that day should be included. Consequently, according to this rule, A. had the whole of the 12th of July, and it followed that the day of the testator's death must be considered as legally excluded from the six calendar months. Judgment was accordingly given in favour of the bequest to A.'s children (w).

Notwithstanding this elaborate decision, which was come to after a consultation of all the authorities, the present leaning of the Courts would undoubtedly be to countenance the doctrine of a fraction of the day, rather than that an instrument should perish which had been executed under such circumstances. The morality and equity of the case were with A.'s children; and were it necessary, there is little doubt but that the Court would now adhere to the maxim—“ut res magis valeat quàm pereat."

The following case will illustrate in some degree the idea just suggested. It was one in which it was attempted to employ ir Wm. Grant's rule in hostility to a reasonable and equitable claim. It is true that the doctrine of including the day of the act done might have been unfriendly to the claim of A.'s children in Lester v. Garland, had both days been reckoned, but by excluding the day of the testator's death, this rule worked no injury. To carry out the principle generally would have been productive, as we shall now shew, of some inconvenience. On Saturday morning, July 9th, a fire broke out in the hundred of Wonford, Devon. There was no doubt but that the fire was maliciously done. It destroyed several premises belonging to the plaintiff. On Monday, the 11th of July, before two o'clock, the plaintiff gave notice of the offence to four of the inhabitants of the hundred, and complied in other respects with the directions of the stat. 9 Geo. I., upon which he grounded his action against the hundred. There was a nonsuit; but four points were submitted to the Court in the shape of objections to the right of the plaintiff to recover. It is with one only of these that we are at present concerned. It was said on behalf of the hundred that the notice had not been

(w) 15 Ves. 248, Lester v. Garland.

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given in time. The hundred insisted that the notice should have issued on the Sunday, and Norris v. The Hundred of Gawtry, amongst other cases, was relied on. The counsel for the plaintiff (x) referred to a note in Williams's Saunders (y), where this case of Norris v. The Hundred of Gawtry is cited, and said that the objection was founded on that note. But he added, that the case of Nesham v. Armstrong (z) had passed through the Court, but that this objection had not been surmised upon that occasion (a). The Court gave judgment for the plaintiff, holding the sufficiency of the notice. They did not overrule any of the decisions; but Lord Tenterden, noticing Lester v. Garland, remarked, that it was impossible to reconcile them all, or to deduce from them any clear rule or principle to govern all cases. Lord Tenterden then observed upon the rule laid down by Sir Wm. Grant concerning the inclusion of the day where an act was to be done by a party, but he said that the case here was quite distinct. The computation was to be made from an act not done by the party, and of which at the time he was wholly ignorant. Here also only two days were allowed for giving notice: if those two days expired on the Sunday, when would the time have expired had one day only been allowed? It could hardly have been said that the notice must be given on the very day when the fire happened; and if one day would have extended the time to Sunday, two days must extend it to Monday. The Master of the Rolls had thought that the Court was at liberty to look at the particular circumstances of each individual case, and that the rule for deciding whether a certain day should be considered as excluded or included was, that where a computation is to be made from an act to be done by the party, the day of doing the act shall be included, but not otherwise. The learned Lord concluded by applying the rule thus tendered by the Master of the Rolls, and said, that according to that rule the notice was in time. The postea was accordingly awarded to the plaintiff (b).

(x) 9 B. & C. 139.

(y) 2 Wm. Saund. 375, n. (3).

(z) 1 B. & Ald. 146.

(a) Hob. 139, ante, p. 118.

(b) 9 B. & C. 134, Pellew v. The Hundred of Wonford. S. C. 4 Man. & Ry. 130. As to " Sunday," see ante. Norris v. The Hundred of

Again, a justice had committed the plaintiff to prison, and the discharge took place on the 14th of December. The writ against the defendant, the justice, issued on the 14th of June. It was objected at the trial, that as the imprisonment continued during a part of the 14th of December, that day must be excluded from the computation of the six calendar months within which the action might be brought. The learned Judge, however, finding that the damages to be awarded would only be one farthing, directed a nonsuit. But the Court, upon a motion to enter a verdict for the plaintiff, gave judgment in favour of excluding the day, and consequently were of opinion that the action had been commenced in time. And it appeared that several of the leading authorities had been brought under their notice. Bayley, J., who delivered judgment, referred to Lester v. Garland, and Pellew v. The Hundred of Wonford, and said that the Court would, in this case, act upon the rule laid down by Sir W. Grant (c). This rule was, "that where the act done, from which the computation is made, is one to which the party against whom the computation runs, is privy, the day of the act done may reasonably be included, but where it is one to which he is a stranger, it ought to be excluded” (d).

The date of a patent, indeed, may seem at first sight to interfere with the rule above sought to be established, but we shall find that in the case about to be noticed, the Court pronounced in favour of the patent, and consequently the subject-matter of the discussion did not perish.

