Bellasis vers hester S C Lutw plead Lutw post vol in real action the writ may  abate in part in personal one it can there shall be no fraction of a day vide  dyer pl cro Elizabeth   b post unless to prevent a inconvenience vide burr  will Cowp vin where time be to be compute from a act do the day in which the  act be do must be include r send for   I a hob post dougl d send for   Litt b  cro James vide vin but see also ante where from the day itself exclude r send  for Cowp d send for   b cro James   light b post vide vin but see also will  Cowp Powell on power to on a bill of exchange Payable a certain number of day  after sight the day of the sight shall be include say vide Bayley ante on a  plea in abatement of the writ no exception can be take to the count before the  writ be adjudge good vide Carth the want of a defence in a plea can only be  object to upon a special demurrer S C vin pl assumpsit for the plaintiff  declare upon a bill of exchange for Payable ten day after sight and that the  bill be see by the defendant and accept the five of may and then he show  another assumpsit for the other c the defendant crave a oyer of the original  and upon that pray that the writ may abate quoad chiefs promise because the  original bear testae the fifteen a vide ford v Burnham barn that Edward dougl  a r content ante Lord Raymond er p of may and the bill be not Payable until  ten day after sight et quoad alteran promise be plead in bar without defence  the plaintiff demurrer it be argue by the defendant counsel that if the bill  be payable ten day after sight the day of sight shall be take exclusive as  well by reason of the word post as because it be always so understand among  merchant but the court be of opinion Lord Raymond that in real action the writ  may abate in part but in personal action a writ can abate in part therefore  admit that the day be exclude here the writ must abate for the whole or not  all that there be no fraction of a day in this case but that it shall be  entire include or exclude in this case for the law will never account by  minute or hour to make priorities in a single day unless it be to prevent a  great mischief or inconvenience as if a bind be make the first day of January  and this good be release the same day the bind may be aver to be make before  the release so if a feme sole bind herself in a bind and the same day marry  one may aver that she marry after the bind deliver in assize it appear that  the seize be do the same day on which the writ be testae yet this shall not  abate the writ because the assize may be purchase after the seize that if  there be a custom among merchant that the day of the sight shall be exclude it  ought to have be plead special for it be a special custom of which the court  can take knowledge without plead and Powell justice say that the court will  take notice of the law a merchant as that there be no survivorship or of a  general custom as gavelkind but that such special custom as this here ought to  be plead as be a action upon a bill of exchange unless the plaintiff declare  upon a custom to support the assumpsit accord to the common form the action a  will not be maintainable Powell and Nevil justice be of opinion that the day  in this case ought to be include so that the day on which the bill be show  shall be reckon one of the ten for accord to clayton case   a and all the book  when the computation be to be make from a act do the day in which the act be  do must be include because since there be no fraction in a day that act relate  to the first moment of the day in which it be do and be as if it be then do  but when the computation be to be from the day itself and not from the act do  there the day in which the act be do must be exclude by the express word of  the party as if a lease be make to commence a die act of giving the day be  exclude but if it be a confectioner which be a act do the day of the make  shall be include but Treby chief justice contra hold that if a bill be Payable  ten day after sight the day of the sight can be account one of the ten day but  shall be exclude because it may be see the last minute of the day and that may  be intend as reasonable as that it be see the first minute the party may have  the whole day to view the bill and that be allow he by the law because the  contrary construction seem absurd for then if a bill be Payable one day after  sight it must be pay the same day that it be see which be not the day Lord  Raymond after the sight as the bill require as to clayton case be admit that  it be good law but not contrary to his opinion for if a man make a lease the  first of January to have and to hold a confection for a year there the day of  the make must be account one because be a lease from the delivery and to  continue but for one year unless the day be include the lease will not  determine until the end of the first of January the next year and so there  will be two first day of January in one year but notwithstanding his opinion  because his brother be of a contrary opinion he award that the writ shall  stand and that the defendant shall answer over note before this opinion of the  court be pronounce the defendant counsel offer to take exception to the  declaration but the court refuse to admit they for per curian upon a plea to  the writ the defendant can take exception to the count before the writ be  adjudge good for then the defendant have time enough to take advantage of the  declaration and before it be needless because if the writ be abate that will  determine the whole after this it be object that the defendant have not make  defence and the question be if this be matter of form and so aid by the  general demurrer and prima fancy the court be of opinion that this be matter  of substance because the defendant be not party to the action without defence  but after have consult the judge of the king bench where it have be a long  time hold matter of form they agree that it be aid by the general a r content  ante Lord Raymond er p demurrer though at the same time they seem to comply  with that opinion rather than to approve it with their own judgement to the  end that there may be a conformity between the two court