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Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 (5 December 1961)

CATCHWORDS

HEARING

DECISION

2. The conclusion that from and including 27th November 1957 the plaintiff's cause of action was thus barred rests on the combined effect of two matters of law. The first is the meaning and effect of s. 7 of 21 James I c. 16, the Limitation Act, 1623. The second is a positive rule of law, established in or before the seventeenth century, that an infant comes of age on the commencement of the last day which completes his twenty-first year: Eversley on Domestic Relations 3rd ed. (1906) p. 741. (at p268)

3. Section 3 of the Limitation Act 1623 provides that "all actions . . . upon the case (inter alia) . . . shall be commenced and sued within the time and limitation hereafter expressed, and not after, that is to say the said actions upon the case . . . within six years next after the cause of such actions or suit, and not after". The present is of course an action on the case for damages caused to the plaintiff by the defendants' negligence. (at p268)

4. Section 7 of the Act is a proviso relating to various forms of incapacity. It runs - "Provided nevertheless, and be it further enacted, that if any person or persons that is or shall be entituled to any such action of . . . (then follows a list of actions) . . ., be or shall be at the time of any such cause of action given or accrued, fallen or come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas; that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done." The alternative "is or shall be entituled" appears to be employed to cover persons at the passing of the Act who are entitled to actions and persons who afterwards become so entitled. (at p268)

5. In the list of actions in the proviso, actions on the case simpliciter are not expressly included and an argument certainly arises on the terms of s. 7 that disability or incapacity does not prevent time running against an action upon the case. But in Harnett v. Fisher (1927) 1 KB 402, at pp 410, 411 Horridge J. held that s. 7 should be interpreted as covering the same causes of action as s. 3 and therefore as including actions on the case. His Lordship said "On behalf of the plaintiff, it was said that he came within the protection of s. 7 of the Act of 1623 as being a person who, at the time the cause of action accrued, was non compos mentis. It was argued that s. 7, inasmuch as it does not repeat in the description of actions an action upon the case, did not extend the proviso to actions on the case, although these actions were within the earlier section - s. 3. I think the result of the case of Piggot v. Rush [1836] EngR 658; (1836) 4 Ad & E 912 (111 ER 1027) and the authorities cited by the judges in that case, show that on a liberal interpretation of the statute the proviso would extend to actions on the case within s. 3." This view was adopted in the Court of Appeal by Lord Hanworth M.R. (1927) 1 KB, at p 415 , Warrington L.J. (1927) 1 KB, at p 420 and appears to be assumed by Scrutton L.J. and also in the House of Lords by Viscount Sumner (1927) AC 573, at p 580 . Upon the facts of that case these views cannot be regarded as forming a part of the ratio decidendi but they seem to have been treated as determining the point. (at p269)

6. It follows that the plaintiff in the present case was at liberty to bring this action on the case, to describe it in the language of s. 7, "so as he took the same within such time (viz. six years) after his coming to or being of full age". It seems that the alternative form of expression is used to cover not only the coming to full age after the commencement of the statute but the having come to full age before the statute commenced. The point in the case depends primarily upon determining the amount of time which it is intended that an infant shall have to sue upon his obtaining capacity. It seems sufficiently clear that both the policy and meaning of the provision are that he shall have six full years of capacity within which he may sue. That is to say, upon the cessation of his disability he is to enjoy a period of limitation within which he may sue commensurate with that given to a person of full age after the arising of the cause of action. Up to attaining capacity he may sue by a next friend, but as soon as there is a cesser of that disability, a capacity to sue alone arises which is limited only by the expiration of six calendar years. (at p269)

7. The words "after their coming to full age" and the words "after their being of full age" do not mean "after the day upon which they first enjoyed full age" but rather from the beginning of their full age, from the commencement of their full capacity. And this view surely accords with the policy visible on the face of the provision, namely to enlarge the time limited for suing so that a person freed of a disability will have a period of full capacity within which to sue no less than the period within which persons under no disability may sue, a period calculated from and after the day on which the causes of action of such persons arose. Thus as soon as a person entitled to sue in a case becomes twenty-one years of age he enters upon a period of six years within which he may bring his action. (at p270)

