Mellen C. J.
delivered the opinion of the Court.
Numerous objections have been staled and urged against the competency or sufficiency of the evidence offered and introduced [296]*296by the defendants by way of justification of their official conduct •, and these objections are relied on as the grounds of the plaintiff’s motion for a new trial. The parties and their counsel have considered the cause as one of importance ; and as such we listened to the arguments with attention, and have examined most of the authorities which have been adduced, that we might be able to arrive at a conclusion satisfactory to ourselves. The plaintiff considers the cause important to him ; as intimately affecting his rights as a citizen, and his pecuniary interests. The defendants’ view is also important to them in a pecuniary point of view ; and as public officers of their town, and they claim of the Court to view their official acts with all that indulgence which is due to honest intentions and anxious endeavors to perform their duty correctly ; although they may in some minute particulars have erred in judgment. Courts cannot grant favors to parties, but must decide their causes on legal principles. But in doing this, they may, and in many instances do, consider statute provisions as only directory. Numerous cases might be stated' where the law directs an officer to perform a certain act, and subjects him to .a penalty for its omission, without meaning to render all his other acts void. As an instance of this, we may refer to the law which requires town officers to take the oath of office within a 'certain ■time after being notified of their choice, under a penalty for neglect; — still, if they take the oath after that time, their acts are not the less valid on that account. Colman v. Anderson 10 Mass. 105. Waiving, however, further preliminary remarks, we proceed to notice and examine the several objections which have been urged by the plaintiff’s counsel.
Th e first is that at the town meeting holden on the 22d of March 1822, at which the defendants were elected into office, there was no alphabetical list of voters present, and that no such list had been previously prepared, according to the provisions of the acts of Massachusetts, of which the 1st, 14th, 15th, and 17th sections of the statute of this State, eh. 115, are a transcript. By those sections, viewed in connection, it appears that it was the duty of the assessors of Standish, as well as all other towns, on or before the 20th of February annually, to make out a correct alphabetical list of all inhabitants of their respective towns.., [297]*297qualified to vote in the choice of town officers; and a penalty not exceeding $200 is incurred by selectment or assessors, by neglecting their duty ; — and “ that no person shall be permitted “ to give in his vote or ballot, at any meeting for the choice of “ town officers, until the person presiding at such meeting shall “ have had opportunity to inquire his name, and shall have ascer- “ tained that the same is in the list aforesaid, and shall have had “ time to check the same,” — and any person wilfully voting contrary to the above provisions incurs a penalty. The plaintiff contends that all the proceedings of the town meeting on the 22d of March J821, were illegal and void ; inasmuch as such alphabetical list had not been seasonably prepared by the assessors, and was not present at the meeting. As none had been made and prepared pursuant to law, of course none could legally he used at the meeting. The defendants’ answer to all this is, that the neglect in the above particular wras not their neglect; but that of their predecessors, the assessors of 1820 ; for wffiose faults and nonfeasances they, the defendants, are not responsible. The question then is, as no list of voters had been prepared by the assessors of 1820, could or could not the inhabitants of Standish, legally warned and assembled in town meeting, proceed to the election of town officers, and the transaction of the necessary business of the town ? We think that a negative answer to this question would lead to incalculable mischiefs. If the principle contended for be correct, the town can never organize themselves or transact any town business for themselves or for the benefit of the county or State. Those evil consequences are all avoided by considering the foregoing regulations as directory to the assessors, who, by their neglect of an assigned duty, have incurred the statute penalty ; — and this is the only consequence. The town is not disfranchised, and its government dissolved. The provision in the 15th section seems predicated clearly on the idea that a correct list has been prepared, and is in the meeting, and open to the examination of the presiding officer, so that he can see the names of the voters and check them. And we cannot think it reasonable to give such a construction to that section as fo subject a voter in a town meeting in March 1821 to a penalty. [298]*298because the moderator of the meeting had no list of voters in the meeting which he could inspect ; for the best of all reasons, namely, because the assessors of 1820 had illegally neglected to prepare one. Besides, the st.atute declares that'the assessors shall make out correct alphabetical lists on or before the 2Oth day of February. Now, are all the transactions of the next annual meeting void, because the list was not correct ; there being several qualified voters in town whose names, by some means or other were not borne on that list ? The objection founded on such a principle cannot be sustained, and we therefore overrule it and pass to the next; merely observing that we do not consider the cases cited from 14 Mass. 322, 15 Mass. 35, and 17 Mass. 281, as applicable in their principles ; they being all questions of illegal consideration.
