jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law. (1) (35)

There are some advantages attending tenants in dower that do not extend to jointresses; and so, vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and hers is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted dur[ *139 ] ing the coverture. (m) But, on the other *hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiæ, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower. (n) And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow. (0) Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesia, the most eligible species of any.

OF estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.

I. An estate for years is a contract for the possession of lands or tenements, for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the

(1) These settlements, previous to marriage, seem to have been in use among the ancient Germans, and their kindred nation the Gau s. Of the former Tacitns gives us this account. Dotem non uxor marito, sed uxori maritus affert; intersunt parentes et propinqui et munera probant." (De mor. Germ. c 18.) And Cæsar (de bello Gallico, l. 6, c. 18) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. “Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis, æstimatione facta, cum dotibus communicant. Hujus omnis pecuniæ conjunctim ratio habetur, fructusque servantur. Uter eorum vita superavit. ad eum pars utriusque cum fructibus superiorum temporum pervenit," The dauphin's commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97) with regard to the provision for widows among the Romans; but surely there is as much reason to suppose, that it gave the hint for our statutable jointures. (m) Co. Litt. 31, a. F. N. B. 150. (n) Co. Litt. 36. (0) Ibid, 37.

and her partial accession to a settlement may be held an election to abide by the whole. Milner v. Lord Harewood, 17 Ves. 277. But, generally speaking, acts done by a party before he, or she, is fully informed of his or her rights, will not amount to an election. Pasey v. Desbouverie, 3 P. Wms. 321; Chalmers v. Storil, 2 Ves. and Bea. 225; Dillon v. Parker, 1 Swanst. 381; Whistler v. Webster, 2 Ves. Jun. 371; Edwards v. Morgan, M'Clel. 551.

A trust estate may constitute a good equitable jointure in bar of dower; and if a jointure be made of freehold estates in trust for an infant, this will, in equity, be a bar to her claim of dower. It was, indeed, once doubted whether a jointure, however formal, settled on an infant before marriage, was a bar to dower; but it has been determined that such a jointure is binding upon the infant, who cannot waive it after her husband's death, and claim her dower. Earl of Buckingham v. Drury, 2 Eden, 73.]

(35) In addition to the modes of barring dower specified in the text may be mentioned that by non-claim; where the widow fails to assert her right within the time allowed by the statute of limitations. It has also been held that if the lands have been appropriated to public uses under the right of eminent domain, in the lifetime of the husband, the right to dower is gone: Moore v. New York, 8 N. Y. 110; and the same is true where they have been dedicated to public uses by the husband. Guynne v. Cincinnati, 3 Ohio, 24.

lessor and lessee, (a) and the lessee enters thereon. (b) (1) If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of. (c) And this may, not improperly, lead us into a short digression, concerning the division and calculation of time by the English law.

The space of a year (2) is a determinate and well-known period, consisting

(a) We may here remark, once for all, that the termination of “ —or” and “—ee” (obtain in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made; the donor is one that giveth lands in tail; the donee is he who receiveth it; he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. § 57 (b) Ibid, 58.

(c) Ibid, 67.

(1) [Of course our author will be understood to put this case of letting, only as a particular instance of one mode in which an estate for years may be created. See post, p. 143. There are obviously various ways in which such an estate may arise. Thus, where a person devises lands to his executors for payment of his debts, or until his debts are paid, the executors take an estate, not of freehold, but for so many years as are necessary to raise the sum required. Carter v. Barnardiston, 1 P. Wms. 509; Hitchens v. Hitchens, 2 Vern. 404; S. C., 2 Freem. 242; Doe v. Simpson, 5 East, 171; Doe v, Nicholls, 1 Barn. and Cress. 342. Though, in such case, if a gross sum ought to be paid at a fixed time, and the annual rents and profits will not enable them to make the payment within that time, the court of chancery will direct a sale or mortgage of the estate, as circumstances may render one course or the other most proper. Berry v. Askham, 2 Vern. 26; Sheldon v. Dormer, id. 311; Green v. Belchier, 1 Atk. 506; Allen v. Backhouse, 1 Ves. and Bea. 75; Bootel v. Blundell, 1 Meriv. 233.]

So if the vendor put the vendee, under an executory contract for the purchase of lands, into possession, and by the contract the latter is to have possession so long as he makes without default the payments specified in the contract, this makes him tenant for years, and not at will merely. White v. Livingston, 10 Cush. 259.

