municipal revenue upon the factory, would defeat the collection of the whole tax, and leave the local government disabled by bankruptcy. The omission of a single citizen's entire taxable property in the assess ment, remedied only by collateral impeachment or abatement, or other negative and reducing process of complete equalization, would have the same effect. The Northwood assessment of 1884, including the action of the selectmen on the Pillsburys' claim of exemption, was a proceeding by which the plaintiffs would have been bound if they had not sought a revision of it in an appropriate suit. They could not resist it collaterally when the law had furnished ample means of direct contestation? It is not apparent how collateral impeachment can be superseded by a direct and less destructive statutory remedy, if a mode of revision was not provided by the sweeping terms of the Revised Statutes. Understood in its literal, natural and ordinary sense, the law authorizes a direct course of curative procedure; and the probable purpose of the legislature is indicated by the mischiefs of a different construction.

On grounds of public convenience an ordinary tax assessment, based on an illegal exemption, has been held to be an exception to the rule that quashes, or treats as wholly void, a proceeding collaterally or directly impeached. Dillingham v, Snow, 5 Mass. 547, 558; Inglee v. Bosworth, 5 Pick. 498, 501; Butler v. Worcester, 112 Mass. 541, 556; Kelso v. Boston, 120 id. 297, 299; Le Roy v. Mayor, 20 Johns. 430, 441; Strusburgh v. Mayor, 87 N. Y. 452, 455. In the correction of judicial errors our common law preserves, as far as possible, what is right, and destroys only what is wrong. Lisbon v. Lyman, 49 N. H. 553, 583. This rule is applicable to judicial error in the assessment of taxes. Edes v. Boardman, 58 N. H. 580, 586; Cummings v. N. Bank, 101 U. S. 153; Strusburgh v. Mayor, 87 N. Y. 452; Hills v. Exchange Bank, 105 U. S. 319, 322. In this case it reverses the exemption without invalidating the whole assessment, and without inventing an exception for the decision of tax cases.

"Where an erroneous order of the court below is quashed on certio rari, and the merits of the cause are left undecided, if the constitution of the court below interposes no practical difficulty, the effect of awarding the writ is limited to the erroneous order, and the cause is remitted with instructions to proceed. And the rule requiring the whole proceeding to be quashed is applied only in cases where the court below has no power to take up the cause after the erroneous order has been vacated, and proceed to determine the merits." Hayward v. Bath, 35 N. H. 514, 527. In the present case the erroneous exemption cannot be reversed without an enforceable assessment of the factory. There being no express statute providing by whom or in what book of records the assessment shall be made, the duty of this court to make it, or cause it to be made, is to be performed in a reasonable and appropriate manner, with no unnecessary departure from the usual and convenient course of public business. The town book is a proper place for the record, and the present board of selectmen or their successors are proper officers to make the assessment; and they can be authorized and required to make it by order of this court.

There is nothing in the constitution of the court below that presents any practical difficulty. Selectmen are not a committee appointed for a special occasion, or for the performance of a single act. Their office, though filled by annual elections, is as continuous as that of any other court; and the lack of stated terms for the transaction of their judicial business is a circumstance that does not affect any right involved in this case. It is as clearly within the reason and rule of our common law that the present board or their successors may be compelled to make the assessment the defendants ought to have made, as that any duty wrongfully left unperformed by a lower court can ever be laid before it with instructions to proceed, notwithstanding a personal succession by which, for such a purpose, the official continuity and identity of the tribunal is not impaired. The Federal reversal - 4 Wheat. 518-of the judgment rendered against Dartmouth College 1 N.. H. 111- would not have been prevented by the expiration of the official term of the judges of the State court, or by their resignation or decease, and a continued vacancy. The superintending duty of causing a tax to be assessed upon the Pillsburys' factory will be performed in the reasonable, appropriate and convenient manner which the law requires, by a judgment for an assessment to be made by the present board or their successors. Their authority and duty under the judgment will come from the law of superintendence which imposes upon this court the duty of reversing the exemption and causing an assessment to be properly made. There is no more need of a judg ment against them, or an amendment of the petition making them defendants, than there was of a judgment against the officer to whom the mandamus was issued in Supervisors v. Rogers, 7 Wall. 175, or a judgment against the selectmen to whom the mandamus was issued in School District v. Carr, 63 N. H. 201, 206. All persons whose violation of law is the plaintiffs' cause of action are now defendants of record.

