Ex] JENNINGS AND WIFE v. THE LONDON GENERAL OMNIBUS COMPANY. cause to be tried in a County Court in default of security being given for the defendant's costs, or of satisfying the judge that the plaintiff has a cause of action fit to be prosecuted in the Superior Court, an appeal lies to the Superior Court. But such court, although entertaining an opinion that the cause is one which might be fit to be tried in the superior court, will not interfere with the decision of the judge at chambers unless it is of opinion that such decision is obviously wrong. THIS was a rule obtained by the plaintiffs, calling upon the defendants to show cause why an order of Martin B, made at chambers, referring this cause for trial to the County Court, should not be set aside. The action was brought to recover damages for an injury sustained by the female plaintiff in consequence of the alleged negligence of the defendants, whereby a collision took place on the 15th of September last, between an omnibus of the defendants', and a van of the male plaintiff's, whereby his wife, the female plaintiff, was thrown out of the van and injured. The defendants took out a summons under the provisions of sect. 10 of the 30 & 31 Vict. c. 142 (a) calling upon the plaintiffs to show cause why the action should not be remitted for trial before a County Court in default of their giving security for costs. At the hearing of such summons the defendants made affidavit that the plaintiffs had no visible means of paying the defendants' costs should a verdict be found for them, and they also produced an affidavit of a medical man throwing doubt upon the fact of the injury alleged to have been received by the female plaintiff. On the other hand, the plaintiffs produced the affidavit of another medical man asserting the fact of the injury. The ability to pay costs, however, was not asserted by the plaintiffs, and Martin B. made an order that unless the sum of 40l. was paid into court by the plaintiffs as security for costs, the action should be remitted to a County Court. It was to rescind this order that the present rule was obtained. Giffard, Q.C. showed cause. The question here is, whether the judge at chambers was so clearly wrong that the court will review his decision. It is for the other side to show that he was wrong. It is not because it is a disputed question of fact that it is more fit to be tried in a superior court than a County Court. The judgment of the judge at chambers upon the facts must be taken as conclusive. [BRAMWELL B.-It is a general rule that, unless there are words to the contrary, every order of a judge at chambers may be appealed from. You admit there may be an appeal, but that we must take the judment of the judge upon the facts (a) By this section it is enacted that "It shall be lawful for any person against whom. an action of tort may be brought in a Superior Court to make an affidavit that the plaintiff has no visible means of paying the costs of the defendant should a verdict be not found for the plaintiff, and thereupon the judge of the court in which the action is brought shall have power to make an order that unless the plaintiff shall within a time to be therein mentioned, give full security for the defendant's costs to the satisfaction of one of the masters of the said court, or satisfy the judge that he has a cause of action fit to be prosecuted in the Superior Court, all proceedings in the action shall be stayed, or in the event of the plaintiff being unable to give such security, or failing to satisfy the judge as aforesaid, that the cause be re. mitted for trial before a County Court to be therein named." [Ex. before him.] There is only one case upon the point, that of Owens v. Woosham (18 L. T. N. S. 35; L. Rep. 3 Q. B. 469). In his judgIment in that case the Lord Chief Justice says, "Upon the merits, as far as I can gather, these are very fit cases to be tried in a County Court; there is nothing shown either in the magnitude or importance of the interests involved, or even of any difficulty in point of law to satisfy us that the plaintiff has a cause of action fit to be prosecuted in the Superior Court." So in this case there is nothing which warrants the cause being tried in the Superior Court. The judgment of Blackburn, J., is to the same effect. He says: "As to the other points, I do not agree with Mr. Thesiger that the judge being satisfied is final; when there is an appeal from one court to another, the court of appeal must be satisfied also; and if we were satisfied on the affidavits that the plaintiff had a cause of action fit to be prosecuted in the Superior Court, I think we should be bound to rescind my brother Willes's order. But after hearing the arguments I am anything but satisfied of this." [BRAMWELL, B.