de 1806. versus WATKINS, for the manufacture was to be the place principally to be looked to. The entries are the 25th of December, 25th of March, and the 1st of May. The last is the BRADFORD most material, and six months notice before the 1st of May will be good. There are cases in which it is said, that the day of payment of rent is the substantial day of entry. I do not mean to interfere with the rule laid down in Doe d. Spencer v. Strickland, where that position is adopted; but that cannot be the case here, because Pentecost happens on one of the 25 different days in different years, and if that were the principal time of entry, the defendant might be turned out before he had occupied a whole year, the principal day of entry is the day before which the notice should be given. The 1st of May is that day: for the principal part of the lease applies to the manufactory which was entered upon on that day. LAWRENCE, J. "The question is, whether this is reasonable notice? The rule is that there must be half a year's notice before the time of quitting, which must correspond with the substantial time of entry, although some part may be given up before the end of the term. The substantial part of the demise is, in this case, the manufactory; all the rest is ancillary.” LE BLANC, J. "In the case of Doe v. Strickland, the court fixed on the day of payment of rent, as the day for determining the lease. There the court only inferred, that the rent day was the day on which the principal part of the premises was entered upon. Here the principal, the manufactory, was entered upon on a day which was not the rent day. The reason for giving six month's notice is to allow the party time to get himself a farm. It is said in argument that the bleaching ground, the meadow is the material part; but it is clear, that could not be so; because the entry NO. XXXV. N. S. 3 X 1806. Doe dem. versus WATKINS. Pleading. HORN vers us JACKSON. on that was at a time when the party was not in the possession of the houses or any place where he could carry on the manufactory.' RULE DISCHARGED. ELIZABETH, HORN Executrix of JOHN HORN against WILLIAM HORN and RICHARD JACKSON.— June 13th. In an action upon an annuity bond, where the defendant pleads the statute, if it appear by the pleadings, that the consideration, is for relinquishing of business, and not as money consideration, and therefore, excepted by the statute, the plaintiff may demur, and need not be put to reply that the bond is not within the statute. DECLARATION, in debt, on bond for 3,6301. with the following condition for the payment by the defendants William Horn and Richard Jackson, or either of them their or either of their heirs, executors, or administrators, unto John Horn, his executors, administrators or assigns of 1,8151. with legal interest, to commence from the 1st day of March instant, on the 1st day of September next ensuing the date of the bond or obligation. And also upon a further bond for 5000l. with condition for the payment by the defendant, one of them, their, or one of their heirs, executors, administrators, &c. unto John Horn, his executors, administrators, or assigns, for and during the natural lives of him the said John Horn, and of Elizabeth his wife, and of the life of the survivor or longer liver of them one annuity or yearly sum of 6001. free from all taxes, &c. with other usual provisions. The defendants after oyer of the said bonds and conditions, pleaded non est factum to each, upon which issue was joined. And as to the first bond usury in the loan of 1,8151. from the 1st of March 1801, to September 1st 1801, paying interest at 51. per cent. for that time to be secured by bond, when in fact the money was not advanced till after the 20th day of March; that the obligee forebore and gave day of payment during that time, and in pursuance thereof, for securing the repayment thereof, the bond first mentioned was given, &c. The defendants also pleaded several pleas stating. that John Horn deceased, was in partnership with them; and in consideration of releasing the business to them, and of the debts to be relinquished to them, which did not come into present payment, took the bonds for receiving payment of the value thereof, with interest, and so alledged, that the consideration was usurious. Amongst the rest was the following plea which serves more fully to explain the nature of the transaction: that before the making the said writing obligatory in the said first and second counts of the said declaration mentioned or either of them, to wit, on the 24th of February, 1801, the said John Horn and Robert Horn and the said William Horn, were co-partners together, (to wit) as distillers, and before the making the said writing obligatory or either of them (to wit) on 1st of March in the year 1801, said Robert Horn ceased to be a co-partner with said John Horn and William Horn (to wit) at London, &c. that before the making the said writing obligatory, or either of them (to wit) on the 20th of March, 1801, said John Horn was desirous of withdrawing himself from the aforesaid business of a distiller which he had theretofore carried on with the said Robert Horn and William Horn in order that the same business of distillers might be carried on by the said William Horn and Richard Jackson, in co-partnership together, upon such terms as were to be agreed upon in that behalf, (to wit) at London, &c. That before the making the said writings obligatory in the said declaration 1806. HORN LISHS JACKSON. 1806. HORN versus JACKSON. mentioned or either of them; to wit, on 20th March 1801, at London, &c. it was corruptly and against the form of the statute, &c. agreed by and between the said John Horn and the said defendants that the said John Horn should withdraw himself from the said business as from the 1st March then last past in favor of the said William Horn and the said Richard Jackson, and permit them to use, occupy, and enjoy a certain distil house, and certain other premises then and there specified in that behalf, and certain vats, stills, and utensils of trade therein and thereon, in consideration of an annuity or yearly sum of 600). to be paid to him, the said John Horne, his executors, administrators, and assigns, for and during the lives of himself and Elizabeth his wife, and the life of the survivor or longest liver of them, and, that the debts due and owing to the said John Horn, Robert Horn, and William Horn, as late partners, which on the 1st day of March 1801,were considered good and recoverable. And also all the horses, carts, drays, and casks of the said late copartnership (save and except certain stills, vats, and utensils in that behalf agreed upon should be purchased by the said William Horn and Richard Jackson, the said Robert Horn having consented thereto,) at 18151. and that the said John should lend to the said defendants 18151. and should forbear and give day of payment to the said defendants of 1815). from the 20th of March in 1801, until and upon the 1st of September 1801, and that the said defendants for the loan of 18151., and for the forbearing and giving day of payment thereof from 20th of March 1801, until and upon 1st September 1801, should pay to the said John so much money as would amount to the interest of the said 18151. from the 1st March 1801, to the 1st September 1801, at the rate of paying 51., for the forbearance of 1001. for one year, although the said 18151. was not in fact lent by the said John to the said defen dants on the said 1st. of March 1801, nor until long after the said 1st March, and although the said debts due and owing to the said John Horn, Robert Horn, and William Horn, as copartners as aforesaid, and which amounted to a great part of the said 18151. were not in fact, paid to the said defendants until long after 1st March 1801, and the same did not carry any interest thereupon, and that the said defendants for secu ring to the said John the payment of 18151. and of the sum of money to be given for the forbearance and giving day of payment thereof, from the 20th of March 1801, until and upon the 1st September 1801, upon the said 1st September 1301, should seal, and as their deeds deliver to the said John a certain writing obligatory in the penal sum of 36301., with a condition thereunder written for the payment of 18151. with legal interest for the same, to commence, and be computed from 1st March 1801, to the 1st September 1801, and that the said defendants for securing the payment to the said John, his executors, administrators, and assigns, of the said annuity or yearly sum of 6001. should seal, and as their deed deliver to the said John a certain writing obligatory in the penal sum of 5000l.with a condition thereunder written for the payment unto the said John Horn, his executors, administrators, and assigns, for and during the natural lives of him, the said John Horn and Elizabeth his wife; and the life of the survivor or longer liver of them. One annuity or yearly sum of 600l. of lawful money of Great Britain, free from all taxes, &c. Stating the above bond and condition. The pleas stated the giving the bonds for securing the same and giving day of payment for the same, and that the money so agreed to be paid and so secured to be paid by the said defendants to the said John for the forbearing and giving day of payment of the said sum of 18151.during the time aforesaid,exceeds the rate of 51. for the forbearance of 1001. for one year, 1806. HORN versus JACKSON |
