and void if they are proved to be such on the part of the other contracting parties. (159)

ART. 446. All sums of money paid within the ten days next preceeding the failure on account of commercial engagements not yet due and payable, shall be refunded.

ART. 447. All acts, contracts and payments made in fraud of the creditors are null and void.

ART. 448. All the debts and engagements of a merchant in a state of failure, though stipulated to be paid at a future day, become ipso facto immediately due and payable, but if there are other joint debtors or obligors bound with him by the same contract, they are only bound to give security for the payment of the debt at the expiration of the stipulated term unless they prefer to pay immediately.

CHAPTER II.

Of Affixing the Seals.

ART. 449. As soon as the tribunal of commerce shall be informed of an existing failure, either by the declaration of the party, the petition of some one of the creditors, or public notoriety, it shall issue its decree ordering the seals to be affixed as herein after directed. An exemplification of the decree shall immediately be sent to the justice of the peace, who shall carry the same into execution.

ART. 450. The justice of the peace may affix the seals ex officio, on being satisfied by public notoriety of the failure having actually taken place.

ART. 451. The seals shall be affixed upon the stores, comptinghouses, coffers, port-folios, books, registers, papers and personal property of the debtor.

ART. 452. In the case of the failure of partners under a collective firm, the seals shall be affixed not only at the principal mansion house of the partnership, but also at the separate domicile of each of the joint and several partners.

ART. 453. In all cases, the justice of the peace shall without delay, transmit to the tribunal of commerce the procès verbal (160) of the affixing of the seals.

(159) Sir William Blackstone lays down this doctrine of the French law much too broad, when he says, "that in France, every act of a merchant for ten days "previous to the act of bankruptcy is presumed to be fraudulent, and therefore "void." 2 Black. Com. 486. The edict of Henry IV. of 1609 only annulled sales and alienations made in favour of the children and presumptive heirs of the bankrupt; and the ordinance of 1673. Art. 4. annulled only such assignments, sales and donations as were made in fraud of the creditors. It is true that a subsequent edict made in 1702, declared all grants, obligations, judgments and mortgages, made within ten days preceding the failure to be null and void, but it has ever been construed by the courts of justice to be only applicable to fraudulent instruments and not to extend to those which are made bonâ fide and for a valuable consideration. Jousse 190, 191. So difficult it often is, as we have observed in another place, to judge from the letter of a law of what it is in practice.

(160) No ministerial act in France in matters of judicial cognisance is done

CHAPTER II.

Of the Appointment of the Commissioner (161) and Agents. ART. 454. By the same decree by which the seals shall be ordered to be affixed, the tribunal of commerce shall declare the time of the commencement of the failure. They shall also appoint one of their members to be commissioner (162) of the failure and one or more agents, according to the importance of the case, who shall under the inspection of the commissioner perform the duties prescribed to them by the present law.

If the seals have been affixed by the justice of the peace, in consequence of the notoriety of the failure, the tribunal immediately on being informed thereof shall further proceed in manner above directed.

ART. 455. The tribunal of commerce shall at the same time order that the person of the debtor be secured by confinement in the debtor's prison, or that he be placed in the custody of an officer of justice, or of the police, or of a gendarme. (163)

While in that situation, he cannot be otherwise detained or taken in execution by virtue of any judgment of the tribunal of commerce. ART. 456. The agents which the tribunal shall appoint, may be chosen from among the presumed creditors or any other persons whose solvency and fidelity may be best relied upon. The same person cannot be appointed an agent twice in the course of the same year, unless he be a creditor.

ART. 457. The judgment (164) shall be posted up and the substance thereof inserted in the newspapers, in the manner prescribed by art. 683. of the code of civil proceedings.

The judgment may be provisionally carried into execution, but

may also be reviewed and set aside on the application of a proper party, made within the respective periods herein after mentioned, to wit: As to the debtor himself within eight days after the posting up of the judgment; as to the creditors present in person or by attorney and all other interested parties, on or before the day on which the procès verbal of the proof of debts shall be closed, and as to such creditors as shall have petitioned for further time, before and until the expiration of the last term granted to them.

ART. 458. The commissioner shall report to the tribunal of commerce all the contestations which shall arise out of the failure and which they shall be competent to determine.

It is his special duty to accelerate the preparation of the bilan (165) or statement of the debts and credits of the party who has failed, and to see that the creditors are duly and speedily called together; he is to superintend the management of the affairs of the failure, as well while in the hands of agents temporarily appointed, care of the provi

as

herein after mentioned,

as while under the sional and afterwards of the final syndics or trustees.

ART. 459. The agents appointed by the tribunal of commerce, shall manage the business of the failure under the inspection of the commissioner, until syndics be appointed; their provisional appointment shall not be for a longer time than fifteen days unless the tribunal shall think it necessary to continue them in at most, office for one other fortnight, but no more.

ART. 460. The tribunal may revoke the agents by them appointed.

