fied copy of the proceedings of the meeting at which they were elected, claiming that by virtue of the notice and those proceedings it is shown that they have not usurped their offices, but hold the same lawfully. The notice in its substance (the sufficiency of its time to be hereafter considered) and the proceedings are in conformity with the general statute regarding the incorporation of cities and towns, which is as follows: "Whenever any community of persons shall desire to form a municipal corporation under the provisions of this act, they shali, for a period of not less than thirty days, cause to be published in some newspaper of the county, or by posting in three places of public resort in the immediate vicinage, a notice requiring all persons who are registered voters, residing within the proposed corporate limits, which shall be stated in this notice, to assemble at a certain time and place to select officers and organize a municipal government." McClel. Dig. p. 245, § 2. To the answer there were two replications: First. That the defendants are not legal officers of the town, duly elected thereto, as alleged, and that notice was not given as required by law, but the notice set forth was posted only on the night of September 12th, at between 10 and 11 o'clock P. M., said notice calling upon the registered voters to meet at 2 o'clock P. M., October 12th following, wherefore it was not such as required by the statute, and the incorporation thereunder was illegal and void. Second. That said incorporation was illegal and void because the territory embraced therein had been previously incorporated on the 8th of March, 1887, as the town of Winter Park, and officers elected and installed for one year from that date. A demurrer to these replications was overruled, and afterwards the defendants rejoined-First. That the facts therein alleged are not true. Second. That the former corporation pleaded by plaintiff never had any legal existence; that on the 11th of April, 1887, the attorney general applied to the circuit court for quo warranto against said corporation; and that July 20, 1887, the referee appointed to hear the case gave judgment on demurrer against the corporation, and on the same day gave judgment on the issues in favor of the state, which said judgment is duly of record; and that plaintiff is estopped by said adjudication from pleading said former incorporation. Third. That the notice for the proposed incorporation was given 30 days prior to the incorporation, October 12, 1887. Issues were thereupon joined, and in this state of the pleadings, a referee having been appointed to hear and determine the case, it was decided in favor of the defendants, and judgment given accordingly. On the hearing it was agreed by counsel that the answer of the other defendants should be treated as also the answer of the town of Winter Park, and, further, that the following facts should be taken as true, and that the referee should base his judgment upon the law applicable thereto: "(1) That the notice of the proposed incorporation of the town of Winter Park was posted on the night of September 12, 1887, between the hours of 10 and 11 o'clock, said notice calling upon the registered voters to meet at 2 o'clock on October 12, 1887. (2) That in the former quo warranto proceedings against the first alleged incorporation of the town of Winter Park set up in the pleadings the decision of the referee sustaining the state's demurrer to the defendants' answer was rendered on July 20, 1887, but that the final judgment of ouster thereon was not entered until June 11, 1888."

The referee held that the notice was for the 30 days required by the statute, though only 29 days and 14 hours intervened between the posting and the hour for the meeting; that the second incorporation, before the first had been dissolved by the judgment of the court, could be effected within the territorial limits of the first; that the judgment dissolving the first corporation related back to the time of the usurpation; that the state would not be permitted to allege the existence at any time of a corporation which, at her own instance, had been declared no body politic; and that a public corporation might be such de facto as against individuals, who could not plead nul tiel corporation, but

