maxim, that judgments and acts of parliament are of the first day of the term or of the session. As to judgments, for the sake of a lien on land, an exception has been introduced by statute.(a) A fiction shall not be contradicted, in order to defeat the ends of that fiction; but it may be contradicted, if its objects are not thereby destroyed." And, in delivering the ultimate judgment of the court, his Lordship says: "It is laid down in Johnson v. Smith, 2 Burr. 950, 1 W. Bl. 207, that judgments shall be complete, and shall bind, to all intents and purposes, by relation. This is the rule of the common law, and no authority can be found to contradict it. In Standford v. Cooper, Cro. Car. 102, a sci. fa. was brought on a judgment in debt obtained in Hilary Term; the defendant pleaded a statute acknowledged the 22d of January; and, on demurrer, it was adjudged that the judgment related to the essoin day. That was a very strong case, for, the statute was acknowledged on the day before the first day of the term, and the court, which is *bound to take notice of its own proceedings, must know [*54 and see that the judgment could not be given till the 23d of January, and consequently, was subsequent to the statute. They held, however, that the legal fiction and relation should prevail against the truth and fact of the case. In Gerrard v. Norris, Latch, 53, the plaintiff was in under an elegit, the judgment being given crastin. Trin., which was the 20th of June. The defendant claimed by virtue of an extent under a statute of the same term, but earlier, viz. the 20th of June. The reporter adds, he heard that it was adjudged that the plaintiff had the better right, because he claimed to be in under a judgment, and all the term is only one day in law. In that case, the attempt was, to make a fraction of a day; and the defendant pleaded that his statute was before the judgment, but the court would not allow it. In Miller v. Bradley, 8 Mod. 189, the defendant moved to have the execution set aside, because the judgment on which it was taken out was not really a judgment till the morrow of the Holy Trinity, and so was not sufficient to warrant the issuing of the execution; but the court said that it was a judgment of the first day of the term in which it was obtained, by relation. It must, from the argument, have been sworn that the judgment was not in truth and in fact given till the morrow of the Holy Trinity: but the court held, that though the fact appeared, the legal relation must prevail." Upon the same principle, it was held, in Jacobs v. Miniconi, 7 T. R. 31, that the death of the defendant between the commission day and the day of trial, is not a ground for setting aside the verdict for the plaintiff. (6) [MAULE, J.-The real reason for that is given in the case in Salkeld, which is referred to, viz. that it is a remedial law, and to be construed

(a) 29 Car. 2, c. 3, ss. 13, 14, 15.

(b) As to sittings in term, see Taylor v. Harris, 3 B. & P. 549.

so as to further it.] *In Greenway v. Fisher, 7 B. & C. 436 *55] (E. C. L. R. vol. 14), 1 M. & R. 330, where a verdict in trover was obtained in vacation against a trader, who, after the first day of the next term, but before final judgment was signed, became bankrupt, it was held that final judgment signed afterwards during the same term, related to the first day of the term, and that the debt thereby created was barred by the bankrupt's certificate. In Rex v. Shaw, R. & R. C. C. 526, it was held, that, if the record of the conviction of a prisoner is produced by the proper officer, no evidence is admissible to dispute what it states. Where fictions of law operate hardship, the inconvenience resulting from a rigid adherence to the strict rule of law is in many cases aided by amendments: Ladd v. Arnaboldi, 1 C. & J. 97,† The King v. Carlile, 2 B. & Ad. 362, 971 (E. C. L. R. vol. 22). But this is not a case in which the court would allow an amendment to defeat the policy of the law.

