Cressey v. Parks

Appleton, C. J.

This is au action .of trespass against the defendant, a collector of taxes for the town of Glenburn, for seizing and carrying away six tons of the plaintiff’s hay for the non-payment of his taxes and selling the same.

By R. S., c. 6, § 104, "If any person refuses to pay the the taxes assessed against him . . . the collector may *392 distrain him by his goods and chattels . . and keep' such distress for the space of four days at the expense of the owner, and if he does not pay his taxes within that time, the-distress shall be openly sold at vendue by the officer for its payment. ”

The hay was seized for taxes on Saturday, January 8, and advertised for sale- on Thursday, the thirteenth, and thence the sale adjourned to Friday, the fourteenth, when the property seized was sold.

In computing time, the day of the seizure is not to be reckoned. The rule is thus stated by Bishop in his work " On the Written Laws, 107. ” When a statute specifies a particular number of days, weeks, or 3rears, the computation should be-made by adding-, for instance, to the ascertained number of the da3' in the month, the statutoiy number. Thus, an enactment passed on the fifth day of the month, to take effect in ten days, will go into operation on the fifteenth day of. the month, because-the sum of ten and five is fifteen. The rule of reason therefore, may be stated to be, "that of the two extreme days, the one-shall be included and the other excluded in the reckoning. ”

The term specified by the statute for sale is four days after seizure. The collector keeping the property seized beyond the time in which it could be legally sold, is thereby a trespasser ctb initio. Brackett v. Vining 49 Maine, 356; Farnsworth Co. v. Rand, 65 Maine, 19.

The statutes in Massachusetts on this subject, are similar to-those of this state. The time when the sale was to be made, became an early subject of discussion. In Caldwell v. Eaton, 5 Mass. 399 , Parsons, C. J., in considering the question-says, "The notice must be given forty-eight hours before the expiration of the four days. It is, then, a necessary consequence that they must be sold at auction, after they have been kept four days, and no longer. ” In Titcomb v. Insurance Co. 8 Mass. 334 , Sewall, J., says, " Shares taken on execution are to be exposed for sale in the same manner as by law prescribed when personal estate is taken on execution. The time for this purpose, allowed and determined bj' the general statute, is four days. Now when *393 four days had expired and no sale had taken place, a new notice was necessary to legalize a subsequent sale. ” In Howe v. Starkworth, 17 Mass. 241 , Parker, C. J., citing the last named case, says, "The sale under the execution would be bad by suffering more than four days to elapse between the seizure on execution, and the sale.” To the same effect is the decision in Pierce v. Benjamin, 14 Pick. 356 . Such, too, is the recognized law in this state. "The day of seizure, ” remarks Siieplet, C. J., in Tuttle v. Gates, 24 Maine, 395, "is not to be reckoned as one of the four, and the sale cannot be legally made after the fourth day. ” The day of seizure not being reckoned, the sale must be on the fourth day. Ordway v. Ferrin, 3 N. H. 69. If the day of the seizure as well as that of the sale, Avere both excluded, the defendant Avould be allowed parts of both those days beyond the time required by hvw. Bemis v. Leonard, 118 Mass. 502 .

. The sale in the case at bar should have been on the twelfth. The defendant is not to have four whole days and parts of íavo others. The rule in England is that in case of goods distrained and sold Avitkin four days, the days must be calculated inclusively of the last, and exclusively of the day of taking» Robinson v. Waddington, 66 E. C. L. 753.

In the Massachusetts statute, the phrase " for the space of four days” occurs as in that of this state. But "the space of four days ” embraces no more than four days. Such, too, has been the practical construction, as is clearly shown by the many decisions to Avhich reference has been made.

The main ground of defence is that Sunday is not to be reckoned as a day. The statute provides that the distress is to be kept "for the space of four days at the expense of the owner, ” and if the tax be not paid within that time, the distress shall be sold at vendue by the officer for its payment. The expression, "the space of four days,” excludes no day. It implies consecutiVe days. "Sunday,” remarks Btles, J., in Peacock v. The Queen, 93 E. C. L. 264, " at common law, is just like any other day. " Sunday, ” observes Lord Ellen-borough, in Creswell v. Green, 14 East. 537, "is as much a day to occupy space of time as any other day. ” When the *394 statute prescribes the number of days within which an act is to be done, and nothing is said about Sunday, it is to be included. It was held in Carville v. Additon, 62 Maine, 459, that it was nt> objection to the legality of the collector’s proceedings that one of the four days during which the distress was kept was Sunday. So in The State v. Wheeler, 64 Maine, 532, it was decided the draft for jurors was valid, although one of the four days before the drafting was Sunday.

Whenever the legislature intend Sunday shall be excluded from the days within which an act shall be done, it is done in express terms, as in c. 84, § 3. It is never left to implication. When goods are sold on execution, Sunday is excluded by statute from the four days during which the goods seized are to be kept. But Sunday is not excluded where the collector distrains for non-payment of taxes. R. S., c. 6, § 104. " Where an act of parliament gives a specified number of days for doing a particular act, and says nothing about Sunday, ” observes Hill, J., in Ex parte Simpkin, 2 E. and E. "the days are consecutive days, including Sunday. ”

In Asmole v Goodwin, 2 Salk. 624, it was held " as to business done out of court, as rules to plead within four days, etc. Sundays are reckoned the same as other days.” The uniform current of authorities is in conformity with this decision up to the present time. Thus in Ex parte Simpkin, 2 Ellis and E. 392, it was decided that when an act of parliament gives a specified number of days for doing a particular act and says nothing about Sunday, the days are consecutive days including Sunday. So in this country. In King v. Dowdall, 2 Sandf. § 131, Oaklet, C. J., uses this language: "We know of no rule or principle by which it (Sunday) is to be excluded from the comprágtejL ”\vkeri it is an intermediate day,” and we have suppos^JjJ^Flaw. on the subject to be settled.

The distress for taxes may be made on any day of the week, Sunday excepted. The law has not prohibited seizure on any week day. But the property seized cannot be sold on Sunday, not because Sunday is not a day, but because it is a day on which, by statute, the execution of civil process is prohibited. *395 R. S., c. 81, § 78. No sale can be made on the preceding Saturday, when the seizure was made on "Wednesday, because that would be against the provision of the statute requiring the officer to keep the property distrained four days. "When, then, is the sale in such case to be made? The statutes must be construed together. The seizure may. be made on any secular day. The property seized must be kept four days by statute. Its sale is prohibited on Sunday. Being lawfully seized, it must be sold. As it cannot be legally sold within three days, it must be sold on Monday because all official or executive action is prohibited on Sunday. The true rule on this subject is laid down In the matter of Qoswiler’s estate, 3 Pa. 200 , thus: "Whenever by a rule of court or an act of the legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted unless the last day falls on Sunday, in which case, the act may be done on the next day. ” To the same effect is the opinion of the supreme court of Rhode Island in Barrows v. Eddy, 12 R. I. 25. In Hughes v. Griffith, 106, E. C. L. 323, it was held in the computation of time, that when the last day falls on a Sunday and the act is to be done by the party, it may be done on the next practicable day.

The original notice being defective, no postponement can cure the original defect. "A valid sale cannot be made at an adjournment which would have been invalid if made on the day adjourned from. ” Wilson v. Sawyer, 61 Maine, 531.

Defendant defaulted. Damages to be assessed by the cleric.

Walton, Danforth, Virgin and Stmonds, JJ., concurred. Peters, J., did not sit.