This was a case in which an action had been brought for the infringement of a patent. The defence was that the original patent was at an end, and that the renewed letters patent were granted after the expiry of the old term, which was for four

Gawtry can hardly be said to be touched by this decision, because there a whole year was allowed for prosecuting the hundred, whereas in the present case Lord Tenterden adverted to the fact of there being a notice of two days only. That circumstance would seem to make a particular distinction between the two cases. And, in effect, the Court intimated their approbation of the well received principle, that the particular circumstances of each case should be inquired into, in order to arrive at a righteous decision,

(c) 9 B. & C. 603, Hardy v. Ryle.

(d) Id. 608.

teen years, and, therefore, that they were void. It appeared that the first patent was dated the 26th of February, 1825. It was to endure for fourteen years, and the first question was whether the term was complete on the 25th of February, 1839, or on the 26th of February of that year. The second patent bore date the 26th of February, 1839. At the trial the defendant was successful. It appeared to the Judge that the term had ended on the 25th,-that the day of the date of the first patent was inclusive, and it was surmised that new letters patent could be granted after the expiry of the first. A verdict was accordingly entered for the defendant. But a rule was obtained for judgment non obstante veredicto, and the Court made it absolute. Not that they overruled the opinion as to the expiry of the term. They held that the patent was at an end on the 25th, but they said that the new patent might well ensue after such expiry, provided the conditions of the statute (5 & 6 Wm. IV. c. 83, s. 4) were obeyed. And as it had been attempted for the defendant to urge that the fraction of a day might be made available for him, Parke, B., observed, that the law never takes notice of the fraction of a day, except where there are conflicting rights between subjects. Nevertheless, the defendant succeeded on the grounds above mentioned, and the judgment of the Exchequer was confirmed in error (e).

possible

Cases have happened where there has been no date at all, or No date at an impossible date, which is equivalent to a nullity. As where all, or imjustification was made under a precept alleged to bear date on the date. 26th of February, but issuing out of a Court held on the 24th of February. Here the process was held void, not voidable, and the justification bad (ƒ). So if a condition becomes impossible, as by death, the party originally bound by it is discharged (9). Unless, indeed, he might well have performed it before the death, in which case he becomes liable to the executors (h). But a defective or impossible date is, by no means, on all occasions a nullity. Thus, if a lease bear date on the 30th of February

(e) 14 Mees. & W. 574, Russell v. Ledsam. 16 Mees. & W. 633, (in error). (f) Willes, 122. 125, Morse v. James and others.

(g) 2 Rep. 79. 2 Mod. 234, Shipley v. Chappel.

(h) 1 Lutw. 694.

or the 40th of March, it shall not be void, but commence from the day of the delivery (h). Although in pleading it should not be alleged to bear date on the impossible day. Some other day should be selected, and that day will be construed to be the day of the delivery (i). So, after verdict, in ejectment, it was moved to arrest the judgment, because neither the day of the date nor of the sealing and delivering of the indenture was mentioned in the deed. But the Court said, that they would intend that the indenture bore date, and that it was sealed and delivered on the day mentioned in the declaration (k). A lease was promised under an agreement for the same as soon as certain repairs should be completed, but blanks were left for the commencement. The lease being tendered upon completion of the repairs, to commence from that time, the tenant refused to take it, and, upon bill filed, contended, that the new lease ought not to commence until the expiration of the old. And the Court decreed in favour of this objection by the tenant ().

After verdict, it appeared that the defendant had pleaded payment of a bond upon the 31st of September,—and the verdict was that he did not pay. This was held, upon error brought, a good verdict, and not a void nor idle issue, for the jury, in effect, found that the defendant did not pay (m). Again, the time upon a bill or note payable within a limited time after the date, where there is no date, must be computed from the day it issued (n). In the Common Pleas a notice for the defendant's appearance was fixed for an impossible day, the writ being tested on the 28th of November, 1808, to appear on the 20th of January, 1808; but the Court would not set aside

(h) Co. Litt. 46, b. 2 Rep. 4, b, 5, Goddard's case. 2 Lord Raym. 1076, Armitt v. Bream. "And that is one sense of datus," Id. 1082, i. e. the delivery. 4 B. & C. 911. As to cases of misrecital, see Dy. 116, Mount v. Hodgkin and another. S. C. 1 And. 3. S. C. Bendl. & D. 38. Cro. Car. 400. Sid. 460, Foot v. Berkley. "For misrecital a lease shall commence immediately." 6 Rep. 34, a, Bp. of Bath's case. Co. Litt. 46, (b), n. (10).

(i) 1 Lord Raym. 335. 1 Salk. 462. Comb. 477.

5 Mod. 288. 12 Mod. 193, Cromwell v. Grumsdale.

(k) Cro. Jac. 646, Heaton v. Harleston.

(1) 3 Ves. 34, Pym v. Blackmore.

Holt's Ca. 502.

(m) Cro. Car. 78, Purcase v. Jegon. S. P. Comb. 443, by Holt, C. J., in Prince v. Moulton, the 30th of February.

(n) Bayley on Bills, 112.