CH. 27. The word month may mean lunar or calendar, according to the intention of the parties contracting. 1 Maule & Sel. R. 111, 118, Lang v. Gale. 4. A stranger to à deed is not held to state its precise date, Partridge v. Strange & al., Plowden 77; Dyer 74 S. 2 Salk. 462. C., and it is enough he state the substance of it. -1 Cro. 14, case of Drury.-12 Mod. 204, Pullen v. Benson. Cowp 714, 725, Pugh & ux. v. Duke of Leeds. 433 to 541. 1Evans' view ART. 5. The day of the date how construed. 1. An impossible date is as no date, and the plt. must declare of the time of making the contract; and in said Drury's case it was held that the delivery of the deed is the true date, and not the one expressed in the deed; for the deed takes effect from its delivery, and hence that is its date when it begins to ope rate. § 2. When a power is given to A, in a marriage settlement, to lease lands for 21 years, in possession and not in reversion, Pow. on Pow. A made a lease of 21 years to his only daughter, to commence from the day of the date. The court held this a good lease, and Lord Mansfield and the court considered every case on the subject, and decided that from may mean inclusive or exclusive of the day, according to the context and subject matter; and the court will construe it so as to effectuate the deeds of the parties, and not to destroy them. of Ld. Mans field's decisions 221; and 3 D. & E. 623. 3 Bl. Com. 318. 1 Caines' R. 153. 1 Mass. R. 143, Com 3. A day's journey in the Civil law, and in the law of England, is estimated 20 miles; so in the law of New York, as to notice. 4. Where there is one date, as the 15th of October, 1802, in the penalty of a bond, and another in the condition, as Ocmonwealth v. tober 25, 1802, the date in the penal part was taken as the Hearsey. true date. 12 Mod. 401, 5. In this case it was held that if A give a general release Bishop &c. v. to B, on a certain day, and he the same day gives a bill or Bridges. note to A, bearing even date with the release, this shall not discharge the bill or note; but the release shall be deemed to be first made. Marius Lex. Mer. 24, Chit ty on Bills 105, is cited 6 T. R. 212. 6. If a bill be payable on a certain day, it is not payable till the day is expired, and no action can be commenced till the next day. But it is to be considered that by a modern commercial rule, on bills and negotiable notes, the day of the date is not computed, but the day of the demand or payment. And "a bill payable at so many days sight, is to be accounted so many days next after the bill shall be accepted, or else protested for non-acceptance." Where four days may be from Wednesday to Tuesday, as four days to perfect bail after exception; exception on Wednesday, party has to the next TuesNorth v. Ev- day; for Wednesday is exclusive, Sunday is no day, and Monday is all reckoned inclusive. 2 H. Bl. 56, ans. 1. In CH. 27. Art. 6. Miller. ART. 6. The effect of altering the date of a bill. this case the court held, Lord Kenyon, Ashhurst, and Gross, Justices, contra Buller, that where the date of a bill accepted was altered by one unknown, from March 26th to March 20th, 4 T. R. 320, the bill was, thereby, rendered void-and that no action lay Master v. upon it against the acceptor, even in favor of an innocent en- Officer alleg dorsee, for a valuable consideration; that the date is a materi- ed to have al part of the bill; and that there is no difference between a been appointed one day, bill and a deed. If any however, the law will accord most proof apagainst the alterations of bills that circulate in the market. pointed a day Deed may be altered by consent of parties in a material part. continued on before, and In this case the court decided, that if a note be given to pay that alleged, in sixty days, the court will supply the words from the date, is good, Day's Ca. and construe it to exclude the day of the date; for otherwise 528.-See a note payable in one day, would be payable immediately af- Ch. 97, a. 3. ter making it. 13 Johns. R. 470. บ. -8 Mass. R. 453, Henry v. 19. Dec. 1812, v. Patten & 2. This court decided, that if a statute be passed on the Jones, cited 1st. day of July, 1812, as the double duty act of Congress 2 Phil. Evid. was, to take effect from and after passing it, the day of pas- District sing the act is excluded, and it takes effect from that day. A Court Maine, writ of error was sued out, but dropt. So is Latless, ex'r. Holmes & al. T. R. 660; but secus Ch. 224, a. 7, s. 4. §3. This was assumpsit on several promissory notes, each al. under $5, made by the defts. payable to bearer, all dated be- 6 Mass. R. fore April 1, 1805, not