C. A. 1905 FRASER V. FRASER. Vaughan as an arbitrator, and that therefore there is no appeal. Now, I agree that the expression " refer the action to a master," primâ facie, means a reference of the action to the master as an arbitrator, although it is to be observed that the appeal here is from a judgment. But I am not sure that I quite underWilliams L.J. stand the reasoning upon which the conclusion is drawn, that therefore there is no appeal. It seems to me, having regard to the terms of ss. 14 and 15 of the Arbitration Act, 1889, that there are some cases of reference under an order of Court made by consent which fall within the operation of s. 15, and in which, according to my view, there is plainly a right of review. I think, therefore, that the judgment of the Divisional Court must mean that an order of reference made under rule 7 of Order XIV. is an order of reference made by consent by a judge's order in the sense in which such orders were made, independently of the Common Law Procedure Acts and the Judicature Act. It is common knowledge that, quite independently of any such Act, orders of reference by consent were made by order at Nisi Prius, or by rule of Court, or by judge's order, but that such orders could only be made when an action was pending, and could only be made by consent. Such orders were, in fact, submissions to arbitration embodied by consent in orders of the Court. The Divisional Court, as I understand, based their decision upon the ground that, according to the true construction of rule 7 of Order XIV., the reference to arbitration referred to in that rule is a reference of this character. I hesitate to come to this conclusion. It is plain that not every reference consequent upon an order made by consent is a reference of this character,-is a common law reference by consent by virtue of a submission embodied in an order; for it is plain that clause (a) of s. 14 of the Arbitration Act, 1889, covers orders of reference made by consent. And it is plain from the latter part of that section that it covers orders by consent of reference to an official referee or officer of the Court. And "officer of the Court" includes, in my opinion, a master of the Court. Moreover, Gower v. Tobitt (1), a decision of the Court of Appeal, shews that the decision of an official referee, (1) 39 W. R. 193. and, I think, of a master of the Court, on a reference under an order made pursuant to s. 14 of the Arbitration Act, 1889, may be reviewed by a motion for a new trial made to a Divisional Court, and, in my opinion, this decision of the Court of Appeal covers equally the case of a decision under a reference of an action to a master, and the decision in Wynne-Finch v. Chaytor (1) seems to me to involve the same conclusion. Now, if the view which I have expressed is right, why should the Court construe the words of rule 7 of Order XIV. as if the reference therein referred to was a reference to a common law arbitrator embodied in an order made under the general power of the Court, embodying a submission to arbitration, rather than construe it as authorizing an order referring the whole cause to be tried by an officer of the Court? Why, in other words, should we treat the rule as authorizing an order embodying a submission rather than as an order providing a mode of trial? If we treat rule 7 as authorizing a mode of trial, then it is plain that rules 6 and 6 (a) of Order XL. apply, and that a motion to set aside the judgment will lie. This is the conclusion at which I have arrived, and, with unfeigned respect for the opinions of the judges of the King's Bench Division, I think I ought to give effect to my opinion, and hold that the decision of the Divisional Court was wrong. I may add that I think the omission of the words "without appeal" in the first limb of rule 7 goes to confirm my view. ROMER L.J. and STIRLING L.J. concurred, C. A 1905 FRASER V. FRASER. Vaughan Williams L.J. Appeal allowed. [The appeal was remitted to the Divisional Court.] Solicitors: Neville, Fisher & Co.; R. Barnes; Gerald & 1904 Aug. 9. In re A DEBTOR. Ex parte THE DEBTOR. County Court-Judgment Summons-Jurisdiction to make Receiving Order in lieu of Committal Order—Absence of Evidence of Means-Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 5-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 103, sub-s. 5. The jurisdiction given by s. 103, sub-s. 5, of the Bankruptcy Act, 1883, to a county court judge having bankruptcy jurisdiction, upon the hearing of an application under s. 5 of the Debtors Act, 1869, for the committal of a judgment debtor, to decline to commit and in lieu thereof to make a receiving order against the debtor, cannot be exercised if there is no evidence of the debtor's means before the county court judge. Reg. v. Sussex County Court Judge, (1888) 59 L. T. 32, considered and distinguished. APPEAL from a decision of the judge of the Canterbury County Court. Judgment having been recovered against the debtor for 391., a judgment summons was eventually taken out by the judgment creditors against the judgment debtor. No affidavit of means to pay was filed on behalf of the judgment creditors. At the