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Sec. 55. Meaning of the Word “Month." - In England, in the absence of special circumstances which may lead to a contrary conclusion, a month is usually held to mean a lunar and not a calendar month. But now it is enacted by statute that in all statutes the word “ month” shall be deemed and taken to mean calendar month, unless words be added which show that lunar month is intended. The effect of this statute is, therefore, in regard to the construction of acts of Parliament, to shift the onus of proof of the meaning of the term. But except so far as the act extends, the term “ month” still in temporal matters prima facie means lunar month, though it is otherwise in ecclesiastical matters.? In mortgage transactions, a month means calendar month. In considering what is the length of a calendar month, it is sufficient, when the months are broken, whatever may be their length, to go from one day in one month to the corresponding day in the other. But, whatever may be the rule at the common law, it is now quite well established in the courts of this country that, when the word “month” is employed in a statute, it is considered as a calendar month ; 4 and such is also the rule when it is referred to in legal proceedings, bills of exchange, and promissory notes, deeds, contracts, or other obligations." which it was necessary to bring the action. 8 Dav. Prec. (4d ed.) vol. ii. pt. 2, This was so decided partly on the ground p. 863, note s. that though the party robbed was deserv- 4 Brewer v. Harris, 5 Gratt. (Va.) 285 ; ing of relief and pity, yet as against the Hunt v. Holden, 2 Mass. 170 ; Avery v. innocent hundred the law was highly Pixley, 4 id. 460 ; Strong v. Burchard, 5 penal. Under the statute 2 Geo. II. c. 23, Conn. 357; Mitchell v. Woodson, 37 Miss. which directs that no solicitor shall com- 567 ; Sprague v. Norway, 31 Cal. 173 ; mence an action for the recovery of his Kimball v. Lamson, 2 Vt. 138 ; Williamfees until the expiration of one month after son v. Farrow, 1 Bailey (S. C.) Const. he shall have delivered his bill, it has been 606 ; Com. v. Shortridge, 3 J. J. Mar. decided that the month is to be reckoned (Ky.) 638 ; Com. v. Chambre, 4 Dall. exclusively of the days on which the bill (Penn.) 143 ; Glenn v. Hibb, 17 Md. 260 ; is delivered and the action brought. Blunt Bartol v. Calvert, 21 Ala. 42; Gross v. v. Heslop, 8 Ad. & El. 577. In Mitchell Fowler, 21 Cal. 392 ; Moore v. Houston, v. Foster, 4 P. & D. 150, it was decided that 3 S. & R. 69. In New York the rule was the expression “ ten days' notice at least" otherwise as to its use in statutes, Loring in a statute means ten clear days, exclu- v. Hulling, 15 Johns. (N. Y.) 119; Parsons sively both of the day on which proceed- v. Chamberlain, 4 Wend. (N. Y.) 512 ; but ings are taken and of the day on which now, by statute, it is provided that it shall the cause arose.

be construed to mean a calendar month, 1 13 & 14 Vict. c. 21.

and not a lunar month, unless otherwise 2 Hipwell v. Knight, 1 Y. & C. 401; expressed. In Delaware, State v. Jacobs, Parsons v. Chamberlain, 4 Wend. (N. Y.) 2 Harr. (Del.) 548, the term, as used in the 512; Stephens Bl. (7th ed.) vol. i. 283; statute limiting indictments against horseWalker v. Clements, 15 Q. B. 1046; Castle racing, cock-fighting, &c., was construed to v. Burdett, 3 T. R. 623 ; Rex v. Peckham, mean lunar months. Carth. 406; Lacon v. Hooper, 6 T. R. 224; 5 Kelly v. Gilman, 29 N. H. 385 ; TillRex v. Adderly, Doug. 462.

But in cases

son v. Bowley, 8 Me. 163 ; People v. Ulrich, of lapse and quare impedit, calendar 2 Abb. (N. Y.) Pr. 28. months are held to be intended, Catesby's 6 Thomas v. Shoemaker, 6 W. & S. Case, 6 Coke, 62; and such also is the (Penn.) 179; Leffingwell v. White, 1 Johns. rule there as to bills and notes, Chitty on Cas. (N. Y.) 99. Bills, 542.

