162 SECTION V. FRACTION OF A DAY. THE law does not acknowledge, as a general principle, that there is any fraction of a day. Thus the fourth part of the days of the year, which are ninety-one days, make a quarter, and to the six hours over (i. e., the six hours of the quarter) the law pays no regard (a). It is not necessary to bring forward many authorities to ratify this rule. It was said, a long time since, that "the law will never count by minutes or hours to make priorities in a single day, unless it be to prevent a great mischief or inconvenience; as if a bond be made on the first day of January, and this bond is released the same day, the bond may be averred to be made before the release" (b). Thus, if a feme sole binds herself in a bond, and marries on the same day, it may be averred that she married after the bond was delivered (c). The law admits not of portions in time but in case of necessity (d), as if a third person would be prejudiced (e). For if no exceptions to the rule concerning fractional parts of time were to be suffered, the mischief and inconvenience alluded to in the case in Lord Raymond would accrue. We will draw the attention of the reader to some cases where it has become expedient to recognise a deviation from the principle. (a) Dy. 345, a. Co. Litt. 135. 2 Dougl. 463. (d) Sty. 119, per Rolle, C. J. (e) Orl. Bridg. 8, Hemmings v. Brabazon. The mayor of Lynn committed a person to gaol, who brought an action for false imprisonment. The defendant pleaded that he was chosen mayor, and as custos gaola he imprisoned, &c. It appeared that he was chosen on the 29th of September, and that the imprisonment, as alleged on the record, would have happened between the 28th of September and the 14th of October. Hence it was argued for the plaintiff, upon demurrer, that the imprisonment might have occurred on the 29th of September, at a time of that day before the election of the defendant to be mayor, and if so, the trespass was left uncovered. But the Court overruled the demurrer, and gave judgment for the defendant. And Coke, who was the defendant's counsel, answered to the plaintiff's objection, that it shall be intended a justification for the whole day, for there shall be no division of a day. And then he added, "If he imprisoned him before he was mayor, the plaintiff must shew it, for, primâ facie, it shall be intended to go to the whole day" (f). So in debt for rent, the plaintiff declared that C. made a lease for years to the defendant, with a reddendum half-yearly. C. granted the reversion to the plaintiff, and on that day, the day on which the rent was due, the defendant attorned. The rent for which the action was brought was included in the day of the attornment. was objected, that this rent was payable to C. before the attornment, for that should be taken to be after sunset. But the Court disallowed the objection; and the Judges said, that if a writ abate one day, and another writ is purchased which bears teste the same day, it shall be intended after the abatement of the first (g). So if a man seal an obligation on the 10th of June to A., and A. made a release on the same day to the obligor, an inquiry shall be made as to the priority (h). So, ex indulgentiá legis, the law, in some cases, will in construction consider two distinct times in one instant (i). Two writs of fieri facias were delivered to the sheriff on the same day, and a bill of sale was forthwith made out upon one of them, and the authorities of Co. Litt. and 6 Rep. 33, were brought for Cro. El. 167, Smith v. Hillier and another; and see 15 Ed. 4, 23. (g) Al. 33, 34, Com. Northumb. v. Green. 23 Car. 1. (h) Ibid., per Levinz, arg. (i) 6 Rep. 33. It ward in argument, and the question of a fraction of a day was raised. But as both writs were delivered on the same day, the Court were obliged to ascertain the priority; and they held that, as there must have been a prius and a posterius, the writ last delivered should have the preference (k). However, where two judgments have been signed on the same day, the Court will not allow the priority of one to be averred, for this is a judicial proceeding (1). Again, an action of assumpsit was brought upon a promise, made on the 11th of September, to detain certain goods if no claim should be made to them after the 11th until the 14th of September. The plaintiff alleged no claim made. After verdict it was moved to arrest the judgment, because there might have been a claim made on the same day, viz. on the 11th of September and since the promise on that day. Hence the declaration should have stated no claim since the promise, and not after the 11th of September, &c. But the Court said, that such a proof should have come from the defendant, thus acknowledging the division of the day, had the defendant sought to shew, which he failed to do, that a claim had been made on the 11th of September subsequently to the assumpsit. And a parallel instance was put. Suppose a trespass to be done in the morning, and a release made at noon of the same day of all trespasses, and then another trespass is committed after the release and on the same day: here, upon a declaration in trespass, the defendant may plead the release generally, and it would be on the plaintiff to shew the particular case on his side, and to divide the time of the day so as to make out the latter trespass to have happened after the release (m). Any agreement or direction to suspend the first writ may alter (k) 5 Mod. 376, Smallcomb v. Buckingham. S. C. 12 Mod. 146, cited arg. 6 Mod. 292, as Smallcombe v. Crosse. S. C. Comb. 428, nom. Smallcorn v. Vic. Lond. Carth. 