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legal interest of the debtor in his real estate; but in chancery that general lien is controlled by equity so as to protect the rights of those who are entitled to an equitable interest in the lands or in the proceeds thereof.*

Some other cases where statutes have been liberally construed, may here be noticed. The Massachusetts statute of trustee process, or for reaching the property of a debtor in the hands of third persons, declares that every person having any goods, effects, or credit of the principal defendant, intrusted or deposited in his hands or possession, may be summoned as trustee. In an action under the statute the alleged trustee admitted that he had a cow of the defendant's in his possession, but averred that he had no claim to her of any kind whatever, and insisted on this ground that he could not be summoned as a trustee. It was said by the court that, admitting that according to the letter of the statute the defendant was liable, still "that statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute;" and it was added, "We think it never could have been the intention of the legislature that the possession of property by à party having no claim to hold it against the owner should render him liable therefor as trustee, and thereby subject him to trouble and expense in answering a claim in which he has no interest. Such a construction of the statute would be prejudicial in many cases, and cannot be admitted."+

An interesting question on the construction of rail

* White vs. Carpenter, 2 Paige, 217; Keirsted vs. Avery, 4 Paige, 9; Buchan vs. Sumner, 2 Barb. Ch. R. 165.

+ Staniels and another vs. Raymond, &c., Trustee, 4 Cush. 314.

road acts, has arisen in Massachusetts. A charter, passed in 1845, authorized a railroad corporation to make a branch from the village of Cabotville to that of Chicopee Falls, without defining the route. The road was laid down on a main street or highway in Cabotville. On a bill filed for an injunction, it was said that, by a railroad grant in such general terms, prima facie the power to run on the highway could not be inferred; as the use of it by the railroad was inconsistent with its original destination. That such power could only be given by express words or necessary implication. That such necessary implication might arise from the application of the act to the subject-matter, as for instance if the railroad could not by reasonable intendment be laid on any other line; and it was referred to commissioners to ascertain the fact.*

In a great fire which took place in the city of New York, in December, 1835, a building owned by Rufus L. Lord, and occupied by Daniel N. Lord as his tenant for a year from 1st May, 1835, was destroyed by the order of the mayor, to prevent the spreading of the conflagration. The statute authorizing the action of the mayor in similar cases, provided if any building was so destroyed, that, upon the application of any person interested in such building, a precept should

* Inhabs. of Springfield vs. Conn. River R. R. Co., 4 Cush. 63. I may be permitted to say, that unless the Supreme Court of Massachusetts have some statutory power peculiar to themselves, and to that State, the true course would seem to have been to decide the case on the words of the act. To refer the case to commissioners on a question of fact as to the practicability of running the road on the street, if that question had not been considered before the passage of the act, was to substitute the judgment of the commissioners for that of the legislature. If the legislature had considered the question, it was a revision of their decision on a matter of which they should be the sole judges.

issue for a jury to inquire of and assess the damages which the owner of such building, and all persons having any estate or interest therein, should have sustained by the destruction, and after inquiry and assessment, the sum assessed should be paid in full satisfaction of all demands of such persons respectively by reason of the destruction of the buildings; the sum assessed for any building so destroyed as aforesaid, to be borne and defrayed by the city government. The damages of the owner of the building were assessed at $7,168 50, and of the tenant, for his goods, $156,274 80; but it was insisted that, by the words of the statute, no recovery could be had for any thing but the building, and that injury to personal property in it was not covered. The entire assessment was, however, sustained, on the ground that the statute was remedial, and should be liberally construed.*

In regard to the New York act, enabling limited partnerships to be formed by making certain publications specified by the statute, and declared necessary in order to restrict the liability of the special partner, it has been held, that the terms of the statute must

*Mayor of New York vs. Lord, 17 Wend. 285; 18 ibid. 126. See Mr. Justice Bronson's able dissenting opinion.

In a subsequent case, Stone and others vs. the Mayor &c. of New York, 25 Wend. 177, an effort was made to carry the construction of the statute so far as to entitle the lessee of a building destroyed by order of the mayor to recover for merchandise destroyed which did not belong to the lessee, but was the property of others, in his possession as a factor, or merely on storage; but this interpretation was rejected.

In Russell vs. The Mayor, &c. of New York, 2 Denio, 461, the authority conferred on the Mayor, by this statute, was said not to be a grant of the right of eminent domain, and therefore not within the constitutional provision as to private property; but that it was only a regulation of the right which individuals possess, in cases of inevitable necessity, to destroy property to prevent an impending calamity.

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be substantially complied with, but that mere errors of form, either unintentional, or not calculated to mislead, will be overlooked. So, the mistake in the printed notice of one month for another,* or the misprint of a name,† not likely to lead into error, will be disregarded; but a misprint of the sum put in as capital, as where it is asserted to be five thousand instead of two, is regarded as fatal, and converts the special into a general partner.

A statute relating to principals and factors declared, that one intrusted with the possession of the goods of another for the purpose of sale, should be deemed the true owner, so far as to give validity to a disposition thereof for money advanced, upon which it has been held in New York, that this does not protect a party who had made advances to such a factor, with a knowledge that he was not the owner of the goods, on the ground that a contrary construction would authorize the agent or factor, by connivance to commit a fraud on the principal.§

So, where the United States bankrupt act declares, (act of 1841, § 4), that the certificate may be pleaded as a full bar, it has been held that the word pleaded was not to be strictly construed, and that the certificate might be proved under a notice attached to the plea, under the old system of pleading.

A statute restraining any person from doing certain

* Madison Co. Bank vs. Gould, 5 Hill, 309.

+ Bowen vs. Argall, 24 Wend. 496.

Smith. vs. Argall, 6 Hill, 479.

§ Stevens vs. Wilson, 3 Denio, 472, 475. Campbell vs. Perkins, 4 Selden, 480. Comstock, 505.

Ruckman vs. Cowell, 1

acts, applies equally to corporations or bodies politic, although not mentioned.*

We have thus far examined two classes of decisions, one in which statutes have been strictly construed, and another in which they have been liberally or equitably interpreted. Our consideration of the subject will not, however, be complete, till we shall have discussed the very curious class of cases in which the legislative 'enactment is neither strictly nor liberally construed, but simply disregarded altogether. This takes place where the mandate of a statute is called, and regarded as, directory.

Statutes when held to be directory.-When statutes direct certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disregarded or disobeyed. In these cases, by a somewhat singular use of language, the statute is said to be direc tory. In other cases the statute is held to be imperative or mandatory.†

* People vs. Utica, Ins. Co. 15 J. R. 358, 381, 382. By the Revised Statutes of New York, in certain criminal cases, the word person embraces the State, foreign governments, and corporations, i. e. when the word person is used to designate the party whose property may be the subject of any of fense. 2 R. S. part iv. chap. i. title 7. § 36. The Revised Statutes have in many cases, defined the meaning of the terms made use of by the Revisors. See Index, tit. Definitions.

+ Directions given by a sovereign in regard to a matter over which his power is conceded, would, according to the ordinary use of language, be held to involve, as its correlative, obedience. But, as in the cases now under consideration, obedience is dispensed with by the judiciary, the statute might be better called advisory. The phrase is the more calculated to mislead, as it is frequently used in the strict and proper sense of the

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