Metcalfe's Executrix vs. Poindexter's Executrix. "LOUISVILLE, June 9th, 1847. "For the satisfaction and security of Joseph Metcalfe, in relation to repairs done on the Oakland property, of which he is the proprietor under lease from me, I hereby restate what has been the understanding since the volunteer militia, mustered into the United States service, who were encamped on said property, under contract with the Quarter Master of the troops so encamped, that all such repairs as have been done under the superintendence of said Metcalfe, (since the removal of said troops, in order to restore the property to the like con dition in which it was before said encampment,) shall be a charge on such repairs and improvements as may have been made under the superintendence of said Metcalfe, on the amount which the Government of the United States may allow (under the contract aforesaid, for the encampment of said troops,) and the damages consequent thereon, to be paid to said Metcalfe so soon as the same is allowed and paid by the government, to the extent of his expenditures in making said repairs. "Teste: GEO. HANCOCK." GEO. POINDEXTER." The plantiff sought to recover $1,137 91, which it was alleged Metcalfe had expended in making said repairs, and averring that the government of the United States had paid to Poindexter $1,500, for the encampment of said troops and the damages consequent thereon. More than five years had elasped after the cause of action accrued before this suit was brought. The defendant pleaded the statute of limitations. The plaintiff demurred to the answer. The demurrer was overruled. Judgment was given for the defendant, and the plaintiff prosecutes this appeal. T. A. MARSHALL, for appellant, cited 1 Digest Ky. Rep., page 386; 2 Bibb, 614; 3 A. K. Mar., 284; 2 Bibb, 465; 4 Mon. 462; 1 A. K. Mar., 475; 3 Mon., 22. S. S. BUSH, on same side, cited 1 Mar. 314; 3 Dana, 483; 1 J. J. Mar., 411; 11 B. Mon., 312; 2 J. J. Mar., 129; 2 Cowen, 195; 8 Mass., 214; 10 lb., 379; 11 Ib., 302; 11 Pick., 154; 4 Dal., 345; 2 Shepley, 233; 19 Maine, 394; 11 Vermont, 493; Chitty on Contracts, pages 74, 97, 84. Metcalfe's Executrix vs. Poindexter's Executrix. W. S. BODLEY and P. B. POINDEXTER, for appellee, cited 13 B. Mon., 475; 1 Mur., 422; 12 B. Mon., 470; 5 J. J. Mar., 32; 11 B. Mon., 312; Angell on Limitation, sec. 92, and notes; 2 Bacon's Abr. 558, Covenant, B. JUDGE DUVALL DELIVERED THE OPINION OF THE COURT: We are of opinion that the writing on which the present action is founded is a covenant, and was so intended by both the parties. There had been a parol agreement, (or understanding,) between Poindexter and Metcalfe, in relation to certain repairs done by the latter on the Oakland property. That agreement not having been altered or satisfied, subsisted at the time of the execution of the writing. It existed in parol merely, but was in full force, and was obligatory between the parties. For the purposes declared in the writing--that is to say, "for the satisfaction and security of Joseph Metcalfe"-Poindexter proceeds to "re-state" in writing the pre-existing parol agreement or understanding, the substance of which was, as set forth in the instrument, that the repairs on the property which had been made or superintended by Metcalfe, should be a charge on the amount which the government might allow, under the contract as recited, and the damages resulting from the occupation of the property by the troops, "to be paid to said Metcalfe so soon as the same is allowed and paid by the Government." Such are, substantially, the terms and stipulations of the contract as set forth or re-stated in the instrument sued on. The object of making this written re-statement appears on the face of the instrument, and is forcibly, indeed we might say, conclusively illustrative of the motives and intentions of the parties in its execution. That object was "the satisfaction and security of Joseph Metcalfe." Now it occurs to us, that in view of all the circumstances surrounding the parties at the time, the execution of the writing would have afforded Metcalfe very little satisfaction, and no security at all, except on the assumption that it was intended to merge the subsisting parol agreement into the written covenant. All written contracts Mallory & Co. vs. Hiles. are, in a certain sense, but re-statements of a pre-existing parol agreement between the parties. And the mere fact that the written memorial contains such a recital, cannot operate so to change the character and legal effect of the instrument as to reduce it from the grade and dignity of a covenant to a mere memorandum of the prior agreement. We think it clear, on the face of the writing itself, that it was delivered on the one hand, and accepted on the other, as a covenant binding as such on the parties. This view of it is sustained by ample authority. (2 Bibb, 614; 3 A. K. Marshall; 4 Mon., 402; 1 A. K. Marshall, 475; 3 Mon., 22.) It will be found, upon an examination of the cases relied on by the appellee, that they do not conflict with the principle settled in the cases above referred to. The judgment is reversed, and the cause remanded with di rections to sustain the demurrer to the plea of the statute of limitations, and for a new trial and further proceedings not inconsistent with this opinion. CASE 14-PETITION ORDINARY-JUNE 27. Mallory & Co. vs. Hiles. APPEAL FROM SCOTT CIRCUIT COURT. 