were not within one year from the rendition of the judgment in the court below; the year expiring on the 8th of July, 1891.

In Camm v. Warren, 1 Houst. (Del.) 188, under a rule of court requiring ten days' notice of the time of laying down pretentions to land, it was held that a notice dated and served on the fifth, where the survey was made on the fifteenth, was sufficient.

A statutory rule for computing time does not apply where the first or last day on which an act may be done is expressed in the instrument. Northwestern Guaranty Loan Co. v. Channell (Minn. 1893), 55 N. W. Rep. 121. Promissory Notes.-Where a note is made payable in a given number of days, the day of the date is excluded in computing the time. Leavitt v. Simes, 3 N. H. 14; Avery v. Stewart, 2 Conn. 69; 7 Am. Dec. 240; Homes v. Smith, 16 Me. 181; Blanchard v. Hilliard, 1 Mass. 85; Woodbridge v. Brigham, 12 Mass. 403; 7 Am. Dec. 85; Presbrey v. Williams, 15 Mass. 192; Blitch v. Brewer, 83 Ga. 333; Henry v. Jones, 8 Mass. 453; Hicks v. Blanchard, 60 Vt. 673.

"Clear Day."-Where a statute prescribes a certain number of clear days, both the day on which the notice is served and the day of the proceeding must be excluded. Stewart v. Meyer, 54 Md. 454. See also Walsh v. Boyle, 30 Md. 262; Hoffman v. Duel, 5 Johns. (N. Y.) 232; Rex v. Cumberland, 4 N. & M. 378; Barber v. Chandler, 17 Pa. St. 48; 55 Am. Dec. 533; Reg v. Shropshire, 8 Ad. & El. 173; 35 E. C. L. 367; Reg. v. Middlesex, 3 D. & L. 109; Mitchell v. Foster, 12 Ad. & El. 472; 40 E. C. L. 98; Watson v. Eales, 23 Beav. 294.

In Gillispie v. White, 16 Johns. (N. Y.) 117, Spencer, J., said: "It is the practice of this court and the King's Bench, where any act is to be done within a specified number of days, to consider the day on which notice is given, and the day on which the act is to be done, the one inclusive, and the other exclusive, without any particular designation that the one or the other shall be exclusive." See also Owen v. Slatter, 26 Ala. 547; 62 Am. Dec. 745;

Irving v. Humphreys, Hopk. (N. Y.) 364; Jones v. Planters' Bank, 5 Humph. (Tenn.) 619; 42 Am. Dec. 471; Manning v. Dove, 10 Rich. (S. Car.) 395; Meredith v. Chancey, 59 Ind. 466; Stebbins v. Anthony, 5 Colo. 348; In

re

Senate Resolution, 9 Colo. 632; Knoxville City Mills Co. v. Lovinger, 83 Ga. 563

In computing the time of delivering a list of a jury, the day of delivery and the day of trial must both be excluded. State v. McLendon, 1 Stew. (Ala.) 195. See also Cook v. Gray, 6 Ind. 335; Jackson v. Vaulkenburgh, 8 Cow. (N. Y.) 260; Sanders v. Norton, 4 T. B. Mon. (Ky.) 464; Robinson v. Foster, 12 Iowa 186; Isabelle v. Iron Cliffs Co., 57 Mich. 120; Coquard v. Bochmer, 81 Mich. 445; Delaware, etc., R. Co. v. Mehrhof Bros. Co., 53 N. J. L. 205; Willey v. Laraway, 64 Vt. 566.

The rule that, in computing certain legal days, neither the day of the notice nor that on which the act is to be done are included, does not apply to art. 361, C. C., which provides that agreements between tutors and their wards arrived at the age of their majority, are null, unless preceded by a full account and vouchers rendered ten days previous to the agreement. Hodgson v. Roth, 33 La. Ann. 941. See also State v. Ellis, 40 La. Ann. 793.

The New York Code Civ. Proc., § 788, regulating the computation of time, applies to courts not of record. Dorsey v. Pike, 46 Hun (N. Y.) 112. 1. Oatman v. Walker, 33 Me. 67. By some of the adjudged cases, a distinction has been made between the date, and the day of the date of a written instrument. This distinction can be of no practical use, and is well calculated to mislead. Weeks v. Hull, 19 Conn. 376.

