French v. Wilkins

The opinion of the court was delivered by Hebard, J. This was a writ of review, brought by the defendant in the original suit, under the provisions of the statute. The statute provides, that, in the cases there specified, the writ of review may be commenced “within three years nest after the rendition of the judgment,” &c. In this case the judgment was rendered on the ninth day of May, 1840, and the writ of review was brought on the ninth day of May, 1843. The only question in the case, for this court, is, whether the writ of review was commenced within three years next after the rendition of.the judgment in the original suit. This question cannot be settled entirely by authority; the decisions upon the point have been, made under circumstances in some measure peculiar to themselves, — and in some of the cases the reasons for holding one way, or the other, were derived from the equity, or the hardship, of the particular case. Indeed, it is a little difficult to adopt- any reasoning upon the subject, that is not open to some objection. The mode of computing, that has been adopted under the various provisions of our statutes, ought, perhaps, to be some guide in this case. In the service of writs, the day of service is excluded, when determining the legality of the notice. In computing the period that an execution has life, the day of rendering the judgment, upon which it issued, is excluded; — and so in fixing the time, within which the execution must be put into the hands of the officer, in order to preserve the lien created by the attachment of property, or to hold bail. The expression of the statute, in these cases, is, “from the time of rendering final judgment.” The words, “from the time of rendering,” and “ next after the rendition,” equally exclude the day of the judgment. This construction, which our statute has received in the cases referred to, would require that the same construction should be carried out in other similar cases. It is a common maxim, that, in law, there is no fraction of a day; and, by'applying that maxim, the whole question is settled. The [347] time of rendering is made to mean the day of rendering; and when the time of rendering the judgment is thus made co-extensive with the day of rendering the judgment, the time cannot, legally, begin to run, until the day after the judgment is rendered. The distinction, taken sn the cases cited by the counsel for the defendant, is entirely forced, — unless in cases, where the phraseology of the statute, or writing, was such as to forbid any other conclusion. “ From, a time. ” and “from and after a time ” are expressions used -indiscriminately, and for the purpose of expressing the same idea. And the conflicting rules, that have been referred to, apparently grew out of a specious distinction, taken in cases where the court felt a strong desire, in the one case, and the other, to reach the equity of the case, and, for that purpose, made the rule bend to the case, instead of making the case bendto the rule. But, by adopting the principle, that there is, in law, no fraction of a day, we have a starting point, and a rule that admits of a general application. The authorities cited by the plaintiff’s counsel are too numerous to be reviewed at .this time. But, if the question was to be decided upon the weight of authority, without regard to the practical construction which has been given to similar provisions of our statutes, we should feel compelled to yield to those authorities, w'hich exclude the day, on which the act was done, in computing the period of time after such act. Judgment affirmed.