notified to the drawer and indorsers in the forms and within the time specified hereafter for the notification of protests. Art. 154.— The owner of the missing bill should in order to procure the second, apply to his im- BILLS OF EXCHANGE. 313 mediate indorser, who is bound to lend hiin his name and services to proceed against his own and so on through indorser, aU the indorsers up to the drawer. The owner of the missing biU bears aU the costs of the above. Art. 155. — The obligation undertaken by the surety, mentioned in Arts. 151 and 152, becomes inoperative after three years, if in the meantime proceedings have not been instituted. Art. 156. — Payments made on account of the amount of a bill of exchange relieve the drawer and indorsers pro tanto. The bearer must protest the bill for any surplus due. Art. 157. — The Courts cannot give time for pay- ment of a bill of exchange. §10.— OP PAYMENT BY INTERVENTIOlf. Art. 158. — A protested bill of exchange can be paid by any person intervening for the drawer, or one of the indorsers. The intervention and the payment must be stated either in or at the end of the deed of protest. Art. 159. — A party paying a bill of exchange by intervention stands in the same position as the holder, and must fulfil the same formalities. If the payment by intervention be made on account of the drawer, all the indorsers are dis- charged. If it be made on account of an indorser, the subsecLuent indorsers are discharged. If several parties present themselves to accept by intervention, the party operating the greatest number of liberations will be preferred to the others. If the party upon whom the bill was originally drawn, and against whom the bUl has been protested for want of acceptance, desires to pay the bill, he shall be preferred to the others. 314 .CODE OF COMMEECE. § 11— OP THE BIGHTS AND OBLIGATIONS OP THE HOLDEB. Art. 160. — The holder of a bill of exchange drawn upon the Continent, or islands of Europe, or Algeria, and payable within the European posses- sions of Prance, or in Algeria, either at sight, or at one or several days or months, or usances after sight, must enforce payment or acceptance within six months from the date of the bill, under the penalty of losing his recourse against the indorsers, and even against the drawer should the latter have made provision. The delay is four months for bills of exchange drawn in the States of the littoral of the Mediter- ranean and of the littoral of the Black Sea upon the European possessions of Prance, and recipro- cally from the Continent and islands of Eiirope upon the Preneh establishments in the Mediter- ranean and Black Seas. The delay is six months for bills of exchange drawn in the States of Africa not beyond the Cape of Good Hope, and the islands of America not beyond Cape Horn, upon the European possessions of Prance, and reciprocally in the Continent and islands of Europe upon the Preneh establishments or possessions in the States of Africa not beyond the Cape of Good Hope, and in the States of America not beyond Cape Horn. The delay is one year for bills of exchange drawn in any other part of the world upon the European possessions of Prance, and reciprocally in the Continent and islands of Europe upon the Preneh possessions and establishments in any other part of the world. The same penalty applies to the holder of a bill of exchange payable at sight, at one or several days, months, or usances after sight, drawn in France, or in the Preneh establish- ments or possessions and payable in foreign parts, unless he enforce payment or acceptance within the delay above mentioned for each of the distances BILLS OF EXCHAKGE. 315 respectively. The above delays are doubled in ease of maritime war. The above provisions shall never- theless not prejudice any stipulations to the con- trary that may be agreed upon between the holder, the drawer, and even the indorsers. Art. 161.— The holder of a bill of exchange must enforce payment thereof upon the date of maturity. Art. 162. — The refusal or default of payment must be stated the day following the maturity by a deed called protest for non-payment. If this day falls upon a legal holiday, the protest must be made the day ensuing. Art. 163. — The holder is not dispensed ft-om making the protest in default of payment either by the protest for want of acceptance, or by the death or bankruptcy of the party upon whom the bUl of exchange was drawn. In the ease of the bankruptcy of the acceptor before maturity, the bearer can protest the bill and proceed against the other parties thereto forthwith. Art. 164. — The holder of a bill of exchange pror tested for want of payment can bring his action against the drawer and each of the indorsers indi- vidually, or eoUeetively against the drawer and indorsers. The same right is accorded to each of the indorsers in respect to the drawer and preceding indorsers. Art. 165. — If the holder enforces his remedy against the party from whom he received the bill, he must notify the protest to him, and, in default of payment, must bring his action to obtain judgment within 15 days after the date of the protest if the debtor resides within fl.ve myriamdtres. This delay, in respect to the party domiciled beyond five myriam^tres from the place in which the bill was payetble, is increased by one day for each two and a-half myriamStres exceeding the five myriamdtres. Art. 166. — (Modified as follows by the law of 3rd May, 1862.)— Upon bills of exchange drawn in Prance, and payable beyond the Continental territory 316 CODE OF COMMERCE. of Prance in Europe, being protested, the drawers and indorsers residing in France must be sued within the periods hereinafter mentioned : Within one month for bills payable in Corsica, Algeria, Great Britain, Italy, the Low Countries, and the States or Confederations contained withta the frontiers of France. Within two months for bUls payable in the other States of Europe, the littoral of the Mediterranean and the Black Sea. Five months for bills payable out of Europe within the Straits of Malacca and the Sunda Islands, and within Cape Horn; eight months for bills payable beyond the Straits of Malacca and the Sunda Islands and beyond Cape Horn. The same periods niust be proportionately observed in respect of proceedings against drawers and indorsers residing in French possessions situated beyond Europe., The above delays are doubled for places beyond the seas in case of maritime war. Art. 167.— If the holder exercises his recourse collectively against the^ indorsers and the drawer, he is entitled in respect to each of them, to the periods specified in the preceding Articles. Each of the indorsers has the right to exercise the same recourse, either individually or collectively, within the same periods. The time commences to run, as regards them, from the day following the date of the citation in the action. Art. 168.— After the expiration of the delays above-mentioned for the presentation of a bill of exchange (at sight, or at one or several days or months, or usances after sight), for the protest for want of payment, for the institution of proceedings against the guarantors, the holder of the bill of exchange is deprived of all remedies against the indorsers. Art. 169. — The indorsers are also deprived of their rights to sue their immediate indorsers as BILLS OF EXCHANGE. 317 guarantors, after the periods above set out, as applying to them respectively. Art. 170. — The holder and indorsers are in like manner deprived of their rights, as against the drawer, if the latter can prove that provision «xisted at the maturity of the bill of exchange. In this event the holder can only . exercise his remedy against the drawee. Art. 171. — The deprivation of the remedies men- tioned in the three preceding Articles ceases to apply in the case of the holder of a bill against the drawer and indorsers, who, after the expiration of the delays fixed for the protest, the notification thereof, or the citation to judgment, receive in account, set-off" or otherwise, funds applicable to the payment of the bill of exchange. Art. 172. — Independently of the formalities pre- scribed for the action against the guarantors, the holder of a bill of exchange, protested for want of payment, can, with the leave of a judge, attach the personalty of the drawer, acceptors and indorsers. § 12.— OP PROTESTS. Art. 173. (Modified by decree of 23rd March, 1848, Art. 2.)— Protests in default of acceptance or payment are made by two notaries, or by one notary and two witnesses, or by a huissier and two -witnesses. The protest must be made at the domicil or last- inown domicil of the party by whom the bill of exchange was payable; at the domicil of the parties named in the bill to pay the same au besoin, and at the domicil of a third party accepting by intervention. The above must be stated in one deed of protest. In the event of a false address, the protest is preceded by an "acte de perquisition." Art. 174.— The deed of protest contains a literal copy of the bill of exchange, the acceptance, -the indorsements, and other clauses appearing 318 CODE OF COMMEECE. thereon, a summons to pay the amount of the bill. It also states whether the party liable to pay the bill was present or absent, and the reasons assigned for refusal to pay, and the inability or refusal to sign. Art. 175. — No act on the part of the holder of a bill of exchange can dispense with the protest, with the exception of the case provided for by Art. 150, et seq., respecting the loss of a bill. Art. 176.— Notaries and huissiers are compelled, under pain of suspension, costs, and damages towards the parties, to leave exact copies of aU protests, and to transcribe the same literally day by day, and by order of date in a special register indexed and paragraphed and kept in the form prescribed for repertoires. Art. 177.— Re-exehange is effected by a " retraite." Art. 178.— (Thus modified by the Decree of 24th March, 1848, which has not been repealed, and is still applied in practice.)— The retraite comprises, with the detailed statement signed by the drawer only : 1. The amount of the principal of the pro- tested bill. 2. The expenses of protest and notifica- tion. 3. The interest since default. 4. Loss of exchange. 5. The stamp, which is fixed at thirty- five centimes. Art. 179.— (Thus provisionally modified by the Decree of 24th March, 1848.) — The re-exchange is calculated in French territory uniformly as follows : One quarter per cent, upon the chef-lieux de d^partement. One-half per cent, upon the chef- lieux d'arrondissement. Three-quarters per cent, upon any other place. In no case will re-exehange be permitted in the same d6partement. Foreign exchanges and those relating to French possessions out of France will be governed by the usages of trade. Art. 180. (Bepoaled by the Decree of 24th March, 1848.) Art. 181. (Repealed by the Decree of 24th March, 1848.)— Account of return expenses. .•PBOMISSOEY SOTES. 319' Art. 182.— One compte de retour only can be made on the same bill of exchange. This compte de retour is reimbursed by one indorser to the others respectively, and ultimately by the drawer. Art. 183.— Re-exchanges cannot be cumulative. The drawer and each indorser support one only respectively. Art. 184. — The interest upon the principal of a bill of exchange protested in default of payment is payable from the date of the protest. Art. 185.— The interest upon the expenses of pro- test, re-exchange, and other legitimate costs, is payable from the date of the commencement of the action for payment of the bill. Art. 186. (Repealed by the Decree of 24th March, 1848.) SECTION II. PROMISSORY NOTES (BiUets a Ordre.) Art. 187.— All the provisions relating to bills of exchange, viz.: — Maturity, Indorsement, Joint and several liability. Sureties, Payment, Payment by intervention, Protest, Duties and rights of the holder. Re-exchange and interest, are applicable to billets k ordre, without prejudice to the provisions contained in Arts. 636, 637 and 638. Art. 188.— The promissory note is dated. It states the amount payable, the name of the party to whose order the instrument is made and the period when payment must take place. It also states whether the value received has been in cash,, merchandise, in account, or otherwise. 320 OODE OF COMMERCE. SECTION III. LIMITATION OF ACTIONS (Prescription). Art. 189.— All actions relating to bills of ex- change, and to billets a ordre subscribed by mer- chants, traders, or bankers, or for acts of commerce, are barred after five years from the date of the protest or of the last judicial proceeding, if judg- ment has not been rendered, or if the debt has not been recognised by a separate deed. Nevertheless the defendants are compelled, if required, to affirm under oath that they owe nothing further ; and their widows, heirs, and representa- tives must in like manner swear that to the best of "their belief nothing is owing. BOOK II. OF MAEITIME COMMERCE. TITLE I. OP SHIPS AND OTHER VESSELS. Art. 190.— Ships and other vessels are personal property. Nevertheless, they are liable for the debts of the vendor, and especially for those "which the law declares to be privileged. Art. 191.— Privileged debts are the following, and in the order in which they are classed : — 1st. Judicial costs and other charges incurred in obtaining a sale of the vessel, and the distribution of the proceeds thereof. 2nd. The charge for pilotage, tonnage, hold-fees,, lashing, basin or outer basin. 3rd. The wages of the keeper, and the expenses of guarding the vessel from the time of her entrance into port till the sale. 4th. The storage of her rigging, tackle, and apparel. 5th. The expenses of repairing the vessel, rigging,, and apparel, since her entrance into port from her last voyage. eth. The wages and pay of the captain and crew employed in the last voyage. T 322 MARITIME COMMEECE. 7th. The sums advanced to the captain for the necessary expenses of the vessel during the last voyage, and the reimbursement of the price of the goods sold by him for the same purpose. 8th. The sums due to the vendor, tradesmen, and workmen employed in the building of the vessel, if she has not yet made a voyage, and those due to creditors for furniture, work, labour, and for re- fitting, victualling, outfits, and equipment, before the departure of the vessel, if she has already made a voyage. 9th. The sums lent on bottomry, on the rigging and apparel, for repairing, victualling, outfit and equipment before the departure of the vessel. can order, according to the circumstances, that the calling of the meeting be adjourned, to decide upon the concordat of the bankrupt. If the tribunal orders that the claim shall be postponed, it can decide provisionally that the creditor whose proof is contested shall be admitted to vote in respect of an amount to be determined by such decision. Art. 500.— When the contest is referred to a Tribunal Civil, the Tribunal of Commerce will decide if the claim shall be postponed or decided upon ; in the latter case the Tribunal Civil will decide summarily upon the petition of the syndics, notice being given to the creditor, and without further procedure, whether the claim shall be pro- visionally admitted, and for what amount. In the event of a claim being the object of criminal pro- ceedings, the Tribunal of Commerce can, never- theless, order its postponement ; if it order it, however, to be passed over, it cannot allow its provisional admission, and the creditor in question cannot take part in the operations of the bankruptcy until a competent tribunal has adjudicated thereon. Art. 501. — A creditor whose privilege or mort- gage only is contested can vote at meetings of the bankruptcy in the same manner as an ordinary creditor. Art. 502.— At the expiration of the periods pre- scribed by Arts. 492 and 497, relating to persons domiciled in Prance, the concordat and all the other proceedings relating to the bankruptcy shall be carried through irrespective of them, with the exception contained in Arts. 567 and 568, in favour of creditors domiciled out of the European territory of Prance. Art. 503.— In default of appearance and afllrma- cc2 388 CODE OF COMMERCE (bANKEUPTCT) . tion within the periods applying to the same respec- tively, the defaulters, whether known or unknown, will not be comprised in the future distribution of dividends; but they may appear to oppose at any time up to the distribution ; the costs of such appear- ance are always to be borne by themselves. Their opposition cannot suspend the payment of dividends already ordered to be distributed by the juge-com- missaire ; but if further dividends are paid before their claims have been adjudicated upon, they shall be provisionally comprised in such distribution in respect of an amount to be fixed by the Court, and which will be provisionally retained until judgment be delivered upon their opposition. If they are ulti- mately; admitted as creditors, they can claim nothing in respect of dividends already ordered to be paid "by the juge-commissaire, but they will have the right to receive their entire proportionate dividends from the commencement, out of the first payment from the assets then next to be distributed. CHAPTER VI. OP THE DISCHARGE OP THE BANKRUPT (Con- cordat) AND OP THE STATE OP " Union." SECTION I. OP THE CONVOCATION AND OP THE MEETING OP CREDITORS. Art. 504.— Within three days after the time pre- scribed for the afB.rmations, the juge-commissaire ■will, through the grefler, call a meeting of the cre- ditors whose proofs have been verified and afB.rmed or admitted provisionally, to deliberate upon the dis- charge of the bankrupt. The advertisement in the newspapers and letters of convocation will mention the object of the meeting. Art. 505.— The meeting will be held under the " CONCOEDAT," OE COMPOSITION. 389 presideuce of the juge-commissaire, at the place, day, and hour appointed by him; creditors having proved and affirmed, and being provisionally admitted, may attend in person or by proxy. The bankrupt shall be summoned to the meeting, and must attend in person if dispensed from arrest, or if possessing a sauf-conduit. He cannot attend by proxy, unless upon furnishing a satisfactory excuse, to be approved by the juge-commissaire. Art. 506.— The syndics will present a report to the meeting upon the position of the bankruptcy, the formalities which have been complied with, and the operations which have taken place ; the bankrupt shall also be heard. The report of the syndics shall be handed to the juge-commissaire, duly signed by them, and he will draw up a report of the proceed- ings and decisions passed at the meeting. SECTION II. OP THE DISCHARGE OF THE BANKRUPT (Concordat). § 1.— OP THE FORMATIOM" OP THE CONCORDAT. Art. 507. — No composition can be agreed upon between the creditors and the bankrupt until after compliance with the formalities above described. The agreement for composition can be passed by a majority of the creditors representing three-fourths of the totality of the debts proved and aflrmed, or provisionally admitted, pursuant to sec. v. of chap. v. In default the composition is void. Art. 508.— Creditors by way of mortgage, regis- tered or dispensed from registration, or privileged and secured creditors, cannot vote in relation to the concordat for such debts. They cannot vote unless they give up their securities. Should they neverthe- less vote, they thereby forfeit such securities. 390 CODE or COMMEECE (BANKRUPTCY). Art. 509.— The concordat must be signed at the meeting, or it will be void. If only a majority in number consent, or a majority of three-fourths in amount, the meeting shall be peremptorily adjourned for eight days. In this case the resolutions passed and the adhesions given at the prior meeting are of no effect. Art. 610.— If the bankrupt has been condemned as a fraudulent bankrupt, no concordat can be passed. "When proceedings in relation to fraudulent bankruptcy have been commenced, a meeting of the creditors must be called to decide as to a concordat being granted in case of acquittal. The meeting may, however, postpone any resolution until the issue of the above proceedings. Such postponement must, however, be agreed to by the majority in number and amount provided by Art. 507. If at the expiration of the period fixed for the postponement it becomes necessary to decide as to the concordat, the rules prescribed in the preceding Article will be applicable to such further meetings. Art. 511. — If the bankrupt has been sentenced as a banqueroutier simple, the concordat can be formed. Nevertheless, in the event of proceedings being commenced, the creditors can postpone their decision until the issue of the proceedings be known, upon compliance with the preceding Article. Art. 512. — All the creditors who have been en- titled to vote in respect of the concordat, or whose claims shall only have been admitted after the voting of the concordat, can enter opposition against it. Such opposition must be drawn up and served upon the syndics and upon the bankrupt within eight days following the concordat, or it will be void. The opposition must include a writ calling upon them to appear at the first audience of the Tribunal of Com- merce. If one syndic only has been appointed, and he opposes the concordat, he must request that a new syndic be named, as regards whom he is required to comply with the forms prescribed in the present Article. If the judgment or opposition is dependent EFFECTS OF " CONCOEDAT," OE COMPOSITION. 391 ■apon the decision of other questions relating to the matter, and as regards the jurisdiction of the Tribunal of Commerce, the said tribunal will postpone giving judgment until such questions be decided. It will fix a short period within which the opposing creditor must bring the questions before competent judges, ^nd he must prove that he has used all reasonable diligence in relation thereto. Art. 513. — The Tribunal of Commerce can be applied to to grant an homologation of the concordat upon the petition of any of the parties. The tribunal cannot render its decision before the expiration of •eight days fixed by the preceding Article. If, during this interval, oppositions have been entered, the tribunal will adjudicate upon such oppositions and upon the homologation by the same judgment. If the opposition is admitted, the concordat will be pro- nounced void as regards all parties interested. Art. 514.— In all cases, before deciding upon the homologation, the juge-commissaire must present a report to the tribunal upon the characteristics of the bankruptcy and upon the admissibility of the concordat. Art. 515. — In the event of non-compliance with the above rules, or when reasons" exist, either in the 3)ublic interest or in the interest of the creditors, of a nature to render the concordat inexpedient, the tribunal can refuse to confirm it. ^ 2.— OF THE EFFECTS OF THE CONCORDAT. Art. 515. — The confirmation or homologation of the concordat renders it binding upon all the creditors, whether inscribed upon the list or not, and whether they have or have not proved. It is «ven binding upon creditors domiciled out of France, and upon those who, pursuant to Arts. 499 and 500, have been provisionally admitted to vote, whatever their claims may be ultimately fixed at. Art. 517.— The confirmation enables each creditor to preserve his mortgage upon the realty of the 392 CODE OF COMMERCE (bANKEUPTCT). debtor, the same being registered pursuant to the 3rd paragraph of Art. 480. To this effect, the syndics will have the judgment of confirmation entered at the mortgage registration office, unless it be otherwise decided by the concordat. Art. 518.— Wo action to have the concordat de- clared void can be brought after the homologation thereof, unless upon the ground of fraud discovered after such confirmation, and appearing either from a dissimulation of the assets or from an exaggeration .of the liabilities. Art. 519. — The functions of the syndics cease as soon as the judgment of homologation has been rendered. They must, thereupon, render their accounts to the bankrupt in the presence of the juge-commissaire. The account is then examined and settled. They must also return to the bankrupt all his books, papers and effects, and the bankrupt must give a receipt for the same. A report thereof will be drawn up by the juge-commissaire, and there- upon their functions wiU cease. In case of dispute,, the Tribunal of Commerce will adjudicate thereon. § 3.— OP THE CANCELLATION OB, REVOCA- TION OF THE CONCORDAT. Art. 520.— The cancelment of the concordat, either upon the ground of fraud, or consequent upon a conviction for fraudulent bankruptcy pronounced since the homologation, liberates the sureties by right of law. In the event of non-execution by the bankrupt of the conditions of the concordat, the cancellation of such arrangement can be demanded against him before the Tribunal of Commerce in the presence of the sureties, should any exist, or upon their being duly summoned. The cancellation of the concordat will not liberate sureties who have bound themselves to guarantee its entire or partial fulfil- ment. Art. 521. — When, after the ratification of the concordat by the tribunal, the bankrupt is prose- cuted for fraudulent bankruptcy and arrested, the CANCELLATION OP THE " OONCOEDAT." 393- Tribunal of Commerce can prescribe what conser- vative measuxes appear expedient. These measures will cease upon the day of the declaration that the prosecution can be abandoned, and the order libera- ting the prisoner, or the judgment of acquittal. Art. 522. — Upon inspection of the judgment of condemnation for fraudulent bankruptcy, or upon the judgment which pronounces either the annul- ment or cancellation of the concordat, the Tribunal of Commerce will appoint a juge-commissaire, and one or several syndics. These syndics can a£B.x the seals. They will proceed without delay, with the assistance of the juge-de-paix, upon the former balance-sheet, to verify the securities, assets, shares and papers, and will proceed, if necessary, to draw up a supplementary inventory. They will also draw up a supplementary balance-sheet. They will pub- lish in the necessary newspapers, with an extract of the judgment appointing them, an invitation to new creditors, if any exist, to prove within twenty days, and to ^deposit their documents for examination. This invitation is also made by letters sent by the gref&er, pursuant to Arts. 492 and 493. Art. 523.— The verification of the proofs shall be proceeded with without delay, pursuant to the preceding Article. Claims already admitted and proved need not be verified de novo, without preju- judice, nevertheless, to the rejection or reduction of those which may have been paid since, in part or wholly. Art. 524. — These operations being concluded, if no new concordat is brought about, the creditors will be summoned to give their opinion upon the maintenance in oflB.ce or dismissal of the syndics. No distribution of dividend shall be made until the expiration, as regards new creditors, of the periods accorded to persons domiciled in France, by Arts. 492 and 497. Art. 525.— Deeds executed by the bankrupt sub- sequent to the jugement d'homologation, and pre- viously to the cancellation of the concordat, cannot 394 CODE OF COMMERCE (bANEETTPTCy) . be annulled except in case of fraud, as regards the xights of the creditors. Art. 526.— Creditors, previous to the concordat, will enter entirely into their rights as regards the bankrupt alone, but they can only be admitted to prove in the general body of creditors in the follow- ing proportions, viz : — If they have received no portion of dividend upon the totality of their claims ; If they have received a part of dividend relating to the portion of their prior claims, corresponding to the portion of the dividend promised but not yet paid. The provisions of the present Article will be applicable in the ease where a second bankruptcy has been opened without the concordat having been previously annulled. SECTION III. OP THE CLOSING OP THE BATfKKITPTCY IN CASE OP INSUPPICIENCY OP THE ASSETS. Art. 527.— If, at any period before the homolo- gation of the concordat, or the formation of the "union, the course of the operations of the bank- ruptcy is arrested through insuflciency of assets, the Tribunal of Commerce can, upon the report of the juge-commissaire, pronounce, even of its own accord, that the operations of the bankruptcy be closed. This judgment will confer upon each creditor the exercise of his individual rights as against the property and the person of the bankrupt. During •one m.6nth from the date thereof the execution of this judgment shall be suspended. Art. 528.— The bankrupt, or any other interested party, can at any period have such judgment re- versed by the tribunal, upon proving that funds lexist to meet the expenses of the bankruptcy, or by OP THE " UNION " OF CKEDITOES, 395 paying into the hands of the trustees a suflEieient sum to provide for the same. In all cases the expenses of proceedings instituted pursuant to the preceding Article must have been previously paid or dis- charged. SECTION IV. THE "TJNION" OF CREDITORS. Art. 529. — If no concordat is agreed to, the cre- ditors are by right of law in a state of union. The juge-commissaire will consult them immediately, both upon acts of management and as to the utility of maintaining or replacing the syndics. Privileged or mortgage creditors, or creditors holding security, can be admitted to such meeting. A report will be drawn up of the observations of the creditors, and upon inspection of this document the Tribunal of Commerce will decide, as is provided in Art. 462. The syndics who are not maintained in their o£9.ce must render their accounts to the new syndics in the presence of the juge-commissaire, the bankrupt being duly summoned. Art. 530. — The creditors will be consulted as to the QLuestion of assistance being granted to the bank- rupt from the assets. When the majority of the creditors present have consented thereto, a sum of money can be granted to the bankrupt by way of assistance, out of the assets of the bankruptcy. The syndics will propose the amount, which shall be decided by the juge-com.missaire ; the syndics alone can appeal from his decision to the Tribunal of Commerce. Art. 531. — When a mercantile firm is in bank- ruptcy, the creditors can consent to the concordat in favour of one or several of the partners only. In this case the assets will be administered under the Tdgime of the union. The property belonging per- sonally to those as regards whom the concordat has ■396 CODE OF COMMEECE (bANKEUPTCT) . been consented to will be excluded, and the special agreement executed with them can only contain an engagement to pay a dividend out of assets foreign to the general assets. A partner who has obtained a special concordat will be discharged from all liability, joint or several. Art. 532. — The syndics represent the body of creditors, and are charged with the winding-up of the estate. The creditors, nevertheless, can give them authority to continue the working of the business. The resolution which confers upon them, this right will determine its duration and extent, and will fix the amount which they may retain in their hands to provide for the expenses thereof. This resolution must be passed in the presence of the juge-commissaire, and by a majority of three- fourths of the creditors in number and value. Opposition can be entered against such resolu- tion by the bankrupt, or by dissenting creditors, but such opposition shall not suspend the execu- tion thereof. Art. 533.— When the operations of the syndics require engagements to be entered into which exceed the assets of the union, the creditors who authorise such operations are personally respon- sible beyond their share in the assets, but in each case within the limits of the authority which they gave. They must pay in proportion to their claims. Art. 534. — The syndics are charged to proceed to the sale of the real property, goods and eflfects of the bankrupt, and the winding-up of his assets and liabilities, the whole under the superintendence of the juge-commissaire, and without it being neces- sary to summon the bankrupt. Art. 535.— The syndics can, by conforming to the rules prescribed by Art. 487, enter into com- promises in relation to cases of claims belonging to the bankrupt, notwithstanding any opposition on his part. Art. 536. — The creditors in a state of union must be called together at least once within the OF THE " UNION " OF CEEDITORS. 397 first year, and if necessary during the following years, by the juge-commissaire. In these meetings the syndics must render an account of their management. They will be continued in the exer- cise of their functions according to the forms pre- scribed by Arts. 462 and 529. Art. 537. — When the liquidation of the bank- ruptcy shall be terminated, the creditors must be called together by the juge-commissaire. At this last meeting the syndics must hand in their accounts. The bankrupt must be present or duly summoned. The creditors will give their opinion upon the excusabilit6 sent in by the bankrupt, if any. A Teport shall be drawn up, upon which each of the creditors can enter his observations. After the closing of this meeting, the union shall be dissolved "by right of law. Art. 538. — The juge-commissaire will present to the tribunal the resolution of the creditors relating to the excusabilit6 of the bankrupt, and a report upon the characteristics and circumstances of the bankruptcy. The tribunal will decide whether the bankrupt is excusable or not. Art. 539. — If the bankrupt is not declared to be excusable, the creditors will enter into the exercise of their individual actions against him, both as to person and as to property. If he is declared excusable, he is free from arrest as regards the creditors of his bankruptcy, and cannot be sued by them except as regards his property, and under circumstances provided in certain par- ticular laws. [The above Article is of no further interest in consequence of the abolition of imprison- ment for debt.] Art. 540.— The following cannot be declared ex- cusable, viz. : — Fraudulent bankrupts, stellionataires, persons condemned for theft, swindling, and abuse of con- fidence, and public Government accountants. Art. 641. — No commercial debtor can be per- mitted to demand admission to the benefit of cession CODE OF COMMEECE (bANKEUPTCT) . de biens ; nevertheless a concordat by total or par- tial abandonment of the assets of the bankrupt can be formed according to the regulations prescribed by sec. ii. of the present chapter. This con- cordat produces the same effects as other con- cordats, and is annulled and cancelled in the same manner. The liquidation of the abandoned assets is carried out pursuant to paragraphs 2, 3, and 4 of Art. 529, and to Arts. 532, 533, 534, 535, and 536, and to paragraphs 1 and 2 of Art. 537. The con- cordat by abandonment is similar to the union as regards the payment of registration duties. CHAPTER VII. OP THE VARIOUS DESCBIPTIONS OF CBEDI- TORS, AND OF THEIR BIGHTS IN CASE OF BANKRUPTCY, SECTION I. OF JOINT OBLIGATIONS AND SECURITY. Art. 542.— A creditor holding engagements sub- scribed, indorsed, or guaranteed jointly and severally by the bankrupt and other parties in bankruptcy, may prove against all the estates for the whole of his claim until he has received full payment. Art. 543.— No right of action by reason of dividends paid is allowed in the bankruptcies of parties jointly and severally bound towards the same creditor having proved against all the estates, one against the other, unless in the case where the sum total of the dividends arising from these bank- ruptcies would exceed the total amount of the claim of the creditor in principal and expenses, in which case such excess shall be returned to the assets of such bankruptcy, according to the order in which the rights of action of indemnity can be enforced. Art. 544.— If a creditor holding a joint and several SECURED AND PRITILEGED CEEDITORS. 399' Tindertaking of the bankrupt and other parties, has received, before the bankruptcy, a payment on account of his claims, he can only prove against the estate upon giving credit for the amount so received, but he will preserve his rights against the sxireties for the balance. A suxety having paid part of a claim for -which he has become bound, can prove for that amount against the estate. Art. 645. — The creditors preserve their rights against the sureties of the bankrupt for the whole of their claims, notwithstanding the discharge of the bankrupt. SECTION 11. OP SECURED AND PRIVILEGED CREDITORS, Art. 546.— Creditors of the bankrupt legally holding security shall be described as such in the list of creditors. Art. 547.— The syndics can at any time, with the permission of the juge-commissaire, take posses- sion, for the benefit of the estate, of the securities held by creditors upon payment of their claims. Art. 548.— Should the security not be Ireturned by the syndics, and be sold by the creditor for a sum. exceeding the amount of his claim, the surplus shall be payable to the syndics; if the price realised be^ less than his claim, the creditor can prove against the estate for the deficiency in the same manner as an ordinary creditor. Art. 549. — The wages of workmen employed, directly by the bankrupt, due in respect of the month previous to the declaration of bankruptcy, shall rank as privileged claims in the order pre- scribed by Art. 2,101 of the Code Civil for the salaries of hired persons. The salaries of clerks for the period of six months preceding the decla- ration of bankruptcy are admitted upon the same basis. 400 CODE OF COMMERCE (bANKEUPTCt) . Art. 550— Art. 2,102 of the Code Civil is th^s modified as regards bankruptcies. If tlie lease is cancelled, the landlord of real property used for the trade or business of the bankrupt wiU be reckoned a privileged creditor in respect of the rent due for the last two years prior to the judg- ment declaring the bankruptcy, and also as regards the current year, and in respect of aU the acces- sories relating to the carrying out of the lease, and :for any damages that may be allowed him by the Court arising from the cancellation of the lease. In case of non-cancellation, the lessor, when once he has been paid all rent hitherto due, is not entitled to be paid rent running or to become due -at a future time if the securities which were furnished at the time of the conti*act are maintained, .or if those furnished since the bankruptcy are reckoned sufllcient. In the event of a sale and removal of personal property situate upon the premises leased, the lessor can enforce his priority as in the case of cancellation above mentioned, and further for a year, to expire from the end of the current year, whether the lease be dated or not. The syndics can continue or transfer the lease for the remainder of the term upon condition of main- taining upon the premises, by themselves or by their transferees, sufttcient security, and of exe- cuting, at the proper periods, all the obligations arising by law or from the agreement, and they must not employ the premises for other purposes than was originally stipulated. In the event of the lease containing a provision forbidding the lessee to transfer or underlet, the creditors have never- theless the right to underlet the premises, but only for the term for which the landlord may have received the rent in advance, nor can they employ the premises for other purposes than originally stipulated. The privilege and right of reclamation, established by No. 4 of Art. 2,102 of the Code Civil in favour of the vendor of personalty, cannot bo ■exercised against the bankruptcy. EIGHTS OF SECURED CEEDITOES. 401 Ajrt. 551. — The syndics will furnish the juge- ■Gommissaire with a list of the creditors claiming to be privileged upon the personalty, and the juge- xjommissaire can order that such creditors be paid -out of the first assets collected. In the event of the privilege being disputed, the tribune will adjudicate upon the question. SECTION III. OF THE BIGHTS OF MORTGAGE AND PRIVI- LEGED CREDITORS UPON THE REAL ESTATE. Art. 552. — When the distribution of the pro- ceeds of the real estate shaU be made previously to that of the proceeds of the personal estate, or simultaneously therewith, the mortgage and privi- leged creditors whose demands are not satisfied out of the price of the real estate shall rank for what iremains due to them rateably with the simple con- tract creditors, on the assets belonging to the general body, provided always, that their claims shall have been proved and admitted pursuant to the forms hereinbefore m.entioned. Art. 553. — If one or several distributions of the proceeds of the personalty precede the distri- bution of the proceeds of the real estate, the privi- leged or mortgage creditors whose claims are duly proved and admitted will participate in the divi- dends in proportion to their proofs, subject, how- ever, should the case happen, to the deductions Jiereafter mentioned. Art. 654.— After the sale of the real property and the settlement in order of the various mortgage and privileged creditors, those among them who are entitled to a preference for the whole amount of their demands on the real estate shall receive the same according to their classification, subject to a deduc- tion of the sums which they may have already received from the simple contract fund. The sums D D 402 CODE OP COMMEECE (bANEEUPTCT) . thus deducted shall not remain in the privileged fund, but return to the simple contract fund, for the benefit of which a separation shall be made. Art. 555.— With respect to the mortgage creditors who shall be entitled only to a partial payment out of the proceeds of the real estate, the following rule shall be adopted :— Their rights in the simple contract fund shall be finally determined by the amotint for which they shall remain creditors, after the adjustment of their respective quotas in the real estate; and the money which they shall have previously received beyond this proportion shall be retained out of their quota from the real estate, and. shall return to the simple contract fund. Art. 556.— The mortgage creditors whose claims^ are excluded from a participation in the real estate,, on account of the fund being absorbed by creditors previously registered in order of rank, shall be con- sidered as simple contract creditors, and subject, as such, to the effects of the concordat, and to all the other operations relating to the simple contract body of creditors. SECTION IV. OF THE BIGHTS OF MABBIED WOMEN. Art. 557.— In the event of the bankruptcy of the husband, the wife whose real property has not been brought into the communaut6, shall resume her exclusive right thereto, and to whatever other real property which shall devolve upon her, by inheritance, donation, or bequest. Art. 558.— The wife shall also resume the ex- elusive right to the real property purchased by her and in her name, with moneys arising from the said inheritances and donations, provided that the clause of emploi be expressly contained in the purchase deeds, and that the origin of the money be proved by an inventaire, or other acte authentique. EIGHTS OP MAEKIED WOMEN. 403 Art. 559. — Under whatever regime the marriage contract may have been executed, except in the case provided for in the preceding Article, the legal pre- sumption is that the property acquired by the wife o£ a bankrupt belongs to her husband, and has been purchased with his money, and should form part of the assets, saving the right of the wife to produce proof to the contrary. Art. 560.— The wife can resume possession in kind of the personalty belonging to her pursuant to her marriage contract, or which may have devolved upon her by successive donation or bequest, and which shall not have entered into the com.munaut6, in every case in which the identity thereof can be proved by an inventory or other authentic document. In default of such proof, all the personal property belonging to the husband and to the wife, upon whatever regime the marriage may have been con- tracted, devolves upon the creditors, with the ex- ception of necessary wearing apparel and linen, which the syndics may, with the permission of the juge-commissaire, allow the bankrupt to retain. Art. 561. — The right of recovery which may be claimed by the wife, pursuant to the provisions of Arts. 557 and 558, shall be subject to the charge of debts, liens and mortgages with which the pro- perty may be legally encumbered, either by her voluntary consent or by judicial award. Art. 562.— In case the wife has paid debts for her husband, the legal presumption is that she has paid them with the money of her husband, and unless she prove the contrary, as is provided by Art. 559, she can have no right to a reimbursement. Art. 563.— When the husband is a trader at the time of the celebration of the marriage, or if then without profession, he enter into trade within one year thereafter, the real property belonging to him at the time of the marriage, or which has devolved upon him by succession, donation or legacy, will alone be subject to the hypoth&que legale of the wife for her security in the following cases, viz. : dd2 404 CODE OF COMMEECE (bANKEUPTCy) . 1. In respect of moneys and personalty being her marriage portion, or coming to her since the mar- riage by succession, gift inter-vivos, or by ■will, the d.elivery or payment of which she can prove by any deed bearing a date oertaine. 2. For the replace- ment of her property alienated during the marriage. 3. For the payment of debts contracted by her on behalf of her husband. Art. 564. — The wife whose husband shall have been in trade when the marriage took place, or whose husband, not following any fixed profession at that time, became a trader within one year from the celebration thereof, can have no claim against the estate in respect of any benefits contained in the marriage contract, nor in the latter case can the creditors, on their part, avail themselves of the conditions stipulated therein by the wife for her husband's advantage. CHAPTER Vm. OF THE BIVIDE3!TDS AMONG THE OEEBITOES AND THE LIQUIDATION OF THE PEE- SONALTY. Art. 565.— The amount of the personal property of the bankrupt, deducting the costs and expenses of the administration of the estate, the allowance granted to the bankrupt or to his family, and the sums paid to the privileged creditors, shall be divided amongst all the creditors rateably accord- ing to their respective claims proved and confirmed. Art. 566. — For this purpose the syndics shall deliver every month to the juge-commissaire a statement of the situation of the bankrupt's estate, and of the moneys paid into the Caisse des D^pdts et Consignations ; the juge-commissaire shall order. If there be occasion, the payment of a dividend to the creditors, the rate of which shall be decided by him, and he will cause due notice thereof to be given to them. DISTEIBUTION OF DIVIDENDS. 405 Art. 567. — No distribution of dividends shall take place amongst the creditors domiciled in Prance until a proportion of assets shall be set aside corresponding to the claims of creditors domiciled out of France whose names are in the schedule. "When such latter claims are inserted therein for an unascertained amount, the juge-com- missaire can decide that the reserve shall be increased, with leave to the syndics to appeal from such decision to the Tribunal of Commerce. Art. 588. — The proportion of assets above re- ferred to shall be placed in reserve and deposited in the Caisse des D6p6ts et Consignations until the expiration of the period prescribed by the last para- graph of Art. 492 ; it shall be distributed amongst the recognised creditors, if the creditors domiciled abroad have not proved their debts pursuant to the provisions of the present law. A similar reserve shall be made in respect of proofs which may not have been finally admitted. Art. 569. — No payment shall be made by the syndics but on the production of the document attesting the debt. The syndics shall indorse on the docTiment the payment made by them or ordered to be paid pursuant to Art. 489. Nevertheless, in the event of it being impossible to produce the document proving the debt, the juge-commissaire can order the dividend to be paid upon production of the admission of proof. In every case the creditor shall sign a receipt in the margin of the schedule of dividends. Art. 570. — The union of creditors may be autho- rised by the Tribunal of Commerce, the bank- rupt being duly summoned, to make any compo- sition for the disposal and transfer of any debts or rights of action due or accrued to the bankrupt, the recovery of which has not been effected. In such case the syndics will execute and do all, necessary acts and things for the carrying out of the arrangement. Any creditor can apply to the juge-commissaire to convene a meeting to discuss a coniposition. 406 CODE OF COMMEECE (bANKEUPTCY). CHAPTER IX. OF THE SALE OF THE REAL PROPERTY OP THE BANKRUPT. Art. 571.— Creditors not being mortgagees cannot proceed to sell the real property of the debtor after the date of the declaration of bankruptcy. Art. 572.— If no proceedings for the sale of the real property have i been commenced before the period of union, the syndics alone will be permitted to carry through the sale ; they must proceed thereto within eight days of the union with the authorisation of the juge-commissaire, and comply with the forms prescribed for the sale of the property of minors. Art. 573. — The surench^re, after the sale by public auction of the real property of the bank- rupt, upon the application of the syndics, must be accompanied with the following conditions, viz. —The surench^re must be made within a fort- night. It must not be less than one-tenth of the highest bid at the adjudication. It must be made at the greffe of the Tribunal Civil, according to the forms prescribed in Arts. 710 and 711 of the Code of Civil Procedure. All persons may be admitted to make a surenchdre ; such last adjudi- cation will be final, and cannot be followed by a further sale. CHAPTER X. OF REVENDICATION. Art. 574.— In case of bankruptcy the following can be reclaimed by the owners, viz. : — ^AU nego- tiable instruments and other securities not yet paid, and which are found in the portfolio or possession of the bankrupt at the time of his stoppage, when such securities have been deposited with the bank- rupt, with the simple authority to realise them, and OF " EEVEXDICATION." 