By c. 313, §§ 1 and 2, of the Acts of 1865, the taking of menhaden or pogies by seine, within three miles of the shore in any waters, is prohibited under a penalty of " not less than four hundred nor more than one thousand dollars.”
This action is brought to recover such penalty, but, since its commencement, the penalty has been reduced by an Act approved Feb. 21, 1866, c. 30, § 1, "to not less than one hundred nor more than five hundred dollars,” and by § 6, " all Acts and parts of Acts inconsistent with this Act are repealed.”
Gould, for plaintiff. Hubbard, for defendant.Upon the above facts, the Justice presiding at Nisi Prius ruled that the action was not maintainable.
A. penal action cannot be maintained after the repeal of the statute creating the penalty sought to be recovered. The plaintiff cannot recover for the penalty for which he sued, because the statute giving it is repealed. He cannot recover for the new penalty, because there was no statute giving such penalty when he commenced his suit. Cummings v. Chandler, 26 Maine, 376; Com. v. Kimball, 21 Pick., 376; Leighton v. Walker, 9 N. H., 59. Where a penalty is changed by a subsequent act, the statute imposing the original penalty is impliedly repealed. Nichols v. Squire, 5 Pick., 168, Plaintiff nonsuit.
Kent, Walton, Dickerson, Barrows and Danforth, JJ., concurred.