necessary measures for the preservation of the property, if they sought to relieve themselves or their employers from liability; and although as between the plaintiff in the suit and his servantsthe master and the crew of the flat-it might have been the duty of the latter, to take all the necessary care to prevent an extension of injury to their employer, after the collision had happened, yet if they neglected this duty, it did not discharge the defendants to this suit from a liability to answer for all the damages which directly resulted from the negligence or mismanagement of their servants, in charge of the steamboat.

If we examine the charge of the circuit court by these principles, it will be found to be free from error. The defendants to the suit requested the court to instruct the jury, "that if the crew of the flat, by reasonable exertions, could have saved it and its lading, the plaintiffs could not recover." These terms do not, in themselves, sufficiently indicate whether the reasonable exertions of the crew of the flat were to have been put forth before or after the collision, and the evidence was so contradictory, as to warrant the one or the other impression, as the jury might give credit to the one or the other class of witnesses; hence the necessity for the explanation or qualification given by the circuit court. "If (said the circuit court) the crew of the flat, by the exercise of reasonable exertions, could have saved it and its lading, the plaintiff ought not to recover; but if the collision was owing to the neglect of those who had the management of the steamboat, and it was such as to induce a reasonable man, and one acquainted with the navigation of boats, to leave the flat for fear of loss of life, then the leaving of the flat was justifiable; and if it was abandoned under such circumstances, the plaintiff might recover, although the boat did float down, and the corn might have been saved by attention, and the aid of hands." If the charge was asked under the impression, or with the view to instruct the jury, that in point of law the neglect of the crew to aid in saving the flat or the cargo, after the collision had taken place through the negligence or mismanagement of those in charge of the steamboat, discharged the defendants from liability, it should have been refused, as the omission of the crew of the flat to perform their duty to its owners, could not relieve the defendants from the direct consequences of the want of care or skill of their servants.

In relation to the charge refused to be given, it may be observed, that no evidence is stated in the bill of exceptions which will warrant the inference that the alarm, caused by the collision

of the boats, had, in point of fact, subsided, or that the flat was floating down the river above the water, even if, at the time, its crew had the means to regain it; therefore, the circuit court was right in refusing the charge, for the reason which it states-that it was unwarranted by the proof: but the charge requested was liable to another objection, equally decisive-it leads to no conclusion, in favor of, or against either party. As between the master and crew of the flat, it might have been the duty of the former, to have made use of reasonable exertions to save it and the lading, in as uninjured a condition as practicable, but the neglect of this duty did not discharge the defendants from the consequences legitimately flowing from the acts of their servants. We are satisfied there is no error shown in the proceedings in the circuit court, and its judgment is affirmed.

EX PARTE SIMONTON.

[9 PORTER, 390.]

THE WORD "MAY," OR WORDS "SHALL BE LAWFUL," used in a statute, are mandatory, wherever the act to be done under the statute is to be done by a public officer, and either concerns the public interest or affects the rights of third persons.

HABEAS CORPUS. The petitioners were indicted for murder. Upon the day set for trial, petitioners, and the attorney-general, as representative of the state, both announced themselves ready to proceed to trial; the court, however, refused to proceed therewith and remanded petitioners to jail, for the reason that the presiding judge was a consanguineous relation of the person with whose murder petitioners were charged. Petitioners, upon this state of facts, on the last day of the term, applied to be released upon bail. A writ of habeas corpus was thereupon issued by the court below. Upon the return of the writ and the hearing of the application, it was refused, and the prisoners remanded. The court, however, being of the opinion that the case presented was novel and difficult, referred the matter for revision to this court.

Porter, for the petitioners.

Clark, attorney-general, contra.

COLLIER, C. J. The petitioners predicate their motion for bail, upon the second section of the act of 1827, entitled "an act to amend an act, entitled 'an act for the more effectual preserva

tion of personal liberty.'" That section is in these words: "If any person shall be committed for treason or felony, and shall not be tried at or before the next stated term of the court where the offense is properly cognizable, it shall be lawful for the said court, upon the last day of the term, to set at liberty such prisoner on bail, unless it appear on oath or affirmation, that the witnesses for the state, mentioning their names, could not be produced; and if such prisoner shall not be tried at the second stated term after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, he or she shall be discharged from imprisonment on bail: provided, that this act shall not be so construed, as to prevent a prisoner committed for a capital offense, from being bailed at or before the first stated term, under the existing laws."

