instrument, were to receive an inclusive or exclusive sense, 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 deed of the parties, and that there was no absolute or invariable sense to be attached to them. This view was adopted in a Fennsylvania case,1 in which TILGHMAN, C. J., stated his conclusion to be, after a careful examination of the authorities, that the day on which the act is done is excluded or included, as the nature of the case indicated to the court that a liberal or vigorous construction should be adopted.2 that have been now cited, except the two half the other, eighty were granted 'from I have mentioned. "SIR THOMAS PARKER and MR. BARON REYNOLDS were of opinion with the objection, that it was a void lease, because it commenced in futuro. The two other barons were of a different opinion upon this point; but upon another point they were of opinion the lease was void. SIR THOMAS PARKER and MR. BARON REYNOLDS to the contrary; so that, for different reasons, they were all of opinion the lease was void. Upon a case which happened in this court since, Bayntun v. Watton, this case between Lord Pembroke and the Countess of Portland was mentioned. Upon memory, as the judgment appeared to me in so unfavorable a light, I took it for granted that the court had been, as it were, compelled by the weight and force of authorities. But now I will tell you why I change my opinion, after having determined the case of Doe v. Watton, as I then did, out of a great veneration for SIR THOMAS PARKER, and because I did not care to set up an opinion of my own mind against a solemn judgment. SIRTHOMAS PARKER, intending to favor the world with the publication of some cases that were adjudged in his time, he did me the honor to desire I would peruse them. I have done so; and reading a very elaborate report of the Countess of Portland's case, brought back to me in a regular view the whole doctrine upon the present subject. There I saw how the authorities stood, how the reasoning stood; and I likewise found another thing mentioned in that case, which seems to me not to have been properly argued at the bar by the counsel in support of the lease. It is this: the parties concerned had searched all the leases from the time of the Civil List Act down to the moment of that upon which the question was then in agitation, and they were nearly half the one way and the date or making,' and above seventy 'from the day of the date or making.' All these leases had passed the great seal, and likewise the seal of the Exchequer. The argument drawn from this circumstance was, that usage should get the better, and prevail over the act of Parliament, which was in fact an admission at the same time by implication that 'from the day of the date' was contrary to the act. It struck me in a different light, which is, that the question turned upon the construction of the English words, and what sense they bore. If I was right, nothing can be so strong as that all the officers of the crown who had been concerned in making these leases looked upon the words as synony mous, and suffered them to pass and repass unnoticed. It is demonstration that, by using both indifferently, they understood them to be both the same thing. "To conclude, the ground of opinion and judgment which I now deliver is that 'from' may, in vulgar use, and even in the strict propriety of language, mean either inclusive or exclusive; that the parties necessarily understood and used it in that sense, which made their deed effectual; that courts of justice are to construe the words of parties so as to effectuate their deeds, and not destroy them, more especially where the words themselves abstractedly may admit of either meaning." 1 Sims v. Hampton, ante. 2 O'Connor v. Towns, ante. In Pellew v. Hundred of Winford, 9 B. & C. 139, LORD TENTERDEN said that it was impossible to reconcile all the cases, or to deduce from them any clear rule or principle. In an action on the statute of hue and cry, Norris v. Hundred of Gautris, Hobart, 139, it was decided by a majority of the court that the day of the robbery was to be included in computing the period within 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.2 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; 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. This was so decided partly on the ground that though the party robbed was deserving of relief and pity, yet as against the innocent hundred the law was highly penal. Under the statute 2 Geo. II. c. 23, which directs that no solicitor shall commence an action for the recovery of his fees until the expiration of one month after he shall have delivered his bill, it has been decided that the month is to be reckoned exclusively of the days on which the bill is delivered and the action brought. Blunt v. Heslop, 8 Ad. & El. 577. In Mitchell v. Foster, 4 P. & D. 150, it was decided that the expression "ten days' notice at least" in a statute means ten clear days, exclusively both of the day on which proceedings are taken and of the day on which the cause arose. 