CO129-180 - Public Offices & Others - 1877 — Page 42

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"attached to registration under the 194th sec- "tion." And accordingly he held that the conveyance there, being a conveyance of all the debtor's property, and not being registered under the 192nd and 193rd sections, was an act of bankruptcy.

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It may be desirable to refer next to the case of Symons v. George, (33 Law Journal (new series), Exch. 231.) Their Lordships cannot help thinking that the marginal note of that case, to which the learned Judges in Hong Kong appear to have referred, may somewhat have misled them. "A trust The marginal note is to this effect: "deed in the form given in Schedule D. of the Bankruptcy Act, 1861, and registered, &c., according to section 192, though not assented "to by the prescribed majority of creditors, is by "virtue of the 194th and 197th sections,"--the 197th section corresponding to the 167th scetion in the ordinance-" subject to the jurisdiction of "the Court of Bankruptcy." It should be ob- served, however, that the real point decided in this case was no more than this,-that the debtor having conveyed to certain trustees his effects and property, to be administered for the benefit of his creditors as if in bankruptcy, and that property having been delivered in pursuance of the deed of conveyance, it was held that the operation of the deed at Common Law was to pass the property to the trustees, although, in- cidentally, no doubt, an opinion such as that indicated in the marginal note is expressed. It was upon the same ratio decidendi that the decision was affirmed in the Exchequer Chamber. It should be observed that the case which has been before quoted, decided by Lord Westbury, was not drawn to the attention of the Court.

In the subsequent case of Pearson v. Pearson (1 Law Reports, Exchequer, 310) the Court of

Exchequer had their attention more pointedly

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called to the provisions of the Bunkruptcy Act, and also to the decision of Lord Westbury. It was there held that the legal right to sue in respect of debts and choses in action of the debtor did not pass to his trustees under a deed which fell within the provisions of section 194, and that section 197 did not apply to such a deed so as

to give to the trustees appointed under it the rights to sue of assignees in bankruptcy. That is the very point to be determined in this case. If trustees have not by virtue of the operation of ss. 194 and 197 of the English Act (corre- sponding to ss. 165 and 167 of the ordinance) the power to sue in respect of a chose in action, it is because they have not the rights of assignees in bankruptcy, and if so, it follows they have not the power of assignees in bankruptcy to sue in respect of a fraudulent preference. This case was dealt with by the same Judges, with Baron Channell in addition, who had decided the case of Symons

v. George, and they came to the conclusion, ex- pressed by Baron Bramwell, that the provisions of section 197 apply only to deeds entered into in conformity with the provisions of section 192. Their Lordships cannot help observing that the learned Chief Justice, when speaking of what he calls the dicta of the Judges in this case, and observing that he could not explain them, ap- pears not to have appreciated the full force and effect of the case itself as a clear decision of the

very point now in question.

The only other case to be noticed is a case before Vice-Chancellor Bacon, of Exporte Atkinson (9 L. R., Eq., 736), in which, un- doubtedly, the Vice-Chancellor does not seem

to have accepted in its full breadth the view of the Court of Exchequer that section 197 did not apply to deeds under section 194. It is to be observed, however, that he does not question the decision in Pearson v. Pearson, He

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