TIME, contracts, evidence, practice. The measure of duration., It is divided into years, months. days, (q. v.) hours, minutes, and seconds. It is also divided into day and night. (q. v.)
2. Time is frequently of the essence of contracts and crimes, and sometimes it is altogether immaterial.
3. Lapse1 of time alone is often presumptive evidence of facts which are otherwise unknown; an uninterrupted enjoyment2 of certain rights for twenty or twenty-one years, is evidence that the party enjoying them is legally entitled to them; after such a length of time, the law presumes payment of a bond or other specialty3. 10 S. & R. 63, 383; 3 S. & R. 493; 6 Munf. R. 532; 2 Cranch, R. 180; 7 Wheat. R. 535; 2 W. C. C R. 323; 4 John. R. 202; 7 John' R. 556; 5 Conn. 1; 3 Day 289; 1 McCord 145; 1 Bay, 482; 7 Wend. 94; 5 Verm. 236.
4. In the computation of time, it is laid down generally, that where the computation is to be made from an act done, the day when such act was done is included. Dougl. 463. But it will be excluded whenever such exclusion4, will prevent a forfeiture5. 4 Greenl. 298. Sed vide 15 Ves. 248; 1 Ball & B. 196. In general, one day is taken inclusively and the other exclusively. 2 Browne; Rep. 18. Vide Chitt. Bl. 140 n. 2; 2 Evans , Poth. 50; 13 Vin. Abr. 52, 499; 15 Vin. Ab. 554; 20 Vin. Ab. 266; Com. Dig. Temps; 1 Rop. Legacy6, 518; 2 Suppl. to Ves. jr. 229; Graham's Pract. 185; 1 Fonbl. Equity7, 430; Wright, R. 580; 7 John. R. 476; 1 Bailey, R. 89; Coxe, Rep. 363; 1 Marsh8. Keny. Rep. 321; 3 Marsh. Keny. Rep. 448; 3 Bibb, R. 330; 6 Munf. R. 394; vide Computation.
TIME, pleading. The avertment of time is generally necessary in pleading; the rules are different, in different actions.
2. - 1. Impersonal9 actions, the pleadings must allege10 the time; that is, the day, month and year when each traversable fact occurred; and when there is occasion to mention a continuous act, the period of its duration ought to be shown. The necessity of laying a time extends to traversable facts only; time is generally considered immaterial, ana any time may be assigned to a given fact. This option, however, is subject to certain restrictions11. 1st. Time should be laid under a videlicit, or the party pleading it will be required to, prove it strictly12. 2d. The time laid should not be intrinsically impossible, or inconsistent with the fact to which it relates. 3d. There are some instances in which time forms a material point in the merits of the case; and, in these instances, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved. With respect to all facts of this description; they must be truly stated, at the peril13 of a failure for variance14; Cowp. 671: and here a videlicit will give no help. Id. 6 T. R 463; 5 Taunt15. 2; 4 Serg. & Rawle, 576; 7 Serg. & Rawle, 405. Where the time needs not to be truly stated, (as is generally the case,) it is subject to a rule of the same nature with one that applies to venues16 in transitory matters, namely, that the plea and subsequent pleadings should follow the day alleged17 in the writ18 or declaration; and if in these cases no time at all be laid, the omission19 is aided after verdict or judgment20 by confession21 or default, by operation of the statute22 of jeofails. But where, in the plea or subsequent pleadings, the time happens to be material, it must be alleged, and there the pleader may be allowed to depart from the day in the writ and declaration.
3. - 2. In real or mixed actions, there is no necessity for alleging23 any particular day in the declaration. 3 Bl. Com. App. No. 1, §6; Lawes' Pl. App. 212; 3 Chit. Pl. 620-635; Cro. Jac. 311; Yelv. 182 a, note; 2 Chitt. Pl. 396, n. r; Gould, Pl. c. 3, §99, 100; Steph. Pl. 314; Com. Dig. Pleader, C 19.
4. - 3. In criminal pleadings, it is requisite24, generally, to show both the day and the year on which the offence was committed; but the indictment25 will be good, if the day and year can be collected from the whole statement, though they be not expressly averred26. Com. Dig. Indictm. G 2; 5 Serg. & Rawle, 315. Although it be necessary that a day certain should be laid in the indictment, the prosecutor27 may give evidence, of an offence committed, on any other day, previous to the finding of the indictment. 5 Serg. & Rawle, 316; Arch. Cr. Pl. 95; 1 Phil Evid. 203; 9 East, Rep. 157. This rule, however, does not authorize28 the laying of a day subsequent to the trial. Addis. R. 36. See generally Bouv. Inst. Index, h. t.
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