1 13 & 14 Vict. c. 21. 2 Hipwell v. Knight, 1 Y. & C. 401; Parsons v. Chamberlain, 4 Wend. (N. Y.) 512; Stephens Bl. (7th ed.) vol. i. 283; Walker v. Clements, 15 Q. B. 1046; Castle v. Burdett, 3 T. R. 623; Rex v. Peckham, Carth. 406; Lacon v. Hooper, 6 T. R. 224; Rex v. Adderly, Doug. 462. But in cases of lapse and quare impedit, calendar months are held to be intended, Catesby's Case, 6 Coke, 62; and such also is the rule there as to bills and notes, Chitty on Bills, 542. 5 8 Dav. Prec. (4d ed.) vol. ii. pt. 2, p. 863, note s. 4 Brewer v. Harris, 5 Gratt. (Va.) 285; Hunt v. Holden, 2 Mass. 170; Avery v. Pixley, 4 id. 460; Strong v. Burchard, 5 Conn. 357; Mitchell v. Woodson, 37 Miss. 567; Sprague v. Norway, 31 Cal. 173; Kimball v. Lamson, 2 Vt. 138; Williamson v. Farrow, 1 Bailey (S. C.) Const. 606; Com. v. Shortridge, 3 J. J. Mar. (Ky.) 638; Com. v. Chambre, 4 Dall. (Penn.) 143; Glenn v. Hibb, 17 Md. 260; Bartol v. Calvert, 21 Ala. 42; Gross v. Fowler, 21 Cal. 392; Moore v. Houston, 3 S. & R. 69. In New York the rule was otherwise as to its use in statutes, Loring v. Hulling, 15 Johns. (N. Y.) 119; Parsons v. Chamberlain, 4 Wend. (N. Y.) 512; but now, by statute, it is provided that it shall be construed to mean a calendar month, and not a lunar month, unless otherwise expressed. In Delaware, State v. Jacobs, 2 Harr. (Del.) 548, the term, as used in the statute limiting indictments against horseracing, cock-fighting, &c., was construed to mean lunar months. 5 Kelly v. Gilman, 29 N. H. 385; Tillson v. Bowley, 8 Me. 163; People v. Ulrich, 2 Abb. (N. Y.) Pr. 28. 6 Thomas v. Shoemaker, 6 W. & S. (Penn.) 179; Leffingwell v. White, 1 Johns. Cas. (N. Y.) 99. 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.1 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.3 257. 177. In Union Bank v. Forrest, 3 Cranch Hopkins v. Chambers, 7 T. B. Mon. (Ky.) (U. S. C. C.), 218, the term " 'month," as used in a bank charter, was held to mean calendar month. Shapley v. Garey, 6 S. & R. (Penn.) 539; Hardin v. Major, 4 Bibb (Ky.), 104. "For the space of one month after return-day," and "within one month from return day," are equivalent expressions. Gore v. Hodges, 7 T. B. Mon. (Ky.) 520. 1 Rankin v. Woodworth, 3 Penn. 48. Engleman v. State, 2 Ind. 91. Two years is equivalent to twenty-four months. Thornton v. Boyd, 25 Miss. 598. The term "one whole year," used in the Massachusetts act of 1793, c. 34, respecting settlements, was held to be a political, or rather a municipal, year; viz., from the time the officer is chosen until a new choice takes place, at the next annual meeting for the choice of town officers, which may sometimes exceed, and sometimes fall short of, a calendar year. Paris v. Hiram, 12 Mass. 262. 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 statute1 in all cases of concurrent jurisdiction; 2 and it may 1 Wanmaker v. Van Buskirk, 1 N. J. Eq. 685; Thorp v. Thorp, 15 Vt. 105; Munson v. Halloway, 26 Tex. 475; Lewis v. Marshall, 1 McLean (U. S.), 16; s. c. 5 Pet. (U. S.) 470; Johnson v. Johnson, 5 Ala. 90; Callard v. Tuttle, 4 Vt. 491; Manchester v. Matthewson, 3 R. I. 237. The statute of limitations, in Massachusetts, operates, in equity as well as at law, of its own force, and not by the courtesy or discretion of the courts. But direct 2 Bruen v. Hone, 2 Barb. (N. Y.) 586; Phares v. Walters, 6 Iowa, 106; Young v. Mackall, 3 Md. Ch. 398; Teackle v. Gibson, 8 Md. 70; Hertle v. Schwartz, 3 id. 366; Knight v. Browner, 14 id. 1; Wilson v. Anthony, 19 Ark. 16; Hill v. Boyland, 40 Miss. 618; Goff v. Robbins, 83 id. 153; Perkins v. Cartnell, 4 Harr. (Del.) 270; Gunn v. Brantley, 21 Ala. 633; Crocker v. Clements, 23 id. 296; Keaton v. McGwier, 24 Ga. 217; Manning v. Warren, 17 Ill. 267. In Tiernan v. Rescariere, 10 G. & J. (Md.) 217, the court held that, when relief sought in equity is not more comprehensive than that which might have been obtained at law for money had and received, the statutory bar is applied the same as it would have been at law. In a Kentucky trusts, created by deed or will, and perhaps trusts existing by appointment of law, are not within reach of the statute. Constructive trusts, resulting from agencies, partnerships, and the like, are subject to the statute. Fraud in the defendant does not prevent the statute of limitations from barring a suit in equity, unless it be actual fraud, which was concealed, and which the party had no means of discovering, till within six years before the filing of the case, Breckenridge v. Churchill, 3 J. J. Mar. (Ky.) 11, A. being indebted to B., a large part of the debt being for usury, A. and C. as surety gave their note to D., a creditor of B., receiving