but that Whited & Johnson gave him a receipt for $397 “to apply on what he owes on note.” This receipt is in evidence. The abstract contains nothing to contradict this testimony, and the jury must have have allowed respondent credit on this payment for $397. The amount of wheat for which the agent of Mr. Mears gave respondent receipts, all of which are in evidence, figured at the prices which the agent swears he received for the respective amounts, makes the further sum of $439.10; making total payments $836.10, or $50.85 in excess of the amount of the original note, shorn of its usury, and all the smaller notes. This excess more than equals the largest amount of cash advances claimed.
It is thus clear that at the time of the execution of the note of April 2nd, 1891, respondent owed E. A. Mears, to whom the note was given, and who is president of the appellant bank, nothing; and such note is entirely without consideration, unless appellant's contention that the court erred ‘in -its instruction heretofore quoted, as to the effect of usury in the original note, can be sus- tained. The instruction given was clearly in harmony with § 3723, Comp. Laws 1887, which was in force when the note was given, but this section was repealed by Ch. 184, Laws 1890, and hence was not in force when this action was tricd; and it is urged that this repeal wiped out all the penaltics and forfeitures under the old statute, and left the note to be enforced in its entirety. In other words, that neither the penalty prescribed by said § 3723, nor by the usury law enacted in 1890, and which repealed the old law, could be applied to this particular transaction, and, even if confessedly usurious under either or both statutes, still there is no remedy left for the enforcement of the consequences of such usury. That the repeal of a statute penal in its nature, without a saving clause, operates to absolutely extinguish all penalties under such law, is, we think, quite well settled. See Ewell v. Daggs, 108 U.S. 143, 2 Sup. Ct. Rep. 408, and cases there cited. But this rule of law has been abrogated by a general provision in this state. Section 4767, Comp. Laws, reads: “The repeal of
