1806. TOMKINS versus WHITE. chaser of one of several lots of an estate described in And the following was among the conditions of sale, viz. article 4. That, upon payment of the remainder of the purchase money, on or before the time above limited, the purchasers shall have proper conveyances and assignments of the respective lots, at the expense of the purchasers The original lease, under the Dean and Chapter of Westminster, being produced, it appeared to contain a demise of 9 houses comprehending the whole of the above lot. But a part of the house No. 2, being about 12 feet by 8 of the ground belonging to it, had been, previous to that lease, given up by Cheare the former possessor to a person of the name of Gilbert. The original lease from the Dean and Chapter, however, still contained the same description of the premises, and it was admitted that this small plot of ground which was not contained in the particulars, was comprised in the lease, and that being a repairing lease, if the plaintiff took an assignment he would be bound by the covenant to repair, as far as concerned that same plot of ground, but it was said on, the part of the defendant that the surrender of it was with the knowledge of the Dean and Chapter, and that they would not call upon the defendant or his assignee to comply with the covenants as to so much. The plaintiff, upon applying at the Dean and Chapter's office to see the plaintiff's counterpart of the lease and the plans, refused to complete his purchase, and the defendant's attorney threatened to compel him, notwithstanding, to take an assignment absolutely. The plaintiff, as the conveyances were to be at his expence, tendered an assignment and required an indemnity against the Dean and Chapter or a new lease from the Dean and Chapter of Westminster, for the time; which being refused, the plaintiff brought his action for not completing the purchase and for the deposit money. At the trial the facts of the plaintiff's case were clearly proved, and that about 17 feet by 10 had been given up by Gilbert. The counsel for the defendant offered to prove by Mr. Horsefall the clerk to the Dean and Chapter of Westminster, that the giving up of this plot of ground was with their knowledge, and that the plaintiff would not be called upon to deliver it up at the expiration of the lease.* It appears by my note to have been stated upon the motion that they offered to prove by Horsefall, that the defendunt offered to procure a new lease from the Dean and Chapter of Westminster, or to give an under lease wanting one day of the term; and that this offer was made before the trial. As well as I recollect, at the trial, having taken no note of it, it was stated that Horsefall would prove that the Dean and 1806. TOMEINS versus WHITE. 1806. TONKINS versus WRITE. Lord ELLENBOROUGH, C. J. Holding that the plaintiff was entitled to have a good conveyance of all comprised in the lease,rejected this evidence and stopped the counsel for the defendant in his address to the jury, and a verdict was given for the plaintiff. JERVIS for the defendant, in Easter term, obtained a rule to shew cause why there should not be a new trial, on the ground of the rejection of this evidence, and stated that by means of this surrender of the small plot the original rent was reduced, and that whereas the particulars stated the net produce of the estate to be 1701. the plaintiff would have got more than 1701. per annum; but this point was afterwards but little noticed or relied upon, and it did not appear to have been particularly urged at the trial; and upon examining the particulars, it appeared that the rental was stated to be about 1701. GARROW and GURNEY, now shewed cause, and insisted that the plaintiff was bound to complete the purchase according to the particulars, which referred to the lease from the Dean and Chapter, and that the plaintiff ought to have a good and valid assignment and conveyance of all that was contained in that lease, and that he could not have it, he was entitled to refuse a conveyance short of that, and to bring this action. JERVIS and WIGLEY, contrà, shortly endeavoured to shew from the particulars that the defendant did not sell by the lease of the Dean and Chapter of Westminster, for it would be true, as stated, that the premises were held under lease from them, although the Chapter were willing to grant a new lease, omitting this plot of ground; but that this was after the action brought and the plaintiff's counsel offering to accept it then, there was a difference as to the costs, lease amprised 9 houses, and the plaintiff sold one only. Lord ELLENBOROUGH, C. J. One short fact disposes of this case. You did not give the sort of cons veyance which you ought to have given, of the part in your possession, which the deduction of your title would have enabled you to do. A little more fairness on the part of auctioneers in the forming of their particulars would avoid all these inconveniences. There is always either a suppression of the fair description of the premises or there is something stated which does not belong to them; and, in favour of justice, considering how little knowledge the parties have of the thing sold, much more particularity and fairness might be expected of them. The particulars are in truth like the description in a policy of insurance, and the buyer knows nothing but what the party communicates. If these particulars are read, there being no exception, I suppose, that the whole are held of the Dean and Chapter, and are to be conveyed to me as such; and there is nothing in them to make the lease any thing less than a full exhibit of what is to be conveyed to me. Even if I should go to the houses to see them; there is nothing to lead me to inquire into the fact, whether a part of the angle of 4 feet 10 or 17 feet is subtracted from the original ground plot. It appears, indeed, that there had been a separation of part, prior to the lease; but still I should be liable under the covenants. And, although,perhaps I might have relief in equity against those covenants, if the lessors are cognisant of it, yet I am not to be satisfied with that in a court of law; and the vendor is not to give me a lease of one thing and to make me pay at the auction price for another." GROSE, J." It is plain that these houses were intended to be sold as they were leased by the Dean and Chap 1806. TOMKING versus WHITE. 1806. TOMKINS versus WHITE. ter; if not, why did they not state that No. 2 was not sold as leased by them." LAWRENCE, J." Considering the great sums of mo ney which auctioneers are paid for preparing particulars and selling estates, they ought to be more correct. They contended some time ago, that they were entitled to have the full sum of 51. per cent. commission; even if a man advertised an estate to be sold by auction, and it was afterwards sold by private contract: and now they contend for half the full commission. If they have such high charges, they should give the public full information of what they are to sell. On reading these particulars,if I had gone to see what Radford the tenant of No. 2, occupied, I should have thought that it was the whole that he held of the Dean and Chapter. The particulars ought to be the same as if the lease, under-lease and all were under the inspection of the purchaser; but, here not even an ocular. inspection of the premises could ascertain this fact, without admeasurement and comparison with the plan, and it is not very much the custom to examine deeds at auctions, nor till after, when the abstract is delivered. The defendant in this case,after the objection is made,writes a letter by his attorney that there is a want of com mon sense in it; but instead of talking in that high stile, he should have enquired what would have satisfied the plaintiff, and given him the best conveyance in his power." LE BLANC, J. "There has been a great deal of obstinacy in the defendant. Taking all to be correctly stated by him and that the plaintiff bought only the houses as they now stand; yet he was bound to state in the abstract, that there was such a mistake in the plan in the margin of the lease, and that it would be rectified either by a new lease from the Dean and Chapter or by an under lease of the other part. If the |