-That case is somewhat of an authority against you.] It is really a question of what is a fit action to be tried in the Superior Court? The plaintiffs can obtain all the damages in the County Court that they could obtain in the Superior Court. [BRAMWELL, B.-Upon that reasoning, every cause might be sent there ?] Not cases involving questions of law. In this case it is clear that if the defendants get a verdict they will get no costs from the plaintiffs. M. Howard, in support of the rule. This is certainly a fit case to be tried in the Superior Court. The plaintiffs may desire a special jury and the assistance of Queen's Counsel. Can it be said that it is not a fit case for such a court ? The mere fact that the plaintiffs are not in a position to pay costs is not one which should deprive them of the right to have their action tried in a Superior Court. Although the doctors disagree as to the extent of the injury, it is not suggested that this is a fraudulent action. BRAMWELL, B.-This is certainly not a case in which I can decide perfectly satisfactorily to my own mind, for I must say that had I been sitting at chambers I don't think that I should have made the order. But the question is, whether we ought to set aside the order ? We ought, I think, to give the judge at chambers credit for having fairly considered the question, and of having come to a correct conclusion. There is another reason which influences me. I think that in this case the plaintiffs are just as likely to obtain justice in the County Court as in the Superior Court. I think, therefore, that this rule should be discharged, but without costs. PIGOTT, B.-If this case had come before me at chambers I might have entertained a contrary opinion to that entertained by the learned judge who made the order. But on appeal we ought to be satisfied that he was wrong. To be so, we must look at all the circumstances of the case. He had certain affidavits before him, and they place the facts in a conflicting point of view. Now although upon the whole I should not be disposed to say that because an action may turn out to be a trumpery one it ought to be sent to a County Court for trial, the judge ought certainly to have some credit given him for the way he has exercised his judgment. In such cases it is certainly very difficult to say what should be the test; but in this case I certainly cannot say that the learned judge was obviously wrong. Rule discharged wihout costs. Attorneys for the plaintiffs, Christmas. Attorneys for the defendants, Withers and Co. Jan. 26 and 27. MARTIN V. SMITH. Landlord and tenant-Agreement void as a lease for years for want of seal-Tenancy under-Occupation for full period of seven years-Covenant to paint in the last year of the term-Tenancy from year to year-Terms of void agreement applicable to-Construction-8 & 9 Vict. c. 106, s. 3. Under an agreement for a lease of the plaintiff's house for seven years, void as a lease under 8 & 9 Vict. c. 106, s. 3, for want of a seal, and in which one of the conditions was that the tenant would "paint the interior in the last year of the term," the defendant occupied and paid rent for the premises during the whole period of the seven years, but neglected to paint the interior in the seventh year; and in an action by the plaintiff against him for breach of that condition, it was, upon demurrer to the declaration, Held, that the condition to paint the interior in the seventh year of the term was not inconsistent with a tenancy from year to year, and that the defendant must be taken to have occupied as tenant from year to year, upon the terms that if his occupation should extend to the seventh year, he would comply with the covenant in the agreement to do what it was therein stipulated he should do in that year, and that, therefore, the covenant was binding on the defendant, and the action was maintainable. Parker v. Taswell (2 De G. & J. 559 : 27 L. J. 812, Ch.) approved. Tress v. Savage (4 E. & B. 36; 23 L. J. 339, Q.B.) undistinguishable in principle. THIS was a demurrer to a declaration in an action, brought by the plaintiff against the defendant, to recover damages for the breaches by the defendant of an alleged agreement (not under seal), dated the 15th Feb. 1866, whereby the plaintiff agreed to let to the defendant, and the defendant agreed to take from him, a dwelling-house and premises for a term of seven years, at the rent and on the terms and conditions in the said agreement mentioned. The declaration stated that by an agreement made by and between the plaintiff and the defendant, on the 