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a common council may pass ordinances for abating nuisances, etc., as they shall deem expedient. See also Goodrich . Chicago, 20 Ill. 445.

Ridley 7. Ridley, 24 Miss. 648, that in attachments against nonresidents, the court may order notice of the attachment to be published in a newspaper of the State. See also Cory v. Lewis, 2 South. (N. J.) 846; State v. Click, 2 Ala. 26.

Nave v. Nave, 7 Ind. 122, that in divorce suits, witnesses may be examined orally in open court.

State v. Sweetser, 53 Me. 438, that an indictment may be found and tried in the county where the offender resides or where he is apprehended.

Dean . White, 5 Iowa 266, that a corporation having an office in any county may be sued in that county. Malcom . Rogers, 5 Cow. (N. Y.) 188, that heirs shall or may recover in one writ or action, as heirs of the deceased

person.

New York & E. R. v. Coburn, 6 How. Pr. (N. Y.) 223, that on an appeal from an award of damages for lands condemned by commissioners, the court may direct a new appraisal.

Striker . Kelly, 7 Hill (N. Y.) 9, that a resolution may not be passed by a common council without calling the ayes and noes. See also McKeene v. Weller, 11 Cal. 57; St. Louis v. Foster, 52 Mo. 513.

Williams v. People, 24 N. Y. 405, that for certain stealings the offender may be punished as for grand larceny. When Word "May" Is Permissive. The word "may," as used in G. L., ch. 136, § 9 (New Hampshire), which provides that on a petition for an account against a mortgagee, an issue of fact "may be determined by a jury," is to be taken in a permissive and not in a mandatory sense. Proctor . Green, 59 N. H. 350; State ex rel. School Directors v. Police Jury, 40 La. An. 756.

The word "may" has also been held to be used in a permissive sense in the following cases: Cooke v. State Nat. Bank of Boston, 52 N. Y. 96; DeBewoort v. Welsh, 7 B. & C. 278; Com. v. Haynes, 107 Mass. 196; State v. Holt County Court, 39 Mo. 521; Minor v. Mechanics' Bank, I Pet. (U. S.) 46; Fowler v. Perkins, 77 Ill. 271; State v. Sweetser, 53 Me. 438; Devine's Case, 11 Abb. Pr. (N. Y.) 90: Medberry v. Swan, 46 N. Y. 200; Williams v. People, 24 N. Y. 405; People. Henderson, 21 Pac. Rep. 146; The Mary N.

Hogan, 17 Fed. Rep. 814; Littlejohn . Regents of Wisconsin University, 37 N. W. Rep. 346; The Shelbourne, 30 Fed. Rep. 52; Cutter v. Howard, 9 Wis. 309; Phillips v. Fadden, 125 Mass. 199; Steins v. Franklin Co., 48 Mo. 167.

When the charter for a log driving company provides that "the company may drive all logs and other timber" in a certain stream, the word may is to be construed as permissive and not imperative. But when the company accepts the privilege thus conferred of driving "all the logs," etc., it assumes a duty commensurate with the privilege conferred. By this acceptance it has the exclusive right to drive all the logs, and the duty to drive results. Weymouth v. Penobscot Log Driving Company, 71 Me. 29.

"May leave the same to her children" in a will; held, the word "may" is precatory only and not obligatory. McIntyre 7. McIntyre, 23 W. N. C. (Pa.)

42.

As against the government the word "shall" when used in statutes is to be construed as "may" unless a contrary intention is manifest. Railroad Co. v. Hecht, 95 U. S. 168.

The word "shall" in an act will not be construed "may" unless it is absolutely necessary to prevent irreparable mischief. City Sewage Utilization Co. v. Davis, 8 Phila. (Pa.) 625.

The expression "the children which I may have," which is represented as not importing future children only, but referring also to those already born, admits either a prospective or retrospective sense, or both, as it is used indefinitely or with a definite meaning. A man speaking of such estate as he "may purchase" certainly means, in future; if of such as he may have purchased at the time of his death, he means both past and future. Wilkinson v. Adam, I Ves. & B. *442.