40? Tiold the proceeds at the disposition of the owner; or, when the proceeds have been specially set aside to make certain payments. Art. 575. — Goods consigned to the bankrupt upon deposit, or to be sold on account of the owner, may be reclaimed as long as they exist as such (en nature) wholly or in part. The price, or jjart of the price, of such goods not having been paid in cash or cash securities, or by way of set-off in current account between the purchaser and the bankrupt, may also be reclaimed. Art. 576. — Goods sent to the bankrupt, so long a,s delivery has not taken place in his warehouse or that of the agent instructed to sell them on account of the bankrupt, may be stopped in transitu ; but if before arrival the goods have been sold without fraud, upon invoices, bills of lading, or lettres de voiture signed by the consignor, they cannot be seized as aforesaid. The party exercising the right to stop in transitu must pay into the estate the moneys received by him on account, as well as all advances made for freight, carriage, commission, insurance, or other expenses, and must defray what remains due in respect of such charges. Art. 577. — The vendor of goods sold by him to the bankrupt, but not delivered, or which have not Taeen despatched to the bankrupt, or to his agent for his account, may retain the same. Art. 578. — In the cases provided for in the two preceding Articles, the syndics, by the authority of the juge-eommissaire, may elect to compel delivery of the goods upon payment to the vendor of the price agreed upon between him and the bankrupt. Art. 579. — The syndics can, with the permission of the juge-commissaire, admit claims for stoppage in transitu or reclamations. In the event of dis- pute, the tribunal will adjudicate, after having heard the juge-commissaire. 408 CODE or COMMERCE (BANKRUPTCY). CHAPTER XI. OF APPEALS AGAINST JUDGMENTS IN BANKRUPTCY, Art. 580. — The judgment, declaring the bank- ruptcy, and the decision fixing the date anterior thereto as the period of the cessation of payments, can be appealed against by the bankrupt within eight days, and by all other parties within one month. The time for appealing runs from the dates when the for- malities relating to publication and advertisements, comprised in Art. 442, have been accomplished. Art. 581.— No claim on behalf of the creditors to have the date of the cessation of payments fixed at a period other than that determined by the judgment declaring the bankruptcy, or by a subsequent judg- m.ent, shall be admitted after the expiration of the delays provided for the proving and affirmation of debts. When such delays have expired, the date determ.ined as that of the cessation of payment shall be final and irrevocable as regards the creditors. Art. 582.— The time for appealing against all judgments in bankruptcy is within 15 days from the signification of the judgment. The time is increased in the proportion of one day for each five myriamdtrea of distance in respect to parties who reside beyond five myriam6tres from the place in which the tribunal is situate. Art. 583.— The following are not subject to oppo- sition, nor to appeal to the ordinary Courts, nor to the Supreme Court of Cassation, viz : — 1. Judgments relating to the appointment or re- placement of the juge-commissaire, and to the appointment and revocation of the syndics ; 2. Judgments deciding as to sauf-conduits, and assistance to the bankrupt and his family; 3. Judgments ordering the [sale of goods and effects appertaining to the bankruptcy ; 4. Judgments ordering the adjournment of the FRAUDULENT BANKRUPTCY. 409* concordat, or the provisional admission of contested claims ; 5. Judgments by which the Tribunal of Commerce decides upon appeals from orders of the juge-com- missaire made within the scope of his authority. TITLE II. OF naAUDULENT BANKEUPTCIES. CHAPTER I. BAIfQUEROUTE SIMPLE. Art. 584. — Cases of banqueroute simple will incur the penalties prescribed by the Penal Code; they are prosecuted before the Tribunaux de Police Correctionnelle, upon the application of the syndics, or of a creditor, or of the public prosecutor. Art. 585.— Any bankrupt trader shall be de- clared a banqueroutier simple in the following cases; respectively :— 1. If his personal and household expenses are deemed excessive ; 2. If he has dissi- pated heavy sums in operations, the result of which depended entirely on hazard, or in fictitious opera- tions connected with the Stock Exchange, or with merchandise ; 3. If, with the intention of delaying his bankruptcy, he has made purchases for re-sale under the market value ; or if, with the same inten- tion, he has contracted loans, negotiated bills, or availed himself of other similar ruinous means of raising money; 4. If, after cessation of his pay- ments, he has paid any one creditor his debt to the prejudice of the body of creditors. Art. 586. — Any bankrupt trader can be de- clared a banqueroutier simple in each of the following cases :— I. If he has contracted on behalf of third parties, without receiving any considera- tion, liabilities of greater amount than is deemed justifiable, having regard to his position at the time of such undertaking. 2. If he is again declared 410 CODE OP COMMEECE (bAUKEUI'TCt). bankrupt without having carried through the pro- visions of a previous concordat. 3. If, being married Tinder the regime dotal, or being separated as regards property from his wife, he has failed to comply with Arts. 69 and 70. 4. If, within three days from the cessation of his payments, he fails to make the declaration at the greflfe required by Arts. 438 and 439, or if such declaration does not contain the names of all the parties jointly and severally liable with him. 5. If, without legal excuse, he fails to attend in person before the syndics in the cases and within the periods pre- scribed, or if, after having obtained a sauf-conduit, he fails to appear before the Court. 6. If he has not kept books of account or drawn up an inven- tory ; if his books and inventory are incomplete or irregularly kept, or if they do not show his actual position, debtor and creditor, although there exist no fraud. Art. 587., — The expenses of prosecution for banqueroute simple, instituted by the ministSre public, cannot in any case be charged against the general fund. In the case of a concordat, the right of the treasury to reimbursement of such expenses against the bankrupt cannot be exercised until after the expiration of the periods granted by such concordat. Art. 588. — The expenses of the proceedings in- stituted by the syndics, in the name of the creditors, w^ill be borne, if he is acquitted, by the general body ; but if he is convicted, by the treasury. The treasury can proceed against the bankrupt for reimbursement of such expenses pursuant to the preceding Article. Art. 589. — The syndics cannot prosecute the bank- rupt in an accusation of banqueroute simple, nor appear in prosecutions as a partie civile on behalf of the body of creditors, unless they have been so authorised by a resolution passed by the majority of the creditors present at the meeting at which the proposition was discussed. FRAUDULENT BANKEUPTCT. 411 Art. 590.— The expenses of prosecution by a creditor shall be borne, if there be a conviction, by the treasury, but by the creditor himself in case of acquittal. CHAPTER II. OF PRAUDTTLENT BANKRTJPTCY (Banqueroute Frauduleuse). Art. 591. — Any trader in bankruptcy having ^withheld his books, dissimulated or disposed of a part of his estate, or who, either by his entries or by deeds or documents notarial or otherwise, or in his balance-sheet, has fraudulently stated himself to be indebted for moneys which he really is not liable to pay, shall be declared a fraudulent bank- rupt, and liable to the penalties prescribed by the penal code. Art. 592. — The expenses of the prosecution of a fraudulent bankrupt cannot, under any circum- stances, be charged against the body of creditors. If one or more of the creditors have intervened as parties civiles in their own names, the costs, in the event of acquittal, must be borne by them. CHAPTER III. OF CRIMES AlfD MISDEMEANOURS COM- MITTED IN THE BANKRUPTCY BY OTHER PARTIES THAN THE BANKRUPT. Art. 593.— The following parties shall be con- demned in the penalties appertaining to fraudulent bankruptcy : — 1. Individuals proved to have subtracted or dis- simulated, in the interest of the bankrupt, all or a part of the estate, realty or personalty— the whole without prejudice to the other cases provided in Art. 60 of the Penal Code ; 412 CODE. OF COMMERCE (BANKRUPTCY^. 2. Individuals proved to have fraudulently pre- sented claims in the bankruptcy and afiOrmed the same, either in their own name or by interposing other parties ; 3. Individuals who, carrying on business under the name of other parties, or under supposititious names, have committed offences provided for in Art. 591. Art. 594.— The husband and wife, the descend- ants and the ascendants of the bankrupt, or his relations in the same degree, who have misappro- priated, diverted, or concealed assets belonging to the bankruptcy, without having acted in complicity with the bankrupt, will be punished with the penalties appertaining to theft. Art. 595.— In the cases provided for by the pre- ceding Articles, the Court or the tribunal before which they come, will adjudicate in case even of acquittal :— 1. Of its own accord, as to the repay- ment to the body of creditors of all property, rights, or securities, fraudulently subtracted. 2. As to damages claimed and which the judgm.ent or deci- sion will estimate. Art. 596.— Every syndic who is proved to be guilty of misconduct in relation to his management- shall be criminally punished with the penalties provided for by Art. 406 of the Penal Code. Art. 597.— A creditor who has stipulated, either with the bankrupt or with any other persons, to receive special advantages for giving his vote in meetings relating to the bankruptcy, or who has entered into a private agreement from which an advantage would arise in his favour, to the prejudice of the assets of the bankruptcy, will be criminally punished with imprisonment, not exceeding one year, and a fine, which shall not be less than 2,000 fs. The imprisonment can be increased to two years if the creditor is syndic of the bank- ruptcy. Art. 598.— Such agreements shall also be de- clared null and void, as regards all persons, and a,s ADMINISTRATION OP ASSETS. 413 Tegards the bankrupt himself. The creditor shall be compelled to repay all sums and replace all secuiities which he may have received by virtue of such agreement. Art. 599.— In case the nullity of these stipula- tions shall not be sought by means of criminal pro- ceedings, the Tribunal of Commerce shall be com- petent to decide in the matter. Art. 600.— AH judgments of condemnation ren- dered, either pursuant to the present chapter or the two preceding chapters, must be published and advertised according to the forms established by Art. 42 of the Code of Commerce, at the expense of the parties condemned. CHAPTER IV. OP ADMINISTRATION OP ASSETS IN CASE OP BANQUEBOTTTE PRAITDULETJSE. Art. 601. — In all cases of condemnation for ban- •queroute simple, or banqueroute frauduleuse, the actions civiles, other than those mentioned in Art. '595, will remain separate, and all clauses relating to property prescribed for bankruptcies will be executed, without the execution thereof being pre- vented by any order whatever of the Ministdre Public, which shall have no power to submit them to the appreciation of the criminal authorities. Art. 602. — The syndics of the bankruptcy are, however, compelled to hand to the Minist6re Public the documentSj titres (securities), papers, and infor- mation which may be demanded from them. Art. 603. — The documents, titres and papers de- manded, delivered by the syndics, will be, during the course of the examination of the matter, detained at the grefiler's office. They can be seen upon the application of the syndics, who can take private extracts therefrom, or require certified copies thereof, such copies to be made by the greffler. The 414 CODE OF COMMEECE (bANKEUPTCt). documents, titres and papers, of which the judicial deposit has not been ordered, shall be, after the judgment, handed to the syndics, who will give a receipt for the same. TITLE III. OF THE REINSTATEMENT OP THE BANKRUPT. Art. 604.— The bankrupt who has paid in full, principal, interest, and expenses, and all sums due by him, can obtain his reinstatement ; but cannot obtain it, if he is a partner in a com- mercial firm in bankruptcy, until he has proved that all the debts of the firm have been fully paid, in principal, interest, and expenses, although a special concordat may have been granted to him personally. Art 605. — Every demand for reinstatement shall be addressed to the Court of Appeal in the district in which the bankrupt is domiciled. The applicant must join to his petition his receipts and other proofs. Art. 606. — The Prociireur G^n^ral attached to the Court of Appeal, having perused the petition and evidence, will address certified copies thereof to the Procureur de la R6publique and to the presi- dent of the Tribunal of Commerce of the domicil of the applicant ; and if the latter has changed his domicil since the bankruptcy, to the Procureur de la R6publique and to the president of the Tribunal de Commerce of the district in which such change has taken place, and shall require them to furnish all information in their power upon the facts con- tained in such petition, &c. Art. 607.— To this eflfect, by the act of the Pro- cureur de la R6publique or the president of the Tribunal of Commerce, a copy of the said petition shall be by them published or posted during two months in the salle d'audience of each Court, as REINSTATEMENT OF THE BANKRUPT. 415 also in the Bourse and town-hall, and an extract thereof shall be inserted in the public newspapers. Art. 608.— Any creditor who has not been fully- paid his claim in principal, interest and expenses,, and any other interested party, can, during the period of the publication, lodge opposition to the reinstatement of the bankrupt, by simply leaving a document at the grefFe, with documents justifying his opposition. The creditor opposing can take no part in the proceedings for reinstatement. Art. 609. — After the expiration of two months, the Procureur de la K6qublique and the president of the Tribunal of Commerce shall transmit, each separately, to the Procureur Gr6n6ral of the Court of Appeal the information which they may have been able to obtain and any oppositions which they may have received. They will join thereto their own opinion on the petition. Art. 610. — The Procureur G6n6ral attached to the Court of Appeal will have judgment given rejecting or admitting the petition for reinstate- ment. If the petition is rejected, it cannot be renewed before another year. Art. 611. — The judgment deciding reinstatement shall be transmitted to the Procureur de la BS- publique and to the presidents of the tribunals to which the petition shall have been presented. These tribunals will have such judgment read in public, and transcribed upon their registers. Art. 612.— Fraudulent bankrupts, persons con- demned for theft, swindling, or abuse of confidence, stellionataires, guardians, administrators, and other accountants, not having rendered or settled up their accounts, cannot be adm.itted to be reinstated; but a banqueroutier simple, having suflFered the punish- ment to which he has been condemned, can be admitted to reinstatement. Art. 613.— No bankrupt trader can be admitted upon the Bourse unless he has obtained his rein- statement. Art. 614.— A bankrupt can be reinstated after his death. BOOK IV. or COMMERCIAL JURISDICTION. Ijafr decreed on the 14th September, 1807, and promulgated on the 24th. TITLE I. OF THE ORGAWISATIOIf OF TRIBUNALS OF COMMEBCE. Art. 615.— The number of Tribunals of Commerce and the towns in which they shall sit shall be decided by a r^glement d' administration publique, in pro- portion to the extent of the commerce and industry of such towns. Art. 616.— The district of each Tribunal of Com- merce will be the same as that of the Tribunal Civil in which jurisdiction it is situate. If there are several Tribunals of Commerce in the jurisdiction of a single Tribunal Civil, each of them will be assigned special districts. Art. 617.— Each Tribunal of Commerce is com- posed of a presiding judge and of deputy judges. The number of judges cannot be less than two nor more than fourteen, not including the President. The number of deputy judges will be proportioned lo the requirements of the business. A r^glement d'administration publique will decide OKGANISATION OF TRIBUNALS OF COMMERCE. 417 the number of judges and of deputy judges in each, tribunal. Art. 618.— The members of the Tribunals of Com- merce are nominated by a meeting of electors chosen from well-known traders recommended by their probity, their love of order and economy. Directors of limited Companies, of financial and industrial enterprises, stockbrokers, captains of ves- sels undertaking long voyages, and captains of coasting vessels having actually commanded vessels during five years, and domiciled since two years in the district of the tribunal, can be admitted to such meetings. The number of electors shall be equal to one- tenth of the traders inscribed upon the list of tax- payers. They cannot exceed 1,000 nor be less than 50, In the district of the Seine the number is 3,000. Art. 619.— The list of electors will be drawn up by a commission composed as follows: — 1. Of the president of the Tribunal of Commerce, who will preside, and of a judge of the Tribunal of Commerce. At the first election following the establishment of a tribunal, the president of the Tribunal Civil, and a judge of the same tribunal, shall take part in the commission. 2. Of the president and of a member of the Cham- ber of Commerce. If the president of the Chamber of Comerce is at the same time president of the tribunal, another member will be called upon. In towns in which no Chamber of Commerce exists, the president and a member of the consulting Chamber des Arts et Metiers will be admitted. In default of such, a conseiller municipal will be chosen. 3. Of three conseillers gSn^raux, chosen as much as possible from among the members elected in the canton of the jurisdiction of the tribunal. 4. Of the president of the conseil des prud- hommes, and if there are several, the oldest of the presidents. In default of the conseil des prud- £ E 418 CODE OP COMMEECK. bommes, the juge-de-paix or the most aged of the juges-de-paix of the town in which the tribunal sits will be called upon. 6. Of the mayor of the town in which the tribunal flits, and at Paris the president of the conseil municipal. The judges of the Tribunal of Commerce, the members of the Chamber of Commerce, the judge of the Tribunal Civil, the conseillers gdn^raux, and the conseillers municipaux in the cases provided by the preceding paragraph, are elected by the Ijodies to which they belong. Each year a commission fills up the vacancies arising from deceases or legal incapacity which may have occurred since the last revision. The commis- sion will add to the list all beyond the number of electors fixed by Art. 619, the former members of the Chamber and Tribunal of Commerce, and the former members of the conseil des prudhommes. 7he following parties cannot be inserted on the list, nor take part in the election, even if they have Tseen called upon, viz :^— 1. Individuals condemned to certain punishments, v^iz., criminal penalties pronounced by juries, or punishments decreed by the correctional Courts either in regard of facts qualified as crimes by law, or for the misdemeanour of theft, swindling, abuse of confidence, usury, indecent assault or smuggling, when the conviction for the last misdemeanoiir has lieen at least one month's imprisonment. 2. All individuals condemned for infringement of the laws relating to gambling, lotteries and estab- lishments lending money upon security. 3. Individuals condemned in respect of mis- demeanours provided for by Arts. 413, 414, 419, 420, 421, 423 and 430, paragraph 2 of the Penal Code, and Arts. 696 and 597 of the Code of Commerce. 4. Public o£Q.cials who have been dismissed from their functions. 6. Undischarged bankrupts, and generally, all OEGANISATION OP TRIBUNALS OF COMMERCE. 41^ l)eTsons who are prevented from voting at legal elections. The list shall be sent to the pr^fet, who will have it published and advertised. A copy signed by the president of the Tribunal of Commerce shall be 'deposited at the greffe of the Tribunal of Commerce. Any licensed trader of the district has the right of perusing and at all times demanding the removal of electors who are situated in any of the cases of incompetence above-mentioned. Such action shall be brought without expense in civil Courts, and the chamber of the council will pronounce its decision relating thereto. Should there be an appeal, the ■Court of Appeal will give its decision in the same ibrm. Art. 620. — Any trader, director of a limited Company, stockbroker, captain of a vessel under- taking long voyages, and master of a coasting vessel, inscribed upon the list of electors or being in the position required to be so inscribed, can be appointed judge or deputy-judges if he is aged thirty years, if he is inscribed upon the list of licensed traders for Ave years, and domiciled at the iiime of the election within the jurisdiction of the tribunal. Former traders and stockbrokers can be elected if they have carried on their business for the same period. No person can be named judge unless he has been a deputy-judge. The president can only be elected from amongst the former judges. Art. 621.— The elections shall take place by ballot as regards the judges, and the deputy-judges altogether on a single list, and by special ballot as regards the president. In the event of it being necessary to elect a president, the special object of such election shall be announced before proceeding to ballot. The elections shall take place in the town in w^hich the Tribunal of Commerce is situated, under E £ 2 420 CODE OF COMMERCE. the presidence of the mayor of the chief town or place in which the tribunal is situated, assisted by four assessors, who must be two of the youngest and two of the oldest electors present. The electors must be convened within the first 16 days of December by the pr6fet of the district. At the first turn of the ballot, no person shall be- elected if he has not secured one-half and one over of the suf&ages, and a number equal to one-fourth of the number of the electors inscribed upon the- list. At the second turn, which shall take place eight days afterwards, a relative majority will be sufllcient. The duration of each ballot to be two hours at least. The report shall be drawn up in triplicate, and the president will send one copy to the pr6fet and another to the Prooureur G6n6ral. The third shall be deposited at the gre£fe of the tribunal. Any elector can, within five days after the elec- tion, attack the same before the Court of Appeal, which will decide summarily and free of expense to the parties. The Procureur G6n6ral has 10 days within which he may demand to have the election declared void. Art. 622. — At the first election the president and. half the judges and deputy-judges of which the tribunal is composed will be elected for two years. The second half of the judges and of the deputy- judges will be elected for one year. At the subsecLuent elections all nominations will be for two years. All the members included in one single election will be submitted simi}ltaneously to periodical re- election, although ohe.. pr more may not have exercised his or their functions during the legal periods in consequence of delay in their appoint- ments. Art. 623.— The president and the judges retiring from their functions after two years can be re- elected immediately for two further years. This ORGANISATION OF TRIBUNALS OP COMMEECE. 421 further period being unexpired, they can only be re-elected at the expiration of another year. Any member elected in the place of another, consequent upon death or any other cause, can only remain in office for the period appertaining to his predecessor. Art. 624. — A greffler and a huissier appointed i)y Government will be attached to each tribunal. Their rights, attendances, and duties will be fixed Tby a r^glement d' administration publique. Art. 625. — Gardes de commerce will be ap- pointed fbr the city of Paris only, for the execution of judgments requiring arrest. The form of their organisation and their duties will be fixed by special regulations. (This Article is repealed by ithe law abolishing the contrainte par corps.) Art. 626. — Judgments in the Tribunal of Com- merce must be rendered by three judges at least. No deputy-judge can be called upon except to complete such number. Art. 627. — The services of avou6s are not em- ployed in the Tribunals of Commerce, pursuant to Art. 414 of the Code of Procedure Civile. No person can plead for any party before these tribunals, unless authorised by the party himself being present at the hearing, or unless provided -with a special power of attorney.. This power, which can be given at the foot of the original copy writ, must be handed to the greffier before the case is called on, and must be countersigned by him Sree of expense. In cases befbre the Tribunals of Commerce no liuissier can take part therein as counsel, nor represent the parties by power of attorney, under penalty of a fine of from 25 fs. to 50 fs., which will .be pronounced without appeal by the tribunal, and without prejudice to the penalties of discipline to which huissiers are subject. These provisions do not apply to huissiers who are in the positions pro- vided by Art. 86 of the Code of Civil Procedure. 422 CODE OF COMMEECE. Art. 628.— The functions of the judges in the Tribunal of Commerce are honorary. Art'. 629.— They must take the oath, before entering upon their duties, before the Court of Appeal, when such Court sits in the district in which the Tribunal of Commerce is established; but in the contrary case, the Court of Appeal can order, if the judges of the Tribunal of Commerce demand it, that the oaths can be received by the Tribunal Civil of the district, and in this case the tribunal will draw up a report and send it to the Court of Appeal, which will order it to be inscribed upon its registers. These formalities will be com- plied with, on the application of the Ministdre Public, and without expense. Art. 630. — The Tribunals of Commerce are sub- ject to the jurisdiction and the control of the Minister of Justice. TITLE II. JITRISDICTIOir OF THE TRIBUNALS OP COMMEBCE. Art. 631.— Tribunals of Commerce may entertain the following, viz. : — 1. Contestations relative to engagements and transactions between merchants and bankers; 2. Contestations between partners in relation to trading enterprises ; 3. Contestations relating to acts of commerce between all persons. Art. 632.— The law considers the following as acts of commerce, viz. :— 1. Any purchase of produce and merchandise for re-sale, either in kind, or after having been worked, or even the letting out on hire of the same ; 2. Any enterprise of manufactures, commission, or carriage by land or by water ; .3. Any enterprise or undertaking to supply goods. JURISDICTION OF TEIBUNALS OF COMMEECE. 423 agencies, commission agencies, establishments for sales by auction, and public amusements ; 4. All operations relating to exchange, banking, and commission ; 5. All operations of public banks ; e. All obligations between traders, merchants and bankers, and- bills of exchange, and the remit- tance of money from one place to another, as re- gards all persons. Art. 633.— The law considers the following also as acts of commerce : — Any undertaking for the building, and all pur- chases, sales and re-sales, of ships for interior and exterior navigation; All maritime expeditions ; All sales or purchases of stores and rigging for ships; All freight, bottomry, and respondentia ; All assurance, and other contracts concerning seafaring transactions ; All agreements and arrangements in relation to wages and the hire of ships ; All engagements of crews for the service of mer- cantile vessels. Art. 634. — The Tribunals of Commerce have also jurisdiction in relation to the following :— 1. Actions against factors, clerks, traders, or their agents, in relation to the business of the trader ; 2. Negotiable instruments subscribed by re- ceivers, paymasters, collectors, or other public Government accountants. Art, 635. — Tribunals of Commerce have juris- diction of all that relates to bankruptcies, pursuant to the descriptions of book iii. of the present code. Art. 636. — In the case in which bills of ex- change are considered as simple promises only, by the terms of Art. 112, or when promissory notes bear the signatures of non-traders only, or have not been made in relation to commercial operations, exchange, banking, or commission, the Tribunal 424 CODE OF COMMEECE. of Commerce must refer such cases to the civil Courts, if so required by the defendant. Art. 637. — When such bills of exchange and promissory notes bear at the same time signatures of traders and of non-traders, the Tribunal of Com- merce has jurisdiction, but it cannot order the arrest of individuals not being traders, unless they enter into engagements in relation to commercial acts, exchange, banking or commission. (The last part of this Article is repealed by the law abolish- ing contrainte par corps.) Art. 638. — The following are not within the juris- diction of the Tribunals of Commerce, viz. :— Actions brought against a landowner, agricul- turist, or wine-grower, for the sale of produce arising from the soil cultivated by him ; actions against traders for payment of produce and mer- chandise bought for their private use. Nevertheless, bills of exchange given by a trader, are reputed to be given in relation to his business ; and those of receivers, paymasters, or other public Government accountants are reputed to be given in relation to their of9.cial capacity, unless the contrary appear upon the documents themselves. Art. 639. — The judgments of the Tribunal of Commerce are final in the following cases :— 1. When the parties subject to such tribunals have voluntarily declared that the case shall be decided definitively and without appeal ; 2. As regards all claims, of which the principal does not exceed the value of 1,500 francs ; 3. Counterclaims and claims of set-off, which, although added to the principal sum, would exceed 1,500 fs. If one of the principal claims or counter- claims amounts to more than such sum, the tribunal can only decide as regards them as a Court of First Instance. Ifevertheless, it can decide definitively only upon claims for damages, when they are exclu- sively based upon the principal demand itself. Art. 640.— In the districts where there are no KULES OP PEOCEDUEE. 425 Tribunals of Commerce, the judges of the Tribunal Civil will exercise their functions, and have juris- diction over the matters appertaining to the com- mercial judges by the present law. Art. 641.— The procedure in such case will take place in the same form as before the Tribunals of Commerce, and judgments will produce the same effects. TITLE III. OP THE FORM OF PROCEEDING BEFORE TRIBUNALS OF COMMERCE. Art. 642. — The form of proceeding before Tri- bunals of Commerce will be followed according to the rules contained in title xxv. book ii., first part of Code of Procedure Civile, Art. 643.— Notwithstanding, Arts. 156, 158, and 159 of the same Code, relating to judgments by default rendered by the lower tribunals, will be applicable to judgments by default rendered by Tribunals of Commerce. Art. 644.— Appeals from judgments of the Tribu- nals of Commerce must be made to the Courts of Appeal in the district in which such Tribunals of Commerce are situated. TITLE IV. OF THE FORM OF PROCEEDING BEFORE THE COURTS OF APPEAl.. Art. 645.— The period for appealing from judg- ments of the Tribunals of Commerce is two months, dating from the day of the signification of the judg- ment in relation to cases in which decisions have been rendered after both parties have been fully heard, and from the day of the expiration of the time for entering opposition as regards judgments by default. The appeal can be lodged the same day as the judgment. 426 CODE OV COMMEJJCE. Art. 646.— In all cases in which the sum in dis- pute does not exceed the limits fixed by Art. 639 in relation to final judgments, appeals shall not be permitted, notwithstanding that the tribunal should have omitted to qualify such judgments as final; and even if it be, in error, stated that the judgment is rendered subject to appeal. Art. 647.— The Courts of Appeal cannot, in any case, under penalty of nullity, and even of damages to the parties, if the case arise, forbid the execu- tion of judgments rendered by the Tribunal of Commerce, nor even order that execution thereof shall be delayed, even in case of such judgments being attacked upon the ground of jtirisdiction, but the Court of Appeal can, in urgent cases, grant leave to bring the case specially before the Court upon the day and hour to be fixed for the hearing of the appeal. Art. 648.— Appeals from judgments of Tribunals of Commerce will be adjudicated upon in the same manner as appeals from judgments relating to affaires sommaires. The procedure until and including the final appeal judgment will be similar to that prescribed for appeals in civil cases contained in book iii. of part i. of the Code of Civil Procedure. lEnd of tlie " Code of Commerce."^ TEXT or SUNDRY GENERAL LAWS PASSED SINCE THE CODE OF COMMERCE. THE LAW OF 2#h-29th JULY, 1867. ON COMPANIES AND PARTNERSHIPS. , TITLE I. Of Soci^iis EN Commandite ditided into Shares.* Art. 1. — Societes en commandite cannot divide their capital into shares or coupons of shares of less than 100 fs., when the capital does not exceed 200,000 fs., and of less than 500 fs.. when the capital exceeds the above amount. They are not definitely formed until the whole of the- capital has been subscribed, and at least one quarter of each share actually paid up. The aforesaid subscription and. pay- ments shall be sworn to by the manager before a notary.. To the deposition shall be annexed — the list of subscribers, a statement of the amount paid up, the agreement under which the stock Company is formed, executed in duplicate, if the same be sous seing prive ; and a certified copy thereof, if it be a notarial deed, executed before a notary other than the one- before whom the deposition is made. The deed sous seing- prive, whaterer may be the num.ber of parties thereto, must. * See Commentary in the present -work. 428 LAW OP PAETNERSHIPS AND COMPANIES. be executed in duplicate, one of whict shall be annexed, as explained in the preceding paragraph, to the deposition setting iorth the subscription of the capital and the payment of the ■one-fourth, and the other of which shall be deposited at the oflSce of the Societe. Art. 2. — The shares or share coupons are negotiable after the payment of one-fourth. Art. 3. — ^A stipulation may be made, but it must be ■set forth in the agreement under which the Company is formed, that the shares or share coupons may, after one-half has been paid up thereon, be converted, by a resolution of a general meeting, into shares payable to bearer. Whether the shares remain payable to order after such resolution, or whether they become converted into shares payable to bearer, the original subscribers who transferred the same, and the transferees to whom such transfers were made, before the payment of the one-half, remain liable for the whole amount payable on the shares for the space of two years from the Tesolution of the general meeting. Art. 4. — ^When a membeB contributes to the concern an appm-i which does not consist of cash, or which consists of a personal privilege, the first general meeting shall estimate the value of the apport and the personal privilege contributed. The Company is not definitely constituted until after the approbation of the appoi-t, by a resolution of another general meeting convened for the purpose. The second general meeting cannot approve the same until a report has been printed and placed at the disposal of the shareholders five days at least before the said meeting. The resolutions may be passed by a majority of the shareholders present. This majority must consist of one-fourth of the shareholders, and represent one-fourth of the capital paid up in cash. Members who have brought in an apport or personal privilege to be submitted to the examination of the meeting cannot vote. In default of approbation, the Articles of Asso- ciation become of no effect as regards all parties. Approbation as above forms no obstacle to the subsequent institution of proceedings in case of fraud. The clauses of the present Article relating to the approval of the apport not consisting in cash, are not applicable in the case of a Company to which the said apport is made, when such Company is exclusively com- posed of parties who were already joint-proprietors thereof. SOCIjfiT^S EJI COMMANDITE PAE ACTIONS. 429 Art. 5.— A committee of inspection, composed of at least three shareholders, shall be appointed in every Societe en commandite par actions. This committee shall be appointed by the general meeting of shareholders immediately after the' definite formation of the Societe and before the commencement of its business. The committee is subject to re-election at the periods and upon the conditions set out in the Articles of Asso- ciation. In any case, however, the first committee cannot act for more than one year. Art. 6. — The first committee must, immediately upon its appointment, examine if all the provisions contained in the preceding Articles have been complied with. Art. 7. — Every Societe en commandite par actions, con- stituted contrary to the provisions of Arts. 1, 2, 3, 4 and 5 of the present law shall be void and of no effect as regards: the parties interested therein. This section cannot, however, be set up as a defence against third parties. i Art. 8. — "When the Articles of Association are annulled, pursuant to the preceding Article,' the members of the first committee of inspection may be declared responsible, together with the manager, for all damages resulting therefrom to the Company or to third parties. The same liability attaches to the members whose apports or personal privileges - shall not have been approved pursuant to Art. 4. Art. 9. — The members of the committee of inspection incur no responsibility in relation to acts of administration or the results thereof. Each member of the committee of inspec- tion is liable for his own default in relation to the carrying out of his duties according to the general rules of law. Art. 10. — The members of the committee of inspection shall verify the books, cash bills, drafts, and other securities of thp Societe. They shall draw up every year for the general meeting a report, in which they shall point out any irregularities or omissions which they may have found in the inventories, and state, should there be occasion, what difficulties exist as t* the payment of the dividends proposed by the gerant. The shareholders cannot be called upon to reimburse dividends which they may have received, unless such dividends have been paid without drawing up an inventory, or without refer- ence to the position of affairs as shown by the inventory. Actions for return of dividends as above are barred after the' 430 LAW or PAETNEBSHIPS AND COMPANIES. lapse of five years from the day fixed for the distribution of the dividends. Limitations which have commenced to run at the time of the promulgation of the present law, and which, according to the old laws, do not expire within five years therefrom, shall come within the present law, and bar actions within the time prescribed therein. Art. 11. — The committee of inspection may call a general meeting, and pursuant to resolution passed thereat, may wind up the Company. Art. 12. — Fifteen days at least before the date of the general meeting every shareholder may, either by himself or his agent, inspect, at the principal ofiBce of the Company, the balance-sheet, inventories, and report of the committee of inspection. Art. 13. — The issue of shares, or share coupons, of a Societe constituted- contrary to the provisions of Arts. 1, 2, and 3 of the present law, is punishable by a penalty of from .500 to 10,000 fs. The same penalties are applicable as follows : — To the manager who commences operations before the committee of inspection enter upon their functions; parties who, by representing themselves as holders of stock which does not belong to them, have created a fictitious majority at a general meeting, without prejudice to any action for damages to which they may be liable towards the Societe or third parties; shareholders who have sought to make a fraudulent use of their shares. In the cases provided for in the two preceding Articles, the penalty of imprisonment of from 15 days to six months may be inflicted. Art. 14. — The negotiation of shares, or of share coupons, the value or form of which are contrary to the provisions of Arts. 1, 2 and 3 of the present law, or in respect of which the payment of one-fourth has not been made pursuant to Art. 2 above mentioned, is punishable by a penalty of from 500 to 10,000 fs. Parties who have participated in the negotiation or issuing of the said shares are punishable by the same penalties. Art. 15. — The following are liable to the penalties pre- scribed by Art. 405 of the Penal Code, without prejudice to the application of that Article to all acts constituting the misdemeanour of escroquerie (swindling): — 1st. Parties who, SOCl^TES EN COMMANDITE PAll ACTIONS. 431 under pretence of subscription or payment of calls, or by fraudulent publication of subscriptions or payments which have not been made, or by other fraudulent acts, have obtained, or sought to obtain subscriptions or payments upon shares ; 2nd. Those who, in order to attract subscriptions or payments, bave fraudulently and falsely published the names of persons as being or about to become connected with the concern in any capacity whatever. 3rd. The gerants who, without drawing up inventories, or by means of false inventories, have paid fictitious dividends to the shareholders. The members of the committee of inspection are not civilly responsible for offences committed by the managers. Art. 16. — Art. 463 of the Penal Code* is applicable to the cases mentioned in the three preceding Articles. Art. 17. — Shareholders representing one-twentieth at least of the capital can, in the common interest, depute at their expense one or more agents to institute suits against, or defend suits by, the managers or committee of inspection, and to represent them in Courts of justice and otherw^ise, without prejudice to the right of each shareholder to bring actions in Lis own name. Art. 18. — Companies existing before the Law of 17th July, 1856, and which have not complied with Art. 16 of this law, must within six months appoint a committee of inspectiou in conformity with the preceding provisions. In default of the appointnxent of the committee of inspection •within the period above mentioned, every shareholder has the right to have the Company dissolved. Art. 19. — Societes en commandite par actions, formed pre- viously to the present law, which can by their statutes be transformed into Societes anonymes authorised by the Govern- ment, can be converted into Societes anonymes upon the conditions specified in chap. ii. of the present law, by com- plying with the clauses xjontaiued in the statutes relating to the transformation. Art. 20.— The Law of the 17th July, 1856, is hereby repealed. • Art. 463 of the Penal Code provides for the diminution of penalties when extenuating circumstances are admitted hy the jury or by the Court. 432 LAW OF PAETNEESHIPS AND COMPANIES. TITLE II. Of Soci^T^s Anonymes. Art. 21. — Societes anomjvies can henceforward bo formed without the authorisation of the Grovemment. They can be constituted, whatever may be the number of members, by a deed sous seing prive,. executed in duplicate. Societes anonymes are subject to the provisions of Arts. 29, 30, 32, 33, 34, and 36 of the Code of Commerce, and to the enactments contained in the present chapter. Art. 22. — Societes anonymes shall be conducted by one or more managers appointed for a certain time ; they are revokable, whether salaried or otherwise, and chosen from amongst the members. These managers may elect a director from amongst them, or if the statutes permit it, appoint a person unconnected with the Societe, but for whose acts they reihain responsible. Art. 23. — No Company can be constituted with a number of members less than seven. Art. 24. — The provisions of Arts. 1, 2, 3 and 4, of the present law apply to Societes anonymes. The depositions required of the manager by Art, 1 shall be made by the founders (promoters) of the Societe anonyme, and shall be submitted, together with the documents in support thereof, to the first general meeting, which shall examine into its correctness. Art. 25. — A general meeting shall be, in all cases, convened by the promoters subsequent to the deposition proving the subscription of the capital, and the payment of the fourth in cash. This meeting appoints the first directors ; and also, for the first year, the auditors mentioned in Art. 32, infra. The directors cannot be appointed for more than sir years : they are re-eligible, unless it be provided to the con- trary. They can, however, be appointed by the Articles of Association, with a formal stipulation that their appointment shall not be submitted to the approval of the general meeting. In the latter case they cannot be nominated for more than three years. The report of the meeting must set forth that the directors and auditors present at the meeting have accepted the offices tendered. The formation of the Company dates- from such acceptance. SOCI^T^S AXOJfTMES. 43S Art. 26. — ^The directors must own a certain number of shares provided for by the statutes of the Corporation. These shares shall constitute a security against the acts of the board of directors, even as regards acts appertaining personally to any one of the directors. They shall be made out to the name ■of the owner, and be inalienable, marked with a stamp denoting their inalienabiUty, and deposited with the Company. Art. 27. — A general meeting shaU be held, at least once in each year, at the time fixed in the A.rticles of Associa- tion. The sta;tiites determine the number of shares that must be held, either as holdei- or as agent, for admission to the Tueeting, and the number of votes belonging to each share- holder, in proportion to- the number of shares held by him. Nevertheless, in the general meetings convened to verify the " appoHs" to appoint the first directors, and to examine the depositions of the promoters of the Society, prescribed in the second paragraph of Art. 24, every shareholder, whatevei- may be the number of shares he possesses, may take part in the meeting with the number of votes accorded to him by the statutes ; but he may not, in any case, use more than ten votes. Art. 28. — In all general meetings resolutions are passed by the majority of votes. A list of the members present is di-awii up, containing their names and addresses and the number of shares held by each. This list, certified by the chairman ef the meeting, must be deposited at the offices of the Societii and be open to the inspection of all persons entitled to demand the same. Art. 29.— General meetings having to deal with matteix other than those provided for in the two following Articles, must be composed of a number of shareholders, representing a quarter at least of the capital of the undertaking. If the general meeting does not fulfil this condition, a further meeting must be called, with the formalities and within the time mentioned in the statutes, and this latter meeting can pass valid resolutions, whatever may be the proportion of capital represented by the shareholders present. Art. 30. — ^Meetings for the purpose of approving con- tributions other than cash, of appointing the first directors,- and of examining the deposition made by the promoters? according to the terms of paragraph 2 of Art. 24, must bo composed of a number of shareholders representing ono-haM at least of the capital. The capital, of which the half must 434 LAW OP PAETNEESHIPS AND COMPANIES. bo represented for the approval of the apport, shall be com- posed only of apporta that do not require to be submitted to examination. If the general meeting is not composed of a number of shareholders representing one-half of the capital, it can only pass provisional resolutions. In this case a further meeting must be called. Two notices shall be published at eight days' interval, at least one month in advance, in one of the journals appointed for the insertion of legal advertisements, in order to advise the shareholders of the provisional resolu- tions passed at the first meeting, and these resolutions shall become final if they are confirmed by the new meeting, if com- posed of a number of shareholders representing one-fifth at least of the capital of the corporation. Art. 31.— Meetings which have to decide upon amende ments to the statutes, or upon propositions to carry on the undertaking beyond the period fixed for its existence, or tO' dissolve the Company before such term, are not regularly con- stituted and cannot pass valid resolutions, unless they are composed of a number of shareholders representing one-half at least of the capital. Art. 32, — The annual general meeting shall appoint one or more Gommissaires,* shareholders or otherwise, to prepare a report for the general meeting of the following year upon the financial condition of the corporation, the balance- eheet, and the accounts presented by the directors. A resolu- tion approving the balance-sheet and accounts is void unless it has been preceded by the report of the commissaires. In default of appointment of the commissaires by the general meeting, or in case of prevention or refusal of one or more of the commissaires appointed to act, the president of the Tribunal of Commerce of the principal office of the Societe shall proceed to appoint the same upon the petition of any party interested, the directors being duly convened. Art. 33. — During the three months preceding the period fixed by the statutes for the holding of the general meeting, the commissaires have the right, whenever they deem it expedient in the interest of the Societe, to examine the books and investigate its operations. They can at any time, in case of urgency, call a general meeting. * Commissaires. See Dictionary. soci]St^s anonymes. 