[139] Leicester. Mo. 878. 1 Brnl. 156. Cap. 13. 5 Co. 1. b. 1 Leo. 184. [140] NORRIS VS. THE HUNDRED OF GAWTRY. When time is to be computed from an act done, the day of the act is to be included. NORRIS brought a writ upon the statute of hue and cry against the hundred of Gawtry, and the robbery was laid, as it was indeed, 9 Octob. 13 Jac. And the teste of the writ was 9 Octob. 14 Jac. And after a verdict for the plaintiff, it was moved by Harvey that the writ was not brought within the year after the robbery committed, which are the very words of the statute 27 Eliz. And it was agreed that in the case of protection the year should be counted from the day of the date; and so in deeds enrolled, the day of the date shall not be counted any part of the six months. And justice Warberton held it so also in this case. But justice Winch and I were of a contrary opinion, in cases that depended not upon writings dated, but upon time to be reckoned from acts done, as in this case from the robbery committed, which must be confessed was done upon the ninth of October 13 Jac. and there cannot be two ninth days of October in one year, and he might have brought this action the same first day without doubt. And though it is true, that a deed may be enrolled the very day of the date, yet that is by reason of the intent of the law, and not by the letIf a lease be made from the making of the lease, it takes effect presently, the same day, whether it be dated or no. So if the bargain and sale be not dated, the six months must be reckoned from the delivery. And though the party robbed deserve relief and pity, yet against the hundreds, which are innocent, it is a very penal law; and so the plaintiff could not have his judgment. (1) 11 Eliz. Dyer ter. 5 Co. 1. B. Ac- 46. b. Dyer, 218. b. (1) The rule adopted in the text is not universal in its application. There are, upon the subject of the computation of time, many conflicting cases which it is impossible to reconcile; but the general rule now adopted is, that words are to be construed according to their legal sense or ordinary import; and if this be doubtful, the intention of the parties is to govern in cases of contract, and that of the legislature when the question relates to the construction of a statute. If this intention is doubtful, such a construction is to be adopted, if the words will admit of it, as will save an estate, rather than create a forfeiture. 1 Pick. 494, Bigelow v. Wilson. Upon this principle it is now settled, though it was denied in some of the old cases, that the words from the [140 a] date, and from the day of the date,' when used in a lease to designate the commencement of a term, have the same meaning. Cowp. 714, Pugh & ux. v. Duke of Leeds. So in computing time from an act done, the day of the act is sometimes excluded. Thus in Massachusetts, it has been held that in computing the time allowed by st. 1815. c. 137. s. 1. for redeeming a right in equity sold on execution, which is 'within one year next after the time of executing, by the officer to the purchaser, the deed thereof,' the day on which the deed is executed is to be excluded. 1 Pick. 485, Bigelow v. Wilson. So in the same State, in computing the thirty days from a judgment, during which property attached on mesne process is holden, the day on which the judgment was rendered is excluded. 11 Mass. 204, Portland Bank v. Maine Bank. And when a promissory note is given, payable in a given number of days, it is payable in so many days exclusive of the day of the date. 8 Mass. 453, Henry v. Jones. Chitty on Bills, 343. But in computing the six years mentioned in the statute of limitations, the words of the statute being within six years next after cause of action accrued,' the day on which the cause of action accrued is to be included; as an action might have been commenced on that day. 15 Mass. 193, Presbrey v. Williams. And in England where the st. 21. Jac. 1 c. 19. s. 2. enacts that a trader lying in prison two months after an arrest for debt, shall be adjudged a bankrupt, the day of the arrest is to be included in the computation. 3 East 407, Glassington v. Rawlins. See also 2 Camp. 294, Watson v. Pears. 3 Esp. R. 121, Cochran v. Retberg & al. 3 T. R. 623, Castle v. Burditt. Doug. 446, Rex v. Adderley. A year, in contemplation of law, consists of three hundred and sixtyfive days. A half year consists of one hundred and eightytwo days; and a quarter of a year, of ninetyone days; for there is no regard to a part or factions of a day. Com. Dig. Ann. A. Co. Lit. 135. a. b. In England when a statute speaks of a month generally, it will be intended of a lunar month. Com. Dig. Ann. B. but in Massachusetts, a month mentioned generally in a statute will be considered a kalendar month. 2 Mass. 170, Hunt v. Holden. 4 Mass. 460, Avery v. Pixley. THORNTON vs. JEBSON. To call a justice of the peace, or public officer, or attorney or the like, a common Case. 3 Cr. 171. Yelv. 90. THORNTON brought an action of the case against Jeb- 1 Cr. 228. son, and laid, that where he was a carrier, and a man of Hetl. 139. Mo. honest fame, that the defendant had said of him, that he 180. 1 Roll. 59. was a common barrator. Now we were of opinion, that Accord. if those words were spoken of a justice of peace, or public rator. 1 Cro. officer, or of an attorney or the like, that they would bear journment. an action. (1) (1) As barratry is an indictable offence, and as any common person may be a common barrator, it seems that such words are also actionable when spoken of other persons as well as when spoken of officers, &c. Common bar 191. 