Hour of Marriage or Death May Be Shown. Where, in order to do justice between parties, it becomes necessary to ascertain the time of a marriage or death, inquiry will be made as to the precise hour of such marriage or death.1 Hour of Performance of a Contract May Be Shown. - Where time is material to a contract, the exact hour of performance may be shown.2 Time When Liens Attached or Conveyances Were Executed May Be Shown. In order to ascertain the priority of liens or conveyances, the law will take notice of the fractions of a day,3 and will inquire into the precise time when a judgment is entered or docketed, a mortgage or other conveyance executed or recorded,4 sum of money on the false representations that a similar sum was due them from the United States government, as and for a drawback, and that they would pay to the plaintiffs the amount of the drawback when the sum should be paid to them by the United States. The evidence showed that the defendants made the representations and received the money from the plaintiffs, and also received the drawback on the same day. It was held that this was not sufficient, that the plaintiffs, in order to recover, were bound to show that the drawback was received before the representations were made. Richards v. Fox, 52 N. Y. Super. Ct. 36. 1. Inquiry Will Be Made as to the Precise Time of a Marriage or Death. — Viner's Abr., Time, A 17; Roe v. Hersey, 3 Wils. 274; Chick v. Smith, 8 D. P. C. 337; Matter of Richardson, 2 Story (U. S.) 578; Lanning v. Pawson, 38 Pa. St. 480; Patterson's Appeal, 96 Pa. St. 93; Matter of Welman, 20 Vt. 655. If the ancestor died at five o'clock in the morning, and the heir entered his land at six o'clock, and made a lease at seven o'clock of the same day, the lease is good. Roe v. Hersey, 3 Wils. 274. * * * "If a woman makes a deed of her land in the morning, and is afterwards married or dies on the same day, the deed is good. So if the ancestor and his immediate heir both die on the same day, and the inheritance would pass to different persons according to the survivorship of the ancestor or the heir, then the actual fact which survived the other may be proved so as to pass the inheritance to the proper party entitled thereto. Nay, the question of survivorship may often, in the absence of direct proof, be decided by mere presumption, from age, sex, constitution, and other circumstances, where both perish by the same common calamity, as by the foundering of the ship, at sea, in which they are both embarked." Matter of Richardson, 2 Story (U. S.) 578. 2. When Material the Precise Time of the Performance of a Contract May Be Shown. - Grosvenor v. Magill, 37 Ill. 239. In this case it was held that when parties contracted for the performance of an act during the first half of August, they contracted that it should be performed by noon of the 16th of that month; consequently, an offer to perform the act at a quarter before one o'clock P. M. on the 16th of August was not a fulfilment of the contract. ] See the title INTERPRETATION AND CONSTRUCTION. 3. Haden v. Buddensick, 49 How. Pr. (N. Y. C. Pl.) 246; Clute v. Clute, 4 Den. (N. Y.) 244. See the titles LIENS; RECORDING ACTS. 4. Precise Time of Judgment May Be Shown. While, as a general rule, judgments entered on the same day will be regarded as entered at the same time, the rule is not universal, and in many instances courts have inquired as between different judgments of the same date the precise time when they were rendered or docketed. Clute v. Clute, 4 Den. (N. Y.) 244; Bates v. Hinsdale, 65 N. Car. 423; Biggam v. Merritt, Walk. (Miss.) 430, 12 Am. Dec. 576. See the title JUDGMENTS AND Decrees. In Patterson's Appeal, 96 Pa. St. 93, it is held that where a judgment is entered on the same day but after the death of the defendant debtor, the legal fiction of a