22. On the whole, after the many varying decisions it must now be considered as settled law, that inhabitants (not a corporation) cannot claim a profit a prendre in alieno solo, nor can occupiers of certain messuages or tenements, except when they can claim on possession only, as in Bean v. Bloom & al., and as to this principle the English cases as to common of pasture, of turbiary, of estovers, &c. are good authorities in the United States, where one claims a right in another's soil, as to dig ballast, sand, muscle bed, manure, clay, as to glean, &c. &c. The principles as to this right and an easement, as to true distinctions between custom and prescription, being the same in both countries. Cн. 27. Art. 1. CHAPTER XXVII. DAYS, DATES, MONTHS, CALENDAR, &c. COMPUTATION OF TIME In most legal proceedings &c. the exact computation of time, as of days and dates &c. is often material; and it is frequently a nice question when in point of time the plt. may sue, and when he is barred by the acts of limitations. It is here intended only to shew the true measure or computation of 2 Bl. Com. time. By our law, day is from midnight to midnight. This 141. manner of computing time we have derived from England. ART. 1. A rule is laid down in this case, to wit: "that Dougl. 463, where a computation is to be made from an act done, the day Rex v. Adwhen the act was done was to be included." Therefore, by R. 623, 624, derly.-3 T. statute the defts. were to have one calendar month's notice Castle v. Burbefore they were sued. They had notice April 28, 1788, and ditt.-1 Ld. Raym. 650. were sued May 28, 1788, and held well; for the 28th of April is to be computed as included in and a part of the month. 2. So a robbery committed Oct. 9, the year is out the Hob. 139, next October the 8th day; for the day of the robbery is a Norris v. of the year, and there cannot be, two ninth days in one part Gawtry.Imp. M. P. year. By the same rule the day on which a writ is served is 140. computed one of the 14 or 30; hence, one served on Tuesday is fourteen days before the Tuesday fortnight. This is the rule at common law. But some hold the law merchant to be different, and that it omits the day as the day of the date of a note or promise; as if it be dated the first of June, the second of June is computed the first day, but it comes to Chitty on Bills 205. CH. 27. 5 Co. 1 & 2, Clayton's case.-Salk. 625, How exactly the same thing in the end. As if a note or promise be dated June 1, payable in thirty days, it is payable and may be sued July 1, as stated in a former chapter. It the day of the date be omitted, then that of payment is reckoned one, and it is totally immaterial which is computed. 3. So a lease dated before, but delivered June 20, for a year, ends June 19th; so the day of the delivery is one of the year, for the law allows no, fractions of a day; from henceforth means from the delivery. So a lease to hold or promise to 2 Cro. 135.- pay begins from the date of course, and the date includes the day of the date; and on this day the lessee may enter or bring ejectment; Osborn v. Ryder, Salk. 413. ard's case. Hob. 14. 3 Bl. Com. Chris. Notes 1.-1 H. Bl. 14. 3 Wood's Hob. 139, Bennet v. 4. So when goods are to be kept five days, of the days of taking and sale one is inclusive and the other exclusive, as where goods are distrained the first day of May, they may be sold the sixth. § 5. But where a lease is from the day of the date, or an interest passes from the day of the date, the day is excluded as the expression imports. So in Howard's case a policy on a life was dated Sept. 3, 1697, for one year from the day of the date, and it was held to begin Sept. 4, 1697, and to include Sept. 3, 1698. So one born Sept. 3 is of age Sept. 2, and it is said he may make his will on that day, as there is no division or fraction of a day. 6. In some cases, however, the day of the date is excluded and is no part of the year &c., as in writs of protec---4 T. R. 121, tion, and in the enrolment of deeds in six months on the statute. So in putting in bail, judgment on Monday, four days includes all Friday, but if on Monday a party has four days allowed to plead in abatement, he must plead by Thursday night. So one born the first day of January and on the last hour of that day, is of age to act the first hour on the last day of December. 3 T. R. 642, Lee v. CarlCom. Chris. ton.--1 Bl. Notes 121. 7. By the annuity act the deed is to be registered in twenty days after the date of it. Held, one dated June 6th, and registered the 26th, is well registered. 