2. Ad 1 Roll. 59. [168] Somerset. Moor. f. 880. STUKELEY vs. BUTLER. A scilicet cannot restrict a grant where the former words are express and special. Secus, where the former words are so indifferent that they may receive such a restriction without apparent injury. A scilicet may particularize what before was general, or distribute what was in gross, or explain what was uncertain; but it must not be inconsistent with the premises. Where the premises of a grant are special and express, they cannot be restrained or frustrated by a distinct clause of the instrument; secus, where the premises are general and implied. One part of a continued or connected clause or sentence may be restrained or frustrated by other parts of the same clause or sentence; but where there is a grant of a particular thing, once sufficiently ascertained, the addition of an allegation, mistaken or false, concerning it, though in the same sentence, will not frustrate the grant. After a grant, an affirmative covenant of the grantor does not restrain the power or take away any interest of the grantee. A grant of all the wood growing on the grantor's manor, which can be conveniently spared without prejudice to the estate, is void for uncertainty Semb. Secus, of a covenant or executory grant that the covenantee may take such trees. SIR THOMAS STUKELEY brought an action of trespass against Robert Butler, for selling of certain oaks and ashes, &c. at old Cleave; whereunto the defendant pleaded not guilty; and upon a special verdict the case was thus.The Earl of Sussex, 36 Eliz. was seised of the manor of Cleave, whereof a messuage called Stout, and one hundred acres usually occupied with it, and seven hundred more, and certain woods called Blagrave, Pitchill, Erridge, Bore, and Readwood, all lying in Cleave, were [169] parcel; and the same year did demise unto Robert Butler [168 a] and Julian his wife, and Robert their son, now defendant, the said house and all the lands, and Blagrave and Pitchill wood, for their lives, (excepting all timber trees ;) and then, the same year, by indenture, did bargain and sell to Edward George, omnia illa, boscos, subboscos, maeremium et arbores sua tunc stant. crescen. et existen. in et super toto illo manerio suo de Cleave, in dicto com. Somerset, viz. in et super tota illa copicia sua, sive bosco vocato le Erridge Wood, cont. 24 acr., et in et super toto illo bosco vocat. Boorwood, cont. 10 acr., ac in et super toto illo bosco suo vocat. Blagrave Wood, cont. 6 acr., et etiam in et super toto illo alio bosco suo vocat. Pitchill Wood, cont. 7 acr. una cum omnibus aliis boscis et subboscis, maeremio et arboribus stant. et existen. super præd. manerio de Cleave que convenienter parcari poterint et succidi sine præjudicio et damno ad statum et manuten. Anglice, the state and maintenance, dicti manerii de Cleave; and a covenant of the part of the Earl, that the said George and his assigns, during five years, may fell and carry the woods without interruption of the Earl, or any others; and to make sawing pits, and to square and cut the timber upon the ground during the said term; and a covenant on the part of the lessee, that he should fill up the pits, and make all things fair, and amend the fences that should be broken during the said term of five years. Then George, ann. 38. did bargain and sell all the woods to Prowse; and Prowse, the same year, did bargain and sell to Robert Butler, the father, all the woods in Blagrave and Pitchill Wood, and in the seven hundred. acres; so the woods in the hundred acres, going with the house, and in the other three woods, remain still with Prowse; who after, anno 40 Eliz. did bargain and sell unto the Earl of Sussex all the woods by him sold unto George, except those he had sold, as aforesaid, to Butler the fath er. Then Butler the father, by his will, did give unto Butler his son, the defendant, his woods. And the earl, 30 Jac. did bargain and sell by deed enrolled, unto Sir Thomas Stukeley, the reversion of the said lands, and all [169 a] his woods, for two thousand four hundred and twenty pounds, to which Butler the father attorned; and then he and his wife died, and Robert Butler the son, and Lewis the other defendant, as his servant, by consent of Trevilian and others, the executors of his father, felled certain of the trees in the declaration, which was timber at the time of the grant in Blagrave Wood and Pitchill Wood, and other of the trees in the seven hundred acres.' And the jury assessed damage severally for the trees severally felled in either wood, and for those in the seven hundred acres, which was well and advisedly done. The first point, or question. The second point, or question. The first point, or question. Upon this whole cause I am of opinion, that the defendant had good title to all the trees felled, as well those in the seven hundred acres, as in the two groves; and that therefore the plaintiff is to be wholly barred. I make but two questions; the first, whether the viz. hath power to restrain the general grant of all the woods. upon the whole manor, to the woods only growing upon the five groves; or that the same general clause being certain and express shall make void the viz. And I am of opinion, that the viz. as the whole sentence is, is utterly void. The second question is, whether the covenant on the part of my lord of Sussex with George, to take the trees, &c. within the five years next after the grant, shall so check and control the grant, that he may not take the trees after the five years; and I am of opinion clearly that it doth not control the grant, but that as the trees are absolutely given, so the bargainees and their assigns may take them when they will. Thirdly, I will give you my opinion concerning that part of the clause that runneth under the una cum omnibus aliis, &c. upon which I hold that that part of the clause giveth nothing, because it is void for uncertainty; and yet it hurteth not the former clause, because it is distinct, and standeth of itself, divided in his power and operation from the other. As to the first point, whether the viz. doth restrain the general grant of all the woods, upon all the manor, to the woods upon the copices only. |