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SEC. 54. "From" and "after.". In calculating the various periods fixed by the different statutes of limitation, which date for the most part from the time of the accrual of the cause of action, a difficulty has sometimes arisen whether the day of such accrual ought to be excluded or included in the computation. Generally, inasmuch as fractions of a day are not recognized in law, the day must be either included or excluded in entirety; but instances may arise, and frequently do, especially where a question as to the priority of claims arises, depending upon the order of events occurring on the same day, when the general rule as to the indivisibility of a day will be departed from. As the law

'Notwithstanding the old maxim of law, yet the fiction that there is no frac tion of a day will, it is said, no longer prevail, where it becomes essential for the purposes of justice to ascertain the exact hour or minute. Pearpoint v. Graham, 4 Wash. (U. S. C. C.) 232.

2 Cincinnati Bank v. Birkhardt, 100 U. S. 686. In Ferris v. Ward, 9 Ill. 499, it was held that the jury might consider fractions of a day, Tufts v. Carradine, 3 La. An. 430; but except where the ends of justice or the settlement of important rights demand it, fractions of days are not noticed, Price v. Tucker, 5 id. 514. Whenever the whole day and every moment of it can be counted, then it should be; whenever, if it were counted, the party would in fact have but a frac tional part of it, then it should not be counted. Thus, since an infant is competent to bring suit at any moment upon the day before his twenty-first birthday, such day is to be included in the computation of ten years, which the statute of limitations allows after the removal of the disability of infancy. Phelan v. Douglass, 11 How. (N. Y.) Pr. 193. In the ordi

nary legal computation of time there are no fractions of a day; and the day on which an act is done must be entirely excluded or included. Jones v. Planters' Bank, 5 Humph. (Tenn.) 619; Portland Bank v. Maine Bank, 11 Mass. 204; Re Welman, 20 Vt. 653. The whole of a term is considered as one day; and by a legal fiction, the time between the submission and decision of a cause is considered as but one day; and so, although a party may die between the time of the decision in the Arkansas Supreme Court and the filing of the mandate of the Supreme Court of the United States on reversal, no change of parties will be made in the Supreme Court, before carrying into effect the judgment of the United States court. Cunningham v. Ashley, 13 Ark. 653. In estimating the amount of damages caused by obstructing a public way, the jury may consider fractions of a day, Ferris v. Ward, 9 Ill. 499; and where an act is to be done in the first half of a month of thirty-one days, they contract that it shall be done by noon of the sixteenth day, Grosvenor v. Magill, 37 Ill. 239. The time for completing commercial contracts

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on this point is neither satisfactory nor certain, and as the question is one not belonging peculiarly to the subject of this work, it will suffice here to discuss the matter very briefly. The question was carefully considered and the then existing authorities examined in an English case; and the result of the decision in that case is, that there is no settled general rule, and that the day of the event in a given case must be excluded or included, as may be most conducive to the beneficial operation of the act. But that where the act from which time is to begin to run is one to which the party who seeks to extend that period is privy, there is a presumption in favor of including the day of such act or period. In a Massachusetts case, it was held that in the computation of the time (six years) within which the statute runs upon a note payable on demand, the day upon which the cause of action accrued is to be included, and that upon such a note dated Nov. 1, 1811, the statute bar was complete on the 1st of November, 1817. But in a later case that court held that, in computing the period (two years) within which an administrator may be sued, the day on which his bond is given is to be excluded. In Pennsylvania, in a quite recent case, it is held that the day on which a cause of action accrues is to be excluded, in computing the time of limitation for bringing actions. And such also is the rule laid down in a New York case; 6 and this rule is also adopted in Kentucky." In Missouri, where goods were delivered

