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repeal carrying with it a reflection on the wisdom of former parliaments, it has ever been confined to repealing as little as possible of the preceding statutes. a Although, then, two acts of parliament are seemingly repugnant, yet if there be no clause of non obstante in the latter, they shall, if possible, have such construction, that the latter may not be a repeal of the former by implication. The same view has been taken where powers under several acts are such as may well subsist together. b A subsequent act, too, which can be reconciled with a former act, shall not be a repeal of it, though there be negative words; as the 1 & 2 Ph. & M. c. 10, that all trials for treason shall be according to the course of the common law, and not otherwise, does not take away 35 H. 8, c. 2, for trial of treason beyond sea.c

a 11 Rep. 63; Dyer, 347.

c Forster's case, 11 Rep. 63.

b 15 East. 377.

tion of the judgment. In a civil case it would it seems be otherwise. Hartung v. the People, 22 N. Y. R. 95; Sanchez v. the People, id. 155.

The repeal of a statute creating an offence before trial for such offence, is a bar to a conviction. Cook v. Board of Police, 16 Abbott, Pr. R. 473, S. C. 40, Barb. 626.

Where some of the provisions of a statute are void for unconstitutionality, a general repealing clause in such statute which repeals all provisions of law in conflict with it, does not repeal provisions which conflict only with that part which is void. Harbeck v. Mayor, &c. 10 Bosw. 366.

When a new statute covers the whole subject matter of an old one, and adds offences and prescribes different penalties from those enumerated in the old law, it is, by necessary implication, a repeal of the former statute. Norris v. Croker, 13 How. U. S. R. 429.

Bloomer v.

The suspension of an act, cannot be construed to be a repeal of it. Brown v. Barry, 3 Dall. 365, note 15. All legislative acts are repealable. The most injurious consequences would be the result of a contrary doctrine. Stolly, 5 McLean, 161; Kellogg v. Oshkosh, 14 Wis. 623. Where a perfect right of action has accrued on a contract which is authorized by a statute, neither the contract, nor a suit pending for its enforcement will be affected by a repeal of the statute. Pacific Mail Steam Co. v. Jolliffe, 2 Wallace, 450. This is based upon the reason that there was a vested right independent of the statute. But it is otherwise in a case where a party is prosecuting for a penalty. A party has no vested right in a penalty until after judgment obtained. The legislature may discharge a defendant by repealing the law. Norris v. Crocker, 13 How. 429. And a prosecution for an offence punishable by fine and imprisonment, is barred by a repeal of the act creating it; and a saving clause in the repealing act, excepting suits for “penalties and forfeitures" does not reach the case. U. S. v. Mann, 1 Gallison, 177. So too, an indictment cannot be sustained under a statute which has been repealed without a saving clause. U. S. v. Passamore, 4 Dallas, 372. So it was held by Ch. J. Marshall in the case of the "Irresistable" 7 Wheat. 552, that an offence against a temporary act, cannot be

When there is a difference in the whole purview of two statutes, apparently relating to the same subject, the former remains in force. a

It has been held, however, that clauses which limit in any way the right of the crown, must be considered as repealed by subsequent statutes, unless expressly re-enacted. b

It has been before seen, that by a decision of the Court of Exchequer, if the latter part of the statute be repugnant to the former part thereof, it shall stand, and so far as it is repugnant, be a repeal of the former part; because it was last agreed to by the makers of the statute.c

On every act professing to repeal, or interfere with, the provisions of a former law, it is a question of construction, whether it operate as a total, or partial, or temporary repeal. The word repeal" is not to be taken in an absolute, if it appear upon the whole act to be used in a limited, sense. d Where several acts of parliament upon the same subject had been totally repealed, and

a Rex v. Downes, 3 T. R. 569. c Fitzgib. 195.

b Atty. Gen. v. Newman, 1 Price, 438. d Rex v. Rogers, 10 East. 573.

punished after the expiration of the act, unless there be a particular provision made by law for the purpose.

A repealing act, like other acts, only takes effect from its approval by the President, or Governor. All prior proceedings on the same day are valid, and the precise time of executive approval it seems, may be inquired into as a question of fact. Richardson's case, 2 Story R. 571; Aukrim's case, 3 McLean, 571. The contrary of this, however, was held in Welman's case, 20 Vt. R. 653, and in the case of Howes, 21 Vt. 619. I think sound reason, and the highest demands of justice, are against the Vermont rule.