relation of judge ments does not apply, and it is not entitled to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors. In an issue as to whether a judgment upon a warrant of attorney was entered before the death of the defendant therein, it was held not error to admit the testimony of the clerk who entered the judgment, that it could not have been entered earlier than eight o'clock in the morning. Lanning v. Pawson, 38 Pa. St. 480.. But in an English case, where judgment was signed at the opening of the office at the usual hour, eleven A. M., and the defendant died at half-past nine A. M. on the same morning, it was held that the judgment was regular. Wright v. Mills, 4 H. & N. 488. See the title RELATION. In Pennsylvania it has been held that when a judgment and a mortgage are entered on the same day, they will be regarded as taking effect simultaneously, and as entitled to be paid pro rata. Claason's Appeal, 22 Pa. St. 359; Hendrickson's Appeal, 24 Pa. St. 363. See the title RELATION. In Alrichs v. Thompson, 5 Harr. (Del.) 432, it was held that a judgment is a lien during the entire day of its entry, and has priority over a mortgage recorded on that day. As Between Judgment and Conveyances. Where a conveyance of land is made on the same day on which a judgment lien attaches, proof of the time when the judgment was rendered or docketed, and of the time of the execution of the conveyance, may be received to determine which has priority. Duke v. Clark, 58 Miss. 465; Clark v. Duke, 59 Miss. 576; Hoppock v. Ramsey, 28 N. J. Eq. 413; Mechanics' Bank v. Gorman. 8 W. & S. (Pa.) 304; Long's Appeal, 23 Pa. St. 301; Small's Appeal, 24 Pa. St. 400; Boyer's Estate, 51 Pa. St. 432, 91 Am. Dec. 129; Ladley v. Creighton, 70 Pa. St. 490; Miller v. Estill, Meigs (Tenn.) 483; Murfree v. Carmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232; Berry v. Clements, 9 Humph. (Tenn.) 312. As Between Different Conveyances. When different mortgages or conveyances are re or an execution or attachment issued.1 Precise Time of Bringing Action May Be Shown. It is no objection to an action that it was brought on the same day that the cause thereof accrued, provided it was brought after such event.2 When a Statute Goes into Operation. In England and Canada it has been held that a statute which takes effect from and after its passage goes into operation the day on which it is approved, and has relation to the first moment of that day. 3 In the United States the decisions are not harmonious, some of them supporting the rule as stated, while others hold that a legislative act takes effect from corded on the same day, the precise time when each is recorded will be inquired into, and the one first recorded will be entitled to priority. Lemon v. Staats, I Cow. (N. Y.) 592; Clute v. Clute, 4 Den. (N. Y.) 244. See also Naylor v. Throckmorton, 7 Leigh (Va.) 98, 30 Am. Dec. 492. See generally the title RECORDING ACTS. 1. As Between Different Executions or Attachments. As between two executions or attachments on the same day, the court will notice the fractions of a day in order to ascertain which has priority. Swain V. Morland, I Brod. & B. 370, 5 E. C. L. 122; Brainard v. Bushnell, II Conn. 16; Tufts v. Carradine, 3 La. Ann. 430; Bigelow v. Willson, I Pick. (Mass.) 485; Lemon v. Staats, I Cow. (N. Y.) 592; Columbia Turnpike Road v. Haywood, 10 Wend. (N. Y.) 422; Clute v. Clute, 4 Den. (N. Y.) 241; Mifflin v. Will, 2 Yeates (Pa.) 177: Ulrich v. Dreyer, 2 Watts (Pa.) 303; Callahan v. Hallowell, 2 Bay (S. Car.) 8; Matter of Welman, 20 Vt. 655. See the titles ATTACHMENT, vol. 3, p. 225 EXECUTIONS. Executions issued upon the same day, and delivered to the sheriff at different periods of the day, must be paid out of the proceeds of the sale of personal property in the order as to time in which they came into the sheriff's hands. Ulrich. Dreyer, 2 Watts (Pa.) 303. See Converse v. Michie, 16 U. C. C. P. 167; Barrett v. Merchants' Bank, 26 Grant's Ch. (U. C.) 409. As Between an Act of Bankruptcy and an Execution or Attachment. Where there is an act of bankruptcy and also an execution or attachment against the goods of the bankrupt on the same day, and the question arises as to which has priority, the court will inquire, as to each, into the actual time of the day to determine which is prior. Ex p. D'Obree, 8 Ves. Jr. 82; Sadler v. Leigh, 4 Campb. 