a statute be directed to be brought before a particular court, or a particular justice in his sessions, it cannot be brought before any other person, or in any other place. In Forbes' case(a) it was held, that under a statute which provided that error in the exchequer chamber should be amended before the chancellor and treasurer, such error could not be amended before any other person or persons. The cases above cited clearly establish the rule, that where a new power is given by an affirmative statute to a certain person, or to certain persons, by the designation of those persons, although it be an affirmative statute, all other persons are in the general excluded from the exercise of the power. This rule is founded upon the maxim, that inclusio unius est exclusio alterius. But if anterior to the passage of such an affirmative act, giving such new powers to a designated person or persons, other persons had by a previous statute power to do the same act, the giving of such power by an affirmative act to a certain designated person or persons does not exclude the persons having such antecedent power from the exercise of the same power. (b) Lord Bacon cites the following instance as illustrative of this rule. By the 8 Hen. 6, c. 16, it is provided: "That after office found, he who finds himself aggrieved may, within a month offer his traverse, and to take the premises to farm; and the chancellor, treasurer, or other officer shall demise them to farm." By the 1 Hen. 8, c. 16, liberty is given to the persons aggrieved, "to do this at any time within the space of three months." Afterwards the 32 Hen. 8, c. 40, authorizes the master of the wards "to grant a lease of the lands of a ward or an idiot while they remain in the hands of the crown." This last clause, not

(a) 11 R. 59.

(b) Davis v. Edmonson, 3 Bos. & Pul. 387.

withstanding the designation of a new person, shall not take away the power given by the former; for if before any lease is granted by the master of the wards the chancellor or treasurer grant a lease of the premises, the master of the wards cannot afterwards demise them. (a)

§ 668. But where an offence is created by statute, and a specific remedy prescribed, that remedy alone can be pursued.(b) In the case last cited, the defendant was indicted for retailing spirituous liquors without a license. The statute of Indiana, under which the indictment was found, declared that for every offence against its provivisions the offender should pay three dollars, and that the fines should be collected in a given way. But it was held, that as the statute created the offence, and it was one which did not exist at common law, it was not indictable, and that the only remedy was that provided for in the act. The rule that where a statute creates an offence unknown to the common law, and in the enacting or prohibiting clause points out the mode of proceeding under it, that mode alone can be pursued, is not applicable to beneficial statutes in civil cases, was distinctly held in the case of The Hartford and New Haven Rail Road Co. v. Kennedy,(c) and seems impliedly to have received the sanction of Mr. Justice Thompson, in one of the cases decided by him.

§ 669. Where a statute makes that unlawful which was lawful before, and appoints a specific remedy, that remedy must be pursued and no other. It would be otherwise, however, if the offence were before punishable at common law, for then the particular remedy given by statute would be regarded as cumulative, and in such cases either the statutory or common law remedy might

(a) Bac. tit. Statute, p. 236.

(b) Sturgeon v. The State, 1 Blackf. R. 39. (c) 12 Conn. R. 500.

be pursued. (a) A distinction is however taken in those cases where the offence is created, and the penalty given by the same statute, provided they are in separate clauses. In The King v. Harris(b) this disinction is recognized. Ashurst, Justice, says, "it is a clear and established principle, that where a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause on the ground of its being a misdemeanor." The distinction taken in this case was alluded to and received the sanction of the court in the case cited from 12 Conn. Reports, and the court in that case, as has been seen, applied the rule to a civil case, creating a right in one section of a statute, and providing a specific remedy in a subsequent section of the same act. If a statute without any negative words, declare that deeds shall have in evidence a certain effect, provided particular requisites are complied with, this does not prevent their being used as evidence, though the requisites were not complied with, in the same manner as they might have been before the statute was passed. Hence, in a case where by the sixth section of the act of January, 1762, of the colony laws, it was declared, that every former division of lands of which there was a map or note in writing, under the hands of the proprietors, should be a valid partition, provided such map or note be proved before a judge of the supreme court, and a true copy of such map filed, and such note recorded; on the trial of an action of ejectment, a deed down to the date of a partition and map was admitted in evidence, although it was objected, that it was not admissible, because it did

(a) Rex v. Robinson, 2 Burr. 799; 1 Will. Saund. 135, note 4; ibid. 250 and note 3.

(b) 4 T. R. 205.

not appear that the map had been filed or the certificate of proof recorded. In answer to this objection the court held, that the act of 8th January, 1762, sec. 6, declared that every former division of lands of which there is a map or note in writing, under the hands of the proprietors, shall be a valid partition thereof, provided, such map or note be proven, &c. That if the condition on which all such previous partitions were declared valid be not performed, the transaction was left as it was before, and was to be considered independent of the act. That the division and the deed between the proprietors, by which they covenanted to abide by it, and the separate possession taken in pursuance of it, severed the tenancy in common. The parties became concluded and bound by the act, and the map and deed being proved before a competent officer, and possession having gone accordingly, the deed and map were admissible as legal evidence in the case. (a)

§ 670. Where a statute directs a person to do a thing in a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him, and not as a limitation of his authority. In a case where the assessors of a school district were directed to assess a school district tax within thirty days after the district clerk had certified the vote for raising it, it was held that although the assessors were directed to assess the tax within thirty days after the certificate, yet as there were no negative words restraining them from making the assessment afterwards, and accidents might happen which would defeat the authority, if it could not be exercised after the expiration of thirty days; that the naming of

(a) Jackson ex dem. Van Vecten et al. v. Bradt, 2 Caines' R. 169.

the time must therefore be considered as directory to the assessors, and not as a limitation of their authority. (a)

671. In another case,(b) where the militia law made it the duty of the commanding officer of the brigade to appoint a brigade court-martial on or before the first day of June in each year, it was insisted that an order made subsequent to the day specified in the act was void, and a fine imposed by a court-martial under such order illegal. The question presented in this case was, could the power given to the commandant of the brigade to appoint a court-martial be exercised after the first day of June. The court, in the decision of this question, laid down the general rule to be, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of time was intended as a limitation of the power of the officer. In this case there was nothing in the nature of the power showing that it might not be as effectually exercised after the limit of June as before; and as the act giving it contained no prohibition to exercise it after that period, the naming of that day was a mere direction to the officer in relation to the manner of executing his duty, there was nothing in the nature of the power given, or in the manner of giving it, that justified the inference that the time was mentioned as a limitation.(c) In Merchant v. Langworthy, (d) it was held that the provisions of the statute requiring the clerk of a school district to post notice of annual meetings, was directory merely to that officer.

(a) Pond v. Negus, 3 Mass. R. 232.

(b) The People v. Allen, 6 Wend. R. 486.

(c) See also The People v. Peck, 11 Wend. 604.

(d) 6 Hill, 646.