Prowse v McIntyre [1961] HCA 79;

Prowse v McIntyre [1961] HCA 79; - HCA 1961 case summary — Zoe

[11]

8. The next question is, when did the plaintiff become of full age so that time began to run and the ultimate running out of the six calendar years could be determined? Now the first thing to observe is that at whatever hour of the day or night a man is born the whole of that day is reckoned for the purpose of calculating his age: Fractionem diei non recipit lex (Lofft 572). Thus in the anonymous case mentioned in argument in Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) the question was in a devise whether the testator was of age or not. The report says "and the evidence was that he was born on the first day of January in the afternoon of that day and died in the morning of the last day of December: and it was held by all the judges that he was of full age; for there shall be no fraction of a day". In the next place a rule is fixed inveterately that during the whole of the day preceding the twenty-first anniversary of his birth a man is of full age. One might have supposed that it is only on the expiry of that day that his twenty-one calendar years are fulfilled. But the law will have none of this. All day long he is of full age. In Toder v. Sansam (1775) 1 Brown 468, at p 475 [1775] EngR 21; (1 ER 695, at p 700) in the argument which the House is presumed to have adopted it is correctly said "Now the rule of law is clear, and has been established by many determinations, that if, as in the present case, a person be born on the 16th day of a month and be alive on the 15th day of the same month twenty-one years afterwards, that person has attained his age of twenty-one, and that a will devising lands, made by such a person on that day is a good will; because the law makes no fraction of a day". The rule is stated in Simpson on The Law of Infants 3rd ed. (1909) p. 3 very simply: "An infant attains majority on the completion of his twenty-first year, but, except where it is necessary for the purposes of the decision to show which of two events first happened, the law recognizes no fractions of a day, and therefore the year is regarded as completed on the first instant of the day before the birthday. Thus an infant born on the 1st February attains his majority at the first instant of the 31st January." The rule is of considerable antiquity and various explanations have been offered. For example, in speaking of the limitation of a seven-year period Lord Holt said "that the end of seven years was the last day of the seven years, for there is no fraction of a day; and after twelve o'clock at night is after the seven years, for the day is not the end of the seven years, but post expirationem. For the beginning and end of a thing is part of the thing. So if a man were born the first of February, and lived to the thirty-first of January twenty-one years after five o'clock in the morning, and then makes his will and dies by six at night, that will is good, and the devisor is of age": Fitzhugh v. Dennington (1704) 2 Lord Raymond 1094, at p 1095 [1790] EngR 1498; (92 ER 225, at p 226) . In Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) North C.J. is reported to have explained it upon the ground that "a day is but punctum temporis and so of no great consideration". Eversley adds to the passage already cited the explanation "For in English law ultimus dies coeptus pro completo habetur". But as a positive rule of English law it requires no explanation. It belongs to the modern law and was recognized and applied by Sargant J.: In re Shurey; Savory v. Shurey (1918) 1 Ch 263 . Of the various applications which the rule has received not the least impressive is that of the law of elections. According to Rogers on Elections it has been held that on the morning preceding the 21st anniversary of his birth a man may vote although he was born at nine o'clock in the morning: Rogers' Law and Practice of Elections 9th ed. p. 156 referring to the Bishop's Castle Case (1820) - unreported. . It follows that throughout the day of 27th November 1951 (i.e. from the midnight separating 26th from 27th November) the appellant Charles John Prowse was of full age. Inasmuch as s. 7 of the Limitation Act, 1623 gave him six more years exactly, that is six years of full capacity, within which he must sue, it was necessary that his summons in this case must issue on or before 26th November 1957. As it was issued on 27th November 1957 it was out of time. (at p271)

[19]

