date that word in other parts of the deed means the day of the date, and not of the delivery. This distinction is noticed in Co. Litt. 46 b, where it is said: If a lease be made by indenture bearing date 26th of May, to hold, &c., for twenty-one years from the date, or from the day of the date, it shall begin on the 27th day of May. If the lease bears date the 26th of May, to have, &c., from the making hereof, or from henceforth, it shall begin on the day on which it is delivered, &c.' And afterwards it is said: 'If an indenture of lease bear date which is void or impossible, as the 30th of February, &c., if in this case the term be limited to be gin from the date, it shall begin from the delivery, as if there had been no date at all.' In Armit v. Breame, 2 Ld. Raym. 1082, it is said: 'If the award had no date, it must be computed from the delivery, and that is one sense of datus.' The question here is, What in this covenant is the meaning of datus? I consider that a party executing a deed agrees that the date therein mentioned shall be the date for purposes of computation. It would

Boylston Fire and Marine Ins. Co., 5 Met. 439. In this case Wilde, J., said: "The construction of the policy seems to depend wholly on the true meaning of the word between.' This preposition, like many other words, has various meanings; and the question is, In what sense was it used in the present policy? The most common use of the word is to denote an intermediate space of time or place, and the defendant's counsel contends that it was so used in the present policy, and that the first day of February, and the fifteenth day of July, are to be both excluded. On the other hand, the plaintiff's counsel insists that both days are to be included; at least I so understood the argument. And we think it clear that both days must be included or excluded; for there is nothing in the contract manifesting the intention of the parties to include or exclude one day rather than the other. It is undoubtedly true that the word 'between' is not always used to denote an intermediate space of time or place, as the plaintiff's counsel remarked. We speak of a battle between two armies, a combat, a controversy, or a suit at law between two or more parties; but the word thus used refers to the actions of the parties, and does not denote locality or

be very dangerous to allow a different construction of the word date; for then, if a lease were executed on the 30th of March, to hold from the date, that being the 25th, and the tenant were to enter and hold as if from that day, yet, after the expiration of the lease, he might defeat an ejectment on the ground that the lease was executed on a day subsequent to the 25th of March, and that he did not hold from that day. All the authorities give a definite meaning to the word "date" in general, but show that it may have a different meaning when that is necessary, ut res valeat. It has been said that the computation could not have been intended to be made from the date, if the twenty-four months had elapsed before the execution of the deed. That may be true, for then the intention of the parties, that the computation should not be made from the date, would have been apparent. Here the meaning of the deed is plain, and according to that a breach of covenant was committed before the commencement of the action. The plea is therefore bad."

time. But if it should be said that there was a combat between two persons between two buildings, the latter word would undoubtedly refer to the intermediate space between the buildings, while the former word would denote the action of the parties. But it was argued that the word 'between' is not always used as exclusive of the termini, when it refers to locality. Thus, we speak of a road between one town and another, although the road extends from the centre of one town to the other; and this, in common parlance, is a description sufficiently intelligible although the road in fact penetrates each town. But if all the land between two buildings, or between two other lots of land, be granted, then certainly only the intermediate land between the two lots of land or the two buildings would pass by the grant. And we think the word 'between' has the same meaning when it refers to a period of time from one day, month, or year, to another. If this policy had insured the plaintiff's property to be shipped between February and the next July, it would clearly not cover any property shipped in either of those months. So we think the days mentioned in the policy are excluded."

*668

that they are to be per

universal rule, that where, by agreement, an act is to be done on a future day, no action can be brought for a breach of the agreement till the day for doing the act has arrived. If a man promises to marry a woman on a future day, and before that day marries another woman, he is instantly liable to an action for breach of promise of marriage. Short v. Stone, 8 Q. B. 358. If a man contracts to execute a lease on and from a future day for a certain term, and before that day executes a lease to another for the same term, he may be immediately sued for breaking the contract. Ford v. Tiley, 6 B. & C. 325. So if a man contracts to sell and deliver specific goods on a future day, and before the day he sells and delivers them to another, he is immediately liable to an action at the suit of the person with whom he first contracted to sell and deliver them. Bowdell v. Parsons, 10 East, 359. One reason alleged in support of such an action is, that the defendant has, before the day, rendered it impossible for him to perform the contract at the day. But this does not necessarily follow; for, prior to the day fixed for doing the act, the first wife may have died; a surrender of the lease executed might be obtained; and the defendant might have repurchased the goods, so as to be in a situation to sell and deliver them to the plaintiff. Another reason may be, that when there is a contract to do an act on a future day, there is a relation constituted between the parties in the mean time by the contract, and that they impliedly promise, that in the mean time neither will do anything to the prejudice of the other, inconsistent with that relation. As an example: a man and woman engage to marry, are affianced to one another during the period between the time of the engagement and the celebration of the marriage. In this very

case of traveller and courier, from the day of the hiring till the day when the employment was to begin, they were engaged to each other, and it seems to be a breach of an implied contract if either of them renounces the engagement. This reasoning seems in accordance with the unanimous decision of the Exchequer Chamber, in Elderton v. Emmens, 6 C. B. 160, which we have followed in subsequent cases in this court. The declaration in the present case, in alleging a breach, states a great deal more than a passing intention on the part of the defendant which he may repent of, and could only be proved by evidence that he had utterly renounced the contract, or done some act which rendered it impossible for him to perform it. If the plaintiff has no remedy for breach of the contract, unless he treats the contract as in force, and acts upon it down to the first of June, 1852, it follows that till then he must enter into no employment which will interfere with his promise to start on such travels with the plaintiff on that day,' and that he must then be properly equipped in all respects as a courier for three months' tour on the continent of Europe. But it is surely much more rational, and more for the benefit of both parties, that after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Thus, instead of remaining idle and laying out money in preparations which must be useless, he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract. It seems strange that the defendant, after renouncing the contract, and abso

