CHAPTER XIV. THE COMPUTATION OF TIME IN STATUTES. § 104b. Compared with other writings.-As in other respects,1 so in the computation of time, statutes and other writings are expounded by similar rules. The universal rule, requiring all utterances, whether written or oral, to be interpreted by the subject which the speaker was contemplating, produces some apparent differences, and not impossibly there may be others more nearly real. But in the main and in essence, time is computed alike in the several departments of the law. § 105. Month.- A calendar month is reckoned by the calendar, and differs in the number of days according to the particular month in question. A lunar month in the law is, not the scientific, but the popular one, of twenty-eight days; the fractions of a day not being taken into the account. In a statute, the word "month" will be interpreted either as the one or the other, according to the circumstances, or the opinions of the particular tribunal. In the old English law, established when the calendar was not as well settled as now, and computations by lunar months were not unknown in actual affairs, it became established that ordinarily, and prima facie, the word "month" in a statute signified the lunar one of twenty-eight days." And this rule remained unchanged down to 1850, when for future cases it was provided that "in all acts" this word should "mean calendar month unless words be added showing lunar 1 Ante, § 4. Bishop, Con., § 748. 4 Id.; Co. Lit. 135; Peterborough v. 5 Ante, §§ 29, 30; post, § 108. 8 7Such was the general rule in the common law, but the ecclesiastical month was reckoned by the calendar. Tullet v. Linfield, 3 Bur. 1455. And see Simpson v. Margitson, 11 Q. B. 23; Hart v. Middleton, 2 Car. & K. 9; Hipwell v. Knight, 1 Y. & Col. Ex. 401; Turner v. Barlow, 3 Fost. & F. 946. 8 Lacon v. Hooper, infra. month to be intended." Even before this statute, "a twelve month" meant twelve calendar months, and the term "six months" was sometimes-always in ecclesiastical affairs — construed to signify a half year." "I confess," said Lord Kenyon, C. J., in 1795, "I wish that, when the rule was first established, it had been decided that months' should be understood to mean calendar and not lunar months; but the contrary has been determined so long and so frequently that it ought not again to be brought in question. In the instance, indeed, of quare impedit, the computation of time is by calendar months, but that depends on the words of an act of parliament, tempus semestre. But for all other purposes, and in all acts of parliament where 'months' are spoken of without the word 'calendar,' and nothing is added from which a clear inference can be drawn that the legislature intended calendar months, it is understood to mean lunar months." the American courts have adopted this rule of the English common law, but always with the inclination to depart from it and hold the month to be calendar whenever special circumstances would permit. Largely, in our states, statutes, like 1"Twelve months" signified twelve C. J., observed: "The general rule lunar months severally of twenty- as to the computation of time is that, eight days. Dormer v. Smith, Cro. when months are mentioned in a Eliz. 835. dale V. Morgan, 4 Mod. 185, 186; Burton v. Woodward, 4 Mod. 95; Woodward v. Hamersly, Skin. 313. And see In re Swinford, 6 M. & S. 226. Lacon v. Hooper, 6 T. R. 224, 226. And see Ryalls v. Reg., 13 Jur. 259, 18 Law J. (N. S.) M. C. 69. 'Stackhouse v. Halsey, 3 Johns. Ch. 74; S. v. Jacobs, 2 Harring. (Del.) 548; Rives v. Guthrie, 1 Jones (N. C.), 84; Loring v. Halling, 15 Johns. 119; Redmond v. Glover, Dudley (Ga.), 107. 993 Some of statute, lunar months are intended. Loring v. Halling, 15 Johns. 