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be added, however, that if the words "calendar month," be used in the statute, the act of Parliament, in that case, obviously points out how the reckoning shall be made.

There was an information for having retainers against the provisions of the Statute of Liveries, and the time laid was twelve months, i. e., from the 12th of December, 42 Eliz. to the 10th of December, 43 Eliz. The verdict was, 66 'Guilty for twelve months." But it was moved to arrest the judgment. For if the month be calculated at twenty-eight days, then from 12th of December to 10th of December, would be thirteen months, and as the jury had not found for which month they had acquitted the defendant, there could not be any judgment. On the other hand, if the months were accounted as calendar months, there would be a deficiency of two days, and, in that case, the information would be insufficient.* But the Court were of opinion that twenty-eight days should be the standard, and there then would be thirteen months in the year, and they held it not material, although it had not been found in which of the months the party had offended (n).

So, upon the Act of Uniformity, the commitment was for six lunar months only (o). So, where there was an information upon the Statute of Unlawful Games, the computation was limited to twenty-eight days, and the calendar reckoning was rejected (p). So, under the Stockjobbing Act (9), the six months mentioned mean lunar months, and it was held, that no discovery lay where the cause of action arose prior to the expiration of six lunar months (r). So it was where the Brewers of Exeter were charged with selling ale and beer, contrary to a rate put upon those commodities by the corporation for six months ensuing (s). So, in another case where, upon the stat. 1 Wm. & M. c. 8, s. 7, six months were appointed for ecclesiastical dignitaries to take the new oaths of allegiance and *The report is "sufficient," but this must be a mistake. (n) Cro. El. 835, Dormer v. Smith.

(o) 1 Show. 368, Holcroft's case, cited Mich. 32, Car. 2.
(p) 20 Vin. Ab. 271, C. pl. 3, Whethered's case, per Cur.
(q) 7 Geo. 2, c. 8, s. 1.

3 Bro. Ch. C. 11, Windale v. Fell.

Id. 272, C. pl. 4, Case of Evans and others, Brewers of Exeter.

supremacy, the Court were inclined to reckon these months as lunar months, but they did not come to a decision (†). So likewise, the month for reading the Articles of Religion, after induction, was fixed to mean twenty-eight days (u). And so, again, where a person presented to a living was refused for insufficiency (v). So the time for recantation from Popery was fixed by the Chancellor of Ireland according to lunar months, and his opinion was confirmed on appeal (w). So where debt was brought for penalties for using a trade, from the 25th of February till the 23rd of the following January, that is, for eleven* whole months, there having been no apprenticeship: the Court would have given judgment for the defendant, but for the nature of the verdict: the jury found him guilty "of two months lunar next after the 23rd of February." And as there was a scilicet, this finding was sufficiently special to sustain the judgment (x). So, upon a motion to quash a conviction for deer stealing, under 3 & 4 Wm. & M. c. 10, it was held, that twelve lunar months having expired before the prosecution, it could not be supported, because, where “months are mentioned in a statute, and not years, these are always computed by the moon, viz., four weeks to the month” (y).

So in the case of a month's absence from church, upon 25 Eliz. the Court held to the principle of the lunar month, because of the four Sundays, the absence upon each of which respectively would naturally create the offence (z).

It was, indeed, once urged, and with success, that where an offence, as a riot, was punishable at common law, a statute (13 Hen. IV. c. 7) which used the word "month," should

(t) 1 Show. 368. Skin. 313. 4 Mod. 95. Comb. 191, Burton v. Woodward.

(u) 1 Lev. 101, Brown v. Spence.

(v) 1 Leon. 31, Albury v. Bp. of St. Asaph.

(w) 5 Bro. P. C. 438, Farrell v. Tomlinson. But a quære is made whether these should not have been calendar months.

*The Report says "duodecim," but it must be “undecim."

(x) 12 Mod. 641, Stretchpoint v. Savage; and another case of King v. Stowbridge, Mich. 6 Wm. 3, was there cited.

(y) Carth. 406, R. v. Peckham.

(z) 2 Show. 205. 207, R. v. Spiller et Ux.

not be strictly construed as a penal statute. Consequently, it was held, that an almanac, or calendar month might be applied to the case (a). But it is doubtful whether this decision would now be regarded with favour, for the current of authorities, with certain exceptions, which will be presently mentioned, leans much towards the rule of calculation by twenty-eight days, unless the statute otherwise expresses it.

So where an attorney's bill was delivered on the 20th of July, and the action was commenced on the 18th of August, it was held by Lord Ellenborough, that as the statute spoke of months generally, lunar months must be intended (b). So an order in Chancery to amend in a month, means a lunar month (c).

So, under the Bankruptcy Act (12 & 13 Vict. c. 106), the three months' wages payable to servants or clerks may be said to be lunar months (d).

