Inhabitants of Windsor v. Inhabitants of China , 4 Me. 298 ( 1826 )

The opinion of the court was delivered in Cumberland at November term 1826, as follows, by

Mellen C. J.

This case presents two questions; 1st, are the defendants estopped to contest the question of the pauper’s settlement? 2d. If not, is that settlement in China ? As to the first point ; — the words of the statute of 1821, eh. 122, relating to the subject are — “and if such removal is not effected nor objected “ toby them,in writing, after such notice, to be delivered in writ- “ ing, within two months after such notice to the overseers of “ the town,” &c. &c. The notice was given to China, Oct. 20, 1823 ; and the answer was given to Windsor, Dec. 20, 1823. If the day on which the notice was given to China is to be included in the computation of time, the answer was given too late ; but if excluded, then it was returned in due season. The difference between the hours of the days on which the notice and answer were given, can be of no importance in the present case. By a fiction of law there are no fractions of a day, except in some particular cases, where the fiction is made to give place to the exact truth, to ‘ prevent injustice, and for the purpose of ascertaining the priority of acts done on the same day,

A distinction appears in the books to have been made between the common law and the law merchant, on this point; in the latter case, the day of the date of a bill of exchange or of an acceptance, and the date of a promissory note, being excluded. Chitty on Bills 205. 5 Com. Dig. 81. But iu other cases it is generally included; though upon this point much uncertainty and confusion, have existed, decisions have been contradictory, and distinctions have been made without any real difference ; often defeating the intention of the parties. Of late years, courts have paid more respect to the good sense of the thing, and to the object in view of all concerned, whether in the construction of a statute or of a contract. A rule perfectly uniform, would seem to have been more desirable ; because more simple and intelligible. There appears to be as much reason for excluding the day of the date of a deed, lease or other contract, as of a bill of exchange, acceptance or promissory note ; and that the same rule might be applied to the date of a statute, where no day is expressly fixed from and after which it shall be in force ; and also to any day or event which is named in a statute or contract as the terminus a quo a calculation of time is to be made. And so variant are the decisions in England and this country, and so unsettled is the question, that we are at liberty to settle it in this State upon such principles of construction as would be deemed useful and consistent. In computing a person’s age, the day of his birth is always included ; because, there being no fraction of a day, it must be accounted as one of the days of his life. But the day on which a writ is served is not computed as one of the fourteen, or thirty,in case of court writs, nor one of the seven, in case of justices’ writs. In these instances, by excluding the day of service, the day on which the writ is returnable is computed ; and there being in such cases no fraction of a day, the whoe of that day is computed ; and thus the term of fourteen, thirty and seven days, is complete. According to' some cases, where the computation is from an act done, the day on which it is done is to be included: otherwise, when “ from the day of the date.” The King v. Adderly, Dougl. 463. Castle v. Burditt 3 D. & E. 623, 624. 1 Ld. Raym. 650. Clayton’s case 5 Co. 1. Cro. Jac. 135. Salk. 625, 658. So when goods are to be kept five days, the day of taking is to be counted as one. 1 H. Bl. 14. But the day of the date is excluded in writs of protection, and in the enrolment of deeds within six months. Norris v. Gawtry Hob. 139. Dyer 218. In putting in bail, when judgment is on Monday, four days include all Friday. , 4 D. & E. 121. But if on Monday a party has four days to plead in abatement, he must plead by Thursday night. 3 D. & E. 642. Again if a robbery is committed October 9, the year will end October 8, for the day of the robbery is part of the year. Norris v. Gawtry, supra. With us, the day on which an execution issues is excluded, in computing the three months, within which it is made returnable ; thus if it is dated January 1, it is returnable Jlpril 1. And in estimating the four days, during which an officer is to keep goods seized on execution, the day of seizure is excluded. In Brown v. Maine Bank 11 Mass. 153, the day on which judgment is rendered is excluded in computing the thirty days during which an attachment of property is continued in force. But it is not necessary in the decision of this cause to coyer so broad a ground, as we probably might, for the reasons we have above assigned. Estoppels are by no means the favorites of the law, as they tend to exclude the truth of the case ; and we are therefore not inclined to create and give effect to one by construction. The legislature must have intended that the town notified should have two whole months in which to answer such notice ; but on the plaintiffs’ construction, if the notice had been given to China at eleven o’clock on the evening of October 20, the defendants would not have had two months, unless an answer on the 20th of December, can be considered as seasonable. If we go no further, we ought, at least, in order to avoid the effect of an estoppel, or save a forfeiture, to give a liberal construction ; and such we are disposed to give in the case before us. We perceive that the Supreme Judicial Court of Massachusetts have adopted a similar principle, in Bigelow v. Wilson 1 Pick. 458 in which case the court took a view of the contradictory decisions on the subject, and decided that the day on which a deed of an equity of redemption was executed by the officer who sold it, was to be excluded, in computing the year within which it was by law redeemable. The language of the statute in that case, as to the right of redemption, is similar to that used in the statute of 1821; in the former case it is “ within one year from the time of giving suehdeed;” and in the latter case “ within two months,” &c. as before stated. This is a case directly in point ; and it seems to us to rest on a solid foundation. A similar construction was adopted by the Supreme Court in Pennsylvania in the case of Sims v Hampton 1 Serg. & Rawl. 411. The words of the statute on which the question arose are, — “ shall enter such appeal with the prothouotary of the proper county within twenty days after the entry of the award of the arbitrators on his docket.” The court decided that in computing the twenty days ; the day on which such entry was made should he excluded ; observing that the party dissatisfied should be allowed the full period of twenty days. Respecting the second point, there can be no question as to the correctness of the instructions, under which the presiding judge submitted all the facts in relation to it to the determination of the jury. It was a mere matter of evidence, and exclusively within their province, whether supplies had been furnished by the town of China to the pauper, as such,within one year next before the 21st of March 1821, so as to bring the case of the pauper within the exception in the statute ; and this point the jury have settled in favor of China. We perceive no ground for a new trial, and there must he

Judgment on the verdict.