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of a lease for twenty-one years, to commence from the day of the date, was a compliance with a power reserved in a marriage settlement, to lease

that the construction here should be in- “The first case in point of time was in clusive, as demonstrably as if the word Mich. 4 El. Dyer, 218 b ; Moore, 40, 8. c. inclusive' had been added. This is a This was a question that arose upon the lease made under a power; the lease refers statute of enrolments, 27 Hen. VIII. c. 16, to the power; and the power requires that which says, 'that the enrolment shall be the lease should be a lease in possession, made within six months next after the date The validity of it depends upon its being of the deed. The indenture in question in possession ; and it is made as a provision bore date the 9th October, 1557 ; it was for an only daughter. He must, therefore, enrolled in chancery on the 21st March, intend to make a good lease. The expres. 1558, which was the last day of the six sion then, compared with the circum• months, reckoning twenty-eight days to stances, is as strong in respect of what his each month, and making the day of the date intention was as if he had said in express exclusive. The court held that the iuden. words, 'I mean it as a lease in posses- ture was well enrolled, and that the words sion,' .I mean it shall be so construed.' “next after the date of the deed” were exIf it is so construed, the word “from'clusive of the day of the date.' This demust be inclusive. This construction is cision was in favor and in support of the to support the deeds of parties, to give deed; otherwise it would have been void. effect to their intention, and to protect And yet it has been determined that in a property. The other is a subtlety to over- note of hand, payable ten days after sight, turn property, and to defeat the intention the day of the sight is inclusive. Bellasis of parties, without answering any one good v. Hester, 1 Ld. Raym. 281. Why? Be. end or purpose whatsoever. And though cause of the subject-matter, that there courts of justice are sometimes obliged to should be no further time to make the decide against the convenience, and even demand ; and yet, after the day and after against the seeming right, of private per. sight is precisely the same in language. sons, yet it is always in favor of some “The next is Clayton's Case, 5 Coke, greater public benefit. But here, to con- 1 Mich. 27 El. The point in question was strue ‘from the day of the date' to be the meaning of the words ‘from henceexclusive, can only be to defeat the inten- forth,' which were accounted from the day tion of the parties. If such a construction of the delivery, and as much as to say, were right, it would hold good, supposing from the making. But the court held the lessee had laid out ever so much money that from the making' was inclusive, and upon the estate ; and all would be alike “from the day of the making’ was excludefeated by a mere blunder of the attorney sive. or his clerk. Therefore, if the case stood “The next is Trin. 39 Eliz., 5 Co. 90, clear of every question or decision which Barwick's Case, which was a demise of a has existed, it could not bear a moment's freehold lease by letters-patent, 'habendum argument.

a die confection is earundum literarum Secondly. I will consider this question patentium.' The day of the date was upon the authorities. I have arranged all held to be exclusive, and the letters-patent the cases that have been determined in therefore void. Westminster Hall, in order of time ; and “In Mich. 4 Jac., Cro. Jac. 135, Osborn when I come to state them, you will be v. Ryder, ‘from the date' was held to be surprised to see they stand so little in the inclusive, and different from the time or way as binding authorities against justice, day of the date, which is exclusive. In reason, and common sense. All they show Trin. 8 Jac., Cro. Jac. 258, Llewellyn v. is the great uncertainty of the meaning, Williams, it was held 'that from the date' and the impossibility of putting an abso- and from the day of the date' meant both lute sense to hold good in all cases ; they exactly the same thing, and both exclusive are themselves so many contradictions of the day. backwards and forwards.

“The next case in order of time is Trin.

for twenty-one year's “in possession, but not in reversion,” and the whole matter turned upon the question whether the phrase " to commence from

9 Jac., 1 Bulst. 177, the very year after- say the court, “if there was a question wards; and there it is said by Fleming upon letters-patent, like Barwick's Case, that 'from the date' includes the day, and to make the patent good, the jury might

from the day of the date' excludes it. find they were made the last instant of the Now, thus the cases stand, down to the day.' This they observed to get rid of the 14th of James. They are yes and no, and force of a wrong determination. Just so a medium between them. But in Trin. Sir EARDLY WILMOT once did in a case that 14 Jac., 1 Rolle's Rep. 387, 3 Bulst. 204, came before him. He left it to the jury 8. C., COKE, Chief Justice, and the whole to find that livery was made the last mocourt, in the case of Bacon v. Waller, held, ment of the day. The authorities, there. agreeably to Llewellyn's Case, Trin. 8 Jac., fore, of Coke Littleton, 46 b, Bacon p. that “from the date,' and 'from the day Waller, 3 Bulst. 204, 1 Roll. Rep. of the date,' meant both exactly the saine 387, s. C., and Llewellyn v. Williams, Cro. thing, and both were exclusive.