the rule cannot apply to the state when she has obtained judgment of ouster against such corporation. These holdings are assigned for error, and the substantial questions thus presented are whether the notice given was in compliance with the statute, and whether it was competent to establish a new corporation before the old one was dissolved at the suit of the state. As to the first, the ordinary rule in computing time within which notices must run is to exclude the day on which the notice is given, and include the day on which it expires. This is the rule adopted by the supreme court for the circuit courts when any particular number of days is prescribed by the practice of those courts, except in case of clear days, and is the rule this court has acted on in reference to a statute of limitations for a criminal offense, saying: "The rule seems to be that the first day, or that upon which the offense was coinmitted or the thing done, is to be excluded; and the last day, or the day from which the statute commences to run, is included in the time within which the indictment may be found and the offense prosecuted. This is certainly the rule in all civil cases. * * * Fractions of days are not regarded in law, except where justice requires a careful examination as to the precise time of the day at which an act was performed." Savage v. State, 18 Fla. 970. Some courts, however, reverse the rule by including the first day and excluding the last; but, as this brings the same result, the difference is not material. It is only necessary to consider whether the rule, as followed in this state, applies to the present case, where the notice required was "for a period not less than thirty days. Does this mean 30 clear days? If it does, both the day of the posting and the day for the meeting should be excluded, and the notice was insufficient by 10 hours. We are unable to comprehend the nicety of distinction by which "thirty days," as here used, means more than it does as used ordinarily. If it had been 30 whole days, or 30 full days, or 30 clear days, or any other like expression, the intention to exclude from the computation both the first and last days would be evident and plain. But a “period not less than thirty days" furnishes no criterion by which it can be said that in reckoning the number of days the usual mode should not be adopted. It has been held otherwise in England, and in a few of the states, where "at least" was annexed to the number of days, as "at least thirty days," which has the same import as the words of our statute; but the weight of authority in this country seems to be against that construction, and, we think, with sounder reason. It is not necessary to review the authorities. We agree with the decision in Stebbins v. Anthony, 5 Colo. 348, and refer to that and the note of the latter for full discussion of the subject. See, also, Hagerman v. Association, 25 Ohio St. 186; Northrop v. Cooper, 23 Kan. 432; Walsh v. Boyle, 30 Md. 262; Vairin v. Edmonson, 5 Gilman, 270; Sheets v. Selden, 2 Wall. 177. Appellant insists that "the notice cannot fix one of the days during which it is appointed to run as the certain time on which voters are to meet." If the rule, as we have adopted it, is to prevail, this position is untenable. The 30 days' notice having been given, by excluding the first day and including the last, there is no reason why the meeting should not have been held as it was. The analogy to service of summons in an action at law is conclusive on this point. The service must be 10 days before the rule-day, or term formerly, to which return should be made; and it has always been considered that on the rule-day, or beginning of the term, the case was ready for procedure, if the service covered 10 days, excluding the day of service and including the ruleday, or the day of the beginning of the term.

As to the other question, whether it was competent to establish the new corporation before the old one was dissolved, -the new one having been organized before the judgment of ouster against the old one in June, 1888,-it is to be observed that in fact the old one was practically dissolved when the demurrer to its answer setting forth its reason for existence was sustained. and that was before any step was taken towards the new incorporation. The

final judgment on the demurrer was not entered till nearly a year after the demurrer was sustained, but the right to it was apparently acquiesced in, and in the mean time the new corporation had been formed. This virtually brings the case within the doctrine of King v. Pasmore, 3 Term R. 199, where the grant of a new charter was sustained on the ground that the old corporation was in effect dissolved, though it had not been formally dissolved. But, independent of this, we think the law cited for appellant (1 Dill. Mun. Corp. 3d Ed. § 184, and note referring to King v. Pasmore, supra; Paterson v. Society, etc., 24 N. J. Law, 385; Taylor v. Fort Wayne, 47 Ind. 281) does not apply in this case; for, while it is true that the old corporation was one de facto, and that there cannot be two municipal corporations at the same time over the same territory, this must be understood as meaning two legal and effective corporations. The object of such a corporation is the good government of the locality, and obviously that cannot be attained where two separate corporations are exercising the same jurisdiction, powers, and privileges. On the contrary, it would lead to public confusion and disorder. But is there any reason to say that because there may be a de facto corporation in actual government, there may not also at the same time be a legal corporation entitled to govern? There may be a de facto officer, and at the same time another entitled to the office; and just as the latter, as relator, can have the state, by quo warranto, oust the former, and put such relator in as the rightful officer, so why may not a corporation legally organized replace in the same way one that is only de facto, having no legal existence? If it can do this, as we think it could, clearly that is not a case in which it is proper to apply the rule that two corporations cannot exist in the same place at the same time. makes no difference that in this case the proceeding to oust the old corporation was not by or in behalf of the new one. There was an ouster, and though this was after the new incorporation, that could not affect the legality of its organization any more than the legality of the appointment of an officer to an office occupied de facto, without right, would be affected by such occupancy. It may be said in the case of the corporation, as in the case of the officer, that the rights and franchises are in abeyance, to be fully vested for exercise when the de facto obstruction is removed. It is needless to consider other points argued by counsel, as in these views the case must be given to appellees; and accordingly the judgment will be affirmed.

