34 And if, by for she was not capable of consenting to it during coverture. any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law. (1) 35 There are some advantages attending tenant in dower that do not extend to jointresses; and so vice versa, jointresses 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 cannot distrein for [139] his debt; if contracted during the coverture. (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 ecclesiae, 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 ecclesiae, the most eligible species of any. 36 I These settlements, previous to marriage, seem to have been in use among the ancient Germans, and "Dolem non uzor marito, their kindred nation the Gauls. Of the former Tacitus gives us this account. sed uxori maritus affert; intersunt parentes et propinqui, et munera probant.” (de mor. Germ. c. 18.) And Cesar (de bello Gallico, l. 6. c. 18.) has given us the ternis of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. "Viri, quantas, pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis, aestimatione facta, cum dotibus communicant. Hujus omnis pecuniae conjunctim ratio habetur, fructusque servantur. Üter eorum vita superavit, ad eum pars utriusque cura fructibus superiorum temporum pervenit." The dauphin's commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97.) with regard to the provision for widows among the Romans; but surely there is as much reason to suppose, that it gave the hint for our statutable joinm Co. Litt. 31. a. F. N. B. 150. a Co. Litt. 36. tures. o Ibid. 37. (34) And where a devise is expressed to be given in lieu and satisfaction of dower, or where that is the clear and manifest intention of the testator, the wife shall not have both, but shall have her choice. Harg. Co. Litt. 36. b. But where the lands are devised out of which the widow is entitled to dower, and the testator leaves her an annuity, she shall not be put to her election, unless it appears to have been the intention of the testator that she should not retain both. Lord Eldon has declared, that "the question in all these cases is, whether the testator meant to give away his wife's dower; which he could not do directly. For that it must be seen clearly, that he meant to dispose so, that, if she should claim dower, it would disappoint the will. It must appear there is a repugnancy." 6 Ves. Jun. 616. Chitty. (35) It has been determined, that if a woman, who is under age at the time of marriage, agrees to a jointure and settlement in bar of her dower, and her distributive share of her husband's personal property, in case he dies intestate, she cannot afterwards waive it; but is as much bound, as if she were of age at the time of marriage. Lord Northington had decreed the contrary; but his decree was upon both points reversed. Drury v. Drury, 4 Brown's P. C. 570. And in Williams v. Chitty, 3 Ves. J. 545. it was held, that dower was barred by a settlement previous to marriage, but during the infancy of the wife, of stock and leasehold property, partly the husband's and partly the wife's, though no guardian consented. Christian. (36) A jointure is not forfeited by the adultery of the wife, as dower is; and the court of chan cery will decree against the husband a performance of marriage articles, though he alleges and proves that his wife lives separate from him in adultery. 3 Cox's P. Wins. 277. 2 B. & C. 547. And where the husband has covenanted in a deed of separation to pay an annuity to a trustee for the wife's use, her adultery is no answer to an action for the recovery of an arrear of the annuity. Jee v. Thurlow, 2 B. & C. 547. But by express stipulation, jointure and separate maintenance may be forfeited by any prohibited intercourse with a third person. Ld. Dormer v. Knight, 1 Christian. Taunt. 417. CHAP. IX. OF ESTATES LESS THAN FREEHOLD. Or estates that are less than freehold, there are three sorts: 1. Estates for years: : 2. Estates at will: 3. Estates by sufferance. I. An estate for years' is a contract for the possession of lands or tenements, for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, (a) and the lessee enters thereon. (b) 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 styled 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 period, consisting commonly of 365 days; for, though in bissextile or leap-years, it consists properly of 366, yet by the statute 21 Hen. III. the increas- [141] ing day in the leap-year, together with the preceding day, shall be accounted for one day only. 3 That of a month is more ambiguous: there a We may here remark, once for all, that the terminations of “ —or” and “—ee” obtain, in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is be to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. § 57.) b Ibid. 53. c Ibid. 67. (1) See Bac. Ab. Leases; Preston on Estates; 1 Cruise, 243, &c. (2) A tenancy by virtue of an agreement in writing for three months certain, is a tenancy for a term within the meaning of statute 1 Geo. IV. c. 87. 5 B. & A. 768. (3) As to time, and the mode of computing it in general, see Com. Dig. tit. Ann. and tit. Temps; Vin. Ab. tit. Time; Bac. Ab. Leases, E. 2 & 3. ; Burn Ecc. L. Kalendar; Jacob. Dic. tit. Day, tit. Month, and tit. Year. Before 1752, the year commenced on the 25th March, and the Julian kalendar was used, and much inaccuracy and inconvenience resulted, which occasioned the introduction of the new stile, by 24 Geo. II. c. 23., which enacts, that the 1st January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from 20 September to the 14th, and in other respects regulates the future computation of time, with a saving of ancient customs, &c. See the statute set forth in Burn Ecc. L. tit. Kalendar. It has been held, that in a lease or other instrument under seal, if the feast of Michaelmas, &c. be mentioned, it must be taken to mean New Michaelmas, and parol evidence to the contrary is not admissible, 11 East, 312.; but upon a parol agreement it is otherwise. 