34.; FEDERAL   .
act shall so expresslyavprovide, andysuch, statute shall be treated as still V
remaining in force iforthe purpose of sustaining anyproper action or
prosecution rfor the enforcement of such penalty,. forfeiture, or liability."
. In Couch v. Jejtrvbs, 4 Burrows, 2460, which_ was a qwi tam action for
a penalty, the question was whether a. statute, (9 Geo. 3, c. 37,) passed
subsequent to the commencement of the action allowing delinquents by
Septemberl, 1769, to;·~pay_stamp- duties on indentures of apprentice-
ship, and thus escapethe penalty forsucb delinquency, attested the case
j of an action tor such penalty already commenced. y The court of king’s
benchunanimously determined that it did not.- In delivering the opin·;
ion of the court, Lord Mansrrnmn said: · { , _
·’·*f‘Here isa right vested, and it is not to be imagined that the legislature
· couldby-general wordsmean to take it away from the personin whom it was.
so legally vested, and.wl1o,,had been ata great deal of cost and charge in
prosecuting, They certainly meant.,future actions., Otherwise it would be
’ punishing the innocent instead ofthe guilty. It can never be the true con-
structiouotthis abt to take awaythis vested right; and punish the innocent
pursuer dtit with costs'." l   v_   V " `- ·` · r
· Neither is the statutemnder considerations, penalione. It merely
givesa party a remedy foran injury sustained by him through the neg-
ligence or wrongdoing of l another, in which he may recover only such
damages as he can show he has sustained. , . A ,
V Admittinghthen, that the- common law does not give the plaintiff a.
remedy against the defendant for this injury, and that the action is only
a»uthorized<_fby section 347, Code Civil Proc., which is so far repealed,
yet it is neitherlogicalinor just to assume that the legislature also thereby
intended vtortake away all existing rights of action when in fact it made
uoprovisionv onvthe subject. That such was the private purpose of
those who procured the passage of the amendment after the demurrer to
the complaint was overruled, is possible. But there is no evidence that
such was the. intent of the legislature, or that attention was called to the
‘ subject. lWhy~ the act should even have been amended at all, as it was,
is not apparent. - It hadrbeen in force here for nearly 33 years-—the life
of a generation-+-without question or objection, so far as appears. It is
r _ a wholesome and just enactment, by which the counties are required
i to compensateindividuals for losses sustained through their neglect to
keep theirf highways in repair, and now found in the statutes of most
of the states. j.? . . . · · * — .
A It is also urged thatvthe amendment, even on the defendant’s con-
struction of it,- does not leave the plaintiff remediless, as he may have an
action wagairistvthe supervisor,~and, if so, why not against the county
v court? But a remedy· against the supervisor, oreven the persons who
constitute, the county court, however worthy they may be, would, in
manyyifrnotmost, cases, be equivalent to threshing emptyistraw. If
travelers and others who sustain injuries by reason of defective high-
ways can have no remedy against any one except these officers person-
ally, they might as well have none.
A question is also made in the case as to whether the county had no-