435 Art. 34. — Every SocUte anonyme shall draw up, every six months, a summary statement of its assets and liabilities. This statement shall be placed at the disposal of the cmrvmis- saires. An inventory must also be drawn up every year, pur- suant to Art. 9 of the Code of Commerce, containing a list of the real and personal securities, and of all the assets and liabilities of the Soeieie. The inventory, the balance-sheet, and the account of profit and loss shall be handed to the com' missaires four days at latest before the general meeting, and the same shall be presented to the meeting. Art. 35. — ^During 15 days at least before the .holding of the general meeting, every shareholder can inspect, at the principal office, the inventory and the list of shareholders, and obtain a copy of the balance-sheet containing a summary of the inventory, and of the report of the cmnmissaires. Art. 36. — One-twentieth at least of the nett profits must be set aside every year to form a reserve fund. The above deduction shall be no longer compulsory when the reserve fund amounts to one-tenth of the capital. Art. 37. — In case of the loss of three-fourths of the capital, the directors must call a general meeting of all the shareholders, to decide as to the expediency of winding up the Company. The resolution of the meeting must, in every case, be made public. In case the directors fail to call a general meeting, and also in case it is not possible to obtain a quorum, any party interested can apply to the Court to dissolve the corporation. Art. 38. — The winding up may be ordered upon the petition of any party interested, when one year has elapsed since the date at which the number of members became reduced to less than seven. Art. 39. — Art. 17 applies to Societes anonymes. Art. 40.-r-The .directors are prohibited from receiving any interest, directly or indirectly, in any undertaking or transaction entered into by, with, or on account of the Societe, unless with the sanction of the general meeting. A special account must be rendered to the general meeting each year of the carrying out of the undertakings or transactions so autho- rised in the terms of the preceding paragraph- Art. 41. — Every Societe anonyme which has not com- plied with the provisions of .Arts. 22, 23, 24 and 25, above F F 2 436 LAW OP PAETNEESHIPS AND COMPANIES. ■mentioned, is void and of no effect as regards the members .thereof. Art. 42. — When the Company has been dissolved, or the acts and resolutions thereof have been pronounced void, pursuant to the preceding Article, the promoters, whose default has occasioned the same, and the directors in office at •the time, are jointly and severally liable to third parties, with- out prejudice to the rights of the shareholders. The same liability attaches to these members whose apports or privileges have not been approved pursuant to Art. 24. Art. 43. — ^The extent and effects of the liability of the commissaires to the Societe are determined according to the general rules legally applicable to agents. Art. 44. — The directors are liable, individually, or jointly and severally, to the Societe, or to third parties, accord- ing to the general rules of law, either for infringements of the provisions of the present law, or for faults committed by them in their management, especially for distributing, or allowing to be distributed, dividends that are fictitious. Art. 45. — ^The provisions of Arts. 13, 14, 15 and 16 of the present law apply to Societes anonymes, without dis- tinction between those actually existing and those constituted pursuant to the present law. Directors who, in the absence of an inventory, or by a false inventory, have disti'ibuted •fictitious dividends, incur the penalties enacted by Jfo. 3 of Art. 16 relating to managers of Societes en commandite. The last three paragraphs of Art. 10 are also applicable to Societes anonymes. Art. 46. — Societes anonyines which are in existence at the date of the present law, shall, for their entire duration, be subjected to the provisions which now govern them. They can be changed into Societes anonymes within the terms of the present law by obtaining the authorisation of the Groveniment, and complying with the forms prescribed for the modification of their statutes. Art. 47. — Limited Liability Companies can be converted into Societes anonymes within the terms of the present aw, by conforming to the rules drawn up for the modification of their statutes. Arts. 31, 37 and 40 of the Code of Com- merce, and the Law of 23rd May, 1863, upon Limited Liability ■Companies, are hereby, repealed. . COMPANIES WITH VARIABLE CAPITAL, 43^ TITLE III. Special Provisions relating to Socii5tes with variable Capital. Art. 48. — ^A stipulation can be made in tlic statutes of every Societe that, the capital may be increased by succes- sive payments made by the members, or by the admission of new shareholders," or be diminished by the total or partial withdrawal of the appoi-ts contributed. Societes whose statutes contain the above stipulation are subject to the following clauses, irrespective of the general rules applicable to them according to their special constitution. Art. 49. — The capital shall not be fixed by the original statutes of the Societe at more than the sum of 200,000 fsi It may be increased by a resolution of a general meeting, year after year; each increase shall not exceed 200,000 fs. Art. 50. — The shares or share coupons shall be nomU native, even when fully paid up; they cannot be less than 50 fa. in value. They are not negotiable until after the definite constitution of the Societe. The negotiation of them can only take effect by means of transfers inscribed in the books of the Societe, and the statutes can give, either to the board or to the general meeting, the right to refuse such transfer. Art. 51. — The statutes shall fix an amount beneath which the capital must not be reduced by the withdrawal of the apports authorised by Art. 48. The above amount must not be inferior to one-tenth of the capital. The Societe sh»ll not be deemed definitely constituted until one-tenth be paid up. ' Art. 52. — Every member can retire from the Societe whenever he thinks fit, unless there are stipulfitions to the contrary, and unless such withdrawal would be in violation of paragraph 1 of the preceding Article. It may be stipulated that the general meeting shall have the right to decide by the majority fixed for the modification of the statutes, that one or more of the shareholders cease to belong to the Societe, A member ceasing to belong to the Societe, either by his own will or by decision of the general nfieeting, shall remain liable during five years to the shareholders and to third parties for all obligations entered into by him, and existing at the time of his withdrawal. 438- LAW OP PABTNEESHIPS AND COMPANIES. Art. 53. — ^The Sodete, whatever, may be its form, may be legally represented in Coiirts of laW by the directors. Art. 64.— The Sodete shaU not be dissolved by the death, withdrawal, inter tion shall not reserve to the party registering an exclusive right for more than 15 years. Art. 35. — ^Patterns or models previously deposited at the archives of the conseils de pnidlw^nmes, or at the clerks' office of the civil Courts, shall be transported to the clerk's office of the Tribunal of Commerce having jurisdiction. The specimens of models shall immediately be made public, patterns shall be made public one year after the expiration of the term fixed by Art. 34. Art. 36. — In case the depositor, at the moment of the deposit of his pattern or model, shall have claimed to reserve the exclusive property in himself, the length of time during which he shall be entitled to exclusive property shall be- reduced to 16 years, running from the day when the present law shall become executory. However, the depositor shall have the right to obtain a renewal for new terms of 15 years, at the most, by accomplish- ing the formality of declaration required by Art. 4, and paying- the fees specified in Arts. 15 and 16. From the day specified in the first paragraph of the present Article, the depositor shall be liable to have his registration declared void or voidable, according to the provisions of Arts. 21 and 22. Art. 37. — A reglement d' administration pullique shall enact the provisions necessary for putting this present law into execution. Art. 38. — Ordinances rendered in the same manner shall regulate the application of this law to Algiers and the Colonies. Art. 39. — The fees specfied in Art. 16 shall be received by the consul, who shall transmit the specimens either to the clerk of the Tribunal of Commerce of the depositor, or if he has no domicil, to the clerk of the Tribunal of Commerce of the Seine. Art. 40. — ^All prior provisions contrary to the present law, relative to commercial patterns or models, are hereby repealed. 494 LAW UPON MANUFACTUKED GOODS. liAW RELATING TO THE ALTERATION AND FRAUDULENT USE OF NAMES UPON MANU- FACTURED GOODS. Issued the 28th July, 1824. Art. 1. — Every person wh.o shall either affix or cause to appear upon manufactured goods the name of a manufac- turer other than that of the person who is the real manu- facturer of the same ; or the firm name of a factory other than that in which the said goods shall have been manufactured ; or, finally, the name of a place other than that in which the goods shall have been manufactured, either by adding thereto, ■or by taking therefrom, or by alteration of any kind whatever, ■shall be liable to the penalties prcivided for by Art. 423 of the Penal Code, without prejudice to an action for damages, if pounds for such may have arisen. Every merchant, agent, broker or retailer, shall be subject to prosecution if he shall have knowingly exposed for sale, or put into circulation, articles bearing names that have been ■altered or fraudulently used. Art. 2. — The above-mentioned cases of infringement shall no longer be subject to the provisions relating to the infringe- ment of particular marks provided for by Arts. 142 and 143 of the Penal Code, Art. 17 of the Law of the 12th April, 1803, 3iotwithstanding. IMPRISONMENT JTOK DEBT. 495 APPENDIX. Containing provisions of the Civil Law, and various subjects referred to in the preceding Commentary and Text. IMPRISONMENT FOB DEBT. PBIVILEGES. LEGAL MOBTGAGES. JUDICIAL MOBTGAGES. CONVENTIONAL MOBTGAGES. PBESCBIPTION. LIMITATION OF ACTIONS. MABBIAGE CONTEACTS. HUSBAND AND WIPE. COMMUNITY, SEPABATION OP DEBTS. SEPABATION OP PEOPEBTY. DOTAL SYSTEM. PABAPHBBNAtlA.* Imprisonment for debt. The law of July 22nd, 1867, abolishes imprisoumeiit foi- debt in all civil and commercial matters, the benefit of which statute extends to foreigners. It still exists in favour of the State for non-payment of fines, restitutions, and damages adjudged in criminal, con-ectional, and police matters ; but five days' notice must be given before the imprisonment can take place. The same rule applies to fines, restitutions, and damages adjudged in favour of private individuals. In those cases where persons are imprisoned at the instance of private individuals, the latter are obliged to maintain tho debtors while in prison, and maintenance for 30 days at least must be paid in advance. If in Paris, the amount is 45 f s. ; in * Translation of French Civil Code (Longmans), 496 CIVIL LAW. large towns, 40 fa. ; and elsewhere, 35 fs. a month. In default of such payment in advance, the debtor is at once released, and cannot be again imprisoned for the same debt. The duration of such imprisonment is thus regulated: — From two to 20 days, when the fine or penalty does not exceed 60 fs. ; from 20 to 40 days, when over 50 fs. and not exceeding- 100 fs. ; from 40 to 60 days, when 100 fs. and not exceeding 200 fs. ; from two to four months, when over 200 fs. and not exceeding 500 fs. ; from four months to eight months, when over 600 fs. and not exceeding 2,000 fs. ; and from one to two years when above 2,000 fs. ; this is the longest term of imprisonment for such debts. For fines imposed at a police Court, the imprisonment cannot exceed five days. When such prisoners can prove their insolvency, they are released after half of the timie of imprisonment imposed by the judgment. Persons so sentenced may avoid imprisonment by finding responsible sureties, who must pay within a month. A debtor, once released, cannot be again imprisoned in consequence of a previous sentence, unless it was for a longer term, in which case the time he was imprisoned is deducted. A person under 16 years of age cannot be sentenced to imprisonment for debt. A debtor 60 years old is only im- prisoned for one-half of the term fixed by the law. Imprisonment for debt cannot be adjudged against a debtor at the instance of — 1. His or her consort; 2. His or her ascendants, descendants, brothers or sisters ; 3. His uncle or aunt, his great-uncle or great-aunt, his nephew or niece, his grand-nephew or grand-niece, and other relatives in the same degree. Imprisonment for debt -cannot be enforced simultaneously against husband and wife, even when the debts are distinct. A Court of law may, in the interest of minors, children of the debtor, suspend the execution of the sentence of imprison- ment for one year. Of Privileges and Mortgages. (Code Napoleon, Arts. 2,092-2,113.) General Dispositions respecting Privileges and Mortgages. Whoever binds himself personally is, to the extent of all his real or personal property, present and future, bound to fulfil his obligation. The property of the debtor is the common PRIVILEGES AND MORTGAGES. 49?" security of his creditors ; and in the event of a sale, the price- is rateably divided among the creditors, unless among them there is a lawful cause of preference. The legal causes of pre- ference are privileges and mortgages. Privileges. A privilege is a right which confers upon the creditor, by the nature of his claim, a preference over other creditors, even mortgagees. Privileged claims of equal rank are paid rateably. Privileges on account of duties due to the State are regulated by special Acts ; nevertheless, the State cannot obtain privileges to the prejudice of rights previously acquired by third parties. Privileges may be enforced either upon real or personal property. Privileges upon Personal Property. Privileges are either General or Special. General Pkivileges. The claims which are privileged upon moveable property im general are the following, and they take precedence in the- order given: — 1. Law costs; 2. Funeral expenses; 3. Expenses of a last illness ; 4. Servants' wages for the year due and for- the running term ; 5. Debts due for supplies of provisions to- the debtor and his family during the last six months to retail tradesmen, such as bakers, butcher and others, and to school- masters and wholesale dealers for the last year. Privileges on Special Moveables. The privileges which may be enforced upon special moveables are : — 1. For rents of real property ; upon the fruits of the year's harvest ; upon the furniture of the house or farm rented; upon all that is used for the working of the farm — ^that is, to the amount of all that is due, or which may hereafter be due, if the -leases are authentic, or if under private signature, they have a certain date. In these two cases, the other creditors have a right to relet the house or farm for the remainder of the lease, and to receive the benefits of such leases and rents, on condition that they pay to the owner all that remains due to him. In default of authentic- leases, or leases under private signature without a certain date, the privilege remains for one year after the expiration of the current year. The same privilege holds with regard to tenants' repairs, and to all that relates to the performance of E E 498 CITIL LAW. the conditions of the lease. Nevertheless, sums due for seed or for the expenses of the year's harvest are paid from the sale of the harvest, and those due for implements from the sale of such implements, in preference to the landlord in both cases. The landlord, however, may distrain the furniture, -when removed without his consent, and he retains his privi- lege over it, provided he has made his claim within 40 days if it is the furniture of a farm ; if of the furniture of a house, vrithin 15 days. 2. For the claim upon the pledge of which the creditor is in possession. 3. For expenses incurred in the preservation of the thing. 4. For the price of unpaid moveable efiects, if still in the possession of the debtoj', whether bought on credit for a certain or an uncertain time for payment. If the thing has been sold on credit without any fixed time of payment the vendor may claim it while it remains in the possession of the buyer, and thereby prevent its sale, provided that the claim is made within a week of the delivery, and that the thing is in the same condition as when delivered. The privilege of the vendor, however, can only be enforced after that of the landlord of the house or farm, unless it is proved that the landlord, knew that the furniture and other effects in the house or farm did not belong to the tenant. 5. For innkeepers' claims upon the goods of travel- lers brought to his inn. 6. For carriers' expenses upon the thing carried. 7. For claims resulting from misuse and betrayal of trust committed by public officers in the exercise ■of their duties. Privileges upon Beal Property. Creditors having privileges on real property are : — 1. The vendor, upon the estate sold, for the payment of the price. If there are several successive sales, of which the price is due in whole or part, the first vendor is preferred to the second, and the second to the third,- and so on. 2. Those who have supplied money for the purchase of an estate, provided it is legally proved by an authentic deed of loan that the money borrowed was for that purpose, and by the receipt of the vendor that such payment was made with the money borrowed, 3. Co-heirs upon the real property of the succession, as securi- ties of the partitions made between them, of the payment of money to equalise the shares divided, and of the return of the lots to the succession. 4. Architects, builders, masons, and ■others employed on building or repairing houses, canals, or PEIVILBGES. 499 any other work whatsoever, provided that a valuation had heen previously drawn up by a valuer appointed by the Court of First Instance of the place, and that the works had, within six months after completion, been verified by value as like- wise legally appointed; but the privilege cannot exceed the valuation certified by the second valuer, and is reducible to the value of the property at the time of sale. 5. Those who have lent money to pay or reimburse the workmen, provided such advance is proved by an authentic deed of loan, and by the receipt of the workmen. Privileges that apply both to Beal and Personal Property. Privileges that apply both to real and personal property are those enumerated under the title " General Privileges on Personal Property,'' such as law costs, funeral expenses, •expenses of a last illness, servants' salaries, and supply of provisions to the debtor and his family. When, in default of moveables, the privileged creditors above enumerated are paid from realty, concurrently with -creditors who have a privilege upon the estate, the payments are made as follows : — 1. Law costs and those above enumerated. 2. Claims of the vendor and others mentioned under the title ■" Privileges'upon Real Property." How Privileges are preserved. Among creditors, privileges have no effect respecting real property, unless they are at the mortgage office, and then they date from such registration, subject to the following exceptions : Law costs, funeral expenses, servants' wages, supply of pro- vision to the debtor or his family. All these are exempted from registration. A vendor retains his privilege by the registration of the title deed which has transferred the property to the purchaser, and which shows that the whole or part of the price is still due to him. Nevertheless, the registrar of mortgages is bound, Tinder pain of damages to third persons, to inscribe officially in his register the debts stated in the deed which transferred the ownership both in favour of the vendor and lender, who may also cause a registration to be made, if not already done, in order to obtain a mortgage for that which is due to them. A co-heir or joint sharer retains his privilege upon the property of each lot, or upon property sold by auction, for what is due to equalise the lots (soutte), or their return to the succession ; kk2 500' CIVIL LAW. or for the proceeds of the sale, by registration of the mortgage made at his instance within 60 days from the deed of partition or of the sale, during which time no mortgage can take place upon the property encumbered with soutte; or the property sold by auction, to the prejudice of the creditor who has to receive the soutte or the proceeds of the sale. Architects, contractors, masons, and other mechanics employed in building,, reconstructing, or repairing buildings, canals, or other works,. and those who have lent money for this purpose, retain their privilege by registration: first of the oflScial report {process verbal) stating the condition of the property : secondly, of the ofiicial report verifying the completion of the work. Their privileges date from the registration of the first report. Creditors and legatees who demand the separation of the property of the deceased from that of his heirs, retain in respect of the creditors of the heirs or representatives of the deceased, their privileges upon the real property of the succes- sion by the registration of their mortgage within six months from the commencement of the succession. During this term no mortgage can be validly registered by the heirs or their representatives to the prejudice of such creditors or legatees. The transferees of these various privileged claims enjoy the Same rights as the transferors. All privileged creditors whose claims are subject to regis- tration, in regard to which the prescribed formalities have not been fulfilled, are still entitled to the benefit of mortgage : but the mortgage only dates, with respect to third persons, from the day of registration, which is effected as afterwai-ds explained. Of Mortgages. Mortgage is a real right over immoveables given as security for the discharge of an obligation. It is in its nature indivisible, and exists in entirety upon all the immoveables, upon each and every part of the immoveables encumbered, and the mortgage follows the property into whatever hands it may pass. Mortgage can only take place in the cases and according to the formalities prescribed by law, and may be either legal, judicial, or conventional. Legal mortgage is that which results from the law. Judicial mortgage is the result of judgment or judicial acts. Conventional mortgage results from agreements, deeds and contracts. The following things only are capable of being mortgaged : — 1. Beal property at is saleable, and its MORTGAGES. 501 ■accessories, considered immoveable. 2. The usufruct of such property and accessories as long as the usufruct lasts. When the moveable accessories are separated from the immoveable, they cease to be encumbered with mortgage. Legal Mortgages. The rights and claims to which legal mortgages apply are — 1. Those of married women upon the property of their husbands. 2. Those of minors and interdicted persons upon the property of their guardian. 3. Those of the State, parishes, sxii public institutions, upon the property of their treasurers and responsible administrators. A creditor who has a legal mortgage may enforce his right upon all the real property belonging to his debtor, and upon that which he may afterwards possess, with the modifications hereafter explained. JUDICIAL MORTGAGES. Judicial mortgage results from judgment in cases where adverse parties have been heard, or which have been adjudged by default. It results also in trials, from admissions or verifications of signatures afiSxed to an obligatory deed under private signature. It may be exercised upon the present real property of the debtor, and upon that which he may afterwards acquire, according to the rules hereafter set forth. Decisions by arbitration do not involve mortgage until their ■decision has been judicially authorised. A mortgage, in like manner, cannot result fi'om judgments given in a foreign country unless they have been adjudged executory by a French Court, without prejudice to contrary rules established by treaty. COWVEIfTIOIfAL MORTGAGES. Conventional mortgages can only be effected by persons •capable of aUenating the real property. Persons whose right to real property is suspended by a condition, or voidable, or is subject to rescission, can only grant a mortgage subject to the same conditions or the same rescission. The property of minors, of interdicted persons, and that of absent persons, as long as the possession is only provisionally granted, cannot be mortgaged, except in cases established by law, or when legally adjudged. Conventional mortgages can only be effected by an authentic .deed executed by two notaries, or by one notary and two wit- 502 CIVIL LAW. nesses. Contracts entered into in a foreign country do not confer a mortgage upon property in Trance, unless otherwise rulediby international treaties. Conventional mortgages are not valid unless — in the authentic deed which establishes the claim, or in a subsequent authentic deed — the nature and situation of each of the immove- ables actually belonging to the debtor over which he grants the mortgage are specially set forth. Each immoveable which he at the time possesses may be encumbered by mortgage, but property not yet in his possession cannot be mortgaged. Never- theless, if the present and unencumbered property of the debtor is insufficient for the security of the debt, he may, by declaring such insufficiency, consent that the property which he may afterwards acquire shall be encumbered as soon as it comes into his possession. In like manner, when the present immove- ables burdened with mortgage have perished or been deterio- rated, so as to render them insufficient for the security of the creditor, the latter may either sue immediately for payment or for an additional mortgage. Conventional mortgages are only valid in so far as the sum for which they have been granted is fixed and determined by the deed. If the claim resulting from the obligation is con- ditional or indeterminate as to its value, the creditor cannot demand its registration, except to the amount of an estimated value expressly declared by him, and which the debtor, if there is ground for it, may have reduced. A mortgage extends to all the improvements that may be made upon the immoveables mortgaged. Of Prescription. {Gode Napoleon, Arts. 2,219—2,281.) Prescription is a mode by which property is aoquii-ed, or by which a debt is discharged by a certain lapse of time. Eights by prescription cannot be renounced by anticipation; but when acquired, they may be renounced. Eenunciation of rights by prescription is express or im- plied. Implied renunciation results fi-om an act by which the abandonment of the right acquired may be presumed. Persons who cannot alienate cannot renounce a right by prescription that has been acquu-ed. Courts cannot suggest officially the pleas of prescription. Prescription may be set up at every stage of a suit, even PBESCEIPTION. 503 before the Court of Appeal, unless the party who has not set up his plea of prescription may be presumed to have renounced it. Creditors and all other persons having an interest in cstabUshing prescription may set it np, although the debtor or owner renounces it. Prescription does not apply to ownership of things that are not marketable. The State, public institutions, and parishes are bound by the same prescription as private persons, and have the same right to set it up. Possession. Possession is the holding or using a thing or a right which a person holds or exercises by himself, or which is held or exercised by another in the name of such person. To acquire a prescriptive right, the possession of the thing must be continnous and uninterrupted, peaceable, pubhc, unequivocal, and as an owner. A person is always presumed to possess for himself, and as owner, nnless it be proved that he began his possession for another. When a person has begun possession for another, he is always pre- sumed to continue by the same right, unless there is proof to the contrary. Acts which are merely optional and on simple sufferance, can give no ground either for possession or prescription ; nor can deeds of violence give possession on which prescription may be grounded. The possession which avails for pre- scription begins only when the violence has ceased. A present possessor who proves that he was in possession at a former period, is presumed to have been in possession during the intermediate time, unless the contrary is proved. In order to complete the term of prescription, a person may add to his own possession that of the person to whom he has succeeded. Causes which bar Prescription. Persons who are in possession for others cannot claim pre- scriptive right, whatever may be the lapse of time — thus the tenant, the depositary, the usufructuary, and all who hold the property of others by precarious tenures, cannot acquire a prescriptive right, neither can their heirs. Nevertheless, they can claim prescription if the title of their possession is changed, either from a cause arising from a third party, or by the opposition they set up against the rights of the owner. TOiose persons to whom tenants, depositaries, and 504 CIVIL LAW. other precarious holders have transferred the thing by a title deed conveying ownership have a right of prescription. A person cannot prescribe in opposition to his own title- in this sense, that no one can change the cause and principle of his possession. A person may prescribe against his own title in this sense, that he has a right by prescription to free himself from an obligation that he has contracted. Causes that interrupt or suspend the run of Prescription. Prescription may be interrupted either naturally or civilly. Natural interruption takes place when the possessor is deprived for more than a year of the use of the thing, either by the former owner or by a third person. Civil interruption takes place when a summons before a Court of law, or formal demand or seizure, has been made in due form upon the person whose prescription it is sought to interrupt. A summons for the purpose of conciliation {citation en conciliation), before a justice of peace, interrupts prescription from the day of its date, when it is followed by a summons before the Court of First Instance within the time prescribed by law. A summons even before an incompetent judge inter- rapts prescription. If the summons is void through informality, if the plaintiff stops his action, or if he allows his action to be barred by limitation, or if his demand is rejected, the inter- ruption is considered as not having occurred. Prescription is interrrupted by any acknowledgment which the debtor or possessor makes of the right of the person against whom the prescription was running. A summons served upon, or an acknowledgment by one of the joint and several debtors, interrupts prescription against all the others, and even against the heirs. A summons served upon one of the heirs of a joint and several debtor, or the acknowledgment of such heir, does not interrupt prescription with regard to the other co-heirs, even if the debt should be secured by mortgage, if the obliga- tion is not indivisible. Such summons or acknowledgment does not interrupt prescription with regard to the other joint debtors, except for the share due by such heir. To interrupt prescription for the whole, in respect of the other joint debtors, the summons must be served upon all the heirs of the deceased debtor, or the acknowledgment must be made by all the heirs. A summons served upon' the principal debtor, or his formal acknowledgment, interrupts prescription against the. surety. PEESCEIPTION. 505 Causes that suspend Prescription. Prescription runs against all persons, unless excepted by- law. It does not run against minors and interdicted persons, except for arrears of annuities for maintenance, rents of houses and farms, interest for sums lent, and generally for sums to be paid annually or for shorter periods, which are prescribed after five years. Prescription does not run between husband and wife, but it runs against a married woman, although not separated either by marriage contract or judicially, in respect of the property of which the husband has the administration ; but she has her remedy against her husband. Nevertheless it does not run during marriage in case of the alienation of an estate settled in dowry, conformably to the chapter upon " Marriage Contracts, and the respective rights of Husband and Wife." Prescription is, in like manner, suspended during marriage. 1. "When the action of the wife cannot be brought till an election is made either of acceptance or renunciation of community. 2. When the husband, having sold property belonging to the wife without her consent, is wan-antor of the sale, and in all other cases where the action of the wife would be against the husband. Prescription does not run with respect to debts depending on a condition, until such condition happens ; nor in cases of actions in warranty, until eviction has taken place ; nor with respect to debts at a fixed date, until such term has expired. Prescription does not run against a beneficiary heir with respect to claims he has against the succession, but it runs against a vacant succession, although not provided with a curator. It runs also during the three months allowed for preparing the inventory, and during the forty days for delibe- ration. Time required for Prescription. Prescription is reckoned by days and not by hours. It is acquired when the last day of the term has expired: Prescription of Thirty Years. All actions, real and personal, are prescribed by 30 years, without the party prescribing being bound to produce any title or exception of bad faith being set up against him. After 20 years from the date of the last title, the debtor of an annuity may be compelled to supply at his own cost the creditor or his legal assigns with a fresh title. 506 CIVIL LAW. The rules of prescription as to thiugs other than those mentioned are as follows : — Prescription of Ten and Twenty Years. A person -who acquires real property, in good faith and by an equitable title, is entitled to ownership by prescription after the lapse of 10 years, if the real owner lives within the jurisdiction of the Court of Appeal where the property is situated ; and after 20 3-ears, if he lives out of such jurisdiction. If the real owner has had his domicil at different times within. and without the jurisdiction, it is necessary to add to the years of presence the double of the years of absence. A title void on account of informality cannot serve as a ground, of prescription for 10 or 20 years. Good faith is always presumed, and the onus lies on the party who alleges bad faith to prove it. It is sufficient if good faith existed at the time of the purchase. After ten years, architects and contractors are discharged from their warranty for substantial works {gros ouvrages} erected by them or done under their superintendence. Special Prescriptions. ■ After six months the following claims are barred by pre- scription : — Claims of tutors in sciences and art for lessons given at so much a month ; of innkeepers and eating-house 'keepers on account of lodging and food; of workmen and labourers for the payment of their day's expenses, provisions, or wages. Those of doctors, surgeons, apothecaries, for visits, opera- tions and medicines ; sheriff's officers for their fees ; tradesmen for goods sold to private persons not dealers ; boarding-school keepers for the price of the board of their pupils, and of masters for the premiums of apprenticeship, and domestio servants who are hired by the year are barred by prescription after one year. Claims by solicitors for the recovery of their fees and costs are barred by prescription after the lapse of two years, reckon- ing from the judgment in a suit or from the agreed settlement out of Court of the parties, or from the demand of the said solicitors. After the lapse of five years, costs and charges in unsettled lawsuits cannot be claimed. Prescription in all these cases takes place, although there has been a continuation of supplies, deliveries of goods, services HUSBAXD AKD WIFE SETTLEMENTS. 507 and work. It only ceases to run when there has been a settle- ment, security given, or summons before a Court of law. Nevertheless, those persons against whom siich prescriptions are set up may put the opposing party on their oath as to pay- ments. Widows, heirs, or guardians, may be put on their oath to declare their knowledge of the payment or non-payment of the debt. Judges and attorneys are discharged, as to legal documents, after five years from judgment in the suit ; tipstaffs after two years from the execution of theu' duty. The arrears of annuities, those of allowances for main- tenance, rents of houses and farms, interest on sums lent, and generally everything that is payable by the year are prescribed after five years. The above prescriptions may be set up against minors and interdicted persons, who, however, have their remedy against their guardians. With regard to personal ptoperty, possession is equivalent to a title. Nevertheless, a person who has lost a thing, or from whom it has been stolen, may claim it within three years from the day of loss or theft, from the possessor ; but the latter has his remedy against the person from whom ho obtained it. If the .person in possession of the thing lost or stolen purchased it at a fair, or in market overt, or at a public sale, or from a dealer who sells things of the same kind, the real owner cannot recover it, unless he pays the possessor the price which it cost him. OF MAEEIAGE CONTEACTS AND OF THE EESPECTIVE EIGHTS OF HUSBAND AND WIFE. GENERAL PKOVISIOITS. ICode Napoleon^Axts. 1,387—1,496.] The law does not interfere in matrimonial , arrangements respecting property— except when there are no special agreements, which the parties may make as they think proper— provided they are not contrary to good morals, and not in violation of the following rules :— Consorts cannot derogate from the rights incident 508 CITIL LAW. to the authority of the husband over the persons of his wife and children, or the rights which belong to him as head of the family, nor from the rights con- farred upon the surviving spouse under the titles of "Paternal Authority," "Minority," "Guardian- ship," and " Emancipation." They cannot make any agreement or renunciation which would change the legal order of succession, whether in reference to themselves in the succession by their children or descendants, or with reference to their children in the succession between themselves ; without prejudice to gifts inter vivos or testamentary dispositions, which may take place in the forms and in the cases pre- scribed by law. Husband and wife cannot stipulate in a general way that their union shall be regulated by any of the customs, laws, or local statutes which formerly prevailed in different parts of the French territory, now repealed by the present code. They may, nevertheless, declare in a general manner that they intend to be married under the regime de la com- munaut6,* or under the dotal system (le regime dotal). In such cases, the respective rights of husband and wife, and their heirs, are governed by the rules, under the title of " Community of Goods " and " Dotal System." However, by the Act of July 10th, 1860, if in the registration of marriage it is stated that the husband and wife married without a marriage settlement, the wife shall be deemed, in respect of third parties, capable of contracting in general and common affairs ; unless she has in the contract declared to have made a marriage settle- ment. The bare stipxilation that the wife settles upon herself property in dowry, or that property has been so settled upon her, is not sufS.cient to subject the property to the dotal regime, unless iq the marriage settlement there is an express declara- tion to that effect. !N'either does the dotal system result from the bare declaration made by husband and wife, that they marry without community of * Possession in common. MAKEIAGE SETTLEMENTS. 609' goods, or that they will remain separate in property (sSparSs de biens). In default of special stipulations which derogate from the system of community, or which modify it,, the rules hereafter laid down form the common law of France :— All marriage settlements must be drawn up before marriage by a notary, and cannot be altered after marriage. Alterations in the settlement before marriage must be made in the same form as the marriage settlement. Any alteration or deed of defeasance is not valid without the presence and consent of all the parties to the marriage settlement. All alterations and deeds of defeasance, even executed with the above formalities, are not valid with respect to third parties, unless they have been drawn up at the end of the minute of the marriage settlement; and the notary cannot, under penalty,, deliver an engrossment or copy of the marriage settlement without transcribing at the end the alterations or deed of defeasance. A minor capable of contracting marriage is able to enter into all agreements of which such contract is susceptible, and the stipulations and gifts which he has made in it are valid, provided he has been assisted in the contract by the persons whose con- sent is necessary to the validity of the marriage. OP POSSESSION IW COMMOW.* The communaut^, either legal or conventional,, begins from the day of the registration of marriage, * Du regime en conuuunautS : The rights and interests of husband and wife in their property, and their liability for the debts of each other, are regulated by three laws :— 1. The law of community; 2. The dotal law; 3. The law of separation of property. Under the regime de commimautS the husband and wife become joint owners of the property falling into the community, which includes their present and future personal property ; also the real property which either of them acquires after the marriage otherwise than by gift or succession, and the rents of the real property which either of them possessed at the time of the marriage. 510 crviL LAW. and cannot be stipulated to commence at any other time. CommunautS, which Is created by the simple ■declaration that the parties marry under that regime, or when there is no marriage settlement, is subjected to the rules hereafter explained. Possession in common comprises rights to:— 1. All the personal property which the husband and wife possessed at the time of marriage, and all that accrues to them during marriage by succession of gift, unless the donor has expressed the contrary. 2. All the fruits, rents, and interest, of whatever Tiind, due or received during the marriage, and all that arise from property which belonged to the Tiusband and wife at the time of the marriage, or which have accrued to them since, from whatever source. 3. All the real property acquired during marriage. Keal property (immeubles) is considered as having "TDeen acquired in common, if it is not proved that one of the consorts was the owner or in legal pos- session of it before marriage, or that it has accrued to him or her by heirship or gift. Wood-felling, and the produce of quarries and mines, are subject, as regards community, to the rules laid down concerning these articles in the title of " Usufruct, Use, and Habitation." Real property which the husband and wife possess on the day of their marriage, or which accrues to them during the marriage by inheritance, is not in common. Nevertheless, if one of the consorts acquires real property after a marriage settlement, Ijut before the celebration of the marriage, and the settlement contains a stipiQation of community, the real property so acquired is in common, unless the acquisition was made in performance of a clause in the marriage settlement ; in which case it is regu- lated by the contract. Gifts of real property made during marriage to one of the married parties do not fall into the com- munity, but belong to the donee solely, unless it is MARRIAGE SETTLEMENTS. 511 expressly stated in the gift that the thing given shall Ijelong to both in common. Beal property, abandoned or transferred by a father, mother, or other ascen- dants, to one of the married parties, either in satis- faction of debts due by them to such party, or subject to the payment of debts due by the donor to strangers, does not fall in common, saving com- pensation or indemnity. Beal property acquired during marriage in exchange for real property that lielongs to one of the consorts does not fall in common, but is substituted in the place of that which was alienated, saving compensation when there is a difference in the value. A purchase made during marriage, at a judical sale by auction,* or otherwise, of part of real property of which one of the consorts was joint owner, does not constitute an acquisition in common ; the community, however. Is indemnified for the amount Withdrawn from it to make such purchase. When the husband person- ally and in his own name acquires, by purchase or by lieitation, part or the whole of an estate of which the wife is joint owner, she, at the dissolution of the community, has the option either of abandoning the thing to the community, which then becomes her debtor for her share in the price, or of taking back the realty, and refunding to the community the price of the purchase. LIABILITIES OP THE COMMUNITY AND ACTIONS BESULTING- THEBEFBOM. The liabilities of the communautS consist of: — 1, All personal debts due by the consorts on the day when the marriage was solemnised, or by the successions which fall to them during its continu- ance, saving compensation for liabilities relative to the real property that belongs separately to one or other of the consorts. 2. Debts, whether of principal sums, arrears or interests, contracted by the hus- * A titre lieitation. 512 CIVIL LAW. band during the community, or by the wife with the consent of her husband, saving compensation in cases when it is due. 3. Arrears and interest only of such rents and debts as are personal to either of the consorts. 4. Bepairs chargeable to the usufructuary of immoveables that do not fall in common. 5. The maintenance of the consorts, education and maintenance of their children, and all other charges incidental to marriage. The communaut6 is only liable for the personal debts of the wife contracted before marriage when they are authenticated by public deed made before marriage, or by a private deed, proved to have been executed before marriage. Creditors of the wife who claim under deeds that are not proved to have been executed before marriage, cannot sue for pay- ment except upon the bare property (nue propri6t6)* of the real property belonging to her. The husband who asserts that he has paid a debt of this nature for his wife cannot demand compensation either from her or her heirs. Debts upon successions of purely personal pro- perty that falls to consorts during the marriage are entirely chargeable to the community ; but debts of a succession of purely real property are not charge- able to the community, saving the right of creditors to sue for payment upon the real property of such succession. Nevertheless, if such succession has fallen to the husband, the creditors of the succession may sue for payment, either out of his private pro- perty, or even out of that of the community, saving, in the second case, the compensation due to the wife or her heirs. If a succession of purely real property has fallen to the wife, and she accepts it with the consent of her husband, the creditors of the succes- sion have a right to sue for payment out of all the personal property that belongs to her; but if she accepts it, upon the refusal of her husband under judicial authority, the creditors, in the event of the real property of the succession proving insufilcient, • Property of whicli tie usufruct belongs to another. MAEEIAGE SETTLEMENTS. 