15th Feb. 1866, the plaintiff agreed to let to the defendant, and the defendant agreed to take from the plaintiff, a dwelling-house and premises, being No. 8, Mornington-place, Bow, upon the following terms, amongst others-that is to say: Term, seven years from Lady Day 1866; rent, 50l., payable quarterly; tenant to pay sewers rate, main drainage rate, and all other rates and taxes, property tax excepted; also to maintain the said house and premises in repair, together with all drains, closets, pipes, taps, railings, stoves, bells, locks, keys, fastenings, windows, and other parts, and leave them in repair at the end of the term; also to paint two coats and grain, and twice varnish the interior in the last year of the term, with best materials and workmanship, also whitewash and colour. And the [Ex. defendant, pursuant to the said agreement, entered into and upon the said house and premises, and held and occupied the same, to wit, as such tenant from year to year thereof, subject to the aforesaid terms, or such of them as were applicable to the said tenancy, during the whole term or period of seven years aforesaid, which expired before this suit, to wit, on the 25th March 1873. And all conditions, &c., yet the defendant did not during the said tenancy maintain the said house and premises in repair, together with all drains, closets, pipes, taps, railings, stoves, bells, locks, keys, and fastenings, windows, and other parts; nor did the defendant leave them in repair at the end of the said tenancy. And secondly, the defendant did not paint two coats and grain and twice varnish the interior in the last year of the tenancy, with best materials and workmanship, nor did the defendant whitewash and colour as aforesaid. The defendant by his pleas denied the agreement as alleged; the alleged breaches and each and every part thereof; and, thirdly, demurred to the second breach assigned in the declaration on the ground that the term upon which the said breach was assigned was inconsistent with a tenancy from year to year. Joinder in demurrer, and issue joined on the pleas. W. English Harrison, for the defendant, argued in support of the demurrer.-The agreement here was in words of present demise, and would therefore be construed as, and have the operation of a lease; and it was also made in express terms for a longer term than three years. Now the Statute of Frauds (29 Car. 2, c. 3, ss. 1, 2) required that leases. of tenements or hereditaments, for any period exceeding three years, should be in writing, and by the 8 & 9 Vict. c. 106, s. 3, it was enacted that "all leases, required by law to be in writing, of any tenements or hereditaments, made after the 1st Oct. 1845, shall be void at law unless made by deed." This document, therefore, being not under seal nor by deed, was invalid and void. No doubt there might be an obligation upon the defendant, as a tenant from year to year, arising out of his having occupied and paid rent for the premises, and that yearly tenancy would be subject to all such terms and conditions of the agreement as were applicable thereto, and were not inconsistent therewith. But the stipulation here is to paint, &c., in the last year of the term, and that, it is submitted is a stipulation inconsistent with a tenancy from year to year; for the seventh year, to which it is, in express terms, applicable, might never have been reached, a tenancy from year to year being determinable at any moment by a six months notice. Beale v. Sanders (3 Bing. N. C. 850; 6 L. J., N. S., 283, C. P.) will, no doubt, be relied on as an authority by the plaintiff. The defendant in that case, having paid rent for several years under a void lease, was held liable to repair at the end of the term according to the covenant in the lease. But that case it is submitted, is distinguishable, because there there was a general covenant to repair; whereas here the covenant is particular to paint in a specified manner, and at a particular period. The stipulations are to be ascertained at the commencement and not at the end of the tenancy, there being no alteration of them during the tenancy. Here the stipulation was to do certain acts of repair in the seventh year of a term which, Ex.] MARTIN v. SMITH. [Ex. no doubt, the parties intended to create, but which in fact was not created by the agreement entered into between them. The E. Clarke, for the plaintiff, contra, in support of the declaration, cited Tress v. Savage (4 E. & B. 36; 23 L. J. 239, Q. B.); Bowes v. Čroll (6 E. & B. 255); Doe dem. Thompson v. Amey (12 A. & E. 476); Digby v. Atkinson (4 Campb. 