have prescribed a summary proceeding calculated to save rights of parties, and insure a speedy decision. This remedial act must be construed liberally, to carry into effect the intent by suppressing the mischief, and advancing the remedy."* Finally, in another case, it was said that the act was to be construed liberally in looking to the remedy so as to make it effectual, but strictly and rigidly in scanning the proceedings to attain that remedy.+ Whether this last nice distinction can be carried out, I am not prepared to say; but these cases appear to furnish a good illustration of the confusion likely to result from the assumption of power to construe a statute strictly or liberally as circumstances seem to require. Statutes prescribing forms of procedure, or modes of proof. In regard to these the maxim holds good, Non observata forma, infertur adnullatio actus.§ So, where a statute declared, "that the form of proceedings set forth in the schedule should be used," a material variance from the form was held fatal.] Of the statutes of the class now under consideration the most marked are the statutes of frauds, of wills, and of limitations. In these cases the proof, or the procedure required by the law is rigidly exacted, the restriction strictly insisted on without regard to the facts or the hardship of the case; and this with abundant reason, for it is the evident intention of these statutes to prescribe fixed forms or rules to guard against * Lynde vs. Noble, 20 J. R. 80, 82. + Smith vs. Moffat, 1 Barb. S. C. R. 65. See also in regard to this statute, Roach vs. Cozine, 9 Wend. 227. 2 Inst. 388; Dwarris, 611. | Davison vs. Gill, 1 East. 64. certain abuses likely to occur from the absence of an arbitrary and peremptory provision; and a liberal or equitable construction of the statute would completely defeat its object by letting in precisely the kind of testimony that the act means to exclude. The New York statute of frauds declares, that "whenever goods are sold at public auction, and the auctioneer shall at the time of sale" make a memorandum, such memorandum shall be considered as a note of the sale for the purpose of charging both parties. It has been held that this provision must be strictly construed and strictly complied with, and that the memorandum must be completed by the proper entries in the proper book as soon as the goods are struck down to the purchaser and before the auctioneer enters upon any other business or transaction whatever.* Such, too, is the general construction of acts permitting or requiring instrument to be recorded and giving priority according to the date of the registry. Efforts have, indeed, repeatedly been made, especially in courts of equity, to get rid of the rigor of these statutes,—and to a certain extent with success, as we shall see again when we come to consider the subject of the equity of a statute, on the ground, in regard to the registry acts, that enactments which were intended to prevent frauds should never be used as a means to cover them, and in regard to the statute of frauds, that as it was made with a design to prevent perjury and contradiction of testimony, the cases not liable to those mischiefs should be exempted from its severe opera * Hicks vs. Whitmore, 12 Wend. 548. Goelet vs. Cowdrey, 1 Duer, 182. tion.* But these decisions have been greatly regretted as breaking in upon and diminishing the utility of these statutes; and the sound opinion would seem to be that where, for the very purpose of preventing frauds, a certain form or mode of proof is prescribed by the legislature, the form or mode prescribed shall be steadily maintained by the judiciary.+ To this same class belong statutes of limitation, or statutes limiting the time within which certain actions must be brought. These statutes, intended to guard against the loss of evidence, and the mischiefs arising from lapse of time, are to be strictly construed without any reference to the hardships of the particular case. It was at one time held in regard to these statutes, that where by reason of the defendant's fraud the existence of a cause of action was concealed, it would furnish an equitable exception to the express language of the statute. This was intimated obiter by Lord Mansfield and expressly held in Massachusetts;§ but the contrary has been decided in New York; and the idea that implied and equitable exceptions, which the legislature has not made, are to be engrafted by the courts on a statute of limitations is now generally abandoned.