delivered the opinion of the Court.

The facts of this case, and the questions therein involved, lie within a very narrow compass. They are as follows: (here the Judge stated the facts in the bills of exceptions,) and then said, the principal question in the case arises upon the true construction of Scott’s order upon the Company, in favor of Daniel Kemp. By the terms *114of his contract with the Company, Scott was hound to rebuild the mill by the first of June, 1825, and it was proved in the cause, that it was not rebuilt until the first of January, 1826. The mill was burnt down in August, 1824. The Company having elected to rebuild the mill, were bound to do it in a reasonable time. Scott contracted on the 15th of October, to rebuild it by the 1st of June, 1825, and his last payment was to be made upon that conditionand although time is not generally considered to enter into the essence of a contract, yet in this case, we think it ought to have that effect, by reason of the Company’s liability to the assured, to rebuild in a reasonable time; and for the non-performance of which, it appears, that a suit had been commenced against them. We think, that upon the true construction of the order, Daniel Kemp was entitled to receive the $750 from the Company, only in the event of Scott’s becoming entitled to receive his last instalment of $1000, out of which it was to be paid, upon complying with the terms of his contract, to rebuild the mill by the 1st of June, 1825. We are furthermore of opinion, that the affidavit of David Williamson, was properly rejected, as he was present in Court at the time, and ought to have been sworn as a witness, the defendants in the cause being entitled to a cross examination.

judgment affirmed.