Winch v Winchester
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1812 |
| Date | 18 December 1812 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 146
HIGH COURT OF CHANCERY
See Joliffe v. Baker, 1883, 11 Q. B. D. 273.
[375] winch v. winchester. Rolls. .Dec. 18, 1812. [See Joliffe v. Baker, 1883, 11 Q. B. D. 273.] Purchaser not entitled to an Abatement for a Deficiency in Quantity : the Particular describing the Estate, as containing by Estimation Forty-one Acres, be the same more or less. Parol Evidence of Declarations by the Auctioneer at the Sale, warranting the Quantity, received in Opposition to a specific Performance, on the Ground of Fraud ; not to enforce Performance. In December 1809, the Plaintiffs as Trustees, under a Deed, executed by Edward, Jewhurst, put up to Saleby Auction, an Estate described by the Particular as " containing " by Estimation Forty-one Acres, be the same more or less," and as being in the Occupation of Edward Jewhurst. At the Sale John Ayerst, as the Agent of the Defendant, became the purchaser; and signed an Agreement for that Purpose; and shortly after the Sale entered into Possession. The Bill prayed a specific Performance. The Defendant by his Answer stated, that he was induced to purchase under the Impression, that the Farm contained the particular Quantity of Land alleged ; that his Agent previously to the Sale had been informed by Jewhurst, in answer to an Inquiry, that the Estate consisted of Forty-one Acres; and had at the Sale and previously to its commencing publicly asked the Auctioneer, what Quantity he sold the Farm for; who replied, " Forty-one Acres " ; adding " if the Purchaser does not " like to take it so, it shall be measured: and if it proves more, the Excess must be " paid for ; if less, an Abatement shall be made." The Answer farther stated, that the Land had been since measured, and amounted only to between Thirty-five arid Thirty-six Acres ; but the Defendant submitted to perform the Agreement, having an Abatement for the Quantity of Land deficient. Sir Samuel Romilly, and Mr. Newland, for the Plaintiffs, insisted, that a specific Performance must under the Circumstances be decreed; and mentionedHigginson v, IV, &B, 376. WINCH V. WINCHESTER 147 [376] Clowes (15 Ves. 516 ; and see Clowes v. Higginson, 1 V. & B. 524), as an Authority, that parol Evidence of Declarations by the Auctioneer cannot be read to explain the Particular of Sale. Mr. Hart, and Mr. Grimwood, for the Defendant. The Master of the Bolls [Sir Win. Grant]. This Bill seeks to compel the Defendant specifically to perform...
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