This rule of construction as to months appears at length to have been established as not admitting of controversy. In a case, which will by and by be cited upon another point, although three questions were reserved for consideration, this point as to the twenty-eight days was not doubted. On the contrary it was said, "A month, in law, is a lunar month, or twenty-eight days, unless otherwise expressed" (e). Some time afterwards a question arose, whether fourteen months, to be computed from the time of a ship's clearing out, should be

(a) 1 Sid. 186, R. v. Cussens and others. S. C. 3 Salk. 346. S. C. cited 4 Mod. 96; and see 1 Hawk. c. 65, s. 31.

(b) 5 Esp. 168, Hurd, Gent. v. Leach. (c) 2 Sim. & St. 476, Creswell v. Harris. (d) 12 & 13 Vict. c. 106, s. 168. Humphreys. S. C. 3 Deac. & Ch. 114.

1 Mont. & Bligh. 413, Ex parte

(e) 2 Dougl. 463, R. v. Adderley. See 3 T. R. 623, Castle and another v. Burditt and others. The 23 Geo. 3, c. 70, s. 30, enacts, that no action shall be brought against excise officers, unless one calendar month's notice in writing be previously given. It was said, that as three lunar months had elapsed since the seizure, the statute not mentioning calendar months in this respect, the action came too late. But the Court decided upon another point, in favour of the plaintiff whose articles had been seized, and they "avoided hinting any opinion on the second point." Id. 624.

E

called lunar or calendar months, and, although Lord Kenyon did not express himself pleased with the rule upon the subject, yet he said, (and the Court agreed to it), that the matter had been settled, and ought not again to be disturbed. Judgment was accordingly given in favour of the reckoning by lunar months (ƒ). The same point was, again, submitted to without argument, where the bankrupt lay in prison for two months after his arrest. These months were deemed to be lunar months (g). So again, where an umpirage was to accrue, provided that the award by the umpire should be made within six months next after the date of his appointment, these months were held to be lunar. The umpirage was made, but not until after six lunar months, although within six calendar months. And the rule for setting aside the award was made absolute. For here there was nothing ultrà the expression itself to explain the meaning of the parties; and the Court distinguished the case from Lang v. Gale (h), where such an expression of meaning was evident (¿).

It is observable, that an omission of the particular kind of month upon the record will not alter the character of the month which the justices intended. A covenant was made for the payment of two shillings in the pound within twelve calendar months from the date of the deed. But the word "calendar" was omitted from the record. And upon a verdict for the plaintiff, it was moved to enter a nonsuit, because, without more, the word "month" meant a lunar month, and thus there was a fatal variance. The Court, however, considered, that the meaning of that word must depend upon the intention of the parties, and in commercial matters, for example, they said that a calendar month was always intended, and they refused to disturb the verdict (k).

(f) 6 T. R. 224, Lacon . Hooper and others. S. C. 1 Esp. 246.

(g) 3 East, 407, Glassington and others Assignees v. Rawlins, &c. and others.

(h) Lang v. Gale, post, p. 60.

(i) 6 M. & S. 226. In the matter of Swinford and Horn.

(k) Br. & B. 186, Cockell and another v. Gray and another. S. C. 6 Moore, 482.

In another case, the plaintiff was an auctioneer, and the defendant made an agreement to gratify him with a certain amount of commission if a sale of property should be effected within two months. The question was, whether these should be construed to be calendar or lunar months. And it was held clearly, that months, without more, meant lunar months, but that the Judge might look into the instrument, or into the circumstances generally, in order to ascertain whether a calendar month might not have been intended, and that he was the proper person to decide upon such intention of the parties. And, moreover, the Court said, that the conduct of the parties would not, in itself, have the effect of withdrawing the consideration of the word "months" from the Judge. Nevertheless, they said that the usage of auctioneers as to months might be left to the jury; and in the present case the jury had found that calendar months had been intended (7).

An agreement was made between the plaintiff and the defendant that 60%. should remain in the defendant's hands for one year from the date, and so on from year to year, unless called in. A notice of twelve calendar months was required in order to call in the money, and instalments of 10l. were to be paid every three months, so as to clear off the debt in two years and six months. Notice was then given by the plaintiff of his intention to call in the money, and the Court held, that he was not bound to wait until the end of the current year for such notice, but that the notice might be given at any time of the year (m).

Nevertheless, it has been alleged, that there are exceptions Exceptions to the rule as to this computation by lunar months.

(1) The following cases were cited. 11 Q. B. 23, Simpson v. Margetson. S. C. 17 L. J., Q. B. 81. Smith v. Wilson, 3 B. & Adol. 729; where it was held, that evidence might be received of the custom of the county where a certain lease was made, that the number, "thousand," when applied to rabbits, meant twelve hundred.

Hutchinson v. Bowker, 5 Mees. & W. 235, where the jury were directed to give their interpretation of "good," and of "fine" barley, leaving the Court to decide upon the legal terms of the contract.

Nelson v. Harford, 8 Mees. & W. 806. That in contracts the surrounding circumstances of the case should be subject to the construction of the Court after the facts have been ascertained by the jury.

(m) 17 L. J., Ex. 278, Brown v. Hatill, Platt, B., diss. S. C. 2 Exch. 846.

to the rule as to lunar months.

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