275); Pistor v. Cater (9 M. & W. 315; 12 L. J. 129, Ex.); and contended that all these cases showed that the covenant was enforceable, if the tenant had occupied the premises for the entire term agreed upon, and had enjoyed the full benefit which he could have had under a valid lease. case of Pistor v. Cater (ubi sup.) is precisely in point upon that. Lord Abinger, C. B., there said (at p. 320 of 9 M. & W., and p. 131 of 12 L. J.), "The defendant having occupied for the whole of the term agreed upon, and having had the full benefit which he would have enjoyed under the lease, he cannot now say that the covenants are not binding because the lease was not granted." Beale v. Sanders (ubi. sup.) is also a strong case in the plaintiff's favour. [KELLY, C.B.-Pistor v. Cater and Beale v. Sanders were decided before the stat. of 8 & 9 Vict. c. 106; which of the cases that you have cited were decided after the passing of that Act?] Both Tress v. Savage and Bowes v. Croll were decided subsequently to the statute. In Tress v. Savage (ubi sup), which was a case of a void agreement for three years, it was held to be a tenancy from year to year, determinable during the term by half a year's notice; and if the tenant stayed on to the end of the time, then by the agreement of the parties he could go out without notice. In Bowes v. Croll (ubi sup.) the declaration was on an agreement to grant a lease for five years, and there was a contract to pay moneys at the end of the time; allegation that the defendant had occupied for the time. The defendant pleaded that no term had ever existed, and on demurrer the Court of Queen's Bench held that to be a good plea. In that case the very difficulty now put was suggested by Mr. Bovill in the course of his argument; and Erle, J. said: "If a party is let in, under an agreement for a term, and, no lease being executed, he becomes tenant from year to year, then he is tenant under such of the stipulations of the lease as are consistent with a tenancy from year to year;" and Lord Campbell, C.J. in giving judgment said that the court would look at the intention of the parties as expressed in the agreement. [KELLY, C.B.-The covenant in Bowes v. Croll was to pay a sum of money. What has that to do with a tenancy? PIGOTT, B.-Perhaps the effect of the agreement may be this: "If you will let me have your house for seven years, I will paint it for you at the end of the seventh year." Such an agreement, not being by deed under the statute, would not create a tenancy; but would not the agreement to paint be enforceable if the party had had the enjoyment of the house? The words of 8 & 9 Vict. c. 106 are not "void to all intents,' but only "void at law."] Precisely so; and on that account agreements, void as leases at law, under the statute, are often held to be good agreements in equity and specific performance will often be decreed (Parker v. Taswell, 2 De G. & J. 559; 27 L. J. 812, Ch., and also, per Lord Denman C.J., in Doe dem. Thompson v. Amey (ubi sup.), at p. 479 of 12 A. & E.) That would be the case here. The terms of the agreement were Vol. XXX, N. S., 755. : adopted by the parties and applied, so far as they were not inconsistent with it, to the actual tenancy. No doubt such a term as, for instance, to give a two years' notice would be inconsistent with a yearly tenancy, and therefore inapplicable. (See Tooker v. Smith, 1 H. & N. 732.) No such inconsistency, however, exists in an agreement between the parties that, if the relation of landlord and tenant continue for the whole term contemplated, then the landlord or tenant will do such and such acts, or pay such and such a sum of money. Moreover, the word "term is not to be construed in its strictest technical legal sense, but as meaning the period of years or time during which the tenancy or occupation was intended to and should continue. The declaration shows, and the pleas admit, occupation during the whole term intended to be created. Had it been a covenant to pay for the paint it would be within Bowes v. Croll. He cited also Young v. Austin (20_L. T. Rep. N. S. 396; L. Rep. 4 C. P. 553; 38 L. J. 233, C. P.) as showing that the declaration must be construed as assuming the agreement to be in writing. Then English Harrison in reply. The cases mainly relied on by the plaintiff may be distinguished. In Digby v. Atkinson, where the breach was that the defendant had not repaired according to the covenant, all that was decided was that the action lay. No question arose there whether, as in the present case, the terms of the contract were inconsistent with a tenancy from year to year. Beale v. Sanders, Pistor v. Cater, Tooker v. Smith, and Bowes v. Croll, which last was a peculiar case, really carry the plaintiff's contention no