to be excluded, in computing the year within which it was by law redeemable. In Windsor v. China, in Maine, the decision was (accompanied with an elaborate opinion), that, in the computation of time from an act done, the day on which the act is done will be excluded; and, therefore, in the computation of time mentioned in a statute in respect to the notice of the removal of a pauper, the day of giving the notice is to be excluded. It is considered, in Indiana, to be the general rule, that where the computation of time is to be made from an act done, the day on which the act is done is to be excluded.2 In New York, it was held, in Fairbanks v. Wood, that the day on which the Revised Statutes of the State took effect ought to be excluded, in the calculation of the six years. In another case, it was held, that, where the computation of time in a statute is to be from an act done, the first day should be excluded; and this was in reference to a statute prescribing the time within which an appeal should be brought from a justice's court. Chancellor Walworth, in Vandenberg v. Van Rensellaer, held, that, where a proceeding in a cause is required to be had within a limited time, as, within a certain number of days from and after the entry of an order, or the service of a notice or other paper, - the whole of the first day is to be excluded. But, where a previous notice of a motion, or other proceeding, is required to be given, the whole of the day on which the notice is served is included in the computation of time, and the day upon which the motion is to be made, or other proceeding had, is excluded."

1 Windsor v. China, 4 Greenl. (Me.), R. 298. 2 Jacobs v. Graham, 1 Blackf. (Ind.), R. 392.

8 Fairbanks v. Wood, 17 Wend. (N. Y.), R. 329.

Dean, Ex parte, 2 Cowen (N. Y.), R. 605; [Lang v. Phillips, 27 Ala. 311; Kimm v. Osgood, 19 Mis. (4 Bennett), 60.]

5 Vandenburg v. Van Rensellaer, 6 Paige (N. Y.), Ch. R. 147.

See also, Jackson v. Valkenburgh, where it was held, that in computing time given by a statute (as for advertising for six months), both the first and last days are never reckoned inclusive. 8 Cowen (N. Y.), R. 260. [It has been held in a recent case in Missouri, where goods were delivered to a vessel under special contract, that the lien on the vessel attaches on the day of the delivery, and that the day of the delivery of the last parcel should be excluded in estimating the time when the statute of limitations begins to run. Steamboat Mary Blane v. Beehler, 12 Mis. 477. And this rule of excluding the day of the act from which a future time is to be 'ascertained, is applicable as well to statutes, and proceedings under them, as to contracts, wills, and other instruments. Weeks v. Hall, 19 Conn. 376; Cornell v. Moulton, 3 Denio (N. Y.), 12. It is impossible to reconcile the decisions either with the rule of inclusion or of exclu

§ 51. When months are mentioned in a statute, they are to be considered lunar;1 and it was held, that the six months mentioned in relation to the foreclosure of mortgages in New York, are lunar months.2 In Snyder v. Warren, however, words were found in the statute, which, in the opinion of the court, showed that calendar months were intended. There, one year was mentioned as the time for the defendant to redeem; and then, months being immediately after mentioned, they were construed to mean calendar months. But, in respect to bills of exchange, promissory notes, and other mercantile contracts, a month in all cases means a calendar month, by the lawmerchant.1

sion. Whether, in the computation of time, the day on which an act is done or an event happens, is to be included or excluded, depends upon the circumstances and reason of the thing, so that the intention of the parties may be effected. Such a construction should be given as will operate most to the ease of the party entitled to favor, and by which rights will be secured and forfeitures avoided. This is said to be the rule in O'Connor v. Towns, 1 Texas, 107, and, besides being sensible in itself, is probably as accurate a statement of the result of all the cases as can be made. Whether the day of the service of process is to be included or excluded, see King v. Dowdall, 2 Sand. (N. Y.), Sup. Ct. 131; Ditty v. Zeigler, 1 Greene (Iowa), 164; Temple v. Carsters, id. 492; Hollis v. François, 1 Texas, 118; Vairin v. Edmondson, 5 Gilm. (Ill.), 270; Barto v. Abbe, 16 Ohio, 408. As to notices to quit, see Aiken v. Appleby, 1 Morris (Iowa), 8.]

