Bemis v. Leonard

• Decision Date: 05 October 1875
• Parties: S. A. Bemis v. Lewis Leonard
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 502

S. A. Bemis v. Lewis Leonard

Supreme Court of Massachusetts

October 5, 1875

Hampden. Contract. Writ dated September 13, 1871. The officer's return was as follows:

"Hampden ss. October 3, 1871. By virtue of this writ I this day attached five lots of tobacco as the property of the within named defendant, said tobacco situate one lot in barn of estate of Walter Cooley, one lot in barn of Aaron Day, one lot in barn of Edwin Parsons, one lot in barn of Henry Sibley, and the other lot in barn of Mrs. Day and William White, and afterwards on the same day I summoned the within named trustee to appear and answer at court as within directed, by leaving at his last and usual place of abode a true and attested copy of this writ. And the said tobacco could not be moved without damage thereto, and in consideration of its great bulk, I on the sixth day of October deposited in the office of the clerk of the said town of West Springfield an attested copy of this writ, with so mach of my return thereon as relates to said attachment of said tobacco, and afterwards on the same day summoned the within named defendant to appear and answer at court as within directed, by leaving at his last and usual place of abode a true and attested copy of this writ."

The case was submitted to the Superior Court, and, after a special judgment for the plaintiff for the property attached to this court, on appeal, upon the following statement of facts:

The property mentioned in the officer's return was duly attached and the attachment perfected, provided the facts set forth in the return constitute a valid attachment. More than four months after the making of the attachment, the defendant filed his petition in bankruptcy, upon which he was duly adjudged bankrupt, and he has since received his discharge.

If the officer's return set forth a valid attachment of the property therein described, judgment was to be rendered for the plaintiff; otherwise, such judgment as the court might order.

Judgment for the plaintiff.

G. Wells, for the plaintiff.

M. P. Knowlton, for the defendant. The copy of the writ was not seasonably deposited in the clerk's office, under the Gen. Sts. c. 123, § 57. By § 54 of the same chapter the officer had, before the St. of 1860, c. 70, more than three full days to deposit his copy where real estate was attached "within three days after the day on which the attachment is made." Hannum v. Tourtellott, 10 Allen 494. He would naturally need more time to travel a long distance to the country seat than to go to the office of the clerk in the town where the attachment is made.

An attachment is instantaneous, and the remainder of the day after it is made counts as one; that is a day in which the officer may, if he chooses, deposit his copy. When time is to be computed from the day upon which an event occurs, the day is excluded; when from an act done, it is included. Perry v. Provident Insurance Co. 99 Mass. 162. Atkins v. Sleeper, 7 Allen 487. Seekonk v. Rehoboth, 8 Cush. 371. Fuller v. Russell, 6 Gray 128. Castle v. Burditt, 3 T. R. 623. Glassington v. Rawlins, 3 East, 407.

All the cases in which the day is excluded are founded upon some statute or contract in which there is language "from the time" or the like, equivalent to "from the day" or "from the date," and the general rule stated above is reaffirmed in the late cases. "This rule is applied to statutes directing the service of process in this Commonwealth." Butler v. Fessenden, 12 Cush. 78. Wheeler v. Bent, 4 Pick. 167.

Gray, C. J. Ames & Devens, JJ., absent.

OPINION

Gray, C. J.

The rule of construction, stated in some of the old authorities, that when time is to be computed from an act done, the day of the act is to be included, has been rejected in the later English cases, of which it is sufficient to refer to Lester v. Garland, 15 Ves. 248, and Webb v. Fairmaner, 3 M. & W. 473, where the earlier cases are critically reviewed by Sir William Grant and by Baron Parke. And the English decisions, cited by the learned counsel for the defendant, cannot govern the case before us.