51S can only sue out of the nue propri6t6 of her own real property. When a succession, partly real and partly per- sonal, falls to one of the consorts, the debts due by such succession are chargeable to the commu- nity to the extent of the portion of the debts that are assessed upon the personal property, regard being paid to the comparative value of the per- sonalty and of the realty. Such assessment is determined by the inventory, which the husband is bound to see made, either in his own right, if the succession concerns him personally, or as directing and authorising the acts of his wife, if the succession has fallen to her. In default of an inventory, and in all cases where the omission to make one is prejudicial to the wife, she or her heirs may, at the dissolution of the community, sue for lawful compensation, and even prove by deeds, private writings, or by witnesses, and if necessary, by general rumour, of the description and value of the moveable property not entered in the inventory. Such proof is never allowed to be made by the husband. The rules relating to a succession, partly real and partly personal, do not prevent the creditors of such succession suing for payment out of the goods of the community, whether the succession haa fallen to the husband or to the wife, when the wife has accepted it with the consent of her husband, saving, in either case, respective com- pensation. The same rule applies if the succession has been only accepted by the wife as judicially authorised, and such personal property has been confounded, in default of an inventory, with that of the community. If the succession has only been accepted by the wife as judicially authorised, and there has been an inventory, the creditors can only sue for payment upon the real and personal property of the said succession; and if insuflcient,. upon the nue propri6t6 of the real property belong- ing to the wife. L L 514 CITIL LAW. These rules respecting debts apply to gifts inter vivos, as well as to successions. Creditors may sue for payment of debts con- tracted by the wife with her husband's consent, either upon the property of the community or upon that of the husband or wife, saving com- pensation due to the community, or indemnity due to the husband. All debts which a wife contracts, in virtue of the general or special power (procuration) of her liusband, are chargeable to the community, and creditors cannot sue for payment either against the wife personally or upon her private property. MANAG-EMETTT OF THE COMMUNITY, AND EFFECTS OF ACTS OF EITHER COM SORT IN RELATION TO MARRIAGE. A husband solely administers the property of the community, and may sell, alienate, or mortgage it without the concurrence of his wife; but he ■cannot, by gifts inter vivos, dispose of the real property of the community, nor of the whole or of a portion of the personalty, except it is for the settlement of children who are the issue of the marriage. He may, however, dispose of moveables by voluntary and private gifts to any one, provided he does not reserve the usufruct for himself. He cannot bequeath more than his share of the com- munity; if he bequeaths a thing belonging to the community, the donee cannot claim it in kind, unless, in the partition, it falls to the share of the heirs of the husband ; if it does not, the legatee is compensated for the whole amount of the things given out of the share of the heirs of the husband, or out of the private property belonging to him. Penalties incurred by the husband for misde- meanours may be recovered out of the property of the community, compensation being made to the wife; those incurred by the wife can only be re- covered out of the nue propri6t6 of her real pro- HUSBAND AND WIFE. 515 perty, so long as the community lasts. The criminal •condemnation of one of the consorts affects only the ■delinquent's share in the community, and his or her private property. Deeds executed by the wife without the consent of her husband, and even when she is judicially siuthorised, do not affect the property of the com- munity unless she contracts as a public trader and for the purpose of her business. A wife cannot "bind herself or the property of the community, even for the purpose of releasing her husband from prison, or setting up her children in business in her husband's absence until authorised by a Court of law. A husband has the management of all the pro- perty of his wife, and may sue solely in all actions 1;hat relate to her. He cannot alienate her real l>roperty without her consent, and in default of •due care he is responsible for deterioration of the property of his wife. Leases of the wife's property, made by her hus- band solely, which exceed nine years, are not, in the event of the dissolution of the community, binding on the wife or her heirs, except for the time which has still to run, either of the first period of nine years, if not lapsed, or of the second period :and so on, so that the leaseholder shall only have a right to complete the term of the nine years running. Leases for nine years, or for a shorter term, of the wife's property, which the husband «olely has granted or renewed more than [three years before the expiration of the running lease, if rural property, or more than two years if house property, are void unless they came into operation Ijefore the dissolution of the community. A wife who binds herself jointly and severally with her husband in the affairs of the community or in the affairs of her husband, is in respect of him only deemed a surety, and must be indemnified against the obligation she has contracted. A hus- band who becomes surety jointly and severally, or L l2 6.16. CIYIL LAW. Otherwise, in the sale of his wife's real property^ has likewise a remedy, either upon her share in the common property, or upon her private estate if he is sued. If real property belonging to one of the consorts is sold, or if servitudes due to his or her private estates have been redeemed, and the price been paid to the community without reinvestment, such consort has a right to deduct from the common property the value of the real property sold or of the servitude redeemed. Reinvestment is deemed to be made by the husband when, at the time of a purchase, he declares that it was made with the money arising from the alienation of real property that belonged solely to him, and that it was in- tended as a reinvestment. The declaration of the husband that the purchase is made with moneys arising from real property sold by his wife for the purpose of reinvestment is not su£B.cient, if such reinvestment has not been formally accepted by the wife. If she has not accepted it, she has, at the dissolution of the community, right to compen- sation for the value of the thing sold. Compensation for the value of real property belonging to the husband can only be claimed out of the bulk of the property in common ; that for the value of real property belonging to the wife may be claimed out of the private property of the husband, if the pro- perty in common proves insufllcient. In all cases, compensation is governed by the price realised at the sale, whatever may be alleged as to the value of the thing alienated. Whenever a sum is withdrawn from the com- munity to pay the personal debts or liabilities of one of the consorts, he or she for whom the money was withdrawn owes compensation for the amount. If the consorts have jointly given a marriage por- tion to their child, without mentioning the amount which either intended to contribute, each is deemed liable for a moiety, whether the portion has been paid or promised out of the efifeots of the com- HUSBAND AND WIFE. 517 munity, or out of the private property of one of the consorts. In the latter case, such consort has a right to be indemnified out of the property of the other for the moiety of the portion. A marriage portion settled solely by the husband upon a child of the marriage, out of the common property, is charge- able to the community ; and in the event of the wife accepting the community, she is responsible for the half of the marriage portion, unless the husband has expressly declared that he held himself respon- sible for the whole, or for a larger part than the moiety. All marriage portions are guaranteed by the parties who make the settlements, and interest runs from the day of the marriage, unless other- wise stipulated. DISSOLTJTIOM" OF THE COMMUWITY,* AND ITS COTfSEQTJEIfCBS. The community is dissolved :— 1. By death. 2. By judicial separation. 3. By separation of property. Communaut6, in default of an inventory, does not continue after the death of one of the consorts ; but interested parties may sue for a statement relative to the condition of the property in common, proof of which may be made by documents or common report. If there are children under age, the omission of kn inventory causes the surviving consort to lose the usufruct of the revenues of such children, and the supplementary guardian who neglected to coinpel him or her to have an inven- tory made is held jointly and severally responsible with him or her for all indemnities that may be adjudged in favour of the minors. Separation of property can only be sued for in a Court of ],aw by the wife whose marriage portion is in peril, and when the disordered state of the • Formerly, " Civil Death. " and " DiTorce," now abolislied, also dissolved the community. 518 CIVIL LAW. hustoand's affairs affords reason to fear that Ms property will not be sufficient to satisfy the claims and rights of the wife. All voluntary separation of property after marriage is void. Separation of property, although adjudged by a Court of law, is void, if it has not been followed by the payment of the wife's claims, proved by an authentic deed, as far as the husband's pro- perty extends, or by a suit commenced within a fortnight after adjudication, and not afterwards interrupted. Every separation of property must, before execution, be publicly posted in the hall of the Court of First Instance ; and if the husband is a merchant, banker, or tradesman, it must also be posted in the hall of the commercial Court of his domicil, on pain of nullity. A judgment declaring the separation of property takes effect from the day that the demand was made. Private creditors of the wife cannot, without her consent, demand the separation of property. Nevertheless, in cases of bankruptcy or insolvency of the husband, creditors may exercise her rights to the amount of their claims. Creditors of the husband may obtain redress against a separation of property adjudged, and even executed, in fraud of their rights; they may even make themselves parties in the suit, on the petition for separation, in order to contest it. A wife who has obtained a separation of pro- perty must contribute, in proportion to her means and to those of her husband, to the expenses of the household, and to those of the education of their children. She must bear these expenses solely, if the husband has no means. A wife judicially separated, or separated only in property, regains the uncontrolled management of her property. She may dispose of her personal property, but she cannot alienate her real property without the consent of her husband; or, on his refusal, without the authority of the Court of First Instance. HUSBAND AXD WIFE. 5J9 A husband is not responsible for any omission to invest or reinvest the price of the real property which the wife, separated in property, has alienated under the authority of a Court of law, unless he has been a party to the contract, or unless the moneys have been proved to have been received by him or used to his advantage. He is answerable for the omission of investment or reinvestment, if the sale took place in his presence and with his consent ; but he is not responsible for the disad- vantage of the investment. The communaut^, dissolved either by judicial separation, or by a separation of property only, may be re-established by the consent of both parties. This must be effected by a deed executed before notaries, and a copy of the deed must be posted in the hall of the Court. In this case the community so re-established resumes its effect from the day of the marriage, and the affairs are placed in the same position as if there had been no separation, without prejudice, however, to the carrying out of such obligations as the wife may have legally entered into. Every agreement by which the consorts re-establish the community that differs from that by which it was previously governed is void. A dissolution of the community by a judicial separation, or merely of property, does not imply the enforcement of the rights of the wife's sur- vivorship ; but she may claim them at the death of her husband. ACCEPTANCE OP THE COMMTJNITY, BENUN- CIATION, AND CONDITIONS EELATING THERETO. After the dissolution of the community, the wife or her heirs and assigns have the power of accepting or renouncing it, and any agreement to the contrary is void. A wife who has entered upon or interfered with the management of the 620 . CIVIL LAW. affairs of the community cannot afterwards re- nounce it. Acts purely administrative or conser- vatory do not imply interference. A wife of fuU age, who in a deed has represented herself as common in property, cannot renounce the com- munity, nor-be relieved from the position she has assumed, unless there has been fraud on the part of the heirs of the husband. A widow who desires to retain the right of renouncing the community must, within three months from the day of her husband's death, cause a correct inventory to be made of all the goods of the community, in the presence of the husband's heirs, or after having duly summoned them; and 40 days afterwards she must make her renunciation at the registrar's ofllce of the Court of First Instance of the domicU of her husband. The widow may, according to circumstances, ask the Court for an extension of time for her renunciation, which, if granted, must be adjudged in presence of the heirs of the hus- band, or after they have been duly summoned. A widow who has not renounced within the time prescribed is not deprived of her right of renouncing, provided she has not interfered with the management of the community and has had an inventory made; she can only be sued as being in community until she renounces, and she is liable for costs incurred up to her renunciation; she may likewise be sued after the expiration of the forty days from the; closing of the inventory, if it has been closed before the three months. A widow who has abstracted or concealed any of the effects of the community is declared to have accepted the community, notwithstanding her re- nunciation, and ■ the same rule applies to her heirs. If the widow dies before the expiration of the three months without having made or completed the inventory, her heirs have a further delay of three months, reckoning from her death, to make and complete it, and of forty days after the closing of the inventory to deliberate on acceptance or HUSBANP AND WIl'E. 521 renunciation. If the widow dies after completing the inventory, her heirs have, in order to deli- berate, a fresh delay of forty days from her death. They may, however, renounce the community, according to the rules above stated with reference to widows. A wife judicially separated, who has not, within three months and forty days after the separation definitely accepted the community, is deemed to have renounced it, unless within the prescribed time she has obtained, in the presence of her husband, or after having duly summoned him, an extension of time from the Court. The creditors of the wife may dispute the renunciation which she or her heirs may have made in fraud of their claims, and may accept the community in their own right. The widow, whether she accepts or renounces, has a right, during the three months and forty days which are allowed her for making the inventory and for deliberation, to take, for h.er own and her domestics' maintenance, such supplies that may be in the house, and in default to borrow on account of the community, subject to the condition of using due discretion. She is not liable for rent for her residence during the delays, whether the house belongs to the com- munity, or to the heirs of the husband, or held on lease. In the event of the dissolution of the com- munity by the death of the wife, her heirs may renounce the community within the delays and according to the forms prescribed by law respect- ing widows. PARTITION OP THE COMMUNITY. After the acceptance of the community by the wife or her heirs, the assets are divided and the liabilities borne in the manner hereinafter stated. ThQ consorts or their heirs must bring back to the community all that they owe for compensation 522 tlVIL LAW. or indemnity. Each consort, or his or her heirs,, must bring back, likewise, the sums drawn from the community, or the value of the property taken from it for a marriage portion for a child of another marriage, or a child of the present marriage. From the bulk of the property each consort or heir takes— 1. His or her private property that did not enter into the community, if it exists in kind, or the property acquired by reinvestment. 2. The price of the real property alienated during the community and not reinvested. 3. Indemnities due- to him or her by the community. The claims of the wife take precedence over those of the husband, for property which no longer exists in kind. First, from the ready money ; next, from the personal property; and failing these, from the real property of the community. In the last case, the choice of the property is left to the wife and to her heirs. Deductions in favour of the husband are restricted to the property of the com- munity. The wife and her heirs, in the event of the community proving insufficient, may enforce their claims upon the private property of the husband. The reinvestments and indemnities due by the community to the consorts, and the com- pensations and indemnities due by them to the community, bear interest from the day of its dissolution. After all the deductions of both con- sorts have been effected upon the bulk of the community, the surplus is divided, by moiety, between the consorts or their representatives. If the heirs of the wife do not agree, so that some have accepted and others have renounced the com- munity, those who have accepted take only their respective shares in the property allotted to the wife; the, remainder accrues to the husband, who is responsible to .the heirs who renounced for such claims as the wife might have enforced in the event of renunciation, but only to the extent of the shares of the heirs who renounced. The partition of the community, in all that HUSPAXD AND WIFE. 523- regards its formalities— the sale by auction of real property wlien there is occasion for it, the effects of the partition, the warranty resulting from it, and the payment of the balance— are subject to the rules prescribed, under the title " Of Successions for Partitions between co-heirs." A consort who abstracts or conceals things belonging to the community forfeits his or her share of them. After partition, if one of the con- sorts is the personal creditor of the other— as when the price of the property of one has been applied to the payment of the personal debts of the other, or for any other cause — ^the consort may recover his or her claim out of the share of the community allotted to the debtor, or out of his or her private property. Personal claims which the consorts may have against each other do not bear interest, except from the day of the judicial demand. Gifts made by one of the consorts to the other are taken from the donor's share in the community, or out of his or her private property. The widow's mourning, even if she has renounced the community, is chargeable to the heirs of her deceased husband, and its value is regulated ac- cording to the circumstances and position of the deceased. The debts of the community are chargeable, one half to each of the consorts or to his or her heirs. The expenses of seals, inventories, sales of personal property, liquidation, 'public auction, and partition form part of such debts. The wife is not liable for the debts of the com- munity, either with respect to her husband or creditors, beyond the amount of the benefit she derived from it, provided she has made a good and faithful inventory, and has rendered an account both of what is contained in such inventory and of what has fallen to her in the partition. The husband is liable for the whole of the debts of the com.munity contracted by him, but he has his remedy against his wife or her heirs for the half 524 CIVIL LAW. of such debts. He is liable only for half of such personal debts of his wife that were chargeable to the community. The wife may be sued for the whole of the debts contracted by herself that have fallen into the community, but she has her remedy against her husband or his heirs for half of such debts. A wife personally liable for a debt of the community cannot be sued for more than the half of such debt, unless the obligation is joint and several. A wife who pays a debt of the community beyond her half cannot recover the excess from the creditor, unless it is stated in the receipt that what she paid was for her moiety. A consort who, when a mortgage has been made upon the pro- perty allotted to him or to her, is sued for the whole of a debt of the community, has of right a remedy against the other consort or his or her heirs for the moiety of such debt. These rules do not prevent one of the joint- sharers from paying more than the moiety, or even the whole of the debts of the community; but when one has paid more than his or her share, he or she has a remedy against the other. All the above rules respecting husband and wife apply to the heirs of either, and such heirs have the same rights, and are subject to the same actions, as the consort would have been whom they represent. BEinjIfCIATION OP THE COMMUNITY, AND ITS EFFECTS. A wife who renounces forfeits her right to the property of the community, and even to the per- sonal property which she herself brought to it. She has a right to retain wearing apparel and linen for her own use. A wife who renounces has a right to recover:— 1. Beal property belonging to her when not alienated, or the real property which has been bought as HUSBAND AND WIFE. 525 reinvestment. 2. The price of her real property 'Which has been alienated, and reinvested without her consent. 3. All the indemnities that may be due to her by the community, A ■wife who renounces is discharged from all the debts of the community, both as regards her husband and as regards creditors. She, however, is answerable to creditors for debts in which she bound herself jointly with her husband, or when the debt is one which she contracted herself; saving, in such case, her remedy against her hus- band or his heirs. She may enforce all her claims against the goods of the community, or against the private property of her husband. Her heirs may do the same, except as regards linen and wearing apparel, and lodging and maintenance during the delays allowed for inventory and deliberation, which rights are purely personal to the surviving wife. These rules apply even when one or both con- sorts have had children by a previous marriage. If, however, the confusion of personal property and debts gave to one of the consorts an advantage greater than that to which he or she is lawfully entitled, according to the rules regulating gifts inter vivos and wills, the children of the other mar- riage have a right to bring an action in curtailment (en retranchement). OF COMMUNITY BY AGEEEMENT. \_Code JVopoIeom— Arts. 1,497—1,581.] Married persons may modify the legal community of property by any kind of agreement not contrary to law. The principal modifications are : — 1. That the community shall only comprise property acquired in common. 2. That the present or future personal property shall not be in common, or only partly, so. 3. That it shall comprise the whole or p^rt of 526 CIVIL LAW. the real property, present or future, by changing it into personalty.* 4. That the consorts shall -pay separately debts contracted before marriage. 5. That in case of renunciation, the wife may take Tsack, free and clear from all burdens, whatever she brought into the community. 6. That the sur- vivor shall have a stipulated benefit (pr^ciput). 7. That the consorts shall have unequal shares. 8. That a community of all their property in ■general shall exist between them. COMMUNITY CONFINED TO THINGS ACQUIRED IN COMMON. When consorts stipulate that there shall only be ■a community of things acquired in common, they ■are respectively deemed to exclude their present and futurp debts, and their present and future personal property. The partition in this case is limited to things acquired in common, arising from their common industry, or from the savings out of -the fruits and revenues of their private property. If the personal property, at the time of the mar- Tiage, or that w;hich has accrued since, has not been •authenticated by inventory or statement in due form, it is deemed to be property acquired in common. PERSONAL PROPERTY WHOLLY OR PARTLY EXCLUDED FROM THE COMMUNITY. Consorts may exclude from the community all -their personal property which they at present or may in future possess. When they stipulate that they will respectively put part of it, to the amount of a certain sum or value, into the community, they are deemed to have reserved for themselves the remainder. This stipulation renders each a debtor • Par voie d'ame-ublissement, hereafter ezplainedj HUSBAITD AND WIl'E. 527 to the community for the promised sum, and each must prove the payment of it. Upon the dissolution of the community, each consort has a right to take back the value of the personal property that he or she brought into it at the time of the marriage ; also that which has accrued to him or her since. The personal property that accrues to each of the consorts during the marriage must be authenticated by inventory; in default of an inventory of the personal property accruing to the husband, or of a document stating its value, he cannot claim it from the community. Jn the default of such inventory on the part of the wife, she, or her heirs, are admitted to give proof, either by documents or by witnesses, or even by common report, of the value of such personal property. CLAUSE D'AMEUBLISSEMENT.* This stipulation, by which the consorts, or either of them, bring into the community the whole or a portion of their real property, whether present or future, is called ameublissement. It is either definite ■or indefinite. It is definite when the consorts declare their intention to change to personalty and bring into the community a particular realty, for the whole, or to the amount of a given value. It is indefinite "When it simply declares that they will bring into the community real property to a certain amount. The efffect of this definite ameublissement is to con- v^ert the real property affected by it into the goods of the community as personal property. When the whole of the real property of the wife is so eon- verted, the husband may dispose of it as of the other personalties of the community, and may alienate the whole. If the real property is only partly converted for a certain amount, the hus- Taand cannot alienate it without the consent of his * Ameublir un immeuble : to change real property to per- sonalty—an imm'>'oces-verhal de Carence is a document setting nn2 548 DICTIONAET OF out that thp huissier attended to issue execution upon a judgment, but found nothing upon which to levy. Cassation — The Court of Cassation is the Supreme Court of Appeal in Prance. See Procedure en Cassation, and also page 8 et seq. Caution judieatum solvi — Security for costs. Cautionnement — The sum of money -which every Govern, ment functionary, avoue, notaire, etc., must, before entering upon the exercise of his functions, deposit with the Government. This amount is intended to secure the reimbursement of sums entrusted to such functionaries, or even to indemnify parties who have suffered from their negligence. Certiflcat d' addition— Modification of a patent. Certiflcats de coHtume are certificates given by a foreign lawyer, establishing the law of the country to which he belongs, upon one or more fixed points. These certificates can be produced before the French Courts, and are received as evidence in lawsuits upon questions of foreign law. Cessation de paiements- — Suspension of payments in Bankruptcy. Cession de biens — General assignment for the benefit of creditors made by a party who is not a merchant. He is not discharged thereby, except to the extent to which he has paid out of the proceeds of his property. The principal object of this proceeding was to relieve a debtor from im- prisonment ; but since imprisonment for debt has been abolished, this proceeding has no longer anything but n historical interest. Chambre des BecLuStes — see Procedure en Cassation, Cbambre Civile — see Procedure en Cassation. Chambre du Conseil — Eoom to which the Court retires for deliberation. Chambre Syndicale— All Government functionaries (avoucs, tiotavres, huissiers, agents de change, etc.) practising in the same town elect fi-om among themselves a certain number of members who compose a Court of Discipline, or Com- . mittee empowered to enforce upon all the members of the Corporation the observance of its professional rules. These Committees are termed CJMmbre des notaires; Chamhrr des avoues, etc. That of the Agents de Cliange is tcrmod Chamhre Syndicale. FRENCH LEGAL TERMS. 54.(> Chanoelier du Consulat is the title given to the head of the clerical department in the office of a consulate. •Chargeur— see Affreteur. Chef — Overseei", i.e., an employe who has employes under him. Chef-lieu d'Arrondissement— Principal town of each ai-rondissement, the seat of the sous-Prefecture. Chef-lieu de D^partement— Principal town of each depart- ment, the seat of the Prefecture. Clause potestative— The name given to the clause whereby one party to a contract reserves to himself the right to annul it. Code Civil — Comprises the whole of the thirty-six laws regu- lating personal and domestic relations and property. The edition of 1804 was intituled Code Civil des Franfais; that of the 3rd September, 1807, the Code Napoleon; that of the 30th August, 1816, the Code Civil. A decree of the 27th of March, 1852, re-established the title of Code Napoleon: but since the 4th September, 1870, the National Assembly, the Court of Cassation, and the other Courts and tribunals in Prance, have substituted the term Code Civil in all laws and judgments. Code de Commerce — Previous to the reign of Louis XIV., no special code or body of laws existed in relation to mercantile or maritime commerce. During the above reign, however, trade commenced to flourish, and the imperfections of the existing laws became manifest, and during the ministry of Colbert, the celebrated ordonnance of the month of March, 1673^ was drawn up, comprising enactments upon inland commerce, and the most im- portant mercantile contracts. This ordonnance, composed in great part by a merchant named Savary, contains 12 litres, or headings, correspond- ing principally with the titres of the existing Commercial Code. In the same reign, and during the same ministry, the ordonnance of August, 1861, upon maritime law was published. It was divided into five books, and comprised the following subjects : — 1. Admiralty; 2. Of ships and seamen ; 3. Of maritime contracts ; 4. The regulation of ports; 5. Fisheries. This ordonnance was received with enthusiasm, and generally adopted throughout Europe. 550 ■ DICTIONAEY OF A list of the authors and of the works, both French and foreign, published before the promulgation of the Code of Commerce, will be found in pp; 5, 6 of the Commentary" upon the French Code of Commerce, by Riviere. Amongst them appears " Trade Laws, compiled from the Latest Authorities," by Eatcliffes, London, 1787, 2 vol. in S"- Notwithstanding the care with which commercial law was codified by the ordonnancea of 1673 and 1681, a revision of this division of the law became called for, and in 1787 a commission was instituted to revise these ordonnances and mercantile law in general. The labours of this com- mission were interrupted during the Revolution, and it was not until the 3rd April, 1801, that a new commission was organised to draw up a project for a Code of Commerce. This project was communicated to the Tribunals of Com- merce, the Court of Cassation, and to the Courts of Appeal, and subsequently revised and discussed in the Council of State, and alternately adopted by the Corps Legislatif. Pursuant to Art. 1 of the law of the 15th September 1807, the provisions of the Code of Commerce were decreed to come into force on the 1st January, 1808. The modifications and changes which subsequent legist lation has caused to be incorporated and added to the original text, will be found in the portion of this treatise containing translations of the Code of Commerce, and of the various mercantile laws in force at the present time. Code d'instruction criminelle — Code indicating the pro* cedure in criminal cases. Code de Procedure — Code which determines and controls the practice in civil and mercantile cases. Code Napoleon— see Code Civil. Commandemeilt is a writ served by Imissier, pursuant to a judgment or to an executory notarial deed. Its object is to give notice to a debtor that if he does not pay the sum to which he has been condemned by the judgment, or which he engaged to pay by a notarial deed, his property will be seized and sold. Li the cases 'when a seizure of personal property is contemplated, the commandement must be served twenty-four hours before seizure. In the - case of real property, it must be made thirty days before seizure. Commanditaire — see Commandite, FRENCH LEGAL TEEMS. 551 Commanditaixe par actions is a partner who is only bound to the extent of his venture iu a Sociote par actions. Commandite — The sum invested in a partnership by a special partner who is called a Gommanditaire. Commandite par actions — see Societe en commandite par actions. Commandite par intdrdts — Special partnership in which' the capital is not represented by negotiable stock. Commandite simple — see Societe en commandite simple. Commissaire — Commissaires ai-e persons who receive fo-om a meeting of shareholders a special authority, viz., that of checking and examining the accounts of a manager or of valuing the apports en nature. This name is also applied to a judge who receives from a Court a special mission — ' for instance, to institute an inquiry or to examine certain books, or to supervise the operations of a bankruptcy. Commissaire de Police — Police Justice — Magistrate. Commissaire- Juge — see Jtige-Convmissairc. Commissaires-priseurs are auctioneers, possessing the exclusive right of selling personal property at public sales in the towns in which they are established, and they possess the same right concurrently with notaries, greffiers and Tiuissiers in the rest of the airondissemcnt. They also undertake valuations. They are 80 in number in Paris. Commissaires-priseurs can be appointed in all places which contain more than 5,000 inhabitants. They are appointed by the chief of the State, upon the presentation of their predecessors in office. They must serve the same apprenticeship as huissiers, viz., have accomplished a stage of two years in the office of an avoue, notary or haissier, or three years in that of a greffim: They are governed by a cliamhre de discipline. Commission rogatoire — Commission for the examination of witnesses. Commissionnaire — Commission agent (see text of Code). Commissionnaire en Marehandises— Commission agent {see text of Code). Communaut^ — see Communaute de liens. Gommunautd de biens — 'By com/munaute is meant the pro- perty which is held in common by the married parties who have adopted the regime of the com/^lnuna^l,te de hiens. {See Appendix.) 552 DICTIONABT OF Commune — see Prefecture. Com.miinicatioii — ^The production of a merchant's books by delivering them either to a person designated by the Co.urt, or to his adversary, to be examined in all their parts, and as shall be deemed necessary to the suit. Compromis — Submission to arbitration. Compte de retour — Expenses of return of unpaid bills. Conciliation is the formality to which intending litigants are subjected in cases brought before the juges-de-paix The judge convenes the parties, and endeavours to recon- cile them. Should he not succeed, the case proceeds. In criminal and commercial cases the preliminary of con- ciliation does not take place. Concordance between the Bepublican and the Gregorian Calendar. Concordance of the Months. 1 Vendemiaire X V CXXUCllllUfll c ... ... ... 1 Brumaire 22nd October. 1 Frimaire 21st November. INivose 21st Deceniiber. 1 Pluviose 20th January. 1 Vent.6se 20th February. 1 Germinal 22nd March. IFlor&l 21st April. 1 Prairial 21st May. 1 Messidor 20th June. 1 Thermidor 20th July. 1 Pructidor 19th August. Concordance of the Ye ars. An (year) IT. ... 1793 An „ III ... 1794 An „ IV. ... 1795 An „ V. ... 1796 An „ YI ... 1797 An „ VII ... 1798 Ati „ VIII ... 1799 An „ IX ... 1800 An ,, X. ... IBOI An „ XI ... 1802 An „ XII ... 1803 An „ XIII. ... 1804 An „ XIV ... 1805 FRENCH LEGAL TEEMS. 65$ In the Eepublican Calendar the year is divided into 12 months, and the month into three decades. The decade is composed of 10 days : primidi, duodi, tridi, quarttdi, quintidi, sextid!, septid!, octidi, nonidi, decadi. The era commenced on the 22nd September, 1792, the date of the proclamation of the Republic. •Concordat (composition) — Compromise effected by a bank- rupt with. his creditors by virtue of which the bankrupt engages to pay within a certain time a certain proportion of his debts, and by which the creditors agi-ee to discharge the whole of their claims, in consideration for the same. CSonnexit^ — see also Declinatoires. Gonnexite exists when two actions are pending which, although not identical as in lis pendens, are so nearly similar in object, that it is expedient to have them both adjudicated upon by the same judges. iGonseil d'Etat — The Coiwt of Appeal from the Conseil de Prefecture. It has other functions of an administrative character. ■Conseil de famille — ^Whenever it becomes necessary to appoint a guardian of a minor, the nearest relations or the most intimate friends are called together under the direc- tion of the juge-de-paix. This meeting constitutes a Conseil de famille, and has capacity to name a guardian. The Conseil de famille is also summoned in order to give its opinion about the interdiction of an insane person; moreover certain acts cannot be performed by guardians in the course of their functions without the authorisation of the Conseil de fa/mille. •Conseil de Prefecture — In each Prefecture there are three judges nominated by the Government, who have jurisdic- tion over all cases in which the Prefect or his represen- tative is a party. These judges are called Conseillers de Prefecture, and the Tribunal which they compose is called Conseil de Prefecture, Conseils de Prudhommes are a species of trade tribunal, charged with settling differences between masters and workmen. They endeavour, in the first instance, to "con- ciliate" the parties. In default, they adjudicate upon the questions in dispute. Their decisions are final up to 200 fs. Appeals lie to the Tribunal's of Commerce beyond that amount. 554 DICTIONARY OP These Courts exist in manufactm-iug towns, such as Paris, Lyons, etc. The Gonseil is composed of manufac- turers and workmen in equal proportions ; the minimum is six, not including the president and vice-president. The Prudhommes are elected for six years. The masters elect the masters, and the workmen the workmen. An elector must have attained the age of 25 years, and have belonged to his trade for five years. Candidates for elec'« tion must have attained the age of 30 years. The duties of the Prudhommes, like those of the judges of the Tribunals of Commerce, are purely honorary. In cities where Gonseils de Prudlwinmes do not exist, the juges-de-paix exercise jurisdiction. i 'Con.seil judiciaire — Any person who, by his extravagant expenditure, out of proportion to his resources, threatens to thereby squander his property, may, at the request of a relation or near fi-iend, be submitted, by virtue of an order to that efiect, to the wardship of a third person called Gonseil judiciaire. Without the approval of such Gonseil judiciaire, he cannot validly perform any act nor execute any document that could constitute a charge upon his' estate. Conseil Municipal — Council elected by universal suffrage for the administration of each commune. Conseillers — The judges composing the Courts of Appeal are called Gonseillers. Conseiller G6n§ral — Each Canton {see Prefecture) nominates a Conseiller General for a term of three years. The Conseillers Generaux meet in the so-called Conseil General, which forms a Council to the Prefet of the department, votes the special taxes for the department, and administers the roads and the institutions belonging to the same. Conservatoire des Arts et Metiers— A public establish- ment which the Government has opened at Paris, in which Art and Industry are taught gratuitously. Here are exposed also models and maps of use to illustrate the progress of national art and national industry. Constat d'hiiissier — An affidavit made by huissiers setting forth the appearance, form, quality, colour, &c., of any article upon which a suit depends. Contrainte par corps means imprisonment for debt, now abolished — see p. 23 and Index. FRENCH LEGAL TEEMS. 555- Contrat d, la grosse— see Bottomry. (Index.) Oontrat de change — see chapter ou Bills. Oontrestariea — see Swestaries. Contribution foncidre — Taxes on real estate. •Corps certains — This expression is employed in contra- distinction to objects which are not specific by their nature, as a certain quantity of wheat or hay. A coi-ps^ certain is the object itself in relation to which an agree- ment has been entered into, and which cannot be replaced by any other object, as a horse or a ship, &c. Correctionnel — see Trihimaux Gorrediounels. Coulissiers are intermediate agents who undertake the negotiation of Stock Exchange securities, and con- sequently usurp the functions of stockbrokers. Their existence is not legally recognised, but is nevertheless tolerated. Courtiers — Bz-okers. Couverture is the deposit (or " cover ") made by the client in the hands of the broker, either of a sum of money or of securities, in order to guarantee the broker for the pay- ment of the securities which he purchases for his client. Cr^anciers prSsumSs. — When claims against a bankrupt have not been definitely accepted by the syndic, such creditors are called creaiiciers presumes, because their rights have not been definitely admitted. Credit Foncier is a peculiar method of borrowing money in Prance on the security of landed property. It was estab- lished by an edict of, 28th February, 1852. Its peculiarity is, that the repayment of the loan is by an annuity terminable at a certain date ; the date and the amount of annuity being so calculated, that when the last payment is made, the loan and the interest on it will be extinguished. Another method of describing it is as a loan repayable byinstalments. The transaction is precisely regulated by the edict, which prohibits an advance on more than a half of the value of the property pledged or hypothecated. These several Companies were established by the French Governnient, with the privilege of making such advances. ]Pate eertaine — A deed is said to have a date certaine (fixed date) when it has been subjected to the formality of regis- tration ; after this formality has been complied with, the parties to the deed cannot by mutual consent change the 556 , DICTIONAET OF date thereof. It is for this reason that third parties have not the right to question the date of a registered deed, which is said to have a date certaine (see Enregiatr&nmit), D^chSance — Forfeiture. JD^claration de faillite signifies adjudication in bank- ruptcy. D^clinatoires are pleas to the jurisdiction of the Court, also of lis pendens and of connexite. D^faut C0ilg6— See Judgments. (Index.) D^faut faute de conclure — see ibid. D^laissement means abandonment. J361ib6r6 — ^After hearing the arguments of counsel, the judges sometimes adjourn cases to enable them to examine the documents and evide nee before delivering j udgment. This is termed delibere. Demande en revendication — see Bankruptcy. (Code.) D^nonciation — Notification. Description — The report drawn up by Jiuissier to set forth the condition of certain articles in a suit ; or in other words the contents of a constat. See Constat d'huissier. Dessaisissement — When a person is declared bankrupt, he is immediately deprived of the enjoyment and administra- tion of all his property; this deprivation, which extends to all his rights, is called dessaisissement. D'offlce {propria motu) — ^A judgment pronounced or an order made by a Tribunal d'offlce is one made of its own motion, and not pursuant to any special application, petition, or proceedings. Domaiue public — Public domain. JDomicil — The domicil of every Trenchman, as far as re- gards civil rights, is where he has his principal establish- ment or abode. A change of domicil is effected by the fact of a person taking up his residence in another place, with the intention of fixing his principal domicil there. The proof of such intention results from an express declaration before the municipalities of the place left, as well as to the municipalities of the new domicil. In default of such declaration, proof of intention depends on circumstances; but a temporary removal by any public appointment does not change the domicil ; a life appoint- ment does. A wife claims the domicil of her husband ; a minor, not FRENCH LEGAL TEEMS. 55? emancipated, that of the father, mother, or guardian ; an interdicted person, that of his guardian ; and a servant, that of his or her master or mistress, when living in the same house. The domicil is the place where the rights of succession commence (la succession s'ouvre). When a deed contains a clause selecting a domicil other than the real one for the execution of such deed, any legal notice may be lawfully served at the specified domicil. Domicilitaire— see Bills. (Index.) Donneiir a la grosse— see Bottomry. (Index.) Donnexir d'aval — Guarantor of negotiable paper other than by endorsement. Donneur d'ordre— The party on whose behalf the drawer of a bUl on behalf of a third party di-aws. Dot signifies maiTiage portion. Droits de condamnation— Taxes upon judgments, propor- tioned to the amount thereof. Droits d'enrSgistrement — see Enregistrement. Droit de gage — see the word PrvviUge. (Appendix.) Droit d'enr^gistrement — see Enregistrement. Droit d'execution — The right of a stockbroker to sell the securities bought by him for account of a client, if the- latter does not accept delivery thereof. The same expres- sion is also applied to the sale bya stockbroker of securities deposited with him by his client, in order to guarantee tho payment of operations for which the latter has given instructions.. Droit d'hypotheque — see the word Privilege. (Appendix.) Droit de suite — This term is applied to the right which a creditor possesses to enforce his claim either upon real or personal property, even if such property passes into the hands of a third party. See Privilege. (Appendix.) Xlcrit eiir6gistr6 — Any written document is so termed oir which the registration duties have been paid, and which bears upon the face the stamp of the receiver. The date of enregistrement being necessarily correct, cannot be disputed even by third persons not parties to the deed ; in that case the deed is said to have a date certaine. Smplbi — (equitable conversion) — When property covered by the regime dotal is sold, the proceeds of the sale must be reinvested for the benefit of the. wife. It is the dut}- of 4)58 DICTIONAET OF the purchaser to see that the price is so reinvested, and his payment is only final in so far as it has been reinvested as aforesaid. See Regime dotal. Employ^— The name given to every salaried person whose work is neither entirely manual nor entirely intellectual ; a book-keeper, a cashier, a watchman, a salesman, are employes; but this expression is never applied to young men engaged in the offices of avoues, notmres, litiAssiers, or com'missaires-priseurB ; these are termed rlercs, an expression which belongs to them exclusively. ^n brevet — An ode is said to be en hvevet when a copy of it has not been recorded by the notary who drew it. En commandite par actions — see Societe en commandite par actions. En commandite simple — see Societe en commandite aimple. En COmmunailt6 — see Communaute de hiens. Endossemeut a forfait — This is the endorsement of a bill of exchange, by a persoia who does not guarantee the payment thereof. En Stat d'union — State of bankruptcy when the concorda has been refused by the creditors, and the liquidation of the estate has been decided upon for the common benefit. En nom — see Associe en nam. En nom coUectif— see Nom collectif. En participation — see Societe en participation. En recouvrement — An expression employed to declai'e that an endorsement made in favour of a person does not transfer to him the property in the bill of exchange, but merely constitutes an authority to such person to recover the amount of the bill of exchange. En r6f6r6 — Cases, special applications and summonses which are referred to the judge. EnrSgistre — see Enn'gistrement. EnrSgistrement (registration) — is a formality which consists in inscribing on a register, specially kept for the purpose by the Government, a summary analysis of certain deeds and documents. At the same time that such analysis is inscribed upon the registers, the clerk places upon the deed a memorandum indicating the date upon which the deed was registered, and at the side of such memorandum an impresssion is made by a stamp. Eni-egistrement or registration is the inscription of deeds and documents ,FRENCH LEGAL TERMS. 559 upon the public register. They acquire thereby a fixed and certain date, even as regards third parties, A duty is payable to the State for each inscription, termed droit d'enregistremeni. Registration duty is payable upon each ti-ansmission of realty or personalty through decease, and in respect of every conveyance of realty inter vivos. The law of the 23rd August, 1871, Art. 12, inflicts a penalty equal to one-fourth of the amount dissimulated upon all the parties jointly and severally who seek to conceal the real consideration for sales, &c., with intent to defraud the revenue. Documents under private signature, conveying realty, leases, under-leases and similar assurances, must bo registered within three months from theii- date. As regards documents of the same nature executed abroad, the time is extended. (Law of Frimaire, an VIT., Art. 22.) Contracts under private signature, relating to other subjects, need not be registered within any speoiftod period. Agreem.ents for the sale of businesses and good-wills must be registered within three naonths of their date. In default the duty is increased, (Law of 28th Februiivy, 1872, Art. 7.) Wills drawn by or filed with notaries must be registered within three months of the decease of the testator. In default a double duty is payable. When documents not registered are produced in evidence, the Court must order them to be deposited at the (/rfffc for immediate registration. Registration duties are fixed, or ad valorem. Certain duties are payable upon documents which are registered. Registration oSers this advantage : that if the document is lost or destroyed, its existence can be proved by a certi- fied copy of the analysis of the document inscribed upon the register. Besides this, the deed acquires by the fact of registration a certain fixed date, which can be invoked against third parties who are not parties to such deed. Exceptions correspond to pleas of abatement in England, Eseroquerie — Signifies fraudj swindling, etc. 560 DICTIONAET OF Ester en justice— To institute legal proceedings. Bxcusatailit6— If the bankrupt has been guilty of no fraud or gross negligence, the creditors can, in meeting assem- bled, declare him excusable. Formerly, the efEect of this- declaration was to release the bankrupt from imprison- ment, in case the creditors refused to grant the concordaL Execution — is the sale by the creditor of the property belong- ing to his debtor. Execution — is the sale or the repui-chase made by a stock- broker in virtue of his droit d'execution. See the word droit d'execution. Expert — This expression is practically equivalent to " Expert,"' but a distinction must be made, for in France an expert is an officer of the Court, and he draws up a report very much after the fashion of a referee or master in Chancery. Faillite — see Banki-uptcy. Ferine — ^To be executed forthwith and without condition. Fonds perdus — It is said that a capital is invested a fondg perdus when it is stipulated that in consideration of the payment of an amount as interest higher than the normal rate, the lender shall be repaid his capital in this manijer. The borrower, after having paid the interest during the period determined, is free as regards the capital itself. Porce arm^e — This term comprises the armed aid which any person has the right to demand for the purpose of executing a judicial decision; such are gendarmes and J)olicemen. Their services must be applied for through the commissaire de police. Force majeure — This term is used with reference to all circumstances independent of the will of man, and which it is not in his power to control, and such force majeure is sufficient to justify the non-execution of a contract. Thus, war, inundations, and epidemics, are cases of force majeure ; it has even been decided that a strike of work- men constitutes a case oi force majeure. Fr^teur is the owner or person who lets a ship on hire. Gage — see the word Privilege. (Appendix.) Gardes de Commerce— Special police for arrest for debt. See Imprisonment for debt and Index. G^rants are managers of a Company. Greffe — Office of the clerk of the Court where judgment rolls are drawn up and recorded. PEENCH LEGAL TEEMS. 