8. A contract to deliver stock in six months in England, means lunar months, Stra. 446; but in Change Alley the same words mean calendar months, Stra. 652. In temporal cases time is computed by lunar months; in ecclesiastical by solar, W. Bl. 450. ART. 2. In England a month is a lunar month of twentyeight days, or a calendar month, of which twelve make a year. 1. A month in law there is a lunar month; but a ship freighted by the month is a calendar month. So in paying money; so if money be lent for nine months, it must be understood calendar month. So as to bills and notes. Cн. 27. 2. In all statutes, pleadings, and in deeds, a month means a lunar month in England. But it is not generally so in the Art. 3. United States, especially in Massachusetts. Here when a month is expressed, a calendar month is usually understood. 1 Com. D. As when the party has " one month" to appeal from a probate decree; and the court said, "in this state, as well before since the revolution, a month mentioned generally in any had immemorially been considered as a calendar month," as to bills and notes. A bankrupt's two months in prison includes the day he is committed. as act So Anne.-6 T. R. 224, Lacon v. Hooper-4 Mass. R. 460, Avery & al. r. Pix &c. ART. 3. The Calendar or Kalendar. § 1. In the year 1750, the English parliament passed an act for correcting the calendar, which extended to all the king's dominions in Europe, Asia, Africa, and America, in order to make English time agree with that of most other countries which embraced the Christian religión. This act provided, that the old supputation by which the year began, March 25th, should not be used after the last day of December 1751, and that the first day of January next following the said last day of December should be deemed the first day of the year 1752, and so each year to begin January 1st; that the old months should be continued till the second day of September 1752, as they had been inclusive; and that the natural day next immediately after the said second day should be deemed the fourteenth day of September, then omitting the eleven intermediate nominal days; but this was not to affect private rights or the ages of persons. Otherwise the old calendar and leap year were preserved, except also finding that making every fourth year leap year or bissextile, made an error of eleven minutes a year, as explained below; to correct this nearly it was enacted, that the years 1800, 1900, 2100, 2200, 2300, or any other hundreth year after, except only every fourth hundreth year of which the year 2000 should be the first, should not be deemed leap year, but a common year of 365 days; and that the years 2000, 2400, 2800, and every fourth hundreth year after, and all other years before 1752 deemed leap years, should after 1752 be deemed leap years or bissextile of 366 days. ley & al. Johns. Cas. 99.-3 East 467. 2. This calendar is used in the United States, and though Julian perithe best that has ever been made or adopted, it is not strictly od, 7980, is right. It differs from true time thus: the true solar year, 19, the lunar or the earth's annual revolution round the sun, is 365 days, plied by 28, cycle, multifive hours, and forty-nine minutes, eleven minutes less than the solar cy 365 days, and one quarter of a day. Leap year or bissextile cle, and 15 adds one day in every four years, making each year on an the cycle of indiction. average 365 days, six hours, or 365 days. This is adding 11 minutes a year too much, and making the statute year 11 CH. 27. minutes longer than it should be, or longer than the solar year. This alone between 1752 and 2400, makes a difference of 7128 minutes between statute and solar time. Towards correcting this error, the act in this period omits five leap years or bissextile days, containing 7200 minutes, that is, seventy-two minutes too much. There was this former error, and it arose thus: Julius Cæsar formed the Julian year by adding leap year every fourth year, making in each four years period, three years to consist of 365 days each, and one of 366 days, average year 365 days, six hours; that is, eleven minutes more than the true solar year. This eleven minutes from his time to the council of Nice, A. D. 325, amounted to a very considerable error, which at that council was set right. But from that time to the year 1752 they made 15,697 minutes; equal to ten days, twenty-one hours, and thirty-seven minutes; that is, the eleven days (nearly) omitted in Sept. 1752, were two hours, twenty-three