119, 120. It was there held that the six months mentioned in relation to the foreclosure of mortgages are lunar months; but months in relation to promissory notes or bills of exchange are calendar and not lunar." p. 513. And see Vanderwall v. Com., 2 Va. Cas. 275. The term "month,” in bills and notes, uniformly means a calendar month. Thomas v. Shoemaker, 6 Watts & S. 179. So the law has always been; while, in contracts and deeds, the old rule was that the month should be presumed to be lunar unless the contrary intent appeared (Chit. Con., ut sup.), but, on the whole, the question was to be decided much upon the instru ment itself. Lang v. Gale, 1 M. & S. In Parsons v. Chamberlin, 4 Wend. 512, the words "six months," employed in a statute, were under the particular circumstances held to be calendar months. And Savage, 111. Yet it may be deemed to be the the modern English ones, have interfered and made the month calendar. And, without statutory aid, it has been said that the "current of authority" with us presumes the month to be calendar, contrary to the old English rule.' So that, in one way and another, such has become the almost universal doctrine in our states at the present day. It is believed there never was a time in this country when, in common speech, the word "month," unqualified, ordinarily meant a lunar month; therefore, in reason, there is no propriety in our adhering to the old rule of the English common law. § 106. Year.- A year, mentioned in a legislative or judicial proceeding, is presumptively to be computed by the Christian calendar. It embraces three hundred and sixty-five days, or three hundred and sixty-six, according as the particular year in question happens to be leap year or not. Still the meaning of this term may vary with the subject and the evident intent." § 107. Rule for computing number of days, weeks, etc. In reason, when a statute specifies a particular number of days, weeks or years, the computation should be made by adding, for instance, to the ascertained number of the day in the month, American doctrine, that, in the absence of a statutory provision gov erning the question, and of all intimation in the contract or deed, the word "month" shall in such an instrument be taken to mean a calendar month. Sheets v. Selden, 2 Wall. 177; Bishop, Con., § 1339; Hardin v. Major, 4 Bibb, 104; Shapley v. Garey, 6 S. & R. 539. 1 Bartol v. Calvert, 21 Ala. 42, 47. 2 Hunt v. Holden, 2 Mass. 168, 170; Avery v. Pixley, 4 Mass. 460; Williamson v. Farrow, 1 Bailey, 611, [21 Am. D. 492;] Com. v. Chambre, 4 Dall. 143; Pyle v. Maulding, 7 J. J. Mar. 202; Kimball v. Lamson, 2 Vt. 138; Com. v. Shortridge, 3 J. J. Mar. 638; Strong v. Birchard, 5 Conn. 357; Alston v. Alston, 3 Brev. 469; Churchill v. Merchants' Bank, 19 Pick. 532, 535; Gross v. Fowler, 21 Cal. 392; Sprague v. Norway, 31 Cal 173; Glenn v. Hebb, 17 Md. 260; [Snyder v. Warren, 2 Cow. 518; P. v. New York, 10 Wend. 393; Brown v. Williams, 34 Neb. 376, 51 N. W. R. 851; Guaranty Co. v. R. R. Co., 139 U. S. 137; 35 L. ed. 116; White v. Lapp, 4 Ohio (N. P.), 31; Daley v. Anderson (Wyo.), 48 Pac. R. 839; Balto. Co. v. Pumphrey, 74 Md. 86, 21 Atl. R. 559.] Engleman v. S., 2 Ind. 91, [52 Am. D. 494; Com. v. R. R. Co., 129 Pa. St. 429, 18 Atl. R. 406; King v. Johnson, 96 Ga. 497, 23 S. E. R. 500; Ross v. Morrow, 85 Tex. 172, 19 S. W. R. 1090.] 4 Dwar. Stat. (2d ed.) 693; Rex v Wormingall, 6 M. & S. 350; Gibson v. Barton, Law R. 10 Q. B. 329; Hopkins v. Chambers, 7 T. B. Mon. 257. 5 Paris v. Hiram, 12 Mass. 262; Thornton v. Boyd, 25 Miss. 598; Bartlett v. Kirkwood, 2 Ellis & B. 771. . the statutory number. Thus, an enactment passed on the fifth day of the month, to take effect in ten days, will go into operation on the fifteenth day of the month; because the sum of five and ten is fifteen. The rule of reason, therefore, may be stated to be, that, of the two extreme days, the one shall be included and the other excluded in the reckoning. And in a sort of general way the authorities are so; as, for example, where the statutory words are "ten days' notice." But— 1 § 108. Limits and modifications. This rule is variously limited and modified; as, No fractions of day. It is sometimes seriously broken in upon by the doctrine that, prima facie, the law recognizes no fractions of a day. It commonly counts the fraction as an 1This may be deemed the prima facie method, applicable alike to statutes, to contracts, to rules of court, and to all other legal things. Bishop, Con., § 1341; Thomas v. Afflick, 16 Pa. St. 14; Iron Mountain Co. v. Haight, 39 Cal. 540; Corwin v. Comptroller-General, 6 S. C. 390; Cann v. Warren, 1 Houst. 