8. The next question is, when did the plaintiff become of full age so that time began to run and the ultimate running out of the six calendar years could be determined? Now the first thing to observe is that at whatever hour of the day or night a man is born the whole of that day is reckoned for the purpose of calculating his age: Fractionem diei non recipit lex (Lofft 572). Thus in the anonymous case mentioned in argument in Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) the question was in a devise whether the testator was of age or not. The report says "and the evidence was that he was born on the first day of January in the afternoon of that day and died in the morning of the last day of December: and it was held by all the judges that he was of full age; for there shall be no fraction of a day". In the next place a rule is fixed inveterately that during the whole of the day preceding the twenty-first anniversary of his birth a man is of full age. One might have supposed that it is only on the expiry of that day that his twenty-one calendar years are fulfilled. But the law will have none of this. All day long he is of full age. In Toder v. Sansam (1775) 1 Brown 468, at p 475 [1775] EngR 21; (1 ER 695, at p 700) in the argument which the House is presumed to have adopted it is correctly said "Now the rule of law is clear, and has been established by many determinations, that if, as in the present case, a person be born on the 16th day of a month and be alive on the 15th day of the same month twenty-one years afterwards, that person has attained his age of twenty-one, and that a will devising lands, made by such a person on that day is a good will; because the law makes no fraction of a day". The rule is stated in Simpson on The Law of Infants 3rd ed. (1909) p. 3 very simply: "An infant attains majority on the completion of his twenty-first year, but, except where it is necessary for the purposes of the decision to show which of two events first happened, the law recognizes no fractions of a day, and therefore the year is regarded as completed on the first instant of the day before the birthday. Thus an infant born on the 1st February attains his majority at the first instant of the 31st January." The rule is of considerable antiquity and various explanations have been offered. For example, in speaking of the limitation of a seven-year period Lord Holt said "that the end of seven years was the last day of the seven years, for there is no fraction of a day; and after twelve o'clock at night is after the seven years, for the day is not the end of the seven years, but post expirationem. For the beginning and end of a thing is part of the thing. So if a man were born the first of February, and lived to the thirty-first of January twenty-one years after five o'clock in the morning, and then makes his will and dies by six at night, that will is good, and the devisor is of age": Fitzhugh v. Dennington (1704) 2 Lord Raymond 1094, at p 1095 [1790] EngR 618; (92 ER 225, at p 226) . In Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) North C.J. is reported to have explained it upon the ground that "a day is but punctum temporis and so of no great consideration". Eversley adds to the passage already cited the explanation "For in English law ultimus dies coeptus pro completo habetur". But as a positive rule of English law it requires no explanation. It belongs to the modern law and was recognized and applied by Sargant J.: In re Shurey; Savory v. Shurey (1918) 1 Ch 263 . Of the various applications which the rule has received not the least impressive is that of the law of elections. According to Rogers on Elections it has been held that on the morning preceding the 21st anniversary of his birth a man may vote although he was born at nine o'clock in the morning: Rogers' Law and Practice of Elections 9th ed. p. 156 referring to the Bishop's Castle Case (1820) - unreported. . It follows that throughout the day of 27th November 1951 (i.e. from the midnight separating 26th from 27th November) the appellant Charles John Prowse was of full age. Inasmuch as s. 7 of the Limitation Act, 1623 gave him six more years exactly, that is six years of full capacity, within which he must sue, it was necessary that his summons in this case must issue on or before 26th November 1957. As it was issued on 27th November 1957 it was out of time. (at p271)

9. Accordingly the appeal should be dismissed. (at p271)

McTIERNAN J. The appellant's birthday being 28th November 1930 he completed twenty-one years of life on 28th November 1951 but, of course, it is not possible to say at what time by the clock on that day he did so. A day is not in law divisible and a person is deemed in law for the purpose of computing his age to have lived through the whole of the first day of his life. He would thus have been deemed to have attained full age with the expiration of the day preceding the twenty-first anniversary of his birth were it not for an ancient though artificial rule treating him as of full age throughout the whole of the day preceding that anniversary. As I understand the rule of law applicable to the matter a person is deemed to have become of full age coincidentally with the passing of midnight. In this case that point of time was when the date changed from 26th November 1951 to 27th November 1951. Then his status of infancy ceased and consequently at the earliest point of time included in the day indicated on the calendar by 27th November 1951 the appellant was sui juris. It follows that in computing time for the period of the statute the whole of 27th November 1951 must be included. The result is that the appellant issued the writ six years and a day after coming to full age; the writ was issued on 27th November 1957. The appeal should be dismissed. (at p272)

KITTO J. The appellant was born on 28th November 1930. On 27th November 1957 he commenced an action which, by the operation of the Limitation Act, 1623 (21 Jac. 1 c. 16), was statute-barred unless that day was within a period of six years after his coming to or being of full age. His contention, put briefly, is that the day is to be considered within that period, because 27th November 1951, being a day on which, though he was twenty-one, he was not over twenty-one, is not to be counted as the first day of the period. (at p272)

2. The concession that the appellant was twenty-one on 27th November 1951, the day before his twenty-first birthday, is to be made and accepted because of a rule which is too firmly embedded in the law to be questioned. But the appellant's argument places a particular interpretation upon the rule, and proceeds to construe and apply the Act in the light of that interpretation. It takes the rule to be that a person not only is, but attains, twenty-one on the day before his twenty-first birthday, and, interpreting "after coming to or being of full age" as meaning after the day on which the change occurs and the state of full age exists, it concludes that the day before the twenty-first birthday must be over before the period of six years begins to run. (at p272)

3. The opposing contention treats the expression "coming to or being of full age" as meaning neither more nor less than passing from infancy to full age; and it asserts that a person passes from the one status to the other as the second day before the twenty-first birthday ends. According to this view, what is meant by "being of" full age is the same as is meant by "coming to" full age; that is to say that both expressions refer to reaching full age. So much at least must, I think, be accepted. It may be that the words "being of" should not be understood as applying to full age at all; they seem more probably applicable to the other states mentioned in the Act, "discovert, of sane memory, at large, and returned from beyond the seas". But assuming that they do apply to full age, the expression "coming to or being of" can hardly be intended otherwise than as a composite expression referring to one transition only, namely the transition from minority to majority. (at p273)

4. The critical question therefore is, when does the transition occur. Does it occur at the midnight from which the day before the twenty-first birthday is measured, so that the whole of that day is to be counted as after the transition; or does it occur on, that is to say in the course of, that day, so that the day is to be considered a day of transition, and a period thereafter must be exclusive of the day? (at p273)

5. Upon this question, and consequently on the ultimate question in the case, opinions differed in the Supreme Court. The reasoning which led Manning J. to dissent from the conclusion of the majority of the Court and hold that the appellant's action was not statute barred, began by taking as the established rule of law the proposition that a person does not become free from the disability of infancy until a point of time during the day before his twenty-first birthday, the point of time being described as the first moment of the day. And it proceeded, by invoking the principle that a day is in general to be considered an indivisible unit of time, to reach the conclusion that the whole of the day on which full age is attained according to the initial proposition must be over before a period can begin which the law will recognize as "after" the coming to full age. If the reasoning be examined, however, it will be seen to involve a contradiction which invalidates it. There are not wanting in the cases on the subject expressions appearing, at first sight at least, to support what I have called the initial proposition. But the whole point for which it is used lies in the notion that what is referred to as the first moment of the day is subsequent to midnight. To say that this is so is to assert that an interval of time elapses between midnight and the moment, and that interval of time is a period of minority. This, however, is contrary to the general principle to which the reasoning under consideration immediately appeals, namely that the day is to be considered indivisible; for it divides the day into a period of minority and a period of majority. (at p273)