further. In all the cases cited contra the stipulations held to be binding were applicable alike to any year of the tenancy. Martin B. in Tooker v. Smith disposes of the difficulty arising from any supposed inconsistency. [KELLY, C. B, refers to Parker v. Taswell, in Chancery (ubi sup.), and to Tress V. Savage, in the Queen's Bench (ubi sup.).] The authority of the Chancery case is not disputed, and Tress v. Savage may be distinguished thus: That in that case it was a dispensing by anticipation with an obligation (the necessity of notice in the third year of the term) on the other party. But in the present case it is not a dispensing with, but an endeavour to enforce an obligation. Consistency or inconsistency is not a question of fact for the jury, but a question of law for the court, and, therefore, it is immaterial that the jury here have, as is relied on by the plaintiff, found that the term was, as a matter of fact, consistent. [KELLY, C.B. Why are we not to read this agreement as meaning that the defendant should paint in the last year of his tenancy if he should continue to occupy so long?] KELLY, C.B.-I think that the plaintiff in this case is entitled to the judgment of the court upon this demurrer. An agreement was here entered into between these parties, with words of present demise, for a tenancy during a term of seven years, at a certain rent, which was to be payable quarterly in each year, and certain acts were to be done by the tenant in each year, and particularly in the last year of the term he was to do certain repairs in painting, whitewashing, and colouring the premises, beside and beyond the yearly repairs. Now this agreement was void at law as a lease, under the statute of 8 & 9 Vict c. 106, s. 3, but the tenant, nevertheless, entered into possession and enjoyed the occupation of the premises during the whole period of the seven years, and a question therefore arises as to what are the liabilities of a tenant who has so occupied and enjoyed possession of premises under such a void agreement. It is clearly settled that, when a man enters upon premises under an agreement for a term of years which is void at law, he must be held to have entered as and to have been a tenant from year to year, and to be liable as such under all the stipulations and provisions of the agreement which are applicable to such a yearly tenancy. If it should be suggested that, inasmuch as the agreement is void at law, there was, therefore, no consideration for the promise by the defendant, such as the plaintiff here contends for, the answer to such an argument is to be found in the case of Parker v. Taswell (ubi sup.) which has been cited before us in the present argument. That case decided that, though void at law as a lease, such an agreement was good and valid as an agreement and enforceable in equity by a bill for a specific performance. In the present case, therefore, this agreement being enforceable in equity, there was a good consideration for the promises of the parties on either side. Then comes the question whether the term or covenant in the agreement that the defendant, the tenant, should paint the interior of the premises during the last year of the seven years' term, is or not applicable to a tenancy from year to year, which tenancy has in fact extended and continued throughout the whole of that period. I think that the case of Bowes v. Croll (ubi sup.) has nothing to do with the present question; the defendant, no doubt, was, during the whole of the period of seven years only a tenant from year to year, and the tenancy might have been determined by either of the parties at any time during that period by the giving of a half year's notice to quit; but, nevertheless, I am of opinion that, as the defendant continued to occupy and enjoy possession under the agreement for the whole period of the seven years, he must be held to have promised that, if he should so continue to occupy, he would comply with the covenant in the agreement, and do what that stipulated for his doing in the last or seventh year of the term, and, therefore, that he was bound to paint as contended for by the plaintiff. I am unable to distinguish this case from that of Tress v. Savaye (ubi sup.) where there was an agreement with words of present demise (which, like the present agreement, was void at law), dated the 17th Dec., for a tenancy, to commence on the 25th Dec., of land for a term exceeding three years; and where the question being whether the tenant was entitled to a six months' notice to quit at the end of the three years, it was held that the effect of the tenant's occupying under the agreement was that he had not a lease or a tenancy for three years and a week, but a tenancy from year to year, which during that time was determinable by a six months' notice; yet that nevertheless if he stayed to the end of the term, then, by the agreement of both parties, the tenancy would expire, and he would go out without notice. I see no distinction in principle between that case and the present, and therefore our judgment must be in favour of the plaintiff. PIGOTT, B.