In Pugh v. Leeds, Cowp. 714, the question was whether the execution of a lease for twenty-one years to commence from the day of the date, was a compliance with a power reserved in a marriage settlement to lease for twentyone years in possession but not in reversion, and it depended on the question whether the phrase "to commence from the day of the date was to be

construed exclusively or inclusively of the day on which the lease bore date. After a minute examination of all the cases which had been decided on the construction of the words "from the day of the date" used in instruments, the court, through Mansfield, J., established the principle that the meaning of the phrases was the same, and that neither of them was to have an absolute and invariable sense attached to it, but that they were to receive an exclusive or inclusive construction according to the intention with which they were used, to be derived from the context and subject-matter, and so as to effectuate and not destroy the deeds of parties. See also Sands v. Lyon, 18 Conn. 18.

1. In Seekonk v. Rehoboth, 8 Cush. (Mass.) 371, Shaw, C. J., said: "We consider it now well settled as a general rule, that when an act is to be done within a given number of days from the date, or day of the date, or act done, the day of the date is excluded; otherwise, an act to be done in one day must be done on the same day; and as there is no fraction of a day, such stipulation must create an obligation to do it instanter." See also Fuller v. Russell, 6 Gray (Mass.) 128; Millett v. Lemon, 113 Mass. 355; Wiggin v. Peters, 1 Met. (Mass.) 127; Page v. Weymouth, 47 Me. 238; Lorent v. South Carolina Ins. Co., Nott & M. (S. Car.) 505; Smith v. Dickey, 74 Tex. 61; Williams v. Burgess, 12 Ad. & El. 635; 40 E. C. L. 142; Ammerman v. Digges, 12 Ir. C. L. R. App. 1.

In Bemis v. Leonard, 118 Mass. 502; 19 Am. Rep. 470, it was held that under the provisions of the statute requiring a copy of the writ and of the return of the attachment of bulky personal property, to be deposited in the town clerk's office at any time within three days thereafter, the day of the attachment is to be excluded in computing the three days within which copies may be deposited in the clerk's office.

In Bigelow v. Willson, I Pick. (Mass.) 485, Wilde, J., said: "We are warranted by the authorities to say, that when time is to be computed from or after the day of a given date, the day is to be excluded in the computation. And that this rule of construction is

never to be rejected, unless it appears that a different computation was intended. So, also, if we consider the question independent of the authorities, it seems to me impossible to raise a doubt. No moment of time can be said to be after a given day, until that day has expired." See also Calvert v. Williams, 34 Md. 672; Cummins v. Homes, 11 Ill. App. 158.

Where, by the rules of practice of the court, any subsequent proceeding in the cause is required to be had in a limited time, or within a certain number of days from or after any previous proceedings, the whole of the day on which the order was entered is to be excluded in the computation of time. But where previous notice of a motion or of any other proceeding in a suit is required to be given, the whole of the day on which the notice was served is to be included in the computation of time, and the day upon which the motion is to be made is excluded. Vandenburgh v. Van Rensselaer, 6 Paige (N. Y.) 147. See also Bissell v. Bissell, 11 Barb. (N. Y.) 96.

In Rand v. Rand, 4 N. H. 267, the court said: "In the computation of time from a date, or from the day of a date, we consider the settled rule in this state to be, that the day of the date is to be excluded." See also Sheets v. Sheldon, 2 Wall. (U. S.) 177; Blake v. Crowninshield, 9 N. H. 304; Priest v. Tarlton, 3 N. H.94; Chiles v. Smith, 13 B. Mon. (Ky.) 461; Batman v. Megowan, 1 Metc. (Ky.) 548; White v. Crutcher, 1 Bush (Ky.) 473; Handley v. Cunningham, 12 Bush (Ky.) 401; Pyle v. Maulding, 7 J. J. Marsh. (Ky.) 202; Wood v. Com., 11 Bush (Ky.) 220; Pugh v. Reat, 107 Ill. 440; Carson v. Love, 8 Yerg. (Tenn.) 215; Goode v. Webb, 52 Ala. 452; Atkins v. Sleeper, 7 Allen (Mass.) 487; Perry v. Provident L. Ins. Co., 99 Mass. 162; Wayne v. Duffy, 1 Phila. (Pa.) 367; Hampton v. Ehrenzeller, 2 Brown (Pa.) 18; Blackman v. Nearing, 43 Conn. 56; 21 Am. Rep. 634; McGavock v. Pollack, 13 Neb. 535.

