of reason, though not expressly mentioned. Thus: things for necessity's sake, or to prevent a failure of justice, are excepted." Dwarr. Stat. (Potter's ed.) 123. "The law itself, and the administration of it, must yield to that to which every thing must bend — to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling them to impossibilities; and the administration of laws must adopt that general exception in the consideration of all particular cases." The Generous, 2 Dods. 322, 323; Hall v. Sullivan Railroad, 21 Monthly Law Rep'r, 138, 147. The general exception is a general rule of statutory construction.

"As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of the time within which in the first place the duty ought to have been done." Lewis v. Com'rs, 16 Kans. 102, 108. A statute provided that certain located lands should be surveyed within twelve months, or the location should be void. The public surveyor having refused to do his duty, a mandamus was issued against him; but the survey was not completed within the year. It was held, nevertheless, that the survey was valid, on the ground that the legislature did not intend to compel a locator to do an act wholly out of his power. Edwards v. James, 13 Tex. 52. The general rule of construction in regard to the exception of impossibilities prevailed against the express provision that the location should be void if the survey were not made within the year. The surveyor's duty was not judicial; and if he had refused to obey the mandamus the survey would not have been made by the court; but he would not defeat the right of survey by going to jail for the remainder of the year for contempt, or by going out of the State and remaining beyond the reach of process, or by dying at the end of the year, leaving his duty unperformed. The statute did not expressly authorize the work to be done by any other surveyor than the one in office during the year; but the legislature did not mean that he should be the only one to whom a mandamus could issue. If a mandamus to his successor were necessary, it would be such an appropriate and adequate remedy as the legislature intended the locator should have. By the ordinary rule of construction, if the locator were in no fault in such a case, the limitation of time would be suspended till a surveyor came into office who would obey a mandamus. By the same rule, statutory limitations of time are suspended when causes of action are fraudulently concealed, and when courts are closed, and remedies of action or appeal are stayed, by war. Hanger v. Abbott, 6 Wall. 532; The Protector, 9 id. 687.

When a statute extending the term of a patent-right provides that the right shall cease if it becomes vested, at any one time, in a certain number of persons otherwise than by devise or succession, an involuntary assignment in bankruptcy, being an act of the law, is an implied exception. Dwarris Stat. 124. In Mattingly v. Boyd, 20 How. 128, on a process of foreign attachment, the trustee was restrained from paying his debt by an order of court. The suit abated by the

plaintiff's death after the restraining order had been in force twentysix years. During that time the right of action of the trustee's creditor and the statute of limitations were suspended because the fund was in the control of the law. The intended exception of such a case, not expressed in the statute, was implied by the general rule of construction.

Mara v. Quin, 6 D. & E. 1, was an action of debt against an executrix. In Michaelmas term, 1791, she pleaded plene administravit. The plaintiff then cited the defendant in the spiritual court to exhibit an inventory, but could not obtain an account until July, 1793. This delay prevented his entering up judgment until Michaelmas term, 1793, when he took judgment for his debt to be paid out of assets that should afterward come to the hands of the executrix. He afterward discovered that assets had come to her hands before judgment and after plea. For the purpose of reaching those assets, it was held, in 1794, in scire facias on the judgment, that the judgment would be rendered as of Michaelmas term, 1791, if justice required such an amendment. The defendant did not fail to argue that there was not a single precedent to warrant such a proceeding, and that if the judg ment could be altered so as to carry it back two years, it could be altered and carried back a longer time. Lord KENYON said: "The forms of the court are always best used when they are made subservient to the justice of the case." An amendment made in 1794, and by which the judgment of 1793 would be called a judgment of 1791, and by which it would be rendered nunc pro tunc, would not change the time when it was rendered. The fact that it was recovered in 1793 would remain apparent on the record; no amendment could alter the fact, or impair the conclusive proof of it; and the law would not falsely pretend to deceive itself by giving the judgment a wrong date. An amendment antedating the judgment two years would be a mere technical form of recording the decision that the law gave the judgment the effect it would have had if it had been rendered in 1791. A useless appearance of falsification would be avoided by a clause inserted in the judgment when it was rendered, or by an amendment afterward, declaring that the judgment was payable out of assets coming to the hands of the executrix after Michaelmas term, 1791, or expressing more accurately the effect of the judgment, and providing out of whose and what property it was payable, and by what execution it should be enforced.

