" Purchaser failing in making payment."

(b) Esdaile v. Stephenson, 1 Sim. & St. 122; see Matson v. Swift, 5 Jur. 645, R.

(c) Sug. 807.

(d) Monk v. Huskisson, 4 Russ. 121, n.; Birch v. Podmore, Sug. 807.

(e) As to what is wilful default, see Elliott v. Turner, 477; Ex parte Bradshaw, 16 Sim. 174.

(f) Orendon v. Lord Falmouth,

Sug. 807.

(g) Greenwood v. Churchill, 8 Beav. 413.

(h) S. C.

(i) Denning v. Henderson, 1 De G. & S. 689; and see, at Law, Perry v. Smith, 1 Car. & M. 554; stated supra, p. 59.

(k) See Paton v. Rogers, 6 Madd. 256. De Visme v. De Visme.

(l) De Visme v. De Visme, 13 Jur. 205.

(m) S. C. on appeal, 1 Mac. & G.

336; and see Skelton v. Robertson, 14 Jur. 323, R.

This decision, it is very deferentially submitted, leaves the law on this subject in an unsatisfactory state, and will probably lead to future litigation: it may be admitted that when a purchaser has agreed to pay interest and take the profits from a specified day, notwithstanding delay arising from any cause whatever, there would be much hardship (at least in cases where personal possession of the property is essential to its due enjoyment) in holding this agreement to extend to a delay in showing such a title as would justify a prudent purchaser in accepting possession and so receiving the equivalent for his interest; but if, on the ground of hardship, the strict words of the agreement (which are sufficiently large in terms, and are notoriously intended in practice, to extend to delays in making out the title) may be disregarded, surely, on the like principle, the purchaser (who may possibly have called in money upon the faith of the vendor's agreement to complete on a certain day) ought to be allowed to appropriate and reinvest it in such a manner as that it may produce some income and yet be ready when required, and to throw the loss of interest on the vendor; in the particular case the purchaser seems to have been left in no better position than that in which he was placed by the decision of the Vice-Chancellor.

(n) 1 Mac. & G. 353.

And it is conceived that if a vendor abstract a good title but be unable at once to verify it, the time for the commencement of interest must be postponed until such title be satisfactorily verified; so, if an imperfect title be abstracted, or insufficient evidence be given of an apparently perfect title, interest, it is conceived, must commence from the time when the purchaser agreed to accept the imperfect title or insufficient evidence: it is evident that the practical application of the rules laid down in, and deducible from, De Visme v. De Visme, must in many cases be a matter of very considerable difficulty.

An agreement which reserves to the vendor the rents and profits of the estate until actual completion, precludes any claim to interest on the purchase-money (o).

Vendor's right to interest excluded by agreement to take rent and profits.

(o) Brooke v. Champernowne, 4 Cl. & Fin. 589.

The vendor may, occasionally, claim an increase of purchase-money, upon the ground of an excess in the actual quantity of the estate over that stated in the particulars.

By the 5 Geo. IV. c. 74, ss. 1 and 2, the pole or perch is to contain in length five standard yards and a half; the rood, 1210 standard yards; and the acre, 4840 standard yards, being 160 square poles: and, by the 15th section, after the 1st May, 1825, "all contracts, bargains, sales, and dealings which shall be made or had within any part of the United Kingdom, for any work to be done, or for any goods, wares, merchandise, or other thing to be sold, delivered, done, or agreed for by weight or measure, where no special agreement shall be made to the contrary, shall be deemed, taken, and construed to be had and made according to the standard weights and measures ascertained by the Act; and in all cases where any special agreement shall be made, with reference to any weight or measure established by local custom, the ratio or proportion which every such local weight or measure shall bear to any of the said standard weights or measures, shall be expressed, declared, and specified in such agreement, or otherwise such agreement shall be null and void."

The 5 & 6 Will. IV. c. 63, s. 6, enacts " that the measure called the Winchester bushel and the lineal measure called the Scotch ell, and all local and customary measures shall be abolished."

Before the passing of these Acts considerable diversity existed in the size of the acre; in some places (as in Cheshire) the customary acre contained nearly two statutory acres; while, occasionally, the variation was nearly as much the other way (p): the applicability of the 15th section of the Act of Geo. IV. to contracts for sale of land is not altogether clear (q); but, it is conceived, that, under the later Act, any quantities mentioned either in a contract or a conveyance would be referred to the standard measurement, without regard to any local custom (unless expressly referred to) (r).

Increase of purchase-money in respect of excess in quantity.

As to quantity-Statutory Acre.

Local Measures abolished.

Customary variations in the Acre.

(p) Portman v. Mill, 2 Russ. 570. (q) Sug. 37G.

Where there is no express agreement on the subject, and the contract in general terms includes property which it was not proposed to sell, Equity would not enforce it against the vendor, without at least giving him compensation (s); but we are not aware of any case establishing his general right to additional purchase-money, merely because the estate exceeds the quantity stated in the particulars; since, however, if it were sold professedly by the acre, the excess, if taken, must, it is conceived, clearly be paid for, it seems to follow, from the doctrine laid down in Hill v. Buckley (t), (viz., that where the quantity is stated the price must be considered as fixed with reference thereto) that if called upon to fulfil the contract, he might, independently of agreement, claim compensation: but the general understanding and practice seem to be the other way.