lands or tenements should not pass thereby unless she personally acknowledge the same before such mayor or chief magistrate, or before two justices or magistrates as aforesaid." By an act passed in 1785, entitled "An act for regulating convey. ances," it was provided that "when husband and wife shall have sealed and delivered a writing purporting to be a conveyance of any estate or interest, if she appear in court and being examined privily and apart from her husband, by one of the judges thereof, etc., or if before two justices of the peace of that county in which she dwells, who may be empowered by commission, to be issued by the clerk of the court wherein the writing ought to be recorded," etc., it shall be sufficient to convey her estate. The court, by McLean, J., said: "By the act of 1776 the acknowledgment and privy examination of a feme covert were required to be made before the mayor or other chief magistrate, or before two justices or magistrates of the town or place where she shall reside. The acknowledgment before two justices is retained in the act of 1785 with this additional requisite, that the justices shall be commissioned, as provided, to perform this duty. This necessarily repeals that part of the prior act which authorized the acknowledgment to be taken before two justices without being commissioned. The latter act is in this regard repugnant to the former. The provisions cannot stand together, as the latter act superadds an essential qualification of the justices not required by the former.

"But the important question is whether, as the act of 1785 made no provision authorizing a mayor of a city to take the acknowledgment of a feme covert, that provision in the act of 1776 is repealed by it. In this respect it is clear there is no repugnancy between the two acts. The two provisions may well stand together; the latter is cumulative to the former." 1

§ 142. Repealing effect of new statutes changing criminal laws. Penal statutes include the definition of offenses, and of punishments, not necessarily in the same act; but the definition of the offense and the prescription of the penalty are

1 Daviess v. Fairbairn, 3 How. 636. See Swann v. Buck, 40 Miss. 268-307; Gibbons v. Brittenum, 56 id. 232.

so allied that legislation affecting one may affect the other.1 Where a statute prescribes a new punishment for a commonlaw offense, it is still a common-law offense, and only the punishment is changed. But where a common-law offense is defined and enacted by statute, which also prescribes the penalty, the common law is repealed and the offense is thus made a statutory offense. A change in the elements of the offense or in the elements or amount of the penalty will destroy the identity of the offense and effect a repeal to the extent of the repugnance. When the new law uses the same words as the old, the second is declaratory and not repugnant, and there is no repeal. A re-enactment has been held a continuation though the punishment by imprisonment is reduced. A statute fixing a penalty for a wilful and malicious trespass will not repeal an existing law fixing a different penalty for a wilful trespass. The elements of the offense defined in one section are not the same as those which constitute the offense in the other; the last act is cumulative; the two can stand

1 Commonwealth v. Kimball, 21 Pick. 373; Commonwealth v. McDonough, 13 Allen, 581; Flaherty v. Thomas, 12 Allen, 428.

2 Williams v. Reg. 7 Q. B. 250; McCann v. State, 13 Sm. & M. 471; State v. Daley, 29 Conn. 272, 276.

3 King v. Bridges, 8 East, 53.

4 Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Cooley, 10 Pick. 37; State v. Boogher, 71 Mo. 631.

5 Norris v. Crocker, 13 How. 429; Dowdell v. State, 58 Ind. 333; State v. Smith, 44 Tex. 443; State v. Whitworth, 8 Port. (Ala.) 434; Rex v. Cator, 4 Burr. 2026; King v. Davis, 1 Leach's Cas. 271; United States v. Tynen, 11 Wall. 88; Gorman v. Hammond, 28 Ga. 85; Mullen v. People, 31 Ill. 444; Michell v. Brown, 1 E. & E. 267; United States v. Case of Pencils, 1 Paine, 406; People v. Bussell, 59 Mich. 104; State v. Horsey, 14 Ind. 185; State v. Pierce, id. 302; Leighton v. Walker, 9 N. H. 59; Nichols v.

