act and operation of law, within the statute of frauds, the landlord was not entitled either to bring an ejectment, or to recover double rent

Then it is said, that the defendant is entitled under this avowry to claim the single rent. It is true that if a defendant in replevin claims more than is due to him, he may recover what is due, provided that be part and parcel of that which he claims by his avowry. Here the defendant claims by his avowry double rent, which became due to him under the statute 11 G. 2. c. 19. s. 18. in consequence of his tenant's having holden over after having given a notice to quit. I think he may recover under the avowry any part of the double rent claimed; but that he cannot recover any single rent due to him by virtue of a contract made between him and his tenant, because such single rent does not constitute part and parcel of the rent which he claims to be due to him under the statute.

HOLROYD, J. I am of opinion that the claim for double rent cannot be supported; and that the defendant cannot recover the single rent under this avowry. The landlord does not claim the rent as due to him under a demise, but under the statute. In common cases where a landlord seeks to recover rent due to him under a contract, he may recover less than the sum which he claims, but in that case the sum which he does recover is part of the sum which he claims to be due by virtue of the contract. Here the landlord claims rent under the statute, and treats the tenant as a tort feasor, by reason *939] of his holding over after the expiration of the time mentioned in the notice to quit. I think he may, under the avowry, recover any part of the double rent which is due to him under the statute, but that he cannot recover any part of the single rent which is due to him under a contract. I think also that the notice to quit mentioned in the pleadings must be taken to be a notice for less than half a year, and that it was not, therefore, sufficient to determine a tenancy from year to year. The notice not having been given so much as half a year before the expiration of the current year, at the time when it was given another interest had vested in the tenant to continue for the remainder of that and the whole of the following year. This notice was not

binding, therefore, on the landlord or tenant, so as to enable the former to maintain ejectment. If an actual surrender of the tenant's interest were necessary in order to determine the tenancy, it is perfectly clear that such a surrender must be in writing. I am of opinion that there was not in this case any surrender by operation of law, because the tenant never yielded up the possession of the premises to the landlord, or to any person on his behalf. If, besides an agreement between the landlord and tenant, that the interest of the latter should be yielded up to the former at a particular period, there had also been an actual yielding up of the possession to another person, the law in that case might have worked a surrender. But then it would work such a surrender, not by reason of the agreement of the parties alone, but by reason of that agreement coupled with the change of possession. In Thomas v. Cook, 2 B. & A. 119, the tenant had yielded up possesion of the pre*940] mises to another person, and with his assent the landlord accepted that person as his tenant. But in this case there is only an agreement between the parties that the possession shall be delivered up. Now it would be directly contrary to the statute of frauds, to hold that such an agreement, not in writing, should take effect as a surrender. I have great difficulty in saying that there was any such agreement binding on the tenant. There could be no such agreement until the assent of the landlord to the notice to quit was made known to the tenant. Now it is not alleged that that assent was ever notified to the tenant; nor does it appear when the assent was ever given; it may not have been given until after the time mentioned in the notice to quit had expired, and if so there never was any agreement binding upon the tenant to deliver up the possession. But assuming that the assent of the landlord was given and notified to the tenant so that the legal effect of t might

be to make it operate as a surrender, it could only operate as an actual surrender; and in order to make it so operate it ought to have been shown that the assent of the landlord to the notice to quit was in writing. I am, therefore, of opinion that, notwithstanding the acceptance of the notice to quit by the landlord the tenant, in point of law, was entitled to hold for another year, and that being so entitled to hold for another year, he was not liable to pay double rent. The statute 11 G. 2. c. 19. s. 18. applies only to cases where he has the power to give a valid notice to quit binding upon him and the landlord at the time when it is given.

Judgment for the plaintiff.

*BLOXAM and WARRINGTON, Assignees of SAXBY, a Bankrupt,

v. SANDERS, et al.