188; Bird v. Baker, 1 Ellis & E. 12; Webb v. Fairmaner, 3 M. & W. 473; Watson v. Pears, 2 Camp. 294; Judd v. Fulton, 10 Barb. 117: Garner v. Johnson, 22 Ala. 494; [Stewart v. Myer, 54 Md. 454; Walsh v. Boyle, 30 Md. 262; Gillespie v. White, 16 John. 117; Re Senate Resolution, 9 Colo. 630, 21 Pac. R. 475; Stroud v. Water Co., 56 N. J. L. 422, 28 Atl. R. 578; Hill v. Kerr, 78 Tex. 213, 14 S. W. R. 566; Leavenworth v. Barber, 47 Kan, 29, 27 Pac. R. 114] Wood, 41 Ill. 203; S. v. Upchurch, 72 3 Ante, § 29. [Whether or not fractions of a day will be taken into account seems to depend upon circumstances. Ordinarily they will not. In case of conflicting claims they are taken into account, as in attachment and assignment. Malvin v. Sweitzer, 1 Kulp (Pa.), 5; Angell v. Pickard, 61 Mich. 561, 28 N. W. R. 680; Worth v. Piedmont Bank, 121 N. C. 343, 28 S. E. R. 488. Where a judgment was rendered by a court of competent jurisdiction, the legal representative cannot show his intestate died an hour before judgment on same day. Mitchell v. Schoonover, 16 Oreg. 211, 17 Pac. R. 867, 8 Am. St. R. 282. Fractions of a day will not be recognized to defeat the manifest intentions of the parties. Pearce v. Denver, 13 Colo. 383, 22 Pac. R. 774, 6 L. R. A. 541. When, for any reason, time becomes important, courts will inquire into fractional parts of a day. P. v. Beatty, 14 Cal. 566. So, in general, when essential to justice.. S. v. Asbury, 26 Tex. 82; Goetzinger v. Rosenfield, 16 Wash. 392, 47 Pac. R. 882; Louisville v. Bank, 104 U. S. 469, 26 L. ed. 775; Taylor v Brown, 147 U. S. 640, 37 L. ed. 313; Leavenworth Rex v. West Riding of Yorkshire, 4 B. & Ad. 685, 689. And see Reg. v. Shropshire, 8 A. & E. 173; Hyer v. Van Valkenburgh, 8 Cow.260; Homan v. Liswell, 6 Cow. 659; Ex parte Dean, 2 Cow. 605, [14 Am. D. 521;] Bigelow u. Willson, 1 Pick. 485; Portland Bank v. Maine Bank, 11 Mass. 204; Presbrey v. Williams, 15 Mass. 193; Rex v. Moore, Jefferson, 8; White v. Crutcher, 1 Bush, 472; Bowman v. entire day, yet it may be compelled to reject it altogether.1 Uniting this common mode of estimating the fractions to the rule stated in the last section, we may have a result almost nullifying the statute. Thus, reducing the "ten days' notice," just mentioned, to its constituent elements, we may have the following. Suppose the statutory requirement to be "one day's" notice, then, if given on the last moment of the fifth day of the month, it is out on the first moment of the sixth, consequently the party has only two moments' notice, equivalent to none, while the statute says "one day." Next, we may suppose the required notice to be for two days, still the interpretation cuts it down practically to one day; and the "ten days' notice" becomes, by force of the interpretation, in practical effect only nine. And, if the reader will look through the reports of cases under this head, he will see that, in various instances in which this result of the general doctrine has been pressed upon the tribunals, they have sought substantial justice by excluding from the computation both the first and the last day; as though, to continue the illustrative case before mentioned, if ten days' notice were required, and it has been given on the fifth day of the month, the court should hold it not to be out till the sixteenth day of the month. And, uniting with this view of the justice of the case, we have Particular words of statutes.-The special language of a statute will sometimes, and particularly when considered in re Co. v. Barber, 47 Kan. 29, 27 Pac. R. 114; Maine v. Gillman, 11 Fed. R. 214. Where an assessment was levied the same day stock was purchased, the court will hold the purchaser, and disregard fractional computation. San Gabriel v. Dennis (Cal.), 34 Pac. R. 441. The almost universal rule for computation of days, etc., is to exclude the first and include the last. Vogel v. S., 107 Ind. 374, 8 N. E. R. 164; S. v. Weld, 39 Minn. 426; 40 N. W. R. 561; Penn. Co. v. Ins. Co., 189 Pa. St. 255, 42 Atl. R. 138; Smith v. Dickey, 74 Tex. 64, 11 S. W. R. 1049; Blitch v. Brewer, 83 Ga. 333, 9 S. E. R. 837; Seward v. Hayden, 150 Mass. 158, 22 N. E. R. 629, 5 L. R. A. 844; Walker v. Ins. Co., 167 Mass. 188, 45 1 Reg. v. St. Mary, Warwick, 1 Ellis 2 As, see Young v. Higgon, 6 M. & W. 49, 54; Lester v. Garland, 15 Ves. 248; Webb v. Fairmaner, 3 M. & W. 473; Speer v. S., 2 Tex. Ap. 246; Bemis v. Leonard, 118 Mass. 502, [19 Am. R. 470.] |