6. It is difficult to avoid confusion of thought in this by-way of the law, for the settled rule as to when full age is attained was itself born in confusion. When, in the 17th century, judges came to think that on the day before a person's twenty-first birthday he should be held to be of full age, the general principle as to the indivisibility of a day was treated as providing a logical foundation for the conclusion. In truth it did not provide a foundation for the conclusion at all. It did justify treating the whole day of the birth as a day of life, so that twenty-one years might logically be considered complete at the end of the day before the twenty-first anniversary of the birth. But it was in the next step that fallacy seems to have intruded. The end of the day before the anniversary was taken to be a part of the day, so that the twenty-one years were held to end on the day, and hence (on the principle of the indivisibility of a day) at the beginning of the day. The error of thought is revealed in Lord Holt's aphorism that "the beginning and end of a thing is part of the thing". To use the words "beginning" and "end" in relation to a day as if parts of a day could be identified as the first and last parts of the day respectively is to misapply them. The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next; just as the eastern boundary of a piece of land is identical with the western boundary of contiguous land. The principle of the indivisibility of a day having been used as a basis for the first step in an argument which led to infancy being considered to end at some time before the midnight at which the twenty-first birthday begins, there can hardly have been an intention to desert it in the process of identifying that time; and the point to notice is that it would have been deserted if any time had been selected other than the midnight at which the day before the twenty-first birthday begins. Consequently, when it is said, as it is in some of the cases, that full age begins at "the first moment" of that day, the word "moment" cannot be taken to refer to some point of time after the day has begun. It cannot refer to anything but the beginning of the day; and that, as I have said, is the same thing as the end of the day before. (at p274)

[25]

4. But, except in circumstances not material to be mentioned, the law takes no account of fractions of a day; "a day is", as North C.J. said in Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) , "but punctum temporis". It should, however, be observed that this case was concerned with identifying, not the first day of a specified period, but the last day to which an agreement for accord or satisfaction was applicable. The agreement was in respect of "all trespasses usque ad the said 24th day of April" and on the principle that a day was but punctum temporis "and so of no great consideration" his Lordship included 24th April as the last day. But the other justices who sat in the case did not agree in his conclusion and took the view "that the word usque was exclusive". But upon principle and authority it is clear that full age is attained by a person even though he dies at some time on the day preceding the twenty-first anniversary of his birth (See also In re Shurey; Savory v. Shurey (1918) 1 Ch 263 . Thus in Fitzhugh v. Dennington [1790] EngR 1498; (1704) 2 Lord Raymond 1094 (92 ER 225) Lord Holt said: "So if a man were born the first of February, and lived to the thirty-first of January twenty-one years after five o'clock in the morning, and then makes his will and dies by six at night, that will is good, and the devisor is of age" (1704) 2 Lord Raymond, at p 1096 (92 ER, at p 226) . Likewise - "a will devising lands, made by such a person on that day, is a good will; because the law makes no fraction of a day". (Toder v. Sansam (1775) 1 Brown 468, at p 475 (1 ER 695, at p 700) ). As Sir William Blackstone observes in a foot-note to the passage already quoted from the Commentaries - "If he is born on the 1st of January, he is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day; and if the birth were on the first second of one day, and the act on the last second of the other, then twenty-one years would be complete; and in the law it is the same whether a thing is done upon one moment of the day or on another". (at p276)

[31]

2. For most purposes of the law time is measured by days; and events are assigned in time to calendar days. Lawyers naturally adopt the spatial concept of time of ordinary thought and language. It follows that time is measured in periods; and any period or space of time, a year, a day, an hour, is, in theory at all events, divisible. But, as a day is for law the unit of measure in most cases, it was early said that the law was not concerned with divisions of a day. Coke himself said so when he was at the bar, in his argument in Smith v. Hillier (1590) Cro Eliz 167 (78 ER 425) . But in Combe v. Pitt [1763] EngR 88; (1763) 3 Burr 1423, at p 1434 [1763] EngR 88; (97 ER 907, at p 913) Lord Mansfield remarked that: "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. 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" (1763) 3 Burr, at p 1434 (97 ER, at p 913) . The word "instant" has, however, long been used to describe a moment in the passage of time that is indivisible because infinitesimal - "like a mathematical point" to use Lord Mansfield's simile. True it is that Rastell said in 1667 that even "the instant time, that is not divisible in nature, in the consideration of the mind and understanding of the Sages of the law is divided; upon which arise many arguments of great use and profound learning": Termes de la Ley, sub tit. "instant". But arguments need not continue to arise if Coke's meaning and understanding of an "instant" be accepted. He said: "Instant est unum indivisibile tempore quod non est tempus nec pars temporis, ad quod tamen partes temporis connectuntur . . . Instans est finis unius temporis et principium alterius": Co. Litt. 185b. This echoes Plowden's statement that "every instant contains the end of one time and the commencement of another": Hales v. Petit (1563) 1 Plowden, at p 258 (75 ER, at p 395) . (at p278)