[*941

A., a hop merchant, on several days in August, sold to B., by contract, various parcels of hops. Part of them were weighed and an account of the weights, together with samples, delivered to the vendee. The usual time of payment in the trade was the second Saturday subsequent to the purchase. B. did not pay for the hops at the usual time, whereupon A. gave notice that unless they were paid for by a certain day they would be re-sold. The hops were not paid for, and A. re-sold a part. with the consent of B., who afterwards became bankrupt, and then A. sold the residue of the hops without the assent of B. or his assignees Account sales of the hops so sold were delivered to B., in which he was charged warehouse rent from tho 30th of August. The assignees of B. demanded the hops of A. and tendered the warehouse rent, charges, &c.; and A. having refused to deliver them, brought trover. The jury found that defendant had not rescinded the contract of sale: Held. that the assignees were not entitled to maintain trover to recover the value of the hops, inasmuch as in order to maintain that action, the party must have not only a right of property but a right of possession, and that although a vendee of goods acquires a right of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price.

TROVER to recover the value of a quantity of hops from the defendants. At the trial before Abbott, C. J., at the London sittings, after last Trinity term, the jury found a verdict for the plaintiffs, damages 3000l., subject to the opinion of this court upon the following case:

The plaintiffs were assignees of J. R. Saxby, a bankrupt under a commission of bankrupt duly issued against him on the 5th of January, 1824. The act of bankruptcy was committed on the 1st of November, 1823, the bankrupt having on that day surrendered himself to prison, where he lay more than two months. The defendants were hop factors and merchants in the borough of Southwark. Previous to his bankruptcy the bankrupt had been a dealer in hops, and on the 7th, 16th, and 23d of August purchased from the defendants the hops (among others) for which this action was brought. Bought notes were delivered in the following form: Mr. John Robert Sarby, of Sanders, Parkes, & Co. T. M. Simmons, eight pockets at 155s. 8th August, 1823." Part of the hops were weighed, and an account of the weights was delivered to Saxby by the defendants. The samples were given to the bankrupts, and bills of parcels were also delivered to him in which he was made debtor for six different parcels of hops, the amount of which was 7391.

[*942

The usual time of payment in the trade was the second Saturday subsequent to a purchase. Part of the hops belonged to the defendants, and part they sold as factors, but they sold all in their own names, it being the custom in the hop trade to do so. It was proved that the bankrupt had said more than once that the hops were to remain in the defendants' hands till paid for and that he said so when he was about buying one of the parcels of hops for which the action was brought. The bankrupt did not pay for the hops, and

on the 6th of September, 1823, the defendants wrote to the bankrupt, and desired him to "take notice, that unless he paid for the hops they had sold him, on or before Tuesday then next, the defendants would proceed to resell them, holding him accountable for any loss which might arise in consequence hereof." Before the bankruptcy the defendants did not sell any parcel of hops without the bankrupt's express assent. After the notice already stated the defendants sold some parcels of the hops, but in one instance the bankrupt refused to allow the defendants to sell a parcel of hops to a person named by them at the price offered, and that parcel was accordingly sold by the defen dants, before Saxby's bankruptcy, to another person by Saxby's authority. On another occasion in the month of September the bankrupt had employed a broker to sell another parcel of the hops, but the defendants refused to deliver them without being paid for them. After the act of bankruptcy the defendants sold hops of the bankrupts to the amount of 3807. 198. 5d. The defendants delivered account sales of the hops so sold by them after the bankruptcy. The hops were *stated to be sold for Saxby, and he was charged ware*943] house rent from the 30th of August, and also commission on the sales. Besides the hops purchased from the defendants, the bankrupt placed in their warehouse nineteeen pockets of hops for sale by them (as factors,) of which fifteen pockets were sold on and after the 13th of January, 1824, of the value of 771. 19s. 5d., and of which four remained in their warehouse at the time of the trial, which four were of the value of 147., and there were also unsold of the hops purchased from defendants seven bags, fifty-six pockets, of the value of 2517. 13s. 6d. There was a demand by plaintiff's of these hops, and a tender of warehouse rent and charges, and a refusal on the part of the defendants to deliver them, before action brought. The jury found that the defendants did not rescind the sales made by them to the bankrupt. This case was argued at the sittings before last term, by