MAULE, J.-This case has been argued before us in a very learned and elaborate manner; every authority which could have the remotest possible bearing upon the subject, has been referred to: but I must own that I have not throughout entertained the slightest doubt. The action was in trover, to which there was a plea of not possessed. The plaintiff claimed the goods in question under a deed of assignment, executed on the 20th of March, 1851, by Thomas Whitaker, the plaintiff's brother. It appeared, that Thomas Whitaker, the assignor, and George Whitaker, his father, were tried and convicted of felony at the last Spring Assizes for the county of Cambridge; that the commissionday of the Assizes was the 19th of March; and that the trial and conviction of the prisoners took place on the 22d. The substantial defendants in this action, were, the Corporation of Cambridge, who claimed as grantees of the goods and chattels of felons convict, &c. It was found by the jury *that the conveyance under which the plaintiff *56] claimed was executed bonâ fide and for a valuable consideration; and he had, no doubt, a good title, unless it was taken away by the assignor's conviction. The record of the conviction was produced by the defendant, drawn up probably at his instance; and it was insisted that, inasmuch as the assizes commenced on the 19th of March, and the record in point of form showed that all that was done at these assizes took place on that day, it was not competent to the plaintiff to give parol evidence that the conviction in point of fact took place on the 22d, for, that would be to contradict the record. The record of the conviction begins with a caption, that, at a certain assize held on the 19th of March, 1851, at, &c., the jury presented so and so; and thereupon it is considered, &c. I find no allegation that the thing took place on the particular day, except as above mentioned. It must be intended that the conviction took place at the assizes; and it must be intended, if it is not competent to the plaintiff to show the contrary,

that the assizes began and ended on the 19th of March. The record is, no doubt, evidence of the matters stated in it. But the question is, whether, where the assizes continue for several days, it may not be shown that in point of fact the trial and conviction did not take place until the 22d. I apprehend that it may, consistently with every principle of law, and every decided case. It is perfectly well known, and is indeed matter of judicial cognisance, that the assizes may, with or without adjournment, continue beyond a day, and, so continuing, may without any impropriety be described as it is described on this record. There is no necessity for stating any adjournment from day to day. But, is it to be said, that, because the proper form of describing the assizes, is, to describe them as being held on the commission-day, the plaintiff is therefore barred from showing the actual fact? It is said, that, by offering evidence *to show that the conviction took place on the 22d, the plaintiff was offering to prove something [*57 inconsistent with and contradictory to the record. That is a fallacy. He does not show anything inconsistent with the record. No doubt, it would primâ facie be intended that the assizes in question finished as well as began on the 19th of March: but that expression is capable of meaning that the assizes continued beyond the one natural day; and, when you allege that the conviction actually occurred on the 22d, you are not showing that it did not take place on the 19th, in the sense in which it is so stated in the record,-viz. that the assizes commenced on the 19th, and that the conviction took place during the continuance of those assizes. There is no more inconsistency in that, than there would be in showing that the conviction took place at a particular hour on the 19th; and I apprehend nobody would deny that that might be shown, if necessary. That is the real principle upon which I think we are bound to decide this case: and it is quite reconcilable with the doctrine as to fictions of law, which are never permitted to prevail against justice. In Roe d. Wrangham v. Hersey, 3 Wils. 274, it is said,-" By fiction of law, the whole term, the whole time of the assizes, and the whole session of parliament, may be, and sometimes are, considered as one day; yet the matter of fact shall overturn the fiction, in order to do it is rather a legal phrase which comprehends every day of the assizes. justice between the parties." This can hardly be called a fiction of law; Several other cases have been cited to show that the whole term is in law considered as one day: but it is not so for all purposes, otherwise there could not have been several return days. The relation to the first day of the term is in most cases matter of direct operation of law, and not of fiction. Thus, a judgment, though signed on the last day of the term, operates and takes effect from the first day. In *this there is nothing inconsistent or incongruous. So, an execution has relation back to a particular time,-now, to the time of its delivery into the sheriff's hands. So, in the case of bankruptcy, F

[*58

the property vests in the assignees by relation from the act of bankruptcy. That is the nature of the relation to the first day of term. In the case of acts of parliament, it had been judicially determined, that, in the absence of any particular provision for its commencement, every act of parliament passed in a session took effect from the first day thereof. It was perfectly competent to the legislature to alter that relation. There was no question of fiction of law. Upon the broad general principle that the truth is always to prevail against fiction, and that there is here no contradiction in substance to what is stated upon the record which was produced, the case of the plaintiff seems to me to be unanswered.

The last point is perfectly new, and it is so startling that I do not apprehend it will ever become old. No doubt, it is competent to the law to say that the property of felons shall be forfeited from the first day of the assizes. But the law has not said so. The jury in this case have expressly found that the conveyance to the plaintiff was bonâ fide, and for a valuable consideration. If the argument urged on behalf of the defendant were to prevail, the effect might be,-in a place like Liverpool, for instance, where the assizes frequently continue for three weeks,that a prisoner might be convicted of a felony committed after the commencement of the assizes, and, supposing him to be a trader, all dealings with him in the interim, even before the offence committed, would be invalidated. I cannot think the law could sanction so manifest an absurdity. For these reasons, I think the rule to enter a verdict for the defendant upon the issue on not possessed, should be discharged.