The second objection is that the defendants were never duly sworn, and therefore never qualified to act as assessors. This at first appeared unanswerable ; and if it is so, it at once settles the case in favor of the plaintiff. By the record of the proceedings of the meeting on March 22d, it appears that a certain person was chosen moderator, and that the defendants and one Wm. Hasty, jr. were chosen selectmen and assessors. The record is silent as to the mode of choice, as to all four of those persons ; and we apprehend that this record thus far was made in the usual manner. And as by law the moderator, selectmen and assessors must all be chosen by ballot; we must presume that the town proceeded in the legal mode; that is, the record, if not impeached by itself, imports a legal choice and is to be credited ; but if in any particulars it is impeached by itself; then, so far as it is thus impeached," it is not entitled to credit. By looking at the record of the proceedings of the meeting at the adjournment on the 31st of Jlpril, we find that the defendants and Hasty were chosen assessors by ballot; this is a clear implication that they were not chosen in that manner on the 22A of March, and is therefore so far an impeachment of the record of their legal choice as assessors on that day ; but as the record speaks of no others chosen by ballot on the 30th of Jipril, the impeachment of the first record extends no further than to the choice of assessors ; [299]*299leaving the usual import of the record in other respects on its original ground. It seems then on this principle, that there is legal record evidence of the choice of the defendants and
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Mellen C. J.
delivered the opinion of the Court.
Numerous objections have been staled and urged against the competency or sufficiency of the evidence offered and introduced [296]*296by the defendants by way of justification of their official conduct •, and these objections are relied on as the grounds of the plaintiff’s motion for a new trial. The parties and their counsel have considered the cause as one of importance ; and as such we listened to the arguments with attention, and have examined most of the authorities which have been adduced, that we might be able to arrive at a conclusion satisfactory to ourselves. The plaintiff considers the cause important to him ; as intimately affecting his rights as a citizen, and his pecuniary interests. The defendants’ view is also important to them in a pecuniary point of view ; and as public officers of their town, and they claim of the Court to view their official acts with all that indulgence which is due to honest intentions and anxious endeavors to perform their duty correctly ; although they may in some minute particulars have erred in judgment. Courts cannot grant favors to parties, but must decide their causes on legal principles. But in doing this, they may, and in many instances do, consider statute provisions as only directory. Numerous cases might be stated' where the law directs an officer to perform a certain act, and subjects him to .a penalty for its omission, without meaning to render all his other acts void. As an instance of this, we may refer to the law which requires town officers to take the oath of office within a 'certain ■time after being notified of their choice, under a penalty for neglect; — still, if they take the oath after that time, their acts are not the less valid on that account. Colman v. Anderson 10 Mass. 105. Waiving, however, further preliminary remarks, we proceed to notice and examine the several objections which have been urged by the plaintiff’s counsel.
Th e first is that at the town meeting holden on the 22d of March 1822, at which the defendants were elected into office, there was no alphabetical list of voters present, and that no such list had been previously prepared, according to the provisions of the acts of Massachusetts, of which the 1st, 14th, 15th, and 17th sections of the statute of this State, eh. 115, are a transcript. By those sections, viewed in connection, it appears that it was the duty of the assessors of Standish, as well as all other towns, on or before the 20th of February annually, to make out a correct alphabetical list of all inhabitants of their respective towns.., [297]*297qualified to vote in the choice of town officers; and a penalty not exceeding $200 is incurred by selectment or assessors, by neglecting their duty ; — and “ that no person shall be permitted “ to give in his vote or ballot, at any meeting for the choice of “ town officers, until the person presiding at such meeting shall “ have had opportunity to inquire his name, and shall have ascer- “ tained that the same is in the list aforesaid, and shall have had “ time to check the same,” — and any person wilfully voting contrary to the above provisions incurs a penalty. The plaintiff contends that all the proceedings of the town meeting on the 22d of March J821, were illegal and void ; inasmuch as such alphabetical list had not been seasonably prepared by the assessors, and was not present at the meeting. As none had been made and prepared pursuant to law, of course none could legally he used at the meeting. The defendants’ answer to all this is, that the neglect in the above particular wras not their neglect; but that of their predecessors, the assessors of 1820 ; for wffiose faults and nonfeasances they, the defendants, are not responsible. The question then is, as no list of voters had been prepared by the assessors of 1820, could or could not the inhabitants of Standish, legally warned and assembled in town meeting, proceed to the election of town officers, and the transaction of the necessary business of the town ? We think that a negative answer to this question would lead to