the title was not changed, and the risk was not increased, without the knowledge of the defendant: that he did not in his proof of loss fraudulently misrepresent his interest, and it was not incumbent on him to state anything more than he did state: that at the time of the fire no person, other than himself, had any interest in or title to the property, or any right to the possession thereof; that any arrangement with Lynch, Winslow & Co., had been, on April 21, 1881, set aside, and cancelled by the order of the District Court of Virginia, and that he was at the time of the fire, and still was the proper person to collect, and receive the moneys sued for herein.

The case was heard at the Sittings of this Court at Hamilton, on the 13th April, 1882.

Among the witnesses examined was one Randolph Barton, who was examined as an expert in United States law, and who gave evidence to the following effect:

An assignee in bankruptcy is authorized to sell the real and personal estate at public auction, that is the extent of his jurisdiction. Acting under the authority of the Court, he can sell at private sales, and then he has to follow rigidly all that the Court prescribes, otherwise his proceeding is invalid. It is the constant practice of the Court to impose restrictions on the power of the assignee in selling privately, conditions precedent, and otherwise; he is a fiduciary selling under the direction of the Court. The instructions of the Court are embodied in the order of the Court under which the assignee acts. If he follows the instructions of the order, and there is no further qualification, he can carry out the sale; but if subject to ratification, or adoption by the Court, nothing would pass till the Court had favourably considered and approved of his action. The Court has power till the last moment to supervise, and change, and stop the transfer, till the deed is delivered and the purchase money paid; and this even after the ratification of the contract of sale, and the Court will, in some cases, set it aside entirely even at that stage. I have formed my view after speaking to Mr. Bump, and 44 VOL. I O. R.

after conference with other counsel, and I believe the authorities support me.

The following documents, proceedings, and dates were also proved :-Appointment of plaintiff as assignee by the District Court of West Virginia, in 1872; order of the said Court of May, 1876, ordering him to proceed to sell; agreement of sale to Lynch, Winslow & Co., dated May 20, 1880; policy of insurance sued on, dated September 30, 1880; order of the said Court, dated January 3, 1881, allowing the sale, and directing the plaintiff to carry it out in accordance with the agreement; order of the said Court of April 21, 1881, rescinding the sale, and directing the plaintiff to sell by public auction; fire to the premises insured, May 25, 1881; order of the Appellate Court of West Virginia, dated June 21, 1881, made on appeal from the above order of April 21, 1881, and restoring Lynch, Winslow & Co. as purchasers, and directing credit of the insurance moneys to them, as the result of a compromise. The remaining facts of the case sufficiently appear in the judgment.

C. Moss, Q.C., (Muir with him) for the plaintiff. Gill had unquestionably an insurable interest; he was asked for no details; he said the property was "his;" and there is an absence of fraud: Hartford Ins. Co. v. Harmer, 2 Oh. 452; Morrison v. Tennessee Ins. Co., 18 Miss. 262; Butler v. Standard Fire Ins. Co., 26 Gr. 341; S. C. 4 App. R. 391; Niblo v. North American Ins. Co., 1 Sand. 551; Fletcher v. Commonwealth Ins. Co., 18 Pick. 419; Curry v. Commonwealth Ins. Co., 10 Pick. 535; Strong v. Manufacturers' Ins. Co., 10 Pick. 40. Condition No. 1 relates to" title," not "interest;" the title was ours, we had the legal estate, if it was necessary to go so far as this; and the answer is true that the property was "his;" the material point is the power of the assignee over the property.

W. Cassels, (Laidlaw with him), for the defendants. The plaintiff has no interest in the property, and no right to

recover; the insurance money goes to the purchasers, Lynch, Winslow & Co., by order of the Court, and conveyance to the purchasers; Rayner v. Preston, L. R. 18 Chy. D. 1. The risk, moreover, was changed, even if it was not increased, by the putting in of further machinery. As to the title, the question is not whether the plaintiff had an insurable interest, but whether he made a true statement of his title; an assignee can deal as fully as the insolvent could, and the power of the Court is merely supervisory; he had the legal power to sell and convey: Crowley v. Hyde, 116 Mass. 589. By the order of June 17th, 1881, the contract of May, 1880, was revived; it in effect ratifies the sale as from its date. When the policy was obtained there was a valid contract of sale, and possession was taken under it by the purchaser; Stephenson v. Bain, 8 P. R. 166.

