Page:North Dakota Reports (vol. 3).pdf/217

 enumerated in the statute shall be set out in the affidavit in such manner and form as will satisfy the judge to whom the affidavit is presented. Being satisfied with the affidavit, the judge may make the order. We think the statute is not intended to be mandatory, but is, on the contrary, intended to clothe the Judge of the District Court with a pure discretion, which, unless abused, cannot be reviewed in an appellate court. We see no such abuse in this case. Elliott, App. Proc. § § 597, 605.

Counsel claims, in effect, that the note and mortgage which were given in February, 1890, are wholly exempt from the operation of any usury law, even though illegal interest was exacted in the note and mortgage transaction. The claim is that the usury law of 1889, which is embraced in Ch. 70, Laws 1889, and which was in force when the note and mortgage were executed, does not govern the note and mortgage, because, as is claimed, the law of 1890, found in Ch. 184, Laws 1890, without a saving clause, expressly repealed all pre-existing usury laws of this state. Referring to the defense of usury, as stated in the affidavit of the mortgagor, counsel for appellant uses the following language in his brief: “This supposed defense would have been proper, were it not for such repeal, but he is no longer permitted to set up such defense to his contract made while the old usury law was is in existence.” It is true that the usury law of 1890 operated to repeal the usury statute enacted in 1889, but the question lying in the background is this: Does such repeal operate to extinguish any penalty or forfeiture which under the old law had attached to a usurious transaction, had while the old law was yet in force? We think this question is decisively answered in the negative by § 4767, Comp. Laws, as follows: “The repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action

N. D. R.-12.