561 Greffier— Clerk at the Court. See Index. Grosse — see Control a la grosse. Homologation — means confirmation. (See Bankruptcy.) Huissiers — Marshals, process-servers, sherifEs' officers. (See- Index.) HypothSque — ^A mortgage (hypotheque) can only arise in the cases and according to the formalities prescribed by law, and may be either Conventionnelle, Judiciaire, or Legale. A legal mortgage is one that is cast by the law. A judicial mortgage is one that results from judgments. Conven- tional mortgage results from agreements, deeds and con- tracts. The following kinds of property only are capable of being mortgaged : — 1. Saleable real estate and fixtures. 2. "The usufruct of such property and fixtures as long as- the usufifuct lasts. When the fixtures are separated from the real estate they cease to be covered by the mortgage. (Code Napoleon, Arts. 2,114—2,217.) (See Appendix.) Hypotheque Conventionnelle — Conventional mortgages- result, as we have said, from agreements, deeds, and con- tracts. Conventional mortgages can only be executed by persons capable of alienating their real estate. Persons whose right to real estate is conditional, or liable to be divested, can only execute a mortgage upon their interest in the same. Conventional mortgages can only be effected by an authentic deed executed before two notaries or one notary and two witnesses. Contracts entered into in a foreign country do not confer a mortgage upon property in France, unless so provided by international treaties. (See Appendix.) Hypothdque judiciaire — The lien which attaches to the real estate of a party in a suit when judgment has been rendered against him. It attaches not only upon the real estate of which the party is seised at the time the judgment is rendered, but upon all real estate that he may acquire until the judg- ment is paid. This subject is treated in the. Code Civil. This lien does not attach by virtue of an arbitration award until the award has been rendered executory by judicial decree. Foreign judgments do not constitute liens upon land 562 DICTIONARY OF until they have been rendered executory by exmquatur in France, unless there is a special treaty provision to the contrary. (See also Appendix.) ^ypothfeque legale— The rights and claims which give rise to legal mortgages are :■ — 1. Those of married women upon the property of their husbands. 2. Those of minors and interdicted persons upon the property of their guardians. 3. Those of the State, parish and public institutions upon the property of their treasurers and responsible administra- tors. A creditor who has a legal mortgage may enforce his right upon all the real propei-ty belonging to his debtor, and upon that which he may afterwards acquire with the modifications contained in the Code Civil. (Bee also Appendix.) inscription — Record : used in recording mortgages. Inscription means registration in certain cases. Instructions MinistSrielles. —Instructions from a minister to his subordinates. Interdiction — Every person who, on account of insanity, has become incapable of controlling his own interests, can be put under the control of a guardian, who shall administer his affairs with the same effect as he might himself. Such a person is said to be interdit, and his status is described as interdiction. Majority is fixed at the completion of the 21st year, at which age every man is considered in full possession of all civil rights. Idiotcy, insanity and madness, constitute incompetency, and consequently are followed by interdiction. Every relative, husband or wife, may apply to a Court of First Instance to have interdiction adjudged against his relative, wife or husband, if he or she has reasonable cause for so doing. In cases of madness, if interdiction is not demanded (provoquee) by the spouse or relative, it must be done by the public prosecutor, who may also demand it in cases of idiotcy or insanity, when the idiot or insane person is unmarried and without relatives. All actions of interdiction must be brought before the Court of First Instance, when the Court will call a family council, constituted as previously stated, to give their advice respecting the state of the person whose interdic- tion is demanded. Those who bring the charge cannot be FRENCH LEGAL TERMS. 563 Tnembers of the family council; but a husband or wife, and the children of the person whose interdiction is demanded, may be admitted, but they have no voice in the ^ieliberation. Interdiction must be adjudged publicly, -and in the presence of interested parties, or after they have been summoned to appear. In nonsuiting the plaintiffs, the Court, if necessary, may make an order that the defendant shall not hereafter plead in a suit, nor compound, nor borrow, nor receive money or goods, nor give a discharge for them, nor alienate nor mortgage his estate, without the concurrence ■of a trustee appointed by the Court. In case of an appeal against the judgment of the Court of First Instance, the Court of Appeal may, if necessary, make or order a fresh examination. All final judgments of interdiction, or appointments of trustees, must be at the instance of the instigators, notified to the parties, and posted within 10 days in the hall of the Court, and at the offices of the notaries of the district, after which all subsequent trans- -actions of the interdicted persons, without the concurrence of the trustee, are void ; and if the insanity was notoi-ious, transactions previous to the judgment may also be repu- diated. After the death of a person, acts done by him cannot be impugned on the ground of insanity, except his interdiction had been demanded or adjudged before his death, or unless the very transaction bears evidence of insanity. If there is no appeal, or if the judgment has been con- firmed in appeal, a guardian and a supplementary guardian are appointed as prescribed in cases of minority, guardian- ship and emancipation. A husband is, of right, the guai'dian of his interdicted wife. A wife may be appointed the guardian of her inter- dicted husband ; but in this case the family council pre- rscribes the rules for her administration, leaving the wife only such remedy as a Court may grant when she supposes herself wi'onged by the rules imposed upon her by the family council. No person except a hustend or wife, grandparent, child, or grandchild, is bound to remain the guardian of an interdicted person more than ten yeai-s. At the expiration of that period a guardian may claim his release, and demand that some one else be appointed in his place. 2 564 DICTIONAEY OF The income of an interdicted person must be applied in alleviating his misfortune, and providing remedies for his cure, according to the amount of his property. The family council may order that he be attended at his own house, or that he be placed in a private establishment, or even in an asylum. Wien the marriage of the offspring of an interdicted person is proposed, the marriage portion, or the avance- ment hoirie, and other matrimonial settlements, are ruled, according to the advice of the family council, confirmed by the Court of First Instance. Interdiction ceases when the cause is removed, but the- same formalities that established the interdiction must be gone through to annul it ; and after judgment is pronounced the interdicted person resumes the exercise of his full rights. The status of interdiction is also the legal result of a criminal conviction. Intervention-^Acceptance by intervention or for honour. Inventaire — Inventory ; iised technically of the inventory drawn up in case of death or bankruptcy. Journal ofS.ciel — A public journal, published by the Govern- ment ; it contains the laws and all public proceedings ; it is to this extent a duplicate of the Bulletin des Lois, but it contains divers other matters, such as the debates of Parliament, and all the preliminaries of the laws published. Jours de Planohe — see Staries. Juge-Commissaire — see chap, on Bankruptcy. The juge- coininissaire corresponds somewhat with English registrars in bankruptcy. Juge-Commissaire is one of the judges of the Tribunal of Commerce appointed as a registi-ar to superintend the operations of a bankruptcy and to make certain orders and regulations in relation to its conduct and management. Juges correctionnels — This expression is employed to designate the Tribunal Correctionnel. See this word. Juge-de-Paix — Justice of the peace. Jugem.eiit eontradietoire is a judgment given against a party who has appeared and put in a defence. Jugement d'hom-Ologation— Decree confirming the con- cordat. Juridiction Administrative— The above is the jurisdiction FEENCH LEGAL TERMS. 565 of the Tribiinaiix Achninistraiife, See TribimoMx Adminis- tratifg\ ■Juridiction Civile — Organisation of justice in civil cases. •Juridietion Commerciale— Jurisdiction of the Trihunaux de Commerce. •Juridietion Correetionelle et Commerciale — Jurisdic- tion of the Trihunaux Correetionelles and of the Trihunaux de Goimnerce. Juridiction criminelle— Jurisdiction of the Criminal Courts. Justice-de-Paix— Justice of the peace. Le connaissement c'est la marchandise— This is an axiom of law which signifies that the bill of lading repre- sents absolutely the merchandise itself. Iiettre de voiture— Way bill. Liberation— Eeleased. -Iiiquidateurs judiciaires — The above are persons appointed by the Com-t to wind up partnerships. In some cases the liquidator named is one of the partners, but generally he is a retired barrister or solicitor possessing the confidence of the Court, and whose occupation specially consists in attending to such liquidations as are confided to him. When the liqjiidation is concluded, he makes up an account setting forth the operations of the winding-up. This account he submits for approval to the parties inte- rested, and in the event of any of them refusing to approve it, he is summoned before the Court -by the liquidator for judgment as to whether all the operations of the winding- up have been properly carried out, and discharging him from the duties which have been confided to him. Xiiq^uidation — Partition in cases of separation de biens. Iiitispendance signifies ■ lis pendens — see Declinatoires. The French Courts will not stay an action upon the ground that the defendant is being sued in a foreign Court, and may be exposed to pay twice over. Art. 171 of -the Code of Civil Procedure provides, that " if a suit has been previously brought in another Coxtrt with the same object, an adjournment can be claimed and ordered." But it has been decided that the above enact- ment applies to causes pending in the French Courts only, principally upon the ground that as future foreign judg- ments could not be executed in France until rendered 566 DICTIONAET OP executory by the French Tribunals, they should not arrest the course of justice. Magasins g^nSraux — Bonded warehouses {see Law). Mairie— The Government building of each, commune. It contains the record office of all civil acts, and the list of voters ; and it is there that political and municipal elec- tions take place. Majority— sec Interdiction, also Mineur emancipc. Mandataire — Agent acting under a power or authority. Mariage en comniunaut^ — see Coinmunomte de Mens. M^moire is a document in the form of a petition, by which appeals to the Court of Cassation are initiated. See also- Ghamhre des Reqiietes. Mineur ^mancip^ — The age of majority is fixed by law at 21 years, but a young ^^an can be relieved of the inca- pacity which results from minority at the age of 15 years and upwards, if he has a father and mother, and from. 18 years upwards, if, having lost his father or his mother, he is subject to a guardian. He is then said to be emancipc, and his new status is called ema/ncipation. Minist^re — The building which contains the offices of the Minister or Secretary of State. Ministdre Public — This is the generic name given by the law to the Frocureurs-Generaux and Avocats-Generaux,. Prooureurs de la Bepuhlique, and the substitutes of the Pvocureurs de la Repuhligue. Mutation en Douane— Mutation is 'the generic word, for the transfer of property by purchase or descent. Mutation en Douane is the equivalent for ships to what transcription is for. real estate. See Transcription. Myriamdtre is a measure of distance comprising 10,000' metres = 6'2138 English mUes. Kolis — see NoUssement. Ifolissement signifies freight. Ifom coUectif — see Societe en nom collectif. Notaire— see Index. Octroi— City dues. ' 0£Q.ciers Ministeriels are legal officials engaged in various branches of the law, enjoying a monopoly in their respec- tive professions. They are therefore compelled to act when their services are legally requisitioned. Theiollowing are offieiers ministeriels ; — greffiers, huissiers, avoues, com- . FRENCH LEGAL TERMS. 567 ■)nissairea-priseurs, notaires and gardes du commerce. (See these headings.) Avocdts, or counsel practising in the Tribunals of First Instance and in the Courts of Appeal, are not officiers ministeriels. The number of such counsel is unlimited ; but avocats d la Goiir de Cassation and au Conseil d'Etat are offieiers ministeriels. Opposition— This word is used in three different senses :-- 1. Motion to open a judgment by default. 2. Saisie-arret — ^Attachment. 3. Injunction. Opposition is the mode adopted by a defaulting party, of petitioning the Court which has given judgment against him to retract the decision rendered in his absence, and to readjudicate upon the case after hearing his defence. (See Index.) Ordonnance de B,6t6r6—see Beferc. The above are orders made by the president for an examination to be conducted by experts, or for the carry- ing out of any other provisional measures not prejudicial to the rights of either of the parties engaged in an action. Paootille — Goods put on board by the crew without paying freight. Palais de Justice — The Palais de Justice is the building in every city which contains the Tribunal and other necessary offices for the carrying on of judicial proceedings. Papiers timbres — All manuscripts which have to be sub- mitted to registration must be written upon special paper stamped by the Government, according to a tariff which varies with the length of the papers in legal documents, or according to the amount set out in the document when it relates to an admission of debt, a bill of exchange, or a promissory note. Par actions — A Soeiete is said to be par actions when its capital is divided into shares. Par Procuration — By power of attorney. Parquet — The word parquet has, in legal phraseology, two significations. It is employed to designate the magistrates who are charged with the conduct of proceedings in criminal cases and misdemeanours, and also to express that part of the Bowse which is reserved for stockbrokers. Parquet du Tribunal — The offices which are reserved jn the Palais de Justice, to the Procureur de la Bepubligue 568 DICTIGXAEY OF and to his deputies. The Procureur de la BepulUque and liis deputies are also designated by the expression officierg du parquet, or by abbreviation by the single word parquet. Part d.'iZLt^rdt — ^Expression . used to denote the shares of part owners in a Societe other than a Societe par actione. Participation — eee Societe en participation. Partie civile — In a correctional or criminal prosecution, the complainant is called partie civile, when he joins in the prosecution instituted by the Ministere Public, and asks for damages for the prejudice which has been caused to him. Payeur par intervention — Payer for honour. Peines de discipline — Measures of discipline governing French barristers, solicitors and other officials. Personne morale — This name is used to express associations of persons to whom the law gives the right of buying, selling, appearing before the Courts, under the name which they have chosen to give to their association. These associations have the same rights as an individual ; they have a domicil and a personality and rights distinct from those of the members who compose them. They are called personnes morales, because their existence is an abstract creation of the law. The word moral is employed in distinction to ; the word physique or materiel, which applies to living persons in their physical or material state. Mercantile Companies, the State, religious com- munities recognised by the Government, certain benevo- lent estabUshments recognised by the Government, are instances of personnes morales. It will be seen that it is practically equivalent to the English term Corporation. Possession vaut titre---This is an axiom of law which signifies that the fact of possession of personal property constitutes in itself a sufficient right of ownership, and that the holder has no need to prove the legitimacy thereof. But this principle is only applicable when the^ fact of possession is unaccompanied by other circumstances. Pour acquit — is the formula which a creditor prefixes to his signature when he gives a receipt. Pourvoi en Cassation— Signifies an appeal to the Court of Cassation. Prefecture — The territory of France is divided into eighty- six departments. The principal town of each department '^FRENCH LEGAL TEEMS. 569 is called Prefecture. The department is administered by a Prefet, who is under the direct orders of the Minister of the Interior. Each department is divided into a certain number of districts called arrondissements, and adminis- tered by a sous-Prefet. The principal town of the dis- trict is called a sous-Pr.efecture. This denomination is also given sometimes to the district itself. The district is itself divided into a certain number of cantons, and the cantons are subdivided into communes. Preneur— see Bills of Exchange. Prescription — see fully hereon in Appendix. President — Presiding judge. The Court is composed of at least three judges. The voice of the presiding judge is conclusive ; he has divers functions which are purely personal, as, for example, the right to sign orders which are submitted to him by petition. Privil6ge^A creditor is said to have a iwivil^ge when, by virtue of the law, he has the right to demand payment, in preference to the other creditors, out of the proceeds of special property of his debtor, or even of the general estate of the debtor ; properly speaking, the word privilege should only be employed to designate the preferential rights created by the law, and not those which result from the agreements of the parties ; thus, the preferential right which the law accords to a landlord to be paid his rent, and that which it grants to employes for the payment of their salaries in case of bankruptcy, constitute privilege ; but the right which a creditor may possess to be paid preferentially out of the proceeds of personal property which has been given him as security, or out of the price of real property which has been mortgaged to him, con- stitute preferential rights designated by the terms droit de gage (in the case of personal property) or droit d'li/ypo- tliegue (in the case of real property), or simply gage or hypotlieque. A mortgage granted upon real property gives to the creditor the right of seizing and selling such real property, even when it has passed into the possession of a third person: this right is called droit de suite. {See Appendix.) Procedure en Cassation. — The practice in the Court of Cassation is special. . A.mernovre, in the form of a petition, sioTied by an Avocat a la Cour de Cassation, is filed in the 570 rici'iosAEY 01- offices of the Court, but it is not sei-ved upon the opposite- party, who is not represented at the outset of the proceed- ings. The case is brought before the Cliamh-e des Bequetes ; one of the judges reports thereon, the appellant's counsel and the Ministere Fuhlic submit their observations, and the Court gives its decision. If the appeal is held to be untenable, the petition is rejected. Such decision is given with the reasons upon which it is based, and is absolutely- final. If the Court considers the appeal admissible, it is sent. up to the Ghamhre Civile. In the latter Ghamhre the respondent is represented, and the avocats of both parties argue the case. The Ministere Public is also heard. The Court delivers its decision. If it rejects the appeal, its judgment terminates the litigation. If it admits it, the judgment appealed against is quashed, and the case referred back to another tribunal of the same order, which is designated. Procedure sommaire— Practised in cases of ui-gency. Although the practice was instituted for the purpose of arriving at a speedy conclusion, it is not more expeditious than the ordinary one. Proofs verbal — ^A proces verbal is a written report, which is signed, setting forth a statement of facts. This term is applied to the report proving the meeting, and the resolu- tions passed at a meeting of shareholders, or to the report of a commission to take testimony. It can also be applied to the statement drawn up by a huissier in relation to any facts which one of the parties to a suit can be interested in proving, for instance, the sale of a counterfeited object- Statements drawn up by other competent authorities, of misdemeanours or other criminal acts, are also called p^-oces verhaux. Proeds-vertaal de Carence— see Carence. Procureur de la B6publique— see Index. Prooureur G6li6ral— see Index. Promesse simple — This term is applied to the contract which results from a bill of exchange or a promissory note which, by its form, does ngt fulfil all the conditions re- quired by the law. ProtSt — ^Protest of negotiable paper. ProTision-^see Bills of Exchange. FRENCH LEGAL TEEMS. 571 Prudhommes — see GonseU de Prudhomvies. Quintal — a unit of measurement employed in estimating the burden of ships, equivalent to about an English hundred- weight. B^ceplssS de cotisation— Eeoeipt setting forth extent of interest subscribed by a member of a mutual insurance Company. Keceveur-Central— see iSeceyewr-GewemZ. B,eceveur-Gr6n6ral— The name given to the officer who receives all the State taxes in each department ; in Paris he is called the Beceveur-Gentral. Rechange— see Bills of Exchange. Recommandataire— see Chapter on Bills. BdfSrS — see En refere. RdfSrS — In civil cases is a simple and speedy procedure permitted in urgent cases. It is an application to a judge in chambers. BSglme — The name Regime is given to the various species of contracts which govern the pecuniary conditions of mar- riage. There are three kinds of Begime, viz. : — Regime de communauie, Regime de separation de Liens, and Regime dotal. Bach of these kinds of contract possesses special rules, determined by law ; but the parties have the right to modify these rules, or to make any stipulations they may think proper. Such stipulations must be made before marriage, and cannot be modified aftern'ards. {Sea also Appendix.) Regime de communaut^ de biens is one of the systems of man-iage contract which the parties can adopt. This system is presumed to be adopted when the marriage is celebrated without any contract being drawn up. The conditions of such contract are regulated by the Civil Code. AU the personal property which the parties pos- sessed at the moment of the marriage, and all that which may devolve upon thena during the marriage, either by succession, donation, or otherwise, is comprised in the communaute. Their real property alone remains the separate property of the party to whom it belonged. The husband is the owner of all the property composing the corrnnunoMte, and can dispose of it at his free will. The above are the principal -provisions of the law, but they can be departed from by the will of the parties, expressed in a proper marriage contract. (See also Appendix.) ,572 DICTIONARY OP Jtigime de oova.va.xinau.t6— see Beginie de conimu/iiaute de Mens, H^gime dotal— The regime dotal is one of the systems of marriage contract which the parties can adopt. Under this regime the real property may be sold upon the con- dition that the price realised be re-invested either in lands or French rentes, or shares of the Bank of France or rail- way bonds guaranteed by the French Government. A third party who purchases dotal real property can be com- pelled to pay the price over again, if he has not assured himself that the purchase money has been re-invested in conformity with law or in conformity with the marriage contract. Real estate so held cannot be sold on execntionj the revenue of such lands belongs to the husband. The revenue can be seized to the extent of the surplus over the expenses of the married couple. Every sale of dotal real property which is not authorised by the Tribunal is void, and can be so declared on the application of the husband or of any interested party. Personal property of all descriptions can be declared dotal. In the latter case the above clauses respecting real property apply to it. (See Appendix.) Jt^gime de separation de biens— see Regime and Separa- tion de hiens. JR^gime de I'union — see Begimie and Union. JBdglement d' Administration Putolique— Ordinances drawn up and voted by the Conseil d'Etat, with the object of providing the methods and means necessary to render certain laws executory. These Ordinances provide for all the details of execution into which the general legislation may not have entered : when they affect the police they are called Reglements de Police. H^glement de Police g^n^ral ou particnUer— «ee Eegle- ment d' Administration Publigue. E61iabilitation— A bankrupt is not only deprived of the administration of his property, but he is also stripped of his rights as citizen ; for example, he cannot serve on a jury, he cannot vote, he cannot take part in the Stock Exchange. The composition returns to him the adminis- tration of his affairs, but it is only by reliabilitation that he regains his political rights and rights of citizenship. Eemise de place en place— This expression signifies the condition required for the validity of a bill of exchange. TRENCH LEGAL TEllMS. 573'- Bemisier — Outside stockbroker. Rente — Name given to Government loans. Report — This term (wlucli is equivalent to the word coniangor employed in the London Stock Exchange) is applied to- the operation by which a stockbroker prorogues or *' canies over" with the view, of realising at a higher price the settlement of a bargain which has been entered into. Repertoires — Registers kept by notaries and Jmissiers of deeds and documents drawn by them. Representation — The production in evidence of particular items in a book of accounts. A distinction should be- made between representation and communication. Tlie- former is the production in evidence of a specific portion of a book of accounts, the latter is the production of the- book itself. RequSte — Petition. See Ajournement ; see also chap, on' Court of Cassation. Retention — see Droit de retention. Retour sans frais — Formula put upon a biU of exchange to- signify that the drawer of a bill of exchange waives protest and will not be responsible for costs arising- thereon. Retraite — Any endorser of a bill of exchange who pays the same because it has not been met . at maturity by the- drawee may himself draw a new bUl, called retraite upon the preceding endorser in order to reimburse himself the moneys that he may have paid. Revendication — Replevin in case of bankruptcy or attach- ment. Ristourne— Returns in marine insurance. Saisie execution — Execution or distress. Saisie foraine — ^A species of attachment.' Saisie r6elle — Seizure of realty. Sanf conduit — Immunity from an-est granted under certain- ch-oumstances to persons under charge or indictment. Seing — Signature. Separation de biens — By the above is meant the legal status of the husband and of the wife, who, according to their marriage contract or by judicial decision, possess each the property in and the administration and eiijoyment of theii' respective estates. separation de corps (judicial separation) — Divorce has been abolished by the law of 1816, but judicial separation can 574 DICTIONAET OF still be resorted to. The principal effects of indicial separation are tte following : — The parties have separate households. The Tribunal decides who shall have the custody of the children, and if the parties are married under the regime de communaute, their property must be divided and themselves remain separes de liens,i.e., independent of one another as regards property; the marriage in all other respects remains effective. S|§par^ de biens — This is the status of married parties who have upon their marriage adopted the system of separation de biens, or when, pursuant to a judgment, they are declared to be separated as regards their property, after having been maiTied under some other system. "Signifi.cation — A writ served by huissier. .Soci6t6 — The definition of this expression is given upon p. . It is employed to designate Companies and partner- ships of every kind. Soci6t6s a capital variable — see Law on Companies. "Soci^t^s Anonymes— «ee ibid. Soci^t^s en commandite — see SociStes en commandite simple. Soci^t^s en commandite par actions— see Law on Coni- panies. 'Soci6t6s en commandite simple— see Hid. Soei6t6s en nom coUectif— see ibid. 'Soci^t^s en participation — see ibid. .Soci^t^S par actions are Companies divided into shares. There are two kinds of Soeietes par actions, viz., Societes anonymes and Societes en commandite par actions. A. third species can be added, viz., Societes a capital variable, but this latter kind of Company applies only to co-operative Societies, and is little known in France. Sommation — A sommatipn is a demand served by a huissier, by which one party calls upon another party to do or not to do a certain thing. The above document has for its object to establish that upon a certain date the demand was made. Sous-Pr 6f eeture —see Prefecture. Sous seing priv^s — ^A document under private signature. Sous signatures priv6es — see Sous seings privies. Staries — The period allowed for the unloading of a ship. Statut personnel— The body of law that defines and controls FREKCH LEGAL TEKMS. 675 capacity and personal relations. So also the body of law that governs real estate is termed Statut-Eeel. "Statuts sociaux— Articles of Association. Stellionataire — A party who fraudulently mortgages property to which he has no title. Subrogation— Subrogation. Surench^re (sale at auction) — A party desirous; of re- piu'chasing property at auction before the Court can, by offering one-tenth or one-sixth, according to the case, in addition to the price realised at the sale, oblige the property to be put up once more at auction. This bid upon a bid is called a surenchere. "Surestaries — When the time provided in the charter-party for loading or unloading has expired, the captain is still bound to accord a customary delay, which in most ports consists of 16 days. This delay is termed sitresiarie. If after this delay the shipper requests an extension, the captain may grant it. This new dela,y is termed contrestarle. "Syndic — This is the title given to the person who is com- missioned by the Tribunal to administer a bankrnptry ; he fulfils the same functions as the trustee in English law, or assignee under the United States statutes. This title is also given to the President of the Committee of the Stock Exchange. "Syndic provisoire is a temporary Syndic appointed )iy decree of adjudication. See Syndic. Tarif d'abonnement — A scale of duties to he jiaid for ahonnement. Taxe proportionnelle — Government taxes calculated ad valorem, as distinguished from those which are fixed and do not depend upon the amount concerned in the acie. Tirage pour compte — Drawing for account of a third party. Tireur pour compte — Drawer for account of a third party. Tireur — Drawer. ■Tir6 — Drawee. Titres — This word possesses various significations ; sometimes it is applied to the document which proves the claim of a creditor ; at others to the Stock Exchange securities, shares or bonds, French Government Funds, or those of foreign Governments. Titres au porteur are shares, bonds or all Government Rentes, of which the interest and the capital are payable to 576 DICHOKAEY OF the bearer thereof, without its being necessary for him to prove that he is the owner, whether by transfer or endorse- ment. Titres de Bente sur I'Etat — French Govemm'ent Securities. Titre executoire — This appellation is given to judgments or notarial deeds, because by virtue of these processes the creditor may proceed to execution, that is to say, seize and. sell the goods of his debtor. Tonneau de jauge — Unit of measurement, employed in estimating the burden of ships, equivalent to about an English ton. Transcription — Record of deeds transferi-ing real estate. In France, as in the United States, deeds are copied in extenso, in registers kept at the Bureau des Sypotlisques. Tribunal civil — see special chapter. Tribunal de Commerce— The Coiirt that has special juris- diction over merchants and mercantile suits. Tribunal de Police Correctionnelle — see Trihunaux, Correctionnelles. Tribunaux Administratifs are tribunals which adjudicate upon acts arising from the agents of the Government,, which have exclusive jurisdiction when the Government is one of the parties in suit. Tribunaux Correctionnels— Courts composed in the same manner as the Givil Tribunals, with jurisdiction upon mis- demeanours. Union — see Bankruptcy. Valeur a I'encaissement — Equivalent to " endorsed for collection." Valeur en espdces — ^Value received in cash. Valeur en marchandises— Value received in goods. Valeur en compte — ^Value received in account. Vend6miaire is the name of the month which, according to the Republican calendar adopted in France in 1792, covered the time between the 22nd September and the 22nd October. Visa pour timbre — When a manuscript has not been executed upon stamped paper, and the law requires that it should be so executed, the law may be complied with by getting the manuscript vise j)our timbre. It is then said to receive a V iea poxw timbre. Vis6 pour timbre— see Visa pour timbre. INDEX, ABANDONMENT of cargo by consignor ... ... ... ... 263 of vessel ... ... ... ... ... 2 6 in what cases it can be made ... ... ... 357 when, it cannot be made ... ... ... ... 358 average losses ... ...... ... ... ... 358 partial or conditional ... ... ... ... 358 extent of... ... ... ... ... ... 358 time for abandonment ... ... ... ... 358 notice of ... ... ... ... ... ... 359 rights of, insured ... ... ... ... ... 359 presumptions of loss ... ... ... ... 359 definition of long voyages ... ... ... ... 359 further rights of , insured ... ... ... ... 359 obligations of, insured ... ... ... ... 359 fraudulent declarations, •■• . ••• ••• -•• 360 shipwreck and stranding ... ... ... ... 360 expenses allowed ... ... ... ... ... 360 limit for payment ... ... ... ... ... 360 evidence ... 360 extinguishment of security ... ... 360 effects of abandonment ... ... ... ... 361 freight, how dealt ivith ... ... ... ... 361 arrest of ship- ...•■• ...•■■ ... ... ... 361 abandonment of property ai'resied ... ... ... 361 unseaworthiness ... ... ... ... ... 361 lemedy of insured ... ... ... ... ... 361 dntiei! of captain ... ... ... ... ... 362 liabilities of insurer ... ... •■. ... 362 cases of capture ... ... ... ... ... 362 ransom, various rules ... ... ... ... 362 ABUS DE CONPIANCB. bankrupts convicted of ... ... ... ... 107 P J? INDEX. PAGE- ACCEPTANCE for honour ... ... .•• ••■ .•• 189 may be partial ... ... ... •■■ .■■ 188 by interrentioii ... ... ... .■■ •■. 189 of drawee must be procured by drawer ... ... 183 see Bills of Exchange ... ... ... ... 185 of bill raises presumption of indebtedness ... ... 184 „ at fixed date, form of ... ... ... 235 of forged bill, liability on ... ... ... ... 200- forged ... ... ... ... ... ... 20a drawer and indorsers liable on ... ... ... 200' Article 140 ... ... ... ... ... 187 ACCEPTOE OP BILL. liable for five years, when lost • ... ... ... 203 may sue drawer on accommodation bill ... ... 184 cannot sue tireur pour compte ••• ... ... ... 184 indebted to drawer ... ... ... 184 ACCOUMODATIOir BILL 184 ACCOMPLICES in infringement of patent rights ... ... 278- ' in ianqiieroute frauduleuse ... ... ... 105 ACCOUNT. questions of , how dealt with ... ... ... 35 accounts of syndics ... ... ... ... 8S acquittal, on ianqueroute simple, no bar to prosecution ■ for frauduleuse ... ... ... ... 102 ACTE PUBLIC. (See Notarial Deeds.) ACTE. meaning of ... ... ... 42 ' de perquisition ... ... ... ... 211 ACTES AUTHENTIQUES (see Notarial Deeds) ... 17 ACTES. PUBLICS 17 ACTES SOUS SEINGS PRIVES. definition ... ... ... ... ... 51 effect of , if admitted genuine ... ... ... 51 rules of admission and contestation ... ... ... 51 examination in case of dispute ... ... ... 51 onus of proof ... ... ... ... ... 51 evidehc ... ' ... ... ... ... 51 genuineness, how established . ... ... ... 51 rules as to signature ... ... ... 51 INDEX. PAGE ACTES SOUS SBINGS :PB,IVES— continued, illiterate persons... ... ... ... ... 51 effect of mark or cross ... ... ... ... 51 hoTT actes sous seings pnv^s acquire a fixed date as regards third parties ... ... ... ... 53 fixed date, how acquired ... ... ... ... 52 rules as to contracting parties ... ... ... 52 " exceptions in commercial cases ... ... ... 52 documents which may be drawn up in' above form ... 52 deeds which must be notarial ■ ... ... ... 52 rule as to patents ... ..; ' ..; ... ... 52 ACTIONS. indirect against partners ... ... ... 123 direct, by creditors against comtnanditaires ... ... 126 none by drawer against indorsers of bill of exchange ... 20& for repeal or forfeiture of patent ... ... ... 27S by proprietor of trade mark ... ... ... 287 or by public prosecution ... ... ' ... ... 287 brokers' clients cannot bring against each other . . . 250 exceptions ... ... ... ... ... 250 for freight, by owners or captain ... ... ... 267 on promissory notes, what are not under jurisdiction of Tribunal of Commerce ... ... ... ... 21ft on bills of exchange (see Bills of Exchange) ... ... 208 by and against syndics ... ... ... ... 79 what may be brought" by bankrupt in his Own name ... 79 by stockbrokers against, clients ... ... ... 25& against stooKbrokers, Venue for ... ... ... 25& see Sociiti en com/mdridite pai- ... ... ... 129 in name of firm ... ' ... ... ... ... 123 for negligence ... ... ... ... ... 17 between Frenchmen and foreigners, and vice versoi ... 70 ACTS OP COMMBRCE. "' enumeration of ... ... ... ... ... 25 ADHESIVE STAMPS. , when used on bills of exchange on foreign bills ... how affixed ... andcancelled ...' ' ADJUDICATION IN BANKRUPTCY. forms of ... ..., ... ...__ indispensable ... ea! o^cio, by Tribunal of Commerce ... 223 230 233- 233 107, 10» ... 76 77 p2 IV INDEX. PAGB ADJUDICATIOM" IN BANKRVPTCY— continued. relation, back of ... ..'.' ... ... ... 78 effects of... 78,106 subsequent transactions by bankrupt void against creditors ... ... ... ... ... 79 ADVERTISEMENT of bankruptcy adjudication ... ... ... ... 372 of sale of vessel ... ... ... ... ... 326 where to be posted ... ... ... ... 326 oi8oci4t4s ... ... ... ... ... 143 „ how formed ..'.' ...' ... ... 143 „ when required by law (see Partnerships) ... 143 oi affriteur — consignor ... ... ... ... 257 ALLOWANCE TO BANKRUPT 88 ALTERATION OP AMOUNT OF BILL OP EXCHANGE ... ... ... 200 before acceptance ... ... ... ... ... 200 after acceptance ... ... ... ... 200 ANONYME, SOCIETE (s«e Partnership)... ... 136 AiNTEDATING INDORSEMENT IS PORGERY ... ... ... ... ... 194 AGENT. for orders, stockbrokers may not have ... ... 252 of shipowner ... ..1 ... ... ... 257 master may be, to make contract of afEreightment . . . 257 for patent application ... ... ... ... 276 bill of exchange drawn by ... ... ... ... 179 for patents, form of procuration to ... ... ... 279 of foreigners out of Prance, may get trade mark . . . 286 may register trade mark ... ... ... ... 286 liability of, for interest ... ... ... ... 54 liability of principal to ... ... ... ... 54 of shareholders for legal proceedings ..-.•• ... ... 135 by procuration in bankruptcy ... ... ... 89 ajente de cftaiije (see Stockbrokers) ... ... ... 245 AGREES. how they differ from Avoues ... .., ... 15 are solicitors practising in Tribunal of Commerce ... 16 rights of litigants ... ... ... ... ... 16 poMvoirs ... • ... ...■■■ ... • ... ... 16 fifteen ajrff^s in Paris ... ... ... ... 16 monopoly of business ... ... ... ... 16 INDEX. V; / / PAGE AGREES — continued. disadvantages of system ... . . ... ... 16 how appointed and sworn in ... ... ... 16 how robed ... ... ... ... ... 16 professional seoresy ... ... ... ... 16 duties of agr^& ... ... ... ... ... 16 costs and honoraires ... ... ... ... 17 payment in advance ... ... ... ... 17 actions for negligence ... ... ... ... 17 agriculturists, promissory notes by ... ... ... 216 APPEAL. in bankruptcy; extension of time for... ... ... 99 against concordat... ... ... ... ... 100 to Cowrs d'jlppeZ within- two months ... ... ... 226 against creditor's application for adjudication in bank- ruptcy... ... ... ... ... ... 77 of debtor against sentence to close proceedings " ' ... 90 against adjudication ... ... ... ... 98 time for, in bankruptcy ... ... ... ... 98 time for bankrupt to ... ... ... ... 98 time for other parties than bankrupt to ... 98, 99 time for foreign creditors to ... ... ... 98 from Tribunal of Commerce... ... ... ... 226 from Tribunal of Commerce... ... ... ... 37 rule as to amount ... ... ... ... ... 37 various judgments... ... •■ ... 37 parties abroad ... ... ... ... ... 37 APPEALS TO GAIN TIME. how they should be dealt with - ... ... ... 37 APPEALS from Tribunal of Commerce {see Tribunal of Commerce) ... ... ... ... 28 in Bankruptcy ... ... ... •.• ■•• 98 APPEALS against judgments in Bankruptcy (see Bankruptcy) ... ... ... ... "^OS APPEARANCE. time for, in Tribunals of Commerce ... ... ... 31 APPLICATIOW (ex parte). of creditor in bankruptcy ... ... ... ... 77 appeal against' ... ... ... ... ■•. 77 ioT r4hahilitation ... ... ... . ... 106 APPORT. form of ... ... ■■• •■■ ■•• ■■• 125 interest on ... ... . • • ... ... 119 n INDEX. APP ORT — c ontinued. meetings to eonfirm, when it consists of privileges in Soci^t4s ... amounts of by com))iamd»taires, 'pablished PAGE ... 133 117—119 ... 129 APPOSITION DES SCELLES ... 84 APPBOPRIATION" Of partnership funds ... 119 ABBITBATION. ; Arbitrators — definition of ... ... ... ... 63 formerly compulsory in certain cases ... ... 63 submission to ... ... ... ... ... 63 mnst be acted upon within three months from its date ... 63 acts which terminate the coiiipromts ... ... ... 63 course to be pursued if difference of opinion exists ... 63 award ... ... ... ... ... ... 64 appeals ... ... ... ... ... ... 64 ABBITBES. (See Arbitration.) cannot resign if they have once commenced to act ... 63 ARBITRATORS' AWARDS. execution of in Franco ... ... ... ... 74 their duties, practice ... ... ... ... 32 in what cases appointed ... ... ... ... 35 their duties and fees ... ... ... ... 35 practice ... ... ... ... ... ... 35 reports, judgments upon ... ... ... ... 36 ARREST OP SHIP. (See Abandonment.) ARTICLES OP ASSOCIATION. must be by deed ... ... ... ... ... 131 f ornjalities as to ... , ... ... 148 contents of ... ... 148 publication of contracts made ... ... ... 148 for SociSt^ en commandite par actions ... ... 157 for a, Sociite jinonyme ... ... ... ... 167 ASSETS. administration of by syndics ... ... ... 87 . proceedings, where none, in bankruptcy ... ... 89 realisation of, after iMuon, ... ... ... ... 96 of bankrupt, distribution if not affected by prosecution 105 patent rights are ... ... ... ... ... 279 assignment of trade-mark ... ... ... ... 285 „ of bill of lading ... ... ... 270 INDEX. Vll PAGE assistance: JUDICIAIBE. (See Porma pauperis.) ASSOCIES GERANTS. ATTACHMENT of provision by creditors ... 191. by creditors of patentee, against patent rights . . . 279 in actions on bills of exchange ... ... ... .210 ATTACHMENTS OP PROPERTY. power of creditor to attach ... ... ... 17 Court having jurisdiction ... ... ... ... 17 formalities and requisites to writ of attachment ... ' 47 particulars in writ ... ... ... ... 47 notice to debtor ... ... ...■•■ ... ... 47 confirmation, how obtained ... ... ... J 7 consequences if not obtained ...-■• ... ... 47 payments by garnishee, when void ... ... ... 48 declaration by garnishee of amount in his possession ... 48 must be on oath and fully explanatory ... ... 18 practice ... ... ... ..t ... ... 18 what salaries are attachable ... ... ... 48 rules as to pensions ... ... ... ... ' 48 list of funds which cannot be attached ... ... 48 other general information ... ... ... ... 49 ATTESTATION OP CLAIMS IN BANK- RUPTCY 89 AUCTIONEER. judge appointed to act as ... ... ... ... 327 postponement of sale by ... ... ... ... 327 AVAL. (See Bills of Exchange.) Average. definition of average losses ... ... ... ... 363 how regulated ... ... ... ... ... 363 various kinds ... ... ... ... ... 363 definition of general average ... ... ... 363 the like of particular average ... ... ... 364 by whom the above are borne ... ... ... 364 exceptions which are not average ... ... ... 364 collision ... ... ... ... ... ... 364 claims for average, when admissible ... ... ... 364 free of average clause ... ... ... ... 364 AVERAGE LOSSES. (See Abandonment.) AVOCATS. are French barristers ... ... ... ... H course of study, diploma and oaths .... ... ... 11 viii .IXDEX. PAGE. AVOCATS — continued. privileges ... ••• ••• •■■ ■■• 12 «vOTt& may argue in certain cases ... ... ... 12 litigants may appear in person ... • ■ ■ ■ . . 12 ■ powers of Court in such cases ... ... ... 12 criminal cases, rights -of prisoners ... ... ... 12 arocat deputed by Court to defend prisoner must act ... 12 penalties for refusal ... ... ■•. ■•■ 12 illness of ovocaf, practice ...... ... ■•. ... 12 engaged elsewhere, practice ... ... ... 12 absence of avocot, liabilities ... ... ... 12 tableau of owcats ... ..... ...... ... ... 13 council of discipline ... ... ■•. ... 13 the iatonnier ... ... ... ... ... 13 attributions of counQil of discipline ... ... ... 13 th^ .tribunals can also deal with offences ... ... 13- ministire public and aggrieved parties can also prosecute avocats ... .... ...... ...... ... 13 peines de discipline ... ... ... ... 13 caution ... ... ... ... ... 13 reprimand ... ... ... ... ... 13 temporary snspensio.n ... ... ... ... 13 striking off the roll ... ... ... ... 13 avocat may be heard ... ... ... ... 13 carrying into effect of punishments ..." ... ... 14 aggrieved ouoca* can appeal... ... ... ... 14' tiitie for appealing... ..."' ... ... ... 14 penalty may be increased on appeal ... ... ... 14 avocat having incurred punishment is placed at the bottom of the list ... ... ... ... 14 general provisions and customs ... ... ... 14 avocats must keep terms ... ... ... ... 14 retired solicitors may be called to the bar ... ... 14 disabilities of allocate ... ... ... ... 14 not customary to employ more than one counsel in France 14 clients instruct counsel direct ... ... ... 14 fees payable direct... ... ... ... ... 14 no " JiMis o/ Court " in France ... ... ... 14 curious usages and customs... ... ... ... 14 counsel's fees not recoverable from losing party ... 14 incomes of French oTJOcats ... ... ... ... 14 litigation cheap in France ... •. . . ... ... 14 ■ wigs and gowns ... ... ... ... ... 14, Queen's counsel and . juniors,, distinction unknown in France... ...,, ... ... ... ... 14 ai'ocafs cannot sue for their fees ... ... ... 14 INDEX. AVOCATS DE CASSATION. (See chap, on Court of Cassat;cin.) AVOCATS A LA COUR D'APPUI.. (SeeAvocats.) AVOCATS GENBBAUX. (See Ministere Public.) in civil Courts 22ff AVOTJES. definition of ... ... must not be confounded with agrees definition of agriis ... duties of both inconvenience of French system different kinds of solicitors and counsel parties cannot sue in person in civil oases avou4s of civil tribunal . . . ■ ■ • av(yicis of Appeal Courts monopoly of practice number, death and retirement custom in Paris coiiipetition' for business ..."•' partnerships unknown class of business undertaken by avouis AVOUES (Solicitors). claim of, to interest upon their costs advancement of money by ... ■ practice in civil Courts AWARDS. how rendered executory cannot be set up in any case against third parties cannot be attacked by. way oi oppositioii appeals against must.be registered ... see Arbitrators' awards BAILEE. stockbroker's duties as BAILMENTS. goods on leased premises at time of bankruptcy BALANCE-SHEET. monthly, of syndics BALLOT. (5ee Tribunals of Commerce). 15 IS- IS IS- IS- 15- 15 15 15- 15 IS 15 IS- IS 15 55- 55- 22ff 64^ 64 64 64 64 25» 93- 86: 22 INDEX. BANK NOTES. not liable to opposition TA.GB. 61 are legal tender ... ... ••• ■•• ■•• ^^ bank shares 255 BANEBUPTCY. jurisdiction of Tribunals of .Commerce in 75, 77, 97, seg. law of 1838 ... ... - ••• 75,77,97,862. degcees of bankruptcy ...... ...... ... ... 76 traders and non-traders ... ... ... 76 who cannot be declared bankrupt ..... ... ... 76 foreigners in France may be made. bankrupt ... 76 even when so adjudicated elsewhere ...' ... ... 77 and foreign firm with branch in France ... ... 76 suspension of payments constitutes per se bank- ruptcy ... ... ... ... ... 76 adjudication indispensable ... ... ... 76 debtors, when adjudged bankrupt after death ... 76 ,, (1) suspension of payments previous to death „ (2) petition presented within one year after death ... ..."" ... ... 76 tribunal of domicil of debtor has jurisdiction ... 77 ,, of chief office of a firm ... ... ... 77 debtor trading in two localities ... ... ... 77 petition in ... ... ... ... ... 77 by debtor within three days after suspension of payments 77 by creditor ... ... ... ... ... 77 «a; ojicio adjudication by Tribunal of Commerce ... 77 em parte application of creditor ... ... 77 „ appeal if refused ... ... ... 77 set aside on application of debtor ... ... ... 77 foreign judgments rendered executory ... ... 77 only by Civil Courts ... ... ... ... 77 ibreign trustees ... ... ... ... 77 need not obtain exequatur ... ... ... ... 77 relation back of adjudication ... ... ... 78 ■date fixed by tribunal ... ... ... ... 78 importance of this ... ... ... 78 if no dates fixed, bankruptcy dates from adjudication ... 78 adjudication, effects of (see 106) ... ... ... 78 1. upon person of bankrupt ... ... 78 bankrupt deprived of certain politi- cal and- civil rights ... ... 78 when bankrupt makes fresh con- INDEX. XI 'JBA.'NKRTJVTCY— continued. • tracts, vendor cannot bring action against Mm ... ... ... 78 partnerships dissolved by bank- • Tuptcy of one member ... ... ?9 2. upon bankrupt's property ... 79 Art. 443 ■ • ... ... ... 79 property accruing during bank- ruptcy... ... ... ... 79 actions by and against syndics ... 79 bankrupt's transactions after adju- dication void against creditors ... 79 3. upon debts due by bankrupt ... 79 become immediately payable ... 79 interest ceases to run ... ... 79 sureties ... ... ... 80 landlord ... ... 80, 92, 93 • ■ rights of bankrupt's vendor in respect of executory contracts ... 80 may cancel the contract ... ... 80 or- demand security ...■ ... 80 in respect of bills to which bank- rupt is party ... ■ ... ... 80 when security is required on bills ■ and promissory notes ... 80 ■what- rights remain to bankrupt ... ... ... 