6. It is difficult to avoid confusion of thought in this by-way of the law, for the settled rule as to when full age is attained was itself born in confusion. When, in the 17th century, judges came to think that on the day before a person's twenty-first birthday he should be held to be of full age, the general principle as to the indivisibility of a day was treated as providing a logical foundation for the conclusion. In truth it did not provide a foundation for the conclusion at all. It did justify treating the whole day of the birth as a day of life, so that twenty-one years might logically be considered complete at the end of the day before the twenty-first anniversary of the birth. But it was in the next step that fallacy seems to have intruded. The end of the day before the anniversary was taken to be a part of the day, so that the twenty-one years were held to end on the day, and hence (on the principle of the indivisibility of a day) at the beginning of the day. The error of thought is revealed in Lord Holt's aphorism that "the beginning and end of a thing is part of the thing". To use the words "beginning" and "end" in relation to a day as if parts of a day could be identified as the first and last parts of the day respectively is to misapply them. The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next; just as the eastern boundary of a piece of land is identical with the western boundary of contiguous land. The principle of the indivisibility of a day having been used as a basis for the first step in an argument which led to infancy being considered to end at some time before the midnight at which the twenty-first birthday begins, there can hardly have been an intention to desert it in the process of identifying that time; and the point to notice is that it would have been deserted if any time had been selected other than the midnight at which the day before the twenty-first birthday begins. Consequently, when it is said, as it is in some of the cases, that full age begins at "the first moment" of that day, the word "moment" cannot be taken to refer to some point of time after the day has begun. It cannot refer to anything but the beginning of the day; and that, as I have said, is the same thing as the end of the day before. (at p274)

7. Accordingly, as it seems to me, the proposition to be accepted as positive law is that full age is attained as the day before the twenty-first birthday begins. If so, the whole of the day is after the coming to or being of full age - just as the whole of a piece of land with a western boundary is east of that boundary. In my opinion the correct view in the present case is that the disability of infancy fell from the appellant at the midnight which was at once the end of 26th November and the beginning of 27th November 1951, and that consequently the whole of 27th November 1951 was after the appellant's coming to or being of full age and must be counted in calculating the statutory six years. (at p275)

8. I agree that the appeal should be dismissed. (at p275)

TAYLOR J. The question in this case is whether the appellant, as the plaintiff in a District Court action, caused the originating process to be issued within six years "after . . . coming to . . . full age". He was born on 28th November 1930 and the summons in the proceedings was issued on 27th November 1957, that is to say, on the day preceding 27th anniversary of his birth. This means that it was issued within a period of twenty-seven years commencing with his natal day and one might be pardoned for entertaining the prima facie view that it was, therefore, issued within six years after he came to full age. (at p275)

2. But this latter proposition was rejected by a majority of the Full Court of the Supreme Court. They took the view that the appellant's disability of infancy ceased "at the expiration of 26th November 1951" and that the first day of the prescribed period of six years was the following day, i.e. 27th November 1951. If this be correct then the last day of the period was 26th November 1957 and the appellant brought his action out of time. (at p275)

3. It has, of course, long been settled that coming of age does not await the twenty-first anniversary of a person's birth. But in no case, as far as I can see, has it ever been suggested that full age is attained before the commencement of the day preceding such twenty-first anniversary. As stated by Sir William Blackstone (The Commentaries Vol. 1 pp. 463, 464) "full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth; who till that time is an infant, and so stiled in law". According to Simpson's Treatise on the Law and Practice relating to Infants 3rd ed. (1909) p. 3: "An infant attains majority on the completion of his twenty-first year, but, except where it is necessary for the purposes of the decision to show which of two events first happened, the law recognizes no fractions of a day . . . ". In Toder v. Sansam [1775] EngR 21; (1775) 1 Bro PC 468, at p 475 [1775] EngR 21; (1 ER 695, at p 700) , where the question was whether a devisee had "accomplished" his full age of twenty-one years the rule of law was said to be clear and "established by many determinations, that if, as in the present case, a person be born on the 16th day of a month, and be alive on the 15th day of the same month twenty-one years afterwards, that person has attained his age of twenty-one . . . ". Consistently with these and many other like statements of the rule it can, therefore, be asserted that a person has come to full age if he is found to be surviving on the day preceding the twenty-first anniversary of his birth. (at p276)

