Assignees, What passes to-Fire Insurance- -Construction of Statute-14 Geo. 3. c. 78. s. 83.—Houses and Buildings—Trade Fixtures covenanted to be left on the Premises.

The 83rd section of the 14 Geo. 3. c. 78, by which the governors and directors of insurance offices are authorized, upon the request of any persons entitled to any house or other buildings which may be burnt down or damaged by fire, or upon any grounds of suspi cion that the owners or occupiers or other parties effecting the insurance have been guilty of fraud or incendiarism, to cause the insurance money to be laid out in rebuilding, &c., is a general enactment, and is not limited in its operation to the metropolitan district.

Trade fixtures, put up by a tenant, being removable by him, are not comprised in the expression "house or other buildings" in the statute. Therefore where such fixtures are separately insured and destroyed by fire during the tenancy, the landlord is not entitled to have the insurance money laid out under the act; and a covenant by the tenant to deliver up the fixtures at the determination of the tenancy, was held, as conferring a mere personal right resting in contract, to make no difference in this respect.

This was an appeal from the decision of Mr. Commissioner Goulburn upon a special NEW SERIES, 34.-BANKR.

case stated for the opinion of the Court of Bankruptcy, under the 56th section of the Bankruptcy Act, 1861.

The bankrupt, John Barker, was formerly a carpenter, but for some time prior to his bankruptcy carried on the business of a licensed victualler at Dover, upon premises held under a lease from Mr. Charles Benjamin Gorely. The lease provided for the delivery up of the premises by the lessee with all fixtures, improvements and other additions, whether for the purpose of trade or otherwise, at the expiration or sooner determination of the term; and it also contained a covenant on the part of the lessee to insure and keep insured from loss by fire, in the name of the lessor, all the demised premises, and all buildings which during the continuance of the term might be erected thereon, in threefourths of the full value, and that all monies paid by the proprietors of the insurance offices by virtue of such policies should be forthwith laid out in reinstating the premises; and also a proviso for re-entry by the lessor and for the cesser of the term created by the lease on (inter alia) the bankruptcy of the lessee.

Subsequently to the granting of the lease Barker expended (as he alleged) about 1,370l. in converting one of the houses thereby demised from a beer-shop into an inn, in erecting a concert-room adjoining the inn, and in converting the other dwelling-house demised by the lease into two houses and shops.

B

On the 3rd of December 1862 Barker executed a mortgage of the premises comprised in the lease to Messrs. Leney & Evenden, brewers, of Dover, to secure 5001. advanced by them for the purpose of assisting him in making the alterations. Pursuant to the covenant in the lease, Barker insured the premises in the Alliance Fire Insurance Office in the sum of 1,000l.; and Leney & Evenden, the mortgagees, also insured the same premises in the Sun Fire Office for 5007., in pursuance of a clause in the mortgage-deed enabling them so to do.

Barker also effected an insurance with the Phoenix Insurance Office in the sum of 3501, on the stock and utensils in trade and fixtures in trade, gas and other fittings, and goods in trust in the inn and concert-room, 1507. on household goods, linen, printed books, wearing apparel, plate, watches, trinkets and mathematical and musical instruments therein, 3007. on the concertroom, and 1507. on the inn and two adjoining houses, making in all 950.

This policy, which was dated the 20th of February 1863, was effected by Barker in his own name, and so remained till the time of his bankruptcy: it never was assigned or deposited with the lessor or mortgagees, nor was any notice given to the office, prior to the fire after mentioned, of the policy having been deposited with the lessor or the mortgagees, or of any one being interested therein, or of any dealing therewith.

On the 2nd of March 1863 a fire occurred, by which all the premises and the stockin-trade, utensils and household goods mentioned in the policy of insurance were destroyed.

On the 25th of March 1863 the Phoenix Insurance Company paid to Barker 2007. on account of the loss of the stock and utensils in trade insured for 3501., being the first item mentioned in the above policy, and a further sum of 150l. in full for the loss of the goods comprised in the second item. But the company refused to pay the remaining sums of 150l. (representing fixtures in trade), the balance due upon the first item, 3007. upon the club or concert room, and 1507. upon the other premises, amounting to 6007, by reason of the claims of the mortgagees and the lessor, who had required that the monies

should be expended in reinstating the property insured, so as to secure their rights under the lease, and it was in respect of those items, forming together 6007, that the present questions arose. Soon after the month of March 1863, and after Barker had received the above sum of 3501. from the office, he absconded, and was not heard of until the month of September following.

Under an agreement, made on the 14th of August 1863 between the lessor and the mortgagees, the Alliance Company paid to the latter 1,000l. for which the premises were insured in their office under the covenant in the lease, and the lessor having withdrawn his notice to the Sun Fire Office, requiring the 500l. payable under the policy effected by them to be expended in reinstating the premises, the office paid to the mortgagees the amount insured by that policy.