Squire, 5 Pick. 168; State v. Grady, 34 Conn. 118; State v. Daley, 29 id. 272; Commonwealth v. Gardner, 11 Gray, 438; State v. Massey, 103 N. C. 356; Turner v. State, 40 Ala. 21, Lindzey v. State, 65 Miss. 542; Miles v. State, 40 Ala. 39; Buckallew v. Ackerman, 8 N. J. L. 48; People v. Tisdale, 57 Cal. 104; Reg. v. Youle, 6 H. & N. 753; State v. Hamblin, 4 Rich. (N. S.) 1; Sherman v. State, 17 Fla. 888; Pitman v. Commonwealth, 2 Rob. (Va.) 813; Magruder v. State, 40 Ala. 347; Smith v. State, 1 Stew. 506; Wall v. State, 23 Ind. 150; State v. Craig, id. 185; Drew County v. Bennett, 43 Ark. 364.

6 Commonwealth v. Gardner, 11 Gray 438; State v. Gumber, 37 Wis. 298. See Hirschburg v. People, 6 Colo. 145.

7 State v. Wish, 15 Neb. 448. See Nichols v. Squire, 5 Pick. 168; Gorman v. Hammond, 28 Ga. 85; State, v. Whitworth, 8 Port. 434; Smith v. State, 1 Stew. 506; Carter v. Hawley,

together. A statute establishing and defining two degrees of murder to be found by the jury, one punishable according to the existing law by death, and the other by a milder punishment, imprisonment for life, will not have the effect to repeal the law against murder which was punishable by death with out distinction of degrees.?

§ 143. Where a later statute contains no reference to the former statute, and defines an offense containing some of the elements constituting the offense defined in such former statute and other elements, it is a new and substantive offense. The two statutes can stand together and there is no repeal.3 So if the later statute prescribe a punishment for acts with only a part of the ingredients or incidents essential to constitute the offense defined in a former statute. But if the same offense, identified by name or otherwise, is altered in degrees or incidents, or if a felony is changed to a misdemeanor, or vice versa, the statute making such changes has the effect to repeal the former statute. Two penal provisions, passed in one act or at different times, may co-exist though covering in part the same acts, and applicable in part to the same persons, and prescribing different penalties. One will not render the other nugatory contrary to the legislative intent."

Where a new law covers the whole subject-matter of an old one, adds new offenses, and prescribes different penalties for those enumerated in the old law, then such former law is re

Wright (Ohio), 74; Leighton v. Walker
9 N. H. 59; Flaherty v. Thomas, 12
Allen, 428; Blackwell v. State, 45
Ark. 90.

1State v. Alexander, 14 Rich. 247; Blackwell v. State, 45 Ark. 90. See Coghill v. State, 37 Ind. 111.

license is not repugnant to and therefore not repealed by a subsequent act imposing taxes for revenue purposes on the manufacturers and venders of fireworks. Homer v. Commonwealth, 106 Pa. St. 221; S. C. 51 Am. R. 521; Youngblood v. Sexton, 32

2 Commonwealth v. Gardner, 11 Mich. 406, 425. See State v. Duncan, Gray, 438.

3 State v. Alexander, 14 Rich. 247; State v. Benjamin, 2 Oregon, 125; Bennett v. State, 2 Yerg. 472; Rex v. Downs, 3 T. R. 569; Pons v. State, 49 Miss. 1.

4 Coghill v. State, 37 Ind. 111. A statute imposing a penalty on the sale of fireworks without special

16 Lea, 79.

5 R. v. Davis, 1 Leach, 271; People v. Tisdale, 57 Cal. 104; Mongeon v. People, 55 N. Y. 613; Hayes v. State, 55 Ind. 99; Michell v. Brown, 1 E. & E. 267; Sherman v. State, 17 Fla. 888.

6 Davies v. Harvey, L. R. 9 Q. B. 433; The Industry, 1 Gall. 114.

pealed by implication.' The effect would probably be that of revision and repeal, though no new offenses were added; it is enough that the new statute embraces all the provisions of previous statutes on the same subject, which are intended to have force. The revision of criminal laws or new legislation which manifestly is intended to furnish the only rule that shall govern has the same effect as like legislation has on other subjects. In each case it is a question of legislative intent. The question ever is, Did the legislature intend to repeal the former law, or was the new law intended to be merely cumulative? In Re Baker,5 Bramwell, B., said: "When a statute directs something to be done in a certain event, and another law is made which appoints something else to be done, not contradictory but more comprehensive, and including the former, I cannot help thinking that the first act is gone."