from B. a previous note made by A. A. having failed, C. was compelled to pay the note. A. assigned to C. all his right to recover usurious interest from B. In a proceeding in equity to recover the usurious interest brought by C., it was held that as A. had lost his right to sue B. for the usury by lapse of time, C. stood in no better position in relation to the same, and that a court of equity, in matters where its jurisdiction was concur rent with courts of law, was equally bound by the statute. be said that in such cases a court of equity will no more disregard the bill. A constructive trust is subject to the statute of limitations. So held, in case of a partner who, after the dissolution of the firm, had funds remaining in his hands, and accounts unsettled. Fornam v. Brooks, 9 Pick. (Mass.) 212. The statute limiting suits against executors to four years after the acceptance of their trust is a bar to a bill in equity, in cases where it bars a suit at law. Burditt v. Grew, 8 Pick. (Mass.) 108. It is a well-established rule in equity that the statute will bar an equitable right, where at law it would have operated against a grant. Miller v. McIntyre, 6 Pet. (U. S.) 61. Where, in settling a debt, a party paid $3,000 in cash, and gave his note for the residue, the amount of both of which exceeded, by mistake, the amount of the debt $1,000, it was held that a cause of action accrued immediately to the party making the payment to recover back the $1,000; and that, where he made no effort to do so until after judgment was recovered against him on the note, when he filed a bill for relief to that extent against the judgment, an action at law to recover back the over-payment being then barred by the statute, the bill was also barred thereby. Bank of United States v. Daniel, 12 Pet. (U. S.) 32. Although strictly these statutes do not extend to suits in equity, yet the courts acknowledge their obligation; and where the statute takes away the right of entry, or would bar an ejectment in twenty years, it will, by analogy, bar relief in equity, although time within which a writ of right or other real action might be brought. Elmendorf v. Taylor, 10 Wheat. (U. S.) 152; People v. Everest, 4 Hill (N. Y.), 7; Reeves v. Dougherty, 7 Yerg. (Tenn.) 222; Hayden v. Bucklin, 9 Paige (N. Y.) Ch. 512; Long v. White, 5 J. J. Mar. (Ky.) 231; Ridley v. Hetman, 10 Ohio, 524; Saunders v. Catlin, 1 D. & B. (N. C.) Eq. 95; Cleaveland Ins. Co. v. Reed, 1 Biss. (U. S. C. C.) 180; Hovenden v. Annesley, 2 Sch. & Lef. 329; Humbert v. Trinity Church, 24 Wend. (N. Y.) 587; Moore v. Porcher, 1 Bailey (S. C.), Eq. 195; Hamilton v. Hamilton, 18 Penn. St. 20; Wood v. Wood, 3 Ala. 756; Cumming v. Berry, 1 Rich. (S. C.) Eq. 114; Leggett v. Coffield, 5 Jones (N. C.) Eq. 382; Phalen v. Cook, 19 Conn. 421. Though the statute does not apply in terms to proceedings in equity, yet such proceedings are affected by analogy to the statute, so that in general if the party be guilty of such laches, in pursuing his equitable title, as would bar him at law, he shall be barred in equity; but equity will remove the legal bar proceeding from lapse of time, as it would any other legal advantage, if sought to be used conscientiously. Bond v. Hopkins, 1 Sch. & Lef. See Barnesley v. Powell, 1 Ves. 285; M'Kenzie v. Powis, 4 Bro. C. C. 328; Pincke v. Thornycroft, 1 id. 289, 4 Bro. P. C. 92; Foxcraft v. Lyster, 2 Vern. 456; Colles, 108; Pulteney v. Warren, 6 Ves. 73. 413. But see Duval v. Terry, Show. 15. Where lands are devised in trust for payment of debts, the statute of limitations does not run after the death of testator, against debts not barred thereby at his death. Fergus v. Gore, 1 Sch. & Lef. 107; Burke v. Jones, 2 Ves. & B. 275. A plea of the statute by an executor was allowed where the testator died in 1786, but probate was not taken in 1802, the allegation of the bill, upon a fair construction, being, that the defendant had possessed the personal estate, and therefore might have been sued as executor de son tort previously to 1792. Webster v. Webster, 10 Ves. 93. Non-payment of rent reserved on a lease, though for more than twenty years, will not bar the lessor from recovering possession at the expiration of the term. Saunders v. Lord Annesley, 2 Sch. & Lef. 106. There is no statute of limitations to bar a legal rent-charge; therefore in equity such a bar will not be permitted to prevail, but the demand may be excluded by presumption from length of time, and acquiescence. Stackhouse v. Barnston, 10 Ves. 467. Collins v. Goodall, 2 Vern. 235; Eldridge v. Knott, Cowp. 214; Aston v. Aston, 1 Ves. 264; Cholmondeley v. Clinton, 2 Jac. & W. 141; Troup v. Smith, 20 Johns. (N. Y.) 47; Thomas v. White, 3 Litt. (Ky.) 177; Taylor v. McMurray, 5 Jones (N. C.) Eq. 357; Armstrong v. Campbell, 3 Yerg. (Tenn.) 201; Dean v. Dean, 9 N. J. 425; McCrea v. Purmort, 16 Wend. |