One of them is Castle v. Burditt, (1790) 3 T. R. 623, in which the decision was that under a statute providing that certain actions should not be brought until one month after written notice thereof to the defendant, the day of the delivery of the notice must be included. Although the court said that the case came within the rule above mentioned, it is evident that it was not intended to affirm that rule to be universal; for in Ex parte Fallon, (1793) 5 T. R. 283, the same judges held that under St. 17 Geo. III. c. 26, requiring a deed to be enrolled within twenty days from its execution, the day of the execution was to be excluded. The reason assigned by Lord Kenyon in Ex parte Fallon was one which has been often repeated since: "Suppose the direction of the act had been to enrol the memorial within one day after the granting of the annuity, could it be pretended that that meant the same as if it were said that it should be done on the same day on which the act was done? If not, neither can it be construed inclusively, when a greater number of days is allowed." And Mr. Justice Buller considered the case to be governed by the authority of the decision in 2 Inst. 674; S. C. Dyer, 218 b; Mo. 40; that under the St. of 27 Hen. VIII. c. 16, requiring deeds to be enrolled "within six months next after the date of the same," it was just as if the statute had said "after the day of the date," and the day was excluded. It should be added that the case of Castle v. Burditt has been directly overruled in England. Young v. Higgon, 6 M. & W. 49, and cases cited.

In 1796, the House of Lords, upon an appeal from Scotland, held that under a statute providing that deeds made in the last illness of the grantor should be void, unless he lived "for the space of three score days after making and granting thereof," the day of the execution of the deed must be excluded, and that a deed made on February 22, by a man who died at a later hour on April 22, 1791, was invalid; and Lord Thurlow (Lord Loughborough concurring) said: "The terminus a quo mentioned in the act is descriptive of a period of time, and synonymous with the date or day of the deed, which is indivisible, and sixty days after is descriptive of another and subsequent period, which begins when the first period is completed. The day of making the deed must therefore be excluded; so the maker lived only fifty-nine days of the period required. Had he seen the morning of the sixtieth or subsequent day, it would have been sufficient; the rule of law above mentioned (dies inceptus pro completo habetur) then applying, and making it unnecessary and improper to reckon by hours, or to inquire if the last day was completed." Mercer v. Ogilvy, 3 Paton 434, 442.

The only other English case cited for the defendant is Glassington v. Rawlins, 3 East, 407, deciding that under St. 21 Jac. I. c. 19, which provided that any trader, who should "after his arrest lie in prison two months," should be adjudged a bankrupt, the day of the arrest must be included in computing the two months. But in that case, as observed by Baron Parke in Webb v. Fairmaner, 3 M. & W. 473, 476, the party clearly lay in prison on that day. Each day being in contemplation of law indivisible, the decision computing the day of his commitment as one of the days of his imprisonment corresponded to the familiar rule by which the day of a person's birth is included, and he is held by law to become of age on the day before the twenty-first anniversary thereof. Met. Con. 38. Bardwell v. Purrington, 107 Mass. 419.

The statement of Mr. Justice Story in Arnold v. United States, 9 Cranch 104, 120, that "it is a general rule, that where the computation is to be made from an act done, the day on which the act is done is to be included," had no application to the case before the court, in which the point decided was that a statute which was to take effect "from and after the passing thereof" took effect immediately, without waiting for the expiration of the day on which it was passed; and to apply the rule quoted would include the whole of that day, and so give the statute a retroactive effect, which could not be allowed. The Brig Ann, 1 Galli son, 62, 66. Kennedy v. Palmer, 6 Gray 316. 1 Kent Com. (12th ed.) 454, 455.

In the recent case of Sheets v. Selden, 2 Wall. 177, 189, on the other hand, where a lease provided that the rent should be paid semiannually on certain days, and that, if any installment should remain unpaid for one month from the time it should become due, the lessor might enter and take possession, it was held that the day on which the rent fell due must be excluded; and it was said that the general current of modern authorities, on the interpretation both of contracts and of statutes, when time is to be computed from a particular day or a particular event, is to exclude the day designated; citing Cornell v. Moulton, 3 Denio 12, and Bigelow v. Willson, 1 Pick. 485.

In this Commonwealth, the general rule, as applied in a variety of circumstances, and now well established, is, that in computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises. But as conflicting opinions have been expressed in some of the cases, it is proper to consider them in detail.

The leading case is Bigelow v. Willson, 1 Pick 485, in which it was held that under the St. of 1815, c. 137, authorizing the owner of an equity of redemption, sold on execution and conveyed by the officer, to redeem it "within one year next...