In re Richardson

STORY, Circuit Justice.

The present question embraces some novelty as to the interpretation of statutes, and the time of giving them effect. It appears, from the statement of facts, that the petition in this case for the benefit of the bankrupt act of 1841, c. 9, was filed on the third day of March, 1843, about noon; and that the act of third of March, 1843, c. 82, repealing the bankrupt act, passed congress, and was approved by the president, late in the evening of the same day. The language, of this last act is, “That the act entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ approved on the 19th day of August, 1841, be, and the same is hereby repealed.” There is a proviso, “that this act shall not. affect any case or proceeding in bankruptcy commenced before the passage of this act.” Now, upon this posture of the ease, the question arises, whether the repealing act took effect by relation, from the commencement of the third day of March, 1843; or, whether it took effect only from the act of approval by the president, on the evening of the same day. If the former be the true, legal interpretation, then the district court had no jurisdiction to entertain the petition; if the latter be the true intendment of law, then the district court had a clear jurisdiction in the premises, and the jurisdiction having once attached, the proviso saves all farther proceedings under the petition.

I am aware, that it is often laid down, that in law there is no fraction of a day. But this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and, therefore, like all other legal fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred and proved in furtherance of the right and justice of the case; and there may be even a priority in an instant of time; or in other words it may have a beginning and an end. See Digges’ Case, 1 Coke, 174; Fitzwilliam’s Case, 6 Coke, 33; Co. Litt. 135a; Vin. Abr. “Time,” A, 3, pl. 7. The common case put to illustrate the doctrine, that there is no fraction in a day, is the case, when a person arrives at majority. Thus, if a man should be born on the first day of February, at 11 o’clock at night, and should live to the 31st day of January, twenty-one years after, and should at one o’clock of the morning of that day make his will, and afterwards die »y six o’clock in the evening of the same day, he will be held to be of age, and his will be adjudged good. Here the rule is applied in favor of the party, to put a termination to the incapacity of infancy. The case of Fitzhugh v. Dennington, 2 Ld. Raym. 1094; Id. 6 Mod. 200; 1 Salk. 44, — fully supports this doctrine, and it stands recognised and con-iirmed in other cases. See Com. Dig. “Infant,” A; Wrangham v. Hersey, 3 Wils. 274; Herbert v. Turball, 1 Keb. 52; Sid. p. 163. pl. 18; Anon., 1 Ld. Raym. 480. But, many cases may easily be put, where the real fact is allowed to prevail, and to be conclusive. Thus, for example, if a woman makes a ■deed of her land in the morning, and is after-wards married, or dies on the same day, the deed is good. So, if my ancestor die at five o'clock, in the morning, and I enter into his lands at six o’clock, and make a lease at seven o’clock of the same day, the lease is good. So, if the ancestor, and his immediate heir, both die on the same daj-, and the inheritance would pass to different persons, accord- • ing 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. In short, the true doctrine, upon this whole subject, is laid down in Wrangham v. Hersey, 3 Wils. 274, where the court said: “It is said, that there is no fraction in a day; but this is a mere fiction in law (‘Fictio juris neminem laedere debet’); but avail much it may. And this is seen in all matters, where the law operates by relation, and by division of an instant, which are fictions in law.” And, after putting various other illustrations, the court added: “By fiction of law, the whole time of the assizes, and the whole session of parliament may be, and sometimes arc considered as one day; yet the matter of fact shall overturn the fiction in order to do justice between the parties.” See Com. Dig. “Temps.” c. 8. In Combe v. Pitt, 3 Burrows. 1423, 1434. Lord Mansfield approved a similar doctrine, and said: “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. 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.” So that wre see, that there is no ground of authority, and, certainly, there is no reason to assert, that any such general rule prevails, as that the law does not allow of fractions of a day. On the contrary, common sense and common justice equally sustain the propriety of allowing fractions of a (lay, whenever it will promote the purposes of substantial justice. Indeed, I know of no case, where the doctrine of relation, which is a mere fiction of law, is allowed to prevail, unless it be in furtherance and protection of rights, pro bono publico. But it appears to me. that the doctrine assumes a broader importance, under the constitution and laws of the United States.

By the constitution of the United States, “every bill, which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the president of the United States; if he approve it, he shall sign it; but, if not, ho shall return it, with his objections, to the house in which it shall have originated.” [Article 1, § 7.] Now, it seems to me clear, from this language, that in every case of a bill, which is approved by the president, it takes effect as a law only by such approval, and from the time of such approvál. It is the act of approval, which makes it a law; and, until that act is done, it is not a law. The approval cannot look backwards, and, by relation, make that a law, at any antecédent period of the same day, which was-not so before the approval; for the general rule is, “Lex prospicit, non respicit.” Branch, Max. p. 99 (Jenk. Cent. text, 284). The law prescribes a rule for the future, not for the past; or, as it is sometimes expressed, “Lex dat formam futuris, non preteritis negotiis.” And this, in a republican government, is a doctrine of vital importance to the security and protection of the citizen. It is fully rec-ognised in the constitution itself, which declares, that no ex post facto law shall be passed. Put the case, that a statute, passed on the third of March last, which created and punished as public offences certain acts, which were not so before the passage of the statute; and the statute was approved at eleven o’clock at night; and an act was done, in the preceding part of the day, which was innocent at the time when it was done; could it be contended, that the party would be punishable therefor by relation; or that it was not within the prohibition of the constitution, as an ex post facto law, so far as it operated upon his case? If it should be said, that the law does not recognise any fractions of a day, why may we not deem the law in force only from the last instant of the day, instead of carrying it back, by relation, to the first instant of the day? If there be any choice, as to the principle of interpretation, one should think, that that ought to be adopted, in cases of this sort, which is most favorable to private rights and public justice. Surely the constitution is not to be set aside, or varied in its intendment, by mere legal fictions. On the contrary, it appears to me, that in all cases of public laws, the very time of the approval constitutes, and should constitute, the guide as to the time, when the law is to have its effect, and then to have its effect prospectively, and not retrospectively. It may not, indeed, be easy, in all cases, to ascertain the very punctum temporis; but that ought not to deprive the citizen of any rights created by antecedent laws, and vesting rights in them. In cases of doubt, the time should be construed favorably for the citizen. The legislature have it in their power to prescribe the very moment, in futuro, after the approval, when a law shall have effect; and if it does not choose to do so, I can perceive no ground, why a court of justice should be called upon to supply the defect. But, when the time can be accurately and fully ascertained, (as in the present case) when a bill was approved. I confess, that I am not bold enough to say, that it became, by relation, a law at any antecedent period of the same day. I cannot but view such an interpretation as at war with the true character and objects of the constitution.

Upon the whole, my opinion is, that the question adjourned into this court by the district court, ought, upon the statement of facts, to be answered in the affirmative; and that the district court had jurisdiction of the present petition at the time -when it was filed and acted upon; and that it has full jurisdiction to entertain all proceedings thereon, to the close thereof, according to the provisions of tlie bankrupt act of 1S41, c. 9.