4. But, except in circumstances not material to be mentioned, the law takes no account of fractions of a day; "a day is", as North C.J. said in Nichols v. Ramsel (1677) 2 Mod 280, at p 281 (86 ER 1072, at p 1073) , "but punctum temporis". It should, however, be observed that this case was concerned with identifying, not the first day of a specified period, but the last day to which an agreement for accord or satisfaction was applicable. The agreement was in respect of "all trespasses usque ad the said 24th day of April" and on the principle that a day was but punctum temporis "and so of no great consideration" his Lordship included 24th April as the last day. But the other justices who sat in the case did not agree in his conclusion and took the view "that the word usque was exclusive". But upon principle and authority it is clear that full age is attained by a person even though he dies at some time on the day preceding the twenty-first anniversary of his birth (See also In re Shurey; Savory v. Shurey (1918) 1 Ch 263 . Thus in Fitzhugh v. Dennington [1790] EngR 1498; (1704) 2 Lord Raymond 1094 (92 ER 225) Lord Holt said: "So if a man were born the first of February, and lived to the thirty-first of January twenty-one years after five o'clock in the morning, and then makes his will and dies by six at night, that will is good, and the devisor is of age" (1704) 2 Lord Raymond, at p 1096 (92 ER, at p 226) . Likewise - "a will devising lands, made by such a person on that day, is a good will; because the law makes no fraction of a day". (Toder v. Sansam (1775) 1 Brown 468, at p 475 (1 ER 695, at p 700) ). As Sir William Blackstone observes in a foot-note to the passage already quoted from the Commentaries - "If he is born on the 1st of January, he is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day; and if the birth were on the first second of one day, and the act on the last second of the other, then twenty-one years would be complete; and in the law it is the same whether a thing is done upon one moment of the day or on another". (at p276)

5. As I understand these and other observations to the like effect it is true to say that the appellant attained full age on 27th November 1957, but since the law takes no account of fractions of a day, he must be taken to have attained that age at the earliest moment of that day. But he was not of full age until that day commenced. This is so whether one says that the appellant attained full age on the first moment or at the first instant of the day or that he attained full age with the commencement of the day. It is also true to say the appellant attained full age "at the expiration of 26th November 1951" but only if that expression identifies the commencement of 27th November. (at p277)

6. But to my mind it is of little consequence in the case how one describes the precise point of time at which the day commences for in identifying that point of time we also identify the precise point of the commencement of any period which commences on or begins with that day. That being so a period of six years which included 27th November 1951 commenced contemporaneously with the attaining of the appellant of full age. To my mind that period was not a period of six years after the appellant came to full age and, upon what I think to be the true construction of the statutory provision, that day should be excluded. (at p277)

7. Nor do I think that any modification of this conclusion is required, or warranted, by the proposition that the statutory provision, on its face, discloses a policy to enlarge the time limited for suing so that a person freed of the disability of non-age should have for this purpose no more and no less than six years of full age. That may or may not have been the policy of the legislature. But, in my view, there is just as much to be said for the proposition that the legislature intended to place a person to whom a cause of action has accrued during his minority in the same position as if the cause of action accrued on the day when he attained full age. Indeed, to hold otherwise would mean that such a person would have one day less than a person who, at precisely the same point of time, ceased to be under any other of the disabilities mentioned in the provision. (at p277)

8. For these reasons the appeal should, in my opinion, be allowed. (at p277)

WINDEYER J. In measuring lapse of time the common law eschews metaphysics. Nevertheless some nice questions have arisen for the courts. In one of the first references to the topic, Dyer's note of Thomas Somerset's Case in 1562, it is said "ceo fuit un narrow pinche in le case". There have been narrow pinches since then. (at p277)