197; Thomas v. Desanges, 2 B. & Ald. 586; Ulrich v. Dreyer, 2 Watts (Pa.) 303; Matter of Welman, 20 Vt. 655. So where a bankrupt's goods had been seized on execution or attachment, and the question is whether more or less than a certain number of months had elapsed between the seizure and the time when he went into bankruptcy, the court will, in making the computation, notice the fractions of a day. Godson v. Sanctuary, 4 B. & Ad. 255, 24 E. Č. L. 53; Westbrook Mfg. Co. v. Grant, 60 Me. 88, 11 Am. Rep. 181. As Between an Attachment and a Bill of Sale. So where an attachment was served and a bill of sale executed on the same day, it may be shown that the attachment was served before the execution of the bill of sale. Williams v. Cheesebrough, 4 Conn. 356. Courts Will Inquire as to the Precise Time of Bankruptcy. If an act of bankruptcy was completed at one period of the day on which a commission of bankruptcy issued, and it can be shown that the act of bankruptcy was completed before the commission was sealed, the commission would be valid. Ex p. Dufrene, 1 Ves. & B. 51; Wydown's Case, 14 Ves. Jr. 80. Where a bankruptcy was closed before four o'clock in the afternoon, and after five o'clock on the same day the bankrupt acquired property, the property belonged to him, and not to the trustee in bankruptcy. In re Pettit, 1 Ch. Div. 478. 2. Time of Bringing Action. Low, Styles 72; Pugh v. Robinson, I T. R. 116; Clarke v. Bradlaugh, 8 Q. B. Div. 63, affirming 7 Q. B. Div. 151; Stanton v. Blossom, 14 Mass. 116, 7 Am. Dec. 198; Shed v. Brett, Pick. (Mass.) 411, 11 Am. Dec. 209; New England Bank v. Lewis, 2 Pick. (Mass.) 125. Illustration. - A writ of summons in an action was issued on the second of July, and the cause of action arose on the same day, but before the issue of the writ. The statement of claim was demurred to on the ground that the issuing of the writ was a judicial act, and must, therefore, be presumed to have taken place at the earliest moment of the day before the cause of action accrued. It was held that the court could inquire whether or not the writ was, in fact, issued after the cause of action accrued. Clarke v. Bradlaugh, 8 Q. B. Div. 63. 3. The Taking Effect of Statutes. - Tomlinson v. Bullock, 4 Q. B. Div. 230; Cole v. Porteous, 19 Ont. App. III; Converse v. Michie, 16 U. C. C. P. 167. See the title STATUTES. 4. Arnold v. U. S., 9 Cranch (U. S.) 104: Mallory v. Hiles, 4 Metc. (Ky.) 53; Matter of Welman, 20 Vt. 653; Matter of Howes, 21 Vt. 619. See also U. S. v. Williams, 1 Paine (U. S.) 261; Lapeyre v. U. S., 17 Wall. (U. S.) 198. A Proclamation of the President of the United States takes effect as of the beginning of the day upon which it is issued. U. S. v. Norton, 97 U. S. 170; Lapeyre v.U . S., 17 Wall. (U. S.) 198. In U. S. v. Norton, 97 U. S. 170, it was held that the President's proclamation of June 13, 1865, removing all restrictions upon internal, the time of its approval, and when the rights of persons are affected by it the precise time of its approval may be shown.1 IV. PARTICULAR PERIODS OF TIME CONSIDERED AS ONE DAY- 1. Term of Court. By a fiction of law the whole term of court is sometimes considered as one day, and all judgments and other proceedings within the term are referred to the first day of the term. But