89 utes changing the rules of evidence or the competency of witnesses. New statutes may be valid which take away defenses based on irregularities and informalities,"1 by validating contracts executed without compliance with a statute, or in violation of some statutory prohibition. When a remedy upon a contract not unlawful is prohibited, a repeal of the statute will restore the remedy. An act which forbids a corporation to set up the defense of usury repeals as to such corporation the laws against usury, and a repeal of such laws will cut off the defense of usury upon contracts previously made. An act in regard to taxation declared that mortgages on lands in more than one county should be void. It was held that, as the object of the statute was to protect the public revenue, the intent of the statute was that such mortgages should be absolutely void and that a repeal of the act would not have the effect of validating such mortgages.96 § 285 (165). Effect on powers, jurisdiction and pending proceedings.— Powers derived wholly from a statute are extinguished by its repeal. All acts done under a statute pervisors v. Briggs, id. 173; Matter of Palmer, 40 N. Y. 561; Dismukes v. Stokes, 41 Miss. 431; Mastronada v. State, 60 Miss. 86. See Newsom v. reenwood, 4 Ore. 119. 89 Herbert v. Easton, 43 Ala. 547; Stephenson v. Osborne, 41 Miss. 119, 10 Am. Dec. 358; Journeay v. Gibson, 56 Pa. St. 57, 60; Fogg v. Holcomb. 64 Iowa, 621, 21 N. W. 111. 90 Laughlin v. Commonwealth, 13 Bush, 261. 91 Cooley's Const. Lim.,*371 et seq. 92 Dulany's Lessee v. Tilghman, 6 G. & J. 461; Andrews v. Russell, 7 Back f. 474; Parmelee v. Lawrence, 48 Ill. 331; Webber v. Howe, 36 Mich. 150; Journeay v. Gibson, 56 Pa. St. 57; Carpenter v. Pennsylvania, 17 How. 456, 15 L. Ed. 127; Es tate of Sticknoth, 7 Nev. 223; Dentzel v. Waldie, 30 Cal. 138. 93 Gibson v. Hibbard, 13 Mich. 215; Ewell v. Daggs, 108 U. S. 143, 2 S. C. Rep. 408, 27 L. Ed. 682; Syracuse Bank v. Davis, 16 Barb. 188; Harris v. Rutledge, 19 Iowa, 388, 87 Am. Dec. 441; State v. Norwood, 12 Md. 195; State v. Newark, 25 N. J. L. 399; Lewis v. McElvain, 16 Ohio, 347; Savings Bank v. Allen, 28 Conn. 97; Cooley's Const. Lim. #374 et seq. See New York, etc. R. R. Co. v. Van Horn, 57 N. Y. 473. 94 Johnson v. Meeker, 1 Wis. 436. 95 Ewell v. Daggs, 108 U. S. 143, 2 S. C. Rep. 408, 27 L. Ed. 682. 96 Denny v. McCown, 34 Ore. 47, 54 Pac. 952. whilst it was in force are good; but if a proceeding is in progress, in fieri, when the statute is repealed, and the powers it confers cease, it fails, for it cannot be pursued.97 It is held that a statutory right of appeal may be taken away, even while an appeal is pending. Jurors drawn and designated according to law to serve for a term of court were 97 Bac. Abr., tit. Statute, D.; Road in Hatfield Township, 4 Yeates, 392; Veats v. Danbury, 37 Conn. 412; Stoever v. Immell, 1 Watts, 258; Commonwealth v. Beatty, id. 382; Gilleland v. Schuyler, 9 Kan. 569; Church v. Rhodes, 6 How. Pr. 281; Smith v. Arapahoe Dist. Ct., 4 Colo. 235; State v. Brookover, 22 W. Va. 214; New London Northern R. R. Co. v. Boston, etc. R. R. Co., 102 Mass. 389; Springfield v. Commissioners, 6 Pick. 501; McRee v. M'Lemore, 8 Heisk. 440; Downs v. Town of Huntington, 35 Conn. 588; Macnawhoc Plantation v. Thompson, 36 Me. 365; Illinois, etc. Canal v. Chicago, 14 Ill. 334; Uwchlan Township Road, 30 Pa. St. 156; Hunt v. Jennings, 5 Blackf. 195; Williams v. Middlesex, 4 Met. 76; Stephenson v. Doe, 8 Blackf. 