1 Parsons v. Chamberlin, 4 Wend. (N. Y.), R. 512; [Rives v. Guthrie, 1 Jones (N. C.), 84.]

2 Loring v. Hulling, 15 Johns. (N. Y.), R. 120.

3 Snyder v. Warren, 2 Cowen (N. Y.), R. 518.

Thomas v. Shoemaker, 6 Watts & S. (Penn.), R. 179; 1 Johns. Cases, 200. Ôn the subject of months, we thought we might do a service to the reader by extracting the following from "Bouvier's Law Dictionary," a work which indicates great industry and research on the part of the author, and is highly valuable as a work of reference:

"Month is a space of time variously computed, as it is applied to astronomical, civil, or solar, or lunar months. The astronomical month contains one twelfth part of the time employed by the sun in going through the zodiac. In law, when a month is mentioned, it is never understood to mean an astronomical month. The civil or solar month is that which agrees with the Gregorian calendar; and these months are known by the names of January, February, March, &c. They are composed of unequal portions of time. There are seven of thirty-one days each, four of thirty, and one which is sometimes composed of twenty-eight days, and, in leap-years, of twenty-nine. The lunar month is composed of twenty-eight days only. When a law is passed, or contract made, and the month is expressly stated to be solar or civil, which is expressed by the term calendar month, or when it is expressed to be a lunar month, no difficulty can arise; but, when time is given for the performance of an act, and the word month, simply, is used, so that the intention of the parties cannot be ascertained, then the question arises, How shall the month be computed? By the law of England, a month means, ordinarily, in common contracts, as in leases, a lunar month; a contract, there

§ 52. When a thing is ordered by a particular day, that day, it seems, is excluded; for it is with the view of having the use of it on that day. An illustration given is, that a coat is ordered by Sunday, with a view of wearing it to church.1 And a contract to complete any work by a certain time, means, that it shall be done before that time.

§ 53. Instanter means twenty-four hours; for an instant is not to be considered in law, as in logic, a point of time, and no parcel of time.2 In New Hampshire, when a computation is to be made from an act done, or from the time of an act done, the day when the act is to be done is to be included; though, in computation of time from

fore, made for a lease of land for twelve months, would mean a lease of forty-eight weeks only. 2 Bl. Com. 141; 6 Co. R. 62; 6 T. R. 224. A distinction has been made between 'twelve months' and a 'twelvemonth;' the latter has been held to mean a year. 6 Co. R. 61. Among the Greeks and Romans, the months were lunar; and probably the mode of computation, adopted in the English law, has been adopted from the codes of those countries. Clef des Lois, Rom. mot Mois. But, in mercantile contracts, a month simply signifies a calendar month; a promissory note to pay money in twelve months would therefore mean, a promise to pay in one year, or twelve calendar months. Chit. on Bills, 406; 1 Johns. Cas. 99; 3 B. & B. 187; 1 M. & S. 111. In general, when a statute speaks of a month, without adding 'calendar,' or other words showing a clear intention, it shall be intended a lunar month. Com. Dig. Ann B; 4 Wend. 512. See 2 Cowen, 518; Id. 605. In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Burr. R. 1455; 1 Bl. R. 450; Doug. R. 446, 463. In Pennsylvania and Massachusetts, and perhaps some other States (1 Hill. Ab. 118, n.), a month mentioned generally in a statute has been construed to mean, generally, a calendar month. 2 Dall. R. 302; 4 id. 143; 4 Mass. R. 461; 4 Bibb, R. 105. [So in Virginia, Brewer v. Harris, 5 Gratt. (Va.), 285.] In England, in the ecclesiastical law, months are computed by the calendar. 3 Burr. R. 1455; 1 M. & S. 111. In New York, it is enacted, that whenever the term 'month' or 'months' is or shall be used in any statute, act, deed, verbal or written contract, or any public or private instrument whatever, it shall be considered to mean a calendar, and not a lunar month, unless otherwise expressed. Rev. Stat. part I. ch. 19, tit. 1, § 4. Vide, generally, 2 Sim. & Stu. 476; 2 A. K. Marsh. R. 245; 3 Johns. Ch. R. 74; 2 Campb. 294; 1 Esp. R. 146; 6 T. R. 224; 1 M. & S. 111; 3 East, R. 407; 4 Moore, 465; 1 Bl. R. 150; 1 Bing. 307; s. c. 8 Eng. C. L. R. 328; 1 Str. 652; 6 M. & S. 227; 3 Brod. & B. 187; s. c. 7 Eng. C. L. R. 404."

