the form prescribed by the regulations of the public administra tion. ART. 38. The capital stock of commandatary partnership may also be divided into shares, without any other derogation from the rules established for that species of partnership. ART. 39. Partnerships under a collective firm, and commandatary partnerships, must be evidenced by written instruments, either in solemn form or under private signatures, the parties conforming in the latter case to the 1325th article of the Napoleon Code. ART. 40. Anonymous partnerships can only be evidenced by instruments formally authenticated. Акт. 41. Parole proof shall not be admitted against or beyond the contents of partnership articles, nor of what may have been said before, at, or after the time of executing the instrument, even though the sum in dispute may not exceed one hundred and fifty francs. (24) ART. 42. An abstract or statement of the substance of all articles of partnership, whether commandatary or under a collective firm, must, within fifteen days after the date thereof, be delivered into the registry of the tribunal of commerce of the district in which the commercial partnership is established, to be inscribed on the register, and posted up for the space of three months in the hall where the court holds its sittings. If the partnership consist of several commercial houses, established in different districts, such abstract shall be delivered, recorded, and posted up as above, in the tribunal of commerce of each district. These formalities shall be observed under pain of nullity as between the partners; but the want of any of them shall not be alleged by the partners against third persons. ART. 43. The abstract must contain, The names, surnames, titles, and places of abode of the partners, other than the mere share holders or commandators. The firm of the partnership. The names of the acting partners who are authorized to sign the partnership firm. (25) The amount of the moneys and effects brought or to be brought into the partnership, by the responsible or commandatary partners. The period when the partnership is to begin, and that when it is to cease. ART. 44. The abstract of partnership articles is signed, when formally authenticated, by the notaries; and when under private sig (24) By the French statute of frauds, all debts and contracts above the value of one hundred and fifty francs, must be proved by written evidence. (25) It happens frequently in France, that by partnership articles some of the partners are restrained from using the partnership firm. They are bound by the acts of the others, but are not authorized to bind them. This takes place particularly when a young man or a clerk is admitted into a partnership, before he has given sufficient proofs of his prudence or experience in business. nature, by all the partners, if the partnership is under a collective firm; and by the responsible or acting partners, if it be a commandatary partnership, whether it be divided into shares or not. ART. 45. The authorization of the government in favour of an anonymous partnership, must be posted up with the articles, and during the same length of time. ART. 46. Every continuation of a partnership after the expiration of its original term must be evidenced by a declaration of the copartners. That declaration and all articles for the dissolution of a partnership before the time of its original limitation, every change or removal of partners, all new clauses and stipulations, and all alterations in the firm, are subject to the formalities prescribed by art. 42, 43 and 44. If those formalities be omitted, the parties shall be liable to the penalties specified in the third paragraph of art. 42. ART. 47. Independent of these three species of partnerships, those special associations which are denominated joint concerns are also recognised by law. ART. 48. These associations relate to one or more commercial operations; their form, their objects, the respective interests of the concerned, and the clauses and conditions thereof are settled by the agreement of the parties. ART. 49. Joint concerns may be evidenced by the books and correspondence of the parties, or by parole proof, which the courts may admit in their discretion. ART. 50. They are not subject to the formalities prescribed for the other species of partnership. SECTION II. Of Disputes between Partners, and How they are to be determined. ART. 51. All disputes between partners in matters relating to the partnership, shall be determined by arbitrators. ART. 52. The parties may appeal from the award of the arbitrators, or remove the same to the court of Cassation, (26) if they have not expressly renounced the right so to do. The appeal shall be carried to the court of appeals. (27) (26) The court of cassation is the highest tribunal of appellate jurisdiction in France, but its powers extend only to the correction of errors in law, and in certain cases to the transfer of causes from one tribunal to another. Its jurisdiction is coextensive with the French empire. It consists of one first president, two presidents and