2. For most purposes of the law time is measured by days; and events are assigned in time to calendar days. Lawyers naturally adopt the spatial concept of time of ordinary thought and language. It follows that time is measured in periods; and any period or space of time, a year, a day, an hour, is, in theory at all events, divisible. But, as a day is for law the unit of measure in most cases, it was early said that the law was not concerned with divisions of a day. Coke himself said so when he was at the bar, in his argument in Smith v. Hillier (1590) Cro Eliz 167 (78 ER 425) . But in Combe v. Pitt [1763] EngR 88; [1763] EngR 88; (1763) 3 Burr 1423, at p 1434 [1763] EngR 88; (97 ER 907, at p 913) Lord Mansfield remarked that: "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" (1763) 3 Burr, at p 1434 (97 ER, at p 913) . The word "instant" has, however, long been used to describe a moment in the passage of time that is indivisible because infinitesimal - "like a mathematical point" to use Lord Mansfield's simile. True it is that Rastell said in 1667 that even "the instant time, that is not divisible in nature, in the consideration of the mind and understanding of the Sages of the law is divided; upon which arise many arguments of great use and profound learning": Termes de la Ley, sub tit. "instant". But arguments need not continue to arise if Coke's meaning and understanding of an "instant" be accepted. He said: "Instant est unum indivisibile tempore quod non est tempus nec pars temporis, ad quod tamen partes temporis connectuntur . . . Instans est finis unius temporis et principium alterius": Co. Litt. 185b. This echoes Plowden's statement that "every instant contains the end of one time and the commencement of another": Hales v. Petit (1563) 1 Plowden, at p 258 (75 ER, at p 395) . (at p278)

3. A day, the period of the earth's axial rotation, is the natural and fundamental division of time. A day for legal purposes is the mean solar day, a period of twenty-four hours. These hours are reckoned from midnight to midnight, the instant of midnight being both the end of one day and the beginning of the next, for there are no rests in time, and as each instant comes it goes. A day has a significance for law in two ways: first, as a division of time, that is the space of time within which an event happened or is to happen, or something was done or is to be done: secondly, as a measure of the passage of time, a unit in a period of time. The distinction tends to become blurred because the passage of time is sometimes spoken of as itself an event, as if it were of the same order as an event that occurs in time. But this is misleading. The birth of a man is an event. His attaining twenty-one is not, in the same sense, an event. It is merely a way of saying that a certain period of time, twenty-one years, has passed since he was born. The importance of this distinction will become apparent. (at p278)

4. Time is a local phenomenon. An interesting discussion of this occurred in Curtis v. March [1858] EngR 1183; (1858) 3 H & N 866 (157 ER 719) . Watson B. had taken his seat on the bench at Dorchester punctually at ten by the clock in the Court, and the cause being called on and the defendant not appearing had directed a verdict for the plaintiff. Later, counsel appeared and claimed that the Court had sat before the appointed hour ; for the Court clock recorded Greenwich time and the town clock Dorchester time, which was some minutes later. On appeal a new trial was directed because the time of the place should prevail. "We are as much bound", said Pollock C.B., "to take judicial notice that a particular place lies east or west of Greenwich, and consequently has a different time from it, as we are to know the days of the year" (1858) 3 H & N, at p 867 (157 ER, at p 719) . Practical difficulties arising from differences in mean solar time at different places are, however, largely overcome by the statutory adoption for legal purposes of Greenwich mean time, or of standard zone times related to Greenwich mean time (with, in some places and seasons, distortions by "summer time") : see for New South Wales the Standard Time Act, 1902, consolidating the Standard Time Act of 1894. So that the date and time of an event or of an act are ordinarily the date and time determined by the calendar and clock at the place where the event happens or act is done, notwithstanding that the actual occurrence is at different times in different parts of the world. When effluxion of time has to be considered, a somewhat similar result occurs. Suppose twins born at Greenwich on the same day ; the elder, born just before his brother, remains in England ; the younger comes to Sydney, and immediately on coming of age speaks by telephone to his elder brother in England. He is an adult, his brother is still an infant. Yet the duration of their infancy is computed from the same moment, namely the beginning of the day they were born. Some interesting situations can be imagined on this basis with results even more striking than the experience of Phileas Fogg. It seems, however, that any question of personal rights, capacities, disabilities, or qualifications gained or lost by the lapse of a given period of time must be determined according to the clock and the calendar at the place where the person in question is. This matter is not directly relevant here ; but it illustrates that concepts concerning the expiry of a given period of time, are elusive and in a sense artificial ; and the legal problems they create must be determined by the application of rules of law. (at p279)