The Phoenix Office also, about the same time, agreed, with Mr. Gorely's consent, to pay over the 6007. due from them under the policy of the 20th of February 1863, to the mortgagees, upon their indemnity, who were, under the agreement of the 14th of August, to employ the amount in reinstating the premises and fixtures.

On the 23rd of October a contract was entered into for the erection of three houses, a concert-room and other buildings, upon the land comprised in the lease, for the sum of 1,6591. This amount was further increased by charges for extras, disbursements, fixtures to be replaced, architect's commission and law costs, to the sum of 2,1287. 6s.

In the following month of November Barker's solicitors commenced an action against the Phoenix Company, for the recovery of the 600l. due from them upon the policy of the 20th of February 1863, and to prevent that sum being paid by them to the bankrupt, the mortgagees presented a petition for adjudication of bankruptcy against Barker, under which he was adjudicated bankrupt, the act of bankruptcy being his absconding from his creditors. The 600l. was received by the creditors' assignee, with the consent of the mortgagees, and they and the lessor claimed to have it laid out in the restoration of the premises.

The lessor, upon the bankruptcy of Barker, re-entered upon the premises under the proviso in the lease.

The principal question for the opinion of the Court, as stated by the case, was: whether the mortgagees or the lessor, or either of them, were entitled to either of the sums of 150l., 300l., and 150l., forming the 6007., or to have any and what part thereof laid out or expended upon the premises?

The determination of this question depended upon the construction of the 83rd section of the 14 Geo. 3. c. 78, taken in connexion with the preamble to the act.

The preamble is as follows: "Whereas an act of parliament made and passed in the twelfth year of his present Majesty's reign, intituled, An Act for the better regulation of buildings and party walls within the cities of London and Westminster, and the liberties thereof, and other the parishes, precincts, and places in the weekly bills of mortality, the parishes of Saint Mary-le-bon and Paddington, Saint Pancras, and Saint Luke at Chelsea, in the county of Middlesex, and for the better preventing of mischiefs by fire within the said cities, liberties, parishes, precincts, and places, and for amending and reducing the laws relating thereto into one act, and for other purposes, hath been found insufficient to answer the good purposes intended thereby: And whereas it may tend to the safety of the inhabitants, and prevent great inconveniences to builders, and workmen employed in buildings, within the said cities, liberties, parishes, precincts, and places, if the regulations contained in the said act were repealed and other regulations and provisions respecting such buildings were established by law."

The 83rd section is to the following effect: "And in order to deter and hinder ill-minded persons from wilfully setting their house or houses, or other buildings, on fire, with a view of gaining to themselves the insurance money, whereby the lives and fortunes of many families may be lost or endangered, be it further enacted, &c., that it shall be lawful for the governors and directors of the several insurance offices, and they are hereby authorized and required, upon request of any person or persons interested in or entitled unto any house or other buildings which may hereafter be

burned down or damaged by fire, or upon any grounds of suspicion, that the owner or owners, occupier or occupiers, or other persons who shall have insured such house or houses, have been guilty of fraud, or of wilfully setting their houses, &c. on fire, to cause the insurance money to be laid out and expended as far as the same will go towards rebuilding, reinstating or repairing such house or houses, or other buildings, so burnt down or damaged by fire; unless the party or parties claiming such insurance money shall, within sixty days next after his, her or their claim is adjusted, give a sufficient security to the governors or directors of the insurance office that the same insurance money shall be laid out and expended as aforesaid, or unless the insurance money shall be in that time settled and disposed of to and amongst all the contending parties to the satisfaction and approbation of such governors or directors of such insurance office."

The Metropolitan Building Act of 1844 (7 & 8 Vict. c. 84.) while repealing generally the 14 Geo. 3. c. 78, excepted from the repeal certain particular sections, including the 83rd section; and "the Metropolitan Building Act, 1855" (18 & 19 Vict. c. 122), while repealing the act of 1844, provides that the excepted sections of the 14 Geo. 3. c. 78. shall continue in full force.

The question was, whether the 83rd section of the act of Geo. 3. was to be considered as a general enactment, or as limited in its operation to the metropolitan district. The learned Commissioner held, that the section was confined within the limits mentioned in the preamble to the act, and consequently that neither the mortgagees nor the lessor were entitled to either of the sums of 150l., 3007., and 1507. forming the 600l., or to have any part thereof laid out or expended upon the premises.

The lessor and mortgagees appealed from this decision.

Mr. F. Meadows White, for the appellants. -The mischief intended to be reached by the 83rd section was general, and the remedy must be intended to be general also. There is no such difficulty as makes it necessary to refer to the preamble of the act for the construction of the section. In Filliter