79 he may begin to trade again ... ' ... ... 79 may bring certain actions in his own name ... ... 79 but syndic can the damages in some cases ... 79 may recover sums due since adjudication ... ... 79 :after adjudication bankrupt's • dealings void as against creditor, whether for valuable consideration or not... 80 acts in fraud of creditors may be impeached by syndics, whenever committed ... ... ... • ... 80 conveyances without consideration ... ... 81 if between suspension of payment and adjudication void 81 or within 10 days before suspension, void ... ... 81 conveyances for valuable consideration valid, if third parties had no notice of insolvency ... ... 81 ' gratuitous conveyances j)er se, void ... ... 81 ■ payments by way of fraudulent purposes, void ... 81 of debts not accrued due ... ... ... 81 marks of fraud ... ... ... ... 81 payment to drawer of bill before maturity ... 81 ' delivery of goods before due, void- ... ... 82 Xli INDEX. PAeB BANKRUPTCY — continued. . anticipated payment for discount void ... ... 82 Syjldic can recover all sums so paid or goods delivered, with interest ••. - — — — 82 payment of debts accrued due, valid... ... ... 82 if bona fide, and to parties without notice of bankruptcy ... ... ••• •■• 8i syndic must prove notice before he can set them aside 82 sums, if payment made otherwise than in cash or bills 82- or by bankrupt's debtor to bankrupt's creditor, or in goods .. . ... ... ... 82 goods delivered to bankrupt, the price of which is not paid, cannot be returned by him ... 82, 83. unless obtained by fraud ... ... ... ... 83- mortgagea. and charges upon debtor's property 83 if made, within 10. days prior to suspension of pay- ment are void ... ... ... ... 83- but if to secure past debt, may be valid ... ... 83- charges executed under judgment against debtor may be set aside ... ... ... 83- Art.446 ... ... ... ... ... ... 82 contracts before bankruptcy ... ... ... 83 onus of proof .. . ... ... ... ... 83 if for valuable consideration syndics must prove — 1, imala fides ... ... ... ... 84 2. prejudice to general creditors... ... 84 payment to holder of bills before maturity void ... ... ... ... ... ... 84 when paid after suspension ... ... ... ... 84 who can be sued by syndics ... ... ... 84 proof required ... ... ... ... ... 84 interest chargeable ... ... ... ... 84 juge-commissaire, member of Tribunal of Com- merce ... ... ••• . . ••■ ... ... 84 opposition des scell^s ... ... ... 84 when dispensed with ... ... ... ... 84 by whom carried out ... ... ... ... 84 on the bankruptcy of a firm, seals affixed at private residence of partners ... ... 84 imprisonment of bankrupt ... ... ... ,8& how limited ... ... ... ... ... 85- lirst costs may be advanced by Treasury ... 85 how reimbui'sed ...... ... ... ... 85 syndics ... ... ... ... ... 85- old practice ... .., ..'. ... ... 8S INDEX. xm ■ ' PAGE BANKRUPTCY— coTOtuwed. •■■present system in Paris ... ... ... 85 corporation of syndics- ... ... ... 85 conditions and guarantee fund ... ... ... 85 number limited to 20 ... ... ... ... 85 • chamber of discipline ... ... ... ... 85 no proceedings by liquidation or Composition ... 86 •when composition allo^ived after adjudication ... 86 daily registration of syndics' accounts ... ... 86 separate accounts kept by chief accountant ... ... 86 monthly balance-sheet ... ... ... ... 86 decree of March 25, 1880... ... ... ... 86 special register •• ... ... ... ... 87 ■double check upon syndics .. . ... ... ... 87 are treated as public ofBLcials for certain pur- poses ... • ... ... ... ... 87 remuneration of, hoTv fixed ... ... ... 87 petition of syndics for, may be contested... ... 87 when decision on -can be appealed against ... 87 practice of appointing only one syndic... ... 87 appointed solely^ by Tribunal of Commerce ... 87 their duties ... ... ... ... ... 87 administration of assets ... ... 87 winding up of the estate ■ • ...• • ... 87 union ... ... ... ... 88, 89, 90, lOO preliminary duties of syndics ... ... ... 88 bankrupt's letters .. . ... ... .■. ... 88 allowance for support of bankrupt ... ... 88 fixed by juge-commissaire ... ... ... 88 "balance-sheet filed in the Tribunal of Commerce ... 88 syndics exercise all the rights of bankrupt... ... Sg payment of moneys into caisse des Consignations 88 interest on, if retained ... ... ... ... 88 moneys paid' in, howwithdrawn ... ... ... 88 controlof the ministdre public... ... ... 88 report to be furnished ■within 15 days ... ... 88 examination of claims • ... ... ... 89 certiflcates of, ■when proved ... ... ... 89 disputed claims ... ... ... ■•■ ... 89 attestation of, when allowed ... ... ... 89 meeting of creditors, how summoned ... ... 89 creditors may appear by proxy ... •• ••■ 89 agents by procuration ... ••• ••■ 89 personal attendance of debtor ... ■■• ••• 89 in case of partnership or Company ... ... 89 INDEX. PAGE BATHKHVPTCY— continued. report of .syndics read ... ... ... 89 statement of debtor ... •■• •■• '•• 89 resolution of creditors ••■ ... 89 majority of three.-fonrths may accept debtor's pro- posals .... ... •■ ••. ... 89" ordinary and special concordat ... ... ... 89 union ... ... ... ■• ■-. ..'• 90 proceedings when no assets ■■■ ■■■ ..- 90 effect of sentence closing the proceedings ... ... 90 liability of ditto to be sued ... ... ... 90 ditto must apply within one month to set aside ... 90 amounts recovered by .creditors ... ... ... 90- privileged creditors, first class of ... 90 secured by statute ... ... ■ 90 priority of charges ... ... ... 90 secured creditors ... ... ... . 91 cost of sealing and of inventory take precedence ... 91 other costs ... ... ... ... ... 91 costs incurred by individual creditors ... ... 91 general principle ... ... ... ... ... 91 secured creditors not liable to general costs... 91 servants' wages ... ... ... ... 91 clerks ... ... ... ... ... ... 91 workmen ... ... ... 91 tradesmen supplying necessaries ... ... 91 privileged creditors, second class of . . 92^ landlord or lessor ... ... ... ... 92 lease for fixed term ... ... . . ... 92 landlord's rights under ... ... ... 92 lease for no specified term ... ... ... 92 what rent may be recovered under ... ... 92 leases of property for business purposes . • 92 limit of landlord's privileges ... ... 92 how rent is reckoned ... ... ... ... 9S landlord .may prove for rents not privileged ... 93 right to seize furniture ... ... ... ... 93 what may be seized ... ... ... ... 9S furniture " on the leased premises " ... ... 03 equitable rules ... ... ... ... ... 93 pledges... ... ... ... .. •• 9* stolen property ... ... .. ... ■■ 93 bailments ■•... •■ . ■•. ■ 9» sub-lessee, rights of, as against landlord ... 93 when syndics hold premises after lease expired .. 9% JKD£X. XV PAGE" BANKRUPTCY — continued. rights of pledgee or pawnee ... ... ... 94 civil pledge must be by writing ... ... 94 commercial pledge need not ... ... 94 creditors holding pledge shoiild prove ... 94 surplus after sale of pledge ... ... 94 special claims by implied pledge ... 94 unpaid vendors cannot reclaim goods ... ... 94 but if not delivered, may retain them ... ... 94 innkeepers ... ... ... ... ... 94 lien on guests' property ... ... ... 94 carriers' lien ... ... ... ... ... 94 based on implied contract to pay ... ... 94 public officials ... ... ... ... 94 moneys due to contractors for State works ... 95 mortgagees ... ... ... ... ... 95- if bona fide, not affected by bankruptcy of mort- gagor ... ... ... 95- need not prove ... ... ... ... 95- may prove for surplus, if mortgaged property insufficient .... ... ... ... 95- sureties ... ... ... ... ... 95 rights of creditors against ... ... ... 95- when one or some of CO-SUreties fail ... ... 95- creditors- may sue solvent sureties and prove against insolvent ... ... ... ... 95 . but can only receive his debt in full ... ... 95 if dividend received, creditor must deduct it . from claim against solvent surety ... ... 9& rights of co-sureties against principal ... ... 95 when unpaid creditor proves, co-surety cannot' ... ... ... ... ... 95 creditors by. running accounts... ... ... 95 when by bills of exchange ... ... 96 bills not yet due ... ... ... j.. 9& payee must give security ... ... ... 96 rights of holders ... ... ... ... 96 apparent balance on accounts cannot be demanded... 96 proceedings after union ... ... ... ... 96 realisation and distribution ... ... ... 96 notice sent to each creditor ... ... ... 96 • foreign creditors ... . ■ . ... 96 special time allowed ... ... ... 96 . deposit to meet claims of foreign creditors ... 96 power of juge-commissaire to augment deposit ... 97 Xvi INDEX. BANKBUPTCY— cojitimited. failure of foreign creditors to send in claims Tribunal of Commerce, jurisdiction of receives debtor's statement adjudicates names juge-commissaire and syndics - af9.xes seals settles allowance to debtor . receives schedule made by syndics confirms acts of juge-commissaire & syndics in respect of personal property examines verification of claims confirms or annnls concordat . decides claims of parties not creditors annuls fraudulent preferences Civil Courts, jurisdiction of . all acts of syndics in respect of immeubles .of civil claims . when Tribunal of... Commerce has no jurisdiction ..sale of immeubles claims by debtor's wife ... Tribunaux Correctionnels, powers of ... . banqueroutes simples ... fraud by partner or relation ... actions for fraud against syndics Sictions for fraud against syndics actions against creditors stipulating for fraudu lent purposes ^appeals in bankruptcy adjudication in bankruptcy maybe questioned .. by bankrupt -within eight days . by other parties, within One month ... . these limits bind foreign creditors ... ..decisions, on matters of . practice cannot be appealed Against . other judgments on the, same footing as ordinary judgments of Tribunal of Commerce . limit of time, within 15 days proportional extension of time for appeal l)enal provisions (see Banqueroute, p. 102—107) -concordat , . .explanation of . when advisable conditions precedent, bankruptcy adjudication •INDEX. XVll PAGE SANKRirPTCT— cowtimwed. persons convicted of fraudulent bankruptcy, can at no time have benefit of ... ... 99 . in partnership bankruptcy, individual mem- ber may have private concordat ... ... 99 . how arranged ... ... ... ... ... 99 meeting of creditors three days after claims verified and attested ... ... ... 99 three-fonrths of creditors must concur ... ... 99 must be signed at the meeting ... ... ... 99 ■ Court will not confirm, if formalities omitted ... 100 appeal against concordat ... ... loO ...within eight days for. signature ... ... 100 may be annulled, after confirmation for fraud ... 100 . penalty on creditor making private arrangement 100 concordat amiable ... ... ... ... 100 only binding on creditors who concur ... ... 100 union ... ... ... ... ... ... lOO explanation of ... ... ... ... 100 a legal consequence of rejection of concordat ... 100 meeting of creditors ... ... ... lOO matters to be settled ... ... ... 100 when business may be carried on under union ... ... .- •■• ••• 100 compromise of suits ... ... ... lOO doubtful debts ... ... ... ... 100 ... real property sold under supervision of Court 101 personal property of syndics under direc- tion of juge commissaire ... ... 101 what deductions are made ... ... '... 101 . creditors whose claims are doubtful give security fbr repayment ... ... ... ... 101 and mortgages paid first instalment of per- sonal property ... ... ... 101 creditors holding pledge ... ... ... 101 final proceedings ... ... ... ... 101 object of creditors' meeting ... ... lOi excusabilit6 and provisional discharge ... 101 right to sae for debts invested in creditors ... 101 may seize subsequently-acquired property ... 101 Banqueroute. definition of ... ... ... ... ... 102 simple and fraudulent •■■ ••• ... 102 presupposes faillite ... ••• ••• ••■ 102 therefore only traders can bo prosecuted f or . . , 103 Q Q xviu JNDEX. BANKRUPTCY— cowimtted. acquittal on charge of lanqueroute simple bars . further prosecution for banqueroute simple in same bankruptcy ... ... »•■ .•• 102 .but no .bar to prosecution for fraudulent ... 102 . syndics may prosecute . . ... ... ... 102 or creditor ... ... ... ••. 102 or .public prosecutor ... ... 102 .acceptance of composition no bar to prosecution 102 ..French trader in foreign country liable to prosecution in Trance ... ... ... 102 .if fraudulent acts committed in France ... 102 .or foreign trader ... ... ... ... 10» limitation of prosecution ... ... 10» three jearB in lanqueroute simple ... ... lOS texkjears haiiqueroute fraudnleuse ... ... lOS from when reckoned ... ... ... lOS .hanqueroute simple prosecuted before- Cour de Police Correctionelle ... ... ... 103 frauduleux at Cour d' Assises ... ... 103 ..costs, -how paid. ... ... ... ... lOS .in benqueroute simple, when conviction inevitable lOS excessive personal expenses... ... ... 103 ruinous speculation . . ..... ,., ... lOS selling goods below cost price ... ... 103 preferential payment after suspension 103- when conviction may follow ... ... ... lOS on second bankruptcy ... ... ... 104 non-ipnblication of marriage settlement ... 104 . omission to declare suspension of payments 104 non-appearance before syndics ... ... 104 . books improperly kept. . ... ... ... 104 'peJX<iea ioT banqueroute simple ... ... .... 104 , stockbrokers. ... ... ... ... 104 ...brokers .... ... ... ... ... 104 banqueroute frauduleuse ... ... ... 104 . general instances of ,., ... ... , ,.. 104 ...penalties for ... ... ... ... io4 in case of stockbrokers and brokers ... 104 , , attempt to commit ... ... ... ... 10$ conviction for, annuls concordat ... ... 105- accomplices. .., ... 105 liable to same penalities as principal ... 105- Art. 593, Code of Commerce ... ... ... 105 , concealing bankrupt's property ... ... 105 INDEX. tix BANKRUPTCY— co7itin«e3. "•fraudulent claims against bankrupt ... ... 105 when trading under unreal name •■. ... 105 ■ .: ,. .restitution may be ordered ... ... ... 105 assets, distribution of, not afEeoted by possession 105 guardian of bankrupt ... ... ... 105 rights to sue retained by creditors ... 105 rehabilitation of bankrupt '... ... ... io6 disabilities of bankrupt— (see pp. 78, 79) ... lOS bow removed ... ... ... ... lOg. payment of debts in full ... ... ... 106 if member of SociStS, must pay debts of same . . . 106 application made to District Court of Appeal. . . 106 necessary documents ... ... ... 106 proceedings under ...■ ... ... ... 106 copy of the application advertised ... ... 106 creditor may apply to Set aside ... ... 106 if application dismissed, one year must elapse before renewing it ... ..; ... ... 106 Court makes decree ... ... ... 106 what persons cannot be rehabilitated... ... 107 fraudulent bankrupts •■ ... ... ... 107 convicted of lafceny v.. ... ... ... 107 false pretences ... ... ... ... 107 abus de conflance ... ... ... ... 107 stellionatairds ... ... ■■■ ... 107 rehabilitation may be after death of bank- rupt ... ... ... ... ... 107 forms ... ... ... ... ... ... 107 declaration of suspension of payments . . . 107 of adjudication on petition of bankrupt ... 107 petitibii of creditor ... ... ... 10* adjudication on creditor's petition ... 109 proems verbal of verification of claims ... no concordat ... ... ... 111—112 judgment confirming Concordat ... ... 112 pouvoir or procuration to agent in bank- ruptcy proceedings ... ... ... 113^ — 114 instructions to foreigners for proof of claims in a French bankruptcy ... ... 112 — 114 evidence necessary for agent ... ... 115 in case of claim on bill of exchange, the bill ' must be deposited ... ... ... ... 115 of goods sold and delivered ... ... ... 115 procedure ... •■• ... ... ... 115 QQ2 •XX JNDEX. PAGE BANKRUPTCY OP INSUBBR. rights of in^nred ... ... ... ••• ••• BANKBTJPTCY OP STOCKBROKEB. effect of, on stock purchased ... ••• ••• 253 BANKRUPTCY (Text of the Code of Commerce). law passed 28th May, 1838 ... ... ... ... 371 of the declaration of bankruptcy and its effects ... ' 371 trader, when in a state of bankruptcy ... ... 371 trader can be adjudicated after death ... ... 371 obligation of insolvent to file petition ... ... 371 case of private partnership firm ... ... ... 371 declaration and balance-sheet of bankrupt ... ... 372 bankruptcy, how declared ... ... ... ... 372 commencement of, how fixed ... ... ... 372 publication of judgments ... ... ... ... 372 efiect of adjudication upon j)roperty of bankrupt . . . 373 xule as to actions ... ... ... ... ... 373 debts not matured come duo ... ... ... 373 rule as to running of interest ... ... ... 373 mortgages, etc., accepted ... ... ... ... 373 acts by debtor which are void... ... ... ... 373 ■conveyances to defeat creditors ... ... ... 373 ■cash payments for debts not accrued due ... ... 373 rule as to debts accrued due ... ... ... 373 when same are void ... ... ... ... 373 registration of ^mortgages and charges ... ^.. 374 > bills of exchange paid by debtor after stoppage, rules as to... ... ... ... .,. ... 374 rules as to promissory notes ... ... ... 374 disclaiming leases by trustee ... ... ... 375 , rights of lessor and obligations ... ... ... 375 of the appointment of the juge-eommissaire 375 how appointed ,., ... ... ... 375 their duties ... „. ... ... ... 375 appeals from orders made by them ... ... 375 replacement of juge-commissaires ... ... 375 of the aflftxing of the seals and of the first measures to be adopted as regards the person of the bankrupt ... ... ... 376 seals affixed upon adjudication in certain cases ... 376 arrests dispensed with ... ... ... ... 376 formalities for affixing the seals .. . ... ... 376 property upon which they must be placed ... 376 •IXDEX. Xxi PA BANKBTJPTCY (Code of CommeToe')— continued. • case of partnership ..■•• ... ... ... 377 • adjudication must be forwarded to the procureur de la Uipuhlique ... ... ... ... 377 provisions as to custody of bankrupt ... ... 377 when assets insufficient for expenses, advance is made by the public treasurer ... ... 377 of the appointment and dismissal of pro- visional trustees. provisional syndics how appointed ... ... 377 first meeting of creditors- • ... ... ... 377 proceedings at ... ... ... ... 377 ■ syndics may be confirmed in their appointment ... 378 ■ must not exceed three ... ... ... ... 378 need not be creditors ... ... ... ... 378 no relation of bankrupt can act ... ... 378 replacing syndics ... ... ... ... 378 they can only act collectively — exceptions ... 378 complaints as to syndics, how dealt with ... ... 378 dismissal of syndics, rules ... ... ... 379 of the duties of the syndics. as to the seals ... ... ... ... 379 dispensation as regards certain articles ... ... 379 sale of perishable effects and good- will ... ... 379 trade books and negotiable instruments ... ... 380 debts due to bankrupt ... ... ... ... 380 letters addressed to bankrupt ... ... •■ • 380 attendance of the bankrupt ... ... ... 380 rights of bankrupt to liberation ... ... ... 380 allowance for support of bankrupt ... ... 380 filing of balance-sheet ... ... ... ... 381 examinations of bankrupt, his clerks and servants ... 381 rights of widows, children and heirs ... ... 381 of the removal of the seals and of the inventory. seals removed within three days from adjudication 381 drawing-up of inventory in presence of justice of the peace ... ...• ..' filing of inventory ... ... •■• •■• 381 case of adjudication after death... ... -.• 381 statement of affairs, formalities ... •.• .•• 382 attendance of procureur- ■ - . -■' • ■ • ■ ... 383 of the sale of the goods and personalty, and of the recovery of assets syndics take possession of assets after completion of inventory ... ... .•• ••• ^83 381 382 Jssjii INDEX. BANKRUPTCY (Code of Commerce)— co»i««w«ed. ooUectiou of debts >.< . sale of goods and personalty . how carried jntp effect compromise of matters in dispnte bankrupt must be consulted ... bankrupt may be employed by syndics remuneration may be awarded to him proceeds of sales must be paidjinto the caisse des consig?iations . strict rules as to this ... . restrictions as to drawing out funds attachments upon such funds . payments out, how made , . ... proof of debts. . . proofs can be lodged immediately after adjudication . notices are sent to creditors advertisements for claims are issued home and foreign creditors, rules examination of proofs ... bankrupt and creditors can attend ■ report is drawn, up ...... creditors' books must be produced form of admission of claims afiirmation of hona fides by creditor contested claims, how dealt with creditor can vote provisionally . . . privileged and mortgage creditors, votes , creditors domiciled abroad, proceedings unknown creditors, dividends right to appear, costs ... . opposition and further dividends . . rights . pf tardy creditors in respect to past and future dividends ... ... ... ... of concordat and union. meeting of creditors convened to discuss compo- sition ., must be advertised . . . meeting how h^ld . . attendance of bankrupt and creditors .proxies ... ... syndics present report to meeting bankrupt is heard composition or concordat can then be agreed upon... ... must be passed b^ majority of creditors representing three-fourths of debts proved otherwise void ... FAGB 383 383 383 383 383 383 383 383 383 384 384 384 384 385 385 385 386 386 386 , 386 ' 886 386 386 387 387 387 388 388 388 388 383 388 389 389 389 389 389 389 389 INDEX. Xiiii _ P4.GE BANKRUPTCY (Code of Commerce)— conimued!. votes of mortgage, privileged and secured creditors 389 they must give up. their securities ... 389 securities forfeited if they nevertheless vote ... 389 concordat must be signed.by creditors ... ... 390 meeting may be adjourned for eight days . . . 390 . rule as to resolutions passed ... ... ... 390 fraudulent bankruptcy prevents concordat -■ i.. 390 pending proceedings, rules. ... ..'. ... 390 banqueroutiere simple, exception... ... 390 opposition to concordat, rights of creditors ... 390 how drawn up iand served ... ... ... 390 practice ... ... ... ... ... 391 .judgment thereon. ... ... ... ... 391 .homologation, or confirmation of concordat 391 ..how obtained ... ... ... ... ... 391 oppositions, how adjudicated upon ... ... 391 report of juge-commissaire ... ... 391 effect of non-compliance with rules ... ... 391 ■efiFects of the concordat. it is binding on all the creditors ... ... ... 391 even on those abroad, . . ... ... ... 391 ..effect of confirmation upon.mortgages ... ... 392 ..ponoordat cannot be annulled after confirmation ... except upon the ground of fraud ... ... 392 ..functions of syndics cease after confirmation of ... concordat .... ... ... ... ... 392 . . they must render accounts and return books, papers ... and effects to bankrupt ... ... ... 392 •cancellation or revocation of the concordat, .. canceUatiou liberates sureties to concordat ... 392 ..effect of non-execution of . provisions of concordat ... 392 .. certain sureties not liberated ... ... ... 392 • conservative measures in. case of prosecution or . . arrestof bankrupt ... ... ... ... 393 . practice in cases of fraudulent bankruptcy ... 393 duties of the trustees and other officials ... ... 393 notices to creditors ... ... ... ... 393 .. .verification of proof 3 ... ... ... ... 393 Tule as to olaimss already admitted ... ... 393 . deeds executed by bankrupt previous to cancellation of concordat, how affected ... ... ... 394. ..jights of creditors previous to concordat ... ... 394 . ..proportions for which they, can prove ... ... 394 .. «ase of second bankruptcy ... ... -..■ 394 xxiv IKDEX. PAGE BANKBUPTCY (Code of Commeroe')— continued.. of the closing of the bankruptcy in case of insufQ.cieney..of the assets. Court can close the operations in case of insufficiency ... of assets ... ... ... ••• ••• 394 effect of such judgment on rights of creditors ... 394 judgment can be. reversed ... ... ... 394. rule as to expenses ... ... ••. ... 395 union of creditors ... ... ••. ... 395 . definition of ... ... ... .•■ ... 395 . /Mffe-convmissoire calls meeting ... ... ... 395 . rights of secured creditors to attend ... ... 395 . report of resolutions drawn up ... ... 395 . syndics must lender accounts ... ... ... 395- bankrupt may be assisted out of assets ... ... 395 . rules a& to comcordai when, several .partners ... 395- .. assets, how administered ... ... ... 395 -syndics wind up estate... ... ... ... 396. - resolutions, how passed ... ... ... 396 opposition can be entered ... ... ... 396 - liability of creditors in regard to special operations by syndics, ... ... ... 396- ■ duties of syndics ... ... ... ... 396 they may compromise ... ... ... ... 396 .. meetings. of creditors once a 3-ear ... ... 397 last meeting, proceedings >.. ... ... 397" .report and close of w7iio». . ... ... 397 excusability of bankrupt ... ... ... 397" ..consequences, if declared, not excusable ... ... 397 rights of creditors ... ... ... ... 397 ..certain persons cannot be declared excusable ... 397" .. cession de hiens ... ... ... ,., 398-" ...concordat by total or partial abandonment ... 398 effects thereof... ... ... ... ... 398- ..liquidation, how.carried out ... ... ... 398 ..registration duties ... ... ... ... 398- of. the various descriptions of creditors, and, of their rights in case, of bankruptcy. ...of joint obligations and security... ... ... 398- rights of creditor holding joint engagements to prove ... ... ... ... ... 398 ...proving against several estates, rights of the parties 398 ..joint and several creditors, rule as to proofs ... 399- ..jights of. surety ... ... ... ... 399 ...rights olcreditora against sureties of bankrupt ... 39i>' INDEX. XXV PAGE BANKBUPTCY (Code of Commerce)— coniimied. of secured and privileged creditors. secured creditors, how described ... ... 399 rights of syndics to securities after payment of claims ... ... ... ... ... 399 realisation, deficiency, surplus, rules ... ... 399 . wages of workmen and clerks ... ... ... 399 ^leases, rights of landlord... ..^, ... ... 4.00 cancellation of lease ... ... ... ... 400 rent, rights of lessor ... ... ... ... 400 provisions of civU code as to personalty ... ... 40O rights of privileged creditors ... ... ... 401 of the rights of mortgage and privileged creditors upon real estate. rights of above creditors upon general assets ... 401 case of distribution of personalty before realty . . . 401 further rules, simple contract fund ... ... 402 rule as to partially secured creditors ... ... 402 ' rights of excluded mortgage creditors ... ... 402 of the rights of married, women. bankruptcy of husband, effect on real property of wife ... ... ... ... ... 40a wife's property purchased by her emploi . • . 402 legal presumption as regards wife's property ... 403 wife's settled personal property ... ... ... 403 her rights, identity must be proved ... ... 403 rule in default of proof... ... ... ... 403 wife's right of "recovery" ... ... ... 403 husband's debts paid by wife, presumption . . . 403 ■ -hypothSque legale of wife, when admitted ... 404 trading by husband, rules as to marriage settlements 404 rights of creditors ... ... ... .-. 404 of the dividends among the creditors, and the liquidation of the personalty. division of property amongst the creditors ... 404 syndics must deliver monthly statement . . . 404 jUge-COmmissaire orders payment of dividend 404 creditors in and out of France, reserve ... ... 405 reserve, how dealt with ... . ■ ■ ■ ■ • 405 evidence required for payment of dividends ... 405 exceptions ... ... ... ■•■ ■•• ^^ creditor must sign receipt ... .■• ••• 405 .estate not got in, how dealt with ... ••• 405 powers of syndics ... .•• •• ••• 405 2CXV1 JUDEX. BANKBTIPTCY (Code of Commerce)— comtimMed. of the sale of the real property of the bankrupt. creditors other than mortgagees cannot sell realty . . .syndics carry out sale when permitted exception and regulations surenohfere, how accompanied ... ... ... who may bid ... ... ... ■■• ••> of revendication. certain negotiable instruments and securities can be reclaimed by their owners in case of bankruptcy goods consigned' to bankrupt, rules stoppage in transitu obligations of party exercising right rights of vendors of goods not delivered ... • syndics may elect to compel delivery on payment cases of- dispute, how decided :appeals against judgments in bankrupety ■ bankrupt has eight days to appeal against adjudica- tion ... ... ... other parties one month • time runs from date of publication" ■ date of stoppage, how determined ■ 'Other judgments in bankruptcy, 15 days time • parties resident at a distance, further time •iudgraents which cannot be appealed against of fraudulent bankruptcies (banqueroute simple). penalties of civil code ... ... ... delinquents, how prosecuted cases in which trader can be declared excessive expenditure, speculations, &o. ... preferential payments, &o. excessive trading expenses of public prosecution, how charged reimbursement thereof to Treasury costs of proceedings by syndic ... acquittal and conviction, effect on costs . . . right of syndics to appear as partie civile expenses of prosecution by creditor banqueroute frauduleuse. when debtor can be declared . .expenses of prosecution ... FA6B 406 406 406 406 406 406 407 40? 407 407 407 407 408 408 408 408 408 408 408 408 409 409 409 ,409 409 409 410 410 410 410 410 411 411 411 3NDEX. XXVU PAGE :BANKE,UPTCY (Code of Commerce')— coniinued. Of. crimes and misdemeanours con^mitted in the bankruptcy by other parties than, the bankrupt. parties who can be condemned in penalties ... 411 abstraction of estate .... ... ... ... 411 . fraudulent claims and proofs ... ... ... 412 withholding books, false accounts, &o. ... ... 412 relations aiding and abetting, penalties ... ... 412 jurisdiction of Court ... ... ... ... 412 misconduct of syndics ... ... ... ... 412 penalties for stipulating special advantages for votes 412 fine and imprisonment ... ... ... ... 412 •••such agreements are void ... ... ... 412 •■•iuriadiction of Tribunal of Commerce ... ... 413 ■••all condemnations must be advertised ... ... 413 administration of assets in case of banqueroute frauduleuse. "winding-up of estate cdh'ducted 'independently of criminal authorities ... ... ... ... 413 obligations of syndics as ±0 papers ... ... 413 deposit and inspection thereof ... ... ... 414 return thereof to syndics ... ... ... 414 Teinstatement of the bankrupt. bankrupt having paid in full can be reinstated . . . 414 case of partnership firm ... ... ... 414 petition for, how addressed ... ... ... ,414 evidence ... ... ... ... ... 414 examination thereof by Court ... ... ... 415 advertisement of petition ... ... ... 415 rights of creditors to oppose ... ... ... 415 judgment given after two months ... ... 415 given in public and filed ... ... ... 415 fraudulent bankrupts cannot be reinstated ... 415 Bourse, rule as to bankrupts ... ... ... 415 death, reinstatement after ... ... ... 415 :BAES to actions (shipping). exceptions are admitted in certain cases ... --. 370 actions for damage to goods . ... ... ... 370 against freighter for average loss ... .■- --• 370 damage caused by collision ... ...... ••- — 370 protestations and cla,ims when void ,.,,.. ... ... 370 IBAEBATBY. (See Insurance.) BABBISTEBS. (See Avocats.) XXVin IXDEX. FASE. BESOINS. protest to... ... ... ••• ••• ■-• 212 BILL OF LADING. supplements charter-party ... ... ... ... 261 declaration of insufficient cargo on ... ... ... 262 see affreightment ... ..; ... ... ... 268- given by captain ,.. ... ... ... ... 330 what it must express ... ... ... ... 341. contents of a ... ... ... ... ... 341 made np in four sets at least ... ... ... 341 execution of ... ... ... ... ... 342 BILLET SIMPLE. only payable to party named ... ... ... 223- not negotiable, except by acfe airf^ieiih'gKC ... ... 223 should be written in full ... ... ... ... 223 not barred till after 30 years ... ... ... 223 even if made by trader ... ... ... ... 223 form of ... ... ... ... ... ... 234 BILLS. to which bankrupt is party ... ... ... ... 80 security when required on ... ... ... ... 80 BILLS OP EXCHANGE. can be transferred by endorsement ... ... ... 62 not due, in bankruptcy ... ... ... ... 96 holders of, in bankruptcy ... ... ... ... 96 on Stock Exchange ■ ... ... ... ... 25& when paid by bankrupt after date of 'cessation of pay- ments, rule ... ■ ... ... ... ... 374 definition of . . . • ... ... ... ... XJt necessary parties ... ... ... ... ... 177 other parties ... ... ... ... ... 177 necessary contents ... ... ... ... 178 date ... ... ... ... ... ... 178 ■amount ... ■ ... ... ... ... 178 ■ 'parties ..; ... ... ... ... 17s date and place of payment ... ... ... ... 178 value received ... ... ... ... ... 178 must be precise ... ... ... ... 178 ■yoZeur ref«e, insufficient ... ... ... ... 178 effect of omissions ... ...• ... ... ... 179 bilHs void ,.,■•• ... ... ... ... 179' may not be " to bearer " ... ... ... ... 179 " from one place upon another " ... ... ... HSV. INDEX. XXIX ■ PAGE jBILLS of EXCHANGE— cojitMiwed. payable by drawee at residence of third party ... 179 drawee must provide funds ... ... ... ... 179 bill drawn by agent . . ... ... ... ... 179 effect of false statements in bills ... ... 179, 180 5M(Ere, rights of hand fide holder of such bills . . . 180 bills signed by women who are non-traders ... ... 180 only equivalent to " simple promises " ... ... 180 women traders may make valid bills ... ... ... -180 ■married women may sign as agent for husband ... 180 separate business of husband and wife ... ... 180 by minors who are non-traders^ void ... ... ... 180 minors who are traders may make valid bills ... ... 180 ratification after majority ... ... ... ... 181 liability of other parties remains ... ... ... 181 infancy, valid plea against ... ... ... ... 181 hona-fide holder ... ... ... ... ... 181 emancipation of minors .... ... ... ... 181 conseil de famille ... ... ... ... ... 181 Courts may revise contracts by emancipated minors ... 181 in respect of business, are considered of full age ... 181 "but must have authority by deed ... ... ... 181 one partner binds others by bills ... ... ... 181 Icinds of partnerships (see Partnerships) ... ... 181 Soci4M en nom coUectif ... ... ... 181, 182 en commandite ... ... ... ... ... 182 distinct liabilities ... ... ... ... ... 182 anonyme ... ... ... ... ... ... 182 I O U's not known in France ... ... ... 183 provision ... ... ... •. ••. 183 means the funds for payment of bill ... ... 183 must be furnished by drawer ... ..... ... 183 fundamental liability of drawer ... ... ... 183 must procure acceptance of drawee ... ... 183 and provide him with means of payment . . . 183 effect of non-payment ... ... ... ... 183 holder must protest on the next day ... ... 183 and give notice ... ... ••■ •■• 183 default of protest exonerates drawer ... ... 183 but not if no provision supplied ... ... 183 default of protest exonerates indorsers ... ... 183 bill drawn " on account of third party ~ . . . ... 184 doTMieur d'ordre must furnish provision ... 184 but drawer remains liable ... ■ ■ ■ . • • 184 accommodation bill ... ... ••• -■• 184 XXX INDEX. PAG4 BILLS OF EXCHANGE — continued. ■acceptor may sue drawer on ... ..< ... 184 acceptor cannot sue tireur pour compte ... ... 184 when provision implied- ... ... ... 184 acceptor indebted to drawer ... ... ... 184 presumption of indebtedness arises from acceptance 184 drawer bound to prove provision ... ... 184 or must give security, if sued ... ... 184' acceptance ... ... ... ■-. ... 185 •drawers and indorsers are sureties for payment ... 185 protest for non-acceptance ... ... ... 185- •notification of protest ... ... ... ... 185 security or payment required ... ... ... 185- joint and several liability ... ... ... 185 rights of indorsers iTiier se ... ... 185, 18& holder cannot obtain security from more than one... 18& should present for payment, though acceptance refused ... ... ... ... ... 186 acceptor ... ... ... ...-•• ... ... 186- cannot repudiate acceptance ... ... ... 18& ■decrees ... ... ... ... ... 18ft fraud ... ... ... ... 187 avoids bill against fraudulent party ... ... 187' but not against third parties without notice ... 187 even in case of forgery ... ... ... 187 acceptor engages to pay ■ ■ ...- ... ... 187" his contract in the nature of guarantee ... ... 187 ■ holder not compelled to present for acceptance ... 187 except of bill " after sight "... ... ... 18T ■ time allowed to acceptor ... ... ... 187 signature — accepts ... ... ... ... 187 date... ... ... ... ... 187 effect of Art. 140 ... ... ... ... 137 amount of bill... ... ... ... 188 place where payable must be stated ... ... 188 must be unconditional ...■■■■ ... ... ... 188 but may be partial acceptance ... ... ... 188 holder should protest for surplus ... ... 188 acceptance by intervention ... ... ... ... 189 may take place on protest for non-acceptance . . . 189 mentioned in protest ... ... ... ;,. 159 equivalent to acceptance for honour ... ... 189 essential conditions of ... ... ... ... 189 cannot be by drawer or indorsers ... ... 189 ■ notice to party on whose behalf made ... ... 189 INDEX. xxxr BILLS OP EXCHANGE— comhwMed. . .reasong.gf this . . ..... ... ... ,.. igg time for notice decided by .the Courts ... ... 190 does not. afEeot holder's rights ... ... ... 190 holder may proceed as in. default of acceptance ... 190 maturity, dates at which bills may be drawn ... ... 191 , at sight, payable on presentation ... ... ... 191 ;■ at fixed time after sight, fixed by acceptance ... 191 usance reckoned as 30 days ... ... ... 191 payable "during fair time" ... ... ... 191 on holidays, payable the previous day ... ... 191 days of grace abolished ... ... ... 192 months, reckoned as calendar months ... ... 192: indorsement ... ... ... ... .., 192 . transfers property ... ... ... 192 common form of.. ... ... .., 192 must be signed by indorser or his agent ... ... 192; governed by law. of place where made ... ... 192. . may take place after maturity ... ... ... 192 must be dated... ... ... ... ... 193; ...value received... .... ... ' ... ... 19S. .. name of indorser ... ... ... ... 193- object of date, in case of bankruptcy ... ... 193- incomplete indorsement operates only as a, procuration ... ... 193- but blank indorsement can be filled up ... ... 193- except after death or bankruptcy of indorser ... 193 foreign bill indorsed in foreign form ... ... 19* acceptor's rights on blank indorsement ... ... 193 holder of bill subject to all equities ... ... 194 irregular. indorsement does not transfer property ... 194 . results of ... ... ... ... 194 creditors, may attach provision ... ... 194 drawee may plead set-ofE ... ... ... 194 indorsee may revoke procuration ... ... 194 but holder can transfer property by regular in- dorsement ..i r ... ... ... 194 antedating indorsement is forgery ... ... 194 joint and severalliability. of parties .to a bill.. ... 195 holder must apply, first to acceptor ... ... 195- ' indorsera in turn liable to each other ... ... 195 I enrety, guarantee by ... ... . ■ • ... 195 aval 195 I cannot be given by party to the bill ... ... 195- may be on the bill. itself, or by separate writing ... 195- INDEX. PAGE SILLS OP EXCHANGE— contirrtted. formal words for ••> ... ••• •.• 196 may be conditional ... ... ... ■•■ 196 surety takes all right of principal ... ... 196 liability of ... ... ... ... ••• 196 may be -given after maturity ... ... ... 196 payment ... ... •- •■• •■. 197 in currency specified ... ... ... ... 197 , usually of place of payment ... ... ... 197 bronze and silver coin ... ... ... ... 197 bank notes a legal tender ... ... ... 197 drawee should demand return of bill ... ... 197 and receipt of holder on it ... ... ... 197 otherwise liable if holder circulates it ... -197 before maturity ..» ... ... ... 197 . . may be invalid ... ... ... ... 197 £.<;. if holder is bankrupt ... ... ... 198 or indorsement, &c., forged ... ... ... 198 no title conferred by forgery ... ... 198 right of recourse to indorsees stops at the forger 198 bankrupt drawee cannot pay ... m. 198 but may pay before adjudication <.. 198 payment- at maturity discharges the paying ... 198 holder cannot be compelled to receive, before maturity ... ... ... 198 except in default of acceptance ... ... 198 bill drawn in sets ... ... ... ... ... 198 payment of one cancels the others ... ... 199 party paying must retire his acceptance ... ... 199 , opposition to payment, when allowed ... ... 199 (1) after loss of bill ... ... ... 199 opposition should be lodged with holder ... 199 formal act of ?iMtssier ... ... ... 199 judge's order necessary ... ... 199 (2) on bankruptcy of holder ... ... 199 trustee must lodge opjjositiou ... ... 199 risk of double payment if acceptor has paid before maturity ... ... ... 199 Forgery ... ... ... ... ... ... 199 forging name of drawer ... ... ... 200 signing imaginary name ... ... ... 200 fraudulently causing bill to be drawn ... ... 200 alteration of amount ... ... ... ... 200 signatm-e of drawee ... ... ... ... 200 personification of holder ... ... ... 200 INDEX. xxxiii BILLS OP EXCHANGE— co?i . . ... ... 235^ indorsement of ... ... ... 235 payable at sight ... ... ... 236- at several days, &c., after sight ... ... 237 at several days, &c., after date ... ... 237 payable to order of drawer ... ... 237 drawer in sets ... ... ... 237 retraite ... ... ... ... 238 account of return expenses of protested bill 238- promissory note ... ... ... ... 239' cheque ... ... ... ... ... 239' principles suggested for international law on bills of exchange ... ... ... ... ... 240 comparison of laws and practice in various countries ... 241 parties ... ... ... ... ... 241 ' minors and married women ... ... ... 241 form of bills ... ... ... ... ... 242 consideration .., ... ... ... ... 242 " bills to bearer .. . ... ... ... ... 242 ' blank indorsement ... ... ... ... 243 indorsement after due dato ... ... ... 243 usances ... ... ... ... ... 243 days of grace ... ... ... ... ... 243 duplicates ... ... ... ... ... 243 acceptance ' ... ... ... ... 243 dishonour foi: non-acceptance ... ... ... 243 notice of dishonour ... ... ... ... 244 limitation of actions ... ... ... ... 244 BLANK INDORSEMENTS. jujiisdiotion of Courts ... ... ... ... 71 IKDEX. BLOCKADE. of. port of destinatioti of chartered ship , 265 of ports ... . 341 iu case of . 341 BOOKS OF TRADERS . 104 Frenoli law very strict herein 42 obligation to keep books 43 disadvantages of neglect and penalties 43 list of books required to be kept 43 description thereof... 43 formalities in book-keeping ... 43 books must be preserved for 10 years 43 rules as to admission in evidence 43 production of books 44 if distant, practice ... 44 to prove loss of bill of exchaugo . 201 must be kept 10 years . 202 penalties for not keeping . 202 brokers' necessary ... . 251 may be evidence ... . 251 BOTTOMRY BONDS. loans on ... 53 contracts of . 347 made before . 347 what they specify ... . 347 registration . 347 formalities . 347 payable to order . 347 negotiation of loans . 347 . 347 how effected ... . 347 fraud . 348 seamen's wages master . 348 . 348 transhipment total loss ... . 349 . 349 BOUGHT AND SOLD NOTES . , 251 BOURSE. towns in which there is no .. . . 245 formation of a new . 248 BREVET D'IMPORTATION signifies a patent obtained in France for an inventio a previously patented abroad . 278 how lost ... . 279 2l IXDEX. PAGE BROKERS 299 penalties for hanqueroute on • ■ ■ • • IM BULLETIN DES LOIS. patent pnbliahed in ... ... •■. 277 BULLETIN DES OPPOSITIONS 255 BUREAU DE L'BNRBGISTREMENT ... 224 CAISSE DES DEPOTS ET CONSIGNATIONS. for definition see " Dictionary " ... ... . . 37 deposit of security on appeals . . . ... 37 when acceptor may pay to ... ... .. ... 236 payments to in bankruptcy ... ... ... ... 88 CANCELLING OF ADHESIVE STAMP ... 233 CANDIDATES. for post of stockbroker »., ... . . . . 248 CAPITAL. loss of three-fourths of, in iSociVf^ ni!o?iyii!P ... ... 139 CAPITAL OP SOCIETE. subscription of whole ... ... . . . . 131 payment of one-fourth of . . . ... . 131 en commandite par actions ... .129 CAPTAIN'S LIEN. for freight ... ... ... . . ... 266 CAPTAIN. how formally charged for delay, &c. . . ... ... 264 termination of duties of ... ... . . 327 right of action ... ... . . . ... 327 damages ... ... ... ... . ... 327 of ship ... ... ... ... ... ... 262 superintends loading ... . . ... . . 262 gives bill of lading... ... ... ... ... 262 must unload at port named within time fixed ... ... 262 deUvory to consignee by ... ... ... ... 262 protest by ... ... ... ... ... 262 responsible for faults ... ... ... ... 330 .answerable for merchandise... ... ... ... 330 bill of lading ... ... ... . ... 330 formation of crew ... ... ... ... ... 330 keeping of register ... ... ... . . 330 survey of TBSsel ... ... ... . . ... 331 documents required to be on board ... ... 331 force inajeiire ... ... ... ... 331 powers of, to refit vessel and raise money ... ... 332 INDEX. xli ■ PAGE CAPTAnH—coniiimed. powers of saJe .^. ,„ .„ ... 333 when liable for loss or damage .„ ... .„ 333 abandonment of ship by ... ... ... ... 333 certifying of journal of ... ... .,. ... 334 when shipwrecked „. ... ... ... ... 335 putting in to foreign ports ... , , . ... . ; . 334 putting in to French ports ... .... ... ... 334 declarations to be made ... ... ... ... 334 discharge of cargo ... , . . ... ... ... 335 failure of provisions during voyage ... ... ... 335 CABGO- defioieut, supplied by charterer ... ... ... 261 incomplete, whole freight due ... 266 if none shipped, half freight payable ... ... ... 266 withdrawn during voyage ... ... ... ... 266 transhipment of ... ... ... ... ... 265 damaged, when sold ... ... ... ..i 266 when delayed on voyage ... ... ... . . 263 sale of, by order of Court ... ... ... ... 263 .abandonment of, by consignor ... ... ... 263 not claimed, may be sold ... ... ... ... 263 CARRIERS. lien of .„ ... ... ... ... ... 94 based on implied contract ... ... ... ... 94 responsibility of ... ... ... ... ... 304 except by special contract ... ... ... • . 304 responsible for agents' acts . . . ... ... ... 304 owner's risk ... ... ... ... ... 304 CASES. how called on and heard in Tribxinals of Commerce ... 34 CASSATION. (See Court of Cassation.) CAUTIOW. (See Avocats.) CEDANT. the transferor ... ... .•• ••• ••• "1 CERTIFICATE. of appointment of stockbroker ... •• ■•• 245 devisite ... ... ... •■. ••• ■•■ 262 of transfer of French Rentes . • • ■ ■ ■ ■ 254 of registration of trade mark ... • • • 286 of stockbroker on rec7ia»(/e ... . . ■ ■ • 214 of application for patent ... .•• •• ••■ 276 xlii . INDEX. CONCESSIONNAIRE. tlie transferee .... .- CHAMBRE DES REQUETES CHAMBER OP DISCIPLIlfE. of syndics CHARGES. on debtor's i^roporty to secure past debt. . . under judgment against debtor CHARGEUR. consignor... CHARTER. FAQB 61 226 85 83 83 83 25? of whole vessel . 258 from montb to month ... ... ... ... 258 CHARTER-PARTY. definition of ... ... ... ... ... 25S> must be in -writing and signed ... ... ... 259 by telegram (see Affreightment.) ... ... 259 form of ... ... ... ... ... ... 273 CHARTER-PARTIES. must be in writing ... ... ... ... 340 must specify ... 340 liability of shipper for lading and unlading of his goods 340 if time of lading and discharge be not fixed . ... 340 blockade ... ... ... .::■ . 341 security for performance of charter-party ... 341 CHARTERER OP SHIP. claim for damages if ship sold .'..' ... 261 CHEQUE. form of . . . . 239 express existence of fund belonging to drawer . 220 and indicates payee . 220 law of June, 1865 ... . 220 merely a mode of payment ... . 220 original stamp duties on . 220 now fixed fit 10 centimes . 220 signature of drawer . 221 dflt'e . 221 payable at sight . 221 to bearer or party»named . 221 must be indorsed ... . 221 to order ... 221 INDEX. xliis CHEQUE — continiied. transferable need not state consideratiuji cross cheques not in use . . . ■ what provisions of law of bills, &c., apply to cheques not necessarily an act of commerce ... time for presentaticn ..... efEect of non-presentation ... penalties for false date no account must not be on unstamped paper adhesive stamps may not be used clearing house in Paris .... law of 14th June, 1865 must be funds in drawer's hands law of 19th February, 1874 ... penalties for fraud in respect of late ... payment must be receipted ... foreign cheques negotiated in France CHOSES IN ACTION. transfer of (see Transfer) ... CIVIL ACTIONS. in respect of trade marks CIVIL CLAIMS. in bankruptcy CIVIL COITBTS. jurisdiction of over stockbrokers jurisdiction of render foreign judgments executory ... jurisdiction of in patent actions jurisdiction over informal promissory notes jurisdiction of in respect of bills of exchange and promis- sory notes where no Tribunal de. Commerce exists Tribunals of First Instance are avoues and avocats practise in CIVIL LAW. principles of governing iSiociV((?s CIVIL PARTNERSHIPS. distinguished from commercial CIVIL RIGHTS. (See Foreigners.) CIVIL TRIBUNALS OP FIRST INSTANCE PAGE. 221 221 221 221 221 221 222 222 222 223 222 222 231 231 232 232. 233 233 61 288 98 247 97 77 278 216' 22& 225 226 229 119 118 xliv .INDEX. PAGE CIVIL TRIBUNALS OP FIRST INSTANCE. places, where established ... ... ... ■■■ * composition of tribunal ... ... ••• •- » judges, how chosen ... ... ••• •■• 5 courts, how regulated ... ... •- .■ 5 president and vice-presidents ... ... ■• . 5 number of judges ... ... ... ••■ ••• 5 judges are iramoTeable ... ... ... .• 5 qualifications for election ... ... ... ... 5 sittings, how regulated ... ... ... ... 5 judgments, how delivered... ... ... ■■. 5 Paris Tribunal, how composed . ..> . ... 5 expropriation cases ... ... ... ... 5 jurisdiction, ordinary ... ... ... ... 5 jurisdiction in mercantile cases ... ... ... 5 judgments are final up to 1,500 fs. ... ... ... 5 CLAIMS. doubtful, in bankruptcy ... ... . . ... 101 examination of, in bankruptcy ... ... .. 89 certificate of ... ... ... .89 disputed ... ... ... ... ... 89 attestation of ... ... ... ... ... 89 to goods under bills of lading ... ... ... 272 of foreign creditors ... ... ... 96, 97 CLIENT. must not be named by broker ... ... ... 249 CLEARING HOUSE. for cheques in Paris ... ... ... ... 222 CLERKS. privileged creditors in bankruptcy ... ... ... 91 CLOSING OP BANKRUPTCY. rights of creditors ... ... ... ... ... 394 CODE OP CIVIL PROCEDURE. rules as to executions upon realty ... ... ... 50 COLLISION. {See Average.) COLLUSION. between captain and consignor ... ... ... 269 COMMANDEMENT. (See Execution.) definition of ... ... ... ... ... 325 service of... ... ... ... ... ... 325 who maybe served ... ... ... ... 325 COMMANDITAIRE, not a lender of money ... ... ... ... 125 INDEX. xlv PAGE COMMANDITAIRES, brokers may be ... ... ... ... ... 251 COMMANDITE, SOCIETE EM". (See , Partner- ship, 124 seq.) COMMISSIONAIRES for carriage by laud or water ... ... ... 304 COMMISSION BOGATOIRE for production of traders' books ... ... ... 292 COMMISSIONS OP STOCKBROKERS ... 252 COMMITTEE, majiagmg, of Socidti^ Anonyme ... ... ... 138- Tribunal of Commerce may appoint ... ... ... 138 of Stock Exchange, assent of, to successor ... ... 24(> of inspection, in /Sioc!e'((? e?i co)nmo?idite ... ... 133 of inspection, duties of (see Partnerships) ... ... 134 not personally responsible for oflScial acts ... ... 