26 Me. 453 | Me. | 1847
The opinion of the Court was drawn up by
This is an action of debt, instituted to recover certain penalties, supposed to have been incurred under the Rev. Stat. ch. 51, and an act passed in 1844, in amendment thereof. The declaration contains two sets of counts ; the first for selling lime, contained in casks not seventeen inches in width between the chimes; the second set, for selling lime in casks not made, marked and branded according to the requirements contained in said statutes. After the action was commenced, and while it was pending in Court, an act was passed (ch. 213 of 1846,) repealing § 9 of the c. 51; and also the amendatory act of 1844. And now the defendant contends, that the action cannot be maintained, because, as he supposes, $ 9 alone prescribed the offences set forth in the declaration. To this it is replied, first, that the right to the forfeiture had vested in the plaintiff upon his bringing his action therefor, before the repealing act was passed ; and, therefore, that it was not competent for ■'the Legislature to deprive him of the same, by a posterior act; and, secondly, that <§, 10 of said ch. 51, remains unrepealed; and provides, that each lime cask, shall be branded on the outside of the bilge, with the initial of the Christian, and the whole of the surname, of the manufacturer thereof; and the second set of counts, being for selling casks, containing lime, not made, marked and branded, are within its terms.
But the authorities cited by the defendant’s counsel are abundant to show, that where a penal action, as the one before us undoubtedly is, the penalty being given to any one who may sue for the same, is founded on a statute repealed after action brought, it takes away the foundation upon which the superstructure is based; and this Court has often decided that actions so situated must fail to be sustained. A large number of actions, lately pending for penalties, which had accrued under the militia law, were ruled to be no longer sustainable, when that law was abrogated.
Exceptions overruled