Houser v. . Reynolds , 2 N.C. 114 ( 1794 )

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 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: