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months from the 1st of November, 1819, had not expired on the 1st of May, 1821, and consequently the sale was without authority of law and void. But we are of opinion that the assumption on which this inference is based is not correct, nor the inference correct if the assumption were granted. If the day on which the letters of administration (were issued] be counted in the calculation, the term of eighteen months had “expired” on the 1st of May, 1821.

$ 4. Computation of time a vexed question.

Whether the terminus a quo should be so included, it must be admitted, has been a vexed question for many centuries, both among learned doctors of the civil law and the courts of England and this country. It has been termed by a writer on civil law (Tiraqueau) the controversia controversissima.

In common and popular usage the day a quo has always been included, and such has been the general rule both of the Roman and common law. The latter admits no fractions of a day; the former, in some instances, as in cases of minority, calculated de momento en momentum. The result of this subdivision was to comprehend a part of the terminus a quo. But in cases where fractions of a day were not admitted, as in those of usucaption or prescription, a possession commencing on the 1st of January and ending on the 31st of December was counted a full year. It was in consequence of the uncertainty introduced on this subject by the disquisitions and disputes of learned professors that Gregory IX, in his decretals, introduced the phrase of “a year and a day," in order to remove the doubts thus created, as to whether the dies a quo should be included in the term. It thus maintained the correctness of the common usage, while it satisfied the doubts of the doctors.

$ 5. Lord Mansfield's rule.

The earlier cases at common law show the adoption of the popular usage as the general rule, but many exceptions were introduced in its application to leases, limitations, etc., where a forfeiture would ensue. But the cases are conflicting, and have established no fixed rule as to such exceptions. Lord Mansfield reviews the cases before his time, in Pugh v. Leeds, Cowp., 714, and comes to the conclusion “that the cases for two hundred years had only served to embarrass a point which a plain man of common sense and understanding would have no difficulty in construing."

The rule he lays down in that case is “that courts of justice ought to construe the words of parties so as to effectuate their deeds, and not destroy them; and that 'from’ the date may, in vulgar use, and even in strict propriety of language, mean either inclusive or exclusive.”

It would be tedious and unprofitable to attempt a review of the very numerous modern decisions, or to lay down any rules applicable to all cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm rather than destroy any bona fide transaction or title. The intention and policy of the enactment should be sought for and carried out. Courts should never indulge in nice grammatical criticism of prepositions or conjunctions, in order to destroy rights honestly acquired.

In the present case there is no reason for departing from the general rule and popular usage of treating the day from which the term is to be calculated, or “ terminus a quo,” as inclusive. The object of the legislature was to give a stay of execution for eighteen months, in order that the administrator might have an opportunity of collecting the assets of the deceased and applying them to the discharge of bis debts. The day on which the letters issue may

be used for this purpose as effectually as any other in the year. The rights of the creditor to execution are restrained by the act for the benefit of the debtor's estate. The administrator has had the number of days allowed to him by the statute to collect his assets and pay the debts. The construction which would exclude the day of the date is invoked, not to avoid a forfeiture or confirm a title, but to destroy one, obtained by a purchaser in good faith under the sanction of a public judicial sale.

If the statute in question were one of limitation, whereby the remedy of the creditor would have been lost, unless execution had issued and sale been made within the eighteen months, probably a different construction might have prevailed. Yet, even in such a case, the precedents conflict. See Cornell v. Moulton, 3 Denio, 12; and Presbury v. Williams, 15 Mass., 193.

§ 6. Res adjudicata. State decision.

But, if the correct application of the rule to the present case were doubtful, the fact that this question was raised and decided by the court between the parties to the judgment, and that the court, after considering the question, ordered the sale to be made on the 1st of May, would be conclusive, not only as res judicata inter partes, but as evidence of the received construction by the courts of Missouri, which it would be an abuse of judicial discretion now to overturn.

$ 7. Title acquired at judicial sale cannot be attacked collaterally.