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is not limited to banking hours. A party
has the whole business day to deliver or
to pay. Price v. Tucker, 5 La. An. 514.
The general rule, that the law admits
no fractions of a day, is subject to numer-
ous exceptions. The law sometimes ex-
pressly forbids the different hours of the
same day from being recognized as affecting
the rights of parties; but the prohibition
must be confined to the cases enumerated.
Tufts v. Carradine, 3 La. An. 430.
the statute of 21 Hen. III., the twenty-
eighth and twenty-ninth days of Febru-
ary are reckoned as one day. That statute
is in force in Indiana, it being prior to
4 James I. Swift v. Tousey, 5 Ind. 196.
Fractions of days will only be noticed
when necessary to prevent great mischief.
Hampton v. Erenzeller, 2 Browne (Penn.),
18; Slingluff v. Ambler, 2 W. N. C.
(Penn.) 67; Malvin v. Sweitzer, 2 Luz.
Leg. Obs. (Penn.) 35. In the service of
writs, and in other cases where the ends
of justice require it, the inquiry may be
directed to the part of the day, to the
hour, minute, or second even, if neces-
sary, a certain act was done. Wrangham

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v. Hersey, 3 Wils. 274; Cutter v. Wadsworth, 7 Conn. 6; Brainerd v. Bushnell, 11 id. 24.

1 Lester v. Garland, 15 Ves. 248.

2 Presbrey v. Williams, 15 Mass. 193. 8 See also Little v. Blunt, 9 Pick. (Mass.) 488; Rex v. Adderley, Doug. 462; Glassington v. Rawlins, 3 East, 407; Castle v. Burditt, 3 T. R. 623.

4 Paul v. Stone, 112 Mass. 27.

5 Menge v. Frick, 73 Penn. St. 137.

6 Judd v. Fulton, 10 Barb. (N. Y.) 117, in which it was held that, in computing time, the first day, or the day on which time begins to run, is excluded; and that where an act is to be done within a given time, as thirty days, the party has the whole of the thirtieth day in which to perform it. But that if it is to be done after thirty days, the party has the whole of the thirty-first day in which to complete it, as the law takes no notice of fractions of a day.

496.

Smith v. Cassidy, 9 B. Mon. (Ky.)

8 Steamboat Mary Blane, 12 Mo. 477.

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to a vessel under a special contract, it was held that a lien attached on the day of the delivery of the first parcel, and that, in estimating the time when the statute begins to run, the day of the delivery should be excluded.1 In New Hampshire, where a computation is to be made from the time of an act done, the day when the act is to be done is included; but when the computation is to be made from or after a certain date, or from the day of date, the day of the date is to be excluded; and this seems to be the rule in Pennsylvania, Kentucky, Indiana," Illinois, Massachusetts, and Alabama.3 But this rule is subject to the exception that there is nothing in the instrument evincing a different intention.9

1 See also Blackman v. Nearing, 34 Conn. 55, where the day of the date of a note was held to be excluded in determining the question whether the statute had run thereon.

2 Blake v. Crowningshield, 9 N. H. 304. S Hampton v. Erenzeller, 2 Browne (Penn.), 18; Wagner v. Duffy, 1 Phila. (Penn.) 369. But see Lysle v. Williams, 15 S. & R. (Penn.) 135; Taylor v. Jacoby, 2 Penn. St. 495, where it was held that, where the words "from the date" are used to denote the terminus à quo, an immediate interest is to pass, the day of the date is inclusive, but that the rule is otherwise when used by way of computation in an instrument to perpetuate the evidence of a debt. In Presbrey v. Williams, 15 Mass. 193, an action was brought upon a promissory note, and the statute of limitations was set up in defence. More than six years had elapsed from the date of the note, which was payable on demand, but a payment was indorsed thereon under date of Nov. 1, 1811. The action was brought Nov. 1, 1817, and the court held that the statute was a bar. See also Holden v. James, 11 id. 400, where it was held that where an administrator accepted his trust on the second day of December, 1806, it was held that the four years limited by law expired on the 2d of December, 1810; also Bigelow. Wilson, 1 Pick. (Mass.) 485, where, in the time allowed by statute for redeeming a right in equity sold on execution, which must be within one year after the execution of the deed by the officer to the purchaser, it was held that the day on which the deed was executed must be excluded. See also Paul v. Stone, 112 Mass. 27, where a similar rule was

adopted. In Cornell v. Moulton, 3 Den. (N. Y.) 42, an action was brought upon a note payable on demand. The note was dated Feb. 14, 1839, and action was brought thereon Feb. 14, 1845; and the question was, whether the note was saved from the operation of the statute. The court held that it was, BRONSON, C. J., saying: "Our cases all go to establish one uniform rule, whether the question arises upon the practice of the court, or the construction of a statute, and the rule is to exclude the first day from the computation." In a late case in Connecticut, Blackman v. Nearing, 43 Conn. 55, this rule, as expressed in several previous cases by that court, referred to in this chapter, that the day of the date of a note should be excluded, is reiterated, and it is also held that the circumstance that the note is made payable at a bank does not change the rule. In other words, that a note made payable at a bank does not become payable any sooner from that circum

stance.

