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Commercial Bank v. Ives

2 Hill & Den. 355 Court N.Y. Sup. Ct. English

Delivered by Cowen, J.

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p. 355
The Commercial Bank of Oswego vs. Ives.

Headnote

A fi. fa. cannot be issued under the act of May 14th, 1840, (fifess. Laws of ’40, p. 334, § 24,) until after the expiration of 30 full days from the entry of judgment; and in the computation of time, the day on which the judgment is entered is to be excluded.
Accordingly, where a judgment was entered on the 27th of October, upon which a fi. fa. was issued on the 26th of November thereafter ; held, irregular, as the time required, viz. 30 days, could not be said to have expired until the 27th.
As a general rule, however, in the computation of statute time, the first day should be excluded and the. last included.
Motion to set aside a fieri facias. Judgment was entered in this court in favor of the plaintiff on the 27th of October, 1841, and on the 26th of November thereafter, stfi.fa. was issued by the plaintiff’s attorney.
W. F. Allen, for' the defendant,
moved to set aside the execution, on the ground that, when it issued, the 30 days required by the statute, (<$'ess.. Laws of 1840, p. 334, § 24,) had not expired.
Duer Babcock, for the plaintiff.

By the Court,

The language of the statute is, that writs of a fi. fa. may be issued, <fcc. “ after the ex

p. 356
piration of thirty days from the entry of such judgment.” According to the rule of construing statutes adopted by this court, the computation of the 30 days excludes the day of entering the ■judgment; in other words, as to the first and last days, one is to be counted exclusively and the other inclusively. On this principle of computation, the .30 days which are to expire were not full in the case at bar till the 26th of November. (Ex parte Dean, 2 Cowen’s Rep. 605 et seq. and the cases there cited. Homan v. Liswell, 6 id. 659. Wilcox v. Wood, 9 Wend. 346 , 348. Columbia Turp. Road v. Haywood, 10 id. 422, 3 .) The cases are not uniform either in England or this country;([1] ) but the rule stated, is settled by our own decisions.

.The statute in question requires the expiration of this time, viz. 30 days. And it could not be said to have expired till the 27th of November. (Vid. Small v. Edrich, 5 Wend. 137 , in connection with The Col. Tump. Road v. Haywood, cited supra.) The execution was therefore irregular, and must be set aside with costs.

Rule accordingly.([2] )

a a (a) See The Portland Bank v. The Maine Bank, ( 11 Mass. R. 204 ;) Presbrey v. Williams, (15 id. 193 ;) Bigelow v. Willson, ( 1 Pick. 485 ;) Comm’th v. Keniston, ( 5 Pick. 520 ;) Hampton v. Erenzeller, (2 Browne’s Rep. 18 ;) Ryman v. Clark, ( 4 Blackf. Rep. 329 ;) Jacobs v. Graham, (1 id. 392 ;) Arnold v. The United States, (9 Granch, 104 ;) Pierpont v. Graham, (4 Wash. G. G. Rep. 232 ;) 3 Chitty’s Gen. Pr. 108 to 110 ; 1 Cowen’s Treat. 262,3, 2d ed.; 2 Bouvier’s Law Diet. 439, tit. “ Time."

b b (b) The rule of computation applied in the principal case agrees with what Mr 'Chitty thinks is the doctrine in England under a statute containing similar phraseology to the one in question. He says, (3 Chitty's Gen. Pr. 109,) that “ in construing the 2 W. & M. Sess. 1, c. 5, authorizing a landlord to sell a distress * after such distress and notice as aforesaid, and the expiration of the said five days,’ the day of making the distress is to be excluded, and after allowing the five following clear days, the sale should not be until the seventh day”—citing Pitt v. Skew and others, (4 Barn. & Ald. 208.)

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