1 Curia, in Rankin v. Woodworth, 3 Penn. R. 48.

2 Tidd's Pr. 503, note; Co. Litt. 185, b. And see note to the case of Jackson v. Eddy, 2 Cowen (N. Y.), R. 598.

8 Blake v. Crowninshield, 9 N. Hamp. R. 304. In general, the rule has been, that the computation from an act done must include the day on which it was done, but that from the day of the date of the act excludes the day. A distinction has always been taken between cases where the injury, as matter complained of, was done to the plaintiff

a date, or from the day of a date, the day of the date is to be excluded.

himself, or in his presence, so that he must know it immediately, on the same day, and cases where the defendant was absent at the time, and might not hear of it till afterwards. 3 Chitty's Pr. 109. As to fractions of days, although it is an ancient maxim, that in law, there is no fraction of a day, yet that fiction no longer prevails, when it becomes essential for the purposes of justice to ascertain the exact hour or minute. Besides the opinion of Washington, J., before cited, in Pearpoint, &c., to this effect, see Chitty, supra, 111; note a to Ex parte D'Obree, 8 Ves. (Sumn. ed.), 83; In the matter of Richardson, 2 Story (Cir. Co.), R. 571. [Cornell v. Moulton, 3 Denio (N. Y.), 12; Ferris v. Ward, 4 Gilm. (Ill.), 499; Whittaker v. Wisley, 9 Eng. L. & Eq. 457; Lang v. Phillips, 27 Ala. 311. But although divisions of a day are allowed to make priorities in questions concerning private acts and transactions, they are never allowed to make priorities in questions concerning public acts, such as legislative acts or public laws, or such judicial proceedings as make matter of record. Per Prentiss, J. In re Wellman, 5 Washb. (20 Vt.) 653; s. c. 7 Law R. 25, where the whole subject of priorities is reëxamined with great learning and ability after the decision In the matter of Richardson and the doctrine in that case denied. But see Whittaker v. Wisley, ubi supra.] As it respects the practice of the Supreme Courts of law in England, it has been fixed by the general rule of all the courts, Hil. T. 2 W. IV. reg. 8 (8 Bing. R. 307, 308), which ordered that, "in all cases in which any particular number of days, not being expressed to be clear days, is prescribed by the rules and practice of the courts, the same shall be reckoned exclusively of the first day, and inclusively of the last day," unless the last shall happen on Sunday, or on holidays, in which case "the time shall be reckoned exclusively of that day also." Note b to Lester v. Garland, supra, by Mr. Sumner, in his late valuable edition of Vesey's Reports, Boston, 1844.

CHAPTER VII.

WANT OF PERSONS TO SUE AND BE SUED.

§ 54. THE term "cause of action" implies not only a right of action, but also that there is some person in existence who is qualified to institute process. In accordance with the maxim of the civil law, "Contra non valentem agere non currit præscriptio," there must be a person to sue. Where there is no person to sue, no laches can be imputed, and, applying in such case the statute of limitations, would be extreme injustice, and contrary also to the conclusions of reason, that they were in the mind of the legislature in enacting the statute.2

§ 55. Upon this subject, the case of Murray v. The East India Company, seems to have been regarded as a leading case, and to have been relied on as a precedent, both in England and in the United States. In that case, the action was brought by an adminis-trator, with a will annexed, of goods left unadministered by a former administrator (but might be considered as brought by first administrator), on several bills of exchange accepted by the defendants, who pleaded, that the cause of action did not accrue within six years before the commencement of the action; and the plaintiff replied generally to the contrary. The bills were made payable to Mr. H., and were accepted after his death, being presented through an unauthorized channel, and before any administration was granted. The acceptance of the bills and the day of payment were more than six years before the commencement of the suit, but the granting of the first administration was less than six years before. Thus, the general question of law was, did the time of limitation prescribed by the statute of James begin to run from the date of the defendants'

1 Pothier, Traite des Obligations, 645; Ibid.; Traite de Prescrip.; Ayraud v. Babin,, 19 Mart. (Louis.), R. 47; Morgan v. Robinson, 12 id. 76.

2 See Richards v. Maryland Ins. Co., 8 Cranch (U. S.), R. 84.

3 Murray v. The East India Co., 5 Barn. & Ald. R. 204.