23 Mich. 1 | Mich. | 1871
This action appears to have been brought upon a judgment rendered in the court of record on the fifteenth day of March, 1859. It was commenced by summons on the fifteenth day of March, 1869, and the question upon which the case turns is whether action was not barred by the statute before the summons was taken out.
This subject has undergone no little discussion in the courts, and the conclusions have been exceedingly discordant. The earlier English cases support the view taken by the defendant here. In Norris v. The Hundred of Gawtry, Hob., 139, action was brought on the statute of Hue and Cry, which provided that “ no person shall take any benefit,” etc., “except he or they so robbed shall commence his or their action within one year next.after such robbery.” A robbery took place October 9, and it was held that suit brought the succeeding October 9 was barred. In The King v. Adderley, Doug., 463, Lord Mansfield had occasion to consider the subject under a statute, which made the sheriff not liable to be called upon to return process, unless within six lunar months after the expiration of his office; and he held on the authority of the case in Hobart, and of Bellasis v. Hunter, 4 Ld. Raym., 280, that where the computation of time is to be made from an act done, the day on which such act is done is to be included. And these decisions were afterwards applied to a case in which a month’s notice was required to be given of an action; the court holding that the month" began with the day on which the notice was served. — Castle v. Burditt, 8 T. R., 623.
So in Gorst v. Lowndes, 11 Sim., 434, the testator had directed the income of his property to be accumulated for the term of twenty-one years from his death, and this was held to exclude the fifth day of January, on which he died. The Vice Chancellor said: “I should have thought this the simplest question in the world. I have generally understood the rule to be that, ordinarily speaking, where a party creates a term from a certain day, that day is excluded in the computation of the term. Here the testator has directed the trustees of his will to receive and accumulate the income of his real and personal estate for the term of twenty-one years from his death; and I should have thought it perfectly clear that where a person gives such instructions, the term would have extended to the twenty-first anniversary of the day mentioned, and that the whole of that anniversary would be a portion of the term; or, in other words, that the day of his death would be considered as a point, and the last fifth of January would be included in the term of twenty-one years.” And he so decides.
In Hardy v. Ryle, 9 B. & C., 603, action was brought against a justice of the peace in trespass for false imprisonment. The imprisonment terminated December 14th, and the suit was commenced on the 14th of the succeeding June. The statute was, “No action shall be brought against any justice of the peace for anything done in the execution of his office, unless commenced within six calendar months after the act committed.” It was held not too late. So in Pellew v. Inhabitants of Wonford, 9 B. & C., 134, where the riot act required notice of damage or injury to be given “within two days after such damage or injury
Now, in several of these cases, the actual result of the rule approved by Sir William Grant may be, under given circumstances, to give the party one day more than the statute time in which to bring suit, inasmuch as he would be legally entitled to act on the very day of the event from which the time is computed, if that event took place at an hour of the day which would permit of action; but, on the other hand, the opposite rule, as was so forcibly illustrated by Lord Tenterden, would under other circumstances, give him one day less than the statute time, and if that time was one day only, would give him no time at all. There is good reason, therefore, in the rule adopted by Sir William’ Grant, of treating the day of the act or event as a point of time only, and excluding it altogether from the computation.
We have been thus particular in referring to the English cases, because some of the earlier cases in this country appear to have adopted the rule laid down in The King v. Adderley, and other early English cases, and which is stated by Mr. Justice Washington, in Pearpoint v. Graham,
This rule was applied to cases arising under statute of limitations in Presbrey v. Williams, 15 Mass., 193; Jacobs v. Graham, 1 Blackf., 392. See also Little v. Blunt, 9 Pick., 491; Ryman v. Clark, 4 Blackf., 329. But there can be no question that the preponderance of American authority is the other way. See Sims v. Hampton, 1 S. & R., 411 ; Cornell v. Moulton, 3 Denio, 12; Commercial Bank v. Ives, 2 Hill, 355; Judd v. Fulton, 10 Barb., 118; Windsor v. China, 4 Greenl., 257; Weeks v. Hull, 19 Conn., 377 ; Kimm v. Osgood’s Adm’r, 19 Mo., 60; Owen v. Slatter, 26 Ala., 547; Lang v. Phillips, 27 Ala., 311. And this harmonizes with the mode of computing time under rules of practice, which is always exclusive of the first day, unless the peculiar wording of the rule would include it. And the more general we can make such rules, where no substantial reasons exist for distinctions, the less likely are those who are to act upon them to be deceived and misled in their action.
We are of opinion that the circuit judge was correct in his ruling, and that the judgment should be affirmed.