4 B. & A. 588. The year consists of three hundred and sixty-five days; there are six hours, within a few minutes, over in each year, which every fourth year make another day, viz. three hundred and sixty-six, and being the 29th February, constitute the bissextile or leap-year. Co. Lit. 135. 2 Roll. 521. 1. 35. Com. Dig. Ann. A. 24 Geo. II. c. 23. s. 2. Where a statute speaks of a year, it shall be computed by the whole twelve months, according to the calendar, and not by a lunar month, Cro. Jac. 166., but if a statute direct a prosecution to be within twelve months, it is too late to proceed after the expiration of twelve lunar months. Carth. 407. A twelvemonth, in the singular number, includes all the year; but twelve months shall be computed according to twenty-eight days for every month. 6 Co. 62. Half a year consists of one hundred and eighty-two days, for there shall be no regard to a part or a fraction of a day. Co. Litt. 135. b. Cro. Jac. 166. The time to collate within six months shall be reckoned half a year, or one hundred and eighty-two days, and not lunar months. Cro. Jac. 166. 6 Co. 61. So a quarter of a year consists but of ninety-one days, for the law does not regard the six hours afterwards. Co. Litt. 185. b. 2 Roll. 521. 1. 40. Com. Dig. Ann. A. being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thir But both half-years and quarters are usually divided according to certain feasts or holidays, rather than a precise division of days, as Lady-day, Midsummer-day, Michaelmas-day, or Christmas, or Old Lady-day (6th April), or Old Michaelmas day (the 11th October). In these cases, such division of the year by the parties, is regarded by the law, and therefore though half a year's notice to quit is necessary to determine a tenancy from year to year, yet a notice served on the 29th September to quit on the 25th March, being half a year's notice according to the above division, is good, though there be less than one hundred and eighty-two, viz. one hundred and seventy-eight days. 4 Esp. R. 5 & 198. 6 Esp. 53. Selw. N. P. Ejectment, V. Adams, 123. As to the construction of the term, a year, it was held that the 43 Geo. III. c. 84., which prohibits under a penalty a spiritual person from absenting himself from his benefice for more than a certain time in any one year, means year from the time when the action is brought for the penalty. 2 M & S. 534. A month is solar, or computed according to the calendar, which contains thirty or thirty-one days; or lunar, which consists of twenty-eight days. Co. Litt. 135. b. In temporal matters, it is usually construed to mean lunar; in ecclesiastical, solar or calendar. 1 Bla. R. 450. 1 M. & S. 111. Bingh. Rep. 307. In general, when a statute speaks of a month without adding "calendar," or other words shewing a contrary intention, it shall be intended a lunar month of twenty-eight days. See cases, Com. Dig. Ann. B. 6 Term Rep. 224 3 East. 407. 1 Bing. R. 307. And generally, in all matters temporal, the term month is understood to mean lunar: but in matters ecclesiastical, as non-residence, it is deemed a calendar month; because in each: of these matters a different mode of computation prevails; the term, therefore, is taken in that sense which is conformable to the subject matter to which it is applied, 2 Roll. Ab. 521. 51. Hob. 179. 1 Bla. R. 450. 1 M. & S. 117. 1 Bing. R. 307. Com. Dig. Ann. B.; and therefore when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod, & B. 186. When a deed speaks of a month, it shall be intended a lunar month, unless it can be collected from the context that it was intended to be calendar. 1 M & S. 111. Com. Dig. Ann. B. Cro. Jac. 167. 4 Mod. 185. So in all other contracts, 4 Mod. 185. 1 Stra. 446. unless it be proved that the general understanding in that department of trade is, that bargains of that nature are according to calendar months. 1 Stra. 652. 1 M. & S. 111. And the custom of trade, as in case of bills of exchange and promissory notes, has established, that a month named in those contracts shall be deemed calendar. 3 Brod. & B. 187. In all legal proceedings, as in commitments, pleadings, &c. a month means four weeks. S Bur. 1455. 1 Bla. R. 450. Dougl. 463. 446. When a calendar month's notice of action is required, the day on which it is served is included, and reckoned one of the days; and therefore if a notice be served on 28th April, it expires on 27th May, and the action may be commenc ed on 28th May. 3 T. R. 623. 2 Campb. 294. And when a statute requires the action against an officer of customs to be brought within three months, they mean lunar, though the same act requires a calendar month's notice of action. 1 Bingh. R. 307. A day is natural, which consists of twenty-four hours; or artificial, which contains the time from the rising of the sun to the setting. Co. Litt. 135. a. A day is usually intended of a natural day, as in an indictment for burglary we say, in the night of the same day. Co. Litt. 135. a. 2 Inst. 318. Sometimes days are calculated exclusively, as where an act required ten clear days' notice of the intention to appeal, it was held, that the ten days are not to be taken exclusively, both of the day of serving the notice and the day of holding the sessions. 3 B. & A. 581. A legal act done at any part of the day, will in general relate to the first period of that day. 11 East, 498. The law generally rejects fractions of a day. 15 Ves. 257. Co. Litt. 135. b. 9 East, 154. 4 T. R. 660. 11 East, 496 498. 3 Co. 36. a. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish for the purposes of justice; and I do not see why the very hour may not be so too where it is necessary, and can be done, for it is not like a mathematical point which cannot be divided. Per. Ld. Mansfield, 3 Burr. 1434, 9 East, 154. 