It

REESE v. TAYLOR.

(Supreme Court of Florida. April 15, 1889.)

1. CHATTEL MORTGAGES-RECORDING.

Under the statute which provides that "no mortgage of personal property shall be effectual or valid to any purpose whatsoever," if the mortgage is not recorded, unless the property be delivered within 20 days after the execution of the mortgage, it is invalid, as well against the mortgagor as all others, if there be neither delivery nor record; but, no time being prescribed within which the record shall be made, it will be sufficient, as against the mortgagor, though made after the debt is due, if made before suit for foreclosure, and there are no circumstances, such as unreasonable delay, or the death of the mortgagor after undue lapse of time denoting laches, nor any fraud to impeach the transaction.

2. SAME.

The limitation of 20 days for the delivery of the property does not fix a limitation within which the record shall be made.

(Syllabus by the Court.)

Appeal from circuit court, Washington county; JAMES F. MCCLELLAN, Judge.

Liddon & Carter, for appellant. W. O. Butler, for appellee.

MAXWELL, J. Our statute in reference to chattel mortgages provides that "no mortgage of personal property shall be effectual or valid to any purpose whatever, unless such mortgage shall be recorded in the office of records for the county in which the mortgaged property shall be at the time of the execution of the mortgage, unless the mortgaged property be delivered at the time of execution of the mortgage, or within 20 days thereafter, to the mortgagee. and shall continue to remain truly and bona fide in his possession." McClel. Dig. § 1, p. 213. This, in the original act of 1828, follows section 4 of that act, which is still in force, and provides that "no conveyance, transfer, or mortgage of real property, or of any interest therein, shall be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration, and without notice, unless the same shall be recorded in the office assigned by law for that purpose." McClel. Dig. § 6, p. 215. The marked distinction which appears in the same act between a mortgage of personal property and a mortgage of real property, as to the effect of failure to record the mortgage, shows an unmistakable purpose in the legislature to put the mortgages on a different footing; yet it is difficult, when the usual purpose of a record is considered, that is, the giving of notice to others than those engaged in the transaction,- to conceive why it is declared that no mortgage of personalty shall be effectual or valid to any purpose whatever, if there is not a delivery of the property, unless the mortgage be recorded. As between the parties to the mortgage, no notice is necessary. The object being to guard against fraud, record notice must be intended to assist that object, and obviously that is not needed to protect the parties themselves. Still, there is no escape from the plain words of the statute,-not "effectual or valid to any purpose whatever;" and even as between the parties to the mortgage, where the property is not delivered, it can have no efficacy, if not recorded, thus reaching beyond the scope of the usual statutes for the protection of creditors and subsequent purchasers, and including the mortgagor. Weed v. Standley, 12 Fla. 166.