See, upon this latter point and to the same effect, Salt Springs Nat. Bank v. Barton, 58 N. Y. 430; Osborne v. Moncure, 3 Wend. (N. Y.) 170.

4 Chiles v. Smith, 13 B. Mon. (Ky.) 460; White v. Crutcher, 1 Bush (Ky.), 472; Handley v. Cunningham, 12 id. 402; Wood v. Com., 11 id. 220.

5 Brown v. Bazan, 24 Ind. 194.

6 Protection Life Ins. Co. v. Palmer, 81 Ill. 88.

7 Bemis v. Leonard, 118 Mass. 502.

8 Goode v. Webb, 52 Ala. 452.

9 Goode v. Webb, ante; Bemis v. Leonard, ante. The day of the date of a note is excluded in the computation of the time of payment. Homes v. Smith, 16 Me.

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In South Carolina, it is held that the day from which the reckoning commences and that on which it terminates may both be included or excluded, as will best preserve a right or prevent a forfeiture;1 and the same rule prevails in Texas,2 Maine, and Missouri. In several of the States, in the computation of time from an act done, the day on which the act is done is excluded, as in Texas, Alabama, New York, Missouri, Michigan, and Connecticut; 10 and this rule is applied to all species of contracts and bills of exchange, promissory notes, policies of insurance, wills, and all other instruments; and they are to be so understood that the day of the date, or the day of the act from which a future time is to be ascertained, is to be excluded from the computation." But all these rules are subject to the exception that they must

181. From the computation of time, the day of publication of the notice should be excluded; the words "after" and "from" being words of exclusion. Page v. Wey. mouth, 47 Me. 238. Where an event is determined to have happened within two points of time, it will be considered as having happened in the middle of the intermediate space of time. Contee v. Dawson, 2 Bland (Md.), 264. Where time is to be computed from or after a certain day, that day is to be excluded in the computation, unless it appears that a different computation was intended; for no moment of time can be said to be after a given day, until that day has expired. Bigelow v. Wilson, 1 Pick. (Mass.) 485; Pyle v. Maulding, 7 J. J. Mar. (Ky.) 202; Jacobs v. Graham, 1 Blackf. (Ind.) 392; Arnold v. United States, 9 Cranch (U. S.), 104; Rand v. Rand, 4 N. H. 267; Goswiller's Case, Penn. 200; Blanchard v. Hilliard, 11 Mass. 85; Woodbridge v. Brigham, 12 id. 403, 13 id. 556; Henry v. Jones, id. 453; Lorent v. South Carolina Ins. Co., 1 N. & M. (S. C.) 505; Bowman v. Wood, 41 Ill. 203; Wiggin v. Peters, 1 Met. (Mass.) 127; Ewing v. Bailey, 5 Ill. Where a date is given, both as a day of the week and a day of the month, and the two are inconsistent, the day of the month must govern. Ingersoll v. Kirby, Walk. (Mich.) 27.

420.

299.

tion of the time of payment. Holmes v.
Smith, 16 Me. 181. See also Page v. Went-
worth, 47 id. 238, where the same rule was
extended to the publication of a notice.
4 State v. Gasconade, 33 Mo. 102.
5 Burr v. Lewis, 6 Tex. 76.

6 Lang v. Phillips, 27 Ala. 311.

7 Cornell v. Moulton, 3 Den. (N. Y.) 12. In McGraw v. Walker, 2 Hilt. (N. Y.) 404, this doctrine was reaffirmed, and in an action upon a note which became due on the 4th of October, 1852, and upon which an action was commenced Oct. 5, 1858, it was held that it was seasonably commenced, as the day of the accrual of the action must be excluded.