-I am of the same opinion. This agreement, no doubt, contemplated a term of years, and words of present demise are used. It was, however, void in law as a lease; but [Ex. the case of Parker v. Taswell is in point, as showing that, although void as a lease, it was nevertheless valid as an agreement, and that the defendant, the tenant, who had the benefit of the occupation for the whole specified period, might at any time have enforced its performance as a lease by a bill in equity. The defendant, therefore, was not merely a tenant from year to year, during his occupation. Having then had the full benefit of the seven years' occupation, there is nothing to prevent us from giving, as against the defendant, full effect to the intention of the parties and the operation of the seven years' term, by holding the defendant liable to the obligation to perform the stipulation with respect to painting these premises in the last year of the seven years, that being one of the terms under which he so continued to occupy these premises. CLEASBY, B.-I am entirely of the same opinion. It has been said that the covenant in question here to paint, &c., "in the last year of the said term," is applicable only to cases where a term of seven years existed according to law. But I do not think that that is so. The word "term," though used in this agreement, ought not to be construed, in my opinion, narrowly and in its strictly technical sense, but rather as meaning a space or period of time. In Bowes v. Croll (ubi sup.) Crompton, J., in his judgment (p. 265 of 6 E. & B. and p. 216 of 22 L. J., C. P.), says upon that very point," It is argued that they (the defendants) must occupy for a term of five years, and that this means a term created by a lease. I think that is a narrow construction. We have the authority of the Court of Common Pleas in Wood v. The Copper Miners Company (14 C. B. 428, p. 467; 17 C. B. 565; 23 L. J. 210, C. P.; 24 Ib. 34, C. P.) that in a similar case the words 'term of twelve years,' and 'term aforesaid' do not mean the term to be created by the lease in the technical sense of the expression, but that the true meaning of the word 'term' there is 'period' or 'space of time.'" Those remarks of that learned judge are very applicable to the present case in which obviously to my mind, the parties here intended to set up a term of seven years. And Erle, J., in his judgment in the same case (at pp. 263 of 6 E. & B.) says: "This falls within a class of cases which have repeatedly been before the court, where parties stand to each other in the relation of landlord and tenant, upon the understanding that a lease is to be granted, but, the lease not being granted, they go on in that relation for a long time; so that the question is, how many of the stipulations which were to have been introduced into the lease remain in force. If the agreement had been for a ninety-nine years' lease, and one of the intended stipulations of the lease was that the tenant should build during the term, it is manifest that he could not be called upon to build while he held for an uncertain time. So if there had been a stipulation that the tenant under 'the lease should repair, he would, if he held only from year to year, be bound only to tenantable repairs. The question always is, whether a stipulation is materially connected with the lease, which has not been granted." There can be no doubt that in the present case the intention of the parties was that defendant's occupation of the premises should continue during the whole period of seven years, on the same terms, and subject to the same stipulations as if a lease Wednesday, Jan. 30.1 IN THE SECOND DIVISION OF THE COURT. Trover-Vendor's lien-Action by purchaser of So long as the vendor of goods retains possession of THIS was an action of trover, which was brought The plaintiff was a dealer in cotton, and on the 15th Aug. 1873, he attended a sale by auction of a lot of salvage cotton that had been damaged by fire. The conditions of sale under which the cotton was put up to auction were, so far as is material to this report, as follows: "2. All the cotton as allotted is to be at the purchaser's risk as to fire, theft, disarrangement of lots, or loss in any respect, from the falling of the broker's hammer, and to be taken away before Saturday next, the 16th inst., at four o'clock p.m.; and if any should remain after that time the cotton remaining will be sold without notice, the deposit forfeited, and the loss (if any) to be made good by the defaulter. 