In this case there was a foreclosure of a mortgage on personalty, the property not having been delivered, and no valid record of the mortgage made till after the debt it was given to secure became due. There had been a previous record, but without any proof or acknowledgment of the execution of the mortgage, and it was therefore without validity as a record. The simple question, decisive of the case on its merits, is whether the mortgage became effectual when recorded after the mortgage debt accrued due. We think it did. There is nothing in the statute, nor in any law of the state, prescribing or limiting the time within which the record should be made. The mortgagee had an inchoate right, dependent upon his having the record made, and it could not affect any right of the mortgagor, whether made before or after the debt was due. As between them, the date of the record was of no moment, if made before the institution of the suit for foreclosure, as was done in this case. The fact that to make the mortgage valid and effectual there should be a recording, if the property is not delivered within 20 days after its execution, cannot be regarded as fixing that as a period within which to have the record made. Just as a mortgage given to secure a note past due would be valid, so this one, perfected by a right still existing in the mortgagee, should have the same efficacy. There might be cases in which it would appear that there had been unreasonable delay in having the record made, or cases in which the death of the mortgagor prior to the record, and after the lapse of ample time for it during his life, would become of consequence; and in these cases, denoting laches, a more rigid application of the statute might be proper. But since we find an effort, though ineffectual, to have a record of the mortgage in reasonable time, which shows the absence of any purpose of concealment, we think there is no occasion for such application in this case. So, there might be cases where it would appear that the transaction

was for a fraudulent purpose, but nothing of the kind appears in this case; but, if it did, a court would be loath to permit the mortgagor to shelter himself behind his own fraud, if the debt itself is a bona fide one, the contrary of which is not pretended here.

It is our opinion the decree should be affirmed; and it is so ordered.

LUMBLEY . THOMAS.

(Supreme Court of Mississippi. October, 1887.1)

LIENS-ON CROPS-LABORERS' LIENS.

A person employed to do general work on a plantation, who assists in making, gathering, and ginning the cotton grown thereon, is entitled to a lien on the cotton, under Code Miss. § 1360, providing that every employé, etc., who may aid by his labor to make, gather, or prepare for sale any crop, shall have a lien on the interest of the person who contracts with him for his wages, paramount to all other liens except the landlord's lien for rent and supplies.

Appeal from circuit court, Yazoo county; T. J. WHARTON, Judge. Action by J. M. Thomas against R. W. Lumbley to enforce his lien as a laborer on certain cotton. The facts of the case are as follows: Plaintiff was employed by one Smith in 1886 to do general work on his plantation, and assisted in making, gathering, and ginning the cotton in question. This cotton was seized by defendant as trustee under a deed of trust executed by plaintiff in favor of Kling & Co. A lien was adjudged in plaintiff's favor, and defendant appeals. Code Miss. § 1360, provides as follows: "Every employé, laborer, cropper, part-owner, or other person, who may aid by his labor to make, gather, or prepare for sale or market any crop, shall have a lien on the interest of the person who contracts with him for such labor for his wages, or share, or interest in such crop, whatever may be the kind of wages or the nature of such interest; and such liens shall be paramount to all liens or incumbrances or rights of any kind created by or against the person so contracting for such assistance, except the lien of the lessor of the land on which the crop is made for rent and supplies furnished, as provided in the act in relation to landlord and tenant."

Bowman & Bowman, for appellant.

CAMPBELL, J.

Prewett & Henry, for appellee.

Thomas was employed as a wages hand and general laborer, and aided by his labor to prepare for market the cotton in controversy, and by section 1360 of the Code had a lien on it. Affirmed.

CARROLL et al. v. BOTSAI.

(Supreme Court of Mississippi. October, 1887.1)

WILLS-CONSTRUCTION-DEVISE SUBJECT TO LEGACY.

A will contained the following provision: "I bequeath to my beloved wife all that lot of ground in N., [describing it,] and I also bequeath to my beloved wife all my lands known as Prospect Hill' plantation," together with certain personal property thereon, "including all the house-servants except those conveyed to M. and J. by me this day. This bequest is subject to a legacy to M. and J. of $300 per annum. Held, that only the "Prospect Hill" plantation was subject to the legacy.

** *

Appeal from chancery court, Adams county; WARREN COWAN, Chancellor. Bill in chancery by Jane N. Carroll and her husband against Paul Botsai to subject certain land to the payment of a legacy. In 1856 John Robson died,

'Publication delayed by failure to obtain copy of opinion at time of delivery.