135- COMMUNATJTB DE BIENS, effect of, on trading by wife ... ... ... 290 COMMIINAUTB. (See Community.) COMMUNITY. (See the entire law in Appendix.) COMMUTATION FOR STAMPS 454 COMPANIES (see Partnerships and Companies) ... 117 COMPANY BANKRUPT. creditors' meeting... ■■ ... ~. ••. 89 COMPARISON OP LAWS. relating to bills of exchange, &c., in various countries ... 241 COMPOSITION. in bankruptcy ... ... •■• ••• • 86 when allowed after adjudication ... ... ... 80 acceptance of, does not bar prosecution in bankruptcy . . 102 see Concordat ... ... ■ . • ■ • • • 89 COMPOUND INTEREST (see Interest) 55, 5R COMPROMISE. of suits, after union ... ... . ■ • ■ lOO of partnership disputes ... ■ ■ • ■ • ■ • 123 deed by which parties submit their differences to arbi- tration ... COMPTE DE RETOUB 63 214 xlvi INDEX. COMPTES COUBANTS. regulations of the civil code in respect of interest do not apply to GON'CEAIiMENT. (See Insurance.) CONCOBDAT. ordinary and special amiable ... ' (see Bankruptcy) ... conditions precedent . omission of formalities individual member of partnership can have appeal against form of ... confirmed or annulled by Tribunal of Commerce CONEISCATION OF ARTICLES. infringing t rade-mark CONNAISSEMEITT. signifies bill of lading (see Art. 222 of the Code of Com merce). see Bill of Lading ... CONSIDEBATIOW. for cheque, need not'be stated dealings of bankrupt void, vfhether for valuable or not . conveyances without of promissory note ... CONSIGNOB. position of when cargo lost ... CONSIGIfEE. under bill of lading, not claiming goods refusal of , to accept cargo ... notice to, of arrival of vessel CONSULS. powers of, in respect of trade-marks...' CONTBABAND OF WAB CONTBOL (over stockbrokers) CONTBACT. of charter-party, cancelled by declaration of hostilities of acceptor, is in nature of guarantee of partnership (see Partnerships) of affreightment, essentials of by master, usually binds shipowners... affreightment A forfait d cueillette 55 89 100 99 99 100 99 100 111 97 288 330 221 80 81 217 202 , 272 2G3 2G3 288 264 248 2G6 187 117 257 257 258 259 IMDEX. xlvii CONTRACT— confMwed. master's, for afEreiglitment, owner caunot repndiatB charter-party, what omissions annul ... implied, basis of carriers'^ lien of stockbrokers, between eaoh.p.ther as principals of insurance ... .... how di-awn contents it expresses by minors, revised by Courts executory, rights of bankrupt'? yendor in respect of may be cancelled ... or security required before bankruptcy .. . execution of, guaranteed by stockbrokers by directors of Company CONTRIBUTION". (See Jettison.) CONVENTIONAL MORTGAGES. CONVENTIONAL INTEREST (.9ee Interest) CONVEYANCES to defeat creditors ... with or without consideration, by bankrupt for valuable, are valid without notice . . gratuitous, are void CONVEYANCING undertaken by notaries, not by solicitors CONVICTION in bankruptcy prosecution, when inevitable CO-PARTNERSHIPS AND COMPANIES. Code of Commerce (see Partnerships) COPIES of bill of lading, no stamps on CORPORATE EXISTENCE ot 8oci^t^ en comvuindite CORPORATION of syndics ...... •••... COPYRIGHT COST. of litigation in France as compared with England COSTS. rule as to, as regards appeals ••• ••• of prosecution in ca=cs of fraudulent bankruptcy P.\GE 258 200 94 250 350 350 .■550 351 181 80 SO 90 83 25-1. 137 53 ... 373 80,81 81 81 IG ... 103 202-295 1, 27.2 ... 125 ... 85 .. GO ... 38 ... 29 ... no xlviii INDEX. PAGE. COSHS— continued. of appearance of tardy creditors in bankruptcy . . . 388 nnsuceessful party condemned in, what they consist of .. . 36 security for (see Security for Costs) ... ... ... 36 of bankruptcy prosecution ... ... .. . . 103 interest on ... ... ... .. ... 55 formal summons for payment of ... ... ... 55 of proceedings on lost bill borne by holder ... ... 202 of patent action, security from foreign plaintiff . . . STO' first, in bankruptcy, may be advanced by Treasury ... 85 of sealing and inventory ... ... ... ... 91 general, secured creditors not liable to ... ... 91 incurred by single creditor ... ... ... 91 CO-SURETIES when one or some fail ... ... ... . . 95 rights of against principal ... ... ... ... 95 cannot prove in bankruptcy if unpaid creditor proves ... 95 COULISSIEBS 249^ COXJWCIL OP DISCIPLINE. (See Avocats.) CONSEILS DE PRUDHOMMES 5 how established ... ... ... ... 2^ CONSEIL BE PAMILLE 181 C OTJNSEL. (See Avocats.) COUNSEL'S PEES not included in costs ... ... ... . . 30- COUNTERCLAIM (see Tribunal of Commerce) ... 30- COUNTRY BROKERS. relation to Paris brokers ... ... ... ... 254 COUPONS. claiming of, after a number of years ... ... ... - 59- COUR B'ASSISES. for fraudulent bankruptcy ... ... ... . . 103 COURT. of Experts (see Conseil des Prudhommes) ... 27 and Tribunals ... ... ... ... 1 regulations of, as to payment of interest ... . . 56- COURTS OP APPEAL. final judgments ... ... ... ... 3 twenty-six Appeal Courts in Franco ... ... ... 6 jurisdiction , ... ... ... ... . . f, a ri-^^s (judgments) ... ... ... ... 6- • ' motx. xiix COURT OF APP'EAJi— continued. ■--■ • procednre similar to Tribuiiala of First Instance ' ... 6 cases prepared by avou4s aild argued by avocats ... 6 definition of judges ... ... ... ... 6 composition of Paris Court of Appeal ,..i ... 6 time for appealing against jugements coril/radictoires- aind judgments by default ... ... ... ... 6 rules as to minors ... ... ... ... . . ; 6 parties residing abroad have extension of time ... 6 Great Britain, time for appealing ... ... ... 6 further exceptions .. . ... ... ... ... . ,7 death of party condemned, practice ... .... ' ... 1 appeals in cases of forgery ... ... ... ... 7 judgments not executory by provision, rule as to a'ppedls' 7 object of above rule ... ... 7 judgments executory by provision, same rule applies ... 7 jugements pr^paratoires, appeals ... ... ... 7 jugements interlocutoires, appeals ... ... ... 7 definition of above judgments ... ... ... 7 service of writ of appeal , ... . 7 when appeals stay execution ... .... 7 COUBT OP CASSATION. its functions ... ... ... ... 3 its duties ... ... ... ... 3 is Supreme Court of Appeal in France ... ... 8 composed of 49 judges Chanibre des BeqvMes Chambre Civile Chanibre Criminelle judgments, how delivered stance solennelle, meaning of ... ... ... 8 composition of chambres ... ... 8 procureur g4n4ral ... ... ... ... . .,. 8 avocats g4n4raux ... ... .... ... ... 8 solicitors and counsel, their functions are ama,lgamated 8 what appeals lie to Cassation ... ... ... 8 judgments which cannot be submitted to Cassation ... 8 jurisdiction in special cases ... .r ■ ^ decides upon questions of law only ■ ... ... ' 9 appeals, how commenced ... ... ... ■ . 9 petition must be signed by avocat and filed ... . . , 9 time for appealing ... ... ... • ■ • ■ 9 time for appearance ... . ■ • ■ • • ■ ■ 9 extension in certain cases ... ■... -.• '■'.:■. 9 1 INDEX. COURT OP CASSATIOTS— continued. periods doubled in time of war ... ■ . . • • 9 practice upon non-appearance ... ... . . 9 appeals no Btay of execution ... ... ... 9 effect of judgment of Cassation ... ... ... 10 judgment of Court below is simply quashed, not reversed 10 parties are referred back for case to be reheard ... 10 second appeal to Cassation, practice ... ... ... 10 (See also Dictionary of French Legal Terms, under heading Procedure en Cassation.) COVER. deposited by brokers' clients CREDIT PONCIER. law upon stamps ... CREDITOR. 250 454 making private arrangement with bankrupt . 100 compensation to, by way of interest . . . 55 CREDITORS (Shipping). opposing ... .. 328 proofs of claim 328 privileged .. 328 classing of ... 328 claims of . . . . 322 privilegesof .323 how extinguished ... , . 324 notice to, after union .96 foreign ... 96 in bankruptcy . 398 their rights in case of unipn and non-excusa bility ... 397 by running accounts 96 meeting of, for concordat ... .99 may attach provision for bill 194 lien of, on apport of commanditaires ... 126 privileged (see Bankruptcy) 89,92 resolutions of, at first meeting 89 petition of, in banlcruptcy ... 77 secured ... ... 91 ex parte application of . 77 meeting of, in bankruptcy ... 89 may appear by proxy .89 CRIMINAL PROCEEDINGS. for infringement of trade-mark 288 . INDEX. li PAGE CROSS CHEQUES. not in use ... ... ... ... 221 -CURBENCY. specified fop bill of exchange ... ... 197 DAMAGES. for infringement of trade mark ... ... ,. 288 DATE CERT AINE (see Fixed Date) .. 52 DATE. of commencement of patent ... ... ... 277 of indorsement of bill, necessary ... ... ... 193 object of ... ... ... ... ... ... 193 DAYS. of grace abolished ... ... ... ... ... 192 DEALINGS. in shares, irregular ... ... ... ... 140 DEATH. a trader can be a;djudicated bankrupt after his death (see Bankruptcy) ... ... ... ... 371 bankrupt can be reinstated after ... ... ... 115 of acceptor, protest of bill not paid required after . . . 207 of bankrupt, rehabilitation after ... . . 107 of parties, effect in proceedings ... ... ... 34 DEBTOR. statement of ... ... ... ... ... 89 may be sued if proceedings closed ... .. ... 89 DEBTORS. when adjudged bankrupt after death... ... ... 76 Court of domicil has jurisdiction ... . . .77 trading in two localities ... ... ... . . 77 personal attendance of, at creditors' meeting ... ... 89 DEBTS. effect of adjudication on bankrupts ... ... ... 79 accrued, due, and otherwise in bankruptcy ... . . 373 DEBTS ANT> CLAIMS. transfer of ... ... ... ... ... 62 can be effected verbally ... ... ... 62 DECK CARGO (JETTISONED). no freight payable... ... ... ■■. ... 266 effect of special agreement for ... ... ... 2C6 DECLARATION (STATUTORY). by jnajiagei of 8oci4t4 en commandite ... ... 131 s s 2 lii . INDEXi PAOE DEED. deposit of... ... ... ,.. ... ' ■ ...■ 143 of partnership, liability of members cannot be divided by 121 of partnership, powers of managers under ... ... 122 of partnership ... ... ... ... ... 147 registration of ... ... ... ... ... 14? duty on ... '..'. ... ... ... ... 147 publication of ... ... ... ... ... 147 of partnership of SoeiH4 en nom collectif ... ... 152 of partnership of Sooi^te en commandite simiple . . . 154- of protest, contents of ... ... ... ... 212 official copies of ... ... .v.- ... ... 212 of protest... ... ... ... ... .... 203 payment by intervention entered on ,,, ; ... ... 203 of 5od^t^ OTioTii/flie, in duplicate ... ... ... 140- DEEDS under private signature. (See Ades sous seings priv^s.) DEFAULT OP APPEAHANOE. practice ... ... ... .... ... ... 33 of protest for non-payment of bill of exchange ... 183- exonerates drawer if provision supplied ... ... 183 and indorsers in any case ... ... ... ... 183 DEFAUT CONGE, meaning of , and practice ... ... ... ... 37 DEGREES OP JnHISDICTION 3 DELAY under charter-party ... ... ... ... 263 when charterer liable ... ... ... ... 263 by accident ... ... ... ... ... 263 when captain liable ... ... ... ... 264 DELIVERY OP GOODS. before due, void against bankrupt's creditors ... ... 82 under bill of lading ... ... ... 271,272 DEMANDS. proving of ... ... ... ... ... 322 in what manner ... ... ""...'' ... ... 322 DEMURRAGE ... ,,::,,... , 260-272 expense of ... ... ... ... ... 343 DEPOSIT. ' '" • ^ i of stockbroker ... ..'.■ .:: ... 248 payment of, on application f ol* patent ... 276 DESCRIPTION. . -f ' of article to. be patented ... ... ... ... 276 INDEX. liii V PAGE DETJXIEME DE CHANGE 202 DIRECTORS. of Company ... ... ... ... i3£ i, 137 term of office of ... 137 shares of ... 138 not personally liable on Company's contract ... 138 DISABILITIES. of bankrupt (see 78, 79) 106 DISCHARGE. of bankrupt (see Concordat) 101 of iudorsers 204, of Company from liability ... 59 DISMISSAL. of stockbroker 247 DISQUALIFICATIONS. of stockbroker 246 DISSOLUTION. of Spciiti anonyme 139 Court may decree ... 139 DIVIDENDS. in bankruptcy 404 received by commanditaires ... 128 on Bhares, fraudulent 135 rights of tardy creditors to past and future dividends ... 388 DOCUMENT OP TRANSFER. name of, with parties 61 DOCUMENTS. deposited on application for patent ... .. '. 276 DOMICIL of chief office of firm 77 Court of domicil of debtor ... 77 of party Uable' on bill, protest at 211 authority to establish in Trance 68 rules, as to, between partners in actions, in Tribunal de Commerce 28 of firm ... ... ... 123 DONNEUR D'AVAT 204 DONIJEUR D'ORDRE 184 must furnish provision 184 DORMANT PARTNERS 124 liv INDEX. DOTAL SYSTEM. See the entire law in Appendix. See " Regime Dotal," in Dictionary. See also Appendix. DOWRY. See Dotal System. DRAWER (see Bills of Exchange) ... ... 177, seq^ DRAWINGS, annexed to application for patent ... ... ... 276 DUPLICATES OI" BILLS exempt from stamp ... ... ... ... 229 DURATION of patent... ... ... ... ... 275, 276^ of registration of trademark ... ... ... 286 DURESS, acceptance obtained by ... ... ... ... 186- DUTY on registration of stockbroker's appointments... ... 256 ELECTION OP DOMICIL. in commercial snits ... ... ... ... 32 ELECTION OP JUDGES 20 EMANCIPATED MINOR. considered of full age, in respect of business ... ... 181 but must have authority by deed ... ... ... 181 conditions of his trading ... ... ... ... 289 EMANCIPATION OP MINORS 181 EMPLOYE. of firm, commorwJjfaire may be ... ... ... 128 EMPLOYilSS. penalties on for infringing patent rights ... ... 277" ENGAGEMENT AND WAGES OP SEAMEN. payment ... ... ... ... ... ... 336 proportion ... ... . . ... ... 336 how hired when no wages are payable . . advances made to seamen refunding of same as to payment of wages if ship wrecked 336 337 337 337 337 337 INDEX. Iv PAGE ENGAGEMENT, Ssc— continued. illness ... ... .., ... . . . . 337 leaving ships withont permission ... ... ... 337 death ... ... ... ... ... .. 338 indemnity for ransom ... ... ... ... 339 discharge -mthout cause ... ... ... .339 discharge in foreign countries ... ... . . 339 ENGLISH JUDGMENTS suing upon in France ... ... ... ... 71 ENGLISH LAW as to formation of partnership ... ... 147, 149, 150 contrasted with French law in respect of Societcs . . . 149 ENGLISH SOLICITOUS IN PBANCE names in law list ... ... ... ... ... 39 their duties and disabilities ... ... ... 39 ENGLISH SPECIPICATION 278 ENGLISHMEN IN PRANCE (see Foreigners iu France) ... ... ... ... ... ... 278 ENUMERATION OP VARIOUS COURTS. of various Courts ... ... ... ... 1 EVIDENCE. written and oral ... ... ... ... ... 42 meaning of acte ... ... ... ... ... 42 when writing required ... ... ... ... 42 evidence of witnesses ... ... ... ... 42 exceptions ... ... ... ... ... 42 rule iu commercial actions ... • . • , • ■ . • ■ ■ ^2 traders' books ... ... ... ... ... 43 of trader's books to prove loss of bill of exchange . . . 201 necessary for agent in bankruptcy ., . ... ... 115 of bill of lading ... ... ... ... ... 271 in commercial cases ... ... ... • • 39 in respect of SociiUs ... ... ... . . 142 must be in writing... ... ... ... ••• 142 oral, not admitted ... ... ... . • • • 142 deeds necessary ... ... ... ... • ■ 142 when deed sous seings privds, rules of ... • ■ ■ 142 supplementary, not admtited ... ... . • 142 EXAMINATION. of parties... ... ... ... ■ ■ ■• 32 of witnesses ... ... .■ ■ ■ 33 of claims in bankruptcy ... ... ■ ■ ■ 89 EXCEPTIONAL TRIBUNALS 8 Ivi : INDEX. PAGE. EXCEPTIONS TO ACTIONS. (See Bars to Actions.) EXCHANGES OP COMMEBCE. Bourses ... ... ... ... ... ... 298 EXCTJSABILITB 101 EXECUTION. upon personalty ... ... ... ... ... 49 must be preceded by comm(i»i copyright... ... ... ... ... 69 obligations and duties of foreigners ... ... ... 69 crimes and misdemeanours ... ... ... ... 69 jurisdiction of Courts ... ... ... ... 69 foreigners can be expelled from France ... ... 59 laws governing capacity ... ... ... ... 69 actions between Frenchmen and foreigners 70 foreign plaintiff ... ... ... ... 70 action can be entered in French Courts ... ... 70 rule as to reciprocity ... ... ... ... 70 security for costs ... ... ... ... 70 foreign defendant ... ... ... ... 70^ Frenchman can sue in France ... ... ... 70 when and where foreigners can be sued ... ... 70 Companies, corporations .... ... ... 71 transfer of claims, jurisdiction ... ... ... 71 foreign acceptor of bill can be sued ... ... 71 blank indorsements ... ... ... ... 71 mode in which foreigners must be sued ... ... 71 practice ... ... ... ... ... 71 service of process ... ... ... ... 71 time for appearance ... ... ... ... 71 general rules of procedure ... ... ... 71 writs, how served ... ... ... ... 71 .actions between foreigners. French Courts incompetent to adjudicate in certain cases ... ... ... ... ... 71 Ix lUDEX. FA6E TOEEIGNERS. rules aa to secijrity f oi: costs ... • • • • 32 — 4? rights of, to grant of patent... ... ... ... 278 rights in respect of trade-niarkB ... . ■ . 285 — 286 reciprocal rights in actions on trade-marks ... ... 288 foreigners in France may be made bankmpt ... ... 76 foreign firms with branch in France •" ... ... 76 foreign judgments rendered executory by Civil Courts ... 77 foreign trustees ... ... ... ... 77 need not obtain eaisegitatur ... ... ... ... 77 FORPEITUIIE OP PATENT 275 PORGED INDORSEMENT 198 FORGERY of signature of transfer of rentes ... . . ... 254 treasury when liable ... ... ... ... 254 rights of 6ona_^(Je holder of bill forged ... ... 187 of bill of exchange ... ... ... ... 199 forging name of drawer ... ... ... ... 200 signing imaginary name ... ... ... ... 200 fraudulently causing biU to be drawn ... ... 200 alteration of amount ... ... . . ... 200 signature of drawee ... ... . . ... 200 personification of holder . . . ■ • ... ... ... 200 forged indorsement ... ... ... ... 200 if drawee has accepted forged bill, he is liable for payment ... ... ... ... ... 200 if acceptance forged, drawee not liable ... ... 200 but drawer and indorsers are ... ... ... 200 if amount altered before acceptance, acceptor is liable . . . 200 , if after acceptance ... ... ... 200 remedy against drawer ... ... ... ... 200 forged indorsement by thief ... ... ... 200 acceptor discharged by payment ... . . ... 200 iino opposition ... ... ... ... ... 200 fraudulent filUng-in of blank iudorseinent ... ... 200 payment of bill discharges acceptor ... ... 200 rules apply to acceptance by intervention- ... ... 201 • and to oit besoin ... ... ... ... 201 no title conferred by ... ... ... ... 198 FORMALITIES. effect of ... ... ■ ... ... ... 59 to be fulfilled ... ... ... ... ... 59 general, in respect of Companies ... ... ... 147 for obtaining patent ... ... 276 INDEX. Izi FORMA PAUPERIS. sueing in ... rules as to foreigners petition and practice general rules and costs FORMS of bills of exchange and promissory notes ... 234, of partnership deeds and Articles of Association 152, FRAUD. acceptance obtained by marks of ... against creditors ... .;. frandtdent preference, payments by fray of, void goods obtained by .. . in relation to Companies, penalties for annuls concordat ... action for, against syndics ... by partner' or relative in bankruptcy ... FRAUDULENT. user of trade-mark imitation of trade-mark, prosecution for subscriptions or dividends ... dave of cheque, penalties for bankrupts general provisions bankruptcy how it affects concordat duties of trustees verification of proofs, &c. practice person convicted of, cannot have benefit of con cordat preference, action against creditors receiving preferences bankruptcy ■•■ ••• ■•• ■" ■ obtaining drawing of bill FREE OF AVERAGE. (See Average.) FREIGHT. ' meaning of limitation of actions for ' - payable by charterer, if goods not laden •'■- cannot be demanded if ship unseaworthy •' action for... i ... «•■ 4A 4.4, 44, 45 239 167 isr 81 8a 81 83 151 100- 98 288 286- 135 232 409 390 393 393 393 99- 98 97 102 200 257 268 262 261 267 ilxii . INDEX. PBEIGHT — continued. in cases of abandonment affreightment ... definition of fret includes the contract and the price paid essentials of the contract /r^iewr, the shipowner affrdteur ac cha/i-geur, the consignor , . . owners may contract by agent ... or by master general rule that master's contract binds the owners... but if owners are present, must have special authority but owners cannot repudiate bon3.-fide contract their remedy is against the master ... contract may be with owners of foreign ship method of forming contract when whole vessel chartered, all portions at charterer's disposal contracts from month to month freight runs from day of sailing to day of unloading actual unloading must be efEected except by special agreement part of month paid for as whole contract for part of vessel ... Aforjait specified part of ship di cueillette by the ton, &c. charter-party, definition of ... contract depends on its terms . : . must be in writing and signed when made before a notary telegram equivalent to charter-party in a foreign language ... how proved, if original lost contents of charter-party. certain omissions annul contract . . misrepresentation, actionable but not without proof of damage tonnage, reckoned on English system PAGE 361 257 257 257 257 257 257 257 257 257 257 257 258 258 258 258 258 258 258 258 258 258 258 258 259 259 259 259 259 259 259 259 259 259 259 260 260 260 260 260 INDEX. Ixiii PAGE 'FREIG'H.T— continued. of foreign vessels ... ... ... ... 260 local usages for loading, &c. ... ... ... 260 lay-days ... ... ... ... ... 260 demurrage fixed by charter-party ... ... 260 . or by custom of port ... ... ... 260 payment ... ... ... ... ... 260 bill of lading supplements charter-party ... ... 261 when they differ, the Court decides according to the intention of the parties ... ... ... 261 duties of the affreightor. must fulfil the contract ... ... ... 261 if he sells the ship chartered, liable in damages to charterer ... ... ... ... ... 261 implied warranty of seaworthiness ... ... 261 if ship unseaworthy, w^hen no freight can be demanded .., ... ... ... ... 261 after due inspection, onus of proof is on charterer . . . 261 presumption of law ... ... ... ... 261 when unseaworthiness proved during voyage . . . 261 deficiency of cargo supplied by charterer ... ... 261 cannot be made up by other cargo, without char- terer's consent ... ... ... ... 261 secus, when contract for partial affreightment . . . 261 damages assessed by Tribunal of Commerce . . . 262 further duties of captain ... .. .262 ... 262 ... 263 ... 262 ... 262 ... 262 ... 262 ... 262 superintends loading gives bill of lading unloads at port within the fixed time delivery to consignee ... duties of the charterer jiayment of freight whether goods laden or not captain should protest, in order to claim for deficit, or make declaration on bills of lading . ... 262 certificat de vieite ... ... ■ ■ • ... 262 if refused because of excessive cargo, captain exonerated ... ... > ... ... 262 1. If goods reach destination, freight is payable ... 262 but charterer may deduct damages due . . . 262 if lost through no fault of consignor no freight is due ... ... ... •■• ••• 262 right to abandon ... ... ••. 262,263 refusal by consignee to accept ... ... 263 order to se^l obtained from the Court . . . 263 Ixiv INDEX. PAGE 'FREIG'ST— continued. or when no one appears to claim cargo ... 263 summons — ^notice to consignee ... ... 263 powers of Tribunal of Commerce ... ... 263 of French consul ... ... ... 263 or of local magistrate ... ... ... 263 voyage out and home ... ... ... 263 when freight payable, though no cargo taken for return voyage ... ... ... 263 2. When cargo delayed on the voyage ... ... 263 general rule — party in default bears the loss ... 263 if by unavoidable accident, freight is due . . . 263 instances where charterer is liable for delay . . . 263 if he ships goods forbidden to be exported . . . 263 or contraband of war ... ... ... 264 or goods forbidden to be imported at port of unloading ... ... ... 264 when costs of delay fall on captain ... ... 264 default in starting ... ... ... 264 absence of proper papers ... ... 264 taking' contraband goods ... ... 264 neglect to observe formalities for unloading 264 necessary formalities to charge captain . . . 264 accidents at sea ... ... ... ... 264 repairs ,.. ... ... ... ... 264 unseaworthiness at time of starting makes owners absolutely.liable ... ... ... 264 transhipment on delay for repairs ... ... 265 criminal proceedings for unseaworthiness ... 265 if ship completely disabled, feaptain must engage , another. . . ... ... ... ... 265 if for a higher price, consignor must pay the difference ... ... ... ... 265 blockade of port of destination 265 3. When the goods do not reach their destination ... 265 if from default of chartered, by shipping in- complete cargo, he must pay full freight 265, 266 if no cargo shipped, half freight due ... ... 266 if cargo withdrawn during voyage, whole freight is payable ... ... ... ... 266 Art. 307 — captain's lieu limited in such a case 266 he must sije for thq surplus . . ... ... 266 rules on sale of dam3;Tiee ■ claims goods, captain must advertise . . > . 272 demurrage ... ... ... .'. 272 rival claimants for delivery ... 272 practice ,in case of dispute - 272 limitation of action by consignor 272 stamp ... ... ... 272 only on captain's copy of bill . 272 on foreign bills ... ... . 272 duty on extra copies . . 272 , penalties ... ... . . 272 form of a charter-party 273 see Charter-parties ... ... ... ... 340 definition of . . . ... ... ,'i'IO how regulated and evidenced ... . 342 departure of vessel without being full . . 343 due to master ... ... ... 343 withdrawal of goods before sailing 343 expense of demurrage ... ... ... .343 default of payment of ... ... .. ' .. 346 INDEX. IxYii 'FR'EIGH.1!— continued. ^^^'^ lien of master for ■ • ... ... ... 3jy privilege of master for ... .... ... 346 in case of failure of shippers ... ... 346 diminution of . . . ... ... 3.(.g abandonment for ... ... 3](j loans on ... ... .., 3.je withdrawal of goods during voyage ... 3 11, determination of damage ... ... 3 1.|, repairing of vessel ... ... ... 311, unseaworthiness of vessel ... ... 3.1.4, in case of shipwreck ... ... ... . 345 TBENCH BAB. (See Avocats.) PBENCH CONSUL, powers of , in respect of . cargo ... ... 263 I^EWCH LAW LIS.T 39 TBENCH LEGAL OFFICIALS 10 FBEIfCH POSSESSIONS, bills payable within ... ... ... .. ^05 FBENCH TBADEB in foreign country may be prosecuted in bankruptcy ... 102 TBET (s«e AfPreightment) ... ... ... ... 2.57 FBETEUB— SHIPOWWBB 257 FUBWITITBE, right 6f landlord to seize ... ... "" ... . . 93 " on the leased premises " ... ... ... ... 93 GAMBLING. bargains on the Bourse ... ... ... ... 252 GABDES DE COMMEBCE 23 GABNISHEE 47 GENEBAL A VEB AGE (see Average) ... ... 2CG GENEBAL COMMUNITY •(See COlnmumty.) GENBBAL MEETING OP SOCIETE . . 137 GENEBAL SHIP 2C6 GIFT OP SHABES ... ... ... ... 133 GOODS. delivery of, before due, void against bankrupt's creditors 82 delivered to bankrupt, and price unpaid ... ... 82 GOVBBNMENT. no authorisation ol, vequhei hj Soci^tes anonymes ... 13C T T 2 Ixviii INDEX. PAGE. GBEFFIERS. definition and duties ... ... ... — 17 GXTABAlfTEE FUND. of syndics ... ... ... . ... 85 GUARDIAN. liability of, for interest ... ... ... ... 54 investment of moneys by ... ... ... ... 54 of bankrupt ... ... ... ... ... 105- GUNSMITHS. trade-mark compulsory on ... ... ... ... 285 HOLDER. of bills of exchange with false statements ... ... 180- of bill of exchange, can only obtain security from one party ... ... ... ... ... ... 186 of bill of exchange, not afEected by acceptance or by intervention ... ... ... ... ... 190 of bill of exchange, remedies of, how lost ... ... 209- of bill, not bound to take payment before maturity ... 198 except in default of acceptance ... ... ... 198 of unstamped biU of exchange ... ... ... 228 6omd ^de, of bill obtained by fraud ... ... ... 187" even in case of forgery... ... ... ... 187 hand, fide of bills drawn by minors ... ... ... 181 HOLIDAYS. protest of bill due on, made on the following day ... 207 bill falling due on ... ... ... ... ... 191 HUISSIEBS their duties and functions ... ... ... ... 17 ordinary and a«(Jiemcters ... ... ... ... 17 must act when retained ... ... ... ... 27 HUISSIEB draws up opposition to payment of bill of exchange . . . 199 makes entry of payment by intervention ... ... 204 expenses of ... ,.. ... ... ... 209 report of, seizing ... ... ... ... ... 325 HUSBAND AND WIPE. (See the entire law in Appendix.) traders ... ... ... ... ... •■• 290 separate business of . ... ... ... 180 liability on bills drawn by either ... ... ... 180 ILLITERATE PERSONS. rules as to execution of deeds ... . . 51 IMMEUBLES. in bankruptcy ... ... 9/ ■ INDEX. Ixiz IMPLIED. provision... ... ... ... ... ,,. 184 warranty of seaworthiness in charter-party ... ... 2G1 IMPRISONMENT. for debt. (See Appendix.) of bankrupt ... ... ... ... ... 85 how limited ... ... ... ... SS IMPEOVERS. of patented articles, rights of ... ... ... 277 INDEMNITY. for ransom ... ... ... ... ... 339 from whom due ... ... ... ... ... ,339 amount of ... ... ... ... ... 339 collection and application of ... ... ... 339 discharge without valid cause ... ... ... 339 mode of fixing ... ... ... ... ... 339 no right to, if discharged before completion of shipping articles ... ... ... ... ... 339 INDOBSEE. of bill of exchange, must be named ... ... ... 103 INDORSEMENT. of biU of exchange in blank may be filled up ... ... 193 except after death or bankruptcy of indorser .... ... 193 in blank, fraudulent filling in of ... ... .... 300 of bill, forged ... ... ... ... ... 200 irregular, holder can transfer property in bill by regular indorsement ... ... .;. ... ... 191 of cheque ... ... ... ■■. ... 221 of bill of lading "to order" ... ... ... 270 informal, no transfer of property ... ... ... 270 when indorser becomes bankrupt ... ... ... 270 in blank, of bill of lading ... ... ... ... 269 of bill of exchange (see Bills of Exchange) ... ... 193 of bill of exchange, governed by law of place where made 192 incomplete, of biU of exchange, effect of ... ... 193 of bill at fixed date, form of ... ... ... 23.5 of foreign bill ... ... ... ... ••• 193 in blank, acceptor's rights on ... ... ... 193 holder takes, subject to equities ... ... ... 194 irregular, does not transfer property in bill of .exchange 194 effects of... ... ... ... ... .. 194 INDORSER. ■may reyoke procxiration ... ... ... ■■• IM or his agent must sign indorsement of bill of exchange... 192 1X£ INDEX. PAeE. INDORSEBS. and drawers of bill are sureties for payment ... ,., 185 of bill of exchange, rights of, iwter se ... .„ 186 of bill of exchange, rights of action how lost ... ... 210 INDUSTRIAL PRODUCTS. patent for ... ... ... ... ' ... 275- IMTAWCY. plea of, valid in case of bills' ' ... ... ... 181 INFORMAL issne of shares ... ... ... ... ... 135> INFRINGEMENT. of trade-mark, penalties for... ... ... ... 286' by foreigner out of Prance ... ..'/ ... 287 by French subject out of France ... ... ... 287 of patent rights ... ... ... ... ... 277 pimishment of ... ... ... ... ... 277^ INFRINGEMENTS. (See Patents.)" INHERITANCE. money forming part of an ... ... ... ... 55- INNKEEPERS' LIEN. on guest's property ... .... ... ... 94 INSUFFICIENCY. of assets ... ... ... ... ... ... 394 in bankruptcy ... ... ... ... ... 394 INSURANCE. duration of risk, how regulated ... ... ... 333 re-insurance ... .:. .::• ... ... 353 what may be insurance ..-. ... ... 353 war premiums, how regulated ... ... ... 353 loss of captain's goods ... ... ... ... 353 passengers' goods, formalities ... ... ... 353 bankruptcy of insurer .;;■ ... ... ... 353 contract of insurance, when void ... ... ... 354 concealment, misrepresentation ... ... ... 354 obligations of insurer and insured ... ... ... 354 indemnity, if voyage broken up ... ... ... SSI- liability of insurer for loss, damage, &c; ... ... 354 effect of change of route, &c. ... ... ... 354 default of owners, consequences ... ... ... 355 barratry „. ... ... ... ... ... 355 pilotage, towage, &o. .:. .:. ... 355 certain cargoes must be declared .. .. ... 355 voyage out and home, deductions ... ... ... 355 INDEX. Ixxi INSURANCE— continued. excea3 insurances, when void severai policies, how dealt with partial loss as regards insurers goods in separate vessels, rules transhipment, rules destination, when exceeded, rule short voyage, rule ... insurance effected after loss lost or not lost, presumption concealment, double premium criminal prosecution abandonment contract of- fomi and object contents ... it expresses policy of . . . subjects of- when made in case of fraud INSUBAWrCE BROKERS. INTEREST. on apport... rule as to, in appeal cases ... effect of adjudication as regards ceases to run after adjudication chargeable on payment by bankrupt of bill not matured on money retained by syndics ill action for freight contract of how governed legal rate in France usury forbidden exceptions in favour of certain localities ditto in favour of persons ... ditto on extraordinary risks... repeal of all restrictions upon conventional interest. definition of . . . general rale of law as to loans ... practice ... ... . .'. ' legal interest. payable by debtor PAGK 355 355 355 355 355 356 356 357 357 357 357 357 350 350 350 351 351 351 352 352 300 119 29 373 79 84 88 267 56 56 53 53 53 53 53 53 53 53 53 54 Ixxii INDEX. PAGE INTEREST— coTiimwed. payable by purchaser of a prodnctive article ... 54 liability of guardian for ... ... ... 54 liability of agent for ... ... ... ... 54 payable on money appropriated ... ... ... 54 right of surety to ... . . ... ... 54 liability of partners to ... ... ... ... 54 on detention of money ... ... ... 54 on legacies ... ... ... ... ... 55 right of avou^s (solicitors) to, upon their costs ... 55 I'egulations of Civil Code as to ... ... ... 55 express agreement as to ... ... ... 55 judicial interest. definition of ... ... ... ... ... 55 on money overdue, special demand necessary for ... 55 payable by way of compensation to a creditor ... 55 no appeal from amount of, allowed by the judge ... 55 compound interest. definition of ... ... ... ... ... 55 special agreement necessary for payment of ... 55 exceptions ... ... ... ... ... 56 payment of, to a foreigner ... ... ... 66 regulations of French Courts as to payment of 56 INTERBOGATOEIES. when ordered, how administered ... ... ... 35 INTERVElfTIOIf. payment by (see Bills of Exchange) ... ... ... 203 acceptance by (see Bills of Exchange) ... ... 189 when it takes place ... ... ... ... 189 cannot be by drawer or indorsers ... ... ... 189 INTEBlTATIOlf AL LAW. on bills of exchange, principles suggested for... ... 240 INVENTION. or discovery may be patented ... ... ... 275 INVENTORY. of estate, by trader, annual... ... ... ... 291 INVOICES. do not require stamp ... ... ... ... 224 I O U'S. not known in France ... ... ... ■ • • 182 JETTISON. (See Insurance.) of deck cargo ,., . . . ■ . • ■■• 266 when permissible ... ... ... ... • ■ • 366 difference of opinion ... ... ... ... 366 . IJJDEX. Ixxiii ■JETTISON— continued. what may be jettisoned consultation, niles as to log-book ... referees ... appraisement of goods French and foreign ports contribution, how made payment, how made ammunition and provision bills of lading deck cargoes, contribution damage to ship, contribution when no contribution made subsequent loss of ship subsequent damage to cargo lighters, contribution lien of masters and mariners recovery of effects jettisoned, rules JEWELLERS. . trade-marks compulsory JOINT OBLIGATIONS AND SECURITY. (See Creditors in Bankruptcy.) JOINT AND SEVERAL LIABILITY. of drawer and indorsers of bill of exchange ... JUDGES (see Tribunal of Commerce) ... order necessary for lodging opposition to bill of exchange JUDGE. amount of interest in discretion of JUDGMENTS. how given how drawn up charges executed by debtor under by default, effect of opposition non-appearance of plaintiff . . . practice ... ... the like of defendant how set aside in bankruptcy, appeals from which cannot be appealed against (see Bankruptcy ) JUDICIAL. system in France ... mortgages (see Appendix). interest (see Interest) PAGE 366 366 366 366 367 367 867 368 368 368 368 368 368 368 368 368 369 369 285 185 19 199 55 23 33 83 33 36 36 36 36 99 408 55 Ixxiv INDEX. PAGE JUGE-COMMISSAIBE 84 fixes allowance to hankmpt ... ... ... ... 85 may increase deposit to meet claims of foreign creditors 97 or registrar in bankmptcies ... ... 375 how appointed ... ... ... ..- ... 375 dnties, etc. ... ... .. ... ... 375 directs sale of bankrupt's personalty ... ... 101 JUGE-DE-PAIX 225 one justice of the peace appointed ... ... ... 4 in each can tow ... ... ... ... ... 4> the office is removeable ... ... ... ... 4 salaries ... ..= ... ... ... ... 4 in Paris there are 20 judges ... ... ... 4 no appeal under 100 is. ... ... ... ... 4 appeals lie to civil tribunals... ... .., ... 4 laws regulating jurisdiction ... ... ... ... 4 JUGEMEIfTS coiitcadictoi'res, time for appealing against ... ... 6 pr^jjaratoircs, appeals and definition ... ... ... 7 JUmSDICTIOlf of Civil Tribunal in mercantile cases ... ... 2 of Tribunal of Commerce (see Tribunals of Commerce) ... 24 of Civil Tribunals in commercial cases ... ... 30 of Tribunals of Commerce in bankruptcy ... 75, 77, 97 seq. ' of Court of domicil of debtor, in bankmptcy ... ... 77 of Courts in iSociVt^g. ... ... ... ... 118 JUSTICES OP THE PEACE. (Seejuges de pai,:.) LANDLORD. rights of,' in bankruptcy ... ... .. 80,92,93 privileged creditor ... ... ... 93 rights under lease .. . ... ... . . 92 may prove for rent not privileged ... . • 93 rights in bankruptcy ... ... .. 40O privileges, how limited ... ... ... 92 LANDOWNERS. promissory notes by .... ... ... 215 LARCENY. bankrupts convicted of ... ... . 107 LAW. of 1838, on bankruptcy ... ... ... 75 of 1844, on patents ... ... ... 275 of 1857, on trade-marks ... ... ... 285 INDEX. IxxT FAGE. 120 220 130 288- 233 93 93 9» 02 5J. LAW — continued. of May 23rd, 1863, repealed... of June, 1865, on cheques ... of 1867, onSocidt^s of 1873, aa to trade-marks ... of 19th February, 1874, as to cheques LAW LIST. (See French Law List.) LAY DAYS ... ... 260 LEASE. for fixed term, bankruptcy of lessee ... with no term specified .;, expired, syndics holding premises after for business purposes- ...■ LEGAL INTEREST (see Interest) LEGAL MORTGAGES. (See Appendix.) LENDERS. on bottomry ... ..... ... . . ... 350- LESSOR. rights iu bankruptcy ... ... iOO LETTERS. of credit, not stamped ..' ... ... 224 of trader filed and copied ... ... ... 291 LEX LOIE CONTRACTUS. governs indorsement of bill of exchange ... ... 192 LIABILITY. on bills, in various forms of partnership . .-. ... 183 of drawer and endorsers of biU of exchange ... ... 185 personal, of brokers ■ ... ... ... ... 350- of commamditoire acting as partner ... ... ... 129 unlimited, of active partners. . . ... ... ... 134 apportioned by Court among ouenibors of a Socie'^' ... 134 LIEN. of Hiaster of ship for freight ... ... ... 34& of captain for freight ... . 266 of innkeepers ... ... .■" ... 94 of carriers ... ... . ■ ■ ■ ■ 94' broker's, on securities pledged by client ... ... 250' broker's, on stock purchased for client ... 250 of creditors, on apport commanditaires ... ... 126 of stockbroker, for. unpaid purchase-money of his nomi- nation ... ... ... .■• ■■ ■•• 247 offactors ... ... ... •• ■■ 304 Ixivi •INDEX. XiISN — continued. of captain for freight, extends for 14 days after delivery- how defeated ... on raw material on bankruptcy of consignor... ;.. liIMITATIOW of actions. (See Prescription.) . . against Companies .it- , after dissolution against members against liquidators by members against liquidators on promissoiy notes if by traders, after five year^ by non-traders, after 30 years time runs from date of protest five years' prescription only bars actions relating to acts of trade .... for freight ... in respect of French rentes on bill of lading, by consignor on trade-marks ,.. of prosecution in bankruptcy master cannot acquire vessel by prescription actions for abandonment, when barred bottomry, respondentia, policies actions for freight, wages, victuals, supplies 9,nd equip- ment ... ... wages of workmen... delivery of goods on board ... when prescription cannot take effect ... ilMITED LIABILITY LIQUIDATORS their duties and powers may not sell real property without special authority nor borrow money ... actions against ... LIQUIDATION. no proceedings in ... LIS PENDENS. (See Litispendence in Dictionary.) LITIGATION IN PBANCE. inconveniences of French system IITIGIOUS RIGHTS. transfer of must be notified 267 267 268 268 146 146 146 146 146 218 218 218 218 219 268 255 272 287 103 369 369 369 369 370 370 370 137 145 145 145' 145 146 86 15 62 62 INDEX. Ixxvii LIVBES DE COMMERCE. (See Books of Traders.) '^^^ LOANS. interest on ...... tin loss of object ... ... ... ... __, 34t> in case of shipwreck ... ... ... _.. 349 general average ... ... ... ... .._ 3501 to seaman ... ... ... ... . 34^ on bottomry ... ... ... . . . 34^ how effected ... ... ... ... ... 347 when declared void ... ... ... ... 343 fraud ... ... ... ... ... ... 348 interest on ... ... ... ... ... 343. , on freight ... ... ... ... ... 343 lien for ... ... ... ... ... ... 348 on particular articles ... ... ... ... 34^. to masters on bottomry ... ... ... ... 345 preference ... ' ... ... ... 349 IiOCAL USAGES. for loading, &c. ... ... ... ... ... 260 LOSS. of ship, insurance effected after ... ... ... 357 of imaccepted bill . . . ... ... ... ... 201 of accepted bill ... ... ... ... ... 201 of judge's order for proceedings for payment of ' ... 201 of security ... ... ... ... ... 201 of bill, proof of ... ... ... ... ... 201 LOSSES. covenant against liability for, in partnerships ... ... 120' LOST BILL. proceedings on, costs of ... ... ..^ ... 203. security for ... ... ... ... ... 203 payment of , refused ... 202 must be protested ... ... ... ... ... 203: LOST CHARTEB-PAB.TY. how proved ... ... ■•• •-• ■■• 235 LOST OB STOLEN SECUBITIES TO BEARER 255. protection of property of " opposing " party .. . ... 59 formality to be fulfilled ... ... ■■■ ■•. 59 stockbrokers ... ... ••• ■■■ ••■ "" special rules ... . ... •■• ••• ■•■ ^^ opjposiiioTi may be contested ... .■• ■■• "" new certificates ... ... ■•■ ... ■ ■ •■• "''' Ixxviii INDEX. PAGE XOST OB STOLEN SBCUBITIBS— eoi! definition... ... ... ... ... 121 raison sociale .. ... ... 121 what names must be -used by the firm ... 121 person not a member allowing his name to be used ... ... ... ... ... 121 solidarity of members essential characteristic 121 distinguishes this from SociStS en Com- mandite ... ... ... ... 12L further definition ... ... ... ... 121 persons contracting with Soci4t4 may accept individualliability of one member. . . ... 121 but joint .and several liability cannot be avoided by the partnership deed ... 121 what necessary to bind partners ... ... 122 contract by associ6s g^rants ... ... 122 power usually conferred by deed ... ... 122 contract made "on behalf of the firm" ... 122 signature of firna ... ... 122 other forms ... ... ... ... 122 power of one partner to bind the rest . . . 122 even by wrongful nee of firm signature ... 122 and for his private debts ... ... 122 but liable to other partners ... ... 122 conflicting opinions ... ... ... 122 when partnership profits by transaction 123 rights of creditors ... ... ... 123 indirect action ... ... ... 123 special procuration to sign in name of firm 123 essential words ... ... ... ... 123 powers of the managing partner ... 123 rule as to real property ... ... ... 123 INDEX. IXXXV 1»AB.TNERSHIPS AND COM.'PA'NTES— continued. as to. compromise of disputes ... ... 123 consent of partners, where points doubtful, advisable. ... .... ... ... 123 domicil of firm ... ... ... ... 123 Court imvhich actions shonld be brought ... 123 actions in name of firm ... ... ... 123 service of writ ... ... ... 123 if no ofB.ee, writ may be served on any partner ... ... ... 123,124 Soci^tS en commandite simple .. ... 124 ordonnance of 1763 ... ... ... i24 old practice ... ... ... ... 124 definition... ... ... ... ... 124 active and dormant partners ... ... 124 tinlimited liability of active members 124 dormant partners limited to amount of their apport ... ... ... ... 124 the apport must be in money, goods, or real property ... ... 125 combination of this with Soci6t6 en nom eollectif ... ... ... ... 125 how distinguished from the Soci^tS en COm- manditaires par actions ' ... ... 125 corporate existence ... . . ... 125 what names may be used ... .. ... 125 eommanditaires are partners, not lend- ers of money... ... ... ... 125 results of this ... ... ... ... 125 jurisdiction of Tribunal of Commerce 125 creditors' lien on apport of eommandi- taires... ... ... ... ... 126 active members may call in contributions ... 126 qucere, can creditors compel commandi- taires to contribute ... ... ... 126 in cases of insolvency of Soci6t6 ... ... 126 conflicting decisions ... ... ... 126 direct action against eommanditaires vests in creditors ... ... ... 126 results of direct or indirect action ... 126 if direct, commanditaire cannot set off claim against active member- ... ... 126 if indirect, creditor sues subject to all . . rights ... ... ... ... ... 136 analogy of principal and agent ... ... 126 Isxxvi INDEX. PAGE. PABTNERSHIPS AND COMFANI'ES— continued. commanditaires not traders ... ... 127 qucere, is investment of capital an act of trade... 127 reasons in favour of treating commanditaires as subject to Tribunal of Commerce ... 127 commanditaires subject to Tribunal of Commerce ... ... ... 128. creditors bave no claim, on dividends received by commanditaires ... ... 128- commanditaires must not act as mana- gers ... ... ... 128^ not even for procuration ... ... I2a but may be employd in the iirm ... ... 128 may give general supervision ... ... 128^ but must not be put forward to third parties . . . 128 accounts of apports published ... ... 129 not jiames of commanditaires ... ... 129- former penalty for interference . . . 129 . . now modified ... ... ... ... 129 present liability ... ... 129^ power of Courts to declare solidarity , ... 129^ liability of members inter se ... ... 129' Soci^t^ en commandite par actions ... 129- resembles en commandite simple ... ... 129 but capital divided into shares ... ... 129 shares of uniform value ... ... ... 12S> transition. to Companies ... ... ISO shares assignable ... ... ... 130 nominative shares ... ... ... 130 shares to bearer ... ... ... 130 modeg of transfer ... ... 130 regulation of law of 1867 ... ... 130- limitation of value of shares ... ... 130 peualties for non-observance ... ... 131 value, of shares, if capital under 200,000 fs. 131 over 200,000 fs. ... ... ... 131 whole capital must be subscribed ... ... 131 Q.ne-fpurth paid up , ... ... ... 131 each shareholder must pay this proportion 131 Articles of Association ... ... 131 ... by deed... ... ... ... ... i3i statutory declaration required from manager ... ... 131 contejits ... ... ... ... ... 131 INDEXj Ixxxvii' PARTNERSHIPS AND COWPANl^S—doKtinued. conversion of shares ... ... ' ... 132 after one-half has been paid up ... ... 132 liability of original owners ' .'. . ... 132 various alternatives ... ... ... 132 shares non-negotiable until one-fourth paid up 132 but may pass by gift ... ... ... 133 where apport consists of privileges reserved ... ... ... ... 133 two meetings must be held ... ... 133 statutory majority must approve ... ... 133 how composed' ... ... ... ... 133 committee of inspection ... ... 133 penalty for non-appointment ... ... 133 term of office ... ... ... ... 133 appointed by numerical majority ... ... 133 preliminary duties of committee ... ... 133 rights of third parties when Soci^te declared void 133 principles by which Ctmrts are guided ... 133 apportionment of liability by Courts... ... 133 duties of committee — examine books, &c. . . . 133 annual reporc ...' ... ... ... 133 correct mistakes ... ... ... 133 call general meeting ... ... ... 133 demand dissolution ... ... ... 133 no personal liability Of committee for official acts ... ... ... ... 135 nor for offences Committed by managers ... 135 Penalties. shares of less than" prescribed value ... 135 8oci4t6 established before subscription of capital ... ... ... ... 135 improper certifying ... ... ... 135 shares to bearer, informalities in ... 135 dealings in shares informally issued ... 135 accessories ... ... ... ... 135 beginning business before committee chosen 135 fictitious majorities ... ... ... 135 sham or fraudulent subscriptions . . . 135 fraudulent dividends ... ... ... 135 agents of shareholders for legal proceedings ... 135 estimate of Companies formed in 1881 ' note, 135 Society anonyme ... ... ... ... 136 explanation of the name ... ... ... 136 an association of capital ... ... 136 Ixxxviii INDEX. PAGE PABTITERSHIPS AND COMPANIES— coutimued. distinction from Socidti en comtiiandite 'par actions... ... ... ... ■-. 136 shares ... ••• •■• ••■ ••• 136 authorisation by Government not necessary ... 136 directors, powers of ... ... ... 136 how chosen ... ... ... ... 137 contracts by, binding on Company . . . 137 limit of shareholders' risk . . . ... ... 137 nnmber of members, at least seven ... ... 137 subscription of capital ... ... ... 137 payment of one-fourth .. . ... ... 137 statement by promoters ... ... ... 137 rules identical with those of preceding Sociiti 137, [131, 132, 133 first general .meeting ... ... ... 137 limit of directors' term of office ... ... 137 promoters may be directors... ... ... 137 directors' shares ... ... ... ... 138 characteristics of . . . ... ... ... 138 no personal liability of directors ... ... 138 mismanagement ... ... ... ... 138 managing committee ... ... ... 138 term of office of ... ... ... ... 138 Tribunal of Commerce may appoint, in default of general meeting ... ... ... 138 duty of committee ... ... ... ... 138 liability of ... ... ... ... 138 half -yearly report by directors ... ... 139 reserve fund ... ... ... ... 139 loss of three-fourths of capital ... ... 139 shareholders may decide on dissolution ... 139 or may apply to Court, in default of meeting 139 diminution of shareholders ... ... ... 139 resolutions ... ... ... ... 139 minutes of meetings ... ... ... 139 right to vote, how determined ... ... 139 quorum at general meetings ... ... 139 at adjourned general ... ... ... 139 at special meeting ... ... ... 139 at adjourned special meeting ... ... 140 formalities in default of quorum ... ... 140 for altering Articles of Association ... 140 /Soci^fe, when declared void... ... ... 140 shares of less than legal value ... ... 140 INDEX. Ixxxix PACE PARTNERSHIPS AND COMPANIES— contiu^ed. non-subsoripton of capital ... ... 140 non-payment of one-fourth ... ... 140 omission to certify subscription... ... 140 deed must be in duplicate ... 140 irregular dealings in shares ... ... 140 irregular conversion of shares ... ... 140 opjports, ^c, not confirmed ... ... 140 meeting to approve, if informal ... ... 140 committee not appointed ... ... 14Q if directors' term not limited ... ... 140 less than seven members ... ... 141 statement of promoters, &o., omitted ... 141 formalities in appointing directors omitted 141 results of Soci^t^ being declared void ... 141 agent of shareholders ... ... ... 141 penalties ... ... ... ... 141 SocUt^ & capital variable ... ... ... 141 may increase capital ... ... ... 141 members may withdraw ... ... ... 141 special rules affecting ... ... 141, 142 is usually a civil not commercial Socidti . . . 142 evidence ... ... ... ... ... 142 must be in writing. . . ... ... ... 142 oral not admitted ... ... ... ... 