The Express.
London, England, 1856-11-24 00:00:00

AUSTRIAN ITALY,

OSTEND, Nov. 20. i
The French steamlacket Le Cone, commanded by
M. Garnet, entered oar port on the 16th instant,
and left it on the 20th for Flessingue.
This need of war, destined to guard the fishery,
arrived here on the day after a storm that had blown
with violence on our *out and battered the dike of
Ostend with snob fora as to form a wide and gaping ;
breach, making u apprehensive lest the NS should
burst into the town and completely lay it under
water. During the night between the 12th and the
13th the garrison of the town worked hard to fill up,
by means of bags filled with sand and turf, the cavity
formed by the waves, and prevent the complete
rupture of the dam. Thanks to these labours the
danger was averted, but the town was all but
experiencing the fate of those ancient villages the
site of which it occupies, and which were whelmed
beneath the inundations of the sea.

A letter from Milan of the 171 h says The
itinerary of the Emperor of Austria has been fixed as
follows—His Majesty is to arrive at Venice on the
26th instant, and remain there until the 27th Deo.
Daring the ten following days he will visit Padua,
Verona, Brescia. &a., and arrive at MUan on the 6th
henry: The sojourn of his Majesty in this last
named city has not been pt determined, and will
depend on circumstances."
Another letter of the 17th, states that before
the arrival of the Repeat of Austria. Baron de
Burger, the Civil Governer of Lombardy. will be
ppsreeded. This dientlesal, so far from being re-
Creas of good awry by the liberal party, will
aked apes as a seseesslon to the Italian clergy,
who have made bitter complaints of M. de Burger's
indisposition to yield to all their denude in the
affair of the Concordat.

LAW INTELLIGENCE.
THIS DAY.

EQUITY COURTS.

01111MILIT.