minutes too much; making this statute year begin so much before the true solar year. operation of this act is to omit after January 2400 three leap years, or three bissextile days, containing 4320 minutes in each 400 years. In that time the eleven minutes make 4400 minutes, eighty minutes more than the three omitted days, so that four statute centuries will be eighty minutes longer than four solar centuries. This too large deduction of two hours and twenty-three minutes, and of 72 minutes will be corrected by the operation of the eighty minutes in 1075 years, and solar and statute time will come together in the year 3475, and after that the solar will gain of the statute time twenty minutes in a century. The 3. A. D. 1582, Pope Gregory XIII. ordered, that once in 133 years a day should be taken out of the calendar, to wit: from the year 1600 every hundredth year was to be common, but every four hundredth was to be bissextile. This was called new style, which the English statute in substance adopted, ART. 4. Reasons for the lunar months. § 1. As every one now almost thinks of the calendar, and not of the lunar month in speaking and writing, a question naturally arises, why if a statute speaks of a month simply, a lunar month of twenty-eight days is to be understood in any country recognising the calendar month. The truth is, it is the ancient law founded in reasons which have ceased to exist. The Greeks computed by lunar months; twelve of which made 354 days, eight hours, forty-eight minutes, and for the odd days, formed a cycle of nineteen years, each twelve months and seven intercalated moons; but these fell short of nineteen full years almost ninety minutes. The Romans and Northern nations also calculated in many respects by moons, and a lunar revolution agreeing nearly with four weeks, that period was adopted as a month. This interpretation of a month was fixed in England &c. centuries before this country was settled; and the idea of a calendar month being familiar when it was settled, when a month was here mentioned, it came generally to be understood a calendar month; and so has been our construction of the expression, as above. The twelve months in the year are perfectly familiar to all, whereas a lunar month has for a long time been scarcely thought of in measuring time. 2. The Hegira or Mahometan Era began July 16, 622, and July 16, 1800, our Æra, should be July 16, 1178, in the Mahometan. But as the Mahometan year consists of twelve moons, that is, 354 days, eight hours, forty-eight minutes, it is ten days, twenty-one hours, and one minute shorter than the Christian or Julian year. Hence, a century in one calendar is very different from a century in the other. CH. 27. Art. 4. Avery & al. v. Pixley & al. Kennett's Roman Anti.. quities 86, &c. 3. The Romans regulated their calendar three times; first, by Romulus: second, by Numa; and third by Julius Cæsar, as above. Romulus divided his year into ten months of unequal length, Mars or March the first month, Mars being the father of the state. Numa added January and February, but there was but little accuracy till Cæsar's time. Till his time the priests of superstition made the calculations; the months began on the first day of the moon. This was the calendar whence the Nones and Ides were reckoned. Calendar from calo to call the people together by an inferior priest to hear the regulated days of the month; Ides about the middle of it. Also the Jews regulated their passover partly by the moon ; 3 Prid. Cons. so Christians their Easter in commemoration of the resurrec- 247, 254. tion of Christ. The passover was on the fourteenth day of the moon, which fourteenth day fell on the vernal equinox, or after it, as the moon happened to be. This equinox being fixed to be on the twenty-first of March at the council of Nice, held A. D. 325. While many of the Jews were Christians all kept their Easter on the day of the passover, and until about A. D. 190; but when the Jews generally abandoned Christianity, the Christians, except those of Asia, would no longer keep their Easter on the day of this Jewish festival, but postponed it to the Sunday next after. So now no Easter Sunday can be earlier than the twenty-second of March, nor later than April 25. The dispute began about Easter among Christians; hence A. D. 197, the bishop of Rome excommunicated those of Asia, because they would not adopt the said Sunday. Nor have Christians since been able to agree in calculating the precise times of the moon so as to agree in the time of Easter. |