Jac. 258, were at that time grumbled at, “Thus it stood then for settled law, by as being against the sense of mankind, these two solemnly adjudged cases, that against convenience, and against justice, both meant exactly the same thing. So it and founded upon subtleties that even the stood likewise at the time of the publica- schoolmen would have been ashamed of. tion of Coke's Commentary on Littleton, The doctrine they established was, that which was about ten years afterwards; and both meant the same thing, and both were so clear was Lord Coke in his opinion that exclusive. With respect to their both the point was settled by those two judg- meaning the same thing, unquestionably ments, that he adopts the judgment in they were right. For what is the date'? positive words, without restriction or quali. The date is a memorandum of the day fication ; and in Co. Lit. 46 b, he lays it when the deed was delivered. In Latin down as text law, that both mean the same it is 'dotum;' and 'datum tali die' is, thing, and that both are exclusive. So it delivered on such a day. Then, in point seems to have stood down to Trin. 24 Car. I. of law, there is no fraction of a day: it is At that time mankind began to revolt at an indivisible point. What is the day of such a doctrine. There, in the case on the date'? It is the day the deed is Cornish v. Cawsay, Aleyn, 77, Style, 118, delivered.' "The date,' therefore, being 8. C., in an action of debt against an ex- also defined to be the day the deed is ecutrix, the plaintiff declared upon a lease, delivered, “the date' and 'the day of the 'from the day of the date,' for seven years. date' must be the same thing. The day The lease was in these words, ‘from the of the date is only a superfluous expresday of the date,' for the term of seven sion. It is impossible in common sense years, from henceforth next and immedi. to distinguish the one from the other. ately following, with a great many other ‘Date' does not mean the hour or the words. It was contended that though minute, but the day of delivery; and in ' from the day of the date' was exclusive, law there is no fraction of a day. As to yet the words from henceforth,' &c., being the other point, that ‘from' shall in all addel, made it inclusive, and this was ob- cases be construed to be exclusive, it is iected as a variance between the declaration contrary to the common signification of and the deed. The court left it to the language. And for courts of justice to jury; the jury threw it back upon the determine words against the intention of court, and brought in a special verdict, parties, and against the generally received stating the lease verbatim ; and then the sense and acceptation of the words them. court held that, according to the authori. selves, is laying a snare to entrap mankind. ties, ‘from the day of the date' was ex- Usage decides upon the force of language; clusive, and, therefore, the plaintiff had and, with respect to this word, has im. mistaken his lease. But, at the same time, printed on the understandings of men in they seemed shocked at its being so; for, general, in their transactious in life, the

the day of the date” was to be construed as excluding or including the day on which the lease bore date, because upon that would depend

sense that I now put upon it; whilst courts different when it should begin; the arguof law understand it in a wholly different ment rather was that it should begin the sense.

day after. In the next place, it would “Thus it stood down to the sixth year have included the insurance if it had begun of William and Mary. A case then hap that day. LORD CHIEF JUSTICE Holt pened of considerable property, and not seems to have considered it as a favorable Merely a question of pleading. Hatter v. case for the insured, otherwise he would not Ash, 3 Lev. 438, 1 Ld. Raym. 84. It have had recourse to the old maxim of law, arose upon a prebendal lease to commence that there is no fraction of a day. He cited from the date of the indenture. The suc. a case, Anon., 1 Salk. 44, where it was held cessor wished to avoid it on the ground of that if a man lived to the eve of the anni. its being a lease to commence in futuro. versary of his birth, no longer even than The case was several times argued ; against till one o'clock in the morning of that day, the lease upon the weight of authorities, and made his will, by having touched the and in favor of it, upon the ground of the verge of the day, it was the same as if he intention of the parties, 'ut res magis had completed the whole day; and the ruleat quam pereat.' After several argu- will was declared a good one.

