Judgment of RIDDELL, J., at the
trial, reversed. Foster v. Ander-
362.

son,

A decree for specific perform-to pay the taxes after the date of
ance was directed.
the agreement. The agreement
was on a printed form, and one of
its printed provisions was: "And
it is expressly understood that
time is to be considered the
2. Contract for Sale of Land-
essence of this agreement, and
Purchase Money Payable by In- unless the payments are punctual-
stalments-Deed to be Delivered ly made at the time and in the
when Three-fifths Paid-Right to manner above mentioned, the de-
Sue for Instalments without Ten- fendants are to be at liberty to
dering Conveyance.]-A vendor of resell the said lands." The plain-
land-under an agreement pro- tiff was given the privilege of
viding for payment of the pur-paying the residue of the purchase
chase money in annual instal-money at any time, and the de-
ments with interest, and that the fendants were to convey when
purchaser so soon as he had paid the whole purchase money should
three-fifths should be entitled to a be paid. According to the evi-
conveyance, upon executing a dence, the time for the payment of
mortgage back for the balance is the plaintiff's purchase money
entitled to sue the purchaser for was arranged to correspond with
the payments falling due prior to
three-fifths being paid, without
proving that he has tendered a
conveyance. H. H. Vivian & Co.
Ltd. v. Clergue, 280.

the time when the defendants
were required to make payments
to one R., from whom they had
purchased the land, with the
object that they should be able
to pay R. with the money which
3. Contract for Sale of Land- the plaintiff should have paid
Purchase Money Payable by In- them. The second instalment of
stalments Time of Essence-De- the plaintiff's purchase money
fault in Payment of Instalment
Waiver Rescission Notice
Specific Performance-Instalment
Paid-Return to Purchaser-De-
posit-Forfeiture.]-By an agree-
ment in writing made between the
parties on the 25th May, 1905, the
defendants agreed to sell land to
the plaintiff, for the price of $290;
the purchase money was to be
paid in three instalments, the first
of $100, which was to be (and
was) paid down, the second of
$75, which was to be paid in five
months and three weeks, and the
third, of $115, in eleven months
and three weeks, and the latter
two instalments were to bear in-
terest at six per cent. until paid.
The plaintiff was to be entitled to
possession until default, and was

fell due on the 15th November,
1905, and was not paid. In the
following December the plaintiff
asked O'C., the husband of one
of the defendants, for a delay of
two or three weeks, saying that
at the end of that time he would
pay the purchase money in full;
O'C. said that it would be neces-
sary to consult the other defend-
ant, and that he would let the
plaintiff know by mail whether
they would accede to his request
Not having received any word
from O'C., the plaintiff waited
until February, 1906, when he
wrote to the defendants asking
for his deed and telling them that
he was ready to pay the purchase
money in full with interest. To

See BILLS OF EXCHANGE AND
PROMISSORY NOTES, 1.

this and to two subsequent letters | documents and correspondence,
no reply was received. In April was affirmed by the Court of Ap-
the plaintiff saw O'C., who said peal. Bohan v. Galbraith, 37.
that the plaintiff would have to
lose the $100, and that the de-
fendants would "stick to the lots
and the money as well." A formal
tender was made and refused on
the 23rd April, and this action for
specific performance was begun
on the 23rd May:-

Held, MEREDITH, C.J.C.P., dis-
senting, that, in the absence of
fraud, accident, or mistake, the
provision that time should be of
the essence was binding upon the
plaintiff, and had not been waived
by the defendants; that the
latter had the right to rescind
upon default in payment of the
second instalment; that no formal
notice of rescission was necessary;
and that the plaintiff was not en-
titled to specific performance.

Barclay v. Messenger (1874), 22
W.R. 522, 43 L.J. Ch. 449, fol-
lowed.

In re Dagenham (Thames) Dock
Co. (1873), L.R. 8 Ch. 1022, and
Cornwall v. Henson, [1899] 2 Ch.
710, [1900] 2 Ch. 298, distin-
guished.

Held, also, that the $100 paid by
the plaintiff, not being a deposit,
but an instalment of the purchase
money, was not forfeited, but
was returnable to the plaintiff
upon rescission, and he should be
allowed credit for it upon the costs
ordered to be paid by him.

Judgment of TEETZEL, J., re-
versed. Labelle v. O'Connor 519.

