Winch v Winchester

JurisdictionEngland & Wales
Judgment Date18 December 1812
Date18 December 1812
CourtHigh Court of Chancery

English Reports Citation: 35 E.R. 146

HIGH COURT OF CHANCERY

Winch
and
Winchester

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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4 cases
  • Besing Shores Ltd v Little Bay Partners LLC
    • Bahamas
    • Supreme Court (Bahamas)
    • 5 October 2022
    ...or less”: Nashville Contractors Ltd v Middleton [1983] O.J. No. 341; Bouskill v Campea [1976] Carswell Ont 831, CA; Winch v Winchester (1812) 35 ER 146 applied. Wilson Lumber Co. v Simpson [1910] O.J. No. 56 distinguished. 3. Given that the shortfall of 6,359.76 square feet was too substant......
  • Chong Ah Kwee and Another v Viva Realty Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 19 March 1990
    ...it has been held that a discrepancy of five acres out of forty-one was not so serious as to amount to a breach: Winch v Winchester 1 V & B 375; on the other hand, a difference of 100 acres out of 349 was considered too serious to be covered by the qualifying expression: Portman v Mill2 Russ......
  • Clowes v Higginson
    • United Kingdom
    • High Court of Chancery
    • 21 May 1813
    ...and has been followed in many modern Cases : Woollam v. Hearn (7 Ves. 211), Ramsbottom v. Gosden (1 V. & B. 165. Winch v. W4nchesier, 1 V. & B. 375): was admitted by Lord Redesdale in Olinan v. Cooke (1 Sch. & LeFroy, 22); and is particularly illustrated in The Marquis of Townshend v. Stang......
  • Johnston v The Dublin and Meath Railway Company
    • Ireland
    • Rolls Court (Ireland)
    • 10 December 1866
    ...JOHNSTON and THE DUBLIN AND MEATH RAILWAY COMPANY Lessee Dawson v. M'Intyre 7 Ir. Law Rep. 552. Winch v. WinchesterENR 1 V. & B. 375. Ranken v. East and West India Docks CompanyENR 12 Beav. 298. Greenwood v. AtkinsonENR 5 Sim. 419. Reidy v. PierceIR 11 Ir. Com. Law Rep. 361. Morrow's Estate......

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