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Gregory v. German Bank of Denver.

tee of a New York corporation, founded upon the statute in question, says: "It is not claimed that the defendant, by the act of incorporation, is individually liable as a corporator for the debts of the body corporate, or that his liability attached as a necessary result of the contract made by the company. His liability results from the failure of the trustees to comply with the requirements of the statute. It is in fact a penalty inflicted upon the trustees for the failure to perform a duty enjoined by the statute. It is immaterial whether the penalty be a specified sum, or the payment of the debts of the corporation. In either case it is a penalty imposed by statute. This being a suit to enforce a penalty inflicted by a statute of the State of New York, it is clear that it cannot be enforced in this State. Penal laws are strictly local, and affect nothing more than they can reach." See, also, First National Bank of Plymouth v. Price, 33 Md. 487; Halsey v. McLean, 12 Allen, 438; Harrisburg Bank v. Commonwealth, 26 Penn. St. 451. Upon reason and authority we are constrained to the conclusion that the statute is in its nature penal.

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The general assembly, Feb. 11, 1876 (§ 1, p. 49, Session Laws 1876), amended this section by limiting the liability of trustees in default, to those debts "that had been contracted or incurred, since the publication of the last annual report, and for all that should be contracted before such report should be made." This amendment went into effect on the day of its passage, and was the law up to March 1st of the same year. On the same day, February 11th, 1876, the legislature (Session Laws 1876, p. 41) passed an act entitled "an act to amend chapter eighteen of the Revised Statutes of Colorado Territory, entitled 'corporations' (Session Laws 1876, p. 41), of which sections three and seventeen are as follows: 'Section three, section fifteen of the act to which this is amendatory, is hereby amended by striking out of said section every part thereof after the words "carried on " in the twelfth line thereof, and the following is enacted instead of the part so stricken out, viz.: 'and if any such company shall fail so to do, the president and secretary of such company shall forfeit and pay the sum of two hundred dollars, and shall be jointly and severally 1.able in an action of debt, at the suit of the people of the Territory of Colorado therefor; and when such sum shall be collected, it shall be paid into the territorial treasury, to the credit of a fund for the use of the public schools of this Territory.""

Gregory v. German Bank of Denver.

"Sec. 17. This act to take effect on the 1st day of March, 1876." Under this law, the forfeiture, if enforced, instead of going to the creditors of the company, went to the credit of a fund for the use of public schools.

If the German Bank is entitled to recover from Jacob Gregory, its right is based upon a statute that had passed out of existence long before it had obtained judgment in the court below. The creditors no longer had any right to pursue the trustees. All judicial proceedings after the repeal were without authority of law. The right of the creditor to proceed against the trustee depended exclusively upon the statute, and when it ceased to exist, all proceedings commenced under it, in the absence of a saving clause in the repealing statute, fell with it. Inchoate rights arising under the statute were swept away. No right can be said to have accrued to creditors under the statute, unless before its repeal such right was carried into judgment. There is no such thing as a vested interest in an unenforced penalty. Sedgw. on Stat. Law, 111; Norris v. Crocker, 13 How. 429; Gaul v. Brown, 53 Me. 496; Curtis v. Leavitt, 15 N. Y. 152; Nichols v. Squire, 5 Pick. 168; Bay City R. R. Co. v. Austin, 21 Mich. 391.

It was not competent for the general assembly of 1868 to trammel any succeeding legislature. Every legislature, subject only to constitutional restraint, is as supreme in its own sphere as any of its predecessors or successors. So far as section 21, page 122, Rev. Stat., prohibits any future legislature from altering, amending, or repealing the chapter in which it is found, except in the manner and to the extent therein prescribed, it is certainly nugatory when applied to penal sections. If a legislature has the right to bind a succeeding legislature to a particular mode of repeal, it would result practically, that it might at pleasure enact irrepealable statutes. Were the courts to sanction such a doctrine the most disastrous consequences might be expected.

As the legislature of 1876 repealed, without a saving clause, the penal statute upon which the German Bank founds its action, we are of opinion that its suit cannot be maintained. The judgment of the court below must be reversed with costs.

Reversed.

CASES

IN THE

SUPREME COURT

OF

TENNESSEE.

MARKS V. BORUM.

(1 Baxt. 87.)

Damages for killing trespasser-contributory fault.