Finally there is another view of the case which is conclusive as regards this and all other objections taken by the counsel to the validity of the sheriff's deed. It is the well known and established rule of law in Missouri and elsewhere that a judicial sale and title acquired under the proceedings of a court of competent jurisdiction cannot be questioned collaterally, except in case of fraud, in which the purchaser was a participant. See Grignon v. Astor, 2 How., 319. The cases of Reed v. Austin, 9 Mo., 722; of Landes v. Perkins, 12 Mo., 239; Carson v. Walker, 16 Mo., 68; and Draper v. Bryson, 17 Mo., 71, show that this principle of the common law is the received and established doctrine of the courts of Missouri.

The sheriff's deed in the present case is founded on a regular judgment in a court of competent jurisdiction, and an execution on said judgment issued by authority of the court, and levied on property subject by law to be taken and sold to satisfy the judgment. The writ authorized the sheriff to sell; a sale was made in pursuance thereof by the sheriff, and a deed executed to the purchaser, which was afterwards acknowledged in open court according to law. At this time all parties interested could and would bave been heard to allege any irregularity in the proceedings that would justify the court in setting it aside. The objections to this sale do not reach the power of the court, or the authority of the sheriff to sell. The issuing of an execution on a judgment before the stay of execution has elapsed, or after a year and day without reviving the judgment, the want of proper advertisements by the sheriff, and other like irregularities, may be sufficient ground for setting aside the execution or sale, on motion of a party to the suit, or any one interested in the proceedings; but when the objections are waived by them, and the judicial sale founded on these proceedings is confirmed by the court, it would be injurious to the peace of the community and the security of titles to permit such objections to the title to be heard in a collateral action. On every view of the case we are of opinion that the title of the purchaser is protected by the




established rules of law, and that there was no error in the instructions given to the jury by the court below.

The judgment of the circuit court is therefore affirmed.

S 8. General rules.— If money is to be paid or any other act to be done on a certain day, and at a certain place, the legal time of performance is the last convenient hour of the day for transacting business. But if the parties meet at any part of the day, a tender and refusal at the time of the meeting are sufficient. Savary v. Goe, 3 Wash., 140.

$ 9. A debtor having made an assignment of all his effects for the benefit of such of his creditors as should release their debts in sixty days from the date of the assignment, held, that for the purpose of computing the sixty days within which releases must be made the day of the assignment should be excluded. Pearpoint v. Graham, 4 Wash., 232.

§ 10. A release by a creditor on the sixty-first day, the preceding day having fallen on Sunday, is too late. He should have released on the sixtieth or on some prior day. Ibid.

$11. Where the expressions in contracts and other instruments are “from the date,” the rule is that if a present interest is to commence from the date the day of the date is included; but if they are used merely to fix a terminus from which to compute time, the day is in all cases excluded. Ibid.

$ 12. Where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, the general rule is to exclude the day thus designated and to include the last day of the specified period. Accordingly, where leases reserved certain rents, payable semi-annually on the 1st of May and November, and provided that, if any rent should remain unpaid for one month from the time it shall become due,” all the rights and privileges of the lessees should cease, held, that the rent becoming due on the 1st day of May, the one month from that time within which the payment was required to be made to prevent a forfeiture, expired on the 1st day of June following, as in the computation of the time the day upon which the rent became due was to be excluded. Sheets v. Selden, 2 Wall., 177.

$ 13. Fractions of a day.- Where on the same day two elections are held, it is competent for a court, where justice requires it, to inquire which of the two was first concluded, and upon that principle, whether a vote of a township ou bonds, or that of a state on a new constitution, first became effectual. Accordingly, it was held that an amendment to the constitution of Illinois, forbidding municipal subscriptions or donations in aid of railroad corporations, adopted by the people on July 1870, did not invalidate bonds issued to aid in the construction of a railway in pursuance of a vote of a township taken on July 2, 1870, but prior to the closing of the polls at which the people voted on the adoption of the constitutional amendment. Louisville v. Savings Bank, 14 Otto, 469.

§ 14. 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. Accordingly, an act of congress repealing the bankrupt law, passed March 3, 1843, having been signed by the president late in the evening of the same date, held, that a petition for a declaration of bankruptcy presented on the 3d day of March, 1843, was too late and must be dismissed. In re Welman,* 7 L, Rep., 25; 20 Vt., 653.