One of the most difficult questions in this connection often is, whether a particular instrument operates as a present demise of the premises, or a contract for a future one. Mr. Washburn, in 1 Washb. on Real Property, 300 et seq., has collected the cases in which this question has arisen, and has shown the difficulty in reconciling them all. The question, he says, seems to turn on whether the writing shows that the parties intend a present demise and parting with the possession by the lessor to the lessee; for if it does, it will operate as a lease, though it is contemplated that a future writing should be drawn more explicit in its terms. And it may be a good lease, in distinction from an executory contract to lease, though it be to commence in futuro. Whitney v. Allaire, 1 Comst. 305, 311. But if a fuller lease is to be prepared and executed before the demise is to take effect, and possession given, it is an agrecment for a lease, and not a lease which creates an estate. Aiken v. Smith, 21 Vt. 172; People v. Gillis, 24 Wend. 201; Jenkins v. Eldredge, 3 Story, 325; Buell v. Cook, 4 Conn. 238."

To constituto one a tenant for years he must have an interest in the land, and a right to its possession and use. Maverick v. Lewis, 3 McCord, 211; Adams v. McKesson, 53 Penn. St. 83. One who puts in a crop upon the land of another upon shares, is not tenant for years, but only tenant in common of the crop, and the possession of the land, except so far as may be neces sary to enable him to cultivate and harvest the crop, is in the owner of the land. Bradish v. Schenck, 8 Johns. 151; Moulton v. Robinson, 7 Fost. 550; Putnam v. Wise, 1 Hill, 234; Aiken v. Smith, 21 Vt. 172. But if the party is put in possession of the land, and is to pay rent in produce, he is tenant for years, as much as if he paid in money. Newcomb v. Ramer, 2 Johns, 421; Putnam v. Wise, 1 Hill, 234; Gould v. School District, 8 Minn. 431; Dixon v. Niccolls, 39 Ill., 372.

(2) [Before 1752, the year commenced on the 25th of March, and the Julian calendar was used, and much inaccuracy and inconvenience resulted, which occasioned the introduction of the new style by the 24 Geo. II, c. 23, which enacts, that the 1st January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from the 2d September to the 14th, and in other respects regulates the future computation of time, with a saving of ancient customs, &c. See the statute set forth in Burn Ecc. L. tit. Kalendar. It has been held, that in a lease or other instrument under seal, if the feast of Michaelmas, &c., be mentioned, it must be taken to mean New Michaelmas, and parol evidence to the contrary is not admissible: 11 East, 312; but upon a parol agreement it is otherwise. 4 B. and A. 588.

The year consists of three hundred and sixty-five days; there are six hours, within a few minutes, over in each year, which every fourth year makes another day, viz.: three hundred and sixty-six, and being the 29th February, constitute the bissextile or leap-year. Where a statute speaks of a year, it shall be computed by the whole twelve months, according to the calendar, and not by a lunar month: Crò. Jac. 166; but if a statute direct a prosecution to be within twelve months, it is too late to proceed after the expiration of twelve lunar months. Carth. 407. A twelve-month, in the singular number, includes all the year; but twelve months shall be computed according to twenty-eight days for every month. 6 Co. 62.

Half a year consists of one hundred and eighty-two days, for there shall be no regard to a part or a fraction of a day. Co. Litt. 135, b.; Cro. Jac. 166. The time to collate within six

[*141] commonly of 365 days; for though in *bissextile or leap-year, it consists properly of 366, yet, by the statute 21 Hen. III, the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacks, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always one uniform per

months shall be reckoned half a year, or one hundred and eighty-two days, and not lunar months. Cro. Jac. 166; 6 Co. 61.

So a quarter of a year consists but of ninety-one days, for the law does not regard the six hours afterwards. Co. Litt. 135, b.; 2 Roll. 521, 1. 40; Com. Dig. Ann. A.

But both half years and quarters are usually divided according to certain feasts or holidays, rather than a precise division of days, as Lady-day, Midsummer-day, Michaelmas-day, or Christmas, or Old Lady-day, (6th April), or Old Michaelmas-day, (the 11th October). In these cases, such division of the year by the parties is regarded by the law, and therefore, though half a year's notice to quit is necessary to determine a tenancy from year to year, yet a notice served on the 29th September to quit on the 25th March, being half a year's notice according to the above division, is good, though there be less than one hundred and eighty-two, viz.: one hundred and seventy-eight, days. 4 Esp. R. 5 and 198; 6 id. 53.

