STATE v. NOBLE WEST.
Court of Quarter Sessions.
April, 1796.
Wilson’s Red Book, 96.
*85
Bayard for defendant.
No punishment can be on the facts in this indictment at common law, 4 Bl.Comm. 64. The Statute 18 Eliz. [c. 3 (1576) ] has not been considered as binding here. By 1 Body Laws 74, three pounds or twenty-one lashes is the punishment for fornication. By 4 Body Laws 479,l * there is to be no punishment for fornication after the date thereof, to wit, February 9,1796, and the former Act is repealed.
Clark, contra.
The question is what judgment the court can pass in this case. The Act, 1 Body Laws 74, only gave an additional power to inflict a particular punishment; and the court by virtue of their commission could give another judgment before the Act, and after always passed a different one, viz the order for maintenance; and the Supreme Court refused to hear this power called in question. The Act, 4 Vol. 479, only takes away the Act, 1 Body Laws 74. The new Act will not prevent a punishment for crimes under the old; though repealed, the action is not destroyed. “Where a statute repeals another, acts done in the mesne time shall stand, but not if a statute be declared null,” 19 Vin.Abr. 532, E. 9, pi. 3.
Bayard in reply.
There is no punishment for fornication independent of 1 Body Laws 74. As to bastardy, the order of maintenance arose from the Act, for its declaring what shall constitute a reputed father was alluding to the doctrine of the order for maintenance.
[The Act,] 4 Body Laws 479, “no fine etc. shall be inflicted,” is negative and pays no respect to the depending prosecution. The law respecting maintenance is also altered and supplied by this *86Act, and is therefore by the last clause of it repealed. If the-former law is not repealed, this court will only have concurrent, jurisdiction with the justices of the peace. If a former right is. existing, it is not destroyed by a subsequent Act of Assembly,, but not so of crime.
Per Curiam. Bassett, C. J.
We are of opinion that the reasons filed in this cause are not sufficient to prevent the court from making an order for maintenance and indemnifying the-county as formerly. The Court have no power to pass judgment, of the fine and forfeiture, for it is taken from them by this Act, but the power relative to the order is not taken away by the Act.. It is a question whether the Sessions did not exercise the practice of ordering the maintenance previous to the Act, 1 Body Laws 74. We think they did, they certainly have ever since. This Act does, not prevent our acting [on] the business begun before the Act as to the order.
N. B. The order was conformable to the Act, 4 Vol. 479.