valid, unless they assumed the character of law-makers. The reason of this legislative provision was very apparent. It was for the general benefit of every inhabitant of the towns, that each might inspect the list of his estate, and if he believed injustice done him, that he might appeal for its correction to the board of review. A time for a return of the lists should be limited, the general convenience demanded it; and that it should be sufficiently early for universal inspection, and preparation for a future hearing before the board of review was perfectly obvious. On this principle, the legislature appointed the 1st of December, as the ultimate period of the return. This branch of the law was as imperative and as unchangeable by the courts as any other; and were it within their competency, it would be as difficult to assign a period more reasonable. That the return should punctually be made was indispensable. A different principle would nullify the law, and produce the general inconvenience arising from an unlimited return. Νο person in such case could know when he might inspect his list; and if the return was late, no time either for reflection or preparation for a review could be had. If the legislature, in a charter of incorporation, had authorized the laying of taxes upon lists returned to a public office at a specified time, the necessity of a strict observance of the limitation would not admit of a question. The case before the court was strictly analogous to the one supposed. The general law was an enabling act to all the towns; it had prescribed the subjects of taxation and the mode; and as there was no authority to tax, except what was conferred by the law, it must be strictly observed. It had been inquired, whether the returns of the abstract of the lists by the town clerk, to the comptroller, must be by the 1st of March in each year, according to the provisions of the act in question, and if not, whether the legislature are precluded from laying taxes upon the assessment lists? Unquestionably they were not. The case put, and the one under discussion, was in no respect analogous. The abstract assessment lists of the towns, must be strictly returned to the town clerk, or there was no legal assessment. But if a town clerk does not return to the comptroller, an abstract of the assessment lists, pursuant to the provisions of the law, the list was not invalidated, but he was subjected to a penalty. § 680. The principle assumed in the case last cited seems to be, that when the object contemplated by the legislature could not be carried into effect by any other construction, then the time prescribed must be considered as imperative, and the accuracy of this distinction was admitted in a subsequent case in the same court.(a) This may be regarded as another mode of settling the question, whether the requirements of the statute as to time in which an act is to be done, shall be deemed imperative, and is founded upon the principle of a construction in accordance with what was in the intention of the legislature; for it is to be presumed, that it intended to make such acts imperative in all cases where the object aimed at could not be obtained unless the act should be construed as imperative. § 681. There is another question which frequently arises, and that is, whether when an act is required to be done by a public officer, the doing of the act by such officer is essential to the validity of the law or proceedings under it. This question arose in the case of The State v. Click, (b) under an indictment which was found under a statute which provided: "That the secretary of state should publish the act in certain designated papers for three months," and a question was made whether it was essential to the operation of the statute, that it should have been published in the manner directed. The court held, that this provision was merely directory to the secretary of state, and although it should certainly have been executed according to its letter; but even if it had been entirely disregarded, yet, as the operation of the act did not depend upon its publication, the neglect of the secretary of state to discharge this duty could not defeat the legislative will. § 682. An affirmative statute does not take away a custom; upon this principle it was held, in the case of The King v. Pugh,(a) that where the inhabitants of the Hundred of Battle, having by charter and universal custom enjoyed the privilege of not serving on juries out of the hundred, they were not to be deprived of such exemption by the several statutes respecting juries, as the words of those statutes were affirmative only. Lord Coke has carried the rule still further, and has laid it down as a rule, that a custom is good against even a negative statute, unless a new law be thereby introduced; and that upon this reason, that if the statute be only declaratory of the common law, as a man might have alleged a custom against the common law, so he may against a statute.(b) But this position has since been doubted, and it has since been holden that no prescription or custom is good against a negative statute, whether it be declaratory of the common law or introductive of a new law.(c) § 683. If a statute gives merely a new remedy where one existed before at common law, it is cumulative, and the party is at liberty to pursue either. So, too, if a sta (a) Doug. R. 188. (b) 1 Inst. 115. (c) 1 Jan. 271; Lovelace's case, 2 Bulst. 36; Show. 420. tute gives the same remedy which the common law does, it is merely affirmative, and the party has his election which to pursue. But if a statute deny or withhold the remedy which otherwise would exist at common law, the common law right ceases to exist. Thus, under the statute of Maine, it is provided that no action of trespass shall be maintained against the owner of cattle breaking into the inclosure of another through an insufficient fence, being lawfully on the opposite side thereof. It was held, that in a case within this statute, no action of trespass could be maintained; and although the statute allowed the party injured to impound or maintain trespass, that provision did not affect or qualify the prohibitory part, which denied and withheld the remedy under certain circumstances where it existed before at common law. (a) § 684. There is another class of cases which it is proper we should consider in this connection, although, strictly speaking, they are not cases presenting questions of construction merely. They present a mixed question of construction in part, and in part a question as to the appropriate remedy, in cases where a statute penalty or forfeiture is given. The latter question, arising out of facts and circumstances which are extrinsic of the statutory enactment, incidentally and not directly bearing upon the question of construction, and collaterally influencing the judgment in the decision, whether a statute penalty is to be construed to be the sole basis of an action, or whether it is to be regarded as merely cumulative. 685. A distinction was made in one case between cases where the party makes an express promise to pay assessments on stock, in which case it was held that he was (a) Gooch v. Stephenson, 1 Shepley, 375. liable to an action to recover the amount subscribed, and the forfeiture in such case merely cumulative; but that on the other hand, where one, by subscribing an act of association, simply engages to become a proprietor of a certain number of shares, without promising to pay the assessments, then the only remedy which the corporation has, is a sale of the shares to raise the sum assessed. Of the accuracy of the first proposition there can be no doubt, and the principle has been sustained by numerous decisions. (a) § 686. In Massachusetts, where the rule laid down in the case of The Andover and Medford Turnpike Company v. Gould, has prevailed and been followed in several adjudicated cases, it has been held, that where one subscribed an engagement to take a certain number of shares in a turnpike, and to pay on demand to J. G. or order all assessments, and certificates of shares were actually delivered in consequence of such subscription, which were received and retained, that an action of assumpsit for such assessments could be maintained.(b) § 687. In another case(c) it was also decided that a writing subscribed by the defendant, expressed as a contract, to take one share, and to pay all legal assessments, with a proviso as to the location of the road, was a personal engagement to pay assessments, which gave the corporation a cumulative remedy against the subscriber, in addition to the remedy provided by the statute to enforce payment of assessments by a sale of shares. But in another case(d) it was decided, upon an express promise similar to that in the case of Willard, that the de (a) The Andover and Medford Turnpike Co. v. Gould, 6 Mass R. 43. |