A month is solar, or computed according to the calendar, which contains thirty or thirty-one days, or lunar, which consists of twenty-eight days. Co. Litt. 135, b. In temporal matters, it is usually construed to mean lunar; in ecclesiastical, solar or calendar. 1 Bla. R. 450; 1 M. and S. 111; 1 Bing. Rep. 307. In general, when a statute speaks of a month without adding "calendar," or other words showing a contrary intention, it shall be intended a lunar month of twenty-eight days. See cases Com. Dig. Ann. B.; 6 Term Rep. 224; 3 East, 407; 1 Bingh. R. 307. And generally, in all matters temporal, the term "month" is understood to mean lunar; but in matters ecclesiastical, as non-residence, it is deemed a calendar month; because in each of these matters a different mode of computation prevails; the term, therefore, is taken in that sense which is conformable to the subject matter to which it is applied; 2 Roll. Ab. 521, 51; Hob. 179; 1 Bla. R. 450; 1 M. and S. 117; 1 Bing. R. 307; Com. Dig. Ann. B.; and, therefore, when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. and B. 186.

When a deed speaks of a month, it shall be intended a lunar month, unless it can be collected from the context that it was intended to be calendar. 1 M, and S. 111; Com. Dig. Ann. B.; Cro. Jac. 167; 4 Mod. 185. So in all other contracts: 4 Mod. 185; 1 Stra. 446; unless it be proved that the general understanding in that department of trade is, that bargains of that nature are according to calendar months. 1 Stra. 652; 1 M and S. 111. And the custom of trade, as in case of bills of exchange and promissory notes, has established, that a month named in those contracts shall be deemed calendar. 3 Brod. and B. 187.

In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Bur. 1455; 1 Bla. R. 450; Dougl. 463, 446. When a calendar month's notice of action is required, the day on which it is served is included, and reckoned one of the days; and therefore, if a notice be served on 28th of April, it expires on 27th of May, and the action may be commenced on 28th of May. 3 T. R. 623; 2 Campb. 294. And when a statute requires the action against an officer of customs to be brought within three months, they mean lunar, though the same act requires a calendar month's notice of action. 1 Bing. R. 307.

A day is natural, which consists of twenty-four hours; or artificial, which contains the time from the rising of the sun to the setting. Co. Litt. 135, &. A day is usually intended of a natural day, as in an indictment for burglary we say, in the night of the same day: Co. Litt. 135, a.; 2 Inst. 318. Sometimes days are calculated exclusively, as where an act required ten clear days' notice of the intention to appeal, it was held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions. 3 B. and A. 581. A legal act done at any part of the day will in general relate to the first period of that day. 11 East, 498.

The law generally rejects fractions of a day. 15 Ves. 257; Co. Litt. 135, b.; 9 East, 154; 4 T. R. 660; 11 East, 496, 498; 3 Co. 36, a. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish for the purposes of justice; and I do not see why the very hour may not be so too where it is necessary, and can be done, for it is not like a mathematical point which cannot be divided. Per Ld. Mansfield, 3 Burr, 1434; 9 East, 154; 3 Coke Rep. 36, a. Therefore fraction of a day was admitted in support of a commission of bankruptcy, by allowing evidence that the act of bankruptcy, though on the same day, was previous to issuing the commission. 8 Ves. 30. where goods are seized under a fieri facias the same day that the party commits an act of bankruptcy, it is open to inquire at what time of the day the goods were seized and the act of

So

iod, but because it falls naturally into a quarterly division by weeks. (3) Therefore a lease for "twelve months" is only for forty-eight weeks; but if it be for a "twelvemonth" in the singular number, it is good for the whole year. (d) For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. (e) (4) Therefere, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to estates for years.

These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. And therefore they were not allowed [*142] to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the ancient law, be at any time defeated by a common recovery suffered by the tenant of the freehold; (f) which annihilated all leases for years then subsisting, unless afterwards renewed by the recoverer, whose title was supposed superior to his by whom those leases were granted.

bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197; 2 B. and A. 586.

There is a distinction in law as to the certainty of stating a month or a day, and an hour when a fact took place; "circa horam" is sufficient; but not so as to a day, which must be stated with precision, though it may be varied from the proof. 2 Inst. 318.