That ex ments, TREBY, Chief Justice, at first, from isted as law; but Holt, in his application the strength of reason, was for supporting of it, turned it the other way. I look the lease, and then, staggered by the upon this case as of very little authority, weight of authorities, changed his opinion; there being no argument from the subject. but when the judgment was given he ab- matter. sented himself. Powell, Jun., at first fol. “Another case happened since, in Hil. lowed the authorities, but afterwards came 4 Ann., Seignorett v. Noguire, 2 Ld. Raym. ofer to reason ; and at last it was agreed, by 1241. This case, though a very material Neville and the two POWELLS, that ‘from case, was not cited in the Exchequer, the the date' ought to be construed inclusive, present point not being the question litiand therefore that the lease was good. gated, but arising out of some collateral Now, though there was something said in matter; and therefore the indexes have the argument as to the distinction between not led counsel to it. It was upon a point the date and the day of the date, the of pleading, and the whole court held that anthorities said they were the same ; and to aver that a contract was to commence yet this determination went to the matter with the day of the date' was the same of right in the question, and supported the thing as to aver that it commenced from lease,

the day of the date.' Holt, Chief Justice, " The next case after this was Trin. 11 said that “from the date' was inclusive, Wm. III., 1 Ld. Raym. 480. It was upon and so was the same as 'with the date,' a policy of insurance, dated the 3d Sep. but that “from the day of the date' was tember, 1697, upon the life of Sir Robert exclusive. But Powell said that “from Howard, for a year, 'from the day of the the date' and 'from the day of the date' date' of the policy. Sir Robert died upon had been adjudged to be the same in the the 3d of September, 1698, at one o'clock Common Pleas. That case in the Common in the morning; and Holt, Chief Justice, Pleas is not to be found. It could not be held that from the day of the date was the case of Hatter v. Ash. But all the exclusive ; but he held that the insurer court determined that “from the day of the was liable, because in law there is no frac- date' was the same as with the day of the tion of a day, and Sir Robert died at one date, and inclusive. If 'from the date,' o'clock in the morning, whereas to vacate therefore, is inclusive, it must be the same the policy he should have lived till twelve as “from the day of the date.' I have been o'clock at night. In that case there was supplied with another case this inorning by no argument to be drawn from the subject- MR. Justice Aston : the name of it is matter, for in the policy it was totally in- Thompson v. Vanbeek, before LORD HARD

whether the lease was a lease in possession. The court established the principle that the words “ from the day of the date," when used in an

WICKE in Mich. 1736. It was an action longing to the Duchess of Portland, ad. brought upon an usurious contract, and the joining Lady Portland's, — all three held question turned upon a point of pleading. under the crown. Between the three The rule laid down by Lord HARDWICKE houses and the river Thames there was a in that case shows that he went upon the terrace, which had been part of the queen's same principle, and reasoned just as I do garden. Neither of them thought of apo now, that 'the construction must always plying for the terrace, and it would have depend upon the subject-matter.'

been thought invidious to have done so. “ Here MR. JUSTICE Aston stated this It was to be in common. Upon the cir. case from his own note as follows: Thomp- cumstance of this terrace, Lord Pembroke son v. Vanbeek was never determined, but laid out a considerable sum of money upon as it stood the case was this, it was an his house. At the expiration, however, of action on the statute of usury. The dec. her lease, the Countess of Portland applied laration said, 'giving day of payment from

A new lease of fifty years was the 26th.' Upon the evidence it appeared granted, in which, without notice to Lord that the bond was given on the 27th. The Pembroke, she got the terrace inserted and question was, whether, as the declaration added. When Lord Pembroke heard of it stated 'giving day of payment from the he was much offended, but still more so at 26th,' this was a variance. That depended the use that was made of it; for the Coun. upon whether the word “from' should be tess planted trees, which, if they had grown construed inclusive of the 26th, or exclu- up, would have intercepted Lord Pem. sive. What Lord HARDWICKE said was broke's view, – however, some fatality atthis : 'the computation is to be made tended them, for they all died after a from the time of the act done;' and though certain time. Lord Pembroke wanted to there are a variety of constructions of the avoid this lease, - not to take away Lady word “from,' yet it depends entirely upon Portland's house, but to get back the terthe nature of the thing; and that it should race, and leave it in the state it was before. so depend is the right rule. The consid- Application was accordingly made to the eration for the interest paiil is giving day officers of the crown about it; and at last of payment. I think it includes the day; the Attorney-General was directed to file an and my reason is, that it would be a information for the terrace; and an infor. strange construction to say that the day mation was accordingly filed in the Exof payment shall be antecedent to the time chequer. A variety of objections were made of advancing the money ; so ut res magis to different flaws, supposed in the lease; valcat quam percat, it is inclusive. But but the principal objection was founded the case was never decided.

to renew.

