9 Cow. 255 | N.Y. Sup. Ct. | 1828
This is an action of debt upon an arbitration bond. The plaintiff was nonsuited at the trial, on the ground of a variance between the bond set forth in the declaration, and that proved. The declaration states the bond to have been made on the 19th day of September, 1825, and that the award was to have been on or before the 18th day of January then next. The oyer and the bond produced corresponded with the bond set forth in the declaration; but it appeared from the testimony of John Wilkinson, a witness on the part of the plaintiff, that
The legal effect of the alteration of the bond, was probably to destroy it as a pre-existing obligation, and to render it a new bond from the time of the alteration; and it would, undoubtedly, have-been competent for the plaintiff to have declared upon it, as a bond which took effect at that time, though dated previously; as a contract may, generally, be described according to its legal effect, though such description may vary from its precise words. (1 Chitty, 307. 1 Phil. Ev. 168, note 6.) And a deed, though dated on a particular day, may be stated, in pleading, to have been made on another day. (1 Chitty, 349. 4 East, 477.)
Though a deed takes effect only from its delivery, and a delivery is of course essential to its validity, yet, it need not be stated in pleading. (1 Saund. 291, note (1.)
*Probably, in point of fact, few deeds are actually delivered on the day on which they bear date. They are generally previously prepared, and delivered at the consummation of the contract; and yet, I have met with no case, in which the objection was taken that the deed was not delivered on the day on which it bore date, although it is uniformly stated as having been then made. Where the jus
In this case, it is a mere matter of form ; for admitting the date to have been the 10th of January, it would not change or affect any material allegation in the declaration. The declaration avers that the award, by the terms of the bond, was to be made on or before the 18th day of January next ensuing the date of the bond. It is contended by the defendant’s counsel, that if the date of the bond was in January, 1826, then the award was not to be made until January, 1827; whereas, by the averment in the declaration, it was to be made in January, 1826. We have repeatedly held, in similar cases, that the words next or then next, may be considered as referring to the day of the month, and not the month itself. In that view of the case, therefore, there was no variance between the bond produced and the one described in the declaration.
I am, therefore, of opinion that the plaintiff was improperly nonsuited, and that the nonsuit ought to be set aside.
Motion granted.