Menges v. Frick

The opinion of the court was delivered May 17th 1873, by

Williams, J.

The only question necessary to be considered in this case is, was the plaintiffs’ action barred by the Statute of Limitations ? The last item of timber in the account sued on was delivered on the 6th of October 1862, and the action was commenced on the 6th of October 1868. The act provides that actions for account shall be commenced and sued “ within six years next after the cause of such actions or suit, and not after.” There can be no doubt that the cause of action in this case arose on the day the timber was delivered. If that day is to be excluded from the reckoning, the six years had not expired when the suit was commenced. But why, even if the words of the act are to receive a strict and literal construction, should it not be excluded ? “ Within six years next after the cause of action or suit,” as applied to the facts of this case, must necessarily mean within six years next after the day on which the timber was delivered. The day of the delivery must, therefore, be excluded in counting the time within which the action may be brought. If suit may be commenced within six years next after the day on which the cause of action arose, then it is too plain for argument that that day is not to bo included in the computation. But if there could be any doubt as to the proper construction and meaning of the act, the rule must now be regarded as settled that when an Act of Assembly requires a thing to be done within a certain time from or after a prior date, and deprives the party of a right for omitting it, the most liberal construction is to be chosen, and the furthest time given from which the reckoning is to be made.- In other words, the day from or after which the count is to be made, is to be excluded in computing the time within which the act may be done: Green’s App., 6 W. & S. 327; Cromelien v. Brink, 5 Casey 522; Marks’s Ex. v. Russell, 4 Wright 372; Brisben v. Wilson, 10 P. F. Smith 452 ; Duffy v. Ogden, 14 Id. 240. The court below was, therefore, in error in instructing the jury that the Statute of Limitations is an available defence to this action, and the plaintiffs cannot recover the account claimed.

J udgment reversed, and a venire facias de novo awarded.