"May Exempt."--Under 32 & 33 Vict., ch. 40, § 1, which enacts that every authority having power to impose rates, "may exempt" a building used as a Sunday or ragged school from any rate; the rating authority have a discretion whether they will or will not exempt such a building. Bell v. Crane, L. R., 8 Q. B. 481.

"May" Confers a Power.--The word "may" in the thirteenth section of the County Courts Extension act, 13 & 14 Vict., ch. 61, which provides that in certain cases the court, or a judge at chambers, may by rule or order direct that

the plaintiff shall recover his costs, is not used to give a discretion, but to confer a power upon the court and judges; and the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. MacDougall v. Patterson, 73 E C. L. 755.

"May Receive."--A took B's notes for the use by B of a patent belonging to him, and agreed to credit on the notes "any amount he may receive from S for the use of said patent to this date, over $480." He had at that time received from S on that account $360, and soon after received $540 more. Held, that the $360 was not to be included in the calculation, the term "may receive" being properly applicable only to money thereafter received. Greene v. Robinson, 41 Conn. 470.

"May Advance."--The expression "may advance" in the written memorandum accompanying an equitable mortgage does not necessarily prevent the deposit from being a security for past advances. Ex part Smith, 2 Mont. D. & De G. 587.

"You May if You Please."-If A devise all her personal estate to B to be disposed of as B shall think fit, and add by parol, "you may, if you please, give £100 to my niece," B in a bill in the answer, to which the parol declaration is admitted, shall be decreed to pay the £100 to the niece. Nab v. Nab, 10 Mod. 404.

"May be."--The expression, in a statute, that "the county court in which any part of the route of the said railroad may be" may subscribe to the stock, is to be construed with reference to the situation of the subject matter. Used Used of a railroad already built, "may be" would be equivalent to "exist," "is Built," "in operation," or the like. But referring to a road not yet built, not located or surveyed, nor organized, it must have a different meaning. County of Calloway v. Foster, 93 U. S. 573.

"May have" and "may have been" are presumably retrospective. Heeney v. Brooklyn Benevolent Society, 33 Barb. (N. Y.) 363.

"May Saw."-The agreement is to deliver all the merchantable spruce plank "that they may saw," etc. These words are not promissory in their nature, except so far as relates to the delivery of plank which they shall saw during the ensuing winter; nor do they import a promise or undertaking to saw

any particular or any quantity of merchantable spruce plank during the ensuing winter. Wemple v. Stewart, 22 Barb. (N. Y.) 159.

"May summon" the master of a vessel to show cause why process should not issue against the vessel, means shall be at liberty, is permitted, to summon him. The Shelbourne, 30 Fed. Rep. 52.

"May be Made."-The covenant is to pay for "all the buildings" and improvements that may be made on said lands. It is not denied that this covenant is obligatory upon the plaintiff in this suit. The words may be made on said lands, may be understood as synonymous with may have been made, or shall then be and remain on said lands. Van Rensselaer's Heirs v. Penniman, 6 Wend. (N. Y.) 5S2.

In Phillips v. Fadden. 125 Mass. 201, AMES, J., observes: "The language of the new statute (St. of 1876, ch. 17, Massachusetts) is permissive rather than imperative. It provides that the offender may be apprehended and that when he has recovered from his intoxication the officer may make a complaint against him for the crime of drunkenness. But this change in the law from shall to may, although it undoubtedly leaves it to the sound judgment and discretion of the officer to decide whether the case requires the arrest of the offender, was not intended to change the purpose of the arrest when made. The words 'shall' and 'may' are not unfrequently equivalent terms." See also Worcester v. Scheisinger, 16 Gray (Mass.) 166.

The phrase "may in any wise" is not understood as synonymous with the terms "by any possibility," or "under any circumstances." Gregory v. Kanouse, 6 Halst. (N. J.) 62.

