'case he may consider it as waste paper, and resort to his original demand, and sue the debtor on it,' Stedman v. Gooch, 1 Esp. 5. See also Brown v. Kewley, 2 B. and P. 518.

487. Again, When the agreement to give credit forms a part of the contract of sale, the effect is, as has been stated, that the vendor cannot bring an action for the price until the term of credit has expired. But suppose that goods are sold upon a certain credit, and to be paid for at the expiry of the term of credit by a bill at a certain date, in this case, although the vendor cannot maintain an action for goods sold until the arrival of the term of payment of the bill, because the goods are not agreed to be paid for till that time, yet, if the vendee refuse, or fail to grant the bill at the stipu pulated time, the vendor may bring an action of damages on the special contract by which the vendee became bound to grant the bill, and in that action he may recover damages for the loss which he sustains by being deprived of the particular security agreed on, Mussen v. Price, 4 East, 147. Dutton v. Solomonson, 3 B. and P. 582. Brooke v. White, 1 N. R. 330. Hoskins v. Duperoy, 9 East, 498. Thus, if by the contract of sale it is agreed that the vendee shall pay for them in three months by a bill at two months, it is a credit of five months, and therefore the vendee cannot be sued for payment till the expiry of that term, although, if he fail to grant the bill at the end of the three months, he may be sued in a special action on the case for damages, on account of the breach of contract in not granting the bill. So far with regard to the law of England.

488. If, betwixt the time of the sale and the delivery, the vendor is obliged to be at any charge in preserving the thing sold, the vendee is bound to reimburse him, because, as the vendee is entitled to the fruits during that period, he ought to be liable for the charges attending the subject. Post perfectam venditionem foetus quidem pecorum emptori, venditori vero sumptus, si quos • bona fide fecerit, restitui debere notissimum est,' 1. 16. Cod. de act empt. Vide l. 13. § 22. l. 38. § 1. ff. de act empt. and Domat, 1. 67. § 10.

489. With regard to the right of the vendor to demand interest on the price, the following was the general rule of the Roman law: Ex vendito actio venditori competit ad ea consequenda, quæ ei ab emptore præstari oportet. Veniunt autem in hoc judicium infra scripta: In primis pretium quanti res venit: item 'usuræ pretii post diem traditionis; nam cum re emptor fruatur,

æquissimum est eum usuras pretii pendere,' l. 13. § 19. and 20. ff de act empt. Vide 1. 5. Cod. de act empt. 1. 18. § 1. ff. de usur.

490. When the vendor had not yet delivered the thing sold, he was not entitled to claim interest on the price, unless delivery had been offered to the vendee so as to put him in mora, I. 13. Cod. de act empt.

491. The claim of the vendor, on account of the vendee's delaying to pay the price, was expressly limited to the interest of the sum, and it was unlawful to stipulate a greater sum in name of damages. Venditori si emptor in pretio solvendo moram fecerit, 'usuras duntaxat præstabit, non omne omnino, quod venditor, 'mora non facta, consequi potuit; veluti si negotiator fuit, et, pretio soluto, ex mercibus plus, quam ex usuris, quærere potuit, 1. 19. ff. de per. rei vend. Vide 1. 13. § 26. ff. de act empt. Domat, 1. 66. § 5.

nature of the transaction.

492. The general rule of the law of Scotland with regard to the payment of interest on the price by the vendee, when no express agreement has been made upon this matter in the contract, is thus stated by Erskine: Interest is also due ex lege from the Thus, in a sale of lands, or of a liferent right, the purchaser is, by an act of the law itself, bound to pay interest for the price of the subject bought, from the term at which he enters into possession as long as he retains the price; for the price becomes a surrogatum, or thing substituted in place of the subject sold; and, therefore, the interest of the price must be given in consideration of the fruits of that subject. This ob'tains though the price should be arrested in the purchaser's ⚫ hands, after which he cannot pay safely; (Durie, Feb. 17, 1624. ‹ L. Durie,) or though the delay of payment should be owing to the seller, who had not furnished the purchaser with a connected progress of title-deeds sufficient for his security, (Stair, Jan. 28, 1663; L. Balnagowan, Fount. July 8, 1681, Gordon,) for, from whatever cause the non-payment may proceed, good conscience will not suffer the purchaser, at the same time that he enjoys ⚫ the fruits of the lands, the property or liferent whereof he had bought, to enjoy also the profits or interest of the price, Forbes, July 23, 1707. But if the purchaser, unwilling to retain the price, • shall, on the seller's refusal to accept of it, consign it in a proper and legal way, it stops the currency of interest, since the price is no longer in his hands,' Ersk. 3. 3. 79. See also Stair, 139. L. Clunie and Stirling v. Ogilvie, 20th July, 1626. Stirling v.

Paunter, 8th March, 1627. N. Home v. L. of Renton, 7th February, 1628. (Mor. p. 545.) Laurie, 17th Dec. 1628, (Mor. ibid.) Earl of Nithsdale, v. Duke and Duchess of Buccleuch, 26th February, 1684. Governor of Watson's Hospital v. Creditors of Merchieston, 21st January, 1736, (Elch. Sale, No. 2.)

493. In like manner, it was found in the following case that interest was due on the price of moveables from the term appointed for payment of the price, although interest was not expressly stipulated.