In Wilcox v. Wood, 9 Wend. (N. Y.) 346, the court said: "Where reference is had to the day of date for computing time, I know of no decision in this state settling the point."

In the computation of time upon

service of notice of trial, the day of service is to be excluded, and the first day of term is included. Easton v. Chamberlin, 3 How. Pr. (N. Y. Supreme Ct.) 412; Daton v. McIntyre, 5 How. Pr. (N. Y. Supreme Ct.) 117.

In Seward v. Hayden, 150 Mass. 158; 15 Am. Rep. 183, Knowlton, J., said: "In reckoning from a day or a date, the rule generally adopted excludes the day from which the reckoning runs. Many early cases stated a distinction between computations from a day or a date, and computations from an act done or from an event. But this distinction does not rest upon a sound principle, and in most jurisdictions it is no longer recognized. The tendency of recent decisions is very strongly towards the adoption of a general rule which excludes the day as the terminus a quo in such cases. But this rule is not inflexible; and in the interpretation of a statute or contract, it yields to a manifest purpose or intention in conflict with it."

In Lysle v. Williams, 15 S. & R. (Pa.) 135, the day a bond was dated was included in computing the time for issuing a scire facias.

In Columbia Turnpike Road v. Haywood, 10 Wend. (N. Y.) 422, the rule is laid down that in determining the time within which process or notice must be served, the language of the statute must be observed; and where an act is to be done in a certain number of days before a day stated, then that day is excluded in the computation. See also Chaddock v. Barry, 93 Mich. 543; Arnold v. Nye, 23 Mich. 286; Charles v. Stansbury, 3 Johns. (N. Y.) 261.

Where the terms of a policy of insurance required assessments to be paid within thirty days from the date of the notice thereof, it was held that the day on which the notice was received should be excluded. Protection L. Ins. Co. v. Palmer, 81 Ill. SS.

Where land was sold for taxes on the fourth day of May, 1865, and the collector delivered his deed for the land to the purchaser on the fourth day

of May, 1866, it was held that the one year which the owner had to redeem land from the sale and to pay the taxes, had not expired, and that, consequently, the deed was executed prematurely. Annan v. Baker, 49 N. H. 161.

Where an act of the legislature, November 29, 1871, required all field notes that had been withdrawn from the land office to be returned in twelve months from its passage, it was held that the return of the notes on November 29, 1872, was in time. Hill v. Kerr, 78 Tex. 213.

1. Ryan v. State Bank, 10 Neb. 524; Kendall . Kingsley, 120 Mass. 94; Nichols v. Ramsel, 2 Mod. 280; Wicker v. Norris, Cas. Temp. Hardw. 116; Bemis v. Leonard, 118 Mass. 502; 19 Am. Rep. 470; Atkins v. Boyleston F. & M. Ins. Co., 5 Met. (Mass.) 439; 37 Am. Dec. 692.

Where a trader petitioned the court of bankruptcy for arraignment under 12 & 13 Vict., ch. 106, § 211, praying that his person might be protected from all process until further order, the commissioner made an order which, after reciting the petition, proceeded thus: "I hereby grant such protection in order that the personal property of the trader be protected from process until the 29th of July next," and the court appointed a meeting for twelve o'clock on that day for the creditors to assent to or dissent from the arraignment proposed by the trader. court held that the word "until" in the order must be understood inclusive of the 29th of July, the day until which the protection was given. Backhouse v. Mellor, 4 H. & N. 116; 28 L. J. Ex. 141; 5 Jur. N. S. 175.