Where a statute imposes a penalty for an act done, injurious to the rights of others, such penalty to be recovered by the party aggrieved, the penalty is in the nature of a satisfaction to him, as well as a punishment to the offender. In such case the plaintiff has acquired a vested right to the penalty, as soon as the offence is committed; and a general repeal of the statute after action brought does not affect that right. President, &c., of London v. Harrison, 9 Barn. and Cres. 524; Company of Cutlers v. Ruslin, Skinner R. 365; Palmer v. Conly, 4 Denio, 874-5.

The repeal of a statute does not take away the plaintiff's cause of action under it for damages for an injury to his property. Vandekar v. Rensselaer & Sar. R. R. Co. 13 Barb. 390.

Where a right to damages has vested, under a statute, its repeal, attempting to destroy that right, is void, it is beyond the scope of legislative power. People v. Supervisors of Westchester Co. 4 Barb. 64.

Where a statute creating an offence is repealed, it is a bar to a subsequent action, for an offence committed before the repeal. Howard v. State, 5 Ind. (Porter) 183. The right to recover a penalty is lost by a repeal of the act, unless saved in the repealing act. Id. 535; Heald v. State, 36 Maine, 62.

others repealed in part, it was held that it must have been the clear intention of the legislature that only the part of an act particularly pointed out, should be repealed. a

If a statute, before perpetual, be continued by an affirmative statute for a limited time, this does not amount to a repeal thereof at the end of that time. But e contra where a statute professes to repeal absolutely a prior law, and substitutes other provisions on the same subject, which are limited to continue only till a certain time, the prior law does not revive after the repealing statute is spent, unless the intention of the legislature to that effect is expressed. c

Where one statute is repealed by another statute, acts done in the meantime, while it was in force, shall endure and stand, and be good and effectual; but not so, it has been said (quære tamen) if the former act be declared null and void. d

By the repeal of a repealing statute, (the new law containing nothing in it that manifests the intention of the legislature that the former act shall continue repealed), the original statute is revived; but if a statute be repealed by several acts, a repeal of one act or two, and not of all, does not revive the first statute. e If a repealing statute, and part of the original statute, be repealed by a subsequent act, the residue of the original statute is revived.f If an act of parliament be revived, all acts explanatory of that so revived, are revived also. g

Where the words are, that "no statute, not expressly mentioned, shall be revived;" but, by the repeal of the repealing statute, a statute is revived, which mentions another to be in force, this shall also operate as a revivor of the last-mentioned statute; as was the case with the stat. 21 Hen. 8, of pluralities, mentioned to be in force by the stat. 25 Hen. 8, c. 21, which, was revived by the stat. 1 Eliz. 1, though that act says that no statute repealed by 1 & 2 Ph. & M. stat. 22, shall be in force, if it be not specially revived. h

a Camden v. Anderson, 6 T. R. 723. c Warren v. Windle, 3 East. 205.

b Raym. 397.

d Jenk. Cent. 283, pl. 6.

e The Bishop's case, 12 Rep. 7; Tattle v. Grimwood, 4 Bing. 496. f 9 B & C. 354.

g 2 Burr. 747.

h 1 Vent. 22.

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NOTE 6.-Where a statute reviving a statute which has been repealed, is itself repealed, the statute which was revived stands as it did before the revival. Calvert v. Makepeace, 1 Smith, (Ind.) 86.

NOTE 7.-Congress may make the revival of an act dependent upon a future event, and direct that event to be made known by proclamation. 7 Cranch, R. 382. Id 570.

When a statute is revived by a subsequent act, it is revived precisely in the form and with the effect which it had when it expired. Peck v. Pease, 5 McLean R. 486, and though there be an interval between the expired act, and the act reviving it, the rights of parties under the original act are preserved, unless the rights of third parties have intervened during the interval. Stevens v. McCargo, 9 Wheat. 502.