Evans, for the plaintiffs. The assignees are entitled to recover the full value of all the hops. As to the nineteen pockets which were the property of the bankrupt, and which the defendants held as factors, there is no pretence for saying that the assignees are not entitled to recover the full value of them. As to the remainder, they were sold to the defendants, to the bankrupt upon credit, to be paid for according to the usage of the trade, on the second Saturday, after the sale. The property in the goods vested by the sale immediately in the bankrupt. In Comyn's Digest, tit. Agreement, B. 3, it is laid down, "If a man agree for goods at such a price, the bargain shall be void if the money be not paid immediately. For in every bargain *payment *944] ought to be made upon the delivery of the goods, except where a future day is agreed upon for the payment.' And If a sale be of goods for such a price, and a day of payment limited, the contract will be good, and the property altered by the sale, though the money be not paid." Dyer, 30, a., and other authorities are cited. Rugg v. Minett, 11 East, 210, and Hanson v. Meyer, 6 East, 614, are authorities to the same effect. The hops remained in the defendant's warehouse, but the bankrupt was charged warehouse rent from the 30th of August. From that time, therefore, the hops must be considered as much in his possession, as if he had removed them to his own premises, Hurry v. Mangles, 1 Campb. 452, Harman v. Anderson, 2 Campb. 243. Then looking at the written contract only, the plaintiffs having the right of property and the right of possession at the time of the sale by the defendants, are entitled to recover in trover the full value of the goods sold. But it will be said that although the contract, on the face of it, purports that the hops are to be delivered immediately, the parol evidence was admissible to show that they were not to be delivered until paid for. That would have the effect of varying the written contract, and therefore, was not admissible. [Bayley, J. There is nothing on the face of the contract to show that the hops were sold on credit.] It was the general usage of the trade, and might

[*945

therefore, be proved by parol, although not expressed in the written contract, Charleton v. Cotesworth, 1 Ryan & M. 175, Uhde v. Walters. 3 Campb. 16 Gabay v. Lloyd, 3 B. & C. 793, Palmer v. Blackburn, 1 Bing. 61, Meres v. Ansell, 3 Wils. 275, Hughes v. Statham, 4 B. & C. 187. [*Bayley, J. If parol evidence of the usage was admissible, why were not the declarations of the bankrupt admissible, to show that the hops were not to be taken away until paid for? The rule as to giving parol evidence of the usage of trade does not apply to that, but assuming that the defendant once had a lien, it arose by special agreement, and was destroyed by the sale; he is, therefore, liable to account to the assignees, Parry v. Dawson, 3 Anstr. 710, Sweet v. Pym, 1 East, 4. [Littledale, J. In Langford v. Tiler, 1 Salk. 113. Holt, C. J., says, "that after earnest given the vendor cannot sell the goods to another without a default in the vendee; and therefore, if the vendee does not come and pay and take the goods, the vendor ought to go and request him; and then if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person."] Here the jury have found that the contract was not rescinded, the defendants, therefore, had at most but a strict lien; and having wrongfully sold the goods, they are liable to pay the full value in this action, and must treat the price as a debt due from the bankrupt. [This point was elaborately argued, but the court pronounced no opinion upon it. Combie v. Davies, 7 East, 7, Solly v. Rathbone, 2 M. & S. 298, and Graham v. Dyster, 6 M. & S. 1, were cited.]

Abraham, contra. It must be admitted that the plaintiffs are entitled to recover the value of the nineteen pockets of hops which the defendants had in their possession as factors. As to the others, the vendee having [*946 become insolvent, the vendors were entitled to stop them before they got into the actual possession of the vendee, and the latter had no right to the possession until he paid the price. Secondly, parol evidence was admissible. to show that the goods were not to be delivered until the price was paid, inasmuch as it did not contradict the written agreement, but was merely an answer to that which was sought to be added to it by parol, Wiglesworth v. Dallison, Doug 201, Senior v. Armitage, Holt's N. P. C. 197. At all events the plaintiff not having paid the price, can recover only nominal damages.

Cur, adv. vult.

