cretion of the cour or the judge, but upon the proof of the particular case out of which such power arises."*

The Supreme Court of the State of New York, has said that where a statute declares that a public officer or public body "may" have power to do an act which concerns the public interests or the rights of third persons, may means shall, and the execution of the power may be insisted on as duty; and so it was decided in regard to a power conferred on the corporation of the city of New York, to repair sewers, &c.t

Thus the rule that " may" is to be interpreted as "shall" or "must" is not by any means uniform; its application depends on what appears to be the true intent of the statute. So, in a case upon a bank charter, where it was said "that the capital stock of said corporation may consist of 500,000 dollars," the Supreme Court of the United States said, "Without question such a construction (viz. shall for may), is proper in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power." But no general rule can be laid down upon this subject, further than, that exposition ought to be adopted, in this as in other cases, which carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning

* MacDougall vs. Paterson, 11 C. B. 755. This decision of the Common Pleas is at variance with the rulings of the Court of Exchequer on the same act in Jones vs. Harrison, 6 Exch. 328, 2 L. M. & P. 257, and Latham vs. Spedding, 20 Law Journal, N. S., Q. B. 302, where the court held the grammatical rule to govern, and that the use of the word may left the whole matter discretionary with the judges. See also on this subject The King vs. The Mayor of Hastings, 1 Dowl. & Ryl. 53.

The Mayor, &c., of N. York vs. Furze, 3 Hill, 612.

of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions. Now, we cannot say that there is any leading object in this charter which will be defeated by construing the word " may" in its common

sense."*

Where the words of a statute were "It shall and may be lawful for the president, &c., to remove a tollgate," the words were held not to be imperative, but that the removal was left to the discretion of the company, on the ground that may in statutes means shall only in cases only where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power be exercised.+

So too, where a statute was in these words, "If any person die, &c., his heirs 'shall or may' recover in one action,"--it was held that they were not bound to unite in one proceeding, but that they might bring several suits.

Navigate. The words "navigating a river," should be construed in reference to the understanding of persons engaged in the business of navigation.§

Notice. Where a statute requires service of a notice on an individual, it means personal service, unless some other mode of service is specified.]

* Minor vs. Mech's. Bk. of Alex'a, 1 Peters, 46, 64.

In the King vs. the Bailiffs, &c., of Eyre, the words "shall and may" were held to be permissive and not mandatory. Smith on Statutes, p. 726; 2 D. & R., 172.

†The Newburgh Turnpike Co. vs. Miller, 5 John. Ch. R. 112.

Malcolm vs. Rogers, 5 Cow. 188. See Attorney General vs. Lock, 3 Atk. 164, where the words "shall and may," were held to be obligatory.

The People vs. Hulse, 3 Hill, 309.

Ruthbun vs. Acker, 18 Barb. 393.

Steal. The word steal, in a statute implies a simple larceny.

*

I may here notice a few miscellaneous cases of general interest. In Alabama it has been said that where a statute affects a community, and requires as a condition to its validity that something should be done before it goes into operation, in such a case the act has no force or effect until the thing required to be done is performed. But where the statute affects one or more designated persons, it matters not whether they are natural or artificial, those interested in the object of the act, may always dispense with a preliminary step, and may claim the benefit of its provisions without requiring the performance of a condition which can affect themselves alone.t

We have already had occasion to notice the ancient rule of the English system, which holds a judge exempt from all responsibility, civil or criminal, for any act done or omitted to be done by him in his judicial capacity. This rule, however, has been infringed upon in some of the States by statute. So in Alabama, the county court judges are required to give official bonds, on which actions at law will lie "for any injury, waste, or damage sustained in any estate in consequence of any neglect or omission of taking good and sufficient security from guardians, executors, or administrators;" but under this statute no suit can be maintained on the bond for the failure of the judge to require a guardian to renew his bond, or to give fur

* Alexander vs. The State, 12 Texas, 540.

See Dwarris 670, 693, for the construction of many particular words in the English statutes.