8 Kimm v. Osgood, 19 Mo. 60.

9 Gorham v. Wing, 10 Mich. 486. 10 Sands v. Lyon, 18 Conn. 28; Avery v. Stewart, 2 id. 69.

11 Weeks v. Hull, 19 Conn. 381. Where, in a statute, time is computed from an act done, the first day is excluded. Bigelow v. Wilson, 1 Pick. (Mass.) 487; Homan v. Lowell, 6 Mass. 659; Preebles v. Hannaford, 18 Me. 106. In New York it is held, in computing time given by statute, both the first and last days should be excluded, Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260; so also in Kentucky, Sanders v. Norton, 4 T. B. Mon. (Ky.) 464. In Pennsylvania, it has been held that the first day is included, and the last excluded,

1 State v. Schnierle, 5 Rich. (S. C.) Thomas v. Afflick, 16 Penn. St. 14; but

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the rule now in that State is well established, that when a certain number of days are allowed to do an act in, as, whenever by rule of court or statute a certain number of days are allowed to do an act

yield, when necessary, to the justice of the case, so as to protect the rights of the parties and prevent a forfeiture, if this can be done without violating a clear intention of the parties or a positive provision of the contract.1 By some of the cases, a distinction has been taken between the date and the day of the date of a written instrument, and between mercantile contracts and others, and between contracts and statutes; but these distinctions were so prolific of confusion and of so little practical importance, that the more modern cases ignore them,2 and they are applied alike to all classes of contracts, instruments, statutes, &c. In a Connecticut case, in which the construction of a will was involved, and in determining the time within which a legacy became payable under it, the court excluded the day from which the computation was to commence. "Instruments," said STORRS, J., "should be constructed, if possible, so that they and the rights depending upon them shall be upheld and not destroyed; the presumption being that instruments are designed to be effectual and not futile." In that case the testator left all his real estate to his son John, "provided that he do pay in one year next after my decease to each of my daughters," naming them, "one hundred dollars." The testator died on the second day of October, 1841, which was Sunday. On the third day of October, 1842, he tendered to each of the persons named in the will the sum of one hundred dollars; and it was claimed that the tender was too late, and that the title to the land so conditionally devised thereupon vested in the plaintiffs, and that they were entitled to eject the defendant therefrom. But the court

in, or it is said that an act may be done within a given number of days, the day on which the rule is taken or the deci sion is made is to be excluded, Black v. Johns, 68 id. 83; Thomas v. Premium Loan Assn., 3 Phila. (Penn.) 425; Monks v. Russell, 40 Penn. St. 372; Duffy v. Ogden, 64 id. 240; Cromelin v. Brink, 29 id. 522, overruling Thomas v. Afflick, ante. Thus, a notice to quit on the 12th of May is served in time on the 12th of February. McGowen v. Sennett, 1 Brewst. (Penn.) 397. An appeal from the Orphan's Court made on Oct. 8, 1829, is in time if entered Oct. 8, 1830, it being within one year, excluding the day of appeal, Eye's Appeal, 2 Watts (Penn.), 283; S. P. Browne v. Browne, 3 S. & R. (Penn.) 496; Sims v. Hampton, 1 id. 411; and in a late case it is held that the day on which the cause of action accrued should be excluded in computing the time of limitation for bringing actions, Menges v. Frick, 73 Penn. St. 137.

1 Bigelow v. Wilson, ante; Weeks v. Hull, 19 Conn. 381; Windsor v. China, ante. In Blackman v. Nearing, 43 id. 56, the court lay down the doctrine that as a general rule, in all cases where a period of time is to be reckoned from a particular day or event, whether under a contract, will, or statute, or in legal proceedings, the day of such date or event is to be excluded from the computation. It makes the important exception, however, that, where a different intent appears in a particular case, the intent is to prevail. "No rule," says FOSTER, J., "is to be so sternly enforced as to defeat the intent of the parties. That is always paramount to all other considerations, and is always to be carried into effect, if not contrary to law or public policy."

2 Weeks v. Hull, ante; 'Menges v. Frick, 73 Penn. St. 137; Windsor v. China, ante.

8 Sands v. Lyon, 18 Conn. 28.

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