AITCHESON e. LEE.—RE THE ROYAL BRITISH
BANK.—JUDOMENT.
The Vin-Chanceror *fa morning delivered judgment.
This case (bmend) comes oa upon three different applications
or proceedings. The first I. an an application by Mr•
Leo, the Wield assignee in bankruptcy of the Royal British j
Bank in a snit of Aitchison v. Le*, and in the
matter of the Wiading-up Act, asking that that Mr
Harding, late the interim manager and now the official ;
manager under that act, may be ordered to pay sad
deliver up upon oath to Mr. Lee all monies and marine
for mum propeety, ante, credits sad 'Mich, books, pa
pen and writtap in hie pomeasion or power, belonging to
or forming part of the estate of the Royal British Bank,
sad that he may be ordered to withdraw from the OfMa•
patine, possession, and receipt of any part of the eerie
estate, and Ist Mr. Lee Into the occupation and possession
thereof. The second is a motion to dissolve an injunction
tinted ex parte, In a suit of Aitehmon v. Lee, by which
the defendants an restrained from prosecuting a summons
Used out of the Coast of Bankruptcy, requiring W, Hard-
ing, then the Interim manager, to show cause why he should
not be committed, and by which the defendants are also
reetrahual from molesting or disturbing Mr. Harding In the
poweena of the property of the Royal British Bank.
The third proceeding le that Mr. Lee, the official assignee in
bankruptcy, and Mr. lobaston, the messenger, appear na-
dir an order made in the matter of the Winding-up Act to
show ewe why they should not be committed
for entempt of this Court, in disturbing the
peonleith of Mr. Hardiest the interim manager. The '
pendia question to be decided is whetter the property of '
the Royal British Bank is to be dienthated among the are-
dines by the official assignee under the bankruptcy, or by
the official manager under the Winding-up Act. The
material facts and den are the following:—On '
the 3rd of September, 1866, the Royal British Bank,
which no a joint stook company, formed ander the
Act 7 and 8 Viet., for regulating joint stock companies,
'topped payment. On the 6th September, a petition (or '
winding up the company, wider the Winding-up Act of
1848, wan presented by Sherman, a contributory, and was
Answered by the Lord Chancellor. Oa the Bth of
September, Elliot, a auditor, filed an affidavit of
debt fa the Court of Common Pleas ; and on the
sun day sued oat sad ..reed ea the secretary of the
company a writ of runeoni seceding to the requisition of
the 7 wet of the 7 and 8 Viet'''. 14. On the 20th Sep-
towbar, the eompany wee dissolved by a resolution 01
a meeting duly convened according to the provisions
of the deed of settlement of the company. Oa the
24th September as order Owlets to wind up the nth
pony wee made en the above-mentioned petition of
Sherman, and upon three other petitions which had
been presented by other contributories. On the
27th of September, Mr. Harding we appointed interim
manager under the Winding-up Act. On the 2nd of October
the proceedings under the Wiadingith Act were registered
as a lie undue, according to the 126th eectioa of the
Winding-up Act. Oa the 9th of October, who a ealondar
month had expired from obs ionise of Elliot'.
welt of summons, another creditor, named Bark*,
pceeeated • petition for adjudication to the Court
of Bankruptcy, and on the same day the com-
pany wee adjudged bankrupt nadir 7 sad 8 Vie., cap. 14.
and Mr. Lae was appointed official soignee. Oa the 13th
of October Mr. Harding was appointed official manager.
Upon thew facts the first question to be determined fa this—
who has the legal title to the property of the tampon ? II it
vested la the official assignee, or in the official manger ? If in
the latter, so ground has bees suggested why that title
should sot prevail. If in the official assignee, the neat
question is, are there any grounds upon which this court
ought to interfere with the assertion or exercise of his legal
title. The minion of thou questions depends principally
upon the construction and companion of two sets of par-
liament-7 and 8 Viet., e.lll, and 11 and 12 Viet., rt. 46.
Where an important legal question arises whleh is nobody
new, and turn upon the GuestrucUon of an met et mu of
parliament, the obviate course for a judge sitting in this
wart would be,to let the matter be tried by an esti= at law,
and I should have taken that warm, but on my sugeetiog
it to the coastal on both sides, the one strongly oh-
footed to that course, and the other declined to
septets any eon rrrrr nce with the suggestion, and
as I ea apprehensive that the taking that course
would tend materially t o delay the reoeipt of a dividend by
the endings (for whow interest I am chiefly ulnas) I
have thought it my duty to decide the legal question myself.
The Ant wenn, then, for Amelioration is, in whom is
vaned the legal title to the estate and (Seta of the
company. In ruing the 'statute of 7 and 8 Vic., c. 111,
the legislator* had two objects—the one to facilitate the
recovery of debts due by joint stock companies, the
other to detect and punish abusse attending the formation
and masagenseat of such companies. With respect to the
former the preamble recite that it is expedient to intend
the remedies of creditors against the property of joint stock
esepaair when unable to meet their pecuniary engage-
male, sad to facilitate the wiudlog-up of their un-
seen For this punts the statute makes a joint
stalk sosapony liable to become* beokrept. Corwin acs or
calwiene by the company specified in the statute are de-
eland by the sots of tosekruptey, or upon any of these acts
of bankruptcy bring esinneittod, say credits, to an amount
eaffieleat to support a fist in bankruptcy, may sue oat a
fist he benkneptey, and the Court of Bankruptcy is to pro-
ceed ea each flat in like manner as is the wee of
an thdividaal trader against whom the fist was [mod.
But the bankruptcy of the company is not to involve the
hiatuses', of the individusl members of the company.
The 11th metiou enacts that the law and practice in bank-
ruplGy them force shall extend for ae the asne7 maybe

'The Swiss Feder el Oman," says the Prom,
II has Mooed to a sloes tuatara' the sores of own.
patios seat late the Ceiba of Neufchatel.'
Prime Alfred of Nagler!, after basis, visited
Morsel plates ea the Oration; has arrived at
Guava, where his royal highaess is to pass do
'whits.

