seeking to enforce the right or avenge the wrong may proceed on the law he chooses. And bills of exchange, bills of lading, and other contracts are every day done in duplicate or tripli cate; one part being, to a claimant, equally available as all. The forms of this general truth are, in the law, endless. Hence,

§ 163e. Doctrine defined. The doctrine of this sub-title is that a statute establishing the same right or remedy as a prior law does not by implication repeal it, but a party may proceed under either, at his election, unless the two are repugnant, and then the repeal takes place to the extent of the repugnance.' Thus,

§ 164. Jurisdiction of court-(Election).-The jurisdiction of one court is not taken away by an affirmative statute giving the same to another. Either can then hear the cause, at the election of the suitor. For example, "If, by a former law," says Blackstone, "an offense be indictable at the quarter sessions, and the latter law makes the same offense indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either, unless the new statute subjoins express negative words, as that the offense shall be indictable at the assizes and not elsewhere." But,

Proceedings pending in one court bar same in another.- Since the common law forbids the harassing of a person by two suits at a time for the same thing, it results that, after a competent tribunal has obtained jurisdiction of a cause, another of con

1 And see ante, §§ 154, 158-162.

2 Crim. Pro., I, § 315; ante, § 112; Com. v. White, 8 Pick. 453; Murfree v. Leeper, 1 Tenn. 1; Burginhofen v. Martin, 3 Yeates, 479; Overseers v. Smith, 2 S. & R. 363; Com. v. McClos key, 2 Rawle, 369; Wright v. Marsh, 2 Greene (Iowa), 94; Galsworthy v. Durrant, 8 Weekly R. 594; Shaftesbury v. Russell, 1 B. & C. 666, 673, 674; Cates v. Knight, 3 T. R. 442, 444; Cooke v. State Nat. Bank, 52 N. Y. 96. 31 Bl. Com. 90.

Kerbey v. Siggers, 2 Dowl. P. C. 659; Kirby v. Siggers, 2 Dowl. P. C. 813; Johnston v. Bower, 4 Hen. & M.

487; Buffum v. Tilton, 17 Pick. 510; Humphries v. Dawson, 38 Ala. 199; Boyce v. Douglass, 1 Camp. 60; Combe v. Pitt, 3 Bur. 1423, 1432; Prosser v. Chapman, 29 Conn. 515; Rogers v. Hoskins, 15 Ga. 270; McKinsey v. Anderson, 4 Dana, 62; Tracy v. Reed, 4 Blackf. 56; Davis v. Dunklee, 9 N. H. 545; Parker v. Colcord, 2 N. H. 36. And see 2 Kent, Com. 121-126; [Mattel v. Conant, 156 Mass. 418, 31 N. E. R. 487; Warner v. Hopkins, 111 Pa. St. 328, 2 Atl. R. 83, 56 Am. D. 266; Trawick v. Brown, 74 Tex. 522, 12 S. W. R. 216.]

current jurisdiction is precluded from entertaining the like suit while this one is pending. The rule, therefore, is that the court first taking jurisdiction is entitled to retain it to the end.' So,

Indict under statute or common law. It is every-day prac tice in the criminal courts to proceed against an offender either under a statute or at the common law, as the prosecuting power elects. Even where an indictment is meant to be drawn on a statute, if it proves defective as such, yet is good at the common law, it stands,—the court rejecting the concluding words, "against the form of the statute," as surplusage.' And,

Election where no repeal. In all cases where the new statute does not repeal the prior law, both laws have a concurrent efficacy, and suitors may elect under which to proceed.*

II. THE DOCTRINE OF THE DIVISIBILITY OF LAWS AS AVOIDING, BY ADMITTING OF PARTIAL REPEAL, THE NECESSITY OF ENTIRE REPEAL.

§ 164a. Nature of divisibility.- The law being, alike while it remains the pure common law and when it is augmented by statutes, a seamless mass in distinction from a mere collection of separate parts, a carving off, by a repugnant statute, of a portion from the mass to be held as impliedly repealed, may cut as well through the written as the unwritten old. The separation cannot always be made absolutely anywhere, because the nature of the matter may forbid; but it can be made as well through the statutes, without reference to their clauses in formal terms, as through the common law. Now,

Illustrations.- For illustrations of this doctrine the reader is referred to the cases in which statutes are held to be void in part for unconstitutionality, and by-laws void in part as unauthorized. Other illustrations will appear as we proceed.

§ 165. Repeal or modification (Partial, of statute).-In the last chapter we saw something of so much of this doctrine as relates to the implied repeal of a prior statute. It may be partial. And such partial repeal is, in essence, simply a branch of that sort of modification of law by law to which a chapter further back is devoted. It is not always in the books called by the name repeal. Nor would it be a violent departure from usage in legal language to say that, whenever an earlier provision and a later can to any extent stand consistently together, there is no repeal, but only a modification of law by law. If there is a partial conflict, the prior law is, to the extent of it, abrogated; but where such prior law consists of a statute, we do not say, speaking of it as a whole, that it is repealed.

§ 166. Where separable. In illustration of the doctrine that, for repeal, the law is separable at some places and not at others, according to the matter composing it, and as show

1 Ante, § 163b.

2 Ante, § 34.

3 Ante, § 157.

Ante, § 122 et seq.

