Rogers v. Wing

5 How. Pr. 50

Opinion

Hand, Justice.

The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 § 37; 2 Paine & Duer’s Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417). “May” and “shall or may,” and “ shall and may,” sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193; Mayor of New York v. Furze, 3 Hill, 612; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is “shall,” and confers a right upon the party. The Code has made no change in this part of the practice (5 Wend. 101). Even in suits commenced under it. For, although the action of “ ejectment” is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.