.. t

British Bank (for by the 48th sec. of the 7 and it Viet.,
e. 119 , basking companies of more than six pumas are
brught within the operation of the intent* under mei-
aeration) 12222 entitled to have mourn to this remedy.
If the company committed one of the acts of
bankruptcy specified is the bankruptcy (and that they
did DO is not disputed), any creditor whole debt was
of sufficient amount to sustain a fiat (or rather a petition lot
adjudication, which has sow been sub•tituted for the pro-
goading, by fiat), had a right to have the company adjudged
bankrupt; and upon such adjudication every creditor
had a right to come in sad prove his debt end
to have all those benefits and advantages which,
by the general bankrupt laws, attach, or are consequential
upon, an adjudication Is bankruptcy. In the present cue
the act of bankruptcy is that which is mentioned in the 7th
section of the statute now under consideration, which enacts
that if any creditor to inch as amount as is by law
required to support • fiat, shall file an affidavit of such debt
In one of tho superior courts at Wcatminster, and shall sue
out of the sumo court a writ of summons against*" com-
pany, and serve • copy of such summons on an
officer of the company, then if the company shall not
within one calendar month from such service,
pay, secure, or compound for the debt, or satisfy
one of the judges of that court that it is the intention of
the company to defend the action on the merits, and
within one calendar month of such service enter an sp.
to the action ‘the company shall be deemed to
Create:emitted an set of bankruptcy from the time of the
service of the summoss. Elliot, a creditor, on the Bth
Sept., 1866, filed an affidavit of debt and sued and
an the same day served • writ of summon,, in the manner
required by the 7th section, and the company did not, on or
before the Bth October, the day on which the calendar
month expired, pay, secure, or compound for the debt, nor
enter an appearance to the action. It is not disputed that
the company committed an act of bankruptcy on the
Bth of September, the date of the service of the
summons, and thereupon it was competent to Elliot,
or to any other creditor of the company, whom debt was of
*efficient amount to support a fiat, to file a petition for ad.
judication, sad procure the company to be adjudged bank-
rupt ; sad it is not disputed that by the general bankrupt
lawe the adjudication would make the company bankrupt
from the date of the met of bankruptcy—namely, the Bth
of September ; and, accordingly, on the 9th of October,
Burke, a creditor to a sufficient amount, filed a petition
tor adjudioation, and oa the same day the company
was majedged bankrupt In the act of bankruptcy.
And on the same day Mr. Lee was appointed official assignee
of the estate and effect, of the company. Moreover ft Is
admitted that if the Winding-up Act of 1848 had never
been pained, or if there bad been no proceedings under it,
the company was bankrupt from the 8:h September, the
day of filing the affidavit of debt and serving
the writ of summons; and all the estate and
effects of the company, as from the same date vested
in the official assignee on his appointment, subject to
the exceptions provided by the 133rd section of the Bankrupt
Consolidation Act (12 and 13 Vict., c. 106) in favour of the
persons having bona fide dealings with the company without
notice of a prior act of bankruptcy. Vihtt,thein,is the effect of
the Winding-4m Act of 1848 (11 and 12 Viet:A.4s)&sd of the
proceedings whioh have been held therennderd hat statue
by its title peanuts to be an act to amend the 7 & 8
e. 11, and emu other acts mentioned in the pre-
amble, and also to facilitate the dissolution and windingiup
of joint stock companies and other partnerships. After
declaring to whet creditors its provisions are to apply, and
there fa no doubt that the Royal British Bank is
within its operation, it proceeds in the 6th section to
enable contributor, of a company (but sot to *sable
mediton) to apply to this court for • winding-up order
In any of the cases mentioned in that section. The first of
thine cues is, if the company shall have committed, done,
er suffered any act which, by any of the recited acts
(including 7 & 8 Viet. o. 111) Is to be deemed
an act of bankruptcy, and the 6th of the easel there
specified is preeduly the same es that which by the 7th
section of the 7th & fhb Vict., 0.111, before referred to, is
to be deemed an act of bankruptcy, except that the time
allowed after the samice of the writ of summons, for the
company to pay, secure, or compound for the debt, or satisfy
a judge of the intention to defend the union on the merits,
and enter an appearance, is only three weeks instead Of
a calasdar month. I mention thus two cases especially for
the Impose of ()booming, with reference to the former, that
the commission by the company of an act of bankruptcy
will serve at once to ground a fiat in bank-
ruptcy under 7 and 8 Viet., e. 111, and also to ground
a windbag-up order under 11 and 14 Viet., c. 45 ;
end with respect to the latter case, I would observe, that if
a creditor files the affidavit of debt, and issues and serves
the writ of summou as there *pacified, this will serve to
ground • winding-up order, if the company does not pay
the debt, &c., at the end of three weeks, and
also to ground a fiat in bankruptcy if the com-
pany does not pay the debt, &e. at the
end of • calendar month. But the act contains no pro-
vision that a winding.up order is to prevent or impede the
issuing or prosecution of a flat. The 6th section enacts
that in ease the fist shall have been issued
against the company fudge the recited acts, ia-
cludinv, of curie, the 7th and Bth Viet., e. 111,
or say of them, n• petition for a winding-up order under
this act, @hal be presented by any other person than the
oreditcr's amignees under the fist; end power 32 given to
such minute by the order and direction of the Court
of Bankruptcy, hut, not otherwise to petition the Court
of Chancery for a winding-up order. Now it ban
not bee. contended that this Winding up Act, repealed the
7 sod 8 Viet., 0.111, or that it operated generally to prevent
creditors from proceeding against the company, by issuing
a fiat in bankruptcy, or by filing a petition for
adjudication. Indeed, although the validity of the
adjudication is not actually admit ed by the coun-
sel for the official manager, they have not attempted to
segue that it is iuvalid, but assuming the validity of
the adjudicatios, their argument is that at the time of the
ousel adjedication there existed an order absolute for
winding-up, and an interim manager had been appointed;
the adjudication, though valid, must remain wholly
inoperative, as administration can be had thereunder, and
the assets of the company ought to be distributed among
the creditor, by the official manager. In support of thie
view they contend—let, that the order obsolete to wind-cep
the company having been made before the adjudication in
bankruptcy, it prevents the bankruptcy from having rela-
tion back to the batting of Os writ of summons, and that
therefore the company can only be considered as having be-
come bankrupt at the date of the adjudication, which was
subsequent to the windiore no order, and, consequently,
that the title of the assignee in bankruptcy cannot be car-
ried back to an earlier period then the date of the adja.
dicatioa. This argument 111111100221 that the 7th section
of the 7 & 8 That. a 111, so far as it enacts that the
company shall be deemed to have committed an act
of bankruptcy from the time of the service of the sum-
moos le, in effect, repealed by the Winding up Act—at
least in the particular case where a winding.
up order shall have been made before the arijudicition—an
arsumption for which Ido not see any ground. But, fur-
ther, even if that assumption could be properly made, it
do., not appear to me that it would avail to prevent the
estate and effects from vsetiog in the official assignee. In as-
tontine that the company only became bankrupt at the date of
the adjudication, viz. the 9th October, on which same din
the official assignee was appoiated, it cannot, I apprehind,
be disputed that at lust whatever was on that day
the property of the bankrupt company vested in the
official assignee. What thea had at that time been
done to divest the estate and 4: &di of the com.
patty, and vast them in any other person or persona
The order: tol wind-up the company could sot of itself pro.
duce any each effect, either by reason of anything in the
terms of the order itself, or by mien of any elute in the
winding up act; end the only other proceedioge which
bad been taken under the Winding-up Act were the
registering of the petition as a lis psndeos under the
125th 'tofu, and the appointment of en interim manager.
Now the registration of the petition, as a lis undoes, had
no other effect than thie, that by the 2 and 3 Viet., c. 11,
see. 7, a rookie*r or mortgagee of the property would be
as much affected by the petition then registered as he would
be if he had attest notice of It. But there is nothing in this to
effect a treader of any property from the company to any
other person or persons, nor can the apptintment of en in-
terim manager Dave any such effect. Fir au sienna ma-
mmon., is nothing more than a receiva, who,
I though authorised to collect the ,elite, has no
'estate vested in him. Lord Hardwick* observed
la Shipp v. Harwood, 3 Atk. 661, the appointee.at of a