incalculable mischiefs. If the principle contended for be correct, the town can never organize themselves or transact any town business for themselves or for the benefit of the county or State. Those evil consequences are all avoided by considering the foregoing regulations as directory to the assessors, who, by their neglect of an assigned duty, have incurred the statute penalty ; — and this is the only consequence. The town is not disfranchised, and its government dissolved. The provision in the 15th section seems predicated clearly on the idea that a correct list has been prepared, and is in the meeting, and open to the examination of the presiding officer, so that he can see the names of the voters and check them. And we cannot think it reasonable to give such a construction to that section as fo subject a voter in a town meeting in March 1821 to a penalty. [298]*298because the moderator of the meeting had no list of voters in the meeting which he could inspect ; for the best of all reasons, namely, because the assessors of 1820 had illegally neglected to prepare one. Besides, the st.atute declares that'the assessors shall make out correct alphabetical lists on or before the 2Oth day of February. Now, are all the transactions of the next annual meeting void, because the list was not correct ; there being several qualified voters in town whose names, by some means or other were not borne on that list ? The objection founded on such a principle cannot be sustained, and we therefore overrule it and pass to the next; merely observing that we do not consider the cases cited from 14 Mass. 322, 15 Mass. 35, and 17 Mass. 281, as applicable in their principles ; they being all questions of illegal consideration.
The second objection is that the defendants were never duly sworn, and therefore never qualified to act as assessors. This at first appeared unanswerable ; and if it is so, it at once settles the case in favor of the plaintiff. By the record of the proceedings of the meeting on March 22d, it appears that a certain person was chosen moderator, and that the defendants and one Wm. Hasty, jr. were chosen selectmen and assessors. The record is silent as to the mode of choice, as to all four of those persons ; and we apprehend that this record thus far was made in the usual manner. And as by law the moderator, selectmen and assessors must all be chosen by ballot; we must presume that the town proceeded in the legal mode; that is, the record, if not impeached by itself, imports a legal choice and is to be credited ; but if in any particulars it is impeached by itself; then, so far as it is thus impeached," it is not entitled to credit. By looking at the record of the proceedings of the meeting at the adjournment on the 31st of Jlpril, we find that the defendants and Hasty were chosen assessors by ballot; this is a clear implication that they were not chosen in that manner on the 22A of March, and is therefore so far an impeachment of the record of their legal choice as assessors on that day ; but as the record speaks of no others chosen by ballot on the 30th of Jipril, the impeachment of the first record extends no further than to the choice of assessors ; [299]*299leaving the usual import of the record in other respects on its original ground. It seems then on this principle, that there is legal record evidence of the choice of the defendants and Hasty on the 22d of March as selectmen. It appears further, that Tompson, on the 24th of March was duly sworn as selectman and assessor, and that on the 26th the other two were sworn in the same manner. But as neither of the three was legally chosen assessor till the 30th of April, it is very clear that the oath taken by them as assessors before that time, was of no avail ; and it further appears that they never after were sworn as assessors. Of course they never were qualified to act that year as assessors, in virtue of their election as such on the 30th of April. The remaining question is whether they were ex officio assessors, in virtue of their office as selectmen, in the peculiar circumstances above detailed. The statute must answer this question. The second section of our statute of 1821, ch. 116, provides “that if “ any town shall not choose assessors as aforesaid ; or if so many “ of them so chosen shall refuse to accept, as that there shall not “ he such a number of them as any town shall vote to be the “ assessors thereof, then the selectmen of such town shall be and “hereby are declared and appointed the assessors thereof.” Now as the persons chosen assessors on the 30lh of April never took the oath of office as such after that choice, they could not act in virtue of that election, as we have before stated ; and in such a case as this we do not see why this omission to become qualified may not be fairly considered as a refusal to accept, and an election to consider themselves as ex officio assessors, in virtue of their election as selectmen ; and their having, after that election, taken the oaths as selectmen and assessors too. The case before us presents several questions which seem to be new and susceptible of different considerations ; and under such circumstances we see no violation of principle in giving them such a construction as tends to sanction the proceedings of the defendants rather than defeat them. In this view of the subject, this second objection falls to the ground ; because, we do not consider the circumstance of the defendants having acted as assessors and signed the assessment and warrant as such, as evidence of acceptance ; there could be no legal and effectual accept anee without their [300]*300having been duly sworn. Besides, the above section declares them in such circumstances1, to be assessors ; — of course they might very properly subscribe the assessment and warrant as such.