upon the Civil List Act, 1 Ann, st. 1, c. 7, “ Thus stood all the authorities down which directs that all leases to be granted to the year 1743, a period of two hundred of any of the crown lands shall be void, years, not much to the honor of the "unless made to commence from the date learned in Westminster Hall, to embarrass or making.' This lease was made to coma point which a plain man of common mence from the day of the date or mak. sense and understanding would have no ing.' Upon this it was argued for the difficulty in construing.

crown that the date and the day of the “There then happened a case of great making were inclusive, and that the act of litigation in the Exchequer, which arose Parliament had expressly declared the lease thus : Lord Pembroke had got a lease from should be in those terms; but that from the crown of a spot of ground in Privy the day of the date was exclusive, and Garden, and had built a house upon it at therefore the lease was void for the vari. a great expense. The Countess of Portland ance.' On the part of the Countess it was had also a lease upon an adjoining spot, contended that “from the date' and 'from and had built her house next to Lord the day of the date' were both the same. Pembroke's. There was another house be. Upon the argument all the cases were cited

1

instrument, were to receive an inclusive or exclusive sense, according
to the intention with which they were used, to be derived from the con-
text and subject matter, and so as to effectuate, and not destroy, the
deed of the parties, and that there was no absolute or invariable sense
to be attached to them. This view was adopted in a Fennsylvania case,
in which TilgHMAN, C. J., stated his conclusion to be, after a careful
examination of the authorities, that the day on which the act is done
is excluded or included, as the nature of the case indicated to the court
that a liberal or vigorous construction should be adopted.”
that have been now cited, except the two half the other, -eighty were granted 'from
I have mentioned.

the date or making,' and above seventy
“Sir THOMAS PARKER and MR. BARON ‘from the day of the date or making.' All
REYNOLDS were of opinion with the objec. these leases had passed the great seal, and
tion, that it was a void lease, because it likewise the seal of the Exchequer. The
commenced in futuro. The two other argument drawn from this circumstance
barons were of a different opinion upon was, that usage should get the better, and
this point ; but upon another point they prevail over the act of Parliament, which
were of opinion the lease was void. Sir was in fact an admission at the same time
Thomas PARKER and Mr. Baron REYNOLDS by implication that ‘from the day of the
to the contrary; so that, for different rea- date' was contrary to the act. It struck
sons, they were all of opinion the lease was me in a different light, which is, that the
void. Upon a case which happened in this question turned upon the construction of
court since, Bayutun v. Watton, this case the English words, and what sense they
between Lord Pembroke and the Countess bore. If I was right, nothing can be so
of Portland was mentioned. Upon memory, strong as that all the officers of the crown
as the judgment appeared to me in so un. who had been concerned in making these
favorable a light, I took it for granted that leases looked upon the words as synony.
the court had been, as it were, compelled by mous, and suffered them to pass and repass
the weight and force of authorities. But unnoticed. It is demonstration that, by
now I will tell you why I change my opin- using both indifferently, they understood
ion, after having determined the case of them to be both the same thing.
Doe v. Watton, as I then did, out of a “ To conclude, the ground of opinion
great veneration for Sir Thomas PARKER, and judgment which I now deliver is that
and because I did not care to set up an ‘from' may, in vulgar use, and even in
opinion of my own mind against a solemn the strict propriety of language, mean
judgment. Sir Thomas Parker, intending either inclusive or exclusive ; that the par.
to favor the world with the publication of ties necessarily understood and used it in
some cases that were adjudged in his time, that sense, which made their deed effec-
he did me the honor to desire I would tual ; that courts of justice are to construe
peruse them. I have done so; and reading the words of parties so as to effectuate
a very elaborate report of the Countess of their deeds, and not destroy them, more
Fortland's case, brought back to me in a especially where the words themselves ab-
regular view the whole doctrine upon the stractedly may admit of either meaning."
present subject. There I saw how the 1 Sims v. Hampton, ante.
authorities stood, how the reasoning stood; 2 O'Connor v. Towns, ante. In Pellew
and I likewise found another thing men- v. Hundred of Winford, 9 B. & C. 139,
tioned in that case, which seems to me not LORD TENTERDEN said that it was impos-
to have been properly argued at the bar sible to reconcile all the cases, or to deduce
by the counsel in support of the lease. It from them any clear rule or principle. In
is this: the parties concerned had searched an action on the statute of hue and cry,
all the leases from the time of the Civil Norris v. Hundred of Gautris, Hobart, 139,
List Act down to the moment of that upon it was decided by a majority of the court
which the question was then in agitation, that the day of the robbery was to be
and they were nearly half the one way and included in computing the period within

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