4 N.H. 267 | Superior Court of New Hampshire | 1828
It has been contended, in this case, that the appeal ought not to be sustained, because the notice of it was not served upon the defendant within thirty days, in pursuance of the order of the judge of probate. But in the computation of time from a date, or from the day of a date, we consider the settled rule in this state to be, that the day of the date is to be excluded. 2 Cowen, 605, Exparte Dean, and 518, Snyder v. Warren; 3 N. H. Rep. 16 and 94; 16 Johns. 120; 8 Mass. Rep. 453.
By this rule of computation the service in this case was made in season.
It is further objected, that the service was insufficient because the copies left with the defendant were not at
The statute of July 2, 1822, sec. 5, 2 N. H. Laws, 145, provides that when a creditor has appealed from the decision of commissioners upon an insolvent estate, and has filed his declaration in the probate office, “the judge shall order the executor or administrator to be served with a copy of such declaration, and to be notified of the appeal made by such creditor ; and the creditor may, at the court appealed to, enter his action as plaintiff against the executor or administrator, and shall produce an attested copy of such his declaration, and the certificate of the judge of probate that notice was issued to the executor or administrator, and evidence of the compliance with such order.” This provision does not in express terms require that an attested copy of the declaration and other papers should be given to the defendant, but we have no doubt that, regularly, such a copy should, in pursuance of the order of the judge of probate, have been given. And had the service in this case been made by any other person than a public officer, it is very questionable whether it could have been adjudged legal. But the copies were left by a public officer, in this case, with a copy of his return endorsed upon them, and we are inclined to think that this gave sufficient authenticity to the copies, to render the service a substantial compliance with the spirit of the order of the judge of probate. We are therefore of opinion that the appeal ought to be sustained.
It has been urged, that evidence of a bond with condition was improperly admitted in this case, because the instrument stated in the declaration is only described as a single bond ; and a new trial is demanded on the ground of a variance between the allegations of the declaration, and the proof.
It is conceded, that in general it is not necessary, in debt upon a bond with a condition, to set out the condi*
In debt upon a bond, the plaintiff is bound to make a profert of the instrument, or to allege a legal excuse for not making it ; and if he omit to do this his declaration will be deemed defective in form, and will be adjudged bad on special demurrer. 1 Chitty’s Pl. 350; Com. Dig. “Pleader” O 17.
And when a profert of a deed is made, the defendant is entitled to oyer, and the plaintiff is bound to produce the deed. 2 Strange, 1186, Soresby v. Sparrow; 1 Chitty’s Pleading, 350.
It therefore seems, that if the deed remain in existence the defendant is entitled to have it put upon the record, and that, the law furnishes him with the means of compelling the plaintiff to produce it.
But when there is a legal excuse for the omission of a profert, the defendant is not entitled to oyer. The cases however, which have been cited by the defendant’s counsel seems to show the practice to have been in such cases, to set out the substance of the instrument in the declaration. And we are of opinion that this is necessary in such a case. Lord Coke says, that one of the reasons why deeds ought to be produced, is, “ that it may appear to the court, and to the party, if it was upon condition, &c.” 10 Coke, 92, a. When a deed is lost and cannot be produced, he who relies upon it in pleading ought to be held to state, and to prove the substance of the whole instrument, for the same reasons that he is bound to produce the instrument when not lost. He ought not to be permitted to show such parts of the instrument as may
It is said in this case that the deed was destroyed by the fraud of the intestate. But that circumstance cannot change the rule of pleading.
We are therefore of opinion that there was a material variance between the declaration jmd the evidence, and that the verdict must be set aside.
We are also of opinion that the demurrer to the second, plea is not well taken. The authorities which have been cited in the argument are decisive. This is not an instance of a plea pleaded in bar of the whole declaration when it is in fact only an answer to a part. But this is an instance of a plea which traverses a material allegation in the declaration, the proof of which, is essential to the maintenance of the action, and stands on ground materially different from a bar which admits the whole declaration, and then only answers a part. 1 Chitty’s Pl. 464.
