The opinion of the court was delivered by
Royce, J.The plaintiff proceeds upon.the 6th section of the justice act of 1797, which gives a justice “ discretionary poioer” to recall and vacate any judgment by him rendered; within two hours from the rendition of such judgment. In this case, the motion was made within the two hours. The plaintiff contends that this section of the statute is imperative upon the magistrate, according to the rule of construing statutes, which says that “may” is taken to mean “shall.”
It is true that, in a statute conferring jurisdiction or power upon an officer for a specified purpose, the word “may” is generally equivalent to the word “ shall.” But, such a rule of construction cannot apply, when the exercise of the power is expressly made discretionary with the officer, or magistrate. In such a case, the very terms imply as well a power to decline doing as the power to do the act authorised. Such has always been the doctrine applied to this very section of the justice act. Hence, in order to.secure to the defendant a period of two hours, in which he may of right appear and ■have a trial, independently of any discretion Of the justice, it was afterwards provided, by the 5th section of the act of 1803, that no judgment by default shall be entered by a justice until two hours from the time set for trial.
But this cause had been continued from the 18th of Nov. to the 28th of Dec.; and it was directly decided, in Steel v. *242Bates, 2 Vt. R. 320, that this latter provision does not apply to a continued case; but is confined to the time originally appointed in the writ.
It is alleged that, in this instance,- the justice refused to exercise his discretion, by hearing the motion, and overruled it, on the ground that he had not power to set aside the judgment. To sustain the complaint, on this ground, Would be to overrule all those decisions which deny this remedy for injuries resulting from the decision of the court, in any matter on which it becomes the duty of the court to decide. Such were the cases of Dodge v. Hubbell, 1 Vt. R. 491. Sutton v. Tyrrell. 10 Vt. R. 87.
Upon no ground, consistent with authority, can the process be supported.
Judgment affirmed.