ment 44. Nothing can be decided in the present case as to the right to this allotment after the death of the defendant. The plaintiffs succeed as to half and fail as to half, so that I direct that the parties abide their own costs. Judgment for the plaintiff as to allotment 45. Judgment for the defendant as to allotment 44. Solicitors, for plaintiffs, J. M. Smith and Emmerton; for defendant, John Hopkins.

IN CHAMBERS.

Before Hodges, J.

IN THE WILL OF BARTHOLD.

6th & 7th March.

Creditor's summons-Regulæ Generales 2nd June 1873
-Executor of unsound mind-Form of summons.
Application under rule 6 of Regula Generales, 23rd
June, 1873, for an order giving a creditor, one Free-
man, leave to issue a summons.

OF CASES

16,

HIS HONOR On the following day said. This was an application for a garnishee order absolute; the debt attached being less than £5. It has been my practice very frequently to refuse applications for orders nisi where the debts sought to be attached have been for small amounts, and I have acted on the opinion I had formed that it would be an abuse of the process of the Court, and oppresive to make orders in cases where the sum sought to be attached is so small that the judgment debtor would not, after costs have been provided for, be relieved from his debt, or from any appreciable part of it, and consequently would not have his debt diminished to any extent. Although such has been my practice, I knew of no direct authority for it. I now find that the learned counsel in the case of Harris v. Beauchamp Brothers, 1894, 1 Q.B. 801, during the argument at page 805, states the practice as follows:-"And it is not the practice at Chambers to order attachment of debts under £5, because the expenses in such a case amount to as much as the debt." This, it is true, is only in the argument of The facts appear sufficiently from the judgment. counsel, but it is not dissented from by counsel on the HIS HONOR Said I shall consider the matter. other side, and there is nothing in the judgment opHIS HONOR on the following day said.-An appli- posed to or at variance with it. I think the practice cation was made to me for a creditor's summons. It there stated is a good one, and one which ought to be appears that Barthold left a will and appointed an followed. In the present case, as the order nisi has executor, and that the executor took out probate to been granted, I shall make it absolute; but I shall the will. There is also a suggestion that the executor give no costs. is of unsound mind, and unfit to administer the estate, and that he has not been administering it. Under these circumstances, I think, I ought to grant the summons in a somewhat unusual form. I think it should call on the widow and next of kin to show cause why letters of administration with the will annexed should not be granted to the creditor during the lunacy of the executor, and should also call on the executor to deliver up the probate, which has been granted that it may be impounded in the office of the Master-in-Equity during the lunacy of the executor. On the return day, I think, there should be affidavits filed of such a character as to enable the Court to satisfy itself that the executor is a lunatic, and unable to continue the administration of the estate. The cases of In re Boyd, 11 V.L.R. 117, and In re Binckes, 1 Curtis 286 show, I think that this is the proper course to adopt. Proctors, for creditor, Strongman & Crouch.

Before Hodges, J.

COTTER V. MORAN ; COLLIS (Garnishee).

6th & 7th March. Rules of Supreme Court 1884, Order XLV., r. 1— Attachment of debts--Debt sought to be attached less than £5-A judge will not grant an order nisi to attach a debt, where such debt is less than £5. Garnishee order nisi.

The debt attached was less than £5.
There was no appearance for the garinshee.
HIS HONOR Said.—As the debt attached in the pre-
sent instance is very small, I shall consider what order
I shall make.

Solicitors, for judgment creditor, Williams and Matthews.

Before Hodges, J.

SETTER V. BELL.

11th March.

Rules of Supreme Court 1884, Order XLII., r. 32--Insolvency of judgment debtor-An order will not be made under this rule where the judgment debtor is insolvent.

Application on behalf of the plaintiff under Order XLII. r. 32 for an order for the oral examination of the judgment debtor as to any and what debts were owing to him.

Mr. Shiels, to oppose. In this case the judgment debtor is insolvent, and he may be examined before the Court of Insolvency. There can be no debts due to the debtor, and therefore this rule does not apply.

Mr. Meagher, in support.-This is a right given to a judgment creditor by the rule, and the fact of insolvency does not take away that right.

HIS HONOR said.-As the judgment debtor is now insolvent, all debts formerly owed to him are now vested in his assignee or trustee, and therefore, there can be no debts due to him within the meaning of the rule. If the judgment creditor wishes to make enquiries into the affairs of the judgment debtor he can do so in the Court of Insolvency. I refuse the application without costs.

Solicitors for judgment creditor, Hopkins; for judgment debtor, Gillman & Fyffe.

Cur. adv. vult.