applicable to that sot, and to fists in bankruptcy, .- _.d by .- APO •- -- --.--. - -- - - -- - -.,- ---
virtue of that net, and to all proceedings eider each esti, roc t i ... doss met n any way affect the right. Nothing,
save aid Incept as otherwise directed by the then, which had been doss seder the Winding-up Act at
set. Hieing thee given to the erediesre of a the date of the adjudication bad the effect of divastiog any
joist stock compass, the remedy of making the
company bankrupt, the effect of which would be that all @stets or property from the company, and all the estate and
the estate and effects of the company would be poseessed and iffeets which then remaiued vetted in the company, became
at least on the 9th October, vested i.. the official assignee.
realised by the assignee', and divided among the creditors Another argument used on the part of the official manager
who shoald come in and prove. The statute proceeds a wee this, that it is impossible for the adminietra,fon of the
step (either, and endesvours to give them an ulterior
earets of a joint stook campus, in baokruptcy to be
needy spinet Ike individual members of the company—a carried on simultaneously with proceedings under •
remedr,lowever,whiels,thinehconeegneetonthe hinkrupey, winding up order, and sa the wieding-up order
is sot to be worked out by the lasusesentality of the Bank is a valid order, it must intercept and pit vent any adminhe
reptey Court, bat by that of the Court of Chancery. The
nation of the assets in the bankruptcy, and en must fault-
20th section authorises the Bankruptcy Court to direst the date the 'eget title of rho assigner. I certainly feel that
creditors' asepsis of the company to apply to the Count of tome inconvenience may po,sibly arise; from the
Chancery by petition for order, sod dim:dices euessuy for miscellaneous prosecution of proceedings in bank-
the whidiegup of the company,
sontribetio• among ell the members of the company towards
and to compel a jut ?slimy, end proceedings under the Winding-up Act against
a fell payment of the debts; and upon hearted the gams company, bat I cannot aloft its impossibility. All
ilia that can be due in any cite by the assignee ender the
orders of the Court of hankrewey is to divide among the
petition the Court of Chancery may refer it to the master to
take all amounts and make all inquiries necessary for sear- vediters the twisting state and effects of the bankrupt con.
Wising the 'attribution which seek member ought to pay, Pour l to go beyond this and make the rhereboldere contd.
and may ay- bate what is needed to supply the deficiency of those tweets
sad may order payment of such contributions,
point a melee, to 4,014 et each wetithetioes, mad may ardor for full satisfaction of the lillbtS, is act the fenctios of
the process was carried on simultaneously in both if
the applisatims of the mosey is or towards eatisfunion of the the Court el Bankruptcy. but of this /0, mi that lf
debts found to be dee in the baakraphi. By the 21st
motion soy member of the company leejeff a elates the effect would be that the awl see in ►bankruptcy would
&Oast of members in respect of the affairs or site. collect end realise, and divide among the creditors
sections of the weep my, may petition the Court of Ctian. the esistiog estate and effecte, end the official mangoes
eery to Ojos, aad provide for the satiefactiee of each moult proceed to settle the list of contributonem
shim; but, as I underetaud the intention of the act, it and assertai• how mush oath ought to contribute,
is eempeteet to a member of the Company to take this in mitre to effect fall estisfamion of the debts. With
eursegaly whereas seder to winduphas been obtained by the respect to the proseelings under the Wroding-ep Aet the
greeters' enigma** seder the 20th section. Tee 23ed nation effect would be the same as if there had been so
empieren the Lord Chancellor to make rules and olden property of the company to collect and administer, except,
to regulate the preetediep for the winding-up of the cons. indeed, that each of the debts to be provided
pear under the 20th section. The 25th and some following foe by costributioce smug the shareholders, would have
segues' are handed to effect the second object of the bees reduced to the event of the dividtnd • d under
etstute—vie., the dewed= and punishment of abuses; the the baiiimptisy. I cannot therefore admit the impossibility
eouldenties of which. sums to sae, Immaterial to the dui.' of euelereet Plocudings in helthruitterr sad ender the
sheet Ow retest Gum Now,heymedalleentroutev,the offset Wiutliefriel? Act WO" the aims company, which is
cif this statete wastewater es WS neaten of the Joint Stock the feasdaMe• of the argument.
Compaay a remedy foe the recemity of their debts aid 1 HM Howler proceeded to observe that Hr. Harding
except se far se this statute may he effected by the erovl- wee oaf appointed interim enamour when the adledies.
alone of any &unless% statute, the erediton of the Royal time of bankruptcy took plus on the Bth of October,

