*361Dissenting opinion by
Rice, J. —This action was commenced under the provision of § 7, c. 196, statute of 1850. Whilst the action was pending in Court, the Act of 1852, c. 284, was passed. By the first section of this last Act, the 7th section of the Act of 1850, was unconditionally repealed. By that repeal, all actions and rights of action depending upon the repealed section, when the proceedings were not concluded, were destroyed.
“ I take the effect of a repealing statute to he to obliterate it, (the statute repealed) as completely from the records' of Parliament, as if it had never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded, whilst it was an existing law.” Tindall, C. J., in Keye v. Goodwin, 4 Moore &. Payne, 341.
“ The effect of such a (repealing) clause on a previous statute which imposes a penalty, or confers jurisdiction upon a court, even in civil cases, is not denied. In the first case the penalty is .gone, though the repeal take place while the prosecution for it is pending. In the latter case, though the party may have instituted his writ, and it be pending at the time of the repeal, the jurisdiction is gone, and with it all his rights.” Cowen, J., in Butler v. Palmer, 1 Hill, 324.
But it is contended that this action is saved by the statute of 1853, c. 29, which provides, that the Act oi 1852 shall not operate to defeat any suit or action which was pending at the time of the passage thereof.
It is not perceived how the Legislature could in this way restore rights which had been lost, or bring into being actions which by virtue of this repeal had been extinguished.' The attempt to do so by subsequent legislation was simply nugatory. Ashby, appellant, 4 Pick. 21.
The foundation on which the action vested having been removed by the repeal of the statute by authority of which it had been commenced, and the right to maintain and prosecute it having been taken away, the fact that it remained on the docket of the Court could not change the rights of the *362parties. It remained then only as an unauthorized incumbrance.