hearing of the judgment summons the judgment debtor did not appear, nor was he represented, and the learned county court judge, without having any evidence of means before him, asked the solicitor to the judgment creditors if he would take a receiving order in lieu of a committal order; the solicitor assented, and the judge, acting under s. 103, sub-s. 5, of the Bankruptcy Act, 1883 (1), accordingly made a receiving order against the judgment debtor. The judgment debtor appealed. Frank Mellor, for the judgment debtor. The order was bad. By virtue of s. 5, sub-s. 2, of the Debtors Act, 1869, the jurisdiction to make a committal order can only be exercised (1) By 46 & 47 Vict. c. 52 (The Bankruptcy Act, 1883), s. 103, subs. 5, "Where, under s. 5 of the Debtors Act, 1869, application is made by a judgment creditor to a Court, having bankruptcy jurisdiction, for the committal of a judgment debtor, the Court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor, and on payment by him of the prescribed fee, make a receiving order against the debtor." where it is proved to the satisfaction of the Court that the 1904 In re. debtor has, or has had since the date of the order or judgment, A DEBTOR, the means to pay the sum in respect of which he is in default; THE DEBTOR, the county court judge could not therefore, in the absence of Ex parte. evidence of means, have made a committal order against the judgment debtor. The power given by s. 103, sub-s. 5, of the Bankruptcy Act, 1883, is to make a receiving order "in lieu of" a committal order, and it is impossible to make an order "in lieu of" another order which there is no jurisdiction to make. The decision in Reg. v. Sussex County Court Judge (1) is apparently against the contention of the judgment debtor; but that case is distinguishable on the ground that the judgment debtor had had means to pay, but had voluntarily deprived himself of them by making an assignment of his property; the judge, therefore, could in that case exercise the discretion which it was obviously intended by s. 103, sub-s. 5, that he should possess, but which in the present case it was impossible for him to exercise, as, in the absence of evidence of means, there was no jurisdiction to make a committal order. The judgments of the Court of Appeal in In re Clark, Ex parte Clark (2), support the view that the jurisdiction to make a receiving order in lieu of a committal order only arises where there is jurisdiction to commit. [He also referred to Williams on Bankruptcy, 8th ed. p. 331.] G. Condy, for the judgment creditors. The decision in Reg. v. Sussex County Court Judge (1) has never been questioned and is binding on this Court; it is indistinguishable in principle from the present case, for if the jurisdiction can be exercised where the judge is satisfied that the judgment debtor has no means, a fortiori it can be exercised where there is no evidence of means one way or the other. BIGHAM J. I am of opinion that this appeal should be allowed. The question for our determination is whether under s. 103, sub-s. 5, of the Bankruptcy Act, 1883, the county court judge had power to make a receiving order against the debtor: that depends upon the language of the sub-section, and almost (1) 59 L. T. 32. (2) [1898] 1 Q. B. 20. 1904 In re. THE DEBTOR, Bigham J. entirely upon the words "in lieu thereof" as there used. In A DEBTOR, order to ascertain the proper meaning to be placed upon that expression, it is necessary to turn to s. 5 of the Debtors Act, Ex parte. 1869, which provides that "any Court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment." Then follows a proviso that the jurisdiction is only to be exercised subject to certain restrictions, which are set out in the section, the important part of which for the present purpose is sub-s. 2, which provides that "such jurisdiction shall only be exercised where it is proved to the satisfaction of the Court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same." Therefore, although a county court judge has this jurisdiction given him by the Act, it is provided that he shall not exercise it unless there are materials before him to enable him to form an opinion whether the debtor has means to pay. There was no such material before the county court judge in the present case; he was not, therefore, in a position to exercise his jurisdiction under the Act. Turning again to s. 103, sub-s. 5, we find it enacted that "the Court may, if it thinks fit, decline to commit, and in lieu thereof. . . . make a receiving order against the debtor." In my opinion that contemplates a case where a judge has jurisdiction to make a committal order, and also has materials upon which to exercise that jurisdiction; and it is only in such a case, where he has materials before him upon which a committal order may be made, that he has jurisdiction to make a receiving order "in lieu of" committing the debtor to prison. I think that the present case does not fall within s. 103, sub-s. 5, and that this appeal must be allowed. DARLING J. I agree. My only difficulty arises from the decision in Reg. v. Sussex County Court Judge. (1) It is clear, (1) 59 L. T. 32. |