Where, however, the new statute contains no reference for repeal or otherwise to existing statutes, and defines an offense made punishable by a prior law, and imposes a new punishment, it will not repeal such prior law as to existing cases; for, as the new law will only operate prospectively, there is as to offenses already committed no conflict. The prior law will operate as to all offenses against it committed up to the time that the new law goes into effect, and the trial may be had and judgment pronounced afterwards. govern where a cumulative penalty is prescribed.❜

1 Norris v. Crocker, 13 How. 429; Dowdell v. State, 58 Ind. 333; Johns v. State, 78 id. 332; Michell v. Brown, 1 E. & E. 267.

The same rule would

4 Sifred v. Commonwealth, 104 Pa. St. 179; United States v. Case of Pencils, 1 Paine, 400; Osborn, Ex parte, 24 Ark. 479; Coats v. Hill, 41 id. 149. 52 H. & N. 219.

Mongeon v. People, 55 N. Y. 613; People v. Hobson, 48 Mich. 27; Pitman v. Commonwealth, 2 Rob. (Va.) 813; Mitchell v. Duncan, 7 Fla. 13; Miles v. State, 40 Ala. 39; Commonwealth v. Pegram, 1 Leigh, 569; Commonwealth v. Wyatt, 6 Rand. 694. See Rex v. McKenzie, R. & R. C. C. 429.

2 Commonwealth v. Kelliher, 12 Allen, 480. See Nusser v. Commonwealth, 25 Pa. St. 126. A statute fixed a tax on the exercise of a certain privilege and a penalty for exercising it without a license; a subsequent act changed the tax and provided a remedy for its collection, but was silent as to the penalty; held, that there was no such incompatibility as to cause a repeal. Cate 7 Shoemaker v. State, 20 N. J. L.

A statute providing for or defining an offense created by a previous statute, and providing a materially different punishment, repeals the former act. If the punishment prescribed by statute for larceny of any sum above $50 be imprisonment in the states prison not exceeding five years, and subsequently the legislature enact a severer punishment for larceny of an amount exceeding $2,000, the law is not thereby changed as to larcenies of amounts below the latter sun. The repugnance extends no further, and is the limit of repeal, by implication. So where a statute imposed a certain fine and a minimum term of imprisonment, it was held not repealed by a subsequent statute which gave the court a discretion on proof to mitigate this punishment. The court say: "It does not change any previously prescribed penalty, nor does it substitute a new or different kind of punishment in the place of that which the former statutes had affixed to certain classes of offenses. The effect of the statute was merely to vest in the court a discretion by the exercise of which they were authorized to mitigate the sentence to which the offender was liable, by dispensing with a portion of the prescribed punishment. The extent of the repeal of previous statutes is then only this: That, in a certain class of cases, instead of a fixed or inflexible rule of punishment which could not be modified or varied, the court has authority to substitute a milder sentence. Clearly such a statute is not a violation of any right or privilege of an accused party, nor does it render the class of offenses to which it relates, and which were committed prior to its enactment, dispunishable. It does not inflict any greater punishment than was before prescribed; it is not, therefore, ex post facto; it only authorizes a mitigation of a pen

1 State v. Smith, 44 Tex. 443; Gorman v. Hammond. 28 Ga. 85; State v. Horsey, 14 Ind. 185; State v. Pierce, 14 Ind. 302; Mullen v. People, 31 Ill. 444; Michell v. Brown, 1 E. & E. 267; Robinson v. Emerson, 4 H. & C. 355; Cole v. Coulton, 2 E. & E. 695; Henderson v. Sherborne, 2 M. & W. 236; Att'y-Gen'l v. Lockwood, 9 M. & W. 391.