508, 46 Am. Dec. 489; James v. Dubois, 16 N. J. L. 285; Petition of Fenelon, 7 Pa. St. 173; South Carolina v. Gaillard, 101 U. S. 433, 25 L. Ed. 937; Hampton v. Commonwealth, 19 Pa. St. 329; Commonwealth v. Standard Oil Co., 101 Pa. St. 119; Holmes v. French, 68 Me. 525; Warne v. Beresford, 2 M. & W. 848; Bucher v. Henderson, L. R. 3 Q. B. 335; Todd v. Landry, 5 Martin, 459, 12 Am. Dec. 479; Callahan v. Jennings, 16 Colo. 471, 27 Pac. 1055; Western Union Tel. Co. v. Lumpkin, 99 Ga. 647, 26 S. E. 74; State v. Order of Elks, 69 Miss. 895, 13 So. 255; State Rev. Agent v. Hill, 70 Miss. 106, 11 98 So. 789; State v. Fragiacomo, 71 Miss. 417, 15 So. 798; Wooding v. Puget Sound Nat. Bank, 11 Wash. 527, 40 Pac. 223. The city of Evansville passed an ordinance for the improvement of streets pursuant to a power given in the charter. It was held that the subsequent repeal of the section conferring the power did not affect the ordinance. Chamberlain v. Evansville, 77 Ind. 542; Dashiell v. Baltimore, 45 Md. 615. In March, 1875, a trader committed an act of bankruptcy, upon which a commission might have issued under the statutes then in force. On May 1st these statutes were repealed. On May 2d the repealing act was repealed and the former acts thereby revived. In July a commission of bankruptcy issued. Held, it was supported by the act of bankruptcy in March. Lord Tenterden: "We find certain statutes in force in March, 1825, when the act of bankruptcy was committed, and we find the same statutes in force in July when the commission issued. It appears to me that the case is not affected by anything that passed in the interval. The 5 Geo. IV., ch. 98, having been repealed, is to be considered, as far as this question is concerned, as if it had never existed." Phillips v. Hopwood, 10 B. & C. 39. 98 Callahan v. Jennings, 16 Colo. 471, 27 Pac. 1055. And see Lake held to continue to be legal jurors for the term, though during the term a new law went into effect prescribing a new method of drawing jurors.99 A grand jury summoned before the repeal of a law by a revision, which changes the qualifications and method of drawing grand jurors, cannot be impaneled after the repeal takes effect. If there has been a change or alteration or repeal of the law applicable to the rights of the parties, after the rendition of judgment, and pending an appeal, the case must be heard and decided in the appellate court, according to the existing law. When a cause of action is founded on a statute, a repeal of the Erie & W. Ry. Co. v. Walkins, 157 Ind. C00, 62 N. E. 443. See post, § 717. 99 Welty v. Lake Superior, etc. Ry. Co., 100 Wis. 128, 75 N. W. 1022; Ray v. Lake Superior, etc. Ry Co., 99 Wis. 617, 75 N. W. 420. 1 Clark v. United States, 19 App. Cas. (D. C.) 295. And see State v. Thomas, 30 La. Ann. 603. 2 Musgrove v. Vicksburg, etc. R. R. Co., 50 Miss. 677; Lewis v. Foster, 1 N. H. 61; Speckert v. Louisville, 78 Ky. 287; State v. Daley, 29 Conn. 272; Atwell v. Grant, 11 Md. 104; Keller v. State, 12 id. 325, 71 Am. Dec. 596; Price v. Nesbitt, 29 Md. 263; Mayor of Annapolis v. State, 30 id. 112; Wade v. St. Mary's School, 43 id. 178; Hartung v. People, 22 N. Y. 95; United States v. The Peggy, 1 Cr. 103, 2 L. Ed. 49; Sheppard v. State, 1 Tex. App. 522; Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173; McNabb v. Tonica, 103 Ill. App. 156; Wikel v. Commissioners, 120 N. C. 451, 27 S. E. 117; Sherman v. Langham, 92 Tex. 13, 40 S. W. 140, 42 S. W. 961, 39 L. R. A. 258, 260; The Schooner Rachel v. United States, 6 Cranch, 329, 3 L. Ed. 239; Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101. In Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173, the court says: "The effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Pending judicial proceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." 