Houser v. . Reynolds

The declaration is sufficient.

NOTE BY REPORTER. — In the argument of this case it was argued that the words coming after the "Scilicet," where the ouster is described, should be rejected, and the word "afterwards" only retained. In which case it would read thus: "to have and to hold from the said 15th day of September, for and during the term of five years, and afterwards the casual ejector entered," omitting the words, to wit, "on the same fifteenth day of September, in the year aforesaid"; and for this were cited Bull. NisiPrius, 106. [Cro. Jac., 96,] and some cases from Espinasse; and also, that omissions in a declaration in ejectment are amendable — and authorities were cited to this point. But the Court being of opinion for the first point made in the argument, they gave no opinion on these. *Page 89

For the plaintiff were cited Pugh v. Duke of Leeds, reported by Cowper, and Runnington on Eject., 85. was then of opinion, after a very lengthy argument on both sides, that the words "from the day of the date," both according to the true acceptation and more especially according to the legal meaning, are exclusive of the day, and, consequently, that the ouster was before the plaintiffs' title commenced, and nonsuited plaintiff. But next day he granted a new trial, that the plaintiff might obtain a rule to amend so as to bring on the argument again at the ensuing term, when there would be more judges present, before whom the point might undergo a thorough examination and become settled. And now, at this term, the counsel for the plaintiff informed the Court he was ready on the part of the plaintiff to proceed to the trial of this cause, but as an objection had been taken to the declaration, which, if valid, and not to be gotten over either by amendment or by some other means, would render it useless for the plaintiff to proceed any further, he desired to have the opinion of the Court upon it; whereupon (115) they directed it to be argued.

Counsel for the plaintiff insisted that the demise was well laid in the declaration, and commenced on 15 September, 1791; the words "from the fifteenth day of September," or "from the day of the date," were inclusive or exclusive according to the subject-matter, and would be interpreted either one or the other as would best answer the intent of the parties — ut res magis valeat quam pereat; and this point was so settled inPugh v. Duke of Leeds, reported by Cowper, and recognized by Runnington, 85; and though formerly, as many of the old cases will prove, these words in leases were held to be exclusive of the day, yet the rule has been established of late as being incompatible with reason and good sense.

E contra, it was argued that Pugh v. Duke of Leeds was an exception to the general rule of law formed by the Court in that instance to get *Page 88 over the piece of manifest injustice that would have been operated by adhering strictly to the old rule.

Curia advisari, and after some days delivered their opinions:

I was present at the last term, and I was then very strongly of opinion that "from the day of the date" was exclusive; but I have since altered that opinion. In law there is no fraction of a day. Date signifies the day on which an instrument is delivered; and to say "from the date" is the same thing as to say "from the day of the date," and "from the date" is inclusive. "From henceforth" is inclusive — but it can only mean from this day when the instrument is delivered. Therefore, "from henceforth," "from the date," and "from the day of the date" must all mean the same thing; and the first of them is admitted on all hands, to be inclusive.

From, is either inclusive or exclusive, as intended by the party at the time of making it. From such a town to such a town, in respect of distance, must mean inclusive; otherwise, in the computation of distance, the space that these towns occupy will not be computed at all. It is so used in holy writ, "From everlasting to everlasting thou art God." So, also, in poetry.

"Great Jove laughs from his imperial throne — To hear mortals boast of prowess not their own."

Moreover, the case cited from Cowper was intended to form a general rule, and to settle the law for the future, and is peculiarly recognized in Runnington as settling the law in cases in ejectment, and establishing the ancient distinction between the terms "from the date" and "from the day of the date."