
    Joshua Elder, Adm’r, &c. vs. John Bradley.
    ü • Limitation. Statute of. Rule of construction. The various statutes of limitations are rigorous rules, the enactment of which public policy demanded. While it is the duty of the courts to enforce them, they are not bound to give them that construction which will operate most prejudicially to those whose remedies and rights are to be forfeited by them, but rather in favor of the right which in all such eases is imperiled.
    2. Same. Same. Computation of time. Rule as to. Where an administrator or executor relies upon the statute of limitations of two or three years, as the case may be, in bar of a creditor’s demand, the day upon which the administrator or exeeuior qualified must be excluded in the computation of time.
    FROM MONTGOMERY.
    The defendant in error, as a domestic creditor of the estate of M. A. Martin, dec’d, instituted this action of debt in the circuit court of Montgomery against the plaintiff in error, as the administrator. The writ was issued on the 1st day of September, 18'53, “at 20 minutes after nine o’clock, A. M.” The plaintiff in error qualified as administrator on the 1st day of September, 1851, and upon the trial relied upon the statute of limitations of two years. The cause was submitted to a jury at September term, 1854, before the Hon. Wesley W. Pepper, judge, who held in his charge to the jury, that the day of the administrator’s qualification as such was to be excluded by the jury in the computation of time. There was a verdict and judgment for the creditor, from which the administrator appealed in error to> this court.
    James E. Baxley, for the plaintiff In error,
    saidr
    In Jones vs. The Planter's Panic, 5 Humph., 622, the supreme court of Tennessee, reviewing this whole question, as to the day from which' time is to be computed, say: “The principle that seems to govern in all the modern cases is, that the time will be so computed as to save the right intended to be favored by the law, or to be secured to the parties to a contract.”
    Upon this principle was decided the case of “ The King vs. Adderley, Doúg, B., 463, cited in 5 Humph. The statute 20, Geo. H, provided that a sheriff should not be liable to be called upon to return'process, unless within six lunar months after he went out' of office,. And Lord Mansfield decided, that the' day on which he goes out of office, is to be reckoned as part of the six months.
    
      So also, the case of Norris yb. The Hundred of Gautris, where in an action upon the statute of hue and cry, where the robbery was laid, and proved to have been on the 9th Oct. 13 Jac. 1, and the action was brought on the 9th October, 14 Jac. 1, it was held that the action was brought too late. That is, that in computing the time the day on which the offence was committed, was to be included. See Ang. Lim., 42. Upon the same principle was decided, Preshy vs. Williams, 15 Mass., 193. Where it was held, that in computing time under the statute of limitations^ the day when the cause of action accrued, should be included, and that an action brought six years afterwards, on the same day of the month, was too late.
    All these are cases where statutes for the limitations of actions or rights were before the court, and in all, the decision is the same.
    Our act, of 1189, was passed for the benefit of the estates of dec’d. persons, and intended to limit the time within which actions might be brought. It is the estate that the law favors, limiting and taking a right which existed, and the case falls clearly within the principle.
    James M. Quakles, for the defendant in error,
    said:
    The principles which are settled by the weight of authority seem to be:
    1. That the act done, from which the computation of time is made, inclusive of the day, is an act to which the party against whom the time runs is privy. Ang. Lim. 51.
    
      2. That tbe day is excluded, where a right is to be divested or a forfeiture included.
    3. Such a construction is to be given as will operate most to the ease of the party entitled to favor. Ang. Lira. p. 57, note 5. 5 Humph., 622. Vide review of the cases in Ang.' Lira., from page 47 to 60.
    
    Now, as Bradley is clearly in privity — the question is, which of these parties is entitled to the favor of the court. The creditor in pursuit of his honest earnings, or the debtor, who has received the benefit of his labor, and does not pretend to deny the jnstice of the claim, but seeks to avoid it by a defence purely technical.
   TotteN, J.,

delivered the opinion of the court.

Debt — -judgment for Bradley, the plaintiff below, for $381, and Elder, the defendant, appealed in error. The said Elder was legally 'appointed administrator of M. A. Martin, on the 1st of Sept., 1851; this action was instituted by the issuance of the writ on the 1st of September, 1853.

The defendant pleaded the statute of limitations of two years, as a bar to the action. 1789, ch. 23, § 4.

The question is, was the suit instituted within the two years, as limited by the statute?

The provision is, that “creditors” resident in the State, as in this case, 11 Shall within two years from the qualification of • the executor, or administrator,” exhibit and demand their debts, and if they '■‘•fail to demand and bring suit” “ within the aforesaid time limited,n they shall be forever barred.

Eor tbe defendant, the administrator, it is argued, that the day when he “qualified'" and assumed the office, is to be included in the computation, and he relies upon Jones vs. Planters’ Bank, 5 Humph. R., 622. King vs. Adderly, Doug., 463. Norris vs. Hundred of Gautris, Hobart, 139. Presbey vs. Williams, 15 Mass. R., 193.