7 Sheets v. Selden, 2 Wall. (U. S.)

Sec. 56. When Act is to be done “ by" a Certain Day. - When an act is to be done by the fifteenth day of any given month, it must be done and fully completed on the fourteenth, as it is construed as the intention and with the view of having the benefit of the act on the fifteenth, that that day is fixed upon.'

SEC. 57. Year. — The word “year,” when employed in statutes or any class of obligations, and no mention is made of any other system of reckoning, and there is nothing to indicate a different intention, is construed as meaning a year, according to the Christian calendar.2 The rule may be said to be that the period of time intended to be designated by the time must be determined by the subject-matter and the context of the instrument or statute, and that signification given to it which accords with the intention of the party using it.:

177. In Union Bank v. Forrest, 3 Cranch Hopkins v. Chambers, 7 T. B. Mon. (Ky.)
(U. 8. C. C.), 218, the term “month," as 257.
used in a bank charter, was held to mean 3 Thornton v. Boyd, 25 Miss. 598. The
calendar month. Shapley v. Garey, 6 S. & term “one whole year,"used in the Massa-
R. (Penn.) 539 ; Hardin v. Major, 4 Bibb chusetts act of 1793, c. 34, respecting set-
(Ky.), 104. “For the space of one month tlements, was held to be a political, or
after return-day,” and “within one month rather a municipal, year; viz., from the
from return day," are equivalent expres- time the officer is chosen until a new choice
sions. Gore v. Hodges, 7 T. B. Mon. (Ky.) takes place, at the next annual meeting for
520.

the choice of town officers, which may some. 1 Rankin v. Woodworth, 3 Penn. 48. times exceed, and sometimes fall short of,

· Engleman r. State, 2 Ind. 91. Two a calendar year. Paris v. Hiram, 12 Mass. fears is equivalent to twenty-four months. 262.

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CHAPTER VI.

EQUITY, ADOPTION OF STATUTE BY COURTS OF.

SEC. 58. Adoption of Statute in Cases Sec. 61. Effect of Acquiescence.

involving Concurrent Jurisdic- 62. Distinction between Laches and tion.

Acquiescence. 59. Rule as to purely Equitable Mat- 63. When Equity will supply Remters.

edy upon a Claim barred by 60. Stale Demands.

the Statute.

Sec. 58. Adoption of Statute in Cases involving Concurrent Jurisdiction. Courts of equity, although not in all cases bound by the statute of limitations, unless expressly brought within its provisions, have nevertheless acted in this respect, in analogy to courts of law, and given effect to the statute in all cases of concurrent jurisdiction ; 2 and it may

1 Wanmaker v. Van Buskirk, 1 N. J. trusts, created by deed or will, and perhaps Eq. 685 ; Thorp v. Thorp, 15 Vt. 105; trusts existing by appointment of law, are Munson v. Halloway, 26 Tex. 475 ; Lewis not within reach of the statute. Construcv. Marshall, 1 McLean (U. S.), 16 ; s. C. tive trusts, resulting from agencies, part5 Pet. (U. S.) 470 ; Johnson v. Johnson, nerships, and the like, are subject to the 5 Ala. 90; Callard v. Tuttle, 4 Vt. 491; statute. Fraud in the defendant does not Manchester v. Matthewson, 3 R. I. 237. prevent the statute of limitations from The statute of limitations, in Massachu- barring a suit in equity, unless it be acsetts, operates, in equity as well as at law, tual fraud, which was concealed, and which of its own force, and not by the courtesy the party had no means of discovering, till or discretion of the courts. But direct within six years before the filing of the