[33]

4. Time is a local phenomenon. An interesting discussion of this occurred in Curtis v. March [1858] EngR 1183; (1858) 3 H & N 866 (157 ER 719) . Watson B. had taken his seat on the bench at Dorchester punctually at ten by the clock in the Court, and the cause being called on and the defendant not appearing had directed a verdict for the plaintiff. Later, counsel appeared and claimed that the Court had sat before the appointed hour ; for the Court clock recorded Greenwich time and the town clock Dorchester time, which was some minutes later. On appeal a new trial was directed because the time of the place should prevail. "We are as much bound", said Pollock C.B., "to take judicial notice that a particular place lies east or west of Greenwich, and consequently has a different time from it, as we are to know the days of the year" (1858) 3 H & N, at p 867 (157 ER, at p 719) . Practical difficulties arising from differences in mean solar time at different places are, however, largely overcome by the statutory adoption for legal purposes of Greenwich mean time, or of standard zone times related to Greenwich mean time (with, in some places and seasons, distortions by "summer time") : see for New South Wales the Standard Time Act, 1902, consolidating the Standard Time Act of 1894. So that the date and time of an event or of an act are ordinarily the date and time determined by the calendar and clock at the place where the event happens or act is done, notwithstanding that the actual occurrence is at different times in different parts of the world. When effluxion of time has to be considered, a somewhat similar result occurs. Suppose twins born at Greenwich on the same day ; the elder, born just before his brother, remains in England ; the younger comes to Sydney, and immediately on coming of age speaks by telephone to his elder brother in England. He is an adult, his brother is still an infant. Yet the duration of their infancy is computed from the same moment, namely the beginning of the day they were born. Some interesting situations can be imagined on this basis with results even more striking than the experience of Phileas Fogg. It seems, however, that any question of personal rights, capacities, disabilities, or qualifications gained or lost by the lapse of a given period of time must be determined according to the clock and the calendar at the place where the person in question is. This matter is not directly relevant here ; but it illustrates that concepts concerning the expiry of a given period of time, are elusive and in a sense artificial ; and the legal problems they create must be determined by the application of rules of law. (at p279)

[34]

5. As has been said, the law in reckoning time by days ordinarily takes no account of fractions of a day. The result is that, whenever a period of days has to be computed from an act or an event that occurs within the space of a day, a decision must be made whether to start the reckoning from the beginning or the end of that day. Much the same question arises when a period is to be calculated up to the time when an act is done or an event happens. It may be that the mediaeval fondness for the period of a year and a day was in some way related to a desire to ensure the lapse of a full year. In the form the question is ordinarily now put it is whether the day of commencement of a period (or the day of its completion) is to be included or excluded in counting a given number of days. As to that, there is no universal rule. Where it is not prescribed by statute (as for example in the Interpretation Act of 1897 (N.S.W.), s. 35 (11)) the answer depends upon context and circumstances : In re North ; Ex parte Hasluck (1895) 2 QB 264 ; and see Belfield v. Belfield [1945] VicLawRp 40; (1945) VLR 231 , per O'Bryan J. and Ex parte Toohey's Ltd ; Re Butler (1934) 34 SR (NSW) 277 ; 51 WN 101 , per Jordan C.J. (1934) 34 SR (NSW), at p 285 ; 51 WN at p 103 . The observations of Grant M.R. in Lester v. Garland [1808] EngR 326; (1808) 15 Ves Jun 248, at p 257 [1808] EngR 326; (33 ER 748, at p 752) - that, because a day is treated as indivisible, an act "done in the compass of a day" cannot properly be said to be passed until the day is passed - are a convenient, if not very scientific, explanation of the solution adopted in some cases. But this case does not turn on the computation of time after an act, or an event. It turns on what is meant by "within six years after coming to full age". Cases on limitations of time from the accrual of a cause of action are beside the point, for, as I have said, coming of age is not something that occurs "within the compass of a day". It is simply the end of a period of days. The actual words of the Limitation Act, 1623, s. 7, are "after coming to or being of full age" ; so that, when it was enacted, the statute applied to persons then being of full age as well as to persons who would thereafter come to full age. (at p280)

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 (5 December 1961)

Parties

Legislation Cited (1)

Cases Cited (1)