419. 1 Salk. 320. 3 Salk. 159. Holt's Ca. 402. 1 Lord Raym. 251. Com. Rep. 35, S C.; and see 1 Term Rep. 729, Hutchinson v. Johnson. 4 East, 544, S. C. cited. 1 T. R. 731, n., Rybot v. Peckham. 2 Marsh. 375, Rowe v. Atherton, to the same effect. There are other cases as to the priority of writs, but we have for the most part, to do here with writs issued on the same day. (1) 1 T. R. 117, Lord Porchester's case, cited there. (m) Mo. 596, pl. 812, Plaine v. Bynd. 1 Leon. 220, S. C. But S. P. not mentioned. S. C. Cro. El. 218, where the point is not mentioned. Cro. El. 301, S. C. (in error), nom. Bind v. Plain; and see an instance of an award cited there by Popham, C. J. the preference due to the first execution, as where a writ of execution was sent in with directions that it should not be carried into effect unless a second writ were delivered. A second writ was delivered, and the sheriff executed both on the same day, giving precedence to the last. There being a deficiency of goods to answer both executions, the sheriff returned part payment to the first writ, and nulla bona as to the residue ; and the Court held, that no action lay against him for a false return (n). A person, looking forward to an execution, assigned his property to trustees, with power to retain certain monies in order to liquidate the costs of a previous action. The deed of assignment was executed at nine A. M. on the 25th of February. A writ of fi. fa. having been delivered on the 24th of February to a sheriff's officer, was by him handed over to the undersheriff at ten A. M. on the 25th. It was held, that the deed had priority over the fi. fa. that the goods could not be taken under it, and that the proviso to retain made no difference (o). So in actions, the declaration related to the first day of the term, when entitled generally, as it might formerly have been (p). But notwithstanding, a cause of action would be presumed by the Court to have occurred before the delivery of the declaration, inasmuch as the Court would take notice of their ancient practice of hearing pleadings ore tenus, and the delivery of the declaration could not have been before their sitting. Therefore, there was a necessary fraction of the day (q). So again, a plaint was entered upon the same day when certain words, the subject of the plaint, were spoken. And error was assigned, inasmuch as the action ought not to have been brought (n) 11 Price, 445, Pringle v. Isaac. (o) 6 C. & P. 140, Bowen v. Bramidge. (p) See now Reg. Gen. 4 Wm. 4. 1 T. R. (q) 2 Lev. 13, Fatlow v. Batement. Id. 176, Dobson v. Bell. 116, Pugh v. Robinson. 2 Bing. 469. 10 Moore, 194. McCl. & Y. 202, Ruston v. Owston (in error). But the defendant might have shewn that the cause of action arose after the first day of term, which would have been cause of nonsuit, unless the writ itself were produced with a subsequent date in order to cure the objection. 5 Esp. 163, Rhodes v. Gibbs. See Cowp. 454, Foster v. Bonner. 2 East, 333, Lee v. Clarke, (in error), surplusage. 4 East, 75, Swancott v. Westgarth. 2 Dowl. & Ry. 868, Law v. Pugh. But now the declaration must be specially entitled of the day of the month and year when the same is pleaded. until after the words had been spoken. For the law, admitting of no fractions of time, there must have been one hour supposed when the words were spoken, and, another hour when the plaint was entered. But Holt, C. J., held, the plaintiffs should, notwithstanding, have judgment (r). And Buller, J., cited this case with approbation in Pugh v. Robinson (s). The same law was adhered to in scire facias (t). So, at whatever hour of the day a writ of error is allowed, it operates as a supersedeas (u), whether the plaintiff have notice of it or not, although in some cases the Court will withhold costs upon setting aside an execution (v). In an action upon the case, it appeared that the plaintiff had delivered certain clothes to the defendant for so much money, and thus the defendant became indebted, and, afterwards, in consideration thereof, did promise to pay in a year afterwards. It was objected, that here was a promise founded upon a past consideration, so that a promise could not be raised, and, therefore, as debt would lie the judgment in assumpsit ought to be arrested. But Coke, C. J., answered, that in such a case as this, the law would imply a tacit consideration. And by Houghton, J., here was a continuing debt, and hence arose a good consideration (w). And Rolle, C. J., upon another occasion cited the case of Hodge v. Vavisor, to shew that a little distance of time, (though the same day), alters the intendment of law (x). The law is the same with respect to the priority of informations. An information for usury was exhibited against the defendant, and he pleaded that another such information had been exhibited against him in the same (Michaelmas) Term for the same usury, and that judgment had passed against him. (r) Sty. 72, Symons v. Low. (s) 1 T. R. 118. (t) 3 Wils. 154. Sir Wm. Bl. 735, Ward v. Gansell. (u) See amongst other cases, 1 Chit. Rep. 241, 83, Cleghorn v. Des Anges and another. S. C. Gow. 66. v. Butler. 3 Moore, (v) And see likewise on the subject of priority, 3 Bulst. 222. 1 Ro. Rep. 413, Hodge v. Vavisor, infra. 1 And. 301, Mathew v. Johnson and another. (w) 1 Ro. Rep. 413. 3 Bulst. 222, Hodge v. Vavisor. (x) Al. 70, in Read v. Palmer. See Sty. 106. 117, S. C. |