
    Fellows v. Carpenter.
    A written agreement respecting a note, entered, into at the time the note is given, though it be not annexed, is to'be considered in nature of a condition. Also, an appeal to an adjourned court, is not sustainable.
    ERROR from the judgment of a justice of the peace, and from a subsequent one of the Common Pleas, dismissing an appeal. Carpenter, being administrator on the estate of Jeremiah Utley, deceased, brought his action against Eel-lows, on a promissory note, given to the deceased, for the sum of £5 payable in the year 1785.— To which the defendant pleaded — Tbat at tbe time of giving and executing said note, tbe said Utley entered into an agreement witb tbe defendant, wbicb was in writing, and duly executed, in tbe following words, viz. “ Tbis agreement, made by Jeremiab Utley, on tbe one part, and Isaac Fellows on tbe other, wit-nessetb — Tbat whereas Elizabeth Utley did, in tbe month of May, 1783, before Moses Holmes, Eisq. malee oath, tbat she was pregnant by tbe said Fellows: And tbe said Fellows bath given four notes to tbe said Jeremiab Utley, of £5 each; one of said notes to be paid in tbe year 1784, provided said child live one year from its birth; and £5 to be paid in tbe year 1785, if tbe child live two years from its birth; and £5 to be paid in tbe year 1786, if tbe child live three years from its birth; and £5 to be paid in tbe year 1787, if tbe child live four years from its birth. — And if said child should not live out all or any of tbe years here mentioned, thei said Utley promises to give tbe said four notes up to tbe said Fellows, and they are to be null and void.” — And tbat tbe child mentioned in said agreement did not live out two years from its birth, but died a considerable time before tbe expiration of said two years; by means whereof said note became void.
    To this there was a demurrer, and joinder in demurrer; and judgment was, by tbe justice rendered for tbe plaintiff, to recover tbe sum of £3 15s. 4d.
    An appeal was taken to tbe Court of Common Pleas, holden by adjournment: And before tbe Court of Common Pleas, it was objected •— Tbat tbe appeal was irregular, and not sustainable, being taken to an adjourned court, when it ought to have been, to the next stated session of said court.— And the appeal was dismissed.
    On the writ of error three points were contended by the counsel:—
    1. That the agreement recited in the pleadings was not annexed to the note; therefore, could not operate as a condition, but must be taken advantage of by a separate suit.
    2. That the agreement makes no provision for parts of years, but only provides, that the notes should be void, if the child should not live to the expiration of each year; and therefore, there was no foundation for the plaintiff to recover for such part of the year as the child did live.
    3. That the Court of Common Pleas ought to have sustained the appeal; for that adjourned sessions of court are considered in law at stated terms, "for the purpose of bringing forward new suits, and entering appeals from lower courts.
    Judgment of the justice and Common Pleas affirmed.
   By the Court.

The note declared on, was in fact given to secure the second year’s maintenance of a bastard child; and the written agreement entered into at the same time, in nature of a condition to the note, as set forth in the plea in bar, though inaccurately expressed, amounted to no more than, that if the child should die before the year commenced, nothing should be paid on the note; or if within the year, only a sum proportioned to the time it should live; — the child lived a part of the year, and for aught that appears, the damage assessed upon the note were in due proportion thereto.

As to the appeal taken to the adjourned Court of Common Pleas, it did not lie.— The words of the statute granting appeals are, "to the next County Court; ” which has reference to tlie next stated term, and not to an adjourned session, which, is properly but a continuation of a term; and so hath invariably been the practice upon the statute.

Dyer, J.,

dissenting. I fully agree, that the written agreement entered into between the parties, is to be considered as a condition to the note declared upon, and must guide and direct its operation: But we are not to make agreements for the parties, or so to, construe those which they have made, as totally to vary them from the plain letter and expression. The duty arising on each of the notes referred to, is expressly on the child’s living each entire year; and the note in suit was not to become- obligatory, unless the child lived two years from its birth; which is a condition precedent. If it was the intention of the parties to apportion either year, and divide it into parts, as the child might live, there are apt words to express it; but in this agreement, an entire year is expressed, and we cannot divide and apportion it different from the contract. The law favors no such construction, nor does it admit of an apportionment on an entire contract. As in case of rent on a lease for years, the rent to be paid annually, and the leasee is evicted within any given year, the rent for that year is not recoverable; nor can it be apportioned for that part of the time which he occupied.— Where the consideration is one, and the debt one, it cannot be divided. 1 Salk. 65.— 3 Mod. 153. — 10 Coke, 128.— 1 P. Wms. 392.  