
    JANUARY TERM, 1844.
    Tillman M. Tucker, Governor, &c. v. James C. Stokes, et al.
    A tax assessor and collector’s bond, executed in pursuance of an act in force at the time of its execution, constituted a valid contract, upon which a subsequent repeal of that act can have no effect.
    Upon such a bond a recovery can be had, even after the repeal of the act under which it was executed, and against the sureties as well as principal obligor.
    This was an action of debt, brought in the name of Tillman M. Tucker, Governor of the State of Mississippi, against James C. Stokes, Egbert Martin, Francis Clement, and Elias E. Gentry, to the May term, 1842, of the Circuit Court of Yallabusha county, founded on the bond executed in 1839, by the defendant, James C. Stokes, as assessor and collector of taxes for said county, with the other defendants as his surties therein, to recover the sum of five hundred dollars.
    The declaration sets out the conditions annexed to the bond, in hcec verba, and avers that the said James C. Stokes, as assessor and collector of taxes for said county, did not do and perform all the duties that pertained to his office, but failed in this, to wit: he did not deposit in the office of the auditor of public accounts, on of before the 1st day of July, 1840, a list of the taxable property of said county, according to the provisions of the statute in such case made and provided, &c. The writ was executed on Clement and Gentry, and returned “ not found” as to the other defendants. At the return term the defendant, Clement, appeared and demurred to the declaration, upon the following grounds, to wit: “ 1st. There is no law, now in force, authorizing a suit to be brought on such an obligation as that named in the plaintiff’s declaration. 2d. The action purports to be brought to recover a penalty imposed upon Stokes as assessor and collector of taxes. The defendant is not liable for a penalty of this kind ; but is only liable, if at all, for special damage, sustained by the State, for a breach of duty by Stokes. The Court sustained the demurrer, and gave judgment for the defendant, from which the plaintiff appealed to this Court.
    
      
      John jD. Freeman, attorney-general, for appellant.
    This is an action of debt, on a tax collector’s bond, to recover the penalty of $500 under the statute of 1822 (H. & H. p. 103), for failing and refusing to deposit a copy of his assessment roll in the office of the auditor of public accounts.
    The bond is conditioned for the faithful performance of all the duties that pertained to the office of tax collector. The statute, above referred to, makes it the duty of the tax collector to deposit a copy of the assessment roll in the office of the auditor. The declaration alleges this" fact, and a failure to perform it. The defendant filed a general demurrer, which was sustained, and the plaintiff below appealed.
    The error complained of is, that the Court sustained the demurrer, when the same should have been overruled.
    The counsel for defendant in error, contends that the statute of 1841 repeals the statute on which this action is based. The statute of 1841 makes it the duty of the .assessor to deposit a copy of the assessment roll, as formerly, but the office of assessor and collector is divided, and held by different persons. The assessor of taxes, under the law of 1841,’is obliged to perform* the same duty required of an assessor under the previous law, and the penalty is increased from $500 to $1000 for a failure to do so. The statute is therefore still in force, with an additional penalty. The cases cited by counsel in 5th and 6th Cranch, do not apply to this case.
    
      Fisher, for appellees.
    The demurrer to the declaration was properly sustained by the Court below. The bond given by the assessor was not intended to embrace the penalty imposed by law for failing to return the assessment roll into the auditor’s office. The statute prescribes a penalty of five hundred dollars for .this breach of duty, and also the manner in which such penalty may be recovered. See How. & Hutch, p. 103, sec. 7 ; p. 108, 109, sec. 20.
    The demurrer to the declaration was filed by one of the securities to the bond, and it is insisted that the securities are not liable for penalties by the statute inflicted upon the delinquent assessor.
    This statute was repealed by the Revenue Law of 1841 ; and in which repealing statute there is no saving clause as to penalties and forfeitures incurred under the old law.
    The repeal of a penal statute, has always been considered as an abandonment of all rights and penalties accruing to the government under the same. 5 Cranch, 281; ibid. 203; Adams, R. 61, Lewis v. Foster.
    
   Mr. Justice Thacher

delivered the opinion of the Court.

This is an appeal from the judgment of the Circuit Court of Y^labusha county.

It was an action of debt, instituted in 1842, upon a tax collector’s bond, to recover the sum of $500 under the statute (H. & H. 103, s. 7 ; 108, s. 20), for failing to deposit in the office of the auditor of public accounts, within the time prescribed by law, a list of the taxable property and tax payers of his county. To the declaration there was filed a demurrer, setting forth as cause, that there was no law authorizing suit to be brought upon such an obligation as that named in the plaintiff’s declaration. This demurrer was sustained by the Court below.

The question in this case does not involve the inquiry, what effect the passage of the Revenue Law of 1841, s. 9 and 12, requiring a deposit by the assessor, of a list of the taxable property and tax payers of each county with the auditor of public accounts, and fixing the penalty for failure at a fine of $1000, and six months’ imprisonment, had upon the act of H. & H. 103, s. 7, and 108, s. 20. For considering it to be a repeal, it does not affect the right of recovery upon this bpnd. This bond was executed during the existence of the earlier law, and while it was in force, and constitutes a valid contract, upon which a subsequent repeal of the Act can have no effect. Springfield Bank v. Merrick, et al. 14 Mass. R. 322. A recovery also could properly be had against the securities as well as the principal obligor, and for such an amount of damages as upon a trial should be found by a jury.

The judgment of the Court below is therefore reversed, and the cause remanded for further proceedings.  