King v. Adderley, where he said the rule was laid down generally, that where the computation of time is to be made from an act done, the day on which such an act is done is to be included.1 In a case where the law required that a month's notice be given of an action, it was held that the month begins with the day on which notice is served; the court saying that the case came expressly within the rule laid down in The King v. Adderley.2 45. In accordance with the foregoing decisions, and upon the authority of some of them, it was held by the Supreme Court of Massachusetts, that the day on which a payment was made on a note was to be included in the calculation of time, under a plea of the statute of limitations to an action on the note. The note was dated February 16, 1810, payable on demand, and the action was commenced on the 1st of November, 1817. A payment was made and indorsed on the note, on the 1st of November, 1811, so that the time of limitation would begin to run from that time. The question, therefore, was whether a promise made on the 1st of November, 1811, and sued on the 1st of November, 1817, was barred as not having been brought within six years. The court decided it was, and Mr. Justice Jackson, who delivered the opinion of the court, said: "By the statute of limitations it was intended that the plaintiff should have six full years and no more, within which to bring his action. In this case he might have brought his action on the 1st of November, 1811, as upon the new promise then made (supposing that the action had been previously barred by the statute); and if he may also commence on the first day of November, 1817, it would make seven first days of November, in the six prescribed by the statute." He cited as authority, Norris v. The Hundred of Gautris, and Doug. 463, The King v. Adderley. Mr. Justice Story, also, in giving the opinion of the Supreme Court of the United States, in 1815, considered the general rule then to be," that where the computation is to be made from an act done, the day on which the act is done is to be included." 4 3 46. But the above rule was made the subject of discussion by the counsel, and by the Master of the Rolls, Sir William Grant, 1 Glassington v. Rawlins, 3 East, R. 407. 2 Castle v. Burditt, 3 D. & East, R. 623. 8 Presbrey v. Williams, 15 Mass. R. 193. See also Little v. Blunt, 9 Pick. (Mass.) R. 488. 4 Arnold v. United States, 9 Cranch, (U. S.) R. 120. in the case of Lester v. Garland.1 The views taken of it by the latter, at the counsel's suggestion, has had an effect upon subsequent decisions. The following were the general views expressed by the Master of the Rolls upon this subject, in the case referred to: "It is said for the plaintiffs, that upon this subject a general rule has been by decision established, that where the time is to run from the doing of an act (and for the purpose of this question it must extend to the happening of an event), the day is always to be included. Whatever dicta there may be to that effect, it is clear the actual decisions cannot be brought under any such general rule. The presentment of a bill of exchange to the sight of the drawee is an act done; and yet it is now settled, that the day upon which it is presented is to be excluded; though it had been ruled otherwise by three judges of the Court of Common Pleas, against the opinion of Treby, C. J. But the law is now clearly settled against that decision. The annuity act (Stat. 17 Geo. III. c. 26), provides, that the twenty days shall run from the execution of the deed. The execution of the deed is undoubtedly an act done; yet, according to the decisions, the day upon which the deed was executed is excluded." The cases chiefly relied on, he said, to the contrary, "are The King v. Adderley, where the day on which the sheriff's office expired was held to be included in the six months, after which he is not be called on to return process. The Court of King's Bench first thought the day excluded, but chiefly upon the ground that the act (Stat. 20 Geo. II. c. 37) was made for the ease of sheriffs, and ought to be construed favorably for them, afterwards determined that it was to be in- . cluded. The case of Castle v. Burditt, where the day on which the notice was given was included in the month that was to elapse before the action could be brought; the case of Glassington v. Rawlins, where, contrary to the first opinion of Mr. Justice Lawrence, it was determined that, in the computation of two months, creating an act of bankruptcy, the day of the arrest is to be included; lastly, the cases upon the statute of Hue and Cry, in which the day of the robbery is included in the year which the party robbed has to bring his action against the Hundred, to which might have been added, the case of continual claim." "It is not necessary," says the Master of the Rolls, " to lay down any general rule upon this subject; but upon technical reasoning, I rather 1 15 Ves. Ch. R. 248. think it would be more easy to maintain that the day of an act done, or an event happening, ought in all cases to be excluded, rather than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of individual point, so that any act done in the compass of it is no more referable to any one than to any other portion of it; and, therefore, the act cannot properly be said to be passed until the day is passed."1 47. Upon the cases of The King v. Adderley, Castle v. Burditt, and Glassington v. Rawlins, Mr. Sergeant Palmer said the Master of the Rolls, in the above case, made an observation that applied correctly to all those cases except the first, namely, that the act done, from which the computation is made, inclusive of the day, is an act to which the party against whom the time runs is privy ; and, as he unquestionably has the benefit of some portion of the day, there is the less hardship in constructively reckoning the whole of it as a part of the time to be allowed him; whereas, in this case, the event was one totally foreign to the party whose time for deliberation was to begin to run from that event. In the case of a notice, said the Master of the Rolls, of an action to be brought, the party necessarily knows the time at which he is served with the notice, and may immediately begin to consider the propriety of