(m) See Withy v. Cottle, (1823) T. & R. 78; 1 S. & S. 174.

(n) Hudson v. Temple, (1860) 29 Beav. 536, 543; 30 L. J. Ch. 251.

(o) Gedye v. Thitce of Montrose, (1858) 26 Beav. 45; Levy v. Lindo, (1817) 3 Mer. at p. 84; Tilley v. Thomas, (1867) 3 Ch. 61; 17 L. T. 422; Wells v. Maxwell, (1863) 32 Beav. 408, 415; Webb v. Hughes, (1870) 10 Eq. 281; 39 L. J. Ch. 606; Wright v. Howard, (1823) 1 S. & S. 190; 1 L. J. Ch. 94; Parker v. Frith, (1819) 1 S. & S. 199, n.; Bernard v. Williams, (1928) 44 T. L. R. 437; 139 L. T. 22.

(p) Carter v. Dean of Ely, (1835) 7 Si. 211, 228; 4 L. J. N. S. Ch. 132.

An option to purchase under a right of pre-emption must be exercised within the prescribed period (s); the ratification of an acceptance of such an option by an authorised agent relates back to the date of the acceptance (t); but the doctrine of Bolton Partners v. Lambert does not apply to options. Accordingly, the purported exercise of an option by an agent without authority cannot, after the time limited for the exercise of the option has expired, be ratified by the principal so as to be effectual (u).

Exercise of right of preemption.

The circumstance of the purchase-money being evidently required for payment of incumbrances, is important in considering the materiality of time; especially if the rate of interest which they bear exceed that which the purchaser is to pay during delay (x).

Purchase-money wanted to discharge incumbranced.

But the private motives which may have induced a party to enter into a contract, unless expressed in the agreement, or such as might be presumed from the general apparent circumstances of the case, do not make time essential; e.g., the unexpressed intention to reside immediately upon the estate (y): where, however, the motive is of material importance - as in the case of the intention to reside - though not disclosed in the contract, it would, it appears, be sufficient if communicated to the vendor at or shortly after the date of the contract, to make it essential that the vendor should use expedition, even if not sufficient to make it necessary that completion should be on the date named in the contract (z).

Private unexpressed motives for purchase.

(q) Per Wigram, V.-c, in Walker v. Jeffreys, (1842) 1 Ha. at p. 348: 11 L. J. Ch. 209; and see Wright v. Howard and Parker v. Frith, sup.; Coslake v. Till, (1826) 1 Rus. 376; Sparrow's case, cited 2 Sch. & L. 604; Seaton v. Mapp, (1846) 2 Coll. 556; Wells v. Maxwell, (1863) 32 Beav. 408; 9 Jur. N. S. 565, 1021; Gedye v. Duke of Montrose, (1858) 26 Beav. 45; Hudson v. Bartram, (1818) 3 Mad. 440; Barclay v. Messenger, (1874) 43 L. J. Ch. 449; 30 L. T. 351.

(r) Patrick v. Milner, (1877) 2 C. P. D. 342; 46 L. J. C. P. 537. See the judgment of Lord Parker in Stickney v. Keeble, 1915, A. C. pp. 415 - 417.

(s) Brooke v. Garrod, (1857) 2 De G. & J. 62, 66; 27 L. J. Ch. 226; Alderson v. White, (1857) 3 Jur. N. S. 1316; 30 L. T. (O. S.) 206; Austin v. Tawney, (1867) 2 Ch. 143; 36 L. J. Ch. 339; Rowlands v. Evans, (1861) 8 Jur. N. S. 88; 31 L. J. Ch. 265; Lord Ranelagh v. Melton, (1864) 10 Jar. N. S. 1141; 34 L. J. Ch. 227; Evans v. Stratford, (1864) 10 Jur. N. S. 861; 10 L. T. 713; Riddell v. Durnford, (1893) W. N. 30; Mills v. Haywood, (1877) 6 Ch. D. 196.

(t) Bolton Partners v. Lambert, (1888) 41 Ch. D. 295.

(u) Dibbins v. D., 1896, 2 Ch. 348; 65 L. J. Ch. 724; and see the judgment of Petersen, J., in Re Bebington's Tenancy, 1921. 1 Ch. 559.

(x) Popham v. Eyre, (1774) Lofft, 786; Sug. 14th ed. 262; Anon., cited 2 Sch. & L. 604.

A stipulation that time shall be of the essence of the contract as respects the delivery of objections to the title, raises a presumption that it is not to be essential as regards the completion of the purchase (a); and a provision for the payment of interest by the purchaser in the event of the purchase not being completed by the day named, indicates an intention that completion on the date agreed is not to be essential (b).

Time made essential as to objections is not thereby made eesen-tial as to completion.

Where a contract provides for possession being given by a. certain day, this means, prima facie, possession with a good title shown (c). In Tilley v. Thomas there was an agreement to purchase the leasehold of a house, with fixtures, etc, and fittings, "possession to be given on the 14th January next." The vendor offered possession on the date named, which the purchaser refused to accept, the title not having been then perfected. An action by the vendor for specific performance was dismissed, time being regarded as essential (d).

(y) Boehm v. Wood, (1820) 1 J. & W. at p. 422; (1823) T. & E. 332; Dyer v. Hargrove. (1805) 10 Ves. at p. 508.

(z) See observations of Lord Eldon, (1802) 7 Ves. p. 279; Notes v. Lord Kilmorey, (1847) 1 De G. & S. 444, 447; Gedye v. Duke of Montrose, (1858) 26 Beav. 45. Cf. Webb v. Hughes, (1870) 10 Eq. 281, 286.

(a) Wells v. Maxwell, (1863) 32 Beav. 408; 9 Jur. N. S. 565, 1021; cf. Webb v. Hughes, (1870) 10 Eq. 281; 30 L. J. Ch. 606.

(b) Hatten v. Russell, (1888) 38 Ch. D. 334; 57 L. J. Ch. 425; Levy v. Stogdon, 1898, 1 Oh. 478, 484, 485; 67 L. J. Ch. 313.

(c) Tilley v. Thomas, (1867) 3 Ch. 61; 17 L. T. 422.

(d) 3 Ch. 61, 67. As to what is delivery of possession, see Lake v. Dean, (1860) 28 Beav. 607.

Even an express stipulation that time is essential will not be given effect to, if the provision is in the nature of a penalty for the non-payment of money. In Kilmer v. British Columbia Orchard Lands, Ltd. (e), there was an agreement for sale of certain lands for 75,000l. payable by successive instalments over a period of five years, with interest on the balance for the time being owing. It was expressly agreed that time should be of the essence of the agreement, and in default of punctual payment the agreement was to be void and sums already paid to be absolutely forfeited. It was held that the provision as to forfeiture could not be relied upon and specific performance, at the instance of the purchaser, was decreed, notwithstanding default in punctual payment.