2 Bruen v. Hone, 2 Barb. (N. Y.) 586; case, Breckenridge v. Churchill, 3 J. J. Phares v. Walters, 6 Iowa, 106; Young v. Mar. (Ky.) 11, A. being indebted to B., a Mackall, 3 Md. Ch. 398; Teackle v. Gib. large part of the debt being for usury, A. son, 8 Md. 70; Hertle v. Schwartz, 3 id. and C. as surety gave their note to D., a 366; Knight v. Browner, 14 id. 1; Wilson creditor of B., receiving from B. a previous v. Anthony, 19 Ark. 16; Hill v. Boyland, note made by A. A. having failed, C. was 40 Miss. 618; Goff v. Robbins, 83 id. 153; compelled to pay the note. A. assigned to Perkins v. Cartnell, 4 Harr. (Del.) 270; C. all his right to recover usurious interest Gunn v. Brantley, 21 Ala. 633; Crocker v. from B. In a proceeding in equity to reClements, 23 id. 296; Keaton v. McGwier, cover the usurious interest bronght by C., 24 Ga. 217; Manning v. Warren, 17 Il. it was held that as A. had lost his right to 267. In Tiernan v. Rescariere, 10 G. & J. sue B. for the usury by lapse of time, C. (Md.) 217, the court held that, when relief stood in no better position in relation to sought in equity is not more comprehen. the same, and that a court of equity, in sive than that which might have been ob- matters where its jurisdiction was concurtained at law for money had and received, rent with courts of law, was equally bound the statutory bar is applied the same as it by the statute. would have been at law. In a Kentucky

be said that in such cases a court of equity will no more disregard the

bill. A constructive trust is subject to Leggett v. Coffield, 5 Jones (N. C.) Eq. the statute of limitations. So held, in 382; Phalen v. Cook, 19 Conn. 421. case of a partner who, after the dissolu. Though the statute does not apply in tion of the firm, had funds remaining in his terms to proceedings in equity, yet such hands, and accounts unsettled. Fornam v. proceedings are affected by analogy to the Brooks, 9 Pick. (Mass.) 212. The statute statute, so that in general if the party be limiting suits against executors to four guilty of such laches, in pursuing his years after the acceptance of their trust equitable title, as would bar him at law, is a bar to a bill in equity, in cases where he shall be barred in equity ; but equity it bars a suit at law. Burditt v. Grew, 8 will remove the legal bar proceeding from Pick. (Mass.) 108. It is a well-established lapse of time, as it would any other legal rule in equity that the statute will bar an advantage, if sought to be used conscienequitable right, where at law it would tiously. Bond v. Hopkins, 1 Sch. & Lef. have operated against a grant. Miller v. 413. See Barnesley v. Powell, i Ves. McIntyre, 6 Pet. (U. S.) 61. Where, in 285; M'Kenzie v. Powis, 4 Bro. C. C. 328 ; settling a debt, a party paid $3,000 in Pincke v. Thornycroft, 1 id. 289, 4 Bro. cash, and gave his note for the residue, P. C. 92; Foxcraft v. Lyster, 2 Vern. 456 ; the amount of both