3 statute before final judgment destroys the right, and a judg ment is not final in this sense so long as the right of exception thereto remains. While a case was pending on writ of error, the statute on which the jurisdiction of the lower court depended was repealed. The court inadvertently reversed the judgment and remanded the cause. On its attention being called to the statute, it recalled the mandate, set aside the judgment of reversal and dismissed the writ of error. Where a jurisdiction conferred by statute is prohibited by a subsequent statute, or the law conferring it is repealed, the jurisdiction ceases and causes pending at the time fail, and no costs are recoverable by either party unless saved by provisions of the repealing law. If pursued the proceedings will be void, but they may subsequently be validated in certain cases, as when intended to establish a public rather than a private charge or liability.' Jurisdiction may be taken away by repeal of the statutes conferring pp. 627, 628. See Dunham v. Anders, 128 N. C. 207, 38 S. E. 832, 83 Am. St. Rep. 668. 3 Western Union Tel. Co. v. Lumpkin, 99 Ga. 647, 26 S. E. 74; Balch v. Detroit, 109 Mich. 253, 67 N. W. 122. Cal. 319; Smith v. Arapahoe Dist. Ct., 4 Colo. 235; Wade v. St. Mary's Industrial School, 43 Md. 178; Saco v. Gurney, 34 Me. 14; Miller's Case, 1 W. Black. 451; Yeaton v. United States, 5 Cr. 281, 3 L. Ed. 101; Springfield v. Commissioners of H., 4 United States v. Kelly, 97 Fed. 6 Pick. 501; Commonwealth v. 460, 38 C. C. A. 275. 5 Hollingsworth v. Virginia, 3 Dall. 378; Merchants' Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. Ed. 540; United States v. Boisdore, 8 How. 113, 12 L. Ed. 1009; Grant v. Grant, 12 S. C. 29, 32 Am. Rep. 506; McNulty v. Batty, 10 How. 72, 13 L. Ed. 333, 576; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264; Assessors v. Osbornes, 9 Wall. 567, 19 L. Ed. 748; United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153; Baltimore, etc. R. R. Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231; Rice v. Wright, 46 Miss. 679; Lamb v. Schottler, 54 Marshall, 11 id. 350, 22 Am. Dec. 377; Commonwealth v. Kimball, 21 Pick. 373; Thayer v. Seavey, 11 Me. 284; Cummings v. Chandler, 26 Me. 453; Texas Mexican Ry. Co. v. Jarvis, 80 Tex. 456, 15 S. W. 1089; Fairchild v. United States, 91 Fed. 297. 6 North Canal Street, 10 Watts, 351, 86 Am. Dec. 185; Church v. Rhodes, 6 How. Pr. 281; Morgan v. Thorne, 7 M. & W. 400; Petition of Fenelon, 7 Pa. St. 173; Bank of Hamilton v. Dudley, 2 Pet. 492, 7 L. Ed. 496. In re Pennsylvania Hall, 5 Pa. it by necessary implication as well as by express words." An application was made to the court of quarter sessions for the discharge of a prisoner under an insolvent debtor act, and every requisite was complied with by the debtor; but the court voluntarily, and without his application, adjourned the matter to a subsequent day, before which the act was repealed. On motion for a mandamus to the sessions to proceed to discharge him, the court of king's bench refused to grant it, as no act of jurisdiction could be done by the sessions after the repeal of the statute, though the proceeding had begun before." § 286 (166). Effect of repeal of a penal statute.— The repeal or expiration of a statute imposing a penalty or forfeiture will prevent any prosecution, trial or judgment for any offense committed against it while it was in force, unless the contrary is provided in the same or some other existing statute.10 Where a penal statute is so modified as to St. 204. See Cooley's Const. Lim. *371; Plantation No. 9 v. Bean, 36 Me. 359. 8 Cates v. Knight, 3 T. R. 442; Crisp v. Bunbury, 8 Bing. 394; New London N. R. R. Co. v. Boston, etc. R. R. Co., 102 Mass. 386. 9 Rex v. Justices of London, 3 Burr. 1456; Miller's Case, 1 W. Black. 451. 10 Yeaton v. United States, 5 Cr. 281, 3 L. Ed. 101; Commonwealth v. Marshall, 11 Pick. 350, 22 Am. Dec. 377: Commonwealth v. Pattee, 12 Cush. 501; Heald v. State, 36 Me. 62; Mayers v. State, 7 Ark. 68; Roberts v. State, 2 Overt. 423; Bennett v. State, 2 Yerg. 472; Brothers v. State, Cold. 201; Higginbotham v. State, 19 Fla. 557; Leftwiche's Case, 5 Rand. 657; Scutt's Case, 2 Va. Cas. 54; Bank of St. Mary's v. State, 12 Ga. 475; State v. Nutt, Phil. L. 20; Carlisle v. State, 42 Ala. 523; Governor v. Howard, 1 Murphy, 465; |