142 deeds necessary ... ... ... ... 142 rules, when deed sous settles pi'W^s ... ... 142 Sociiti en nom collectif ... ... ... 142 en commandite simple ... ... 142 en commandite par actions ... ... 142 anonyme ... ... ... ... 142 supplementary evidence inadmissible . . . 142 deposit of deed or copy ... ... ... 143 when 8oci4t4 has offices in different districts . . . 143 exhibits required to be annexed ... ... 143 for Socidti en commandite par actions . . . 143 for SdciStS anonyme ... ... ... 143 public advertisements ... ... ■■• 143 proved by copy certified, legalised and regis- tered ... ... ... ... ■■• 143 deposit and paWication, other cases when required ... ... ... •■■ 143 on change of Articles ... ... • • • 143 extension of existence of Company . . . 143 dissolution ... ... ... ••■ 143 xc index; PAGE. PARTNERSHIPS AWD CO'M.'PA'NI'ES— continued. change of members ... ... •. 143 ■ ■ change of name ' ... ... • • • 143 SocidUs en commandite changed to anonymes 144 resolution for winding-up !.. ... 144 ■ increase of capital ... ... ... 144 ■winding-up of SocUtis : by operation of law ... ... ... 144 time expired ... ... ... ... 144 business completed ... ... ... 144 when object of /SociVM fails ... ... 144 death of partner ... ... ... 144 death of member does not dissolve Society anonyme ... ... ... ... 144 HOT jieceBsa.rily SoMt^ en commandite ... 144 partner removed by action of la* . . . 144 bankruptcy ... ■ • ... ... ... 144 by act of members ... ... ... 144 when members may apply to Court to wind-up 145 essential contracts not performed . . . 145 Art. 1871, Code Civil ... ... ... 145 object of winding-up ... ... ... 145 liquidators, ...■■ ...•■ ... ... 145 how appointed ... ... ... ... 145 their duties . . . • ... ... ... 145 their powers ... ... ... ... 145 may not sell real property without special authority ... ... ... ... 145 nor borrow money ... ... ... 145 limitation of actions ... ... ... ... 14& governed by ordinary rules ... ... ... 146- after dissolution actions barred after five years 146 against members ... ... ... ... 146 against liquidators... ... ... ... 146 but actions by members against liquidators only barred after 30 years ... ... ... 146 general formalities ... ... ... ... 147 Soci4td en nom collectif and en commandite sim/ple ... ... ... ... 147 partnership deed • • . . . • ■ ... ... 147 number of originals ... ... ... 147 •■differs from EngMsh law ... 147,149,150 ■ registration of deed ... ... ... 147 duty... ... ... ... ... 147 ■ advertisement, contents of ... ... 147 JNDEX; PAHTNEBSHIPS AND COMPAJSIES— continued. Coippames divided into shares . Articles of Association . . . contents of . . . necessary formalities... publication of contracts made 8ociit4 em, cominandite par actions special formalities to be' observed for Soci4t4 anonyme manager. number of members declaration by promoters ... directors and auditors . jnalienaiiility of directors', .shares filing of Articles of Association French and English law contrasted English and foreign Ccanpanies in France may carry on business ... sue or defend actions brought out in France, not bound by provisions governing French Companies . . . exception in case of railway Companies special regulation for foreign Companies solvent and approved surety Treaty of 1862 •wider than Treaty of 1857 not bound by Arts. 13 and 14 of Law of 1867 meaning of treaty phrase, " conform to Laws of France" ... ... shares in foreign Companies admitted on Bourse ... penalties for fraud, in relation to decision. of the Oottr de Oassatiom forms. deed of partnership en nam colleetif' parties ... • formation of partnership name , ... oflSce duration ... ■ signature appor.t stockrtaking profit and loss ordinary expenses . . . extraordinary. . PAGE 148 148 148 148 148 148 148 149 149 149 149 14,& 149 149 149 150 150 150 150 150 150 150 151 151 151 151 152 152; 152 152- 152 152 152 152 152 152 152 152: 15* 153 15S icii INDEX. FAeis PABTNERSHIPS AND COHLPANlES—contiwued, partners to attend to bnsiness ... ... 153 loss of half capital... ... ■•• ••• 153 death of partner ... ... ••• •■• 153 acconnts ... ..• ••. ■-■ •■• 153 rights of survivor ... ... ... ■■■ 153 of partner's heirs ... ... •■• 153 winding-up and dissolution ... ... ... 154 en commandite simple ... ... ■■■ 154 parties ... ... ••• •■■ 154 formation of partnership ... ... ... 154 purposes ... ... ... .-. ■■• 154 office ... ... ... •■■ •■• 154 duration ... ... ... ... ... 154 signature of firm ... ... ... ... 154 apports ... ... ... 154 transfer of interests ... ... ... 155 death of commanditaire ... ... ... 155 rights of heirs ... ... ... ... 155 books, &c. ... ... .■■ ... 155 salary of manager ... ... ... ... 155 balance-sheet ... ... ... ... 155 copy sent to coyn/inanditaires ... ... 156 profits, preference dividend... ... ... 156 surplus profits .„ ... ... 156 loss of one-third of capital ... ... ... 156 dissolution, winding up ... ... ... 156 disputes ... ... ... ... ... 156 domicil .... ... ... 156 Articles of Association of a Sociiti en commaiidite par actions ... ... ... ... ... 157 parties ... ... ... ... ... 157 objects of Company ... ... ... 157 capital ... ... ... ... ... 158 management ... ... ... ... 160 general meeting ... ... ... ... 169 accounts and division of profits ... ... 164 alteration of rules ... ... ... ... 164 dissolution and winding up ... ... ... 165 disputes ... ... ... ... ... 165 constitution of Company ... ... ... 165 declaration of manager ... ... ... 166 .Articles of Association of a £ioci^f^ a?ioii.y me ... 167 name of Company ... ... ... ... 168 appoiis ... ... ... ... ... 168 •INDEX. XCIII PAGE PABTNEBSHIPS AND COMFANI^S-continued. capital ... ... ... -tan accounts and balance-sheets ... ... 170 management of Company ... ... .. ^.71 committee ... ... _ jy^ general meeting ... ... ... __^ jy^'. PATENTEE priority of original over improvers ... ... ... 277 PATENTS text of law and complete provisions ... ... ... 46S law of 1844 ... ... ... .,. [ 275 invention or iliscovery ... ... ... ... 275 industrial products ... ... ... ... 275 new means of production ... ... ... ... 275. new application of known meq,ns ... ... ... 275 patents not allowed for medicines ... ... ... 275 nor for financial schemes ... ... ... 275 for 5, 10, or 15 years ... ... ... ... 275- fees on ... ... ... . . . 275. payable annually ... ... ... . 275. how forfeited ... ... ... ... ... 275 formalities for ... ... ... ... ... 275 deposit of documents under seal. . . ... ... 276 at office of secretaiy of Prefecture ... ... 27ff petition ... ... ... ... ... 276- description ... ... ... ... ... 276 drawings ... ... ... ... ... 276' application for not more than one patent ... ... 276^ term of duration ... ... ... ... ... 27S specification ... ... ... ... ... 276 foreign words not allowed ... ... . ... ... 27ft signature of petitioner ... ... ... ... 276 or agent by procuration ... ... ... 276- procuration must be annexed ... ... ... 276- first payment of deposit ... ... ... ... 276' receiptfor ... ... ... ... ... 276 certificate of application ... ... ... ... 276 date of commencement ... ... ... ... 277" rights of improvers ... ... ... 277 priority of original patentee ... ... ... 277 . if within one year from deposit ... ... ... 277 delivery of patent ... ... ... ... ... 277 ■B. g. A. g. {sans garantie du Oonvernement) ... ... 277 ■decree of minister ... ,, ... ... ... ... 277 XCIV .INDEX. PATENTS — continued. publication in the buZIettTO (Jes. Jois ■■- •■• ••• 277 extension of term ... ... ■•• •■• ••• 277 only by special law ... .•• ••• ■■■ 277 infringement of patentee's rights ... ••• ... 277 ,..fine anijmprisoament ... .■■ ■•■ 277 when offence deemed to be repeated ... ... 277 penalties on employes of patentee ... ... 277 "accomplices ... ... ... ••• .•• 278 action for repeal or forfeiture ... ■ • • ■ ■ • 278 Civil Courts, iurifidiction of ... •■• ■•- 278 Tribunal CorrecUonnel ... ... ... ... 278 . search warrant ... .'. . ... ... 278 plaintiff may have to give security ... ... 278 and must prosecute within eight days ... ... 278 rights of foreigners ... ... ... ■•. 278 assimilated to those of French subjects ... ... 278 . brevet d' importation ... ... ... ... 278 . duration of these patents ■ ... ... ... 278 . patent must not have been published ... ... 278 English specification equal to publication . . . 278 . if prior patent cancelled, brevet d' importation is lost 279 - foreigner plaintiff ... ... ... ... 279 • must give security on seizuVe ... ... ... 279 and for costs of action ... ... ... 279 patent rights are assets ... ... ... 279 may be attached by creditors ... ... 279 iorm..oi procuration to agent ■ • ... ... ... 279 regulations of Minister of Agriculture and Commerce ... .280 • duration and duties ... ... ... ... 280 ..what patents are not granted ... ... ... 280 formalities ... ... ... ... ... 280 ■ foreigners ... ... ... ... ... 282 ..grant ... ... ... ... ... 282 changes, improvements and additions ... ... 283 ■ what patents are void ... ... ... ... 283 forfeitures ... ... ... ■ ... ... 284 copies and publications... ... ... ... 284r PAYEE. (See Cheques, Bills of Exchange) PAYMENT. of bill before maturity ... ... ... ... 197 of bill of exchange (see Bills of- Exchange.) ... ... 197 by fraudulent preference by bankrupt ... ... 81 of debts not accrued due ... ... ... „. 81 INDEX. XCV TAYMENT— continued. to drawer of bill before maturity ... ... .,, 81 anticipated. for discount ... ... ... ... 83 of debts due, when valid in bankruptcy ... ... 82 by_ bankrupt's debtor to bankrupt's creditor ... ... 82 to holder of bill before maturity by bankrupt ... ... 8.3 after suspension ... ... ... ... S3 PENAL PBOVISIOWS. in J)B,nkruptcy .... ... ... ... ... 99 see.Sanqv,eroi/,te ... ..... ... ... 102 — 107 PENALTIES. on' employes' infringing patent rights ... ... ... 277 on members or managers of a Soci^f^ e«. commondite ... 135 «ee'PartnershipB. in criminal proceedings for fraudulent trade-marks . . . 287 PEIfSiOlTS. attachment of ... ...'" ...' PEBSOIf AL JPBOPEBTY. of bankrupt, sold by syndics PEBSONS. to whom statute of limitations does not apply ... PEBSONIFICATION. of holder of bill of exchange PETITE BOUBSE PETITION. for patent ... ... • . • " in bankruptcy within one year after death of debtor by debtor, within three days after suspending payments by creditor ' of syndics for remuneration . of creditors in bankruptcy, form of . . . for reinstatement of bankrupt PETITIONEB. for patent, signature of PILOTAGE. (See Insurance.) PIBATES. defence against if wounded by medical treatment ... . . . _ wages due .. 48 .. 101 .. 57 .. 200 .. 249 .. 276 77 .. 76 77 77 87 108 415 276 338 338 338 338 XCVl INDEX. FA6B PLACE or PAYMENT. currency of, for bill of exchange ... ... ... 197 place where bill payable shoald be stated ... ... 183 PLAYIWG-CAED MAKBBS. trade-mark compulsory on ... ... ... ... 285r PLEAS TO JURISDICTIOIT. in commercial cases ... ... ... ... 33: PLEDGE of securities by broker's client ... ... ... 250 oiTil, must be in writing ... ... ... ... 94 commercial, need not be in writing ... ... ... 94 creditors holding, should prove ... ... ... 94 surpliis after sale of ... ... ... ... [94 implied ... ... ... ... ... ... 94 PLEDGEE. or pawnee, rights of, in bankruptcy ... ... ... 94 PLEDGES. 302-, how affected by landlord's claim ... ... ... 93, POLICE CORBECTIOITITELLE (banqueroute simple.) prosecuted before ... ... ... ... ... lOS POUVOIB. in bankruptcy ... ... ... ... ... US. requisite to instruct ayr^^s in Tribunal of Commerce ... 39. form of, how obtained ... ... ... 39. howfilledin ... ... ... ... ... 39. different kinds of ... ... ... ... ... 39 form and translation of ... ... ... ... 40 PRACTICAL INSTRtrCTIONS TO SUITORS. actions in Tribunal of Commerce ... ... ... 28 PRACTICE. of appointing only one syndic ... ... ... 87 in bankruptcy, no appeal on matters of ... ... gg in appeals. (See Courts of Appeal.) IN CASSATION. (See Court of Cassation. See also . Chamhre des ReqwSt^s in Dictionary of French legal terms.) PRACTICE IN TRIBUNALS OP COMMERCE. procedure conducted by opr^^s ... ... ... 3X actions commenced by writ ... ... ... ... 31 component parts of writs ... ... ... ... 31 time for appearance ... • ... ... .., 31 INDEX. xcvii PBACTICB, &0.— continued. urgent oases ... ... ... ... ... 3x maritime cases, speedy proceedings ... ... ... 31 appearance, how entered ... ... ... ... 32 proceedings in default of appearance ... ... 32 foreigners, security for costs ... ... ... 32 incompetency- of tribunal ... ... ... ... 32 practice ... ... ... ... ... ... 32 writs of revivor, practice ... ...... ...... ... 32 disputed documents, practice ... ... ... 32 examination of parties in Court or upon commission ... 33 ariiires, or masters, their duties ... ... ... 33 how appointed ... ... ... ... ... 33 their reports must be filed ... ... ... ... 33 exainination of witnesses ... .... ... ... 33 judgments, how drawn up ... ... ... ... 33 default of appearance, practice ... ... ... 33 notification of judgments ... ... ... ... 33 execution ... ... ... ... ... 33 application to set aside judgment ... ... ... 33 such application is called opposiiioji ... ' ... ... 33 can be entered up to execution ... ... ... 34 practice ... ... ... .„ ... ... 31 provisional execution of judgments notwithstanding appeal ... ... ... ... ... ... 34 security for damages and costs, how given ... ... 31 practice ... ... ... ... ... ... 34 cases, how called on and heard ... ... ... 34 sittings of judges ... 34 effect of death of parties ... ... ... ... 35 cases, how argued ... ... ... ... ... 35 employment of written notes ... ... ... 35 power of judges to refer ... ... ... 35 practice ... ... ... ... ... ... 35 inquests, valuations, interrogatories ... ... ... 35 questions of account ... ... ... ... 35 appointment of arhitres ... ...■■• ... ... 35 their duties and fees ... ... ... ... 35 practice ... ... ... ... ... ... 35 judgments on arb jtres' reports .,. ... ... 36 general costs ... ... .•■ ... ... 36 non-appearance of plaintiff, practice .. . ... ... 36 the like of defendant ... ... ... ... 36 time for "execution" of judgments by default, ... 36 setting aside judgment, practice ... ... ... 36 XX xcym INDEX. PACK PRACTICE, &C. — continued. . meaning of " execution " ... ..... ■■■ ... 36 proceedings barred after three years .. . ... ... 37 de/out coTip^, practice ...... ... ... ... 37 no appeal under £60 ... ... ... ... 37 time for appealing... ... ... ... ... 37 parties abroad ... ...... ... ... ... 37 execution notwithstanding appeal ... ... 37 rules ... ... .... ... ... ... 37 security, how lodged ... ... ... ... 37 appeals to gain time ... ... ... ... 37 effect of, practical advice ... ... ... ... 38 cost of litigation in France ..... ... ... ... 38 . appeals to Cassation, time for ... ... ... 38 parties abroad ... ... ... ... ... 38 Practical Instructions to Suitors. ajrr^^s prepare and argiie cases ... ... ... 38 special retainer or i)OM!)OjV required ... ... ... 38 printed forms, how obtained ... ... ... 39 how filled in ... ... ... ... ... 3f> evidence must accompany retainer ... ... ... S9 French law list ..." ... ... ... ... 39 English solicitors in France, their duties ... ... 39 different kinds of pouvoirs ... ... ... ... 39 form and translation of ... ... ... ... 40 PRECIPUT. See Appendix. PBEMIER ET DERNIER BESSORT. meaning of ... .... ... ... ... 3 PRESCRIPTION. (.S'ee the entire law in Appendix.) in shipping oases ... ... ... ... ... 369 PRESIDENT. of Tribunal of Commerce ... ... ... ... 22 PRESENTATION. . of cheque for payment ... ... ... ... 221 effect of failure to ... ... ... ... ... 222 PRESENTMENT. for acceptance, not compulsory on holder ... ... 187 except of bill payable -"after sight" ... ... 187 for payment, though acceptance of bill refused . . . 186 PRESUMPTION. on promissory notes by traders ... ... ... 217 of payment of bills of exchange ... ... ... 219 INDEX. XCUS PAGE. PRINCIPAI.. interest payable by ... ... ... ... 54 and agent, analogy of ... ... ... ... 126 and agent, rules of, between brokers and their clients . . . 252 PKINTERS. marks compulsory on ... ... ... ... 285 PRIORITY in regard to interventions ... ... ... ... 204 of charges in bankruptcy ... ... ... ... 90 PRIVILEGED CREDITORS (see Bankruptcy) 90, 92, 399 debts,li3tof ... ... ... ,.. ... 321 UPON REAL PROPERTY. (See Appendix.) PRIVILEG-BS (generally). (See Appendix.) upon personal property (general and special). (See Appendix.) upon special moveables. (See Appendix.) PROCEEDINGS. after union, in bankruptcy ... ... ... ... 96 in bankruptcy, where no assets ... ... ... 89 effect of decision to close ... ... ... ... 89 on lost bill, costs of ... ... ... ... 202 PROCEDURE. in Tribunal of Commerce ... ... ... ... 226 PROCLAMATIONS. formalities for ... ... ... ... ... 326 what must be contained therein ... ... ... 326 number necessary ... ... ... ... ... 327 PROCURATION. to sign firm name ... ... ... ... ... 123 to agent for petition for patent ... ... ... 276 PROCUREURS GBNERAUX. See Ministire Public. PROFESSIONAL SECRESY 16 PROFITS. agreement as to ... ... . . ■ • • ■ ■ • 119 in partnerships ... . ■ • • • • ■ ■ . . . 11& PROHIBITIONS. on stockbrokers ••. •■• •■• ••• 2ol, 252 PROMISSORY NOTE. transfer of (see Bills of Exchange) ... ... ... 62 ■ when security required in bankruptcy ... ... 80 ■ law of bills of exchange applicable to ... ... 216 xx2 € INDEX. PBOMISSOBY NOTE— continued. when equivalent to " simple promises " must come before Civil Courts ... ... ... ... ... 216 if signed by traders as Tvell as non-traders, Tribunals of Commerce have jurisdiction ... ... ... 216 actions not within jurisdiction of Tribunals of Commerce 216 landowners, agriculturists, wine growers ... ... 216 goods for private use of traders ... ... ... 216 presumption in respect of bills ... ... ... 217 promissory note, parties to . . . ... ... ... 217 maker and payee ... ... ... ... ... 217 not necessarily commercial ... ... ... ... 217 contents of ... ... ... ... ... 217 consideration stated ... ... ... ... 217 omission of essentials ... ... ... ... 217 does not annul obligation ..'. ... ... ... 217 " value received" ... ... ... ... ... 217 limitation of actions ... ... ... ... 218 if traders, barred after five years ... ... 218 defendant may be required to swear ... ... 218 that He is not indebted ..... ... ... 218 or his heirs or representatives ... ... 218 time runs from date of protest ... ... ... 218 or of last judicial proceeding ... ... ... 218 if judgment obtaiaed, or debt acknowledged by separate deed, not barred for 30 years ... ... ... 218 bills and notes by nou-traders, not barred for 30 years ... 218 if oath refused, statute cannot be pleaded ... ... 219 30 years an absolute bar in other actions ... ... 211> prescriptioi^ of five years only in case of traders . . . 219 and of non-traders in reference to acts of commerce 219 * ordon.jia7i.ce of 1673 ... ... ... 219 ' presumption of payment of bills of exchange ... ... 219 object of this legislation ... ... ... ... 219 when no protest actually made ... ... ... 219 statute runs from day after maturity ... ... 219 form of ... ... ... ... ,., ___ 239 TBOMOTER. of Company, broker may not be ... ... ... 251 of Society anonj/»te, statement of ... ... ... 137 PROOF. of advertisements of Social?* ... ... ... 143 • onus .of , in contracts made before bankruptcy .. . ... 83 of provision lies on drawer ... ... ... ... igt INDEX. isi PROPJi'KTY. acquired by bankrupt after discharge may be seised by creditors ... 101 of bankrupt, concealment of ... 105 in trademark, of first person using . . . 285 howpreserred ... 285 how lost .,. ... 285 accruing during bankruptcy 79 in bill of exchange, transferred by indorsement ... 192 PBOSECUTION of 6a»igueroutter by syndics... ... 102 of unqnalified brokers ... 249 for fraudulent imitation of trademark ... 286 PEOSECUTOR. public ... 102 PROTEST (see Bills of Exchange) ... 211 on non-payment of lost bill ... 202 when dispensed -with ... 208 for non-payment of bill of exchange . . ... 183 default of ... 183 for surplus, when acceptance partial . . ... 188 PROTESTED BILL, form of account of return, expenses of ... 238 PROVISIONAL trustees in bankruptcy 3W execution of judgments notwithstanding appeal ... 34 PROVISION may be attached by creditors 194 when implied 184 meaning of (see Bills of Exchange) .. ... 183 failure of, during voyage ... 335 PROXIES in bankruptcy ... 389 PROXY, creditors ia bankruptcy may appear by ... ••• 89 PUBLIC FUNDS not liable to " opjjosiiton. " ... 61 QUORUM at general meeting (see Partnership).. ... 139 at adjourned general meeting ' ' ... 139 at special meeting ... ... 139 at adjourned special meeting ... 139 formalities in default of ... 140 for altering Articles of Association '.. ... 140 cii INDEX. PAGE BAILWAY COMPANIES. foreign, brought out in France ... •• •■. 150 BAISON SOCIALE 121 HANSOM. (See Abandonment.) KATIFICATION. after majority by minors, of bills ... ... ■ . 181 HEAL PBOPERTT. belonging to SociiJM ... ... ... ••. 123 of bankrupt, sold under supervision of the Court . . . 101 sale of, in bankruptcy ... ... . ... . 406 BEALISATION. of assets in bankruptcy ... ... ... ■• 96 BECEIPT. for payment of bill, needs no stamp ... ... ... 22i for payment of cheque ... ... . . . 232 BECHANGE. meaning of ... ... ... ... ... 213 how reckoned ... ... ... . . ... 21 1 BE-EXCHANGE (see Bills of Exchange) ... ... 213 BEFEBENCE. power of judges to refer cases ... ... ... 35 practice ... ... ... ... ... ... 35 BEGIME DOTAL. (See Dotal System). effect of on married women traders ... ... .. 290 BEGISTEB. special, of syndics ... ... ... ... . . 86 (shipping) keeping of ... ... ... 330 contents of ... ... ... ... ... 830 BEGISTBATION. gives fixed date to certain documents ... ... 52 of stockbroker's appointments ... ... ... 256 see Enr4gistrement in Dictionary. of assignment of trade-mark ... ... ... 285 of trade-mark ... ... ... ... ... 286 of acts of syndics ... ... ... ... ... 86 of bills of exchange before action ... ... ... 224 see Mortsfages of Ships ... ... ... ... 462 of mortgages and charges in bankruptcies ... 374 submission to arbitration must be registered ... ... 64 awards must be registered ... ... ... ... 64 table of fees ... ... ... ... ... 64 INDEX. cm HEGULATIONS. (See Patents.) of French Courts, as to payment of interest ... of Minister of Agriculture and Commerce in respect of patents ... ... ... ... ...280, PAGB 56 ?81. BEHABILIT ATION (see Bankruptcy) ... lOG HEIirSTATBMENT of bankrupt ... ... ... 411. HE-INSTTRAITCE. (See Insurance.) DELATION. back of adjudication in bankruptcy ... ... 78 importance of ... ... 78 HELEASE of sureties to bill of exchange ... 207 BEMtrNEBATION of syndics ... ... 87 JBENEWAL of trade-mark after l5 years ... 286 JIENT. how reckoned ... ... 93 recovered under lease, where no rent specified ... 92 BENTES. ' owned by minors, &c. ... ... ... ... 252 French, how transferred ... ... 254 when lost or stolen ... ... 256 JREPAIES. of chartered vessel... ... 264 transhipment ... 265 HEPKAL. of patent grant, action f or . . . ... 278 HEPLEVIW. of vessel ... ... 328 HEPOBT. half-yearly by directors of SocUti anonyme ... ... 139 of syndics 88 of captain on arrival ... 334 contents of ... 334 where made • ■ ... ... ...'" ... 334 where sent to ... 334 deposit of ... ■•• ••• ... 334 ■R.EPBESENTATIVES. of acceptor may pay bill ... 207 civ INDEX. PAGE BEPRIMAlfD. (See Avocats.) BBSEBVE FITND. oi 8obi4U anonyme ... ... ... ... 139 of Bonrse... ■■ ... ■• ■■ ■" ... "' ■■• •.• 248- KESIGNATipif. of stockbroker ... ... ... ..• ••• 247" BESPONDEITTIA, . . in cases of abandonment ... ... ... ... 360 see .bottomry bond .. . ... ... ... ... 347^ BESPONSIBILITY. of stockbrokers for execution of contract ... ... 252 BETAINEBS. (See Fowvoir.) BBTBAITE. form of ... ... ... ... ... ... 238- meaning of ... •■■.., ••• ••• dis- contents of ... ... ... ... ... 214 BETUBIT. of bill and receipt when paid ... ... ... 1ST EEVENDICATIOIT. in bankruptcy ... ... ... ... ... 405 of goods and property which may be reclaimed by their owners in cases of bankruptcy ,., .,, ... 407 BIGHTS. of action on trade-marks, reciprocally granted to foreigners 288- BISK. period of... ... ... ... ... ... 349- BOGATOBY COMMISSIOIf. for examination of traders' books ... ... ... 44 BULES. governing /Soci^i^ a«o»!.2/'»e. (See pp. 131, 132, 133.) ... 137 SALARIES, attachment of ... ' ... ' ... ..." ... 48 and wages (See Bankruptcy.) ... ... ... 399 SALE of goods with fi-auduleht tradeiii'ark ... ■■■ ... ... 287 SALVOBS, rights of ... ... ' ... ... ' ... ... 266 S. G. D. G. sans garantie.flu Oov/nevnement. ... 277 SEABCH-WABBANT against infringer of patent rig]jjts ... ... ... 278 .INDEX, SBAWOBTHIITESS, presumption of , in law implied warranty of, in charter-party SECUBED CBEDITORS, by statute not liable for general costs of bankruptcy see Bankruptcy SECUBITIES, pledge of, by broker's client to bearer ... law relating to taxes . . . ■ lost or stolen tracing of purchase of on Stock Exchange of a money-lender ... transfer of SECUBITT. for lost bill lasts three years from drawer, when required in action against him or payment required from drawer and liidorsers of bill exchange froiii plaintiff, asking for search warrant in respect patent rights ... from payee of bill not due, in bankruptcy of stockbroker for costs and damages ... how given for costs ... foreigner, when exempted from for executory contracts, in bankruptcy on bills to which bankrupt is party ... to be lodged by party making opposition substitutes for SBCUBITY FOB COSTS. when required reason for when surety accepted . security must be applied for various Courts other than commercial criminal cases ... ... ■ partie civile how fixed and given ...... payment into Cfoiirt . . .... CV PAGE 261 261 90 91 399 250 454 454 255 60 60 60 60 60 205 184 185 278 96 246 34 34 68 68 80 80 59 59 46 46 46 46 46 46 46 46 46 "CVl •INDEX- FAOB SECURITY FOB COSTS— continued. possession qf. realty by plaintiff ... .-• ••• •™ usual practice ... ■•• ••• ••• •■• ■ -tfi appeals ..■ divers rules concerning foreigners ... •■• ■■• '*• SEIZITRE. . of articles ipf ringing trade-mark ... ... ••• -°' and sale of sMps and vessels ... •■• ••• ^24 all vessels, &c., may be seized ... ••• ••• 324 service oi commandement ... ... .••. . ••• "-''> report of ?iitissier ... ... ... ••■ ••■ ^-^ if owner be not domiciled ... ... ••■ ••■ 325 advertisement of ... ... ■■• ■•• •■■ ^26 documents necessary for ... ... ••• ••• 326 formalities ... ... ... •■• •■- 326 proclamations ... ... ... ••• ••■ 326 auction ... ... ... ... ••• ■•• 326 postponement of sale ... ... ... ••• 32/ under 10 tons ... ... • ■ ■ ■ • . ■ • ■ 327 purchase of ship at sale ... ... ■ ■ . . • . 327 payment of price ... ... ... •■. ■•• 327 default ... ... ... ... ... ... 328 demands of replevin ... ... ... ... 328 appositions to pajTnent ... ... ... ... 328 opposing creditors ..< ... ... ... ... 328 security against ... ... ... ... ... 329 when ship ready to sail ... ... ... ... 329 SEPABATIOW DE BIENS. petition for ... ... ... ... ... 296 judgment of ... ... ... ... ... 296 of property. (See Appendix.) of debts. (See Appendix.) SEBVAIfTS. privileged creditors . .... ...... ... ... 91 stockbroker liable for acts of ... ... ... 253 SERVICE OP WRITS. (See Writs.) SET-OPP. inaction against CO nw)ia7KJitai».'es ... ... ... 126 drawee may plead ... ... ... ... ... 194 definition of ... ... ... ... ... Gh debts must be liquidated ... ... ... 64 SETS bills drawn in, form of ... ... ... ... 237 bill drawn in ... ... ... ... ... 198 INDEX. evil' PAGE S^TS— continued. payment of ono cancels the rest ... ... ... 199 paily paying Tnust withdraw his aooeptanoe ... ... 199 bill' drawn in, when one lost ...■ ... ... 201 stamp on bills of exchange d*awn in... ... ... 223 SHARES lost or stolen, broker when responsible for dealings in ... 255 of directors, inalienf.ble ... ... ... ... '149 in Companies, may be held by broker ... ... 251 limitation of value of ... ... ... 130, 131 in Societe anonyme ... ... ... ... 136 uniform value of . . . ... ... ... ... 130 assignable ... ... ... ... ... 130 nominative ... ... ... ... ... 130 to bearer ... ... ... ... ... 180 conversion of ... ... ... ... ... 132 liability of owners of ... ... ... ... 132 non-negotiable, until one-fourth paid up ... ... 132 SHABEHOIiDER. must pay one-fourth of the value of his shares ... 131 SHIP, completely disabled, captain must engage another . . . 265 SHIPBROKEBS 300 may be combined with stockbroker ... ... ... 245 SHIPS. papers must be kept by captain ... ... ... 264 SHIPPERS. failure of... privilege of master in case of failure of cannot demand a diminution in the price of the freight. SHIPS AND OTHER VESSELS. privileged debts creditors' lien claims paid in order of registration ... demands to be proved privileges of creditors ... sale of vessel SIMPLE PROMISES when promissory notes only, equal to SITTINGS of judges... 346 346 le freight.. 346 321 322 322 322 323 334 180 216 34 Ovui INDEX. SOCIETB. (See Partnerships.) bankrupt member of ... 106 d, capital variable ... ... 141 anonyme, when declared void 140, 141 resnltsof... ... 141 ■when declared void, rights of third parties ... 134 SOLIDAEITE of members of SociSti en nom collectif ... 121 of conimanditaires may be ordered by the Court ... 129 SPECIAL TRIBTTNALS 1 specification of patent ... 276 stamp aflSxed to trademarks ... 288 STAMP T.AWS ... 228 STAMP. on bill of lading ... 272 on foreign bill ... 272 on cheque ... 220 STAMiP DUTIES. upon city, provincial and foreign bonds, and upon secu- rities to bearer ... ^ . . ... 454 STAMPING. after execution ...■ . ... 22» STAMPS. on stockbroker's memoranda on bills of exchange. (See Bills of Exchange) STATE WORKS. moneys due for, have priority in bankruptcy ... STATISTICS. of bankruptcy STATUTE OP LIMITATIONS. (See Prescription.) arrears of interest ... list of oases in which the claim will be barred by, after five years have elapsed persons to whom statute does not apply in shipping cases ... STAY OP EXECUTION. (See Opposition) STELLIONAT AIRES STOCK. broter's lien on purchased ... ... ..." ... 256 223, 228 ... 95 75 57 57 57 369 107 250 INDEX. CIX PAGE STOCKBROKERS 245, 299 must register in their books numbers of securities whicli they may buy or sell ... ... ... ... gO penalties for hanqueroute on ... ... 104 are ofB.cial persons... ... ... ... ... 245 in towns where there is no Boiti'se ... ... ... 245 may also be insurance or shipbroker ... ... ... 245 certificate of appointment ... ... ... ... 245 conditions ... ... ...•■■ ... ... 245 disqualifications ... ... ... ... ... 246 seourity ... ... ... ... ... ... 246 right to introduce successor ... ... ... 246 this right a valuable property ... ... ... 246 assent of the committee in Paris ... ... ... 246 practice in the Departments ... ... ... 246 devolution of the right to appoint ... ... ... 246 lien upon unpaid purchase-money . . . • • ... ... 247 dismissal... ... ... ... ... ... 247 effects of, how modified ... ... ... 247 expulsion ... ... ... ... ... 247 restrictions on transfer ... ... ... ... 247 resignation ... ... ... • ... ... 247 may be withdrawn ... ... ... ... 247 remedy of proposed successor ... ... ... 247 price to be paid by ... ... ... ... 247 must not exceed that submitted to committee . . . 247 any private arrangement void ... ... ... 247 civil Courts decide disputes as to nomination, &c., of successor ... ... ... ... ... 247 formation of a new Bourse ... ... ... ... 248 how established ... ...•■• ... ... 248 list of candidates ... ... ... ... 248 deposit — reserve fund ... ... ... ... 248 loans to members ... ... ... 248 licence ... ... ... ... ... 248 stockbrokers may not engage in other business . . . 248 whether they are " traders " undecided ... ... 248 limit of members ... ... ... ... ... 248 must reside within corrnivune to which they belong . . . 248 under supervision of municipal authorities ... ... 248 special forms of partnerships allowed ... ... 248 special commanditaires. ... ... ... ... 248 monopoly of ... ... ... ... •■• 249 transfer stocks and securites ... ... ... 249 '- deal in negotiable instruments ... ... ... 249 INDEX, PAGE STOCKBROKEB.S— coniiwited. official list of prices published ... ... ... 249 bnt private persons may sell without the medium of a broker ... ... ... ■■■ ■•• ■ •■ 249 but may not charge commission ... . ■ • 249 penalties on persons unqualified ... ... . ■ . 249 prosecuted before the Tribunal Correotionnel ... 249 Petite Bourse iUegal ... ... ■■. , •■■ 249 coulissiers ... ... .-.,_, .■■ ... 249 broker bound to act, if business legitimate ... ... 249 must not state name of client ... ... 249 the contract is between broker and broker ... ... 250 therefore, no action by clients against each other . . . 250 unless disclosed at their own request ... ... 250' brokers personally liable to fulfil contracts ... ... 250 " cover " should be deposited by clients ... ... 250 and receipt given ... ... ... ... ... 250 time bargains allowed ... ... ... 250- lien on securities pledged by client ... ... ... 250 even if client assigns them ... ... ... ... 250 lien on stock purchase® ... ... ... ... 250 right to re-sell ... ... ..._ ... ... 250 but must give notice to client ... ... ... 250 books required to be kept ... ... ... ... 251 if necessary, may be admitted as evidence ... ... 25L wilful alte):ation in ... ... ... ... 251 kept for 10 years ... ... ... ... ... 251 bought and sold notes ... ... ... ... 251. brokers may not engage in other trades ... ... 251 may be comnmnditaire ... ... ... . . . 25L or hold shares ... ... ... ... ... 251. but not member of sociiii en noin coUeetif ... ... 251 may not be promoter of Company ... ... ... 251 nor take commission for promoting ... ... ... 251 forbidden to guarantee their clients .. . ... ... 251 penalties ... ... ... ... ... 251 other prohibitions ... ... ... 251, 252^ bills of parties who have failed ... ... 252 bills, &o. in blank ... ... ... ... 253 Heutes belonging to minors or incapacitated pei'sons . . . 252' negotiations for shares before Company formed . . . 253^ shares not duly stamped ... ... ... ... 252" gambling bargains ... ... ... ... 252 not allowed to have agent for ordei-s ... ... 252 penalties for bankruptcy of .., ... ... ... 253- INDEX. CJji STOCKBROKERS— continued. ''^^'r commissions ... ... ... ___ 252 double responsibility ... ... ... . . £52 to other brokers for execution of contract ... 252 to the Treasury fbT validity of transfers ... ... 252 1. in reference to clients ... ... .. 252' ..rules of .principal .9,nd agent ... ... 252 liable for neglect ... ... ... 253 fulfilment of I orders ... ... ... 253- duties as bailee ... ... ... 253 liable for acts of his servants ... ... 253' effects of bankruptcy on stock purchased 253- shares to bearer pass on delivery, actual or constructive ••- ....■• ... ... 253 if no delivery made, client must prove with other- creditors ... ... ... 253 '2. Towards other brokers ... ... ... 254 guarantees execution of contracts ... 254- similarly in relation to country broker ... 254 3. Towards other parties ... ... ... 254- French rentes, how transferred ... ... ... 254 broker's certificate ... ... ... ... 254 of signature of transferor forged ... ... ... 254 if stolen ... ... • ... ■ ... ■ • ... ... 254 when Treasury liable on forged transfer ... ... 254- dealings by incapacitated persons ... ... ... 255 broker not liable except with notice ... ... 255- limitation of actions ... ... 255 bank shares ... ... ... ... ... 255- bills of exchange ... ... ... „. ... 255 lost or stolen . securities " to bearer ".. . ... ... 255 law of 1872 ... ... ... ... ... 255- opposition ... ... ... ... ... 255 formal notice to Stock Exchange Committee — iulletin des oppositions ... ... ... ... ... 255' after publication, broker responsible if he deals in the shares ... ... • ... ... ... .•■ 255 French Eentes stopped by an opposition lodged with the Treasury ... ... ... ... ... 256 venue for actions against stockbrokers ... ... 256 in Tribunal of -Commerce ... ... ..» 256 by brokers against clients ... ... ... p.> 256 usually in Civil Courts. . ... •■• ■■• ••» 256 registration of. appointments ... ... ».. 256 duty on ... »•< 256 rderaoranda and accounts, stamps on... ... ... 256 Ciii INDEX. PAGE SHOCKS AND SECURITIES. (See Stockbrokers.) 24S STOLEN PROPERTY. on " leased premises " ... ... ... ... 93 STOLEN FRENCH RENTES 251, STOPPAGE. i» transitu ... ... ... ... 270, 407 cannot aSect hond-fide assignment of bill of lading... 270 STRIKING OFF THE ROLL. (See Avocats.) SUB-LESSEE. rights of, against landlord ... ... ... ... 93 SUCCESSION. sale of rights to a ... ... ... ... ... 63 by notarial deed ... ... ... ... ... 62 rigbts of stockbroker to introduce ... ... ... 246 devfijution of this right ... ... ... ... 246 SUING ON ENGLISH JUDGMENT. (See Exe- ..Bution of English Judgments.) SUMMONS. for non-payment of bill of exchange ... ... ... 211 SURENCHERE. in bankruptcy ... .... ... ... ... 4^6 SURETIES. of bankrupt, principal ,„ ... ... ... 80 of bapkrupts ... ,.. ... ... . 95 rights of creditors against ... ... ... ... 95 creditors may .prove against solvent, if others insolvent 95 dividend from insolvent must be deducted in action against insolvent ,.,. .,.. ... ... 95 SURETY guarantee by, of bill of exchange ... ... ... 195 SUSPENSION. (See Avocats.) of payments, form of declaration »„ ... ... 107 of payments constitute bankruptcy ... ... ... 76 previous to death of debtor ... ... 76 • mortgages, &c., within 10 days prior to ... ... 83 payment of bill after ... ,„ ... .. 54 of payments, omission to declare ... ... ... 104 SYNDICS bolding premises after lease expired ... ... ... 93 ' their. duties in cases of «mo?!. ... ... ... 396 ' corporation of ... .„ . . 85 INDEX. CXIU FAGS SYTHTilCS— continued. actions by and against ... ... ... ... 79 can claim damages in certain actions by bankrupt ... 79 may impeach acts in fraud of creditors ... ... 80 can recover price of goods delivered before due ... 82 must prove notice of insolvency to set aside payment of debts due ... ... ... ... ... 82 present practice as to ... ... ... ... 85 TAXATION OP COSTS. parties can appeal against ... ... ... ... 29 TRADER. banknotes are legal ... ... ... ... 197 TERRITORIAL JURISDICTION 27 TIME. for payment, when extended ... ... ... 203 bargains ... ... ... ... ... ... 250 for renewal of application for rehabilitation ... ... ] 36 for appeal in bankruptcy (See Appeal, bankruptcy) ... 98 allowed to acceptor of bill ... ... ... ... 187 allowed to foreign creditors... ... ... ... 96 for actions on bills of exchange ... ... ... 208 when extended ... ... ... ... ... 208 on bills payable out of Prance ... ... ... 208 extension of, for payment of bills drawn on French possessions ... ... ... ... ... 205 THIEF. forged indorsement of bill of exchange by ... ... 20O TOWIfAGE. reckoned on the English system ... ... . . 260 TOTAL LOSS. of vessel ... ... ... ... ... •■• 349 of goods ... ... ... ... ... ■■ 349 TRADE. act of TRADE MARKS law of 1857 previous legislation compulsory marks printers jewellers goldsmiths ... 127 ... 285 ... 285 ... 285 ... 285 ... 285 ... 285 ... 285 playing-card makers ... ... •■■ ... 285 T CXIV INDEX. PAGE TBADE MASiKS— continued. gunmakers ... ... ... ... ... 285 guarantees — quality and origin of goods ... ... 285 must be new and distinctive ... ... ... 285 foreign trade mark may be used ... ... ... 285 if not protected by treaty ... ... ... 285- property in person first using ... ... ... 285 preserved by use and deposit ... ... ... 285 lost by definite non-user ... ... ... ... 285 in possession of a firm ... ... ... ... 285 dissolution of partnership ... ... ... ... 285 assigned -without formalities ... ... ... 285 but registration desirable ... ... ... ... 285 goes with transfer of business ... ... ... 285 foreigners have same rights as French subjects ... 285 if they have establishments in France ... ... 285 foreigners out of France ... ... ... ... 286 with agent in Franco ... ... ... ... 286 registration of trade-mark ... ... ... ... 286 where made ... ... ... ... ... 286 certificate of . . . ... ... ... 286 agent may register ... ... ... ... 286 duration of registration ... ... ... 286 right to prosecute fraudulent imitation ... ... 286 must be renewed after 15 years ... ... ... 286 lapsed trade-mark of foreigner ... ... ... 286 treaty between France and England .. . ... ... 286 infringement, penalties for ... ... ... ... 286 colourable imitation ... ... ... ... 286 criminal proceeding ... ... ... ... 287 infringement by foreigner out of France not punishable 287 secus, by French subject out of France ... ... 287 sale of article with fraudulent. imitation 287 civil or correctionnel Court ... ... 287 action by proprietor ... ... ... ... 287 or public prosecutor ... ... ... ... 287 reciprocal rights of foreigners ... ... ... 287 seizure of articles infringing ... ... ... 287 Tribimals of Commerce have no jurisdiction ... ... 287 venue of prosecution ... ... ... ... 287 foreign judgments no bar ... ... ... ... 287 limitation of actions ... ... ... ... 287^ repetition of infringement ... ... ■ ... ... 287 penalties in criminal proceedings ... ... ... 287 • producinff ... ... ... ... ... 287 INDEX. TRADE M.ARKS— continued. fraudulent user fraudulent sale other penalties remedies in civil actions confiscation of articles damages both remedies cannot be granted law of 1873 special stamp afiixed by State fees ... ■ ... consuls, powers of ... all rights of action reciprocal where foreign country grants same to French subjects. TBADERS. only can be prosecuted for lanqueroute definition of and non-trading, in bankruptcy . . . books evidehce in matters of trade penalties, for omission of formalities production of when enforced refusal to exhibit commanditaires are not signature of promissory notes by, as well as non-traders gucEre, are stockbrokers ? TEADESMEW. supplying necessaries, privileged in bankruptcy TRANSFER of shares, modes of of Rentes, &c. of French Eentes ... by insolvent owner of bill of lading . . . of business, carries trade mark TRANSFER OF DEBTS AND CLAIMS. document of transfer transfer of debts and claims how effected delivery ... bills of exchange and promissory notes includes accessories thereto vendor not responsible for solvency of debtor . sale of rights to a succession by notarial deed . litigious rights Y T 2 PAGE 288 288 288 288 288 288 288 288 288 288 288 288 288 102 289 76 290 291 291 291 291 292 127 216 248 91 130 252 254 271 285 61 ■ 61 61 62 62 63 62 62 62 cxvi INDEX. PAGE TBANSFEBABILITT. of cheques ... ... ••• ••• ■•• 221 TRANSFEREE. of bill of lading, takes subject to transferor's rights ... 27,0 TRANSFERS OF PATENTS. how executed ... ... ... ... ■ • • 52 TRANSHIPMENT. (See Insurance.) of cargo ... ... ... ... ■-. •-. 265 of goods to other vessels ... ... ... ... 349 TREASURY. how stockbrokers responsible to ... ... ... 252 when liable on transfer of forged or stolen French Eentes 254 may advance first costs in bankruptcy ... ... 85 TREATY. of 1862 with England, in respect of Companies ... 151 between France and England, for trade marks . . . 286 TRIBTJNAL CORRECTIONNEL. jurisdiction of, in patent prosecutions ... ... 278 prosecution of unqualified brokers before ... ... 249 TRIBUNALS OF COMMERCE. object of ... ... ... ... ... ... 19 date from French Revolution ... ... ... 19 constitution and powers ... ... ... 19 regulations as to number and location ... 19 districts ... ... ... ... ... ... 19 judges and deputy judges ... ... ... ... 19 how appointed and elected ... ... 19 electors, number of ... ... 20 list, how drawn np ... ... ... ... 20 commission, composition of ... ... ... 20 vacancies, how filled up ... ... ... ... 20 disabilities as regards electors ... ... ... 21 list of electors is advertised and filed ... ... 21 access to same ... ... ... ... 2I qualifications for election as judge ... ... ... 21 traders, directors, stockbrokers, &c., eligible ... ... 21' election of president, judges and deputy -judges ... 22 takes place by ballot ... ... ... ... 22 mode of operation... ... ... 22 judges, periods of service ... ... ... ... 22 xe-election of judges ... ... ... 23 Tetiring judges ... ... ... 23 greffiers a,u(l huissiers ... ... ... 23 INDEX. cxvii TRIBUNALS OP COMMEBCE-conMrtwd. ^^™ gardes de commerce.., ... ... 23 judgments, how given ... ... ... 23 avouds, not admitted to practice ... ... ... 23 power of attorney necessary to appeal- ... ... 23 judges receive no salary ... ... ... ... 23 must take oaths on appointment ... ... ... 23 Jurisdiction. subject of jurisdiction, how divided ... ... ... 24 jurisdiction, quite exceptional ... ... ... 24 civil Courts adjudicate where no Tribunals of Commerce exist ... ... ... ... ... ... 24 procedure is the same ... ... ... ... 24 special duties assigned to Tribunals of Commerce ... 24 how performed ... ... ... ... 24 disputes adjudicated upon by Tribunals of Commerce ... 25 strictly limited to subjects enumerated ... ... 25 claims for damages ... ... ... ... 25 acts of commerce, enumeration of ... ... ... 26 parties to actions ... ... ... ... ... ^6 traders and non-traders, rules ... ... ... 26 commercial tribunals must decline jurisdiction in civil matters ... ... ... ... 26 rule as to civil tribunals ... ... ... ... 26 parties may dispute jurisdiction ... ... ... 26 actions for negligence and salary ... ... ... 27 disputes between masters and apprentices ... ... 27 Territorial Jurisdiction. plea to jurisdiction ... ... ... ... 27 where defendants may be sued ... ... ... 27 absolute rule ... ... ... ... ... 27 foreigners bound thereby ... ... ... ... 27 contracts by correspondence, rule as to jurisdiction ... 27 several co-defendants, practice ... ... ... 28 Partners. special jm-isdiction in disputes between ... ... 28 rule as to domicil ... ... ... ... ... 28 French creditors of foreign Company, right to sue in France... ... ... ... ... ... 28 Appeals. appeals from Conseils des Prudhommes lie to Tribunals of Commerce ... ... ... ... ... 28 cxvm INDEX. PAGE TBIBUNALS OF COM.M.'EUCIi— continued. ■when decision final by consent ... ... ... 29 claims not exceeding 1,500 fs., rules ... ... 29 questions of title ... ... ... ... • • • 29 rule as to costs ... ... ... ■ • • ■ ■ . 29 taxation of costs ... ... ... ... • . • 29 rule as to interest ... ... ... ■ ■ ■ . ■ . 39 unliquidated damages, rules ... ... ... 29 two causes of action and alternative claims, rule as to appeals ... ... ... ... ... 30 Counterelaim. rules as to appeals ... ... ... ... 30 Procedure. see "Practice in Tribunals of Commerce." jurisdiction of, in bankruptcy ... ... ... 97 appoint syndics ... ... ... ... ... 87 jurisdiction of, on bills of exchange ... ... ... 225 and promissory notes by traders ... ... ... 225 and by non-traders if relating to business. . . ... 225 or if trader's name on bill, &c. ... ... ... 225 composition of . . . ... ... ... ... 225 appeals from ... ... ... ... ... 226 procedure in . . . ... ... . . ... 226 foreign plaiutifE in ... ... ... ... 226 no security required from ... ... ... 226 no jurisdiction in trade-mark actions ... ... ... 287 how established ... ... ... ... ... 2 TBIBUNALS AND COTJBTS 1 TBIBUNAIiS OP FIEST INSTANCE. .. 226 TEIBUNAUX ADMINISTBATIFS 1 Correotionnels ... ... ... ... ... 98 UMPIRE. duties of . . . ... ... ... ... ... 63 time for giving his decision ... ... ... ... 63 must confer with arbitrators who disagreed before giving , his award ... ... ... ... ... 64 ■UNCONDITIONAL. bill of exchange must be ... ... ... ... 188 TJNION ... ... ... ... 88,89 90,100 in bankruptcy, proceedings after ... ... ... 96 legal consequence of rejection of coTCCordai ... ... 100 INDEX. cxix UNION — continued. business carried on under ... ... 100 of creditors (see Bankruptcy) ... ... 395 TJ]Sri.IQTJIDATED DAMAGES. rule as to, in appeal oases ... ... ... ... 29 UNQUALIFIED PERSONS. acting as stockbrokers ... ... ... ... 2 19 prosecution of . . ; ... ... ... ... 2 19 UNSEAWORTHINESS. (See Abandonment.) ■when owners liable for ... ... ... ... 264 criminal proceedings for ... ... ... ... 265 UNSTAMPED. bill, holder of ... ... ... ... ... 228 payment of, prohibited ... ... ... 238 paper, cheque may not be on ... ... ... 222 USANCE. reckoned as 30 days ... ... , . . . ... 191 USURY LAWS. (See Interest.) VALUE RECEIVED. on bUls of exchange ... ... ... ... 178 must be precise ... ... ... ... ... 178 in promissory notes ... ... ... ... 217 VENDOR not responsible for solvency of debtor ... ... 62 unpaid, cannot reclaim goods ... ... ... 94 but if not delivered may retain them... ... ... 94 VALUE ... ... ... 31 for actions against stockbrokers ... ... ... 256 of prosecution in trade mark actions ... ... 287 VERIFICATION OF CLAIMS examined by Tribunal of Commerce ... ... ... 97 forms of ... ... ... ... ... ... 110 VESSEL. purchase of ... ... ... ... ... 327 payment of price ... ... ... ... ... 327 default of payment ... ... ... ... 328 replevin of ... ... ... ... ... 328 survey of... ... ... ... ... ... 331 repair of ... ... ... ... ••. ■■ 332 detention of ... ... ... ... ... 341 sale of ... ... ... ... ... ... 324 must be in writing... ... ... ... ... 324 CXX INDEX, PAGE VSSSEXi — continued, seizure of , above 10 tons ... .■■ •■. ••• 326 under 10 tons ... ... .-. ••• 327 formalities ... •■• ••• ••■ ••■ 327 VISA POUB TIMBBE 32& VOTE. right of shareholders to ... ... ••• ••. 130 VOTES. of mortgage, privileged and secured creditors in bank- ruptcy ... -.• ... ••• •■• ■■■ 389 VOYAGE. out and home ... ... •• ... ••. 26S WAGES. servants', privileged creditors for, in bankruptcy ... 91 WAB PEEMITJMS. (See Insurance.) WABBANTT. of seaworthiness, implied in charter-party ... ... 261 WIFE. claims by bankrupt's ,.• •■• ■■■ ••■ ^^ WIFE'S property in bankruptcy ... ... ... ... 403. WINDING UP. of bankrupt's estate ... ... ... ... 87 of Sociitis {see Partnerships) ... ... ... 144 by operation of law ... ... ... ... 144 when object fails ... ... ... ... ... 144 death of partner ... ... ... ... ... 144 bankruptcy ... ... ... ... ... 144 when members may apply for winding-up order . . . 145 WINE-GBOWEES. promissory notes by ... ... ... ... 216- WITNESSES. examination of, in commercial cases ... ... ... 33- evidence of, when admissible ... ... ... 42 WOMEN. non-traders, bills signed by ... ... ... ... ISO- equivalent to " simple promises " only ... ... 180 traders may draw &c., bills ... ... ... ... ISO- WOBKMEN. privileged creditors ..... ... ... ... 91 INDEX cxxi WKECK. partial .. 337 payment of wages, in case of .. 337 saving of ... .. 338 wages for so doing .. 338 WKIT. of appeal, service of 7 of attachment. (5ee Attaoliments of Property.) in in Tribunals of Commerce .. 31 of revivor 32 service of, on firm ... ... ... 123, 124 WRITS. service of how regulated .. 41 times for service, Sundays and fete days .. 41 service, how effected .. 41 practice ... .. 41 defendant abroad, practice ... .. 41 residence unknown, practice .. 41 parties residing abroad, practice .. 41 service on board ship .. 41 several defendants ... 42 partnerships and Companies .. 42 The following Prices are for Skins of the BEST MANUFACTURE; other qualities can be supplied, if required, at proportionate prices. 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