+ Savage et al. vs. Walshe et al. 26 Ala. 619.

ther security on account of the insolvency or removal of the original sureties.*

The Supreme Court of Massachusetts have said, "That the language of a statute is not to be enlarged or limited by construction, unless its object and plain meaning require it." And a statute declaring that in case a collector of customs should die or resign, the collector so resigning, or the representative of the collector so dead, should divide the fees with the successor in office, was held not to apply to a collector removed from office.+

Where a party was sentenced on the 6th of October, 1825, to solitary confinement for ten days, and hard labor for two years, and committed on the same day, it was held that the commitment was to be reckoned as part of the term; for, as the liberty of the subject is concerned, the statute ought to receive a construction favorable to the prisoner.

* Hamilton vs. Williams, 26 Ala., 527.

+ Doane vs. Phillips, Currier vs. Phillips, 12 Pick. 223.

Commonwealth vs. Keniston, 5 Pick. 420.

See the People vs. Hennessey, 15 Wend., 147, for a case upon a statute against embezzlement by servants.

The Banking System of New York.-I have thought it desirable to compress into this note the principal decisions interpreting and applying the statutes of the State of New York, on this important subject. Prior to the year 1838, an act commonly called the Restraining Act, 1 R. S., 589, part 1st, ch. xx., tit. 20, prohibited in New York under heavy penalties almost every branch of banking, such as receiving deposits, making discounts, issuing notes for circulation, &c., to all persons, associations, institutions, or companies, not specially authorized by law. In consequence, it became the practice to grant special charters conferring the privilege of banking. And to regulate this corporate banking so carried on under

special charters, a system of elaborate checks, restraints, and penalties was imposed; see R. S., 589, part i. ch. viii. tit. 2, "Of Monied Corporations. Art. 1 being entitled, Regulations to prevent the insolvency of monied corporations, and to secure the rights of their stockholders and creditors; and Art. 2, Regulations concerning the election of directors of monied corporations.

The granting of these charters in time became tainted with favoritism and abuse; and the State Convention of 1821 inserted in the Constitution then framed a provision requiring the assent of two thirds of the members elected to each branch of the legislature, to every bill creating, altering, &c., any body politic or corporate. Cons. of 1821, Art. 7, Sec. IX.

This, however, was not found sufficient to reach the root of the evil. In February, 1837, the Restraining Act was in part repealed; and on the 18th of April, 1838, the whole system was remodeled, and the business thrown open to general competition, by the passage of an act entitled "An Act to authorize the business of banking," permitting all persons on certain conditions to form associations for the purpose of carrying on the business. It has been a subject of great interest to know how far the provisions of the old system attach to the new; see Tracy vs. Talmadge, 18 Barb., 456, where a history of the changes are given, per Roosevelt, J. The first question that arose was, whether the associations formed under the act were corporations. In Thomas vs. Dakin, 22 Wend., 9, the Supreme Court held, that they possessed all the essential features of corporations, and that they were corporations; that it was competent, however, for the legislature to create corporations or authorize their creation by a general law; that the act of the 18th of April, 1838, was valid and constitutional, on the assumption that it received the assent of two thirds of the ⚫ members elected to each branch of the legislature, that being the majority requisite to the valid creation of a corporation; and they also held that it would be presumed to be thus passed, unless the fact was denied by plea; and they refused to pass on the question upon demurrer. Nelson, C. J., dissented, on the ground that the legislature could not pass a bill of this kind as a majority bill. In Warner vs. Beers, 23 Wend., 103 (April, 1840), the Court of Errors held that the associations organized under the general banking law, and in conformity with its provisions, were not bodies politic and corporate within the spirit and meaning of the constitution, and that. the act of the 18th of April, 1838, to authorize the business of banking, was constitutionally passed, although it might not have received the assent of two thirds of the members elected to each branch of the legislature. It was admitted that the associations formed under the free banking law had corporate powers; and whether they were corporations, mere partnerships, or joint-stock companies, and whether, if corporations, a law permitting corporations to be formed ad libitum came within the spirit of a constitutional restriction on corporations with grants of exclusive privileges, were the chief points discussed in the Court of Errors. From the nature of that tribu