It has been considered an established rule, that if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusive. Hob. 139; Dougl. 463; 3 T. R. 623; Com. Dig. Temps. A.; 3 East, 407. And therefore where the statute 21 Jac. I, c. 19, s. 2, enacts, that a trader lying in prison two months after an arrest for debt shall be adjudged a bankrupt, that includes the day of the arrest. 3 East, 407. When a month's notice of action is necessary, it begins with the day on which the notice is given: 3 T. R. 623; and if a robbery be committed on the 9th October, the action against the hundred must be brought in a year inclusive of that day. Hob. 139. But where it is limited within such a time after the date of a deed, &c., the day of the date of the deed shall be taken exclusive; as if a statute require the enrollment within a specified time after date of the instrument. Hob. 139; Campb. 294;

Cowp. 714. Thus where a patent dated 10th May contains a proviso that a specification shall be enrolled within one calendar month, next and immediately after the date thereof, and the specification was enrolled on the 10th June following, it was held, that the month did not begin to run till the day after the date of the patent, and that the specification was in time. 2 Campb. 294; see 15 Ves. 248.]

(3) This rule of the common law is generally changed by statutes in the United States, and "month" is declared to mean a calendar month. And in England a month will be held to mean a calendar month where such is the apparent intent of the parties. R. v. Chawton, 1 Q. B. 247; Hipwell v. Knight, 1 Y. and C. 401.

(4) Fractions of a day are not regarded except for the purpose of guarding against injustice: Blydenburgh v. Cotheal, 4 N. Y. 418; or for the purpose of determining the actual priority of conflicting rights which have accrued on the same day. A week means a full week of seven days; and therefore if by statute or rule of court a notice is to be published for a certain number of weeks, the publication is not completed until that number of weeks has fully expired from the time of the first publication. Thus, if the publication is to be once in each week for six successive weeks, and the first publication is on Tuesday, the publication is not completed without including Monday of the seventh week, which is the forty-second day, and whatever was to be done dependent on such publication could not be done earlier than Tuesday of that week. Bunce v. Reed, 16 Barb. 347; Olcott v. Robinson, 20 id. 148. Saving's Society v. Thompson, 32 Cal. 347; Bowman v. Wood, 41 Ill. 203

While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told (g) that by the ancient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated; for we may observe in Madox's collection of ancient instruments, some leases for years of a pretty early date, which considerably exceed that period: (h) and long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III, (i) and probably of Edward I. (k) But certainly, when by the statute 21 Hen. VIII, c. 15, the termor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferiority to freeholds, as when [*143] they were little better than tenancies at the will of the landlord. Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning and certain end. (1) But id certum est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as JS shall name, it is a good lease for years; (m) for though it is at present uncertain, yet when J S hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease. (n) (5) A lease for so many years as J S shall live, is void from the beginning, (o) for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J S shall so long live, or if he should so long continue parson, is good: (p) for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J S or his ceasing to be parson there.

We have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be per auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate. (7) (6) Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life As, if I grant lands to Titius to hold from Michaelmas next for [*144] *twenty years, this is good; but to hold from Michaelmas next for the

cannot.

8

term of his natural life, is void.

Mirror. c. 2, § 27. Co. Litt. 45, 46. Madox Formulare Anglican, no. 239. fol. 140. 245, fol. 146. for the like term, A. D. 1429.

For no estate of freehold can commence

Demise for eighty years, 21 Ric. II, Ibid. n°. Ibid.. n°. 248.. fol. 148, for fifty years. 7 Edw. IV. spoliation, 6. (k) Stat. of mortmain, 7 Edw. I. (n) Co. Litt. 46. (0) Ibid. 45. (p) Ibid. (q) Ibid. 46.

(i) 32 Ass. pl. 6. Bro. Abr. t. mordauncestor, 42; (1) Co. Litt. 45. (m) 6 Rep. 35.

(5) Our author means here, we apprehend, that the instrument, if in such form only as would be requisite to create an estate for years, is void, for a conveyance by feoffment in these terms might be good as an estate for the life of J S.

A devise of lands to an executor for the payment of debts, creates an estate for years under the maxim referred to in the text. 1 Cruise Dig. 223; and see Batchelder v. Dean, 16 N. H. 268. A lease "for years," without mentioning how many, is for two certain. Dunn v. Cartright, 4 East, 29. And a lease for seven years, or for fourteen years, is for seven years, and for fourteen as soon as the lessee shall so elect. Doe v. Dixon, 9 East, 15. As to tenancies from year to year, see note p. 147, post.

(6) See Matter of Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 350; Bisbee v. Hall, 3 Ohio, 449; Dillingham v. Jenkins, 7 S. and M. 479; Spangler v. Stanler, 1 Md. Ch. Dec. 36. The constitutions of New York and Michigan forbid leases of agricultural lands for a longer period than twelve years.