Springfield v. Worcester, 2 Cush. 52, 62, was an action for the support of a pauper. After verdict for the plaintiff, the case was continued for the consideration of questions of law, and before those questions were decided the statute on which the action was brought was repealed. Judgment was rendered for the plaintiff as of the term when the verdict was rendered; this course was held to be authorized by the common law; and the result would have been the same if the facts, instead of being found by the jury, had been agreed to by the parties. If the statute by which the Pillsburys' liability was imposed, and on which this suit was brought, had been repealed March 31, 1885, Springfield v. Worcester would be an authority for an assessing judgment rendered now as of December term, 1884. The

decision in that case not being shown to be wrong, the question here is, not of legal right, but of mere remedial method; and by our settled law of procedure, "the forms of the court are subservient

to the justice of the case." The rendition of the judgment in Springfield v. Worcester, as of a former term, was a judicially-invented mode of recording the decision that the judgment had the legal effect

A more

it would have had if it had been rendered at the former term. direct and specific record would be: "It is further considered and adjudged by the court that this judgment has and will have the legal effect it would have had if it had been rendered before the repeal of the statute which created the plaintiff's right and the defendant's liability." While the judgment would not have been weakened by inserting this conclusion of law, it would not have been void if it had contained no evidence of the decision on the repeal of the statute. The rights of the parties were not affected by the repeal. That was the law to be administered with or without the supposititious procedure of nunc pro tunc. Upon that law Springfield was entitled to an execution for damages and costs whether the judgment falsely purported to be rendered at a former term, or truly asserted its effect to be the same as if the statute had not been repealed, or were silent on the subject. Its validity did not depend upon its containing either a statement of its legal effect on this point, or any other matter of law decided by the court, announced in their reported opinion, and involved in the adjudication that the plaintiff recover damages.

If the question of exemption in this case had been decided at the March adjourned term, 1885, a mandamus would have issued to the selectmen of Northwood and their successors in their official capacity. There would have been no more need of their names in the writ than of the name of the sheriff in an execution addressed to that officer. Davis v. Bradford, 58 N. H. 576; School District v. Carr, 63 id. 201, 206; People v. Champion, 16 Johns. 61, 65; People v. Supervisors, 8 N. Y. 317, 330; Com'rs v. Sellen, 99 U. S. 624; State v. Warner, 55 Wis. 271; Dill. Mun. Corp., § 886. By defiance or evasion of the writ until the 1st day of April, 1885, they would not have defeated the public right. The impossibility of the plaintiffs' obtaining an assessment of the factory within the year by mandamus was like the failure of the plaintiff in Edwards v. James, 13 Tex. 52, to obtain a survey of land within the same time by the same process, and like the inability of the plaintiff in Springfield v. Worcester, 2 Cush. 52, to recover judgment before the repeal of the statute on which the action was brought. If there is a year's limitation of the corrective power, it has been suspended in this case by the court's deliberation, as it would have been during a delay caused by a belligerent closure of the court, or the death or sickness of the judges, or a continuance for argument on account of a press of judicial business. Actus curia neminem gravabit is an application of the principle actus legis nemini facit injuriam. Broom Leg. Max. 86, 89. A continuance for advisement is an act of the law; and when a party dies after such a continuance and before judgment, the law can work out its scrupulous abstention from injury by imagining a judgment rendered at a former term, refusing

to see in its own record explicit proof of the date, and finding in the fiction a mode of applying the rule that its own act works no wrong. A mode of applying the rule without artifice would be found in an undisguised record of the adjudication that the judgment has the same effect as if it had been rendered before the party's death. If fictitious proceedings were needed for the application of the rule in this case, they would easily be supplied. The tax could be assessed by the court in a judgment rendered as of December term, 1884. But the provision, implied by the ordinary statutory construction, against the requirement of an impossibility, and against the infliction of a wrong by an act of the law, can be administered without antedating the assessment. The law has kept on foot its superintending duty of correction while it continued the case for advisement and withheld from the plaintiffs the judgment and process to which it had given them a good title, and for which it had invited and induced them to incur the expense of this suit. Their promised protection has been unavoidably delayed; but the law does not wantonly destroy the right which its promise has drawn into its judicial possession, and has no occasion to resort to any other than a straightforward mode of announcing and recording the date and effect of its judgment.

Judgment for the plaintiffs.

CLARK, J., did not sit; ALLEN, SMITH and BLODGETT, JJ., concurred.

