THIS case came up by writ of error, from the circuit court of the United States for the district of Missouri.
The case is stated in the opinion of the court.
It was argued by Mr. Crittenden, for the plaintiffs in error, and Mr. Geyer, for the defendants.
Those of Mr. Crittenden's points, which were included in the decision of the court, were the two following:--
1. Because the judgments themselves were void, so far as they related to, or affected the lands, tenements, or hereditaments of the intestate; or, if not, that the executions issued thereon, dated respectively, the 28th of February, and 9th of April, 1821, under or in virtue of which the sheriff sold the land in question, were illegal, null and void, because issued before the expiration of eighteen months from the date (1st of November, 1819,) of the letters of administration of the estate of said intestate, and were therefore issued in direct violation of the express provisions of the before-recited act of the 25th of January, 1817; 8 Metcalf, 502.
2. Because the sale, in virtue of which said deed purports to have been executed, was made on the 1st day of May, 1821, and before the expiration of eighteen months from the date, (1st of November, 1819,) of the said letters of administration, contrary to the express terms of the said act of 1817, and was, therefore, illegal and void.
The only questionable part of this proposition is, whether the 1st of May, 1821, is a day after the expiration of eighteen months from the 1st of November, 1819, or included in, and part of the period. The reasonable and legal rule of computation of time in such cases, is to exclude the first day, that is, the day of the event or act from which the computation is to be made. It is but the fraction of a day, and the law takes no notice or account of it. This is believed to be the rule as now settled by judicial discussions in Missouri. Gantly v. Ewing, 3 How. 707; Kennon v. Osgood, 19 Mo. R. 60; Blaine v. Beehler, 12 Mo. R. 477.
Upon the principal point in the case, Mr. Geyer said:--
The sale was made on the 1st of May, 1821, which was after the expiration of eighteen months, from the death of the intestate, or the date of the letters of administration, (1st of November, 1819,) construing the act of 1817 according to the rules and principles which have been recognized and applied in analogous cases.
It has been laid down in many cases as a general rule, that where time is to be computed from an event or an act, the day of the event or the performance of the act is to be included. Norris v. The Hundred of the Gawthry, Hobart, 139; King v. Adderly, Douglass, 463; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlings, 3 East, 407; Priest v. Tarlton, 3 N. H. Rep. 93; Thomas v. Afflick, 16 Pa. R. 14; Robinet v. Compton, 2 La. An. R. 856; Pierpoint v. Graham, 4 Wash. C. C. Rep. 232; Arnold v. United States, 9 Cranch, 104.
In some cases, the rule has been held to be, to exclude the day of the act or event from the computation; in others, the day has been excluded without laying down any general rule. King v. Cumberland, 4 Nov. and M. 375; Judd v. Fulton, 10 Barl. 117; Wing v. Davis, 7 Maine, 31; Ex parte v. Deane, 2 Cowen, 605; Cornell v. Moulton, 3 Denio, 12; Snydor v. Warren, 2 Cowen, 518; S. B. Mary Blane v. Beehler, 12 Mo. R. 477; Kimm v. Osgood's Administrators, 19 Mo. R. 60.
But it has been denied that there is any general rule, that the day of the act or event from which time is to be computed is to be included or excluded, and held that whether it is to be taken inclusive or exclusive, depends upon the reason of the thing, the context, and subject-matter. Lester v. Garland, 15 Vesey, Jr., 248; Dowling v. Foxall, 1 Ball & Bealty, 196; Windsor v. China, 4 Maine, 298; Bigelow v. Wilson, 1 Peck, 485; Presbury v. Williams, 15 Mass. 193; Jones v. Planters' Bank, 5 Humphries, 619; O'Conner v. Towns, 1 Texas, 107.
In the earlier cases, 'from the date' was generally held to be inclusive, and 'from the day of the date,' exclusive, but the doctrine now most generally received is, that there is no difference in the two forms of expression, both meaning the same thing; and in the computation of time on promissory notes and bills of exchange, the day of the date has generally been excluded; in other instances, it is held to be inclusive or exclusive, according to the context and subject-matter. Pugh v. Duke of Leeds, Cowper, 714, and cases there cited and reviewed; Rand v. Rand, 4 N. H. 267; Moore v. Bond, 18 Maine, 142; Wilcox v. Wood, 9 Wend. 346.