3. A deposit of 50l. per heap, and 10l. per lot, to be paid at the time of sale of each lot, and payment of the balance in cash, less 1 per cent. discount, to be made immediately after at the broker's office, and before delivery of the cotton." The plaintiff bid for and became the purchaser of two lots of the said cotton-viz., lots 5 and 8-at such auction. The defendant bid for and became the purchaser at the same sale of lots 9 and 29 of the said cotton. The plaintiff paid the deposit on his lots, but did not pay the balance of the purchase money, nor did he take delivery of the cotton. On the next day (the 16th Aug.) he took away one of his lots-lot 5-from the field where the lots were lying, and where the auction had been held, and he then saw his other lot--lot 8-in the field, but did not then take it away. On the 18th Aug. he went again to the field for lot 8, when he found that it had been taken away, but that lot 9, which had [Ex. been purchased by the defendant, was still there. Subsequently to this the plaintiff identified a quantity of cotton in the defendant's possession as being a portion of the cotton of lot 8, which the plaintiff had purchased, and the defendant then stated that he had taken it by mistake for lot 9, which he (the defendant) had purchased. It appeared that there was little or no difficulty in distinguishing the plaintiff's lot 8 from the defendant's lot 9; each lot was labelled, and stood 3ft. apart the one from the other. Lot 8, it appeared, was more valuable than lot 9. The auctioneer stated in evidence that lot 8 had not been resold to anyone after the sale of it to the plaintiff. The plaintiff had still omitted to pay the balance of his purchase money. This was the conversion charged against the defendant in this action. The learned assessor, upon this state of facts, directed a nonsuit to be entered, on the ground that the vendor's lien for the plaintiff's unpaid purchase money prevented the latter from maintaining an action of trover; but he gave leave to the plaintiff to move this court for a rule for a new trial, if the court should be of opinion that the nonsuit was wrongly directed. Myburgh having obtained a rule accordingly on the part of the plaintiff, Gully, for the defendant, now showed cause against it, and contended that the plaintiff was not in a position to maintain trover, which was an action which required a right of present possession in the plaintiff in order to support it, and in this case, although the plaintiff had a right of property in the cotton, yet, as he had not paid the balance of the purchase-money, he clearly had no right of possession. (See the cases of Bloxam and another v. Sanders and others, 4 B. & C. 941; 7 D. & R. 396; Bradley v. Copley, 14 L. J., N. S., 222, C. P.; 1 C. B., 685; and Gordon v. Harper, 7 T. R. 9.) The right of possession was not in the plaintiff, but in the vendor, and the latter, having that right, could bring trover, but clearly the plaintiff could not, as it could not be that the defendant could be liable to both of them. If any action at all were open to the plaintiff it might be an action on the case, as in Mears v. The London and SouthWestern Railway Company (6 L. T. Rep. N. S. 190; 11 C. B., N. S., 850; 31 L. J. 220, C. P.). It might even be that, were the plaintiff now to pay or tender the price to the vendor, trover might perhaps be maintainable by him, but the lien of the vendor would be lost were the plaintiff to recover in this present action. By giving the vendor an indemnity, however, he might sue in his name, so that he is not left without remedy. (He cited also Milgate v. Kebble, 3 M. & G., 100; 10 L. J., N. S., 277, C. P.; Legg v. Evans and another, 6 M. & W. 36; 9 L. J. N. S. 102, Ex.) Myburgh, for the plaintiff, contra, supported his rule and argued that the cases cited on the part of the defendant did not go to the extent of saying that a vendee, who is entitled to goods subject to the vendor's lien cannot, bring an action of trover for them against a wrongdoer. The rule as to the right of possession of the vendor is a rule for his protection, as between him and the vendee, and it does not lie in the defendant, who is a bare wrongdoer, to take advantage of that right or set it up as a justification of his own wrongdoing. The plaintiff would be remediless if this action is not open to him. BRAMWELL, B.-I am clearly of opinion that this |