The

A party insured his goods against fire, with an insurance company, by policy for six months, whereby it was provided that from the 14th of February, 1868, “until” the 14th of August, 1868, or so long after as the assured should pay the sum of $225.00, and the company at the time above mentioned accept the same, the fund should be liable to make good losses by fire to the goods. The assured intended to

exceeds a week, Sunday is included in the computation; but if less than a week, Sunday is excluded.

In Cooley v. Cook, 125 Mass. 406, it is said by Gray, C. J.: "Whenever the time limited by statute for a particular purpose is such as must necessarily include one or more Sundays, Sundays are to be included in the computation, even if the last day of the time limited happens to fall on Sunday, unless they are expressly excluded or the intention of the legislature to exclude them is manifest. See also Alderman v. Phelps, 15 Mass. 225; Ex p. Dodge, 7 Cow. (N. Y.) 147; Rowberry v. Morgan, 9 Exch. 730.

The Minnesota constitution provides that the governor may sign certain bills within three days after the adjournment of the legislature. A bill was presented to him on the 8th and on the same day the legislature adjourned sine die. He signed it on the 12th, an intervening day being Sunday. The court held that the intervening Sunday must be excluded in computing the three days. Stinson v. Smith, 8 Minn. 366; Farwell Co. v. Matheis, 48 Fed. Rep. 363. A similar case is that of People v. Hatch, 33 Ill. 149 (though the rule of the text is not applied). It is there held that the ten days during which the executor is allowed to retain a bill before signing it or returning it with his objections do not include Sunday. So that where a bill was sent to the governor and on the eleventh day thereafter at noon the legislature adjourned, he had until the first day of the next session in which to return it.

Under a Michigan statute requiring short summons issued from a justice's court to be made returnable in two days, Sunday is not to be included in the two days. Simonson v. Durfee, 50

Mich. So.

The twenty-four hours allowed to a party to claim an appeal, must be hours exclusive of Sunday. McIniffe v. Wheelock, 1 Gray (Mass.) 603.

Sunday is excluded from the three days allowed for filing a bill of exceptions. Crowley v. McLaughlin, 141 Mass. 181.

Under a statute requiring six days

publication of a notice (such notice being in the nature of process), publication on Sunday is not to be counted. Scammon v. Chicago, 40 Ill. 146.

So where a notice is required to be published each day for a week, publication for the six days is sufficient. Matter of Excelsior F. Ins. Co., 16 Abb. Pr. (N. Y.) 8.

Where the thirty days, during which property attached on mesne process is held subject to execution, expires on Sunday, the lien of the attachment does not continue to the next day. Alderman v. Phelps, 15 Mass. 225. See for other cases on this general subject, Com. v. Certain Intoxicating Liquors, 97 Mass. 601; Penniman v. Cole, 8 Met. (Mass.) 501; Casey v. Viall, 17 R. I. 348. But this general rule may vary according to the circumstances of the case. Thus, it is said that in computing the time during which a defect in a highway must have existed, in order to render the town liable for an injury occasioned thereby, Sunday is to be included; and this, though the time is less than seven days. Flagg v. Milbury, 4 Cush. (Mass.) 243

The English Rule. The English authorities stated the rule thus: "The general rule of the law is, that days means consecutive days, except Sunday be the first or last day. But in mercantile cases, it is sometimes otherwise, because mercantile contracts are to be construed with reference to mercantile usage." Alderson, B., in Brown v. Johnson, 1 C. & M. 444; 41 E. C. L. 245. Mr. Benjamin, citing this case, said: "Where a certain number of days is to be allowed for the delivery of goods under a contract of sale, they are to be counted as consecutive days, and include Sundays, unless the contrary be expressed, and any usage to that effect be shown." Benj. on Sales (4th Am. ed.), § 684; Cockran v. Retberg, 3 Esp. 121. See also Peacock v. Reg., 4 C. B. N. S. 264; 93 E. C. L. 262, where it is held that Sunday, even though it be the last day, is to be computed in the three days allowed for an application to the justices to state a question for the opinion of one of the superior

courts.

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