dissenting.
I have not been able to give my assent to the judgment of the Court in this case. The proof was conclusive that the fixtures were a material part of the property rented. Indeed, in the nature of the case, the fixtures of a drug store, the drawers, shelves, etc., are a large part of the consideration, the room being wholly unfit for the business without them. At the fire, though the house was destroyed, the fixtures were, by the energy of the tenant, saved. It seems to me that there is neither justice nor law in permitting the landlord to resume control of these fixtures, and yet make the tenant pay the rent. In this way the landlord clearly *478gets pay during the rest of the year twice for his fixtures. It may be that by the strict terms of the contract the tenant has no legal right to take the fixtures off the premises, but it is equally true that by the terms of the contract the landlord lord parted also with the right to use them for the year. One has as much right to move them off the premises as the other. By misfortune it has happened that they can be of no use to either on the premises. In my judgment, under such circumstances, true equity would permit the tenant to take them until his term is out. At any rate, they are his for the year, and if the landlord, against the tenant’s consent, has in fact gotten the use of them, I think he ought to account to the tenant for the value of that use, and the defendant ought to have been permitted to recoup against the rent that value.
I am not sure either, under our law, which makes it the landlord’s duty to keep the premises in repair, that under the circumstances of this case, considering the time of the year, and the fact of the insurance, that the landlord ought to recover at all, after a reasonable time had elapsed for him to repair, and he had failed to do it, but as that point was not insisted on at the ‘trial, I do not put my dissent upon it.