This is an action against the sheriff of the county of Waldo, for the alleged misdoings of his deputy in not keeping property attached. The defendant claims that the attachment was dissolved by the debtor’s going into bankruptcy within four months after it was made.
The fourteenth section of the United States bankrupt act declares that any attachment of the bankrupt’s property, made within four months next preceding the commencement of the proceedings in bankruptcy, is thereby dissolved.
The attachment in this case was made March 8, 1867, at seven o’clock in the afternoon. Proceedings in bankruptcy were commenced July 8, 1867, at two o’clock and fifty minutes in the afternoon. The time between the two events is four hours and ten minutes less than four months. It is, therefore, clear that the attachment was, in fact, made within four months next before the proceedings in bankruptcy "were commenced. We fail to perceive any good reason why the attachment shall not be held to have been dissolved. Certainly it must be, if the exact truth and an accurate computation of the time are allowed to prevail.
The objection is, that such a decision will conflict with the maxim that in law there is no fraction of a day. But this maxim is á self-evident fiction; and, as Judge Story said in Richardson’s case, 2 Story, 571, is true only sub modo, and in a limited sense, where *94it will promote the right and justice of the case, and is never allowed to operate against the right and justice of the case. It is undoubtedly a very useful maxim when properly applied, as in the service of legal precepts and notices generally, and in mercantile contracts, as it avoids the inconvenience of endeavoring to ascertain with precision at what hour of the day the precept or notice "was served, or at what hour a note or bill of exchange, payable on time, was signed, etc. But in a case like this, where the conflicting claims of creditors are to be determined by an accurate computation of time, and we have the means before us of computing the time accurately, and there is no inconvenience to be avoided, we think that any maxim which should lead the court to decide contrary to the truth, would be misapplied. The bankrupt act makes the commencement of the proceedings in bankruptcy the initial point, or terminus a quo, of the four months in question; and Avith positive record evidence before us, of the exact time when that event occurred, it seems to us it would be a plain and Avillful violation of the statute to commence the computation at any other time. We think the computation in this case should commence on the 8th of July, 1867, at two o’clock and fifty minutes in the afternoon, that being ”the precise time Avhen the proceedings in bankruptcy were commenced, and by then reckoning backward four calendar months Ave shall reach the 8th of March, 1867, at the same hour of the day, namely, íavo o’clock and fifty minutes in the afternoon. By thus measuring the time truly and accurately, we shall see that the attachment was Avithin the four months by four hours and ten minutes ; for it Avas not made till seven o’clock in the afternoon of that day. It being thus demonstrated that the attachment was within four months next preceding the commencement of the proceedings in bankruptcy, our conclusion is that it was thereby dissolved. And in this conclusion we think we are not only justified by reason and the express requirements of the statute, but also by authority.
Professor Parsons says that in the application of the insolvent laws, the very hour is inquired into; that he is aware of no cases where the technical rule of the law, that no fraction of a day can *95be allowed, has been adhered to in bankruptcy, save the matter of David Howes, 6 Law Reporter, 297; and the matter of Wellman, 7 id. 25, where the doctrine laid down in the first case is maintained and defended; and he expresses the opinion that the views of the judge, though able, savor of technicality. He says further, that the reason, or at least the justice, of allowing the exact time to be inquired into, is obvious; that if one’s rights depend upon whether a certain thing was done more or less than a certain number of months before another, it is as proper to ascertain the exact time as it is when there is a question whether an attachment of land, or the record of a conveyance, was first made. Pars. Merc. Law, 2 ed. 282-3.
Godson v. Sanctuary, 4 Barn. & Adol. 255, is a case directly in point. There the bankrupt’s goods had been seized on execution, and the question was, whether more or less than two calendar months had elapsed between the seizure and the time when he went into bankruptcy, and whether, in computing the time, the court could take notice of the fraction of a day; and the court held that they could. ‘ If,’ said Baron Park, ‘ the fraction of a day be taken into account (as it may), it would appear that more than two calendar months had elapsed between the time of the seizure and the issuing of the commission; that is, between eleven o’clock of the forenoon of the 13th of August, and twelve o’clock of the 13th of October; because sixty-one complete days, which are the two calendar months, would have elapsed by eleven o’clock of the 13th of October, and the commission did not issue until twelve or one o’clock of that day.’
Mr. Powell says that the legal fiction that there is no fraction of a day, like all other legal fictions, holds good only in respect of the ends and purposes for which it was invented; that when it is urged to an intent not within the reason or policy of the fiction, the truth may be shown; that the presumption of law that an act done on any particular day was done the first moment of that day (which is only another mode of saying there is no fraction of a day), can never operate where there is positive evidence of the fact; for the *96positive evidence must always control the presumptive; and he refers to many cases in illustration of these propositions. Powell on Powers, 631-7.
And in Bigelow v. Wilson, 1 Pick. 485, Mr. Justice Wilde says, ‘ This maxim is a fiction of law,- and when it is material to distinguish, the truth may be shown; for a fiction of law, introduced for the sake of convenience and justice, ought never to be allowed to work a wrong; thus, when it is necessary to determine the priority of two attachments, the precise time of each attachment may be shown; and so in many other cases.’
We think these authorities abundantly justify us in the conclusion to which we have come, and which we have already expressed. Many others to the same effect, both English and American, could be cited; but we deem it unnecessary to do so. And we will add that this conclusion renders it unnecessary for us to enter the vortex of conflicting decisions, as to whether, in the computation of time from an act done, the day on which the act is done should be included or excluded. A very good review of the authorities upon this point will be found in 4 Am. Law Reg. (new series), 222, in which the learned writer comes to the conclusion that under statutes and rules of court, the current of authorities runs strongly in favor of excluding the day on which an act is done,'an event happens, or of a date referred to, in the computation of time therefrom ; and several of the decisions in this State, and the leading case of Bigelow v. Wilson, 1 Pick. 485, are among the authorities cited in support of the conclusion. If we should adopt the same view, the result would be the same as that to which we have already arrived t
Exceptions overruled.
Appleton, C. J.; Cutting, Kent, Barrows, and Danforth JJ., concurred.