Smith v. Banker

3 How. Pr. 142

• Court: New York Supreme Court
• Decided: December 15, 1847
• Status: Published

Opinion

Barculo, Justice.

The repeal of the excise law of 1845, not only cut off the right to future prosecutions for the penalties thereby imposed, but also extinguished the right to proceed in suits which had been commenced and were pending at the time of the passage of the repealing act. (1 Hill, 824.)

The only way in which the rights of suitors in such cases can be preserved, is, by an express reservation of those rights in the act of repeal. The repealing act of May 12, 1847, is without reservation; and consequently the Plaintiffs’ right to recover the penalties ceased on that day. They were disabled from further proceeding in the suits.

I cannot see how the Plaintiffs can be said to be in default for not bringing the causes to trial, as the Legislature prevented them from .doing so. It would be manifestly unjust to punish them with costs for obeying the mandate of the legislative power. The motion must, therefore, be denied.

The Plaintiffs, on a proper application, may discontinue without costs. As this is a new question, neither party is to have costs of this motion.