$ 15. Although courts do not generally regard fractions of a day, they will do so where it is necessary to ascertain which of two events happened first. Accordingly, where a mortgagee was given power to sell the mortgaged premises, and a lease of the same premises was at the same time executed to a third party, said lease being referred to in the power, the court, in order to determine whether the mortgagee had ever been given actual possession of the premises, noticed the fact that the lease was executed first, and the power afterwards. Lockett v. Hill, 1 Woods, 552.

§ 16. Although the law, for most purposes, regards the entire day as an individual unit, when the priority of one legal right over another, depending upon the order of events occurring on the same day, is involved, this rule is necessarily departed from. Accordingly, where A., in the afternoon, executed, for the benefit of B., an instrument to the bank, whereby he stipulated to "guaranty and make good to said bank any sum or sums which may hereafter be held against the said B.,” to a certain amount, and the jury found that a check drawn on said bank by B., and deposited that morning by C., was accepted as a deposit of C. at the time, and not kept, as alleged, until after the close of the day's business, for the purpose of examining B.'s account before crediting C. with the deposit, held, that, as the deposit was made some hours previous to the execution of A.'s contract, the check was not a debt of B, within the meaning of A.'s undertaking. National Bank v. Burkhardt, 10 Otto, 686.


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$ 17. The ancient maxim that the law knows no fraction of a day is now chiefly known by its exceptions. When private rights depend upon it, the courts inquire into the hour at which the act was done, or a decree was entered, or an attachment was laid, or any title accrued. Maine v. Gilman, 11 Fed. R., 214.

$ 18. The law makes no fractions of a day. M'Gill v. Bank of United States, 12 Wheat., 511.

$ 19. The doctrine that in law there is no fraction of a day is a mere legal fiction, and is true only sub modo and in a limited sense, where it will promote the right and justice of the case. In re Richardson, 2 Story, 571; 6 L. Rep., 392.

$ 20. Publication weekly.- Where a statute requires a notice to be published "once in each week for four weeks” there must be an interval of seven days between each of the four publications. A publication on the 12th, 19th and 26th days of January, and on the 2d day of February, held, not to comply with the requirements of the statute. In re King,* 7 N. B. R., 279.

$ 21. A week is a definite period of time, commencing on Sunday and ending on Saturday. Hence a notice required to be published once a week for three months was held sufficient, the first publication being made on December 6 and the last on March 10, one publication being made within each week as above described, although none was made after Monday, January 6, until Saturday, January 18. Ronkendorff v. Taylor, 4 Pet., 349.

$ 22. Months.- The words “six months” in the fourth section of the act of congress of March 2, 1821, "to extend the charters of certain banks in the District of Columbia," mean six calendar months. Union Bank of Georgetown v. Forrest, 3 Cr. C. C., 218,

$ 23. Where the law authorizes courts to make decrees against absent defendants on the publication of an order for two months successively, such publication to be considered as constructive service of the process, calendar months are to be understood to have been intended, and a publication of eight weeks is not a compliance with the law. Hunt v. Wickliffe, 2 Pet., 201.

$ 24. The term “month,” when used in contracts, leases. etc., when the parties themselves have not given to it a definition, must be construed in its ordinary and general sense, and there can be no doubt that in this sense calendar months are always understood. Sheets t. Selden, 2 Wall., 177.

$ 25. Statutes take effect, when.— A statute which takes effect from and after its passage goes into operation the day on which it is approved, and has relation to the first moment of that day. In re Welman,* 7 L. Rep., 25; 20 Vt., 653.

§ 26. Acts of congress containing no provision as to the time when they shall take effect go into effect upon their receiving the approbation of the president. In general, the law does not notice fractions of a day; yet where questions of right growing out of deeds, judgments and other mstruments bearing the same date are concerned, the precise time of approval may be inquired into, to prevent a law from operating retrospectively for a part of the day on which it commenced. When Acts of Congress Take Effect. * 3 Op. Att'y Gen'l, 82.

$ 27. An act of congress takes effect from the time of its approval, and does not relate back to the beginning of the day on which it is approved. In re Richardson, 2 Story, 571.