ART. 461. The agents cannot enter upon the exercise of their functions, until they have been sworn before the commissioner well and faithfully to perform the duties of their office.

CHAPTER IV.

Of the Preliminary Duties of the Agents and the first Measures to be taken, with respect to the Party under Failure.

ART. 462. If after the agents are appointed and sworn the seals have not yet been affixed, the said agents shall require the justice of the peace to proceed to the affixing thereof.

ART. 463. The debtor's books shall be extracted from under the seals, and delivered by the justice of the peace to the agents,

after being by him duly identified (166); he shall in his procès verbal make summary mention of the state and condition in which he found them.

The agents shall collect all the outstanding credits of the debtor and give acquittances therefor, which must be inspected (167) and signed by the commissioner. The letters directed to the said debtor, shall be delivered to the agents to be opened. If the debtor be on the spot, they shall be opened in his presence.

ART. 464. The agents shall, with the authorization of the commissioner first had and obtained, proceed to the sale of such goods and commodities, as are of a perishable nature.

The goods that are not perishable cannot be sold by the agents without a special order of the tribunal of commerce, given on the report of the commissioner. (168)

ART. 465. All moneys received by the agents shall be deposited in a chest under two locks and keys as mentioned in art. 496.

ART. 466. After the seals are duly affixed, the commissioner shall make his report to the tribunal, exhibiting a general view of the state of the debtor's affairs, and he may at the same time propose either that the debtor be unconditionally set at liberty, and that a provisional safe conduct be granted to him to prevent his being arrested during the pendency of his failure, or that he be set at liberty and provided with a similar safe conduct, on giving security for his appearance when required, under a penalty to be fixed by the tribunal in their discretion, and which, if forfeited, shall enure and be applied to the use and benefit of the creditors.

ART. 467. If the commissioner shall not propose the granting of a safe conduct, the debtor may petition the tribunal of commerce for the same, who shall determine thereon after first hearing the report and opinion of the commissioner on the subject.

(166) Arrêtés. The commissioner affixes his paraphé or flourish (the meaning of which word we have already explained, note 13.) at the bottom of every page in the waste book, day book and letter book, and of every account or invoice in the leger, invoice book, &c. so as to identify the several books, and at the same time prevent any additions being made to them.

(167) See the technical meaning of this word above, not. 14.

(168) In the French courts of judicature, every case, the decision of which is not absolutely a matter of course, is referred to one of the judges to consider and report a brief statement of the fact and law, with his opinion thereon. In matters which affect the interest of the State, and in other cases which the law specifies, (See Code of Civ. Proc. Book 2. Tit. 4.) the opinion of the imperial attorney must also be taken and considered. The opinions thus given are called conclusions, and therefore judgments generally run in this form: The court having heard the report and conclusions of &c. decree, &c. When one of the judges, as in the present case, is entrusted with the execution of a separate judicial or ministerial duty, and a question arises, which the court, and not he alone, are competent to decide, he lays the matter before the tribunal in the form of a report, which is taken up and decided on after hearing the parties.

Those reports and opinions are not conclusive or binding on the court either in point of law or fact, but it is easy to perceive that the reporter has considerable weight and influence in the decision of a cause.

ART. 468. If the debtor has obtained a safe-conduct, the agents shall require his attendance that he may be present at the settlement of the books and accounts.

If he does not attend when required, he shall be formally cited to appear.

If he does not appear within forty-eight hours after the service of the citation, he shall be presumed to be in contempt.

The debtor may however appear by attorney with the approbation of the commissioner, if he show sufficient reasons for not appearing in person.

ART. 469. If the debtor is not provided with a safe-conduct, he shall appear by attorney, otherwise he shall be presumed to be in contempt.

CHAPTER V.

Of the General Statement called BILAN.

ART. 470. If the debtor before the declaration of his failure has prepared his bilan (169) or statement of his debts and credits, and of the general state of his affairs, he shall deliver it to the agents within four and twenty hours after they shall have entered upon the exercise of their functions.

ART. 471. The bilan must contain the enumeration and valuation of all the debtor's real and personal property, a statement of his debts and credits, profit and losses, and also of his expenses; it must be certified, dated and signed by the said debtor.

ART. 472. If the debtor has not prepared his bilan, at the time of the agents entering upon the exercise of their functions, he shall be bound either by himself or his attorney, as is provided by Art. 468 and 469, to prepare and make it up in the presence of the agents, or of such person as they shall appoint.

His books and papers shall be communicated to him for that purpose, but he shall not be allowed to remove or take them away. ART. 473. If the bilan cannot be made up by the debtor or his attorney, the agents shall do it themselves by means of the books and papers of the said debtor, and of such information as they may obtain from his wife, children, (170) clerks or other persons in his service or employ.

ART. 474. The commissioner may also, either ex officio or on the application of one or more of the creditors, or even of the agent, examine the persons mentioned in the next preceding arti*cle (the wife and children of the debtor excepted,) (171) as well