When an act of parliament is repealed, it must be considered (except as to transactions past and closed,) as if it had never existed. The stat. 5 Geo. 4, c. 98, repealed all former bankrupt acts. That was repealed by 6 Geo. 4, c. 16, which repeal had the effect of setting up the old acts from the 2d of May, 1825, when the 6 Geo. 4, c. 16, passed, until the 1st of September, 1825, when the last mentioned act came into operation; but they then ceased to exist, and the powers given by them were extinguished, the legislature having made no provision for issuing commissions after the 6 Geo. 4 took effect, upon acts of bankruptcy previously committed. "We are to look," said Lord Tenterden, a "at the stat. 6 Geo. 4, c. 16, as if it were the first that had ever been passed upon the subject of bankruptcy." So, in a criminal case, b an act, from its passing, repealed a former act, which ousted clergy from a certain offence, and imposed a new penalty on the same offence from and after its passing. It was held that an offence committed before the passing of the new act, but not tried till after, was not liable to be punished under either of these statutes. For the former act was repealed; and as to the latter, the provisions cannot be retrospective, unless declared to be so by express words; either by an enumeration of the cases in which the act is to have a retrospective operation, or by words which can have no meaning unless such construction is adopted.c

If an act be to have continuance for three years, and from thence to the end of the next session of parliament, it shall continue to the end of a session which begins after the three years, though a session within three years continue several months after the three years.

As every statute made against an injury, mischief or grievance, impliedly gives a remedy, the party injured, if no remedy be expressly given, may have an action upon the statute. d If a penalty be given by a statute, but no action for the recovery thereof be given, an action of debt will lie for the penalty. e

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a Surtees v. Ellison, 9 B. & C. 752; and see Maggs v. Hunt, 4 Bing. 212; Kay v. Gordon, 6 Bing. 582.

b Rex v, Mackenzie, R. & R. C. C. 429.

c Churchill v. Crease, 5 Bing. 178; Torrington v. Hargraves, id. 492.

d 2 Inst. 53; 10 Rep. 75.

e Poph. 175.

NOTE 8.-In the Revised Statutes of this State, Vol. 2, 480, § 1, it is provided, that where a pecuniary penalty or forfeiture is specially granted by law to any person injured or aggrieved by the act or omission of another, the same may be sued for in an action of debt or assumpsit. Under this statute it has been held, that in the absence of any provision to the contrary, the party injured or aggrieved by such act, may bring an action in his own name; the implication of law is that the right so to sue is thereby given to the party so injured. Thompson v. Howe, 46 Barb. 287; Conly v. Palmer, 2 Comst. 182. The penalty when recovered is in the nature of satisfaction for the wrong done.

When a statute commands or prohibits a thing of public con cern, the person guilty of disobedience to the statute, besides being answerable in an action to the party injured, is likewise liable to be indicted for the disobedience. a Wherever a statute forbids the doing of a thing, the doing it wilfully, although without any corrupt motive, is indictable. b If a statute enjoin an act to be done without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. c Thus where a statute commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable, not only at the suit of the party grieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it.

But if the thing commanded or prohibited by a statute can only be prejudicial to one or two persons, as if it be to repair the banks of a river, from want of having done which the ground of a certain person has been overflowed, no indictment lies; the remedy being by an action upon the case. d So, if a statute, although it extend to all persons, chiefly concerns disputes of a private nature, as those between landlords and tenants relating to distresses, an offence against the statute is not indictable. e

If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. This rule applies to the case of a statute inflicting a penalty for making a particular contract, as a simoniacal or usurious contract, f in which it has been held that the contract was void under the statute, though there was a pen alty imposed for making it. A question has been made, whether, where a statute creating a new offence, gives a penalty, and directs how it shall be recovered, the offence can be punished in any other way than that directed by the statute.g Upon which, the proper inquiry to be made is, 1st, Was the doing of the thing, for which the penalty is inflicted, lawful or unlawful before the passing of the act? 2dly, Is there a general prohibitory clause in such statute, or no?

When the statute, making the new offence, is not prohibitory, but only inflicts the forfeiture and specifies the remedy, an indictment will not lie.h The true rule was laid down by Lord Mansfield in the case of the King v. Robinson, i that where the offence was punishable before the statute prescribing a particular method of punishing it, then such particular remedy is cumulative, and does

a Cro, Eliz. 635; 2 Inst. 131, 163.

c R. v. Davis, Say. 133.

e 1 Hod. 71.

g Castle's Case, Cro. Jac. 643.

b R. v. Saintsbury, 4 T. R. 457.

d Sid. 209.

f Per Lord Holt, Carth. 251; Skin. 222.

h R. v. Wright, 1 Burr. 543.

i 2 Burr. 805; R. v. Boyell, 2 Burr. 832; Cown. 524, 656.

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