3 Coke Rep. 36. a. Therefore fraction of a day was admitted in support of a commission of bankruptcy, by allowing evidence that the act of bankruptcy, though on the same day, was previous to issuing the commission. 8 Ves. 80. So where the goods are seized under a fieri facias the same day that the party commits an act of bankruptcy, it is open to inquire at what time of the day the goods were served, and the act of bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197. 2 B. & A. 586. An hour consists of sixty minutes. Com. Dig. Ann. C. By a misprint in 2 Inst. 318, it is stated to be forty minutes. There is a distinction in law as to the certainty of stating a month or day, and an hour. When a fact took place, circa horum" is sufficient; but not so as to a day, which must be stated with precision, though it may be varied from in proof. 2 Inst. 318. It has been considered an established rule, that if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusive. Hob. 139. Dougl. 463. 3 T. R. 623. Com. Dig. Temps, A. 3 East, 407. And therefore where the statute 27 Jac. I. c. 19. s. 2. enacts, that a trader lying in prison two months after an arrest for debt shall be adjudged a bankmunt, that includes the day of the arrest. 3 East, 407. When a month's notice of action is neces teen 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 twelve"month" 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. In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. (e) 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. These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords: but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their [142] own. And therefore they were not allowed to have freehold estate : but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the ancient law, be at any time defeated by a common recovery suffered by the tenant of the freehold; (f) which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted. While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and in d6 Rep. 61. e Co. Litt. 135. f Co. Litt. 46. sary, it begins with the days on which the notice is given, 3 T. R. 623.; and if a robbery be committed on 9th October, the action against the hundred must be brought in a year inclusive of that day. Hob. 139. But where it is limited within such a time after the date of a deed, &c. the day of the date of the deed shall be taken exclusive; as if a statute require the enrollment within a specified time after date of the instrument. Hob. 139. 2 Campb. 294. Cowp. 714. Thus where a patent dated 10th May, contains a proviso that a specification shall be enrolled within one calendar month, next and immediately after he date thereof, and the specificatio was enrolled on the 10th June following, it was held, that the month did not begin to run the day after the date of the patent, and that the specification was in time. 2 Campb. 294. However, in a case in equity, the master of the rolls, after considering many of the decisions, said, upon the first part of this rule, that whatever dicta there may be that when a thing is to be done after the doing of an act, the day of its happening must be included, it is clear the actual decision cannot be brought under any such a general rule; and he inclined for excluding the first day in all cases, and ruled that where a security was to be given within six months after a testator's death, the day of the death was to be excluded. 15 Ves. J. 248. Chitty. (4) See Leftley v. Mills, 4 T. R. 170., where there was a difference of opinion in the court upon the question, whether a bill of exchange could be protested for,non-payment on the same day that it was due, or the acceptor had the whole of the day to discharge it in? Christian. (5) See 1 Preston on Estates, 203. deed we are told (g) that by the ancient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated; for we may observe in Madox's collection of ancient instruments, some leases for years of a pretty early date, which considerably exceed that period: (h) and long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III., (i) and probably of Edward I. (k). But certainly, when by the statute 21 Hen. VIII. c. 15. the termor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the [143] same rules of succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord. Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years." And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and a certain end. (1) But id certum est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years; (m) for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease. (n) A lease for so many years as J. S. shall live, is void from the beginning; (o) for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good: (p) for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there. We have before remarked, and endeavoured to assign the reason of the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie, is a freehold ; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate. (9) Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. As, if I grant lands to Titius to hold from Michaelmas next for twenty years, this is good; but to hold from [144] Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of seisin, or corporal possession of g Mirror. c. 2. § 27. Co. Litt. 45, 46. h Madox Formulare Anglican, no. 239. fol. 140. Demise for eighty years, 21 Ric. II. 245. fol. 146. for the like term, A. D. 1429..... Ibid. n°. 248. fol. 148 for fifty years, 7 Edw. IV. i 32 Ass. pl. 6. Bro. Abr. t. mordauncestor, 42. spoliation, 6. Ibid. no. k Stat. of mortmain, 7 Edw. I. I Co. Litt. 45. Litt. 45. m 6 Rep. 35. (6) Bac. Ab. Leases, L. |