What errors are correctible in the superintending jurisdiction is determined by common-law principles and statutory provisions applicable in each case. In some of the authorities confusion arises from loose and ambiguous definitions. A decision of a question of fact is described as an exercise of discretion; an exercise of judgment is spoken of when the meaning is that the question on which the judgment is exercised is not one of law; and the superintending power is said to be restricted to ministerial, as distinguished from judicial error, when the distinction intended is the difference between a question of law and a question of fact. The common law does not give a universal right of appeal from inferior courts for the mere purpose of granting a new trial of issues of fact. The superintending power is generally limited to such matters of law and fact as must be tried and decided in order to correct errors of law. When the legislature intend a court's decision of questions of fact shall be revisable by another tribunal, on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided. Richardson v. Smith, 59 N. H. 517; Doughty v. Little, 61 id. 365; Ex parte Railway Co., 101 U. S. 711, 720; Com. v. Westborough, 3 Mass. 406; Com. v. Roxbury, 8 id. 457; Fay's Petition,

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15 Pick. 243, 254; Carpenter v. Co. Com'rs, 21 id. 258, 259; Thorpe v. Co. Com'rs, 9 Gray, 57, 58; Randall's Petition, 11 Allen, 473, 478; F. R. Co. v. Co. Com'rs, 112 Mass. 206; Com. v. Scott, 123 id. 418, 420; Freeman v. Selectmen, 34 Conn. 406, 415; Howland v. Eldredge, 43 N. Y. 457, 460; People v. Com. Council, 78 id. 33, 40; Queen v. Justices, 3 A. & E. (N. S.) 818, 819; Seymore v. Ely, 37 Conn. 103, 106; Dill. Mun. Corp., $$ 833-837. The value of property is a question of fact; and the fair exercise of the defendants' appraising judgment was not controllable except on appeal. Cooley Taxation (2d ed.), 727, 730, 755, 758; Goddard v. Seymore, 30 Conn. 394, 399; M. Mills v. Manchester, 57 N. H. 309. But the legality of the town's exempting vote was a question of law not submitted to the defendants for final determination. If their decision had been right its correctness could have been tested on appeal; and the legis lative purpose was that it should be equally open to review whether in favor of exemption or against it.

The construction is that the remedy of abatement on appeal shall be employed in cases to which it is applicable-Gen. Laws, chap. 57, 12; Edes v. Boardman, 58 N. H. 580; Locke v. Pittsfield, 63 id. 122; that a method prescribed by any enactment shall be used for the purpose for which it was designed; and that cases of judicial error, revisable by the general power of superintendence, though not within any specifically enacted course of procedure, are not beyond the range of all persons necessary for administering the laws. The defendant's resignation of the office, and a prolongation of the vacancy, or an abolition of the office, would not abrogate or suspend the duty of reversing the illegal exemption by operative process required by the exigency of the case. A complete statutory specification of the corrective work of the general jurisdiction being impossible, is not attempted. Authority to issue all writs and processes needed in the performance of the general duty-inferable from the duty, if it were not expressly granted -- avoids the necessity of a multifarious and insufficient enactment of specific remedies, and prevents such a failure of legal justice as occurred in Thompson v. Allen County, 115 U. S. 550.

The power of the lower court to correct this error of exemption is not common-law limit of the correctional power of this court; the legislature have not made an express exception authorizing us to abstain from correcting all errors of lower courts that cannot be corrected by the voluntary action of those courts; and there is no evidence from which a legislative intention to make all such errors irremedial can be inferred. There is a strong presumption against the existence of a remedial defect caused by a lack of administrative authority, or by any inoperative provision of law. Obligations created by statutes which prescribe no methods of remedy are enforced by the appropriate procedure of the common law. When courts of special jurisdiction are not charged with the duty of vindicating rights secured by laws designed to be and capable of being judicially administered, the inference is that the duty is laid upon a general jurisdiction. The abolition of the board of equalization would not exempt railroads from the shares of public expense assigned to them by General Laws, chapter 62, section

1, but would leave the judicial work of their assessment in the general jurisdiction, where it was before the board was established, and where the shares could be recovered in common-law actions, without previous assessment, if the statute were silent on the subject of assessment and collection. U. S. v. Lyman, 1 Mason, 482; Meredith v. U. S., 13 Pet. 486, 493, 494; D. S. Bank v. U. S., 19 Wall. 227, 240; Ú. S. V. New Orleans, 98 U. S. 381; Dill. Mun. Corp., § 818. A repeal of the act of 1878-- Gen. Laws, chap. 57, § 10-would not deprive the public of any remedy in this court for a violation of the right of assessment, but would merely abolish either the remedy of selectmen's voluntary reassessment or the year's limitation of it. A repeal of every statute that authorizes the assessment of taxes by tribunals of special and limited jurisdiction would evince, not a design to bring all local government to an end by cutting off its revenue, or to bankrupt or cripple the body politic-formed by the first article of the Constitution and entitled by the eighty-fourth article to legislative allegiance and support-but an intention that such statutes as chapters 53 and 54 of the General Laws, dividing the public expense and imposing contributory liability, if executable in no other way, should be carried into effect by the court of general jurisdiction performing its ordinary duty of rendering judgment and issuing process in cases in which there is no other judicial mode of administering the law. Nothing less than a positive declaration of an intent to render all such statutes inoperative could justify a belief that the law-making power had adopted a measure so subversive of civil society.