5 This doctrine was stated in part by Mathews, J., as follows: "A particular law is not repealed by a sub

sequent general law, unless there be
such repugnancy between them that
they cannot both be complied with
under any circumstances." De Armas
Case, 10 Mart. (La.) 158, 172.
• Ante, § 164a.

ing something of the bounds of the doctrine, yet not exhausting the subject, the following will be helpful:

him

Offense and punishment.- We can always separate the of fense from the punishment. So that, for example, a statute which provides a new punishment for an old offense repeals by implication only so much of the prior law as concerns the punishment; leaving it permissible to indict an offender either under the old law, whether statutory or common, and inflict on upon conviction the punishment ordained by the new,1 or under the new statute, at the election of the prosecuting power.2 The offense and punishment, therefore, may be defined by different laws; and so, as we have seen, if a statute simply creates an offense, the common-law punishment may by implication be imposed. But as law without its penal or other like sanction is impossible, if there is a statute, not merely reenacting the common law, but creating an offense and fixing its penalty, then another statute repeals so much of this one as relates to the penalty, all right to prosecute for a violation of it is gone. The abolition of the punishment abolished the crime.5 Still,

$167, Form of indictment. In mere form of the indict ment, it was ruled at an English trial, and so in authority the better English doctrine seems at the common law to have been," that, where the offense was originally created by a statute, affixing to it a penalty, and a subsequent statute increased the penalty, the indictment must conclude against the form of the statutes, in the plural. But this is at most a mere technical 1Com. v. Searle, 2 Binn. 332, 339, Mod. 378, 379. See, however, Felix [4 Am. D. 446;] Williams v. Reg., 7 Q. B. 250; S. v. Wilbor, 1 R. I. 199, (36 Am. D. 245;] McCann v. S., 13 Sm. & M. 471; S. v. Thompson, 2 12, [47 Am. D. 588;] Rex v.

Strob.

v. S., 18 Ala. 720.

3 Ante, § 138.

4 Crim. Law, I, SS 6-8.

5

Reg. v. Adams, Car. & M. 299. See S. v. King, 69 N. C. 419; S. v. Smith,

Berry, 1 Moody & R. 463; S. v. Will- 44 Tex. 443; Smith v. S., 7 Tox. Ap.

iams, 2 Rich. 418, [45 Am. D. 741;] 286.

Rex v.

S. v.

Bridges, 8 East, 53.

Boogher, 71 Mo. 631.

Rex

But see

Dickenson, 1 Saund. (Wms.

"Reg. v. Adams, Car. & M. 299.
71 Chit. Crim. Law (2d Eng. ed.),

291,and Am. notes; 2 Gab. Crim. Law,

ed.) 135; Rex v. Dixon, 10 Mod. 335, 246; Lee v. Clarke, 2 East, 333, 339; 337, Say, 226; Rex v. Urlyn, 2 Saund. Rex v. West, Owen, 134.

(Wms. ed.) 308, note; Rex v. Chat

8 For the distinction, see Crim. Pro.,

burn, 1 Moody, 403; Sir John Knight's I, § 605. Case, 3 Mod. 117; Rex v. O'Brian, 7

rule of pleading, not resting well on principle; and, in this country, the question has been decided both ways. Even in England the plural form has been ruled to be bad and the singular good. Now, although the punishment is the measure of the offense (there being none where there is no punishment, and it being greater or less according as the punishment is so); and although, therefore, the indictment must set out every element of crime which enters into the punishment, since otherwise it does not set out fully the offense, the true view as to this question of pleading seems to have been expressed by Lord Denman, thus: "It is the offense which is the subject of indict

'That the singular form is suffi- of prosecution, and the punishment cient, Strong v. S., 1 Blackf. 193; S. upon conviction. . . The defendv. Wilbor, 1 R. L. 199, [36 Am. D. 245;] ant cannot be said to act contrary to S. v. Dayton, 3 Zab. 49, [53 Am. D. a statute which prescribes nothing 270;] S. v. Berry, 4 Halst. 374; But to be done, but only fixes the mode man's Case, 8 Greenl. 113. That the of proceeding against, and the measplural form must be employed, S. v. ure of punishment to, those who have Moses, 7 Blackf. 244, and King v. S., violated another." pp. 207, 208. In 2 Ind. 523, the judges being appar- the supreme court of Maine, Parris, J., ently unaware of their previous de- drew the distinctions as follows: cision in Strong v. S.; S. v. Cassel, 2 "Where one statute creates the ofHar. & G. 407. See Kane v. P., 8 fense, and another gives the penalty, Wend. 203; U. S. v. Gibert, 2 Sum- it seems to be settled that an indictner, 19; Sears v. U. S., 1 Gallis. 257, ment must conclude against the form 259. In S. v. Pool, 2 Dev. 202, a ma- of the statutes. But if there be more jority of the judges held that, where than one statute concerning the same one statute creates an offense under offense, and the first of them was a penalty recoverable in a civil ac never discontinued, and the latter tion, and another makes it indictable, only qualify the method of proceedthe indictment must conclude against ing upon the former, without alterthe form of the statutes, in the plural. ing the substance of its purview, it But Henderson, C. J., dissenting, said: seems agreed that it is safe in an in"I am inclined to believe that this is dictment on such a statute to conthe rule; that, where it is necessary clude against the form of the statute. to have recourse to two or more stat- Where an offense is prohibited by utes to show that the acts imputed several statutes, if only one is the as crimes are in fact so, that is, acts foundation of the action, and the forbidden or duties enjoined, others are explanatory, it is sufficient there both or all the acts must be re- to say, against the form of the statferred to. . . . But it cannot be ute." Morrison v. Witham, 1 Fairf. said that the defendant did an act 421, 425. contrary to the prohibitions of a statute, when the statute did not prohibit it; in fact, was silent in regard to it, and only prescribed the mode

2 Reg. v. Wise, 1 Cox C. C. 80. See Crim. Pro., I, § 606.

3 Crim. Pro., I, §§ 79-88, 538-542; II, §§ 48, 177, 565, 572.