
    Wallace against Hill.
    
      June, 1822.
    A Note ddted ‘4th 'December, 1820, payable 25th December neatf, not due until 25th December, 1821.
   THE Chief Justice

delivered the opinion of the Court.

This was an action of Debt on a promissory Note of Samuel W. Wallace, as follows : “ On or before the 25th day of December next, I promise to pay Reuben Hill or bearer “ two hundred dollars, value received this 4th December, 1820. The Writ issued 3d March, 1821. The declaration was filed at March term, 1821, and at September term, 1821, judgment final by default was rendered. It is now assigned as Error,

That both Writ and Declaration shew that no cause of ■action existed at the commencement of the suit or filing the declaration.

In the construction of the language used in the Note, the words should be taken in their most usual and known signification. If the parties had intended that the Note should be payable in the same month as dated, it is much more .probable that the terms used would have been “ the 25th instant ” or 25th day of the present month, than the terms here used, whose usual and known signification we take to be, the 25th day of the next month of December. The defendant in Error contends that by the judgment by default the cause of action is admitted. A defendant never can be presumed to admit, either by pleading or failing to plead, a better cause of action than the plaintiff has set out. He certainly cannot fairly be presumed to admit a cause of action when none is set out. Taking all which is set forth in the declaration as admitted by defendant’s failing to plead, no right of action had accrued when the judgment was entered.

Let the judgment bo reversed. (1 Chitty’s Pl. 259, 263, 4.)  