fifty judges. The grand judge minister of justice presides in this court, whenever the emperor thinks proper. (27) There is one court of appeals in cach department. The number of the judges is various, and in proportion to the extent and population of their respective jurisdictions. The highest number is 30, and the lowest 12. They are independent of the juges auditeurs, four of which at least, and six at most, are attached to each of these appellate courts. These auditors perform the ministerial duties of the judicial office, such as taking depositions of witnesses and the like, and occa-VOL. II. APP. 0+ ART. 53. The nomination of arbitrators is made, By an extrajudicial act, By the consent of parties given in a court of justice. ART. 54. The term within which the award is to be given, is to be settled by the parties at the time of nominating the arbitrators, and if they do not agree thereon, it is to be fixed by the court. ART. 55. If one or more of the partners refuse to nominate arbitrators, they are to be nominated ex officio by the tribunal of commerce. ART. 56. The parties are to deliver their memorials (29) and vouchers to the arbitrators, without any judicial formality. ART. 57. The partner who neglects to deliver in his memorial and vouchers, is to be summoned to deliver them within ten days. ART. 58. The arbitrators may, according to the circumstances of the case, enlarge the time for the delivery of the papers. ART. 59. If there has been no prolongation of time, or if the additional delay is expired, the arbitrators are to make their award on the memorials and exhibits, which shall have been delivered to them. ART. 60. In case of difference of opinion, the arbitrators shall choose an umpire, if one be not already nominated by the articles of submission, and if the arbitrators do not agree in the choice of the umpire, he is to be appointed by the tribunal of commerce. ART. 61. An award must contain the reasons on which it is founded. It must be filed in the registry of the tribunal of commerce. ART. 62. The above rules are applicable to the widows, heirs and other representatives of the partners. ART. 63. If minors are interested in a controversy relative to a commercial partnership, their guardian cannot waive the right of appealing from the award of the arbitrators. ART. 64. All actions against partners other than those (30) who after the dissolution of a partnership have undertaken the settlement of the affairs thereof, their wives, heirs and representatives, are barred by the lapse of five years after the determination or dissolution of the partnership, provided the clause of the partnership articles stating the duration thereof, or the fact of its dissolution has been posted up and recorded conformably to art. 42, 43, 44 and 46, and provided the right of action has not since that time been revived as to them by some judicial proceeding. sionally supply the places of the other judges. Each of these courts has at least one president: some have two, and others have also a first president. The grand judge presides in any of them when the emperor thinks proper. (28) The word act in its literal sense, is synonymous to our word deed, or as we sometimes say act and deed. But in the civil and in the French law, it has a much more extensive signification, and means every written memorial of a public or private transaction, which is authenticated or confirmed by the signatures of the parties or of public officers. Thus the records of a tribunal are called the acts of court, acta curie, and private contracts, are the acts of the parties and of the officers who authenticate them. By synecdoche, the instrument by which acts are evidenced, takes itself that denomination, precisely as we call a deed the written paper or parchment, which is in fact no more than the memorial or evidence of the act of the parties. As the word act will often occur in this translation, we have thought that this explanation would not be useless. (29) These memorials are written statements prepared by the parties or their counsel, containing the facts and arguments in support of their cause. (30) In France, when a partnership is dissolved, one of the parties is generally a review of such decree so far as their interest is affected thereby, TITLE IV. Of Separation of Goods. (31) ART. 65. Every suit for separation of goods (32) shall be instituted, prosecuted and determined according to the rules and forms prescribed by the Napoleon code, book 3. tit. 5. chap. 2. sect. 3. art. 1443 to 1447, and by the code of civil proceedings, part 2. book 1. title 8. art. 865 to 874. ART. 66. Every decree of separation (33) or divorce between husband and wife, one of whom is a merchant, shall be subject to the formalities prescribed by the 872d article of the code of civil procedure; in default of which the creditors may at any time obtain and controvert every settlement or liquidation of accounts made in consequence thereof. appointed pour faire la liquidation, to settle and liquidate the affairs thereof. He has the management of all the remaining funds, and attends