
    2381.
    Brice & Company v. Whitehurst & Hilliard.
    Decided September 28, 1910.
    Trover; from city court of Nashville — Judge E. Eve presiding. December 3, 1909.
    
      J. P. Knight, for plaintiffs in error.
    
      Hendricks & Christian, contra.
   Russell, J.

1. Where a judge passing on a motion for a new trial did not original^ try the ease, his discretion is not as broad' as it would be otherwise; but he still has discretion to grant a new trial, where the evidence preponderates against the verdict.

2. Where a vendor sells personal property, reserving title to secure the purchase-price, and the vendee, with the vendor’s consent, sells the property to a third person, who assumes the payment of the balance of the purchase-price to the original vendor, the. latter can not recover in trover the property from the third person without offering to put him in statu . quo.

3. On the material issue as to whether or not the plaintiffs knew of and consented to the sale of the property by the original purchaser to the defendants, the evidence preponderates against the verdict, and therefore the judge did not err in granting a new trial. Judgment affirmed.  