In the Following Cases the Word "Shall" Has Been Construed to be Discretionary or Directory.-New Castle Co. v. Bell, 8 Blackf. (Ind.) 584; Holland v. Osgood, 8 Vt. 276; People v. Holly, 12 Wend. (N. Y.) 481; Thompson v. Sergeant, 15 Abb. Pr. (N Y.) 452; Johnson v. Williams, 2 Tenn. 178; Attorney General v. Baker, 9 Rich. Eq. (S. Car.) 521; York Railway v. Reg., I E. & B. 858; Rex v. Leicester, 9 D. & R. 772; Reg. v. South Weald, 5 B. & S. 391; Caldow v. Pixell, L. R., 2 C. P. D. 562; Wheeler v. Chicago, 24 Ill. 105; Parish v. Elwell, 46 Iowa 162; Stevenson v. Lawrence, 11 Am. Law Reg. 409; City Sewage Co. v. Davis, 8 Phila. (Pa.) 625; People v. Supervisors, 50 Cal. 561;

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I. DEFINITION.—Mayhem is the act of unlawfully and violently depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary.'

II. MAIM-MAIMING.-The word "maim "is not, according to the better use, a synonym for mayhem, which is a particular sort of aggravated maim.2 But, like mayhem, it implies a permanent ininjury, or crippling, certainly when employed in reference to cattle. And such appears to be its general legal meaning.6

4

III. AT COMMON LAW.-Mayhem at common law is such bodily hurt as renders a man less able in fighting to defend himself or annoy his adversary, but if the injury be such as disfigures him only, without diminishing his corporal abilities, it does not fall within the crime of mayhem. Upon this distinction the cutting off, disabling, or weakening a man's hand or finger, or striking out an eye or foretooth, or castrating, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off of his ear or nose are not such at common law.

Rodebaugh v. Sanks, 2 Watts (Pa.) 9; Colt v. Eves, 12 Conn. 243; Com. v. Commissioners, 5 Binn. (Pa.) 536; Ludlow v. Ludlow, I South. (N. J.) 394; Cason v. Cason, 31 Miss. 578; Justices v. House, 20 Ga. 328; Catterall v. Sweetman, 9 Jur. 591.

"It Shall and May be Lawful," Is Generally Mandatory.-Gray v. Locke, 3 Atk. 166; Stamper v. Miller, 3 Atk. 211; Simonton's Case, 9 Port. (Ala.) 390; Traver v. Commissioners, 17 Ala. 573; Rex v. Eye, 1 Barn. & Cress. 85; Chapman v. Milvane, 5 Exch.61; Mason v. Fearson, 9 How. (U.S.) 237; Davison v. Davison, 2 Harr. (N. J.) 171. See, however, Verplank v. Mercantile Ins. Co., I Edw. Ch. (N. Y.) S4: Newburgh Co. v. Miller, 5 Johns. Ch. (N. Y.) 112; Seiple v. Elizabeth, 3 Dutch. (N. J.) 407; Rex v. Commissioners, 2 Chit. 251; Bridgeman's Case, 1 Dr. & Sm. 164.

When Any Proceeding Is "Authorized." -Kellogg v. State Treas, 44 Vt. 356; People v. Supervisors, 11 Abb. Pr. (N. Y.) 114; Rogers v. Bowen, 42 N. H.

102; Milford 7. Orono, 50 Me. 529; Veazie v. China, 50 Me. 518; Com. v. Pittsburgh, 3 Am. Law Reg. 292; Com. v.Johnson, 2 Binn. (Pa.) 275; Gould v. Hayes, 19 Ala. 462; Reg. v. Commissioners, 14 Ad. & El., N. S. 459; State v. Harris, 17 Ohio St. 608; Angle v. Runyon, 9 Vr. (N. J.) 403; Harris v. Supervisors, 52 Cal. 554. And see also Potter's Dwarris on Stat. 222, note 29.