$ 28. The act of congress of July 1, 1812, chapter 112, laying double duties, took effect on that day, and all vessels arriving at their port of entry and discharge on that day were liable to pay the duties, although they had actually arrived before within the jurisdictional limits of the United States. United States v. Arnold, 1 Gall., 348.

$ 29. By the constitution of the United States the very time of the approval of a public law by the president constitutes the time from which the law is to have its effect, and then its effect is to be prospective and not retrospective. Accordingly, where a petition for the benefit of the bankrupt act was filed in the district court on the 3d day of March, 1843, about noon, and the act of the 3d of March, 1843, repealing the bankrupt act, passed congress and was approved by the president late in the evening of the same day, held, that the court had jurisdiction of the petition at the time when it was filed and acted upon, and that it had full jurisdiction to entertain all proceedings thereon to the close thereof, according to the provisions of the bankrupt act. In re Richardson, 2 Story, 571; 6 L. Rep., 392.

$30. Extension of patent.— The day on which an application for an extension of a patent is filed is to be included in the ninety days specified in section 12 of the act of March 2, 1861. Accordingly, where a patent was to expire May 15, 1869, and an application for an extension was filed February 15, 1869, held, that the application was made, as required by the above act, ninety days before the expiration of the patent. Johnson v. McCullough,* 4 Fish. Pat. Cas., 170.

8 31. It is 10 o'clock until it is 11. Hence where creditors were notified to meet at the register's office to prove their debts and elect an assignee, and all the creditors present having voted by half-past 10 the polls were declared closed, held, that the votes of other boiler, SS 3–7.- Passenger riding free of charge, $ 7.— Lame boy getting on engine, & 8. $ 1. The absence of reasonable care and caution on the part of one seeking to recover for an injury by being run down by a street car will prevent a recovery. But it is not correct to say that it is incumbent upon him to prove such care and caution. Contributory negligence is a defense to be proved by the other side. Railroad Co. v. Gladmon, $S 9-11.

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creditors who appeared and voted before 11 should bave been counted. In re Gilley, 2 Low., 250.

$ 32. On a question of prior insurance, where two policies bear the same date, if one was executed in point of fact before the other, the plaintiff can only recover on the one first executed if it covers the whole case, as the law, when it is material, examines into fractions of a day and gives parties their rights accordingly. Potter v. Marine Ins. Co., 2 Mason, 475.

$ 33. Miscellaneous.— Under the act of congress of March 2, 1799 (1 U. S. Stats., 696, sec. 90), the notice of sale in cases of condemnation under the act must be published every day for fifteen days in the newspapers directed by the act. The Hornet, Abb. Adın., 57.

$ 34. Under rules 47 and 48 of the district court, notice of sale under venditioni exponas (except on condemnation of property on seizure by the United States) must be published for six days, and the sale will be set aside if this full number of publications is not made. Ibid.

§ 35. Letters patent of the United States granted May 15, 1855, for fourteen years, expire on the last hour of May 15, 1869. Johnson v. McCullough,* 4 Fish. Pat. Cas., 170.

§ 36. The double duties imposed by the act of July 1, 1812, accrued upon goods which arrived within a collection district on that day, as the statute was to take effect after its pasbage; and where a computation is to be made from an act done, the day on which the act is done is to be included. Arnold v. United States, 9 Cr., 104.

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SUMMARY – Contributory; a defense, $ 1.- Cannot be imputed to a child, $ 2.– Explosion of

§ 2. Contributory negligence cannot be imputed to a child of tender years, from whom much less discretion is to be expected than from an adult. Ibid.

$ 3. If the explosion of a boiler results either from the carelessness of the employees of the company, or the company's negligence in sending it out in an unsafe and dangerous condition, they are liable. Rose v. Stephens & Condit Transp. Co., SS 12, 13.

§ 4. If the boiler explodes under the management of the company or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the company, that the accident arose from want of care. The presumption originates from the nature of the act, not from the pature of the relations between the parties. Ibid. * Edited by ADELBERT HAMILTON, Esq., of the Chicago Bar.

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