lutely declaring that he will never act under it, should be permitted to object that faith is given to his assertion, and that an opportunity is not left to him of changing his mind. If the plaintiff is barred of any remedy by entering into an engagement inconsistent with starting as a courier with the defendant on the first of June, he is prejudiced by putting faith in the defendant's assertion; and it would be more consonant with principle, if the defendant were precluded from saying that he had not broken the contract when he declared that he entirely renounced it. Suppose that the defendant, at the time of his renunciation, had embarked on a voyage to Australia, so as to render it physically impossible for him to employ the plaintiff as a courier on the continent of Europe, in the months of June, July, and August, 1852, according to decided cases the action might have been brought before the first of June; but the renunciation may have been founded on other facts to be given in evidence, which would equally have rendered the defendant's performance of the contract impossible. The man who wrongfully renounces a contract into which he has deliberately entered, cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the first of June is urged from the difficulty of calculating the damages;

but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case, the jury, in assessing the damages, would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial."

(d) Hodsden v. Harridge, 2 Wms. Saund. 62 a, n. (4); Child v. Horden, 2 Bulstr. 144. In Quarles v. George, 23 Pick. 400, by a contract between the plaintiff and the defendant it was agreed that the defendant should deliver to the plaintiff one thousand barrels of flour, at the rate of six dollars per barrel, at any time within six months from the date of the contract, and give him six days' notice prior to the time of such delivery, and that the plaintiff should pay that price therefor on delivery. In an action by the plaintiff against the defendant for not delivering the flour within the six months, it was held, that under the provisions of this contract it was incumbent on the defendant to do the first act by giving notice of his readiness to deliver the flour; but that as he had a right to give notice six days before the expiration of the six months, and had he then given notice, he would have had till the last day of the six months to deliver the flour, the actual breach of the contract by non-delivery must be taken to have occurred on such last day, and the damage computed accordingly. In declaring on a promise to pay money on demand, if a third person shall fail to do a certain act, it is not necessary to aver a notice of the failure to do that act, or a demand of the money. Dyer v. Rich, 1 Met. 189.

(2) A custom to give notice in the first fortnight by either master or servant to terminate domestic service at the end of the month is not unreasonable, but must

be proved as a fact, as it is not so generally established as to be judicially noticed. Moult v. Halliday, [1898] 1 Q. B. 125.

(e) Vyse v. Wakefield, 6 M. & W. 442, 8 Dowl. P. C. 377, 4 Jur. 509, affirmed on error, 7 M. & W. 126, is an excellent case on this subject. There the declaration stated, that, by indenture, the defendant covenanted that he would, at any time or times thereafter, appear at an office or of fices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respect ing his age, &c., in order to enable the plaintiff to insure his life, and would not afterwards do or permit to be done any act whereby such insurance should be avoided or prejudiced. It then alleged, that the defendant, in part performance of his covenant, did, at the plaintiff's request, appear at the office of the Rock Life Insurance Company, and did answer certain questions asked of him; and that the plaintiff insured the defendant's life with that company, by a policy containing a proviso, that if the defendant went beyond the limits of Europe, the policy should be null and void Breach, that the defendant went beyond the limits of Europe, namely, to the province of Canada, in North America. Held, on special demurrer, that the declaration was bad, for not averring that the defendant had notice that the policy was effected. Parke, B., said: "The general rule is, that a party is not entitled to notice, unless he has stipulated for it; but there are certain cases where, from the very nature of the transaction, the law requires notice to be given, though not expressly stipulated for. There are two classes of cases on this subject, neither of which, however, altogether resembles the present. One of them is, where a party contracts to do something, but the act on which the right to demand performance is to arise is perfectly indefinite, as in the case of Haule v. Hemyng, Vin. Abr. Condition' (A. d.), pl. 15; s. c. nom. Henning's case, Cro. Jac. 432, where the defendant promised to pay the plaintiff for certain weys of barley as much as the plaintiff sold them for to any other man; there the plaintiff is bound to aver notice, because the person to whom the weys are to be sold is perfectly indefinite, and altogether

at the option of the plaintiff, who may sell them to whom he pleases; and in such cases, the right of the defendant to a notice before he can be called on to pay, is implied by law from the construction of the contract. So, where a party stipu lates to account before such auditors as the obligee shall assign, the obligee is bound to give him notice when he has assigned them; for that is a fact which depends entirely on the option or choice of the plaintiff. On the other hand no notice is requisite when a specific act is to be done by a third party named, or even by the obligee himself; as, for example, where the defendant covenants to pay money on the marriage of the obligee with B, or perhaps on the marriage of B alone (for there are some cases to that effect), or to pay such a sum to a certain person, or at such a rate as A shall pay to B. In these cases there is a particular individual specified, and no option is to be exercised; and the party who, without stipulating for notice, has entered into the obligation to do those acts, is bound to do them. But there is an intermediate class of cases between these two. Let us suppose the defendant in this case bound to perform such stipulations as shall be contained on a policy to be effected at some office in London. Now, my present impression is, that where any option at all remains to be exercised on the part of the plaintiff, notice of his having determined that option ought to be given; and if this had been a covenant by the defendant to perform the conditions to be imposed by any insurance company then existing in London, I think it would be the duty of the plaintiff to notify to the defendant the exercise of his option, as to which he had selected. But this principle holds even more strongly in the present case; for not only do the terms of the covenant apply to all actually existing companies of the sort, but to all that might, at any future time subsequent to the date of the deed, be established within the bills of mortality. Now that is a condition which appears to me so perfectly indefinite, that notice ought to be given by the plaintiff of his