1. Bouv. L. Dict.; Reg. v. Hagan, 8 C. & P. 167.

2. Bishop on Stat. Crimes, § 316, and authorities cited; Com. v. Newell, 7 Mass. 245, 247.

3. State v. Briley, 8 Port. (Ala.) 472. 4. Turman v. State, 4 Tex. App.

586.

5. I Car. & K. 539; Baker v. State, 4 Ark. 56.

6. State v. Briley, 8 Port. (Ala.) 472, where the same meaning was given to the word "disabling" in the statute.

7. I East P. C. 393; 1 Hawk. P. C. (Curw. ed.), p. 107, § 1; Reg v. Hagan, 8 Car. & P. 167; 3 Inst. 62; 118 Staundf.

All maims are said to be felony; because anciently the offender had judgment of the loss of the same member which he had occasioned to the sufferer; but now the only judgment which remains at common law is of fine and imprisonment; from whence the offence seems to have been afterwards considered more in the nature of an aggravated trespass. Lord Coke accordingly classes it as an offence "under all felonies deserving death, and above all other inferior offences."1

By the common law also, if a person maim himself, as for example, to have a more specious pretence for asking charity, or to prevent his being impressed as a sailor or enlisted as a soldier, he may be indicted, and, on conviction, fined and imprisoned.2

In order to found an indictment or appeal of mayhem, at com

38b; 2 Hawk., ch. 23, § 16; 3 Bla. Com. 121; 4 Bla. Com. 205.

In Bishop on Crim. Law, vol. 2, § 1001, note 2, a quotation from Pulton (De Pace Regis 1609, fol. 15, §§ 58 and 59), one of the earlier authorities, is as follows:

What Acts Are Mayhem.-"If a man do put out the eye, or cut off the hand, or foot, or any joynt of the hand or foot of another, it is maihem, though it be done by chaunce-meddly. (But if one man of malice pretended [prepensed?] do cut out the tongue, or put out the eyes of any of the King's subjects, it is felony.) And if one man doe crush the mouth or head of another, or break out his foreteeth, it is maihem, for with them he may defend himselfe in battaile; but to break his hinder teeth, or to cut off his nose or ears, whereby he looseth his hearing, is no maihem, but a deformitie, or blemish of his bodie, and no weakening of his strength. It is a maihem to pull any bone out of a man's hand, or cut off any finger of a man's hand, or to breake any of them so that they become shrunke up, it is maihem. To cut off the cheeke or jaw bone of any person, or so to crush or breake any of them that the same person is the lesse able to take his meat or drinke, is a maihem. If one person or more doe take another person by force, and put him in the stocks, or otherwise bind him fast, and after pour so much skalding hote oyle and vinegar, or hote melted lead, or other skalding liquor, upon any part of his bodie, and so continue it until it doth wast and consume the flesh of the same part and drie up and mortifie the vaynes and sinews of the same part, it is a maihem. If A doe strike at B, and the weapon wherewith he striketh, breaking or falling

out of his hand by the force of the blow, doth put out the eyes of D), this shall be adjudged a maihem, for that A hath an intention at the first to doe some hurt in striking at B. The greatness or smallness of the wound in some of the cases aforesaid doth make the difference, whether it be a maihem or not."

Mr. Bishop then further quotes from Pulton, showing the distinction between mayhem as a felony or misdemeanor, the indictable crime, and mayhem as a civil tort and for which damages in money might be demanded: "Now, if the reader will read on, in Pulton, beyond the place whence the above passages are extracted, he will see that the mayhem of which this author is particularly treating is such as was punishable by the old and now obsolete process of appeal of mayhem; and, says (Jacob L. Dict., tit. Appeal): "Appeal of mayhem is the accusing one that hath maimed another; but this being generally no felony, it is in a manner but an action of trespass; and nothing is recovered by it but damages." Pulton, however, fol. 16, after saying that "An appeale of maihem is in effect but an action of trespass, wherein the plaintiffe shall recover damages according to the qualitie and quantitie of the offense," adds, "and the defendant shall be imprisoned." But as showing that the appeal is pretty purely a civil action, he mentions, fol. 17, that a plea of release of all demands, by the plaintiff, will avail the defendant in bar.

