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1866.

WILSON

v. NEWPORT Dock Co.

Now as

time when the wind was blowing a hurricane, which from his evidence seems to have been the case, and from which charge of imprudence the verdict of the jury has not relieved him. The result might be a compromise which we are confident the Court would not, and which we think they ought not to disturb.

We think we are not able to determine from the materials before us, whether or no the loss was occasioned by circumstances which, according to the case of Hadley v. Baxendale and the other authorities would make the Dock Company liable for the damage the sbip sustained. If the state of the weather was the efficient cause of the loss we think the defendants are not liable.

to the state of the wind the evidence of the mate is—"not much wind-blowing pretty stiff, a fresh breeze.” The evidence of the captain was,

, It was only a few hours before a perfect hurricane." James Dunster, the master rigger, says, It was blowing so hard it would not have been safe to take her into deep water.” If the weather was such that on being excluded from the dock she had no alternative but to perish on account of the gale or hurricane, which seems to me to have been the opinion of the master, then it may be doubted whether she ought to have been taken to the dockgates at all in such a state of the weather, and the opinion of the jury by a verdict should have been obtained on these and other circumstances, and the verdict ought to have been found by them on a larger issue than whether the master and the pilot did their best after they found the vessel could not be received into the dock, which I

, take to be the only finding of the jury. It is clear that the pilot thought the master was obstinate and determined to do nothing to save the ship. We cannot find the defendants liable to this damage, because the jury were disposed to relieve the captain and the pilot from the

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1866. odium of a charge of negligence; the verdict of the jury

ought to have gone more into the merits in order to fix WILSON

the defendants with these damages; what the jury did not NEWPORT Dock Co. find and could not agree upon was quite as important as

what they did find, and the result of their verdict seems to be—We cannot agree as to the liability of the defendants but we desire to throw no blame on the captain or the pilot."

We are therefore of opinion that the jury have not found enough in point of fact to enable us to decide that the verdict entered for the plaintiff is what would have been their verdict, or (referring to the evidence actually given) ought to have been, if the entire case had been left to them to find a verdict for the plaintiff or the defendant. Looking at the evidence and the finding of the jury, we cannot come to any conclusion that would make the defendants responsible for the damage done to the vessel. If there was any place of safety to which the vessel might have been taken and could have been taken (which we think is included in the learned Judge's question), we think the plaintiffs are not entitled to recover. The jury could not agree on an answer to this question. If they had found this question in the affirmative, we think the plaintiff was clearly not entitled to recover, and we presume the Judge would have directed a verdict for the defendants, but after many hours they could not agree. It is plain that some of the jury were of opinion in the affirmative. It is true that they found that neither the captain nor the pilot were guilty of negligence, but we think it very uncertain what they meant by that finding; they certainly did not mean by that finding inferentially to decide the other question, or they would have found it and not ultimately disagreed about it. If there was a safe place to which the vessel might and ought to have been taken, a verdict for the plaintiff would be a great act of injustice, and we

1866.

WILSON

0. NEWPORT Dock Co.

are invited to find this for the jury by a process of reasoning, when the jury would not, apparently could not, and certainly did not find it for themselves.

As to entering a verdict for the defendant, there is a similar difficulty (though perhaps not so great, because if the plaintiff does not establish his case the defendant is entitled to a verdict), but we think we cannot be certain what would have been the verdict of the jury if they had gone into and had decided upon the whole case for themselves. We think, therefore, there ought to be a new trial.

Rule for a new trial.

IN THE EXCHEQUER CHAMBER.

(Error from the Court of Exchequer.)

OAKLEY v. MONCK.

Feb. 7. ERROR on the judgment of the Court of Exchequer Where a

lessee, after in making absolute a rule to enter the verdict for the de- the expiration

of his lease,

The fendant, pursuant to leave reserved at the trial.

remains in pleadings and facts fully appear in the report of the case possession

and pays rent in the Court below, 3 H. & C. 706.

it is a question for the

jury upon O'Malley (with whom was Merewether (a), now argued what terms

his tenancy

continues. A tenant for life granted a lease containing a covenant that he would, at the expiration of the term, pay and allow the lessee, a nurseryman, for all fruit trees and shrubs then on the premises, which had been planted by him. At the expiration of the lease, the lessee con. tinued in possession and paid rent, and upon the death of the tenant for life he paid the same rent to the remainderman, who was not aware of the covenant in the lease.- Held, in the Exchequer Chamber (affirming the judgment of the Court below), that there was no evidence for the jury that the tenancy continued upon the terms of the lease so as to bind the remainderman by the covenant.

(a) Before Willes, J., Blackburn, J., Keating, J., Mellor, J., Montague Smith, J., and Lush, J.

1866.

for the plaintiff.—The argument was in substance the same as the Court below, and the same authorities were cited.

OAKLEY

MONCK.

Keane (Douglas Browne with him) appeared for the defendant, but was not called upon to argue.

WILLES, J.-We are all of opinion that the judgment of the Court below ought to be affirmed. It is impossible to read the case without feeling that some hardship may be sustained, inasmuch as property which the intestate might have removed, under the ordinary rule respecting fixtures, if he had taken the proper course at the proper time, may be lost to his estate. If, however, any equity arises out of the transaction, that will be a subject for the consideration of the defendant. Whether any allowance ought to be made to the plaintiff, in respect of the fruit trees, is a matter of good conscience, and cannot affect the legal question which he has raised by insisting that under the terms of the original lease the defendant is bound to take the trees and

pay

for them at a valuation. The question for our consideration is whether the defendant has so conducted herself, and to be under an obligation to fulfil terms corresponding with those of the covenant in the lease. The covenant is to this effect,that all fruit trees brought by the lessee upon the land and remaining there at the expiration of the lease shall be taken by the lessor and paid for upon a valuation. The lessor was tenant for life, and the lease having expired the lessee did not insist upon the performance of the covenant, but continued to occupy the land at the same rent and upon terms corresponding with all the covenants in the lease not inconsistent with a tenancy from year to year. Probably, though it is not necessary to give an opinion on that point, if the landlord had determined the tenancy by

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a notice to quit, the tenant would have been entitled to
call upon him to pay for the fruit trees. The landlord
died, and then the tenant had a right to call upon his
personal representative to take the trees at a valuation
(assuming the covenant not inconsistent with a tenancy
from year to year); or he might have exercised the ordi-
nary right of a tenant to remove at the expiration of his
term all property in the nature of tenant's fixtures. But,
instead of taking either of those courses, the tenant pre-
ferred reinaining in possession and paying rent to the
defendant, which he did until his death. There is nothing
in the case to prove that the defendant took upon herself
the burther of the covenant in the lease, or any similar
contract. The first tenancy from year to year was deter-
mined by the death of the original landlord, and a new
tenancy from year to year was created; for though it
would be popularly called a continuing tenancy, it was in
point of law a new demise. There is nothing to shew
that it was part of the terms of that tenancy that the
defendant should pay for the fruit trees. The impro-
bability that a tenant for life should enter into such
a contract is pointed out by my brother Bramwell in
his judgment in the Court below. It is expressly found
that nothing passed as to the terms upon which the
occupation was to continue, and we must assume that
there was no knowledge on the part of the defendant
pot only of the covenants in the lease, but of the existence
of the lease.

Then what is the conclusion resulting from that state of facts ? The defendant agreed that the original tenant should continue to hold and pay rent, and, no particular terms being mentioned, we must assume that it was a tenancy from year to year subject to the usual terms, according to the custom of the country. It is said that a

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