Bayley v. . Bugs , 1 N.C. 813 ( 1793 )

Resolved, PER CURIAM: That without an appointment it is not necessary to pay. For the request is here part of the reservation and part of the contract. Obligation to pay so much money, on request, between midsummer and Michaelmas. Per Crew. Without a request the obligation is gone forever. It is not in the nature of a rent. If one reserves a rent of £ 40 annually, payable between midsummer and Michaelmas, in such weekly sums as the party shall require, he shall not lose his rent. But a distinction is to be taken in cases where the thing received may without damage be paid as well at one time as at any other. So in the case put just now of the rent, if it be not demanded weekly, it may be laid up until the last week, but if one leases a dairy, reserving 100 lbs. of butter, payable between May-day and Holy-mass, by such a quantity weekly, the lessee shall not be compelled to pay all the last week. If one reserves 100 couple of woodcocks, payable between, etc., and the last week is after the time of their departure beyond the sea, he is not bound to pay them. So, in case of a reservation of roses between midsummer and Christmas.

But exception was taken that the plaintiff brought his action in London, where the lease was made, and after the term was assigned over, while, it being against the assignee, it ought to [be] brought in the county where the warren lies. For where, as in this case, the action is maintainable only on the real contract, and not on the personal, it ought to be brought where the land is. Treherus' case; M. 17 Jac. rot., 600. C. B. Waller'soffice adjudged, viz. Lease for land in Surry, made in London, rendering rent, lessor devises the reversion and dies; the devisee brings rent in London; held bad.

Curia advisare vult. Antea, p. 720; Vin., 26, 69; Hut., 68; Jones, 41.