Bell v. Adams

10 N.H. 181

• Court: Superior Court of New Hampshire
• Decided: July 15, 1839
• Status: Published

Opinion

Parker, C. J.

There are-two general rules for the computation of time, as settled by previous decisions in this state. If the computation is to be made from an act done, or the time of an act, the day on which the act is done is to be included. 3 N. H. Rep, 92, Priest vs. Tarleton. If it be made from a date, or the day of a date, the day is to be excluded. 4 N. H. Rep. 267, Rand vs. Rand.

Whether this distinction was originally founded in any sound reason, it seems now too late to inquire. It is well settled, by various authorities and by long practice, that in computing time on promissory notes the day of the date is to be excluded. 3 N. H. Rep. 14, Leavitt vs. Simes.

And a long practice under our statutes, providing that writs of mesne process shall be served fifteen days before the sitting of the court to which the process is returnable, has sanctioned the rule for including the day upon which the service is made, as one of the fifteen days.

The two classes of cases, established by the authorities before referred to, are so well settled in our practice, that we should not be justified in attempting to adopt a single uniform rule.

, The question is, to which class this case belongs. The statute of January 3, 1833, provides that when any person shall be arrested or imprisoned on execution, he shall be discharged from such arrest or imprisonment, upon giving bond to the creditor, with two sufficient sureties, &c., with a condition that if the debtor “ shall within one year from the day of his arrest, the-day of-, A. D.,-, apply to the proper authority, and be admitted to take, and "actually take, the oath or affirmation prescribed by the laws of this state for the relief of poor debtors, or in default thereof shall surrender himself up to the creditor, in the manner prescribed by the'laws of this state, then this obligation to be void,” &c. 2 N. H. Laws 95.

If the condition of the bond had simply provided, that the debtor should, within one year from his arrest, apply, &e., the day of his arrest must have been considered inclusive, in which case the plaintiff would prevail.

But the legislature, instead of providing a condition by which the debtor is to take the oath within one year from the arrest, or from the time of the arrest, have enacted one by which he shall apply within one year !! from the day of his arrest,” the date of which is set down, and immediately follows, in the condition itself. If any thing can be inferred from the peculiar phraseology of the condition, indicating a rule of computation, it is, that the legislature intended that the day of the arrest should be excluded. The reckoning is to be from a date, which is set down in the condition. He is to apply in one year from a certain day, which is the date of the arrest.

In Blake vs. Crowninshield, 9 N. H. Rep. 304, we held that where, by a written contract, something was to be performed in so many days, without saying more, the true construction was that it was to be so many days from the date, and the time to be computed exclusive of the day of the date. This seems to be a stronger case for such computation.

But this is not the only matter by which we may ascertain the true rule of computation here. By a statute passed January 13. 1837, it is enacted a person surrendered by his bail shall not be obliged to remain in close confinement, but shall be discharged upon giving bond, &c., with a condition, that <! if he shall, on the twenty-ninth and thirtieth days following the day of his being surrendered by his bail, it being the-day of -, A. D., -, surrender himself up to the keeper of the jail,” &c. And to remove any doubts respecting the computation of the time, the next section enacts, “ that in reckoning said thirty days the day of the surrender shall be excluded.” 2 N. H. Laws 243. The language of the condition in this statute is, in its effect, similar to that of the condition prescribed by the statute of 1833, except, perhaps, that the term, “ following,” may have some force indicating the exclusion of the day.

We have no doubt that conditions similar in their language should have a similar construction. The latter statute, therefore, indicates that the day of the arrest should be excluded in computing the time in this case.

Plaintiff nonsuit.