In the computation of time, from an act done, or an event, or from a date, or the day of a date, there is such discord in the numerous cases, that it is not possible, as it seems to us, to deduce a principle from them, in which they will harmonize.

In Glassington vs. Rawlings, 3 East., 407, it was declared upon the authority of several cases, that where the computation is to be made from an act done, the day when the act is done is to be included. Clayton’s ease, 5 Co., 1. King vs. Adderly, Doug. 463. Cartle vs. Burdett, 3 Term R., 624. Norris vs. Hundred of Gautris, Hobart, 139.

So in Pearpont vs. Graham, 4 Wash. (Cir. Co.) R., 233. Mr. justice Washington said, after reviewing the cases, that where the computation of time is made from an aot done, the day on which the act is performed is included, because the act is the terminus a quo, the computation is to be made. On the contrary, in, Jones vs. Planters’ Bank, 5 Humph. R., 620, where the subject was very much considered, this principle was repudiated, and the comt say, the principle that seems to have governed in all the modern cases is, that the time will be so computed, as to save the right intended to be favored by the law, or to be secured by the parties, to a contract. And it was held, under the Act of 1820, cb. 11, giving the debtor, whose land has been sold by execution, the right to redeem “at any time within two years after such sale,” that the day of the sale is to be excluded in the computation.

This decision rests on the principle, that where it is necessary to save a right, or prevent a forfeiture, the day of the act, or event, will be excluded in the computation. Vid. Dowling vs. Foxall, 1 Ball & Beatty, 193. Bigelow vs. Wilson, 1 Peek R., 485. Lester vs. Garland, 15 Ves. R., 248.

And so in Sims vs. Hampton, 1 Serg. and Rawle., 411, it was held., that in computing the twenty days allowed for an appeal, by the arbitrative statute of that State, the day on which it is entered is excluded, on the principle, that the day on which the act is done, is to be included or excluded, as the nature of the case may require a liberal or rigorous construction.

To the same effect is the opinion of Mr. Kent (4 Com., 95, note) who says there is no general rule on the subject, and in computing time from an act, or an event, the day is to be inclusive, or exclusive, according to the reason of the thing, and the circumstances of the case. It seems, as before intimated, that the principle is not capable of a more precise and definite statement.

But it may be safely assumed, that the tendency of the modern cases is, to exclude the day of the act or event, unless for a special reason, it be necessary to include it. Thus, in Lester vs. Garland, 15 Ves., 248, the day of Sir John Lester’s death, was 'reckoned as exclusive of the six months allowed to Mrs. P. to give security that she would not marry the person named; upon the principle, that where time from a particular event is allowed a party to do an act, the day of the event is to be excluded in the computation, in favor of the right to be seemed by such act. Vide Blaymie vs. Haley, 6 Meeson & W., 49.

Now, from the time when the executor or administrator shall qualify, two years are allowed the creditor to sue for his debt, and if he fail to sue in the time limited, except in certain cases, provided for, his remedy is forever barred. However just and equitable the demand may be, the remedy is denied, and the debt becomes extinct. It is true, it may be a favor to those entitled to the estate of the deceased, but it is an evident injury to the vested rights of the creditor. It is a hard and rigorous rule, which from motives of policy, the legislature has thought proper to declare, and while it is of course the duty of the courts to enforce it, it is not their duty to give it that construction, which will be most to the prejudice of those, whose remedies and rights are to be forfeited by it, but in favor of the right, which in all such cases is in peril. We think it just and reasonable, that a liberal construction be adopted, and that the day when the executor or administrator shall qualify, be excluded in the computation.

The suit was, therefore, instituted in time, that is, on the last day of the time limited, the day when the defendant qualified as administrator, being excluded.

Let the judgment be affirmed. 
      Upon the general subject oí cómputation of time, see, also, Cowper, 114, Pugh vs. Duke of Leeds. 1 Bouv. Inst., 345, § 861. 2 Meigs Dig., 1004, § 1876. 1 Peck, 485, Bigelow vs. Wilson. 2 Swan, 66, 
        Simpson vs. Peck’s Ex'rs. 4 Pick., 167, Wheeler et al. vs. Brent. 1 Chitty’s General Practice, 774, 764, 765. 8 Yerg, 215, Carson vs. Love. 11 Mass. R., 400, Holden vs. James. 2 U. S. Dig., 839, §§ 5, 7, 9, 10, 11, 12, 13, 26. 3 id., 618, §§ 1, 4, 7, 12. 2 Livingston Law Mag., Richardson vs. Ford. 14 Ill. Rep., 332. Ellis, (Hew Series,) 141. Dwarris on Statutes, 779. 2 Gowen, 605, ex parte Dean. 2 id., 659, Homan vs. Liswell, which were cited in this cause.
     