This was an action

BAYLEY, J., now delivered the judgment of the court. of trover for certain quantities of hops sold by the defendants to Saxby, before his bankruptcy, and for certain other hops which Saxby, had placed in defendant's warehouses, that defendants in their character of factors might sell them for his use, and the question as to this latter parcel stands upon perfectly distinct grounds from the question as to the others. This parcel consisted of nineteen pockets; defendants sold none of them until after Saxby's bankruptcy, and then they sold fifteen pockets, not for the use of the assignees, but to apply the proceeds, not for any debt due to them in their character of factors, but to discharge a claim they considered themselves as having upon Saxby, in regard to the other hops; and the other four pockets they refused to deliver to the assignees. It was *candidly admitted upon the argu[947 ment, and was clear beyond all doubt, that the defendants were not warranted in applying the proceeds of the fifteen pockets, to the purpose to which they attempted to apply them, and that they had no legal ground for withholding the four pockets; and therefore, to the extent of these nineteen pockets, the value of which is 917. 19s. 5d., we think it clear, that the plaintiff's are entitled to recover. The other quantities were hops, Saxby, had bargained to buy of the defendants on different days in August, 1823, and for which defendants had delivered, bought notes to Saxby. The bought notes were in this form: "6 Mr. J. R. Saxby, of Sanders, Parkes, & Co., T. M

Part of the hops

Simmons, eight pockets at 155s., 8th of August, 1823." were weighed, and an account delivered to Saxby, of the weights, and samples were given to Saxby, and invoices delivered. The bought notes were silent as to the time for delivering the hops, and also as to the time for paying for them, but the usual time for paying for hops, was proved to be the second Saturday, after the purchase. It was also proved that Saxby, had said that the hops were to remain with the defendants, till they were paid for; but as the admissibility of such evidence was questioned, and in our view of the case it is unnecessary to decide that point, I only mention it to dismiss it. (The learned Judge, then stated the other facts set out in the special case, and then proceeds as follows.) Under these circumstances the question is, whether in respect of these hops, the plaintiff's are entitled to recover. It was urged, on the part of the plaintiffs, that the sale of these hops, vested the property in them in Saxby; that the hops were to be considered as sold *upon credit, and that defendants had no lien, therefore, upon any of *948] them for the price; that if they ever had any lien, it was destroyed as to those they sold by the act of sale, and that the plaintiff's were entitled to recover the full value of what were sold, without making any deduction for the price which was unpaid. It is, therefore, material to consider whether the property vested in Saxby, to any and to what extent; and what were the respective rights of Saxby, and of the defendants. Where goods are sold, and nothing is said as to the time of the delivery, or the time of payment, and every thing the seller has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded upon payment of the price; but the buyer has no right to have possession of the goods till he pays the price. The buyer's right in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion, and payment or a tender of the price is a condition precedent on the buyer's part, and until he makes such payment or tender he has no right to the possession. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession, Tooke v. Hollingsworth, 5 T. R. 215. Whether default in payment when *the credit expires, will destroy his right *949] of possession, if he has not before that time obtained actual possession and put him in the same situation as if there had been no bargain for credit, it is not now necessary to enquire, because this is a case of insolvency, and in case of insolvency the point seems to be perfectly clear, Hanson v. Meyer, 6 East, 614. If the seller has dispatched the goods to the buyer, and insolvency occurs, he has a right in virtue of his original ownership to stop them in transitu, Mason v. Lickbarrow, 1 H. Bl. 357, Ellis v. Hunt, 3 T. R. 464, Hodgson v. Loy, 7 T. R. 440, Inglis and Others v. Usherwood, 1 East, 515, Bothlingk v. Inglis, 3 East, 381. Why? Because the property is vested in the buyer, so as to subject him to the risk of any accident; but he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats that right. And if this be the case after he has dispatched the goods, and whilst they are in transitu a fortiori, is it when he has never parted with the goods, and when no transitus has begun. The buyer, or those who stand in his place, may still obtain the right of possession if they will pay or tender the price, or they may still act upon their right of pro perty if any thing unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury; but they can maintain no action in which