The objection that a supplementary assessment of the factory will make the whole assessment of the town too large could be waived by the tax payers who had that grievance, as it could be if the defendants or their successors had voluntarily reversed the exemption before April 1, 1885. All who were excessively taxed could obtain abatements, or waive the objection by making no complaint. Some might choose to avoid the cost, which might not deter others from litigation. This suit would not be barred by the plaintiffs' election not to incur the expense of an appeal for an abatement. By contributing more than their share of the common burden, they would not waive their right to the payment of the Pillsburys' share.

A failure of justice, sometimes caused by difficulties of a practical nature, is no argument against the correction of the defendants' error. The inability of a sheriff to overcome resistance is not a legal reason for withholding a writ. The inability of a plaintiff to find property for the satisfaction of his just claim is no cause for rendering judgment against him, or refusing either to render judgment in his favor, or to issue process of enforcement. By the expiration of an estate for years, or a term of office, during the pendency of a suit for its recovery, the title, whether vested in the plaintiff or the defendant, is terminated. In the present case the subject of litigation has not ceased to exist. The public right to the factory's share of expense was not limited in duration to the year in which the defendants and their successors could voluntarily give the remedy of a supplementary assessment. If the error of exemption had not been committed, or had been repaired, the

right would not have expired on the last day of March, 1885; and the continued existence of the right did not depend upon its escaping violation in the court of assessment.

The year's limitation of the time of voluntary amendment in that court might be relevant on the question of the reasonable time within which this suit could be brought. By analogy to statute, a person's death may be presumed from his not being heard from for seven years. Smith v. Knowlton, 11 N. H. 191, 196. In cases where the legislature have not fixed a precise rule of limitation rights may be acquired and barred by a prescription of such length of time as is prescribed by a statutory rule in analogous cases. Wallace v. Fletcher, 30 N. H. 347, 434. Reasonable notice of legal proceedings, and the reasonable time for redeeming land from a mortgage, may be determined in a similar manner. True v. Melvin, 43 N. H. 503, 507; Murphy v. Bank, 63 id. 362. It might be claimed that by analogy to the statute allowing selectmen, of their own motion, to make a reassessment within the tax year, or the statute allowing an appeal for an abatement of a tax within. nine months after notice of its assessment, the reasonable time for the plaintiff's application to this court was either the tax year, or nine months after they had notice of the non-assessment of the factory. Whatever was the limit of reasonable time- High Extr. Remedies, $$ 306, 204, 269-their action, brought at the June term, 1884the first term at which it could be entered after the wrong was done -was seasonably commenced. There was no delay of prosecution, and no fault on their part; and their right was not lost by our taking necessary time to establish it in the former decision. It is not now denied that the plaintiffs were entitled to judgment when they brought this suit, and for ten months afterward. The legal construction of statutes is the ascertainment of the fact of legislative purpose from competent evidence. Edes v. Boardman, 58 N. II. 580, 592; Burke v. Concord Railroad, 61 id. 160, 233; State v. Hayes, id. 264, 330; Sargent v. School District, 63 id. 528, 529, 530; Whitney v. Whitney, 14 Mass. 88, 92. And, upon sound principles of construction, we cannot find the fact that the legislature intended mere lapse of time should bar the plaintiffs' right of action while it was in the custody of the law, and they could do nothing but wait for the judgment. The intention of the legislature was that such suits could be brought and submitted to the court for decision, and that judgment should be rendered for the reversal of such illegal exemptions. And the risk, on the other hand, of rendering judgment against the legal merits upon insufficient deliberation, and the certainty, on the other hand, of a judgment entirely regardless of the merits, if time were taken for their due consideration, would be a needless dilemma that cannot be respectfully attributed to the purpose of the law-making power. The decision which the legislature meant the court should make is upon the merits, and after requisite investigation.

It is an old doctrine that things happening by an invincible necessity, though they be against common law or an act of parliament, shall not be prejudicial. When statutes are made, there are some things which are exempted and fore-prized out of the provision thereof by the law

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