People ex rel. Fleming v. Livingston

By the Court,

Savage, Ch. J.

By the first section of the repealing act of the 10th December, 1828, 2 R. S. 779, the act of 1820, under which the relator claims his deed, was repealed from and after the 31st December, 1829. By the 5th section of the repealing act, it is enacted that “ The repeal of any statutory provision by this act shall not affect any act done, or right accrued or established, or any proceeding, suit, or prosecution, had or commenced in any civil case previous to the time when such repeal shall take effect; but every such act, right, and proceeding, shall remain as valid and effectual as if the provision so repealed had remained in force.” This repealing clause varies from most, if not all others which are to be found in our statute books. Take, for instance, the proviso to the repealing section of the fifty dollar act of 1824. The 43d section of that act, after repealing the act of April 5th, 1813, and all subsequent acts relating to the same subject, proceeds as follows: “ Provided that nothing in this act contained shall affect any actions or suits heretofore commenced, or which may be commenced, previous to the fourth day of July next; but the same *530 may be proceeded in and determined as though this act had not ^een passed.” It is plain from this that every suit commenced under the old acts should be prosecuted throughout, and Procee^ iQ the language of the statute, under the former acts, precisely as if they had not been repealed. So also in the repeal of the acts previous to the revision of 1813, from which the 5th section under consideration seems to have been in part taken. 2 Revised Laws of 1813, p. 556. After repealing certain acts, this proviso follows, omitting so much as relates to penalties and forfeitures: “ Provided, however, that such repeal shall not affect any act done, right accrued or established, proceeding had, suit or prosecution commenced, previous to the said 1st day of December next; but every such act, proceeding, and right, shall remain as valid, and every such suit or prosecution may lawfully proceed, as if all the acts and parts of acts hereby intended to be repealed had remained in full force.” In both of these acts it is declared that any suit or proceeding commenced before the day therein mentioned, shall remain valid and effectual as if the repeal had not been made. The act of 1813 says that such suits and proceedings shall proceed as if no repeal had taken place. The act of 1828 is silent on that point, and its phraseology very different. In my opinion the effect is, that every suit, right, fyc. remains in force, notwithstanding the repeal of the act which supported them; but their future proceedings must be governed by the statutes then in force, i. e. the revised statutes. It will not be denied, I presume, that it is competent for the legislature to repeal any act upon which a suit has been brought, and if the repeal is absolute, such suit is at an end. For instance, the present statutes prohibit gaming, and allow an action to be brought to recover back money won at play ; an action is brought and ready for trial ; the day before the circuit, the legislature repeals the act; the suit dies because the court has no jurisdiction to proceed, and the party has no right to recover his money. Such right did exist, subject to the contingency of obtaining a judgment, and such jurisdiction, too, existed ; but both have been taken en away, because the means of enforcing the right no longer exist. The common repealing clause is so much a matter *531 of course with the legislature, that the continuance of the suit and the enforcing of the right seem so much like a common law, or perhaps constitutionaLtright, that we are unwilling to believe that it has been, or can be infringed. But it cannot be denied that the legislature possess the power to take away by statute what was given by statute, except vested rights. As it is undoubtedly competent for the legislature to repeal absolutely, so it is competent, notwithstanding the repeal, to continue the old law in force as to the proceedings commenced under it; to substitute another law in place of the old one; and to direct that all future proceedings in the progress of a cause, or the prosecution of a right, shall be governed by such new law. This, in my judgment, is precisely what has been done by the repealing act of 1828. The old laws died with the year 1829, and with the commencement of the new year, the new laws were ushered into being.

It seems to me to have been the intention of the legislature to confirm all rights which had accrued—to be enforced, however, according to the new remedy ; and that where rights accrued were subject to a contingency, the consequences of the new laws must follow upon that contingency. For instance, in the case of The People v. Herkimer Common Pleas, 4 Wendell, 210, the appeal was brought in 1829, and though the law of 1824, by virtue of which the appeal was brought, was repealed, yet the appeal remained effectual; but the right of the party to costs was not established till the trial was had in the common pleas; by the new law, the consequences of that trial as to costs were different from what they were under the old law. The only right which was established under the old law, was the right to appeal; and as the repealing statute gives no right to proceed under the old law, the party must proceed under the new; and by that a new rule is established as to costs, and that rule is and must be applicable to all trials had under them; and hence Mr. Justice Marcy said: “ Those statutes take up the proceedings in causes pending, where they find them; and where the statutes under which those proceedings were commenced are repealed, the subsequent proceedings must be regulated *532 by the revised statutes f and I add, they must be so regula» tec^ because there is no authority to continue those proceed-™gs under any other statutes. The clause in the repealing act oi? 1818, providing that every suitor prosecution might lawfully proceed as if there had been no repeal, is not found in the repealing act of 1828—there is no such provision. That clause was omitted, and no doubt intentionally, that there might be a harmonious system; not two codes of laws, one to be administered to one set of suitors, and another code for other suitors. . Whether this be the correct view, of the question or not, it is that which has been adopted upon as much reflection and examination as the pressure of business during term would permit, and for the present must be considered the law of this court. I am aware there may be difficulties in some cases, but those difficulties will be met, if possible, as they arise.

What then were the rights of the redeeming creditor under the act of 1820 1 I answer, that while that act was in force, he had no rights at all; for one year the right of redemption was exclusive in the defendant in the execution and his grantees ; but if the right of the creditor to redeem may be considered as inchoate and dormant from the sale, that would not change his situation. The old law gives merely the right of redemption, but prescribes not the manner of redeeming. It is consistent with the existence of the right to, redeem, to vary the evidence which shall be produced to the _ officer. Under the old statute, there was no right established, in the language of the revised statutes.

Even if it were as the relator contends, he has not done enough to entitle himself to a deed ; he did not within the fifteen months, produce any evidence of his judgment. The act of 1820 was silent as to the evidence to be produced. This court was compelled to say what evidence should be sufficient, and we held that an exemplification of the record, or at least the clerk’s certificate, should be produced, 1 Cowen, 458. The relator produced neither. An affidavit of the amount was produced ; this was complying with one of the requisitions of the revised statutes, which is not found in the. act of 1820, or in the decisions upon it; so that even the re *533 lator himself, in that particular, supposed the revised statutes to be operative. He did not entitle himself to a deed, and the motion for a mandamus must be denied, with costs.