1. I East P. C. 393; also 1 Hawk., ch. 44, § 3; 2 Hawk., ch. 23, § 18; 4 Bla. Com. 205.

2. 1 Hawk. P. C. (Curw. ed.), p. 108,

§ 4.

mon law, the act must have been done maliciously; though it matters not how sudden the occasion.1

It seems there can be no accessories before the fact in mayhem, at common law; though there appears to have been some difference of opinion, or rather misapprehension, upon the subject.2 For supposing the offence to be in the nature of an aggravated trespass only, the rule will apply, that in crimes under the degree of felony there can be no accessories, but that all persons concerned therein, if guilty at all, are principals.3 It does not appear to have been anywhere supposed that there can be accessories after the fact in mayhem.a

IV. ENGLISH STATUTES.-The English statutes, as well as statutes in some of the United States, have greatly enlarged the scope of the offence of mayhem, which now includes all malicious injuries disabling to the person5.

1. I East P. C. 394.

2. I Russell on Crimes 719.

Lord Hale states there are no accessories before in mayhem, but that they are in the same degree as principals. (1 Hale 613) Hawkins, on the contrary, says, that it seems there may be accessories before the fact in mayhem. (2 Hawk. P. C., ch. 29, § 5). Ini East P. C., ch. 7, §7, p. 401, there is a learned argument to show that the latter opinion proceeded on a mistake.

3. I Russell on Crimes 34.

4. 1 Hawk. P. C., ch. 55, § 13, and 2 Hawk. P. C., ch. 29, § 5; 1 East P. C., ch. 7, § 7, p. 401.

5. I Wharton Crim. Law, § 581. English Statutes.-By statute 5, HI.IV., ch. 5, to remedy a mischief which then prevailed of beating, wounding, imprisoning, or maiming persons, and after purposely "cutting their tongues or putting out their eyes" to prevent them from giving evidence against the perpetrators, it is enacted, that "in such cases the offenders that so cut tongues or put out the eyes of any, and that duly proved and found that such deed was done of malice prepensed, shall incur the pain of felony." That is, as Lord Coke explains it, if the act be done voluntarily and of set purpose, however sudden the occasion.

By stat. 37, H. VIII. ch. 6, if any person "maliciously, willingly, or unlawfully cut, or cause to be cut, off the ear or ears of any subject, otherwise than by authority of law, chance-medley, sudden affray, or adventure, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass, but shall forfeit £10

to the king for every such offence, in the name of a fine."

But the principal and most severe statute upon this subject is that of 22 and 23 Car. II, ch. 1, commonly called the "Coventry Act," from the circumstances of its having passed on occasion of an assault made on Sir John Coventry in the street, and slitting his nose, by persons who lay in wait for him for that purpose, in revenge as was supposed for some obnoxious words uttered by him in parliament, in which he reflected on the profligate conduct of Charles II, in respect to his intercourse with actresses.

By 22 and 23 Car. II, ch. 1, it is enacted, "That if any person shall, on purpose and of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject of his majesty, with intention in so doing to maim or disfigure, in any of the manners before mentioned, such his majesty's subjects, that then and in every such case the person or persons so offending, their counsellors, aidors and abettors, knowing of and privy to the offence as aforesaid, shall be and are by the said statute declared to be felons, and shall suffer death as in cases of felony without benefit of clergy."

But by 22 and 23 Car. II, ch. 1, § 2, it is provided, "That no attainder of such felony shall extend to corrupt the blood or forfeit the dower of the wife, or the lands, goods or chattels of the offender."

To bring an offender within the Co ventry act there must be proof of a deliberate and premeditated design to do

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