preventing the action by tendering amends; and the same observation applied to the cases of the man robbed.2 48. In Pellew v. Hundred of Womford,3 the act or event (and Sir William Grant puts an event on the same footing as an act) was a fire; and the day was excluded partly on the principle of the suggestion in Lester v. Garland, that the party to be affected was not privy to the occurrence. Bayley, J., in Hardy v. Ryle,* recognizes that principle, and cites the instance of a notice of action among those in which the day should be included. Where a contract was made for the sale of goods to be paid for in two months, the Court of Exchequer held that the day of the contract 1 This case arose out of a condition precedent in a will. It was held that the six months are exclusive of the day of the testator's death; therefore, as he died on the 12th of January, between eight and nine in the evening, a security given on the 12th of July, about nine in the evening, was sufficient. See the reasoning of the Master of the Rolls, in connection with Mercer v. Ogilvie, 14 Ves. R. 554. 2 Referring to the robbery in Norris v. Hundred of Gautris. 8 9 B. & Cress. R. 134. • Ibid. 603. was to be excluded. This, however, is governed by the law-merchant; but the authority of Castle v. Burditt was questioned.1 Under a statute whieh directs that no attorney shall commence an action for his fees until "the expiration of one month or more after he shall have delivered his bill," the month is to be reckoned exclusively of the day on which the bill is delivered and the action brought.2 It was held, under a statute which declares that every warrant of attorney to confess a judgment shall be filed "within twenty-one days after the execution of such warrant, that the twenty-one days are to be reckoned exclusively of the day of execution," so that a warrant executed on the 9th December, and filed on the 30th, was in time. Where it appeared, on the face of a conviction for an offence against the excise laws, that the plaintiff had been summoned on the 20th September to appear before the defendant on the 30th September following, and not appearing on that day, the defendant proceeded to hear evidence, and convicted him in a penalty of £5; the court held the conviction to be null and void, and the defendant liable in tresspass for issuing a distress warrant, as the excise act (4 & 5 Will. IV. c. 51, s. 19) requires that "ten days' notice at least" shall be given to the party to appear; and the rule is inflexible to construe such limitation of time as ten clear days. The day on which a habere is to be executed on an eviction under the ejectment statute in Ireland, for non-payment of rent, is to be excluded in the computation of the six months given to the tenant to redeem; and where a right is to be divested, or a forfeiture incurred, by including the day of the act done, the computation will make it exclusive.5 49. We here offer the views at large of the law upon this subject, of Mr. Justice Washington, as given by him in the case of Pearpoint, &c. v. Graham. He said that, after a very laborious examination of all the cases, he thought the following principles may be considered as settled: "Where the computation of time is made from an act done, the day on which the act is per 1 Webb v. Fairmaner, 3 Mees. & Welsb. R. 473. 2 Blunt v. Heslop, 8 Adol. & Ell. R. 577. Littledale, J.: The words being "one month or more," we must suppose that the client was intended to have a full month after the delivery of the bill. 3 Williams v. Burgess, 12 Adol. & El. R. 635. * Mitchell v. Forster, 4 Perry & Dav. (Q. B.) R. 150; cited in 26 Am. Jurist, 146. Dowland v. Foxall, 1 B. & Beatty, Ch. R. 192. • Pearpoint, &c. v. Graham, 4 Wash, (Cir. Co.) R. 232. formed is included, because the act is the terminus a quo the computation is to be made; and there being in contemplation of law no fraction of a day (unless when an inquiry as to the priority of acts done on the same day becomes necessary), the terminus is considered as commencing the first moment of that day. Thus is the rule laid down in Clayton's case,1 and recognized in the cases Castle v. Burditt,2 The King v. Adderley,3 Bellasis v. Hester,1 Norris v. The Hundred of Gautris.5 The only exception to this rule, which is recollected, is established by the law-merchant, which considers the day on which a bill of exchange, made payable at so many days' sight, is excepted, as excluded. Where the expressions are from the date, I understand the rule to be, that, if a present interest is to commence from the date, the day of the date is included; but, if they are used merely to fix a terminus from which to compute time, the day is in all cases excluded. Thus a lease for so many years, habendum a datu, is of the first description, and the day of the date is included. But if the deed had been dated at a day past, and the habendum was 'from the date,' the day would be excluded, because no present interest passed, and the expressions were merely used for computing time. So the enrolment of a deed of bargain and sale, under the statute of 27 Hen. VIII. c. 16, which provides that such deeds must be enrolled within six months, excluding the day of the date, is in time (Dy. 218, 6). It is not necessary to refer to other cases as illustrations of the rule, to which I recollect no exceptions. The reason of the rule is perfectly intelligible and sensible. It is that, where words of equivocal meaning (which these are admitted to be) are made use of, and there is no index from the res gestæ to show the intention of the party who used them, the construction shall be made most advantageous for him in whose favor the instrument is made. In case of a lease first mentioned, the day of the date is included for the purpose of vesting in the grantee an estate in possession, rather than one in expectancy, which is most beneficial to the grantee. In other cases, the day is excluded for the same reason; as it either prolongs the interest of the grantee, or enlarges the time in which he is required to act. This reason, it must be admitted, does not apply to a bill of exchange made payable so many days after date, where the day is excluded, though to the disadvantage of the person in whose favor 15 Rep. 2 Supra. 8 Ibid. 4 Ibid. 5 Ibid. |