5. As has been said, the law in reckoning time by days ordinarily takes no account of fractions of a day. The result is that, whenever a period of days has to be computed from an act or an event that occurs within the space of a day, a decision must be made whether to start the reckoning from the beginning or the end of that day. Much the same question arises when a period is to be calculated up to the time when an act is done or an event happens. It may be that the mediaeval fondness for the period of a year and a day was in some way related to a desire to ensure the lapse of a full year. In the form the question is ordinarily now put it is whether the day of commencement of a period (or the day of its completion) is to be included or excluded in counting a given number of days. As to that, there is no universal rule. Where it is not prescribed by statute (as for example in the Interpretation Act of 1897 (N.S.W.), s. 35 (11)) the answer depends upon context and circumstances : In re North ; Ex parte Hasluck (1895) 2 QB 264 ; and see Belfield v. Belfield [1945] VicLawRp 40; (1945) VLR 231 , per O'Bryan J. and Ex parte Toohey's Ltd ; Re Butler (1934) 34 SR (NSW) 277 ; 51 WN 101 , per Jordan C.J. (1934) 34 SR (NSW), at p 285 ; 51 WN at p 103 . The observations of Grant M.R. in Lester v. Garland [1808] EngR 326; (1808) 15 Ves Jun 248, at p 257 [1808] EngR 326; (33 ER 748, at p 752) - that, because a day is treated as indivisible, an act "done in the compass of a day" cannot properly be said to be passed until the day is passed - are a convenient, if not very scientific, explanation of the solution adopted in some cases. But this case does not turn on the computation of time after an act, or an event. It turns on what is meant by "within six years after coming to full age". Cases on limitations of time from the accrual of a cause of action are beside the point, for, as I have said, coming of age is not something that occurs "within the compass of a day". It is simply the end of a period of days. The actual words of the Limitation Act, 1623, s. 7, are "after coming to or being of full age" ; so that, when it was enacted, the statute applied to persons then being of full age as well as to persons who would thereafter come to full age. (at p280)

6. In calculating a person's age the law says that the day of his birth is to be included. At whatever time of the day he is born, that day is counted ; and, a day not being divisible, it is as if he were born at the first instant of that day. When on this basis does he come to full age? As a given period of days elapses at midnight on the last day of the period, it might well seem that a person could not be said to be of full age at any time before the close of the day preceding the twenty-first anniversary of his birth. But the laws says that is not so. He is to be regarded as having become of age at the beginning of that day - that is at the first instant of the day before his birthday. This is an artificial rule, originally derived by what seems to be mistaken reasoning from the fact that the years of men's lives are numbered by days and not by fractions of days. The rule, is, moreover, not consistent with the law's method of computing lapse of time for any purpose unrelated to reaching an age. In that sense it is anomalous. But it has long been a settled rule of law. During the whole of the day before the anniversary of his birth a man is of full age and capacity in law. He is not during that day coming of age. He had come of age when the day began. The days of his nonage had at that instant passed. I need not go through the authorities for this proposition. Several of them are referred to by the Chief Justice, whose judgment I have had the advantage of reading. It follows that in computing a period after a man's coming to full age the day before his twenty-first birthday must in law be counted as the first day of that period. (at p281)

7. The computation of a period of six years after coming to full age may perhaps seem to yield a result different in one sense, from that given by the computation of the same period from the cesser of the other disabilities to which the Limitation Act refers, such as coverture or imprisonment or absence beyond the seas. But each of those disabilities is brought to an end by an event occurring on a day, that is within the compass of a particular day, and time must be reckoned accordingly ; whereas infancy is not terminated by such an event, but merely by the effluxion of time. This distinction I again emphasize, for it is critical in this case. (at p281)

8. The appeal should, in my opinion, be dismissed. (at p281)

ORDER