wholly in writing but partly printed. al, v. Taber By statute of 1804, ch. 58, no action could be maintained on & al. such notes issued after April 1, 1805. Held, the defts. must prove these notes issued after April 1, 1805, to bring them within the act, and that the plts. were not bound to prove the delivery to themselves. $4. October 2, 1775, Congress resolved that when the word month is used, a calendar month is meant. This was only making the common opinion of the country statute law. 451, Bailey & 3Cranch 229, ad❜mr. 5. The bond declared on, bore date October 3, and the Cooke v. bond produced, on oyer, January 3, preceding. Deft. demur- Graham's red generally to the declaration-joinder-demurrer withdrawn and deft. pleaded general performance of the condition of the bond; plt. replied, and assigned a breach &c.; the deft. rejoined; to this rejoinder the plt. demurred specially, and assigned five causes of demurrer; judgment thereon for the plt.; deft. on leave filed an additioual plea; replication thereto, and judgment for the plt. below; deft. filed bills of exception &c. On error brought, Supreme Court of the United States held, 1st. The said variance as to the date of the bond was matter of substance and fatal. 2d. By the oyer, the bond was made part of the declaration. 3d. There was a bad declaration, a bad rejoinder, and a special demurrer by CH. 28. the plt. to the rejoinder. 4th. When the pleadings are thus Art. 1. spread on the record by a demurrer, it is the duty of the court to examine the whole, and go to the first error. 5th. When the special demurrer is by the plt., his own pleadings are to be scrutinized, and the court will notice what would have been bad on a general demurrer. 6th. This variance in the date of the bond had clearly been bad on general demurrer. When a note demandable immediately, is on interest from a month named, but no year, the month of the name is that nearest the date. 3 Caines' R. 89, Whitney v. Crosby. CHAPTER XXVIII. See Ch. 101, a. 3, s. 10. Mass. Act, Oct. 30, 1784. ASSUMPSIT, RULES OF DAMAGES IN; DAMAGES HOW ASCER- As the sole object of this action is to recover damages for a breach of contract or promise, the principles on which, and the rules by which damages are ascertained, may very properly be considered here. And though they are generally ascertained by the jury in a late stage in the suit, yet rules in cases of contracts will generally be found, by which the jury is to be governed. It is best to bring these rules together in order to have a fair view of them. As by our law, an action must be brought before a Justice of the Peace, or in the Common Pleas, without an appeal, or with one, according to the sum the plt. recovers, it is best, and often necessary, before the plt. commences his action, to consider, and often accurately, by what rules, and on what ground, the sum he may recover in damages will be ascertained. The like inquiry is important in New York, and most of the other states. ART. 1. General principles. 1 By the act, it is provided that when the deft. does not appear " by himself or his attorney, his default shall be recorded, and the charge in the declaration shall be taken and deemed to be true, and the court thereupon shall give such damages as they shall find, on inquiry, that the plt. shall have sustained," unless he move for a jury of inquiry, to inquire into the damages. Hence by this act the plt., at his election, may have his damages assessed by the judges or the jury. Laws of Maine, Ch. 59. CH. 28. Art. 2. T. R. 539, v. Utterson 2. The English practice is to ascertain the damages by the judges only, when it is a mere matter of calculation; and if the amount of the plt's. damages can be ascertained without a jury's intervention, it may be proved under a commis- 3 sion of bankruptcy, as stock on a certain day; so interest on a given debt for a certain time. 8 D. & E. 326, 395, 410; -4 Dal. 149. Dougl. 302; 1 H. Bl. 252, 541; 3 Dal. 355; 2 Saund. 107. —1 Dal. 185. § 3. In this case the manner of computing damages on de- 5 D. & E. preciated money, was this; first the paper was reduced to spe- 4 Mass. R. cie value by the scale of depreciation; and then the interest 103, Edes & al. admrs., v. 87. was computed on the specie amount, and both constituted the Goodridge. plt's. damages. paid to the state. 