4. Contract for Sale of Land-
Specific Performance-Correspon-
dence-Offer Quasi-acceptance -
Agent. The decision of a Divis-
ional Court, 13 O.L.R. 301, dis-
missing an action for specific per-
formance, on the ground that no
contract was made out upon the

See
TIONS.

5.

VERDICT.

See CRIMINAL LAW, 3.

See MUNICIPAL CORPORATIONS,

WAIVER.

See EASEMENT VENDOR AND
PURCHASER, 3.

WARRANT OF COMMITMENT.
See CRIMINAL LAW, 6.

WATER AND WATER-
COURSES.

1. Land Bordering on River—
Crown Grant-Description-Con-
struction-Ownership ad Medium
Filum-Navigable or Un-navigable
Stream-Alluvion-Bed of Stream.]

-Lot 5 in the front concession of

the township of Howard was de-
scribed in the Crown patent of the
grant thereof issued on the 8th
July, 1799, by metes and bounds
as follows: "Beginning at a post
marked 4/5 on the bank of the
river Thames; then south 45 de-
grees east 68 chains; then north-
easterly parallel to the said river
30 chains; then north 45 degrees

west to the said river; then along the bank with the stream to the place of beginning:"

sand and gravel and was of varying width, and the bank of which was a clay loam from ten to fifteen feet high. Notwithstanding the protection afforded by the shore, over forty acres of land had

Held, MAGEE, J., dubitante, that upon the true construction of the grant, and having regard to the provisions of sec. 31 of the Surveys been washed away since the Act, R.S.O. 1897, ch. 181, the river formed the northerly boundary, and the lot did not extend usque ad filum aquæ.

Robertson v. Watson (1874), 27 C.P. 579, 599, followed.

Held, also, that the question whether the river at and above and below the locus in quo was navigable or unnavigable need not be determined, in view of the decision of the Court of Appeal in Keewatin Power Co. v. Town of Kenora (1908), 11 O.W.R. 266.

The plaintiff claimed as part of lot 5 a bar or deposit of gravel and sand below the bank of the river. This sand-bar as to vegetation retained the characteristics of a bed of the stream; for the greater part of the year it was entirely covered with water, and during the remainder was frequently under water, while at times of freshets the water covered it to a depth of 25 or 30 feet, and sometimes overflowed the bank, which was of at least that height:

Held, that the bar had not become land formed by alluvion, but was still part of the bed of the river.

Crown grant was made in 1799. The plaintiffs sought an injunction to restrain the defendant from removing gravel opposite to their land, as tending to render it more liable to encroachment by the waters of the lake:

Held, that, notwithstanding that the metes and bounds in the Crown grant were expressed to begin "on the shore of Lake Ontario," the plaintiffs' land extended only to the line of the water at present low water mark, and not to what was that line in 1799, but that as littoral proprietors they were entitled to the injunction. Servos v. Stewart, 216.

WAY.

1. Highway Nonrepair Injury to Pedestrian Munici pal Corporations-Accident-Negligence-Notice of Accident-Omission to Give-Excuse.]-In an action brought by the plaintiff against the corporation of a city for damages for injuries sustained by reason of alleged want of repair of one of its streets, such nonrepair consisted in one of the granolithic blocks, where it joined another block, having sunk from three-quarters to half an inch, thereby causing the other block to be above it to that extent, but 2. Littoral Proprietor Lake which had been worn down at its Front Removal of Sand and edge about one-quarter of an Gravel-Injury to Land-Injunc-inch, and had been in this contion.]-The plaintiffs owned a lot dition from eight to ten years. running down to the shore of Lake There was no evidence of any prior Ontario, which shore consisted of mishap or complaint made re

Hindson v. Ashby, [1896] 1 Ch. 78, [1896] 2 Ch. 1, followed. Judgment of CLUTE, J., reversed. Williams v. Pickard, 655.

garding it, and, though the city feasance-the whole was one act officials did not regard it as and an unlawful act. dangerous, they admitted that it would be better to have it bevelled down:

Held, that there was no actionable negligence on the defendants' part.

Rowe v. Corporation of Leeds and Grenville (1863), 13 C.P. 515, Dickson v. Township of Haldimand (1903-4), 2 O.W.R. 269, 3 O.W.R. 52, and Bull v. Mayor, etc., of Shoreditch (1901-2), 18 Times L.R. 171, 19 Times L.R. 64, followed.

Judgment of the county court of Lanark affirmed. Keech v. Town of Smith's Falls, 300.

