Lang v. Phillips

GOLDTHWAITE, J. The act of the 17th Eebruary, 1854, (Acts 1853-4, p. 92, § 10) regulating the practice of the City and Circuit Courts of Mobile county, provides, that the lien acquired by any execution from either of said courts shall not be lost, if an execution issue to the sheriff “ without interval of more than ninety days.” In the present case, the original execution was returned on the 14th April, 1854, and an alias was issued on the 14th July, 1854. Assuming, for the present, that it came to the hands of the sheriff on the same day on which it issued, the question is, whether the lien was lost; or, in other words, whether according to the rules of law, there is an interval of more than ninety days between the 14th of April and the 14th of July. The rule is now well settled, that in the computation of time from an act done, the day of performance is to be excluded.— Bigelow v. Wilson, 1 Pick. 485 ; Judd v. Fulton, 10 Barb. 117. If, therefore, the law had required the issue of the alias execution within ninety days, in order to preserve the lien, it [314] is clear that, if issued at any time ou tbe ninetieth day, it would be sufficient. Including tbe first day and excluding the last, from the end of tbe fourteenth day of April to tbe end of tbe fourteenth day of July, are ninety-one full days. But the rule we have referred to results from the fact, that the law, in such cases, refuses /to recognize the parts or fractions of a day — that period is regarded as an indivisible point of time (Bigelow v. Wilson, swpra); and under the influence of this rule, we must regard the alias execution as having issued precisely at the instant at which the 14th day of July commenced ; and between this point and the termination of the 13th day, there is no interval. Under this view of the law, there cannot be more than ninety days from the first day, until the last instant of the ninety-first day has passed. If indeed the statute had provided that the lien should be lost if an execution did not issue without an interval of ninety days, then, the issue on the ninety-first day would not preserve the lien but we must give effect to the meaning of the word “more” which is used in the statute, and although the reasoning may savor of refinement, we cannot do this, without infringing on well settled rules, unless we include the whole of the ninety-first day. Any other construction would render that word entirely unmeaning. Our conclusion, therefore, is, that the statute must be construed as if it had said that the lien should not be lost if an execution issued to the sheriff without interval of more days than ninety days. We may remark, however, that the same rule does not apply to statutes which, as between different acts, give a prefer, ence or priority to the one which is first done; and in such cases, courts will regard the fractions of a day. It is urged that the record does not show that the execution of the appellee, although issued on the Í4th July, came to the hands of the sheriff on that day. But we think this sufficiently appears from the statement in the bill of exceptions, that on the day on which the sheriff received the alias execution, he required a bond of indemnity ; which is set out in the record, — bears date on the same" day with the fi. fa., and recites that it was in his hands when the bond was executed. Judgment affirmed.