this fiction has been very generally abolished in the United States.3 2 2. Twenty-eighth and Twenty-ninth of February in Leap Year. In leap year the twenty-eighth and twenty-ninth of February are sometimes counted as one day. As long ago as the middle of the thirteenth century the English Parliament, by the statute of 21 Henry III., declared that "the day occurring in leap year and the next going before shall be counted as one day." In some of the states there are similar statutes.4 domestic, and coast-wise intercourse in trade, took effect at the beginning of June 13th, and covered all the transactions of that day to which it was applicable. 1. Matter of Richardson, 2 Story (U. S.) 571; In re Wynn, Chase's Dec. (U. S.) 227; Burgess v. Salmon, 97 U. S. 381; Louisville v. Portsmouth Sav. Bank, 104 U. S. 469; People v. Clark, I Cal. 406; Kennedy v. Palmer, 6 Gray (Mass.) 316. See the title STATUTES, for a full discussion. 2. Term of Court Sometimes Considered as One Day. Roe v. Hersey, 3 Wils. 274; Combe v. Pitt, 3 Burr. 1423; Rockhill v. Hanna, 15 How. (U. S.) 195; Clements v. Berry, 1 How. (U. S.) 398, 9 Humph. (Tenn.) 312; Cunningham v. Ashley, 13 Ark. 653; Cutler v. Wadsworth, 7 Conn. 6; Follett v. Hall, 16 Ohio III, 47 Am. Dec. 365; Leiper v. Levis, 15 S. & R. (Pa.) 108; Murfree v. Carmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232. See the titles RELATION; TERM. But the Priority of Action or Judgment May Be Shown when Material. - Yet when the priority of action becomes essential and necessary to be ascertained, the particular day may be shown. Combe v. Pitt, 3 Burr. 1423; Roe v. Hersey, 3 Wils. 274; Hutchinson v. Thomas, 2 Lev. 141. The day on which a judgment is rendered or any act is done within the term 'of the court may be shown when justice requires it. Littleton v. Cross, 3 B. & C. 317, 10 E. C. L. 93; Whitaker 7. Wisbey, 12 C. B. 44, 74 E. C. L. 44: Cutler v. Wadsworth, 7 Conn. 6; Morgan v. Sims, 26 Ga. 283; Leiper v. Levis, 15 S. & R. (Pa.) 108; Murfree v. Carmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232; Berry v. Clements, 9 Humph. (Tenn.) 312. 3. The Fiction Generally Abolished in the United States. The common-law fiction assigning the same period of time to the entry of all judgments of a single term is very generally abolished in the United States, either by statutory enactments or by a long course of practice grown up in defiance of the common law of England. 2 Freeman on Judgments, 370. See Alrichs v. Thompson, 5 Harr. (Del.) 432; Murfree v. Carmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232. In Arkansas by legal fiction the time between the submission and decision of the cause is considered as but one day. Thus, although a party may die between the time of the decision in the cause by the Supreme Court of Arkansas, and the filing of the mandate of the Supreme Court of the United States reversing that decision, no change of parties in the lower court is necessary before carrying the mandate into effect. Cunningham v. Ashley, 13 Ark. 653. Session of Parliament Formerly Considered as One Day. Formerly in England the whole session of Parliament was considered as one day, and its acts took effect from the commencement of the session. Bac. Abr., 636c; Roe v. Hersey, 3 Wils. 274; Rex v. Thurston, I Leon. 91; Panter v. Atty.-Gen., 6 Bro. P. C. 553; Tomlinson v. Bullock, 4 Q. B. Div. 232; Matter of Ankrin, 3 McLean (U. S.) 285. See the title STATUTES. But this was afterwards remedied by the statute of 33 Geo. III., c. 13, which declared that statutes should have effect only from the time they received the royal assent. Tomlinson v. Bullock, 4 Q. B. Div. 232; Matter of Ankrin, 3 McLean (U. S.) 285. 