Dick of Fracafield obliges himself, by missive, to pay to Mrs. 'Brower at Rotterdam, in August or September, 1741, 4620 guild'ers, 1 stiver, as the price of goods furnished by her, or to apply 'that sum towards the paying of what fish she might contract for betwixt and that time, in her option.' A partial payment was made to her at the time appointed; but no further correspondence seemed to have taken place. Upon the renunciation of Dick's heir, Brower obtained decree of adjudication, cognitionis causa, in Dec. 1746, for L.373, 11s. 1d. Sterling, being the balance then due, with interest from Sept. 1741. In a ranking of Dick's creditors, it was objected to Brower's adjudication, that she had no claim for interest, as it did not appear that there had been any undue delay on the part of Dick, seeing she did not allege that she had made her election of having the money paid to her at Rotterdam in August or September, 1741. But the Lords found annual rent 'due upon the balance of L.373, 11s. 1d. Sterling, from September, 1741,' Competition Creditors of Dick, 14th Dec. 1756.

494. It has been observed that, by the Roman law, interest was not due upon the price when the vendor had failed to deliver the subject at the stipulated time.

This rule was applied in our law in the following case:

By minute of sale, March 1724, Andrew Armour sold to James Strang the lands of Shettlestone, with the rents thereof for crop 1725, obliging himself to purge incumbrances, and deliver a dis position at Martinmas then next. James Strang, on the other hand, became bound, as soon as Armour should fulfil the premises, to pay the price. James Strang died in September fallowing, before the minute of sale was fulfilled in any part, having a daughter, Isobel, to represent him, three years old; the daughter's affairs were neglected, and Armour, in order to make the bargain effectual, took some legal steps which were found irregular. In the year 1752, Isobel Strang claimed performance of the minute

of sale; and the diligence done by Armour being laid aside, the question occurred, in what mannert he mutual claims were to be adjusted. This depended on a preliminary question, Whether the account for the rents and the price ought to be instituted, as if performance had been made at the date of the minute of sale, or according to the real fact that there was no performance on either side? An account made up on the former supposition, would make the vendor liable for the rent from the time stipulated for the purchaser's entry, and would make the purchaser, on the other hand, liable for the price, with interest, from the same period.Upon the latter supposition, the vendor would be entitled to the price, without interest; and the vendee would have no claim for the rents. Lord Kames, in reporting the case, says, 'In judging ' of this case, the first thing that occurs is, that seeing performance cannot now be made in terms of the minute of sale, because the • term of performance is past, justice requires an equivalent, so as ⚫ to put matters on the same footing as if the covenant had been "regularly fulfilled. But on reflection this cannot hold. A mora, indeed, on either side will give the other the same advantage as if the covenant had been fulfilled to him; because one ought not to suffer by the fault of another. But where neither is in mora this rule will not hold; and this being the present case, the question is, how the minute of sale is to be fulfilled, now that the sti'pulated term is elapsed? This is plainly a casus incogitatus, for which there is no provision made in the minute of sale. The 'purchaser cannot demand the bygone rents, were it his interest to demand them. He has no right to these rents, because he is not 'proprietor of the land. Nor can he demand them upon the footing of the covenant, because he is not entitled to demand posses'sion till he first offer the price. Nor, on the other hand, is the ⚫ vendor entitled to the interest of the price, till he first enter the 'purchaser into possession. Equity, then, must here supply the defect of the covenant, by making a new bargain precisely similar to the former, which is done by fixing a new term for performance. The price, accordingly, was made to bear interest from the term preceding the citation in this process,' Strang v. Armour, 20th Jan. 1758.

495. In the Roman law, the accumulation of interest, or the charging of interest upon interest, was expressly forbidden, 1. 28. Cod. de Usur. In our law the same principle has been adopted to a certain extent only. Annual upon annual,' says Lord Stair,

' is condemned by all when it is comprehended in the first paction; but it is ordinary with us, by posterior contracts, to accu'mulate annualrents, and make it a principal: and so both that which was first principal, and that which was once annual, bears annual,' Stair, 139. In this way, where a sum is paid by a cautioner upon distress, composed partly of principal, and partly of interest, the whole sum, both principal and interest, bears interest against the principal debtor; and in various other cases the accumulation of interest into a capital sum to bear interest from the date of accumulation is allowed, Ersk. 3. 3. § 78 and 81. In the sale of lands, where the purchaser has obtained possession, but where obstacles have been thrown in the way of the payment of the price, from the existence of incumbrances or otherwise, although the purchaser is not to blame, yet equity forbids that he should enjoy both the fruits of the land and the interest of the price; and therefore, in the following cases, upon the application of creditors, the bygone interest was ordered to be accumulated into a principal sum bearing interest.

William Wilson, as purchaser of the lands of Howden, from James Scott, in 1753, had brought a process of multiplepoinding against the creditors of Scott, shortly after his purchase, in which various questions occurred, the discussion of which occupied many years. At length the creditors insisted that as the bygone interest on the price was lying dead in the purchaser's hands, he should be appointed to pay it up, in order that it might be converted into a stock, and lent out at the sight of the creditors. On 24th November, 1772, the Lord Ordinary pronounced the following interlocutor, finds it unnecessary to enter into the discussion, who

have been most to blame for the long continuance of this litiga⚫tion before the former Ordinary; and that, supposing the cre'ditors, as too often happens in a common cause, to have been less ⚫ attentive to their interest, and less diligent in bringing the cause ⚫ to a conclusion than they ought to have been, still equity will not permit the purchaser who has been in possession of the lands ⚫ since the date of his purchase in the 1753, to hold the annual' rents of the price which have accrued since that time, being nine'teen years, as a dead stock in his hands, to his great profit, and their great loss; and therefore finds that the purchaser must ' either hold the bygone annualrents of the price due at and preceding Martinmas last as a stock bearing interest from that term, or must pay over these bygone annualrents to any person autho