of which exceeded, by Colles, 108 ; Pulteney v. Warren, 6 Ves. mistake, the amount of the debt $1,000, it 73. But see Duval v. Terry, Show. 15. was held that a cause of action accrued Where lands are devised in trust for pay. immediately to the party making the pay- ment of debts, the statute of limitations ment to recover back the $1,000; and does not run after the death of testator, that, where he made no effort to do against debts not barred thereby at his 50 until after judgment was recovered death. Fergus v. Gore, 1 Sch. & Lef. 107; against him on the note, when he filed a Burke v. Jones, 2 Ves. & B. 275. A plea bill for relief to that extent against the of the statute by an executor was allowed judgment, an action at law to recover back where the testator died in 1786, but prothe over-payment being then barred by the bate was not taken in 1802, the allegation statute, the bill was also barred thereby. of the bill, upon a fair construction, being, Bank of United States v. Daniel, 12 Pet. that the defendant had possessed the per. (U. S.) 32. Although strictly these stat- sonal estate, and therefore might have been utes do not extend to suits in equity, yet sued as executor de son tort previously to the courts acknowledge their obligation ; 1792. Webster v. Webster, 10 Ves. 93. and where the statute takes away the right Non-payment of rent reserved on a lease, of entry, or would bar an ejectment in though for more than twenty years, will twenty years, it will, by analogy, bar relief not bar the lessor from recovering possesin equity, although time within which a sion at the expiration of the term. Saunwrit of right or other real action might be ders v. Lord Annesley, 2 Sch. & Lef. 106. brought. Elmendorf v. Taylor, 10 Wheat. There is no statute of limitations to bar a (U. S.) 152 ; People v. Everest, 4 Hill legal rent-charge; therefore in equity such (N. Y.), 7; Reeves v. Dougherty, 7 Yerg. a bar will not be permitted to prevail, but (Tenn.) 222 ; Hayden v. Bucklin, 9 Paige the demand may be excluded by presump(N. Y.) Ch. 512 ; Long v. White, 5 J. J. tion from length of time, and acquiescence. Mar. (Ky.) 231 ; Ridley v. Hetman, 10 Stackhouse v. Barnston, 10 Ves. 467. Ohio, 524 ; Saunders v. Catlin, 1 D. & B. Collins v. Goodall, 2 Vern. 235 ; Eldridge (N. C.) Eq. 95; Cleaveland Ins. Co. v. v. Knott, Cowp. 214 ; Aston v. Aston, 1 Reed, 1 Biss. (U. S. C. C.) 180 ; Hovenden Ves. 264 ; Cholmondeley v. Clinton, 2 Jac. 0. Annesley, 2 Sch. & Lef. 329; Humbert & W. 141 ; Troup v. Smith, 20 Johns. 7. Trinity Church, 24 Wend. (N. Y.) 587; (N. Y.) 47; Thomas v. White, 3 Litt. Moore v. Porcher, 1 Bailey (8. C.), Eq. (Ky.) 177; Taylor v. McMurray, 5 Jones 195; Hamilton r. Hamilton, 18 Penn. St. (N. C.) Eq. 357 ; Armstrong v. Campbell, 20; Wood v. Wood, 3 Ala. 756 ; Cum- Yerg. (Tenn.) 201; Dean v. Dean, 9 ming v. Berry, 1 Rich. (S. C.) Eq. 114; N. J. 425 ; McCrea v. Purmort, 16 Wend.

