(l) Carrodus v. Sharp, 20 Beav. 56; Midgley v. Coppoek, 4 Ex. D. 309; Re Bettesworth and Richer, 37 Ch. D. 535; Tubbs v. Wynne, 1897, 1 Q. B. 74; Barsht v. Tagg, 1900, 1 Ch. 231; Stock v. Meakin, ib. 683; see Egg v. Blayney, 21 Q. B. D. 107.

(m) See above, p. 46.

(n) This is the rate usually allowed in equity; Sug. V. & P. 643; 2 Dart, V. & P. 627, 5th ed.; 708, 6th ed.; 650, 7th ed.; 1 Davidson, Prec. Conv. 575, 576. 4th ed.; 483, 5th ed.; Re Davy, 1908, 1 Ch. 61.

(o) Paine v. Meller, 6 Ves. 349, 352; Hardwicke v. Sandys, 12 M. & W. 761; Monro v. Taylor, 8 Hare, 51, 70, 3 Mac. & G. 713, Sug. V. & P. 627.

(p) M'Namara v. Williams, 6 Ves. 143; see below, Chap. XI. Sec.1.

(2.) If the vendor shall he in occupation of the property sold, he shall pay a fair occupation rent from the proper time for completion until the time of actual completion (q).

(3.) If the delay in completion shall be attributable to the vendor, and the purchaser shall appropriate his money to the purchase by depositing it in a bank or otherwise, and giving the vendor notice of such appropriation, the purchaser shall, as from the time of such appropriation, pay no more interest on the purchase-money, except such interest, if any, as he shall receive in respect of such deposit (r); but if the delay in completion shall be attributable to the purchaser, the purchaser shall not be exonerated from his liability to pay interest on the purchase-money by any such appropriation of his money to the purchase (a).

We have already briefly described the contracting parties' remedies by application to the Court (t). It remains to inquire whether, in the absence of express stipulation, a vendor of land has the right to re-sell, in case the purchaser make default in performing the contract. This appears exceedingly doubtful. It was incidentally held by Bacon, V.-C, in Noble v. Edwardes (u), that, if the purchaser unjustly repudiate the contract, as by refusing to accept a good title, the vendor may re-sell, after notice to the purchaser of his intention to do so, and sue the purchaser for the amount of any deficiency in price occurring on the re-sale. The V.-C.'s judgment was reversed for other reasons by the Court of Appeal, which made no pronouncement as to the correctness of his decision on the point in question. And his decision has been accepted by the editors of Dart's Vendors and Purchasers (v), and Davidson's Precedents in Conveyancing (w), as an authority for the proposition that the vendor of land has the right of re-sale, on breach of contract by the purchaser, without any express stipulation to that effect. But the correctness of this opinion seems questionable. The V.-C. held (x) that the common law gives to the vendor of land the same right of re-sale, in case of the purchaser's default, as it gives to a vendor of chattels. It is to be observed, however, that the assertion of a right at common law for the vendor of goods to re-sell them upon the buyer's default rests upon very slender authority (y). And the utmost extent of the common law authorities appears to be to allow to an unpaid vendor of goods a right of sale, after notice, on the buyer's default, to realize his lien for the price, similar to the right of sale, after due demand and notice, given to a pledgee of goods where a day is fixed for payment (2). But the lien, which a vendor of land has for the price pending completion, is a purely equitable charge (a), quite different from the common law right of a pledgee or an unpaid vendor of chattels. It does not appear to follow therefore that a vendor of land can enforce his equitable lien by sale, because an unpaid vendor of goods may, in certain circumstances, realize his common law lien by sale. And the proper remedy to enforce an unpaid vendor's lien on lands sold appears to be to apply to a Court of Equity for an order for sale (b). It is submitted, therefore, that the better opinion is still that expressed, before the case of Noble v. Edwardes, by the authors of Davidson's Precedents in Conveyancing (c); namely, that a re-sale to enforce the vendor's lien for the price in case of the purchaser's default, can only be lawfully made with the authority of a Court of Equity or Bankruptcy. It appears, however, that, as in the case of goods (d), a re-sale made on the purchaser's default by a vendor of lands, without any express power to re-sell, does not rescind the original contract; that, even if re-sale in such circumstances be unlawful, the vendor may sue the original purchaser or prove in his bankruptcy for any deficiency in price occurring on the re-sale (e); and that, if the re-sale result in an excess over the original price, the vendor must pay over the amount of such excess to the original purchaser (f). But if re-sale by a vendor of lands on the purchaser's default be unlawful without the authority of the Court, it is questionable whether the vendor would be entitled to recoup himself the expenses of re-sale out of the proceeds thereof (g). And it seems very doubtful whether a purchaser on a re-sale made without the authority of the Court would obtain a good title, if he had notice of the original contract for sale (h). In this respect the case of lands differs entirely from that of goods, in which the purchaser on a lawful re-sale now obtains a good title under an express enactment in the Sale of Goods Act, 1893 (i).

Has the vendor a right of re-salt' without express stipulation?

(q) Sherwin v. Shakspear, 5 De G. M. & G. 517, 18 Jur. 843; Metropolitan Ry, Co. v. Defries, 2 Q. B. D. 189, 387. See Leggott v. Metropolitan Ry. Co., L. R. 5 Ch. 716.

(r) Roberts v. Massey, 13 Ves. 561; Regent's Canal Co. v. Ware. 23 Beav. 675,587: 1 Davidson, Prec. Conv. 573, 574, 4th ed.; 480, 481, 5th ed.

{s) Sug. V. & P. 628; 1 Dart, V. & P. 627, 628, 634-636, 5th ed.; 708, 709,716-18, 6th ed.; 650, 651, 657-659, 7th ed.

(t) Above, pp. 36-39.

(u) 5 Ch. D. 378, 388. It does not appear that the decision of this point was really necessary. The action was brought by a vendor, who had re-sold at a loss, to enforce his claim at common law for damages for breach of contract. All that the V.-C. decided was that the vendor was entitled to sue for the difference between the original contract price and the price on the re-sale: see 5 Ch. D. 392. But it seems that the vendor was clearly entitled to make this claim at law, even though the re-sale were wrongful: see Stephens v. Wil-kinson, 2 B. & Ad. 320; Page v. Cowasjee, L. R. 1 P. C. 127; Benjamin on Sale, 648, 654, 2nd ed.