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tresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and hers is almost the only estate on which, when derived from the king's debtor, the king can

not distrein for his debt; if contracted during the cover[ * 139 ] ture (m). But, on the other *hand, a widow may enter at

once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesia, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in its primitive state : whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower (n). And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow (o). Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiæ, the most eligible spe

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cies of any.

(m) Co. Litt. 31 a; F. N. B. 150.

(n) Co. Litt. 36.

(0) Ibid. 37.

140

CHAPTER IX.

OF ESTATES LESS THAN FREEHOLD.

sorts of estates

freehold.

Op estates that are less than freehold, there are three sorts : There are three 1. Estates for years ; 2. Estates at will; 3. Estates by suf- that are less ferance.

I. An estate for years is a contract for the possession of 1. An estate for lands or tenements, for some determinate period; and it a contract for takes place where a man letteth (1) them to another for the of lands or teneterm of a certain number of years, agreed upon between determinate pethe lessor and the lessee (a), and the lessee enters there

years—

the possession

ments, for some

-or"

(a) We may here remark, once for that maketh a feoffment; the feoffee all, that the terminations of"

is he to whom it is made : the donor and “. ee" obtain, in law, the one is one that giveth lands in tail ; the an active, the other a passive signifi. donee is he who receiveth it : he that cation; the former usually denoting granteth a lease is denominated the the doer of any act, the latter, him to lessor ; and he to whom it is granted whom it is done. The feoffor is he the lessee. (Litt, s. 57.)

171 ;

(1) Of course our author will be un- Doe v. Nicholls, 1 Barn. & Cress. derstood to put this case of letting, 342; 2 Dowl. & Ryl. 488.) Though, only as a particular instance of one in such case, if a gross sum ought mode in which an estate for years may to be paid at a fixed time, and the be created. (See post, p. 143.) There annual rents and profits will not are obviously various ways in which enable them to make the payment such an estate may arise. Thus, where within that time, the Court of Chana person devises lands to his execu- cery will direct a sale or mortgage of tors, for payment of his debts, or un- the estate, as circumstances may rentil his debts are paid, the executors

der one

course or the other most take an estate, not of freehold, but proper. (2

(Berry v. Askham, 2 Vern. for so many years as are necessary to 26; Sheldon v. Dormer, 2 Vern. 311; raise the sum required. (Carter v. Green v. Belchier, 1 Atk. 506; Allan Barnardiston, 1 P. Wms. 509 ; Hit- v. Backhouse, 1 Ves. & Bea. 75; Bootle chens v. Hitchens, 2 Vern. 404 ; S. C. v. Blundell, 1 Meriv. 233.) 2 Freem. 242 ; Doe v. Simpson, 5 East,

Of the division of time.

a

on (6). If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of (c). And this may, not improperly, lead us into a short digression, concerning the division and calculation of time by the English law.

The space of a year is a determinate and well-known pe

riod, consisting commonly of 365 days : for, though in bis[ * 141 ] *sextile or leap-years it consists properly of 366, yet, by the

statute 21 Hen. III, the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacks, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for “twelve months” is only for forty-eight weeks: but if it be for a twelvemonth" in the singular number, it is good for the whole year (d). For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution (2). In the space of a day, all the twenty-four

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(6) Litt. 58.

(c) Ibid. 67.

(d) 6 Rep. 61.

(2) Mr. Christian, in his note upon the passage in the text, observes, that “ in all statutes a month signifies a lunar month, unless it appears to be clearly intended to be a calendar month.” And he cites, as his authority, the case of Lacon v. Hooper, (6 T. R. 226,) where Lord Kenyon says, that the calculation by calendar, instead of lunar months, in the instance

of a quare impedit, depends upon the use of the words tempus semestre in the act of 13 Edw. I. st. 1, c. 5. But, in Lang v. Gale, (1 Maul. & Sel. 117,) Mr. Justice Le Blanc observed, in matters temporal, the term "month" is understood to mean lunar month, whilst in matters ecclesiastical it is deemed calendar, because in each of these matters a different mode of comin Doe v.