sad in that character, the estate sad effects of the beak did
cot vest in him, as the Wieding-ep Act merely treated hlea
as a receiver or col:ector of contributstes. What IPSO
popularly called the Joint Stock Compassion As ha
taahreptcy provided that Co other est NNW
crenate so as to diminish, prejudice, el effect the
right. of nealtnro, and therefore he considered the legal
title egged In the official assignee, inasmuch ea the pre-
amble of th, 7th and Bth Viet. declared the object of the set
be for t ho entoosloo and farther remedy for creditors again.t
oitst sto:li companies. He believed the estate would be
mom efficaciously administered in bankraptcy, and there-
fore he should order, on the first question, that Me.
Madam deliver op ell moneys received by him to Mr. Leo,
the rests of both per. is to be costa in the cans., and also that
Mr. Hardier/ be said hie esp.swes in the collection of the
d.o's. Ihe W junction obtelsed by two shareholder., praying
that Mr. Lee sad Mr. Jobastoto, the messenger, might be 1.
restrained frmt iewrferieg with Mr. Hardiest would be
dirrolved, the costs to be paid cut of the estate, and
is to the third question, he could sot help observing
that it appeared to him to be • most wreathed Me teed
teeiwitifichle step to summon Mr. Hardie, to the
Court of Baskimptey, for doing his duty to their
court. but, as she assignee ead messes M had
expressed their regret he (the Vice-Chaatiellor) would
tale no further proceeding against them, bat they mast
pay the cats of obtaining the rule.
Mr. Olasse said as it was the lineation of the odds' ma
eager to appeal to the Lords: Judas, he would ask that his
Honour would name • day whet the assets should be deli.
'ma ever to the official assists., and after the dedaation
of Mr. Herding ' espensee.
Hu limos: mid he did not intend that they should
be given up in/taster. at sometime mut sits.e before a
dividead could be declared. He was tot etrprised
considering the novelty and gravity of the gas-
bag' that the parties should take an opinion of
the Appellate Coast.. The practical question wined
to be, which of the potties should have the bought of
the per 09111411 em the hap emetat Of siesta to be got in.
The delivery of the Judgment lasted ass hour and a half.