HUGHES 0. DUNDEE Mo1zTGAoE & TRUST INVESTMENT 00. 43
judgment taken to an appellate court on a writ of error is notthereby
vacated, but "continues inforce until reversed." In pursuance of a
statute of Colorado, Twombly obtained a judgment against the rail-
way company for damages for causing the death of her husband, which
was affirmed in the supreme court of the territory. The record was
then taken to the supreme court of the United States on a writ of er-
ror from that court, and, pending this proceeding therein, the statute
authorizing the widow to maintain the action was repealed. On this
account the court, on the hearing, was asked to instruct the court
below "to dismiss the suit, " as there was no longer any statute un- _
der which it could be maintained, for the reason that in error, as on
appeal, the determination of the court below is vacated, and the case
is pending for retrial in the cou1·t above.
In disposing of the case, after stating there were no errors in the
record affecting the judgment, Mr. Chief Justice WAITE said:
"Neither can we, as is asked, send the case back to the court below, with
instructions to enter a judgment of nonsuit, because since the judgment be-
low, and while this writ of error has been pending, the statute authorizing
the action has been repealed. A writ of error to this court does not vacate
the judgment below. That continues in force until reversed, which is only ·
done when errors are found in the record on which it rests, and which were
committed previous to its rendition. Here there are no such errors. All we
can do, therefore, is to amrm the judgment. and send our mandateto that ef-
fect to the court be1ow." A
See, also, on this point, Sage v. Harpending, 49 Barb. 174; Harris
v. Hammond, 18 How. Pr. 123; Nill v. Comparct, 16 Ind. 107; Curtis
v. Donnell, 3 Mo11t. 214; Frcclericks v. Clark, Id. 260.
But the contrary rule obtains in an appeal, as is clearly stated in
the case of The Gen. Pinkney, 5 Cranch, 281. This vessel was con- -
demned in the circuit court for the violation of a statute prohibiting
intercourse with certain ports in St. Domingo. The case was taken
to the supreme court of the United States 'by appeal, and before it
was heard there the statute expired by its own limitation. Counsel
for the government claimed an affirmance of the decree of the court
below, notwithstanding the lapse of the statute in the mean time, as
if it was a case of a common—law judgment in the appellate court on
error. But the court held otherwise, Mr. Chief Justice MARSHALL
saying: ,
"The majority of the court is clearly of opinion that, in admiralty cases,
an appeal suspends the sentence altogether; and that it is not res adjudicator
until the final sentence of the appellate court be pronounced. The cause in
the appellate court is to be heard de novo, as if no sentence had been passed.
* * * The court is therefore of opinion that this cause is to be considered
as if no sentence had been pronounced; and if no sentence had been pro-
nounced, it has long been settled,on general principles, that after the expira-
tion or repeal of a law no penalty can be enforced, nor punishment inflicted,
for violations of the law committed while it was in force, unless some special
provision be made for that purpose by statute."