ture intended a repeal. Apparent or real inconsistency between acts is not sufficient ground for holding that the first is impliedly repealed by the second, if it clearly appears that there was no such intention on the part of the legislature.203

51. Implied Repeal of the Common Law.

The same principles apply for the purpose of determining whether a statute impliedly repeals a rule or principle of the common law. As a general rule, there is no repeal if there is no repugnancy between the common law and the statute.204 But the common law is re

ed as a repeal of the earlier statute, without any repealing clause.

203 Cain v. State, 20 Tex. 355.

204 State v. Ellis, 33 N. J. Law, 102, 97 Am. Dec. 707; State v. Pulle, 12 Minn. 164.

A statute defining and punishing bribery of judicial officers only does not abrogate or repeal the common law as to bribery of other officers. State v. Ellis, supra.

*

*

"A statute which is clearly repugnant to the common law must be held as repealing it, for the last expression of the legislative will must prevail. Or we may admit that when a new statute covers the whole ground occupied by a previous one, or by the common law, it repeals, by implication, the prior law, though there is no repugnancy. Beyond this, the authorities do not

pealed if there is an irreconcilable repugnancy, or if the legislature has undertaken to revise and cover the whole subject matter, and, in the latter case, inconsistency between the statute and the common law is not necessary.2

205

go in sustaining a repeal of the common law by implication. On the contrary, it is well settled that where a statute does not especially repeal or cover the whole ground occupied by the common law, it repeals it only when and so far as directly and irreconcilably opposed in terms." State v. Pulle, 12 Minn. 164.

205 Com. v. Cooley, 10 Pick. (Mass.) 37; Com. v. Dennis, 105 Mass. 162; Estes v. Carter, 10 Iowa, 400; State v. Boogher, 71 Mo. 631.

In Com. v. Dennis, supra, the prosecution was for attempt to commit suicide, which was a misdemeanor at common law. It appeared that the Massachusetts legislature had undertaken to cover the subject of attempts by statute, the degree of punishment being measured by the character of the offense attempted, and the punishment attached to it. All offenses punishable by death, imprisonment, and fine were included, and no others. It was held that the common law as to attempts to commit suicide was repealed, and that such attempts were no longer indictable, since suicide could never be punished in either of the ways specified.

And in Com. v. Cooley, supra, it was held that a statute containing a series of provisions in

When a statute creates a new offense, and prescribes a particular penalty and mode of enforcing it, the statute, of course, must be followed; but if the offense was before punishable at common law, the common-law remedy still remains, though the statute may prescribe a new remedy, unless there are negative words in the statute excluding all other remedies. "That affirmative statutes do not take away the common law is a maxim of the law itself."208

52. Effect of Expiration or Repeal.

When a law has expired or been repealed absolutely, it no longer has any operation, and it is well settled, therefore, that a person cannot be prosecuted for an offense after the law under which it was punishable has expired or been repealed without a saving clause, although the offense may have been committed when the law was in full force.20 207 Even

relation to the whole subject of the disinterment of dead bodies had superseded, and by necessary implication repealed, the rules of the common law on the same subject.

206 Wetmore v. Tracy, 14 Wend. (N. Y.) 250, 28 Am. Dec. 525; People v. Crowley, 23 Hun (N. Y.)

2071 Hale, P. C. 291; Rex v. McKenzie, Russ.

when there has been a conviction during the existence of the law, no judgment can be rendered after its expiration or repeal.208 For this reason, it is usual, in repealing laws, to insert a saving clause continuing them in force as to pending prosecutions, and often as to all violations of the law before the repeal.209 In some states there is a general provision that the repeal of a penal statute shall

& R. 429; Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377, Beale's Cas. 5; Com. v. McDonough, 13 Allen (Mass.) 581; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Teague v. State, 39 Miss. 516; Roberts v. State, 2 Overt. (Tenn.) 423; Com. v. Duane, 1 Binn. (Pa.) 601, 2 Am. Dec. 497; Hartung v. People, 22 N. Y. 95, 26 N. Y. 167; State v. Loig, 78 N. C. 571; Sheppard v. State, 1 Tex. App. 522, 28 Am. Rep. 422; State v. Mansel, 52 S. C. 468; State v. Lewis (S. C.) 33 S. E. 351.

208 Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 379, Beale's Cas. 5; Com. v. Kimball, 21 Pick. (Mass.) 373; Com. v. Duane, 1 Binn. (Pa.) 601, 2 Am. Dec. 497; Mahoney v. State, 5 Wyo. 520; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302.

This principle also applies when a law is repealed or expires pending a writ of error or appeal, for the decision must be in accordance with the law at the time of final judgment. Keller v. State, supra; Mahoney v. State, supra.

209 See Sanders v. State, 77 Ind. 227; Com. v.

not abate a pending prosecution, or prevent a prosecution, for acts previously committed.210 53. Repeal of Repealing Law.

As a general rule, in the absence of a staiutory provision to the contrary, the repeal of a repealing law revives the pre-existing law. Thus, if a statute should repeal the common law as to murder by defining and punishing it, the simple repeal of the statute would revive the common law. And the same is true of the repeal of a statute which repealed a prior statute. The prior statute is revived.211 The intention of the legislature, how

Bennett, 108 Mass. 30. A clause in a statute that nothing contained in the statute shall affect "any penalty or forfeiture already incurred under the provisions of any law in force prior to the passage of this act" saves from the operation of the statute any penalty incurred before it took effect, though after its approval by the governor. Com. v. Bennett, supra.

210 See Com. v. Duff, 87 Ky. 586; Acree v. Com., 13 Bush. (Ky.) 353; McCuen v. State, 19 Ark. 634; State v. Mathews, 14 Mo..133.

211 Com. v. Mott, 21 Pick. (Mass.) 492; Com. v. Getchell, 16 Pick. (Mass.) 452; State v. Kent, 65 N. C. 311.

In some jurisdictions it is expressly declared by statute that no act or part of an act repealed by another act shall be deemed to be revived by