4. I Abb. Law Dict. 150, title Bissextile. In Indiana in several cases it has been held that the English statute was in force in that state. Swift v. Tousey, 5 Ind. 196; Craft v. State Bank, 7 Ind. 219; Kohler v. Montgomery, 17 Ind. 220; Porter v. Holloway, 43 Ind.. 35. But in Helphenstine v. Vincennes Nat. Bank, 65 Ind. 582, 32 Am. P.ep. 86, it was held. that where the 28th and 29th days of February in a leap year occur in any period of days less than one year, they must be regarded and computed as two days, and not as one day for any purpose. And further, that § 57 of Rev. Stat. of 1824, p. 299, declaring that "in every leap year the 28th and 29th days of February shall be considered in law as one day," which was re-enacted by § 52 of Rev. Stat. of 1831, p. 409, and by Rev. Stat. of 1838, p. 454, was. repealed by 4, c. 59, Rev. Stat. of 1843, p. 1023, and has not since been in force in the state. In so far as the cases above conflict with this decision they are overruled by it. .The court in this case said: "It will be seen, we think, from this statute, which we have set out in full, that it simply provides that the 28th and 29th days of February, as parts of a year which, at common law, consisted of three hundred and sixty-five days, should be accounted for one day, in computing the year and day that were wont to be assigned unto sick persons being impleaded.' The statute makes no provision as to how the two days DAY LABORER. (See also LABORER.) — See note 1. DAYLIGHT. See note 2. DAYS OF GRACE. — See the titles BILLS OF EXCHANGE AND PROMISSORY NOTES, vol. 4, p. 366; CHECKS, vol. 5, p. 1032; COUPONS, ante. DAY'S WORK. See note 3. DAYTIME. (See also DAYLIGHT; NIGHT.)-That portion of the twentyfour hours in which there is sufficient daylight to distinguish a man's person and features or countenance.4 DE ADMENSURATIONE. De admensuratione, the writ of admeasurement of dower, is a writ which lies where the widow has assigned to her more land as dower than she is entitled to.5 DE BENE ESSE. See ENCYC. OF PLEADING AND PRACTICE, titles BILL de Bene Esse, vol. 3, p. 329; PERPETUATION OF TESTIMONY. DE BONIS NON ADMINISTRATIS. (See also the title EXECUTORS AND ADMINISTRATORS.)- Where, in consequence of the death or removal of an administrator, the administration of the estate of an intestate is left unfinished, and a new administrator is appointed, the latter is termed an administrator de bonis non administratis. DE DONIS. (See generally the title ESTATES.) - The Statute of Westminster 2 (13 Edw. I., c. 1), the object of which was to prevent the alienation of estates by those who held only a part of the estate, in such a manner as to defeat the estate of those who were to take subsequent, was called the statute de donis conditionalibus. The effect of the statute was to convert conditional fees into fees tail. DE FACTO. (See also the titles DE FACTO CORPORATIONS, post; DE FACTO OFFICERS, post; and see DE FACTO GOVERNMENT, post.) - De facto means in law, as well as elsewhere, of fact; from, arising out of, or founded on fact; in fact, in deed; in point of fact; actually, really. should be accounted, in computing a number of days, less than one year, in which they might occur; and therefore it seems to us that the English statute, conceding it to be in force in this state whenever applicable, is not decisive of the question we are now considering." In Pennsylvania it has been held that the statute 21st of Henry III. has no relation to the computation of time, when a rule or statute fixes a certain number of days. Harker v. Addis, 4 Pa. St. 515. 1. Garnishment. (See also the title GARNISHMENT.) Within a statute exempting day laborers from garnishment, a locomotive engineer was held a day laborer. Sanner v. Shivers, 76 Ga. 335. 