*WILLIAMS, J.—I am entirely of the same opinion. I agree *59] with my Brother Maule, that the counsel for the defendant have cited every case that could be brought to bear upon this case; and I say this, because, in the interval between the commencement and the conclusion of the argument, I have been unable to discover any authorities which could throw any additional light upon the question. It is said that we are not at liberty to act upon the truth, but that we are constrained by a positive rule of law to hold that the conviction of the prisoners took place on the first day of the assize. If the argument is well founded, the doctrine must equally apply to bonâ fide purchases made under the circumstances alluded to by my Brother Maule. The consequences are so absurd as to induce one to doubt the soundness of the rule suggested. I agree with my Brother Maule in thinking, that, though for some purposes the whole assizes and the whole term are to be considered as one legal day, the court is bound, if required for the purpose of doing substantial justice, to take notice that such legal day consists of several natural days, or even of a fraction of a day. I therefore think it was competent to the plaintiff in this case to show that the assignor's conviction actually took place on a day posterior to the date of the assignment, and that, to do so, was not in any degree to contradict the record. Rule discharged.

*WILLIAM BEER v. ADAM WARREN BEER. Feb. 5. [*60

The statute of apportionment, 4 W. 4, c. 22, does not apply as between the personal representative and the heir of a tenant in fee.

A. and B., tenants in common in fee, made a joint demise of land to C., with a general reddendum, not saying to whom the rent was payable. A. died on the 15th of March, 1848, and B. received the half-year's rent due at the following Lady-Day, less 128. 6d., which he deducted as the share of A.'s heir, for the period between A.'s death and the time the half-year's rent became due:-Held, that, although the words of the demise were joint, the reversions were several, and the rent followed the reversions; and, consequently, that the heir of A. was entitled to the moiety of the half-year's rent accruing at Lady-Day, 1848, and might maintain an action of account against B., as bailiff, upon the statute 4 Anne, c. 16, s. 27, for receiving more than his just share.

Held, also, on motion in arrest of judgment, that the declaration was good without an averment that a reasonable time had elapsed between the request to account and the commencement of the action.

THIS was an action of account. The declaration stated that one Thomas Beer was seised in his demesne as of fee of and in one undivided moiety or half part, the whole in moieties to be divided, of and in certain closes or pieces or parcels of land, with the appurtenances, to wit, Cribhouse Common, Inner Cribhouse Common, Lower Furzey Piece, Higher Furzey Piece, and Little Common, situate in the parish of Leigh, in the county of Dorset, and, being so seised of and in one undivided moiety or half part, the whole in moieties to be divided, of and in the said closes or pieces or parcels of land, with the appurtenances, as aforesaid, he the said Thomas Beer afterwards, to wit, on the 8th of March, 1848, died seised thereof; whereupon and whereby the said undivided moiety or half part of and in the said closes or pieces or parcels of land, with the appurtenances, then descended and came to the plaintiff, as son and heir of one William Beer, who was brother of the said Thomas Beer; and thereby he the plaintiff then became, and from thence for a long space of time, to wit, hitherto, was seised of and in the same undivided moiety or half part, the whole in moieties to be divided, of and in the said closes or pieces or parcels of land, with the appurtenances, in his demesne as of fee; and the defendant, during all the time aforesaid, held the said closes or pieces or parcels of land, with the appurtenances, with the plaintiff, as tenants in common and the defendant had *also, during all the time aforesaid, [*61 the care and management of the whole of the said closes or pieces. or parcels of land, with the appurtenances, to receive and take the rents, issues, and profits thereof, and, as bailiff of the plaintiff of what he received more than his just share and proportion thereof, to render a reasonable account thereof to the plaintiff, and his said share thereof, when the defendant should be thereunto afterwards requested, according to the form of the statute in that case made and provided: and, although the defendant, during the time aforesaid, received more than his just share and proportion of the rents, issues, and profits of the said closes or pieces or parcels of land, with the appurtenances, and