Counsel referred to the following authorities-Re and alterations to, from, or in the works of the said Hohenzollern Actien Gesellschaft fur Locomotivban and contract, or for any work reasonably claimed by the The City of London Contract Corporation, 54 L.T., contractor for an extra, addition, enlargement, devia596; Hudson on Building Contracts, pp. 695, 702; tion or alteration to, from or in such works," or resGoodyear v. Mayor, &c. of Weymouth, 35 L.J. C.P. pecting other specified matters not affecting the present 12; Connor v. Belfast Water Commissioners, Ir. Rep. case the party dissatisfied may require that the claims 5 C.L. at p. 67; Russell on Awards, 7th ed. p. and demands "respecting any such extras, additions, 667; Hogg v. Burgess, 27 L.J. Ex. 318; Lamprell v. enlargements, deviations and alterations to or from Billericay Union, 3 Ex. 283. the said works" or respecting other specified matters not material to this case, shall be submitted and referred to arbitration. This clause is peculiar in its construction and language in its dealing with three subjects: (1) The subjects of dispute which are to be settled by the Inspector. (2) The subjects as to which dissatisfaction with his decision may arise and (3) The subjects which the party dissatisfied may refer. (1) is a general definition, (2) is a specification of a number of subjects upon which dissatisfaction with the Inspector's decision may occur, (3) is a specification of subjects which the dissatisfied party may refer to arbitration but in more general terms and omitting to specify some of the subjects specified in (2). Those subjects with which we are now concerned are described in (2) as any work reasonably claimed by the contractor for an extra, addition, enlargement, deviation or alteration to, from or in such works, and in (3) as "the claims and demands respecting any such extras, additions, enlargements, deviations and alterations to or from the said works." It will be observed that the material words "reasonably claimed by the contractor for an extra addition &c," are omitted in (3) so that unless the words "extras, additions, enlargements" in (3) will include what the contractor reasonably claims as such, authority to refer a dispute on this subject to arbitration is confined to such extras additions and enlargements as the contract provides for, and will not include what is reasonably claimed as such. We think that on a proper construction of the clause the words in (3) should be held to include what is reasonably claimed under (2). No reason can be assigned for expressing at length various subjects of dissatisfaction unless it was intended to provide that each of such subjects might be referred to arbitration. We think that in this instance the words above extracted giving the right to refer in (3) are large enough to include and do include what is reasonably claimed as an extra or addition as well as an undisputed extra or addition under the contract. We have not failed to observe the use of the word "for" instead of the word "respecting" in reference to the Inspector's decision, which is a verbal inaccuracy, suggesting an accidental omission of the words "respecting a claim" or some other slip in framing the clause, but it cannot have the effect of making insensible and inefficacious the words denoting an intention that the Inspector might decide upon and the person dissatisfied with his decision might refer a claim for work reasonably claimed by the contractor as an extra or addition. We have then to consider whether the claim submitted in this case was one of this character, and we decide that it was. affidavits in support of the motion do not suggest any dishonesty in relation to it. Payment is sought for

A'BECKETT, J. read the judgment of the Court :— This matter came before us on motion to set aside an award, on the ground that there was no valid submission as the claim, the subject matter of the award was not referable to arbitration under the provisions of the contract. Other minor grounds specified in the notice of motion as to the form of submission were not pressed in argument; and we do not consider it necessary to state the grounds upon which we disregard them. The contract was for the performance of work for reclaiming the Elwood Swamp, by raising the ground within a certain area to certain specified levels, by the deposit of material thereon to be brought there by the contractor. The contractor was to be paid according to the quantity of cubic yards of material to be deposited over this area, and the dispute referred, arose in respect of material deposited above the levels specified. The contractor contended that this should be paid for at the schedule rate, and the Board contended that it should not be paid for at all, as it was not work contracted to be done and was not ordered as an extra under any provision of the contract. On the Board refusing to pay, the contractor availed himself of the arbitration clause in the contract. The Board denied the right to refer, and refused to appoint arbitrators. Arbitrators were therefore appointed by the contractor, before whom the Board appeared under protest, and after hearing the evidence two of the arbitrators made there award in favour of the contractor for £2532 2s. 6d. It was argued before us that as the claim was made for work done without any obligation to do it under the contract or any request express or implied by the Board, it could not be brought within the agreement to refer. It was argued for the contractor that having regard to the subsidence to which the material was subject, the obligation of providing against this subsidence and the uncertainty as to the time at which the work would have to be measured up and taken off the contractor's hands, the mere fact that when measured, a certain quantity of material was found to be above contract level, was not necessarily conclusive as to the right to be paid for it under the contract and that a question arose, proper to be considered by arbitrators. Clause 33 of the contract is that which gives the right to refer. It provides that all claims and demands of every kind of the contractor against the Board or of the Board against the contractor under or arising out of the contract shall be settled by the Inspector-General, but if either party shall be dissatisfied with his decision 66 respecting any extras, additions, enlargements, deviations