¶ So, in a case on a statute of this class the Supreme Court of the United States has said, "Wherever the situa * Cheval 08. Nichols, 1 Str., 664. Le Neve vs. Le Neve, 3 Atk., 646. Worseley vs. De Mattos, 1 Burr., 467. Laragne vs. Stanley, 3 Lev., 1. Dwarris, pp. 629, 630, and 653. † Doe ex dem. Robinson ts. Allsop, 5 B. and A., 142. Doe vs. Rout ledge, Cowp., 712. Dwarris, p. 628 et seq. ‡ Bree vs. Holbeck, Doug. 656. § First Massachusetts Turnpike vs. Field et al., 3 Mass. 201. Homer vs. Fish et al., 1 Pick. 435. Allen vs. Miller, 17 Wend, 202. ¶ Dozier vs. Ellis, 28 Mississippi, 730. M'Iver vs. Ragan, 2 Wheat. 25. tion of a party was such as in the opinion of the legislature to furnish a motive for excepting him from the operation of the law, the legislature has made the exception. It would be going far for this court to add to those exceptions." And even in a case where a survey which would have taken the case out of the statute was prevented by positive legislation, the lands lying in the Indian country, it was held no excuse.* So, too, it has been repeatedly held, that courts have no dispensing power, even in matters of practice, when the legislature has spoken. Thus, where a statute declares that a judge at chambers may direct a new trial if application is made within ten days after judgment, it has been said 'that "he can no more enlarge the time than he can legislate in any other matter." When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice. So where an appeal, to be valid, must be made within ten days, it is void if taken on the eleventh. So when an act declared that a special jury, when struck, shall be the jury for the trial of the issue, and the defendant had a special jury struck and afterwards willfully abandoned it, it was still held that the act was imperative, that a common jury could not try the case, and that the plaintiff should have summoned the special jury.§ Where a statute requires an oath * M'Iver vs. Ragan, 2 Wheat. 25. + Seymour vs. Judd., 2 Comst., 464. Bleeker vs. Wiseburn, 5 Wend., 136. Ex parte Ostrander, 1 Denio, 680, 681. Seymour vs. Judd., 2 Coms., 464. Jackson ex dem. Bleecker vs. Wiseburn, 5 Wend., 136. Barclay vs. Brown, 7 Paige, 245. Caldwell vs. The Mayor, &c. of Albany, 9 Paige, 572. Montague 18. Smith, 17 Ad. & Ell. N. S., 688. A special jury involves, in England, a considerable expense. from the principal, it cannot be satisfied by the oath of an agent.* So, statutes enabling creditors to redeem, as against prior judgments, must be complied with strictly. Where an act authorizing a creditor to redeem required an affidavit of the amount due to be made by the creditor or his agent, it was held the affidavit must state in express terms that the deponent was the agent, and merely naming him as such in the affidavit would not answer; and that the affidavit of the amount should also show that the agent had the means of knowledge, and state the amount positively, not according to his belief. In the municipal corporation act, where the words are "shall publish not later than two of the clock," a publication cannot be made after two o'clock, even for the purpose of correcting an error.§ The English statute of 43 Eliz. c. 2, s. 1, which has been called the Magna Carta of the poor, declared that the churchwardens of every parish, and four, three, or two householders, should be nominated by the justices of the peace to be overseers of the poor. Motion was made to quash an order of the justices appointing five overseers. Usage was invoked in support of the order, but the facts did not sustain the alleged custom of augmenting the number, and after a careful examination of the statutes in pari materia, the number was held imperative, and the order was quashed. *The People vs. Fleming, 2 Comstock, 484, 485. + Ex parte Bank of Monroe, 7 Hill, 177. Hob., 298; Sid., 56; Stra. 1125; 2 T. Rep., 895. § The Queen vs. Mayor, &c. of Leeds, 11 A. & E., 512; Dwarris, p. 477. "It is as a maxim," says Mr. Dwarris, "generally true, that if an affirmative statute, which is introductory of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner." It seems to me this decision should be rather referred to the present branch of our subject. | Rex vs. Loxdale, 1 Burr, 447. |