Horatio W. Millard v. William Willard

Bosworth, J. Tbe decision of this case involves simply tbe rule for tbe computation of time. The plaintiff was served with a notice on tbe 18th day of October, and was required to pay tbe board of a prisoner who was imprisoned on an execution in bis favor, “ within ten days from tbe time of tbe service of said notice,” or tbe said prisoner would be discharged. Tbe prisoner was discharged by tbe defendant, as jailor, on tbe 28th of October. Tbe plaintiff in this suit went to tbe jail on tbe morning of tbe 28th, for tbe purpose of paying tbe board, and there ascertained that tbe prisoner bad been discharged. There is much apparent conflict among tbe authorities on tbe question of tbe computation of time; and it is not possible to classify tbe various decisions so that they will harmonize upon any settled principle of adjudication. Tbe better opinion, as gathered from tbe numerous decisions of Courts upon tbe subject, seems to us to be, that where a time is referred to us a “ terminus a *44 quo” in computation, the first day is excluded in computation, unless in cases where, in order to vest an interest, to prevent a forfeiture, or to prevent the diverting of a right, it is necessary to include the day. In all cases where a point of time or the doing of an act is referred to merely as a terminus from which to measure time, the day of the date or of the act should be excluded. In this case, if we resort to an accurate measurement of time, the process being served after 12 o’clock, M., on the 18th, and the prisoner being discharged before 9 o’clock, A. M., on the 28th, the plaintiff would not have ten days, within which to pay the board from the time of the service of the process. In such cases there are in law no fractions of days, and the day of the service must therefore be included or excluded in the computation. We think it more conformable to right, and more in accordance with the current of decisions, as well as more in harmony with the general rule which seems to have been adopted in the practice of our own Courts, that the day of the date should be excluded. Under this rule, the plaintiff would have the amount of time which the statute impliedly promises him, within which to pay the board: under the other rule (the rule including the first day), he would not. Judgment for the plaintiff.