statute than a court of law. Indeed, LORD REDESDALE, in an English

(N. Y.) 460 ; Rhyn v. Vincent, 1 McCord (U. S.) 146. A court of equity will give (S. C.) Eq. 310; lurray v. Coster, 5 Johns. full effect to the statute of limitations, as (N. Y.) Ch. 522; Kane County v. Her well as throw out stale demands and claims; rington, 50 III. 232; Atwater v. Fowler, but when it perceives that the party com. 1 Edw. (N. Y.) Ch. 417; Kane v. Blood. plaining has equitable rights, and that the good, 7 Jolins. (N.Y.) Ch. 90 ; Lansing v. remedy at law might have proved to be in. Starr, 2 id. 150; Badger v. Badger, 2 Cliff. sufficient; that the answer admits that they (U. S. C. C.) 137 ; Conover v. Conover, 1 have never been relinquished, or compenN. J. Ea. 403. Effect will be given to the sation made for them, and that they still statute of limitations in equity as well as exist; and alleges that no resistance has at law in proper cases. Lewis v. Marshall, been made to the enjoyment of them up to 1 McLean (U. S.), 16 ; Bank of United the time of filing the answer, – it will not States v. Daniel, 12 Pet. (U. S.) 32 ; Lewis refuse to give relief, eing a case proper v. Marshall, 5 id. 469 ; Sharp v. Sharp, 15 for it, although the claim has been outVt. 105; Collard v. Tuttle, 4 id. 491; Hum- standing for a long time. Chapman v. bert v. Trinity Church, 24 Wend. (N. Y.) Butler, 22 Me. 191. It will not presume 587; McCrea v. Purmort, 16 id. 460; Lan- the extinguishment of an equity of resing v. Starr, 2 Johns. (N. Y.) Ch. 150; Mur- demption from lapse of time, where the ray v. Coster, 20 Johns. (N. Y.) 576; s. c. person entitled is under any of the dis5 Johns. (N. Y.)Ch.522; Atwater v. Fowler, abilities specified in the statute of limita1 Edw. (N. Y.) Ch. 417; Kane v. Blood- tions, Wells v. Morse, 11 Vt. 9. Nor does good, 7 Johns. (N: Y.) Ch. 90; Wanmaker the statute constitute directly a defence to v. Van Buskirk, 1 N. J. Eq. 685; Conover a bill in chancery; but the court will, in v. Conover, id. 403; Watkins v. Harwood, analogy to the statute, presume a settle2 Gill & J. 307; Lingan v. Henderson, 1 ment and payment from the lapse of the Bland (Va.), 236; Harrison v. Harrison, same time, if the presumption be not re1 Call (Va.), 419; Ryan v. Parker, 1 Ired. butted by evidence which satisfactorily Ch. 89; Mardre v. Leigh, 1 Dev. (N. C.) accounts for the delay, and the case do Eq. 360; Van Rhyn v. Vincent, 1 McCord not come within the exceptions of the (S. C.) Ch. 310; Cumming v. Berry, 1 Rich. statute. Spear v. Newell, 13 Vt. 288; (S. C.) Eq. 114; Moore v. Porcher, 1 Bailey Mardre v. Leigh, 1 Dev. (N. C.) Eq. 366; Ch. 195; Johnson v. Johnson, 5 Ala. 90; Ryan v. Parker, 1 Ired. (N. C.) Eq. 89; Wood v. Wood, 3 id. 756; Armstrong v. Harrison v. Harrison, 1 Call (Va.), 419; Campbell, 3 Yerg. (Tenn.) 201; Shelby v. Watkins v. Harwood, 2 G. & J. (Md.) 107; Shelby, Cooke (Tenn.), 179; McDowell Lingan v. Henderson, 1 Bland (Md.) Ch. v. Heath, 3 A. K. Mar. 222; Thomas v. 236; Mitchell v. Woodson, 37 Miss. 567; White, 3 Litt. (Ky.) 177; Perry v. Craig, Mandevill v. Lane, 28 id. 312; Borden e. 3 Mo. 316. And an allegation in the bill Perry, 20 Ark. 293 ; Harris v. Mills, 28 that the plaintiff has been prevented by III. 44; McDowell v. Heath, 3 A. K. Mar. fraud from asserting his claim is unavail. (Ky.) 222; Shelby v. Shelby, Cooke(Tenn.), ing. McCrea v. Purmort, 16 Wend. (N.Y.) 179; Murphy v. Blair, 12 Ind. 184; Bailey 460. In cases of concurrent jurisdiction, v. Carter, 7 Ired. (N. C.) Eq. 282; Thomas courts of equity are bound by the statute v. Harvie, 10 Wheat. (U. S.) 146; Judah equally with courts of law. And there are v. Brandon, 5 Blackt. (Ind.) 506; Demarest other cases, not of concurrent jurisdiction, v. Wynkoop, 3 Johns. (N. Y.) Ch. 129; where the statute is applied by way of Perkins v. Cartwell, 4 Harr. (Del.) 270 ; analogy to the law. Pratt v. Northam, 5 Lansing v. Star, 2 Johns. (N. Y.) Ch. Mas. (U. S. C. C.) 95. In prescribing the 150. time within which a bill of review may be 1 Bailey v. Carter, 7 Ired. (N. C.) Eq. brought, a court of equity will adopt the 282. A court of equity will give effect to analogy of the statute limiting the time the statute in all cases where the plaintiff within which an appeal may be taken to could have brought an action at law for a decree. Thomas v. Harvie, 10 Wheat. the same matter. Goddell v. Kimmel, 99

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