Sim. 214; Fludyer v. Cocker, 12 Ves. 25.

(p) Ex parte Manning, 2 P. Wms. 410.

(q) Fludyer v. Cocker, and Att.-Gen. v. Christ Church, ubi supra.

(r) 2 Sw. 226; and see Portman v. Mill, 3 Jur. 356.

(s) See last note.

(t) Ex parte Manning, ubi supra; Owen v. Davies, 1 Ves. 82; Davy v. Barber, 2 Atk. 489, 490; Trefusis v. Lord Clinton, 2 Sim. 359; Sug 793 - 805; and see Champernowne v.

Brooke, 3 Cl. & Fin. 4; and Brooke v. Champernowne, 4 Cl. & Fin. 589; where the vendors' prima facie right to interest was excluded by the terms of the contract: and see Lewis v. Tucker, 5 Jur. 1105, V. C. W.; but see also Enraght v. Fitzgerald, 2 Dru. & W. 43, where interest seems to have been allowed only from the time when a good title could have been made.

(u) See Waldron v. Forester, cited Sug. 799.

It is, very deferentially, submitted that the above remark is scarcely pertinent to the principle upon which the rule may be supported; viz., that there is an increase, (not in the market price,) but in the actual quantity or quality of the subject-matter of the contract: the case, in effect, is this; the vendor agrees to sell the timber as existing at the time of contract, plus its future increase up to the date of the valuation, upon being paid the then estimated value of such timber and increase; he takes the chance of a rise or fall in the market value of timber as a commodity; and a fall, can, it is submitted, no more justify him in requiring interest prior to the valuation, (i. e., in effect an increase of purchase-money,) than an unexpected rise would warrant the purchaser in claiming a reduction of the purchase-money, upon the ground of its being of larger amount than he had anticipated.

Nor does it appear that, in the case of timber which has arrived at maturity, interest ought, as a general rule, to be paid prior to the valuation; for there has been no increase, nor any advantage to the purchaser: the case might, however, probably be different, if he had been the cause of, or consenting to, the delay in the valuation; or if, the chief value of the timber consisting in its ornamental character, he had been in possession of the estate.

The case of fixtures, agreed to be taken at a valuation, seems to be the converse of that of growing timber; they being a deteriorating property. Where they are of large value, the purchaser, if let into possession before the valuation, ought, it is conceived, to pay an occupation rent up to the date of the valuation; the case seems to be, conversely within the principle of Dyer v. Hargrave (w), where it was decided that when, upon the sale of leaseholds, the vendor retains possession after the time fixed for completion, he must pay an occupation rent to the purchaser, and receive interest upon the purchase-money.

Principle which should determine the liability.

Timber arrived at maturity.

Interest upon valuation of fixtures - occupation rent in respect of; and of leaseholds.

But where, upon a sale of the lease of a public house and the stock in trade, the purchaser wrongfully refused to perform the contract, and the vendors retained possession and carried on the business, the purchaser was compelled to pay interest on his purchase-money, and also all sums which the vendors had laid out for rent, taxes, and other necessary outgoings, with interest; and was not allowed to charge the vendors with an occupation rent (x). It may be observed of this case, that the vendors could not have discontinued the business without incurring the risk of the property being seriously depreciated while the completion of the contract yet remained uncertain: but it was, nevertheless, held on appeal, that they carried it on at their own risk, (and, it is presumed, for their own benefit,) subject to their liability to account to the purchaser for so much of the stock included in the contract as they had actually disposed of.

The cases do not seem to define satisfactorily what is a sufficient appropriation of money by the purchaser to relieve him from the liability to interest: in Winter v. Blades (y), the purchaser, upon entering into the contract, paid into his general account at his banker's a sum less than the purchase-money, but which, together with his existing balance, exceeded the purchase-money; and until completion his balance was never less than the purchase-money, except for a period of three days; and the Court discharged him from payment of interest, in respect of the difference between his average balance for the period between the date of his notice to the purchaser and completion, and his average balance for three years immediately preceding the contract: thus establishing, (apparently,) two principles; viz., first, that appropriation of a part of the purchase-money relieves the purchaser from payment of interest pro tanto; and secondly, that payment into his general banking account is an appropriation: the latter (if not the former) of which, seems to be disapproved of by Sir E. Sugden (z); and both appear to be questionable.

Vendors retaining possession of trade premises yet not held liable to occupation rent.

What a sufficient appropriation of purchase-money to relieve purchaser from interest.

(w) 10 Ves. 510. (x) Dakin v. Cope, 2 Russ. 176.

(y) 2 Sim. & St. 393.

Sir E. Sugden observes, "If the money was not actually and bond fide appropriated for the purchase, or the purchaser derived the least advantage from it, or in any way made use of it, the Court would compel him to pay interest;" if, therefore, the purchaser pay the money into a Bank at which he has an account, it is at least prudent to make the payment to a separate account; in many of the Joint-stock Banks interest, at a low rate, is allowed upon sums deposited; and it is conceived, that, in such a case, if the money were payable at call or upon short notice, the purchaser upon giving the usual notice to the vendor would escape liability in respect of the difference of interest.