Moss, Q. C., in reply. The order of April 21st, 1881, swept away all previous matters, and left the assignee completely the owner at the date of loss. In Rayner v. Preston, the vendor insured before the agreement to sell. There is no evidence that the introduction of new machinery caused any increase of the risk. The question as to title is the main one. He also cited Washington Fire Ins. Co. v. Kelly, 32 Md. 421; Laidlaw v. Liverpool Ins. Co., 13 Gr. 377; Jarvis v. Cook, 29 Gr. 303; Gould v. British America Ass. Co., 27 U. C. R. 473, 478.

April 22, 1882. BOYD, C.-The chief question discussed was, whether a vendor who had agreed to sell for full value could effect an insurance upon the premises sold. The dictum of the Lords Justices in Rayner v. Preston, L. R. 18 Chy. D. 1, was relied on, in which they intimated an opinion in the circumstances of that case that the insurance company could recover the money from the vendor. It is to be observed that this dictum actually put the insurers. in action to recover from the vendor, but Mr. Justice Chitty, in Castellair v. Preston, L. R. 8 Q. B. D. 613, held that the action failed, and dismissed it, with costs. However, the

language of the Lords Justices is quite inapplicable to this case; and I have no doubt that the plaintiff, pending the contract of sale, had a perfect right to insure; and as his interest remained, certainly not less than before, at the time of the fire, he had a perfect right to recover the amount of the insurance.

The next question is, could he insure the premises describing them as "his," though he had contracted to sell? There was no application and answers in this case by the person seeking insurance, no inquiries being made by the company as to the nature or extent of his interest. I see no misrepresentation or misstatement in the plaintiff insuring the mill as "his." Pending the contract he remained. the legal owner, and before the fire the contract was annulled by the Bankruptcy Court. On this ground of defence the defendants fail.

The third contention is, that the position of the plaintiff as assignee in bankruptcy makes a difference from the case of an ordinary vendor, and that having contracted to sell the property he ceased to have any interest or be the owner. So far as I can come to a conclusion on the evidence and authorities cited as to the state of the law on this point in the United States, I think the objection is unfounded, and should be overruled: Insurance Company v. Updegraff, 21 Pa. St. 513. The insurable interest of such an assignee who contracts to sell is not less at all events than that of an ordinary vendor.

The last contention of moment was, that there was a change of risk and a change in the occupation or possession of the premises. I see no evidence of a change of occupation or possession; the same person was there as caretaker, and the premises were not used otherwise than as a mill. Nor do I think there was a "change of risk" within the meaning of these words. The only alteration was changing old machinery for new, which it is not shewn increased the hazard or changed the character of the insured premises. The connection of these words in the condition is: "If the risk be increased or changed by any means whatever." The

construction put upon analogous words by Wilson, C. J., in Ottawa Forwarding Co. v. Liverpool, &c., Ins. Co.,28 U. C. R. 522, commends itself to me as shewing that the term 'change' is used rather as a synonym of "increase" than as a word of different signification. The judgment is for plaintiff, with costs.

[CHANCERY DIVISION.]

VANKOUGHNET V. DENISON.

Sale of land-Restrictive covenant · —“Assigns”—Evidence-Innocent purchaser-Acquiescence.

Where D., the owner of certain lands on selling part to B., inserted this clause in the conveyance : "Bellevue Square is private property, but is always to remain unbuilt upon except one residence with the necessary outbuildings, including Porter's Lodge," and the purchaser on his part covenanted not to allow any business of a certain kind to be carried on on the part conveyed.

Held, that the benefit of the restriction passed to the assignee of the purchaser, as one of the advantages and privileges appurtenant to the land, though the word "assigns" was not there, and though the benefit of it was not formally transferred to him.

The locality and extent of this square being in question--Semble, that this being a matter of a quasi public nature in which a class of the people in the neighbourhood would be concerned, evidence of reputation wis admissible; and under the circumstances set out below, it was held that the square was sufficiently defined by such evidence. Where it is clearly intended to give some tangible benefit to a grantee by such a covenant in the conveyance to him, and it formed a part of the consideration which induced his purchase, the Court will go far to give effect to the language, whatever hardship may be occasioned to the party who has entered into the engagement.

Where the person who was building the house objected to, held under an agreement for a lease, but had made no outlay on the property till after notice was served on her, nor paid any rent,

Held, she was not in the same position as an innocent person holding for value under a completed instrument, and the erection of the house must be stopped.

Where the square had been built upon for years without objection by purchaser or his vendee, the plaintiff; but the building had been done by certain purchasers under a mortgage executed by D. before he conveyed to B.:

Held, no proof of acquiescence, as they could not have objected with effect.