Phoenix Insurance v. Walden

1 Ant. N.P. Cas. 172

• Court: New York Supreme Court
• Decided: July 1, 1810
• Status: Published

Opinion

Spencer, J.

The date is not of the essence of the contract. The plaintiff may prove the mistake in the date, under this count, and show that the note was actually made on the day mentioned in the count.

(1)

, Golden and Hopkins, for defendants.

Mnmet and Jones, for plaintiff.

This decision was acquiesced in by the counsel, and may, perhaps, be considered as supported by the case of De La, Courtier v. Bellamy, 2 Shower 422, and Hague v. French, 3 Bos. & Pull. 173, cited by the plaintiff’s counsel. In the case in Shower, which was an action on a bill of exchange, the date of the bill was entirely omitted, but the time of drawing the bill was averred, and all the other averments were correct, according to the tenor of the bill produced in evidence; and, upon an exception taken that the date of the bill was not set forth, the court said they would intend it dated at the time of drawing it. The case in Bos. & Pull was similar to the case in Shower, and was decided on the authority of that case. It is true, that a date is not essential to a bill; and, when it has no date, it will be sufficient to say, in the declaration, that it was made on the day it issued, and to make all necessary computations from that day. Chitty on Bills, 43. In a case before Lord BUenborough, at the sittings after May term, 1809, where the declaration alleged, that the defendant, on, &c., made his certain bill of exchange in writing, bearing date the same day and year aforesaid, and the real date of the bill was different, his Lordship held the variance to be fatal, and non-suited the plaintiff. 2 Camp. N. P., 307, n. adfinem. When, therefore, the note has a date which is erroneous, the more prudent way to declare, is as follows: “ bearing date by mistake, the 7th January, 1807," when, in truth and in fact, the said promissory note was, at the time of the making thereof, meant, intended, and understood by the said defendant, and the said plaintiff, to be dated on the 7th day of January, 1808. Vide 3 Chitty on Pleading, p. 3; Chitty on BUls, (Am. ed.) 233, n. a. and Hale v. Casenove, 4 East. 477.