9 N.H. 304 | Superior Court of New Hampshire | 1838
It is unnecessary, on this occasion, to go into a minute and extended examination of the English and American cases upon the computation of time, with a view to deduce from them a general rule applicable to this subject. The attempt, if made, would be full of difficulty ; and might lead to the opinion, that the “ question must be considered as still open, and indeed of a nature so much at large as to be incapable of submission to a general rule.”
It was laid down at an early date, and has often been repeated, that when computation of time is to be made from an act done, or from the time of an act, the day when the act is done is to be included. Comyn’s Dig., “ Temps,” A ; 3 D. & E. 623 ; Doug. 464; 5 Coke 1; Croke James 135 ; 3 East 407; Woodf. Land. & Ten. 163; 3 Stark. Ev. 1399.
Yet the actual decisions cannot be brought within any such rale. Indeed, so numerous are the exceptions already made, that the rule itself is nearly lost sight of, and in England at least is of doubtful authority. The tendency of the more recent decisions undoubtedly is to exclude the day of the act, unless to save a forfeiture, or for some other special reason it becomes necessary to reckon it inclusive. Lester vs. Garland, 15 Ves. 248 ; Dowling vs. Foxall, 1 Ball &
It is not so important which rule is adopted, as it is that uncertainty on this subject should be avoided. And, in adverting to our own reports, we find it declared as the settled law of this state, that when a computation is to be made from an act done, or from the time of an act, the day when the act was done is to be included. But in the computation of time from a date, or from the day of a date, the day of the date is to be excluded. 3 N. H. R. 94, Priest vs. Tarlton ; 4 N. H. R. 276, Rand vs. Rand.
We are not disposed to question the authority of these decisions.
It seems to be agreed that, where a note is made payable in a given number of days, the day of the date is excluded. Chitty on Bills 205 ; 6 East 14, note; 3 N. H. R. 16.
By the agreement under consideration, the plaintiff was to have three months to satisfy himself: and after that time the agreement was to be null and void. But it is not expressed to be in three months from the act done of contracting or signing ; or in three months from the date or day of the date. What then is to be the construction given to the language of the contract in this particular ? We think the more natural and obvious construction is to refer to the date of the contract; as if it had been said, the plaintiff is to have three months from the date. Notes and obligations are usually so written, containing promises to pay in thirty or sixty days ; which is well understood to refer to the date of the instrument as the time from which computation is to be made.
The tender on the 8th of July was, therefore, sufficient.
As the cause must go down for a new trial, we have considered the objection to the evidence on the ground of vari-
But if they owned another, and a different quantity, the variance would be fatal. The objection, however, may be obviated by amendment. New trial granted.