1. An act of the General Assembly, which provides that it shall take effect from its passage, takes effect on the day of its approval by the Governor. and must be regarded as being in force during the whole day upon which it is approved, in conformity to the general rule that where a computation is to be made from an act done, the day upon which the act is done is to be included. 2. A judgment was rendered on the 24th day of May, 1861, for debt due by note, the same day on which the Governor approved the act, entitled, "an act to suspend the circuit and other courts in this commonwealth, and for other purposes," by which the rendition of such judgments was prohibited from the passage of the act until the 1st day of January, 1862. It did not appear at what hour the act was ap Mallory & Co. vs. Hiles. proved, nor at what hour the judgment was rendered. Held, That the judgment was improperly rendered, because the act was in force during the whole of the day. POLK & BUCKLEY, for appellants, cited 13 B. Mon., 460; 1 Met., 543; Johnson vs. Higgins, 3 Met.; Offutt vs. Owens, Mss. opin., Winter term, 1861. MILTON STEVENSON, for appellee, cited Civil Code, secs. 577, 578; 1 Met., 18, 20; sess. acts, called session of 1861, page 2. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: The appellee obtained a judgment against the appellants for $170, due upon a note. The judgment was rendered on the 24th day of May, 1861, the same day on which the Governor approved the act, entitled, "An act to suspend the circuit and other courts in this commonwealth, and for other purposes," by which the rendition of such judgments was prohibted from the passage of the act until the 1st day of January, 1862, as was decided in the cases of Johnson vs. Higgins, 3 Met., 566, and many subsequent cases. It does not appear at what hour the act was approved, nor at what hour the judgment was rendered. It is contended-1st. That the act took effect from the day of its approval, and therefore was not in force on the 24th of May. 2nd. That, if it took effect on the 24th of May, yet it only took effect at the moment of its approval; and as it is not shown at what time of the day it was approved, it should be presumed, in favor of the jurisdiction of the court below, that it was not approved until after the rendition of the judgment. As it was declared in the act that it should take effect from its passage, we do not perceive any ground for holding that it did not take effect until the day after its passage; nor have we found any authority sustaining that view. Our opinion is, that it took effect on the 24th of May. If, for this purpose, a day is capable of division, so as to give effect to a statute only from the moment of its approval, there would be much reason for contending that the judgment in this case should be affirmed, upon a presumption that it was rendered before the act was approved. Upon the question whether an act, which is to take effect from its passage, Leet vs. Lockett. should be regarded as being in force during the whole day upon which it is approved, or only from the moment of its approval, there has been some difference of opinion, as is shown by the very able discussions of Judge Story, in the matter of Joseph Richardson and another, (6 Law Reporter, 392,) and of Judge Prentiss in the matter of Dehies Welman, (7 Law Reporter, 25.) In our opinion, according to the weight of reason, and the decided weight of authority, the act in question must be regarded as having been in force during the whole of the day upon which it was approved, in conformity to the general rule, that where a computation is to be made from an act done, the day on which the act is done is to be included. (Arnold and others vs. the United States, 9 Cranch, 104; In re Welman, supra; Chiles vs. Smith's heirs, 13 B. Mon., 460; Butman vs. Megowan, 1 Met., 533.) The Revised Statutes require the day of the approval of an act of Assembly by the Governor, to be stated at the end of the same, (chap. 61, sec. 4.) Such was the practice before. If the Legislature had contemplated that statutes, which were to take effect from their passage, should take effect only from the moment of approval by the Governor, they would no doubt have required the hour, as well as day of approval to be stated. The judgment is reversed, and the cause remanded for further proceedings. CASE 15-ATTACHMENT-JULY 1. Leet vs. Lockett. APPEAL FROM MO'LEAN CIRCUIT COURT. 1. The Revised States, chap. 56, art. 2, sec. 6, provides that upon the return of an attachment for rent issued by a justice of the peace, to the circuit court, "the pro |