The third objection is that the assessors did not give legal notice to the inhabitants to bring into them perfect lists of theii’ polls and estate. The language of the 12th section of said statute on the subject is this, — “ shall give seasonable warning to the “ inhabitants by posting up notifications in some public place in “ said town or plantation, or notify the respective inhabitants in “ some other way.” The report states that it was the practice in the town for the assessors to give personal notice ; and that such was the practice they adopted that year; and it states further that the assessors took proper pains to give the plaintiff this usual notice ; but that he went away and stayed away on purpose to prevent'their giving such notice. After this singular evasion, the objection on account of the want of notice comes with a very ill grace from the plaintiff; and it would not be much credit to our laws or our Courts of Justice, if such a stratagem should meet with success or even countenance. As this was the usual mode of giving notice’, the plaintiff must have been conusant of it; and it seems he expected it, by his avoidance. Mr. Dane in liis abridgement, vol. 5, under the title page 178,179, when speaking of disjunctive conditions, says, “ If both, when the “bond is made, be possible; and one becomes impossible after, “ it is material to inquire when and by what means ; if after the “ time set for performance, it is clear the bond is forfeited by “ non-performance at the time; if before such time, then by what “means; — if by the act and fault of the obligee, it has been “ shewn he can never plead his own fault, to have a performance, “ which, without such act of fault, he never could have enforced.” This is the law in cáse of a solemn contract ; and it would seem that in tfie case of an obligation imposed by law, the principle would not be applied against those on whom the obligation is imposed, with more severity. By the statute, the defendants were bound to give notice by posting notifications, or personal notice, at their option. The plaintiff, by his own act of artifice and evasion, rendered it impossible for them to give him personal notice ; and [301]*301therefore, he cannot plead this act and fault of his own, to have a a performance of the other part of the alternative, which, without such act and evasion, he could never have demanded. The reason and spirit of the law appears the same in both cases. In Borden v. Borden 5 Mass. 67, the Court say, “ but supposing a “ tender necessary, proving himself ready with a deed, which “ would have been tendered, if the defendant had not avoided it “by evasive contrivances, seems equivalent to a tender ; and “ such is the opinion of .the Court on this point.” We therefore overrule this objection.
The fourth is that the papers produced as the valuation and assessment, were not respectively so entitled. The law does not require any such title. The book which is composed of both those documents, was lodged in, and taken from the assessors office; and these documents are properly signed by the defendants; and on inspection are found tobe in the form of valuation and assessment. Another objection made is, that it appears the assessors assessed the plaintiff for faculty, contrary to law. The reply to this objection is, that on inspection of the document, the fact is found to be otherwise. These objections cannot avail the plaintiff.
The fifth is that the valuation and assessment were not lodged in the clerk’s office; but the verdict has given a decisive answer, by finding that they were seasonably deposited in the assessors office; and this by law, ivas sufficient.