to the collection and payment of the outstanding debts. In his capacity of associé liquidateur, he institutes and defends in his own name all suits in which the partnership is interested. The other partners may, however, be sued, but it is not commonly done, unless it is believed that the liquidateur will not be found sufficient. To prevent their being harassed after a lapse of time with vexatious suits, the code has provided the limitation mentioned in this paragraph, which does not, however, extend to the liquidateur, because he is understood to be in possession of the funds of the partnership. (31) We have already explained (above, not. 16,) that the word "goods" in the civil and French law is of the most extensive import, and includes every species of property, real, personal and mixed. It is to be understood in this sense when used in the course of this translation, except where the context may give it evidently a more restricted meaning. The separation of goods here mentioned only takes place between husband and wife, and is either originally stipulated by the marriage articles, or decreed after marriage by a court of justice on the complaint of either party. It does not at all affect the matrimonial connexion, which subsists as before, except as to property, which is thenceforth held separately by the parties. Such separation cannot be effected, after marriage, by mutual consent, but must be decreed by a court of justice on the complaint of the wife, when she has reason to believe that her husband is wasting the joint property. It may also be applied for by the creditors of the husband, but not without the consent of the wife, except in case of the husband's actual insolvency or bankruptcy, or as the French law energetically terms it, his discomfiture. (32) Between the wife and husband, as above mentioned. (33) Separation or divorce. The separation here spoken of is analogous to the divorce à mensâ et thoro of the English law. It is called in French separation de corps, as contradistinguished from the mere separation de biens. The divorce in question is that à vinculo matrimonii, which may be obtained in particular cases, specified in the Napoleon code. ART. 67. The substance of all marriage articles, between parties, one of whom is a merchant, shall be transmitted by way of abstract within one month from the date thereof, to the several registries and halls (34) designated by the 872d article of the code of civil procedure, to be posted up conformably to the same article. It shall be stated in that abstract, whether the parties hold their property in common under the community system, whether they hold it separately, (35) or whether their marriage has been contracted under the dotal system. ART. 68. The notary who shall have received (36) the marriage articles, shall be bound to transmit the abstract thereof, conformably to the direction of the next preceding article, under the penalty of a fine of one hundred francs, and even of removal from office, and of being responsible to the creditors, if it shall appear that he acted through collusion. ART. 69. Every husband or wife whose marriage has been contracted under the dotal system, and who shall afterwards engage in trade or commerce, shall be bound to deliver such abstract within one month from the day of first entering into business, and in default thereof, shall be punished as a fraudulent bankrupt. ART. 70. Every husband or wife holding separate property, or married under the dotal system, who, at the time of the promulgation of this law, shall be exercising the profession of a merchant, shall be bound under the same penalty to deliver such abstract within one year after the said promulgation. TITLE V. Of the Public Exchange, and of Exchange Agents and Brokers. SECTION I. Of the Public Exchange. ART. 71. The exchange is the place (37) in which merchants, masters of vessels and exchange agents and brokers meet together, under the authorization of government. (54) These are the registry of the tribunal of commerce, and the halls in whiok the attornies and notaries respectively assemble. (35) Property may be held separately by either the husband or wife, under the community system. The parties may by their marriage articles except what they please from the community stock, which generally consists only of their personal property, and of such real estate as is purchased out of the joint stock or the profits thereof, during coverture. They may even stipulate that every thing on both sides shall be held separately, and in that case they are separés de biens, but their contract is not therefore subject to all the incidents of the dotal system. (36) The notary before whom an instrument or contract is executed, and who attests it by his signature, is said in the French law to receive the act. (37) In the original, the exchange is figuratively said to be the assemblage of the merchants, &c. in the same sense in which we say that the church is the congregation of the faithful. But as that figure would perhaps appear too bold in our language, we have not ventured to adopt it. |