The

bringing material upon the area to be raised of the same kind, and in the same way as material for which the contractor had an undoubted right to be paid. At the time this material was brought on, there was nothing which would afford the means of distinguish ing that which was to be paid for, from that for which payment is refused. The propriety of the refusal might depend upon the proper construction of the contract as to mode of measurement, time of measurement, trimming of the surface, subsidence and other incidents of the works and disputed facts as to these processes, all fair subjects of determination before it could be said whether the claim was un-cution could not be relied upon to support the alleged authorised. From the facts appearing in the affidavits, we consider that the arbitrators had jurisdiction to enter upon the matter, and it is, of course, unnecessary to consider whether they have rightly decided. No misconduct in the arbitration has been suggested. The objections to the award are based upon the alleged invalidity of the submission. We hold that the submission was valid and refuse with costs, the motion to set aside the award.

Solicitors, for G. Higgins, Madden and Butler; for Board of Land and Works, Guinness, Crown Solicitor.

SUPREME COURT.

Before Hood, J.

RE DE BEER MONTE & Co.

Feb. 14, 19. Insolvency Act 1890 (No. 1102) sec. 37 (V.)-Act of Insolvency-Partnership - Trading name-Judgment against firm-Execution unsatisfied by members.

A. and B. carried on business under a trading name.
A judgment was obtained by C. against them in their
trading name for a trading debt, and execution
issued against them under that trading name was
levied by seizure and the process had not been satis-
fied.
Held, that this was an act of insolvency within section
37 (V) of the Insolvency Act 1890, on the part of A.
and B.

Order for Sequestration.

An order nisi was obtained for the sequestration of the estate of Solomon De Beer and Mosé Montajees, trading as "De Beer Monte & Co." On the return of the order nisi an objection was taken on behalf of the respondents, that no act of insolvency was disclosed on the face of the proceedings. The other facts sufficiently appear from the judgment.

Mr. Irvine showed cause.
Mr. Duffy supported the order.

Cur. adv. vult. HOOD, J., read the following judgment.-Upon the return of an order nisi in insolvency in this case an objection was taken on behalf of the respondent that no act of insolvency was disclosed on the face of the procedings. The order nisi purports to be founded on sub-section V. of section 37 of the Insolvency Act. It recites that the respondents carry on business as De

Beer, Monte and Co., and that they are indebted to the petitioner in the amount of a judgment recovered against the said De Beer Monte and Co. It then alleges that execution issued against the said Solomon John De Beer and Mosé Montajees under the name of De Beer Monte and Co. on the aforesaid judgment had been levied by seizure and that such process had not been satisfied. It appears from this that the respondents were sued under the Judicature Rules in their trading name for a trading debt and that judg ment was obtained against them and execution issued in that trade name and it was urged that such an exeact of insolvency. This contention amounts to saying that the members of a firm cannot be made insolvent under this particular sub-section if the execution be taken out in the name of the firm, and in support of this view reliance was placed upon the case of ex parte Blain, 12 Ch. D. 522. At first I was much impressed by Mr. Irvine's argument based upon this authority, but further consideration has brought me to an opposite conclusion. In Blain's case it was decided that an act of bankruptcy must be a personal act or default and cannot be committed through an agent nor by a firm as such. But in the present case the question of agency does not arise as the default which constitutes the act of insolvency was the personal failure of each partner to satisfy the execution. The order nisi alleges an execution against the two still unsatisfied, and that means unsatisfied by the two or by either of them. In this view the very words of sub-section V. of section 37 have been complied with. An execution has been issued against the debtors; it has been levied by seizure and has remained unsatisfied for four days through the personal default of the respondeuts. The fact that the execution was not issued against the debtors under their own names, but under the name which they had assumed for their trade purposes does not seem to me to make any difference. There is an execution against them levied on their goods followed by their personal default in not paying and that in my opinion is all that is required. If there had been only one person trading under this firm name execution against him under his trade name would be sufficient to sustain this act of insolvency, and I can see no difference when there are several partners except that the default in paying must be the personal default of each, a matter which is I think to be assumed against the respondents on the face of these proceedings. I over-rule the objection and the order nisi will be absolute with costs.

Solicitors, for the petitioner, W. H. Lewis; for the respondents Westley and Dale.

Before Hodges, J.

IN THE WILL OF ROSS.

March 7.

Administration and Probate Act, 1890 (No. 1060) ss. 15, 16, 40, 43-Probate-Practice-Administration Bond-Foreign Letters of Administration -Dispensing with one of the sureties.

A died domiciled in South Australia, leaving property as asked, and accordingly will dispense with one of in that province and in Victoria. He had no debts the sureties to the bond.