The only question that can arise in the construction of this statute is, whether the terms "shall be lawful," invest the court with a discretion, to be controlled by the circumstances of every case, or whether they impose a positive duty, to be performed in every case coming within the terms of the act. By the seventeenth section of the first article of the constitution, it is declared that all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses, when the proof is evident, or the presumption great," etc. Under this constituticnal provision, it is clearly competent for the court, in a case where" the proof is not evident, or the presumption great," to admit to bail a prisoner charged with the crime of murder, even though it appear "on oath or affirmation, that the witnesses for the state could not be produced." But to determine the power of admitting to bail, where all parties were prepared for, and the accused did not waive a right to a trial, to be a matter of judicial discretion, under the act, would involve the legislature in the absurdity of attempting to deprive the citizen of a privilege clearly secured by the constitution; for if the court may or may not, as judgment dictates, in every case, save that which is excepted, admit a prisoner to bail, it is clear, that in the case excepted, the right is attempted to be taken away, without reference to the proof of guilt. Let us inquire whether, without doing violence to terms, we can not relieve the legislature from such an imputation.

The statute we are examining, it must be remembered, is amendatory of an act of a much earlier day. By the sixth section of the act of 1807, entitled "an act for the more effectual preservation of personal liberty," it is enacted, "that if any per

AM. DEC. VǝL. XXXIII-21

sou shall be committed for treason or felony, and shall not be indicted and tried, at or before the next stated term of the court where the offense is properly cognizable, it shall be lawful for the said court, upon the last day of the term, to set at liberty such prisoner upon bail, unless it appear to them, upon oath or affirmation, that the witnesses for the territory, mentioning their names, could not be produced; and if such prisoner shall not be indicted and tried, the second stated term after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, he or she shall be discharged from imprisonment." We have thought it proper to place in juxtaposition, the amendatory and amended act, that the difference between them might be the more readily seen. The amendment, so far as the meaning of the two acts is concerned, consists in the insertion in the act of 1827, after imprisonment, the words "on bail," and the addition of the proviso, which, so far as it is material to the present inquiry, may be placed entirely out of

view.

The objection to the old law was not, that it authorized the discharge of a prisoner on bail, who was not tried at the first term, but it was, that it authorized his discharge at the second term without bail. That such was the fact, we are informed by our own recollection of the legislative history of the times, as well as by a comparison of the phraseology of the two statutes; and that the legislature itself supposed, that the non-attendance of the state's witnesses afforded the only just ground for refusing to admit to bail a prisoner, whose trial was continued at the first term against his consent, we think is indicated by the third section of the act of 1831, "more effectually to secure trials in capital cases by impartial jurors," which provides that "no defendant shall hereafter be bailed in a capital case, for a failure of obtaining a jury for his or her trial." But apart from this, we very well remember, that the construction placed upon the act of 1807, was to allow the prisoner to give bail, where his case was continued at the first term against his consent, unless the attendance of the witnesses for the state could not be procured. The legislature being aware, no doubt, of this construction, passed the act of 1827, in reference to it, and thus impliedly adopted its correctness.

Again: The act of 1807, was doubtless borrowed from the habeas corpus act of the 31 Car. II., c. 2, sec. 7, which is as follows: "that if any person, who shall be committed for treason or felony, plainly or specially expressed in the warrant of commitment,

upon his prayer or petition in open court, the first week of the term, or the first day of the session of oyer and terminer, or general jail delivery, to be brought to his trial, shall not be indicted some time in the next term, sessions of oyer and terminer and general jail delivery, after such commitment, the justices of the said court shall, upon motion in open court, the last day of the term or sessions, set at liberty the prisoner upon bail, unless it appear upon oath, that the witnesses for the king could not be produced the same term or sessions: and if such prisoner, upon his prayer, etc., shall not be indicted and tried the second term or session, he shall be discharged." This statute, it will be observed, is mandatory in its terms; and it was so understood by Lord Chief Justice Holt in the case of The King v. Yates, 1 Show. 186, 191, in which he considered, that the express language of the act, could not relaxed in favor of the king.

But it was argued for the state, that the statute of 1827 does not take from the court the right to exercise its own judgment as to the propriety of allowing bail-that it does not command an act to be done, but merely gives an authority to do, or not to do it, as may be thought best. This argument, it is believed, is not defensible upon authority. The word may, when used in a statute, means must or shall, in those cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure, that the power should be exercised. In Alderman Backwell's case, 1 Vern. 152, the words of the statute were, that "he may grant;" yet it was held, that they imposed upon the chancellor a positive duty to grant a commission of bankruptcy, on due application and proof. In this case, the creditors had an interest in the application of the power. So, in the case of the King v. Barlow, 2 Salk. 609; S. C., Carth. 293, the court of king's bench construed the words shall and may, as being mandatory, "where the statute directs the doing of a thing for the sake of justice, or the public good." In that case, the church wardens were indicted for not making a rate or assessment under the statute of 14 Car. II., c. 12, sec. 18, for the reimbursement of some constables. The statute said, that they "shall have power and authority to make a rate," and it was construed to be peremptory, the constables having an interest in the exercise of the power. And in the King v. The Inhabitants of Derby, Skin. 370, it was held that may, in the case of a public officer, was tantamount to shall. The learned chancellor of New York, after reviewing these cases in the Newburgh Turnpike Company v. Miller, 5 Jolins. Ch. 113 [9 Am. Dec. 274], con