Myers v. Van Alstyne

10 Wend. 97 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

The main ground relied on in support of the demurrer is, that the suit should have bee» brought in conformity to the provisions of the revised statutes, which require that all suits for penalties in violation of the statute to prevent horse racing shall be brought in the names of the overseers of the poor, &c. 1 R. S. 673, § 58. This suit was commenced since the revised statutes went into effect, but the forfeiture accrued before they became operative. By those statutes, it is enacted that “ no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed shall be affected by such repeal,” except when the forfeiture or penalty shall have been mitigated by the revised statutes. 2 R. S. 779, § 6. Here is no mitigation of the forfeiture or penalty, and it having been incurred previous to the revised statutes going into operation, it is in no way affected by them, and the remedy must be sought in conformity to the old law, 1 R, L. 232, § 3,3, Another conclusive answer to the objection to the suit in the name of the common informer is, that the provisions of the revised statutes as to the commencement of suits in the names of the overseers of the poor are prospective, and operate only on future forfeitures. The plaintiff is entitled to judgment.