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says,- "With most sincere deference therefore to "the learned Judges by whom that case was "decided, and not presuming to question their "decision upon the subject to which it applies, "I must say that it seems to me to be no authority for the proposition that because a "deed of assignment registered under section
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194 does not enable the assignee to sue in his
own name for a chose in action which was "the property of the assignee before the deed, "therefore the 197th section has no applica- tion to such a deed, and that all the power " and jurisdiction which by the 197th section is
CC
given to the Court of Bankruptcy over every "such deed after registration is wholly ousted." The effect of this decision would appear to be that, although the learned Vice-Chancellor yields to the authority of the case in the Court of Exchequer so far as it holds that the provisions of section 167 do not apply to deeds under section 194, so as to give to trustees under them the powers of assignees in bankruptcy, still he thinks that there is some juris- diction in the Court of Bankruptcy to administer the property. What he actually decided was that the Judge sitting in bankruptcy had power to summon a person to give evidence as to an alleged transfer of property comprised in such a deed, and to commit the witness for contempt for refusing to be sworn. This decision therefore, whether the Vice-Chancellor be right or wrong in the application which he gave to section 197, as to which their Lordships do not think it necessary to pronounce opinion, is certainly not an overruling of the decision of the Court of Exchequer in Pearson v. Pearson, which governs the present case.
Their Lordships have therefore come to the conclusion, both upon the decided cases and upon the construction of the ordinance independently of them, that the Plaintiffs have not a right to
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sue for the purpose of setting aside the convey. ances on the ground that they are a "fraudulent preference" within the meaning of that term in the bankruptcy law.
It has, however, been further argued that, even assuming this, the transaction now im- peached constituted a fraud so much exceeding that of a mere fraudulent preference that, from the independently of any assistance bankruptcy laws, the Plaintiffs, by their mere appointment as trustees on behalf of the other creditors, would be entitled to sue to set it aside. Upon this subject their Lordships think it enough
to observe, first, that this point does not appear to have been argued or taken in the Court below, and that they are always reluctant to decide upon points which have not been submitted to
the inferior Court; and, secondly, that there does not appear to them any ground whatever for supposing that there was any greater fraud in this case than a fraudulent preference in con- templation of the bankruptcy laws, if indeed there was such a fraudulent preference, which, this part of the Appeal not having been fully argued, they by no means affirm.
On these grounds their Lordships will think it their duty humbly to advise Her Majesty that the decision under appeal should be reversed. There will be the usual order with respect to costs in the appeal, and the Court below.