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her possession the possession of her deceased husband who was tenant. I do not think that even the executrix, if she had taken out probate, would have represented the tenant for this purpose. But it is not necessary to decide that. In Braithwaite v. Cooksey (a) there was a lease for years, and the administratrix continued rightfully in possession under the lease after the death of the lessee; and how far in such a case they may be identified with the testator as one tenant is a question which, if it arose then, has not arisen since: and it does not arise in the present case, because, from the peculiar terms of the deed, there was a tenancy in which Turner was tenant at will in the strict sense of the term, and his adminis. tratrix never had anything in the tenancy. It is sufficient to say this distress is unlawful on the ground that it was not made during the possession of the person as tenant from whom the arrears became due.'

MELLOR J. I say nothing about Giles v. Walker (), as it is unnecessary to do so. I found my judgment upon the question whether the distress under the circumstances was lawful. At common law, a distress after the determination of the tenancy could not be made, and stat. 8 Ann. c. 14. came in to the relief of landlords in certain cases; but, to entitle the defendants to succeed under that statute, which enables landlords who have rent in arrear to distrain after the expiration of the term or interest of the tenant, they must bring themselves within the conditions in the 7th section, one of which is, that the distress must be made“ during the possession of the tenant from whom such arrears became due.” It is admitted that this was a tenancy at will which (a) 1 H. Bl. 465.

(6) 6 C. B. 662




expired on the death of the tenant, and therefore there was nothing for the administratrix to represent by her subsequent possession. I think the case of Braithwaite v. Cooksey (a) has been explained by my brother Crompton, supposing his suggestion to be correct as to the facts of it. At any rate that case is distinguishable, because the tenancy did not, as in this, expire with the death of the tenant; there was a period when in a representative character the administratrix occupied as tenant; and therefore her occupation might be considered the same as that of the tenant. In this case the tenancy or interest ceased on the death of the tenant, and on that ground the distress was unlawful.

CROMPTON J. I wish to add that the recital of sect. 6, to which my brother Blackburn has referred, is strongly in favour of our judgment as shewing that the mischief contemplated by the statute was one arising during the tenancy of the lessee himself. This recital, coupled with the condition in sect. 7, makes it clear to my mind that the statute was not intended to apply to cases where the tenancy was determined by the death of the tenant.

Judgment for the plaintiff. (a) 1 H. Bl. 465.


April 25th.

GRAINGER, KERR and others against MARTIN.

Marine insurance. Average or constructive total loss.

In June, 1859, the owners of a ship valued at 17,0001. caused themselves to be insured by policies in the usual form for 16,0001., from Bombay to Liverpool. When off Algoa Bay she encountered very severe weather, and sustained such damage that it became necessary to put into Port Louis, in Mauritius; and in January, 1860, the master, after correspondence with the owners in England, being left to act as he considered best for the interest of all parties concerned, sold her instead of having her repaired. The owners had bought the ship in 1855 for 20,0001., and 20 per cent. would be a reasonable deduction in respect of wear and tear at the time when the policy attached. The cost of building such a ship at that time would have been 20,0001.; and the cost of repairing her would have been 10,5001. Her value, after she had been repaired, would have been 75001., she being a vessel of exceptional size and class; but an owner wanting such a ship for the particular purposes of his trade, and having to elect either to sell, or to repair, or to purchase, would have elected to repair her, for such a vessel could not have been built or purchased at that time for so small a sum as 10,5001. On a case stated between the owners and an underwriter, the Court having power to draw inferences of fact: Held that the price of such a ship in the market after she was repaired was not the test of her real value, and that the inference from the facts was, that the cost of repairs would not have exceeded the value of the ship when repaired, and therefore the loss was an average loss only, and not a constructive total loss.

THIS was a case stated by an arbitrator by order of . a Judge without pleadings.

On the 4th June, 1859, the plaintiffs being owners of the ship Acadia, of which the plaintiff, H. H. Kerr, who owned one sixteenth · share in it, was master, caused themselves to be insured by policies of insurance, in the usual printed form, for 30001., from Bombay to Liverpool. The defendant underwrote the policy for 1001. (A copy of the policy accompanied the case.) By other policies the plaintiffs effected insurances on the ship for the same voyage for further sums, amounting in all to 13,0001., and making with the insurance above men




tioned 16,0001. In all the policies the ship was valued at 17,0001.

The Acadia sailed from Bombay for Liverpool in due course, under the command of the plaintiff, H. H. Kerr, with a general cargo. During the voyage, when off Algoa Bay, the vessel encountered very severe weather, and sustained so much damage that it became necessary to put into an immediate port, and the master accordingly bore away for Mauritius, and arrived at Port Louis, in that island, on the 21st August, 1859.

On the 23rd August a survey was held on the vessel, when it was found that she was making eleven inches of water per hour, and the surveyors recommended that the cargo should be discharged till the leak took up, and for further examination.

The discharge of cargo was accordingly proceeded with, and on the 8th September, 1859, the master wrote to Messrs. D. Grainger g. Son, of Belfast, the managing owners of the Acadia, a letter, which they received about the 10th October, 1859, and in which he gave a detailed account of the damage which the ship had met with, and estimates of the probable expenses of repairing and refitting her, as well as of landing the cargo, storage, drayage and reshipp ing.

On receipt of this letter, Messrs. D. Grainger & Son wrote to Captain Kerr a letter, dated the 15th October, 1859, which, after giving him certain instructions with respect to the ship and cargo, proceeded as follows: “We give you these instructions as the best that occur to ourselves, but under all the circumstances of the case we leave entirely to your own good judgment to act as you consider best for the interests of all concerned, and would particularly impress upon you to keep the interest




of underwriters in view. In conference with the underwriters of ship, it has been thrown out as a hint worth your consideration, that if you find that the necessary repairs cannot be satisfactorily done at Mauritius, or at a cost which from your previous experience you know would be double the cost at home, the ship should be cobbled up sufficiently to come home in ballast. In that case you must be most particular that the surveyors recommend this course to be most for the interest of all concerned, as otherwise you would not be justified in abandoning your freight and forwarding your cargo by other vessels. You must then take the earliest opportunity of advising us by what vessel the cargo comes forward, to enable us to give sufficient publicity for owners of cargo to protect themselves.

“Yours very truly,

(Signed) David Grainger & Son." On the 7th October, 1859, the greater part of the cargo having been discharged, a second survey was held on the ship; when the report of the surveyor stated that she still made one and a half inches of water an hour.

After the 7th October, 1859, the master obtained from The Mauritius Marine Yard and Dry Dock Company an estimate that the cost of executing the repairs mentioned in the surveyor's report of that date would not exceed 60001., but the Company declined to undertake to complete them for that sum.

On the 11th October, 1859, the master wrote to Messrs. D. Grainger & Son a letter, which reached them on the 8th November, 1859; with which he forwarded a copy of the surveyor's report of 7th October, 1859, and of the festimate, and informed them that, with such high costs before him for repairing the ship, he did not con.

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