Fellows v. Carpenter

dissenting. I fully agree, that the written agreement entered into between the parties, is to be considered as a condition to the note declared upon, and must guide and direct its operation: But we are not to make agreements for the parties, or so to, construe those which they have made, as totally to vary them from the plain letter and expression. The duty arising on each of the notes referred to, is expressly on the child’s living each entire year; and the note in suit was not to become- obligatory, unless the child lived two years from its birth; which is a condition precedent. If it was the intention of the parties to apportion either year, and divide it into parts, as the child might live, there are apt words to express it; but in this agreement, an entire year is expressed, and we cannot divide and apportion it different from the contract. The law favors no such construction, nor does it admit of an apportionment on an entire contract. As in case of rent on a lease for years, the rent to be paid annually, and the leasee is evicted within any given year, the rent for that year is not recoverable; nor can it be apportioned for that part of the time which he occupied.— Where the consideration is one, and the debt one, it cannot be divided. 1 Salk. 65.— 3 Mod. 153. — 10 Coke, 128.— 1 P. Wms. 392.

The note declared on, was in fact given to secure the second year’s maintenance of a bastard child; and the written agreement entered into at the same time, in nature of a condition to the note, as set forth in the plea in bar, though inaccurately expressed, amounted to no more than, that if the child should die before the year commenced, nothing should be paid on the note; or if within the year, only a sum proportioned to the time it should live; — the child lived a part of the year, and for aught that appears, the damage assessed upon the note were in due proportion thereto.

As to the appeal taken to the adjourned Court of Common Pleas, it did not lie.— The words of the statute granting appeals are, "to the next County Court; ” which has reference *367to tlie next stated term, and not to an adjourned session, which, is properly but a continuation of a term; and so hath invariably been the practice upon the statute.