CARPENTER, J. (dissenting). The question for consideration arises upon the objection of the defendants made after the judgment reported in 63 N. H. 320, was pronounced, that the writ cannot issue against them because the tax year 1884 and their term of office have expired, and they consequently have no power to make the assessment.

Argument has taken a wide range. Many questions have been discussed a decision of which in the present state of the pleadings is not necessary. The questions whether the defendants' successors in office, or any persons other than the defendants, can be required to make the assessment, whether the court can itself assess the tax, or adjudge in general terms that it shall be assessed; and various other questions incidentally presented and argued, do not properly arise. Without as well as with the prayer for "such other relief as may be just," "the plaintiff may have any relief against the defendants to which they are found entitled. It is the duty of the court to render such judgment between the parties as upon the whole record appears to be proper, but no judgment can be rendered for or against persons who are not parties. If it has been held in other jurisdictions that final judicial process may issue against persons not parties to the proceeding and who have had no notice and no opportunity to be heard, such is not the law of this State. Brown v. Sceggell, 22 N. H. 548, 552; Horn v. Thompson, 31 id. 574; Bruce v. Cloutman, 45 id. 37, 38; Wilbur v. Abbott, 60 id. 40; Holbrook v. Bowman, 62 id. ; Eastman v. Dearborn, 63 id. 364; Pennoyer v. Neff, 95 U. S. 714, 732; Secretary v. McGarrahan, 9 Wall. 298; United States v. Boutwell, 17 id. 604, 608. Neither the defendants' successors in office nor the Pillsburys are parties. They have had no notice of the proceeding. They have

had no hearing and no opportunity to be heard. They are not concluded or affected by the facts found. Ball v. Danforth, 63 N. H. 420. A judgment against the selectmen now in office, requiring them to assess the tax, or against the Pillsburys, that a tax be assessed by the court, or by any one under its direction, would be a judgment rendered without jurisdiction.

The plaintiffs can have no relief against the defendants except the writ of mandamus specifically prayed for. If they are not entitled to that remedy their petition in default of an amendment bringing in other parties — must be dismissed. The defendants, being selectmen of Northwood for the year 1884, neglected to assess on the property of Pillsbury Brothers a tax which the law required them to assess. Their term of office, as well as the tax year 1884, has long since expired. The sole question before the court is, whether it can lawfully order them to do now that which they ought to have done while in office. It is not material whether a Latin, English, or other name be given to a judicial order of this character. To its lawful issue under any name, or in any form, two essential requisites must concur; namely, first, a right in the plaintiff to have the thing in question done, and second, power in the party against whom the order is sought to do it. If either is wanting the application must be denied. Here both are wanting. The defendants have no power to assess the tax, and the plaintiffs have no right to its assessment.

By the Constitution - Bill of Rights, arts. 12 and 28; part 2, arts. 5 and 6- and the uniform practice under it for more than a hundred years, no property can be taxed, except such as is declared taxable by the legislature. Property not expressly subjected by statute to taxation is exempt. Opinion of the Justices, 4 N. H. 570; Brewster v. Hough, 10 id. 143; Savings Bank v. Nashua, 46 id. 392, 395, 396. Much property always has been and still is untaxed. Acts of Feb. 7, 1789, Feb. 8, 1791, Feb. 22, 1794, Dec. 26, 1798, Dec. 24, 1803, Dec. 16, 1812, July 3, 1830, and Jan. 4, 1833; Rev. Stat., chap. 39; Gen. Stat., chap. 49; Gen. Laws, chap. 53.

Selectmen are public officers whose powers and duties are prescribed by statute. They have no authority to assess taxes or to do any official act except such as is conferred upon them by the legislature. Although they exercise some functions of a judicial nature-Edes v. Boardman, 58 N. H. 580- they are not within the meaning of the Constitution - Bill of Rights, arts. 33, 35, 37; part 2, arts. 4, 46, 73–82 — or of General Laws, chapter 208, section 1, judges, judicial officers or a

court.

They are required to take annually in April an invoice of all the polls and estate liable to be taxed in their town on the first day of that month, and upon it to assess all taxes for the year following; to make a fair record of the invoice and of the taxes assessed and before July first, to leave it or a copy of it with the town clerk to be recorded, and kept "open to the inspection of all persons." Gen. Laws, chap. 55, § 1; chap. 57, §§ 1, 3 and 6. Until the act of August 17, 1878Gen. Laws, chap. 57, § 10-they had no authority to modify or amend the record after its delivery to the clerk. When their invoice and

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