The notice of the accident required to be given within seven days thereafter, under sec. 626 (3) of the Consolidated Municipal Act, 1903, 3 Edw. VII. ch. 19, is not dispensed with by reason merely of the defendants not being 3. Private Way Easement prejudiced by the omission to Extinguishment by Unity of Ownergive it. There must be some ship-Revival on Severance-Imreasonable excuse therefor: the plied Reservation plaintiff's illness, the result of the Act.]-Unity of ownership or seisaccident, must render him men- in in fee extinguishes all preor private tally or physically incapable of existing easements giving it. Anderson v. City of rights of way over one part of the Toronto, 643.

Land Titles

land for the accommodation of another part; and an easement so 2. Highway - Obstruction-extinguished can only be revived Injury to Traveller-Knowledge of by a fresh grant, and then the Danger Negligence Muni- right granted is of a new thing; cipal Corporation-Misfeasance or the severance again of the land Nonfeasance.]-The mere fact that in respect of which an easement the plaintiff knew that a heap of dirt was standing upon a highway is not sufficient to disentitle him to recover damages from a municipal corporation for personal injuries sustained by him owing to the heap having been negligently left there unguarded.

Gordon v. City of Belleville (1887), 15 O.R. 26, and Copeland v. Village of Blenheim (1885), 9 O.R. 19, followed.

It was argued that the municipal corporation, in discharging their duty of cleaning the highway, had a right to cause the dirt to be raked into a heap, and that leaving it there unguarded was mere nonfeasance:

Held, that the doing of a lawful act in such a way as to endanger the safety of the public was mis

formerly existed over one part for the benefit of the other does not per se revive the extinguished easement, if the dominant part is first granted and the servient part retained by the owner who made the severance.

Wheeldon v. Burrows (1879), 12 Ch.D. 31, followed.

Previous to 1891 two adjoining parcels of land known as the grist mill property and the saw mill property were in different holders, and there was on the land, well defined on the ground, a road leading from the highway to the grist mill over a part of the saw mill property. In 1891 the two properties became united in the same owner, who in 1894 conveyed all the land excepting certain lots, on one of which stood

the grist mill. In the document of | grandchildren, to be paid over to transfer there were no words to their respective parents, to be indicate that any right of way applied towards their maintenance over the rest of the land conveyed and education, and to be paid to was also excepted. The grist mill the grandchildren themselves in property was afterwards conveyed case the parents were not making to the plaintiff, who claimed the proper application thereof. On right to use the road over the saw each of the grandchildren attainmill property as marked upon the ing majority the allowance for ground:maintenance and education was to Held, that when the transfer of cease, and they were to be paid 1894 was made, the road was not $250 each. In case his wife should a subsisting easement or right of then be dead, the residue of his way, though it was marked upon estate was to be equally divided the ground as a former right of amongst his children, share and way, which continued to be used share alike, or set apart for their for the convenience of the owner maintenance. The children of a of the whole property after he deceased son J., and those of any became such owner; failing an other sons and daughters who express reservation in the transfer should have in the meantime of 1894, none was to be implied; died, to receive their parents' and the fact that the title to all share; but if his wife should be the lands in question had been living when the youngest grandbrought under the Land Titles child attained his majority, a Act made no difference, there sufficient sum to meet his wife's being nothing in the provisions annuity and the necessary outlay of sec. 26 or other sections to for the education and maintenaffect the result in the plaintiff's ance of a grandson J. was to be favour; MABEE, J., dissenting.

Judgment of Teetzel, J., reversed. McClellan v. Powassan Lumber Co., 67.

set apart, and the remainder divided equally among his said children and the children of any deceased child, as theretofore pro

See ASSESSMENT AND TAXES, 5. vided; and that on his wife's

WHARF.

death and the completion of the education of his grandson J., if he should have availed himself of the

See ASSESSMENT AND TAXES, 2. provision therefor, the portion so

WILL.

1. Construction Bequests to Grandchildren-Income Corpus -Grandchildren Living at Testator's Death and those Born thereafter.]-A testator, by his will, gave his wife, during her lifetime or widowhood, an annuity of $600, to be reduced, in case of her again marrying, to $250, and the rest of the income of his estate to his

set apart was to be distributed amongst his children and the children of such as were deceased, as herein before provided:

Held, that the gift of the income to the grandchildren must be limited to those living at the testator's death, and that the gift of the $250 was also so limited, none of the grandchildren born thereafter being entitled to receive such amount. In re Moffat, 637.