TIME - The measure of duration., it
is divided into years, months. days, hours, minutes,
and seconds. It is also divided into day and night.
Time is frequently of the essence of contracts and
crimes, and sometimes it is altogether immaterial.
Lapse of time alone is often presumptive evidence of
facts which are otherwise unknown; an uninterrupted
enjoyment 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 specialty.
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. But
it will be excluded whenever such exclusion, will prevent
a forfeiture. In general, one day is taken inclusively
and the other exclusively.
pleading. The avertment of time is generally necessary
in pleading; the rules are different, in different actions.
In personal actions, the pleadings must allege 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 restrictions.
1st. Time should be laid under a videlicit, or the party
pleading it will be required to, prove it strictly.
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 peril of a failure for variance and here
a videlicit will give no help. 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 venues in transitory matters, namely,
that the plea and subsequent pleadings should follow
the day alleged in the writ or declaration; and if in
these cases no time at all be laid, the omission is
aided after verdict or judgment by confession or default,
by operation of the statute 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.
In real or mixed actions, there is no necessity for
alleging any particular day in the declaration.
In criminal pleadings, it is requisite, generally,
to show both the day and the year on which the offence
was committed; but the indictment will be good, if the
day and year can be collected from the whole statement,
though they be not expressly averred. Although it be
necessary that a day certain should be laid in the indictment,
the prosecutor may give evidence, of an offence committed,
on any other day, previous to the finding of the indictment.
This rule, however, does not authorize the laying of
a day subsequent to the trial.