hours are usually reckoned, the law generally rejecting all

putation respectively prevails : (see days. (1 Inst. 135.) But six calendar post, p. 276 :) the term therefore months will be one or two days less or is taken in that sense which is con- more than half a year, accordingly as formable to the subject matter to February is reckoned, or not, one of which it is applied. Still, in matters the six. Lord Coke, in his report of of contract, the question will ever be, Catesby's case, clearly considers the what was the intention of the con- tempus semestre to be six calendar 'tracting parties at the time when they months ; (6 Co. 61 ;) yet Sir George made use of the word. And in the Croke, in his report of that case, states case just cited, though it related it as confidently to consist of 182 days; solely to a temporal matter, it was held and in neither report is the difference that the word “ months” meant calen- taken notice of. Cro. Jac. 167." dar, not lunar months. The usage But, in the report of the same case in of computing months as calendar Yelverton, (p. 100,) it is distinctly months, in all questions touching ec- stated, “ for the odd day in the diclesiastical matters, was recognised in vision of the year into halves, the law Crooke v. M Tavish, (1 Bing. 310,) does not regard it,” which is in conand in Cockell v. Gray, (3 Brod. & formity with the opinion of the Court Bing. 186,) the rule, that the meaning of Common Pleas, as reported in of the word “ month” must depend Dyer, 345 a,) who held, that“ 91 days on the intention of the contracting make a quarter of a year, and to the parties who use it, was held to be 6 hours over the law pays no regard." clear; and the court adduced many And, upon the occasion cited, an old instances in commercial matters, where book of the Exchequer was shown, a calendar month is always intended, containing the following note:“ every as in bills of exchange, payable so quarter of a year containing in it many months after date, or in in. ninety and one days, which make 13 surances effected for so many months. weeks ; and half a year containing Anditis too general an assertion to say, 182 days ; but the year 365 days and that, in the construction of statutes, 52 weeks." It should be observed, the word “month" must always be that Catesby's case, which Mr. Chrisunderstood to mean á lunar month, tian alludes to, was a case of quare unless it appears clear that a calendar impedit, brought to contest a bishop's month was intended : it rather seems right to collate to a living; and we to be the practice to make a different have seen, that in such, and in all exposition of the word, whenever by other ecclesiastical questions, the comso doing the penalties or forfeitures putation is to be made by calendar declared by a statute will be avoided. months. Mr. Christian further men(Davy v. Salter, 3 Salk. 346; The tions, that, “ from the cases in 3 Wils. King v. Cussens, 1 Sid. 186 ; Biddulph 25, and 1 T. R. 159, it

appears

that v. St. John, 2 Sch. & Lef. 529; Dow- a notice to a tenant from year to year ling v. Foxall, 1 Ball & Beat. 195 ; to quit the premises, must be half a Burton v. Woodward, 4 Mod. 96.) year, and not six calendar months,

Mr. Christian further observes, that though the computation by the latter " it is somewhat remarkable that the would be more simple and convenient; difference between six calendarmonths and that was understood to be the and half a year does not seem to have proper notice by the Court of Com. been considered by legal writers. Lord mon Pleas, in 2 Bl. Rep. 1224.” But Coke says, half a year consists of 182

Spence, (6 East, 123,) Lord

a

fractions of a day, in order to avoid disputes (e) (3). Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay

it before twelve o'clock at night; after which the following day commences (4). But to return to estates for

years.

(e) Co. Litt. 135.

Ellenborough said, that the rule of Beat. 196,) as well as in Ex parte law, which originally was, that a ten- Fallon, (5 T. R. 287,) that whenever ant was entitled to reasonable notice a right would be devested, or a forto quit his occupancy, received a pre- feiture incurred, by including the day cise construction so long ago as in the when an act was done, the computareign of Henry VIII., in a case in the tion will be made exclusive of it; and, Year Books, deciding that it should on the other hand, in construing that be half a year's notice (and see post, section of the statute of 6 Geo. IV. c. p. 147). The usage of a particular 16, which enacts that all conveyances district, however, where the contract by a bankrupt shall be invalid, unless between landlord and tenant is en- made more than two months before tirely silent on the subject, may make the issuing of the commission, it has a shorter notice sufficient. (Webb v. been determined, that where, under Plummer, 2 Barn. & Ald. 750 ; Brown that statute, time is to be computed v. Burtinshaw, 7 Dowl. & Ryl. 610 ; from an act done, the day on which Senior v. Armytage, Holt's N. P. C. the act is done should be included in 199).

the computation: and, upon this prin(3) In Ex parte Dufresne, (1 Ves. ciple, a mortgage executed on the 18th & Bea. 54,) it was held, as it had pre- of February by one, against whom a viously been in Wydown's case, (14 commission issued on the 18th of April Ves. 88,) that a commission of bank- following, was declared to be valid, rupt may be sustained, if it appear that and within the protection of the the act of bankruptcy was committed statute. (Ex parte Farquhar, 1 Mont. on a previous part of the same day on & M'Arth. 8. And see ante, the which the commission was sealed. It note to Vol. I. p. 463.) is certain, however, that our law re- (4) The application of the rule laid jects fractions of a day more generally down in the text has never been disthan the civil law does.

In our or- puted as concerning ordinary condinary courts the day is, for most tracts; but it has been made a queslegal purposes, considered as a sort tion, whether there be or not a diffeof indivisible point, so that no act done rence between bills of exchange and in the compass of it is more referrible other contracts, in this respect : to one than to another portion there- (Leftly v. Mills, 4 T. R. 173; Haynes of: (Lester v. Garland, 15 Ves. 257; v. Birks, 3 Bos. & Pull. 602.) It Reynolds v. Nelson, 5 Mad. 61; Fox seems, however, now to be established, v. Morewood, 2 Sim. & Stu. 326 :) but that such a difference does exist; and there are cases in which it may be ab- that, although debts upon ordinary solutely necessary to determine the

contracts, (as, for instance, rents,) are rights of the parties by their actual not due till the last instant of the day; priority on one and the same day. (Ex (Duppa v. Mayo, 1 Saund. 287; parte D'Obree, 1 Ves. 83.) It was Maund's case, 7 Rep. 113; Wood & held in Dowling v. Foxall, (1 Ball & Chiver's case, 4 Leon. 180 ;) still,

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