To an action for damages for killing the plaintiff's intestate, the defendant pleaded, that the deceased in the night time came on defendant's premiser with intent to steal his chickens, and while the deceased was so engaged, and before he had completed the offense, the defendant, to prevent the offense and protect his property, killed him; held, (1) that the killing was not justifiable, there being no averment of any attempt to arrest, or that the property could not have been otherwise protected; (2) that the conduct of the deceased did not constitute such contributory wrong as to defeat a recovery.

A

CTION for damages for causing death of plaintiffs' intestate. The opinion states the case.

Stokes & Son and Farrer & Golladay, for Borum.

Ford, Cantrell and Sanders, for Marks.

NICHOLSON, C. J. This suit was commenced in the Circuit Court of Wilson county, on the 9th day of April, 1866, by Joseph B. Marks, as administrator of Solomon Swan, against Henry C.

Marks v. Borum.

Borum, to recover the sum of ten thousand dollars as damages for the use of the wife and children of Solomon Swan, on account of the shooting of said Swan by said Borum, from which shooting the said Swan died.

To the declaration defendant filed several pleas: first, not guilty; second, that the deceased Solomon Swan, on the day of 186-, came in the night time on the premises of the defendant, with the intent and for the purpose of stealing the poultry, to-wit: turkeys, chickens, etc., of the defendant; that said Solomon Swan did then and there attempt feloniously to take and steal the said poultry of the defendant, and that whilst the said Solomon Swan was so engaged, and before he had completed the said offense of larceny, the defendant did shoot him, the said Swan, as he might dawfully do, to protect the property of him, the said defendant, and to prevent him, the said Solomon Swan, from committing the crime of petit larceny; third, that the deceased Solomon Swan, on the day of 186, (it being the Sabbath) came in the night time, at an unusual hour and after the defendant had retired to rest, to the roost, situated near the dwelling-house of the defendant, and where the chickens and turkeys of the defendant were roosting, and then and there did such acts, and conduct himself in such manner as reasonably to induce the belief, and as did induce the belief on the part of the defendant, that his, the said Soloman Swan's, purpose and intent was feloniously to take, steal and carry away the chickens, turkeys, etc., of the defendant, and that the defendant did, whilst laboring under said belief, induced, as aforesaid, by the apparently wrongful acts and misconduct of said Solomon Swan, and before he, the said Solomon Swan, had abandoned or consummated his said apparent purpose and intent to commit a felony, inflict the gun-shot wound complained of, as he, the said defendant, might lawfully do, etc.; fourth, that the shooting was done in defending his person from a felonious assault, etc.; fifth, that while said Solomon Swan was attempting to steal the poultry, he approached the defendant under such circumstances and with such indications as induced defendant reasonably to believe that said Swan then and there intended to inflict upon defendant death, or great bodily harm, and that laboring under that belief and under great fear and alarm for the safety and security of his person and property, did inflict the gun-shot wound complained of, as he might lawfully do in defense of himself, etc.

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There was issue on the first plea, and replications and issues on the fourth and fifth pleas. To the second and third pleas plaintiff demurred, and upon argument the demurrer was overruled and the plaintiff allowed to reply.

[A minor point omitted.]

1. It is insisted for plaintiff that the circuit judge erred in overruling the demurrer to defendant's second and third pleas. The first of these pleas assumes that it is lawful for the owner of poultry to protect his property from the larceny of the thief, while in the act of attempting to commit the theft, by shooting and killing the thief. The plea does not allege that any effort was made to arrest the thief, or that he could not have been arrested, or that the poultry could not be protected from larceny by other means, but it rests upon the simple ground that under the circumstances stated in the plea it was lawful for the defendant to take the life of the thief by way of protecting defendant's property.

The first authority relied on by defendant to sustain this position is that of 2 Bishop, 6 Crim. L., which says, "that the rule is finally fixed in the laws of England and the United States, that one may oppose another attempting the perpetration of any felony, to the extinguishment, if need be, of the felon's existence." This manifestly contemplates the perpetration of a felony by force, which may be opposed by force for its prevention, and, if the necessity exists, the force may be carried to the extent of extinguishing life.

The next authority is that of Mr. East, 1 Pleas, Crown, 271, who says: “A man may repel force by force in defense of his person, habitation or property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony-such as murder, rape, robbery, arson, burglary and the like-upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is justifiable in self-defense." It is obvious that the justification is here placed upon the ground of resisting force with force, and not upon the simple right to protect one's property from an attempted larceny, when there is no force and no personal danger, and no necessity for taking life.

The next authority is Mr. Hale, who says: "In case of felony attempted, as well as a felony committed, every man is therefore an officer, that at least in killing the attemptee in case of ne

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