1 Hen. & Mun. 144, State v. Walker. Same rule in Virginia, as to British debts 4 Mass. R. 4. In this case the warrantee of lands was evicted of them by an execution for the debt of the warrantor's testator, 151, Wyman and the warrantee redeemed them within the year; the sum hev. Brigden. paid, and interest, was held to be the measure of his damages; this sum removed the incumbrance. Decided in an action on the covenant in the deed. Same rule settled in New York. 5. It is a settled rule that the plt. may recover less, but Imp. M. P. never more damages than he declares for, but he may always 191, 192.recover his costs over. And in all cases where the plt. has 1 Salk. 113. damages by the common law, he also has costs. Civil Code of $6. In assumpsit promises are the foundation of damages, See the rule which are for the delivery of goods, or for transporting stock, as to damaor some property, on demand, or on some day named; some- ges in the times to pay an unreasonable sum, and sometimes on failure to Louisiana, p. perform, to pay a sum in the nature of a penalty. In these 263, a. 50 &c. cases it is material to see how, and at what point of time, the plt. is to have his damages. § 7. The judges will increase the damages given by the 1 Dyer 105. jury only in mayhem, and this on inspection, and according to -1 Wil. 5, discretion. Brown v. Seymour. § 8. In this case the court held, that if the plt. in replevin 4 Mass. R. neglect to prosecute his action, or replevy goods taken in exe- 614, Bruce v. cution, the deft's. damages are 6 per cent. on their bond, and in all other cases such as the jury shall assess. Learned. 9. Damages assessed against defaulters, though deft's. 2 Strange pleading to issue acquitted; and see Hill v. Goodchild. ART. 2. Promises to deliver goods, transfer stock, &c., on a day named. 1. If in these cases the plt. has a right to lay the express promise aside, and resort to his legal assumpsit, it is a distinct matter, and will not be considered in this place. But if he brings his action on the express promise, the question is how his damages shall be ascertained; between the day of delivery agreed on, and the day of trial &c., the value may vary very much. 1222. Сн. 29. Gil. on Leases 360.- 3Cranch 298. Hob. 43, in 2. But the rule seems to be well fixed, that the value on the day agreed upon for the delivery, transfer, &c., shall be the measure of damages, with interest thereon from that day. On that day, or at least the moment it ends, the plt. becomes entitled to have the goods or stock &c.; his right of action then attaches to recover his damages for the non-delivery or transfer, and the right of action is not affected by any subsequent rise or fall in price of the things to be delivered or transferred; and so are the authorities on the whole. English cases generally so; only one case, Shephard v. Johnson is contra; and this doubted. 3. The jury must assess damages according to the value of the corn, at the time it was to be delivered. And where the recompense is merely in damages, the rule is the same in simple and special contracts. In 1779, land in Virginia was leased by deed, annual rent £26, current money, forever. Held, the rent was to be reduced, not by the scale of depreciation, but the actual annual value of the land at the time the contract was made, in specie. 2 Cranch 10, Faw's case; 1 Hen. & Mun. 361, 338, Nichola's ex'r. v. Tyler, in chancery. A bond was given while paper money was depreciating; adjudged it was not liable to the scale of depreciation, in case of proof, by circumstances, it grew out of a hard money debt, payable therein, though this fact did not appear on the face of the bond; the circumstances appeared in accounts in writing. See Ambler v. Wild, 2 Wash. 36; Bogle & al. v. Vowles, 1 Call. 244; Call v. Ruffin, 1 Call 334 and 524; Walker v. Walker, 2 Wash. 195; Pleasants v. Bibb, 1 Wash. 8, on this subject of depreciation. Though the Virginia act applied the scale at the date of the contract, it allowed the courts some discretionary power, and Shipwith v. Clinch, 2 Call 253, the inquiry went behind the date of the contract. 2 Hen. & M. 550, 557, Faulcon, admr. of Hamlin, v. Harriss; depreciation of specie from 1774 to 1783 &c., 100 per cent. in Virginia, compared with lands and slaves, as when Harriss, in 1782, gave a bond to Hamlin, £50,000 penalty, conditioned to pay £1000 specie, "or such further sum as should be equal to the said £1000, in the year 1774, that is to say, to purchase as much land and as many negroes as it might have done at that time." Held, not usury, and the jury found £1000, in 1774, would have purchased as much land and as many slaves as £2000 in 1782, 1783, 1784, 1785, 1786 and 1787, within which years said bond was payable. Held, also the plt. to recover such difference must state and aver it in his declaration. 4. If one be entitled to estovers, and is deprived of them, v. Andrews.-Lutw. 58.-3 Wils. 429.--Stra. 406. |