2. Fire Insurance. (See also the title FIRE INSURANCE.) - An insurance policy stipulated that lamps were to be filled and trimmed by daylight. In construing this provision, the court said: "The words by daylight' are intended, not to denote daytime as opposed to night time, but to prevent the use of any artificial light from which the oil might catch fire." Gunther v. Liverpool, etc., Ins. Co., 134 U. S. IIO. 3. A statute provided that in a contract for labor ten hours of actual labor should be a legal day's work, unless the contract stipulated for a longer time. It was held that this statute was applicable to labor in a gristmill where the labor is hired at a per diem compensation. Bachelder v. Bickford, 62 Me. 526. By Day Work. - See By, vol. 5, p. 84. 4. Trull v. Wilson, 9 Mass. 154; Rex v. Tandy, I C. & P. 297, 11 E. C. L. 398. In the first of these cases the word occurs in a statute by which a certain class of persons, on giving bond, are allowed the liberty of the prison-yard in the daytime. In the other, its use in an act imposing a penalty on housebreaking in the daytime is defined. See generally the titles BURGLARY, vol. 5, p. 57; ESCAPE; PRISONS. - Statutory Definition. In the Game Act, 9 Geo. IV., c. 69, daytime is defined, in section 34, which treats of poaching, to commence at the beginning of the last hour before sunrise and to conclude at the expiration of the first hour after sunset. 1 Ch. Gen. Pr. 403. By the Penal Code of Texas daytime is defined as any time of the twenty-four hours from thirty minutes before sunrise until thirty minutes after sunset. Laws v. State, 26 Tex. App. 655. 5. 3 Bl. Com.; 1 Steph. Com. 254. See generally the title DoWER. 6. Burrill's Law Dict., quoted in McCahon 2. Leavenworth County, 8 Kan. 437; dissenting opinion in Matter of Gunn, 50 Kan. 270. De Facto Contract. - By a de facto contract of sale is meant one which has purported to pass the property from the owner to another. Farmers, etc., Nat. Bank v. Logan, 74 N. Y. 568, citing Cundy v. Lindsay, L. R. 3 App. 459. De Facto Wife. Referred to in 4 Kent's Com. 36, as one whose marriage is voidable by decree. De Facto Schools. (See generally the title SCHOOLS.) There may be de facto schools and schoolmasters. Kidder v. Chellis, 59 N. H. 473. And de facto schoolhouses. Chapin v. School Dist. No. 2, 30 N. H. 25. DE FACTO CORPORATIONS. I. DEFINITION, 747 BY EPAPHRODITUS PECK. IL THE REQUISITE ELEMENTS, 748. 1. Generally, 748. 2. A Valid Law Essential under Which Organization Possible, 749. 4. Unequivocal Acts of User, 753. 5. Effect of Illegal Corporate Purposes, 754. III. INCIDENTS OF A DE FACTO CORPORATION, 754. 1. Its Existence Cannot Be Attacked Collaterally, 754. b. Forfeiture Cannot Be Declared Collaterally, 757- 3. Exercise of Extraordinary Statute Powers, 759. a. By Contract Relations, 760. b. By Membership, Holding Office, etc., 764. (2) In Actions on Subscriptions for Stock, 766. c. By Deed, 768. d. By Other Facts, 769. e. Estoppel of the Corporation Itself, 769. IV. INDIVIDUAL LIABILITY OF MEMBERS OF DEFECTIVELY ORGANIZED CORPORATION, 770. CROSS-REFERENCES. For matters of PROCEDURE, see the title CORPORATIONS, ENCYCLOPÆDIA OF PLEADING AND PRACTICE, vol. 5, p. 52. For other matters of SUBSTANTIVE LAW and EVIDENCE related to this subject, see the titles CORPORATIONS (PRIVATE), vol. 7, p. 620, and cross-references there given; COUNTIES, vol. 7, p. 898; DE FACTO OFFICERS, post; ESTOPPEL; MUNICIPAL CORPORATIONS; OFFICERS AND AGENTS OF PRIVATE CORPORATIONS; PROMOTERS; STOCK; STOCKHOLDERS; ULTRA VIRES. I. DEFINITION. A de facto corporation is an association of persons assuming to be, and acting as, a corporation, under color of authority so to do, but without legal right." Distinguished from Corporation De Jure. It is distinguished from a de jure corporation by the lack of such legal right to corporate existence as will stand the test of judicial investigation, while it has such color of corporate authority as distinguishes it from a mere unincorporated organization of persons. |