The sixth objection is that the warrant signed by the defendants and delivered to the collector was illegal; inasmuch as it was not made conformably to law. The 17th sec. of our statute before cited, prescribes the form of a warrant from assessors to collectors, for the collection of State taxes; and directs that such warrants shall in substance agree with such forms; — and that a similar form, mutatis mutandis, shall be used for the collection of county and town taxes. Upon comparing the warrant in the present case, which embraces all three of the taxes, it is found in several particulars to vary from the statute form; and the only question is whether it does in substance conform to the law. The expression “ in substance” used in the statute, was inserted to prevent the evil consequences which would probably follow in [302]*302every town in the State, if strict formality were in all cases required. We are therefore authorized and bound to give a fair and liberal construction of the words used, and of the conduct of officers in framing the instruments alluded to in the section. Are the variances in matter of form, or of substance ? The first variance is, that in the direction of the warrant to Bayley, he is stated to be the collector of taxes for the town of Standish, without designating in what county that town is situated; but on looking into the writ in this case, which is referred to in the report, we find the plaintiff says the defendants live in Standish in the county of Cumberland. The next objection is, that the warrant does not contain the introductory words — “ In the name of the State of Maine you are required, &c. The answer is that a public law authorizes assessors to issue warrants to collectors; of this we are bound to take notice; and also that all the officers in the State act under its authority and in its name, either expressed or implied; because they are exercising a portion of the sovereign power delegated to them. In a justice’s writ this idea is expressed;— his requisition being in the name of the State. The precepts from this Court and the Court of Common Pleas are not so. The State itself speaks to its officers. The language in question inserted in the statute form is respectful and proper; but we cannot deem the warrant as illegal in consequence of their omission; that is —they are not words of substance within the meaning of the law. The next objection is, that the warrant essentially varies from the prescribed form, in omitting entirely to state the following clause —“ it being this town’s proportion of a tax or assessment of ££ (naming the total amount of the State tax) granted and agreed ££ upon by the legislature of said State at their session, begun ££ and held at Portland on the-day of-for defraying the ne- “ cessary charges of securing, protecting and defending the ££ same.” It is evident that all this is mere recital; and of itself is no evidence of the truth of the facts recited. In an action to recover lands sold for taxes, it would be necessary for the person claiming to hold under the sale, to shew the granting of the tax, as well as the legality of its assessment, and it would by no means be sufficient for a tenant in such an action to' give in evidence the warrant containing a recital of such grant to prove the tax was [303]*303granted. Uniform practice is in conformity to this principle. If then the recital of the fact in the warrant is no proof of the existence of the fact, why should the omission of the recital vitiate the warrant, and render it a dead letter ? And how can such a recital be matter of substance, in respect to the collector, or to the persons named in his list, if in fact the tax has been granted by the legislature and duly assessed by the proper officers ? In such a case we are disposed to consider the recital as matter of form and not of substance, in favor of the correctness of proceedings, if otherwise conformable to law. The same observations may be applied to the non-recital as to the legal origin of the county and town tax. These, however, or their respective amounts, are directed to be paid to the treasurers respectively authorized to receive them. It is not contended that there are in the warrant any other variations from the statute form; and as it is under the hands of the assessors and under seal, we consider it was sufficient, notwithstanding the foregoing objections; and this leads us to the seventh and last.
This last objection is, that the warrant, though made out and signed by the defendants on the 27th of Jlwgust 1821, was not delivered to Bayley the collector, until the 9th of October 1822, the day before the arrest, and was then delivered by Tompson, White not being an assessor for 1822. It further appears by the report that the assessors intended to deliver the warrant with the bills of assessment, but by mistake delivered to him another paper instead of it. And now, what are the legal consequences of these facts ? The warrant was a lawful precept when made and signed; and if it had then been delivered to the collector, it would be in full force at this moment, provided any of the sums assessed in the bills committed to him are now due and unpaid; although other persons have been elected assessors; and another person collector. See iS'tat. 1821, ch. 116, sec. 27. The virtue and life of a warrant therefore, do not depend on the official life of the assessors who signed it, or of the collector to whom it is directed and delivered. The only question then is, when did it lose its virtue ? Or in other words, was it not an existing, legal precept in itself, when delivered to Bayley, though he might not have derived any authority from it, until he actually received it? [304]*304No cases have been cited to this point by the counsel on either side. The' arguments stand on the reason of the thing, and upon general principles. Suppose a Justice of the Peace, on complaint and oath should issue his warrant against a person charged with larceny, and returnable before himself or any other Justice of the Peace in the county; and should die, or his commission should expire before the warrant is placed in the hands of an officer for service; may it not still be served and returned before another magistrate, and he legally take cognizance of the offence,or recognize or commit the person charged ? Or suppose that a majority of the selectmen of any town should decease immediately after they had made out and signed in due form a warrant for a town meeting; could not such warrant be legally delivered to a constable to warn the meeting; and would not the meeting be regular? If the clerk of this Court should make out an execution in due form, and place it in his desk, and the next day resign; could not the attorney in the cause, properly hand the execution a week afterwards to an officer for service; and would not the execution be a legal precept and a complete and justification to the officer ? Other cases might be put by way of illustration; but these are sufficient. If the question should be considered as doubtful, we should certainly incline to that decision which would go to sanction rather than to disturb proceedings, honestly intended and believed to be regular.
We have thus taken a distinct view of each objection urged by the plaintiff’s counsel, and given it a particular examination; and the result is, that they furnish no legal or proper ground for setting aside the verdict. The motion is overruled and there-must be judgment on the verdict.