The opinion of the Court was drawn up by
Whitman C. J.
This is an action of debt, instituted to recover certain penalties, supposed to have been incurred under the Rev. Stat. ch. 51, and an act passed in 1844, in amendment thereof. The declaration contains two sets of counts ; the first for selling lime, contained in casks not seventeen inches in width between the chimes; the second set, for selling lime in casks not made, marked and branded according to the requirements contained in said statutes. After the action was commenced, and while it was pending in Court, an act was passed (ch. 213 of 1846,) repealing § 9 of the c. 51; and also the amendatory act of 1844. And now the defendant contends, that the action cannot be maintained, because, as he supposes, $ 9 alone prescribed the offences set forth in the declaration. To this it is replied, first, that the right to the forfeiture had vested in the plaintiff upon his bringing his action therefor, before the repealing act was passed ; and, therefore, that it was not competent for ■'the Legislature to deprive him of the same, by a posterior act; and, secondly, that <§, 10 of said ch. 51, remains unrepealed; and provides, that each lime cask, shall be branded on the outside of the bilge, with the initial of the Christian, and the whole of the surname, of the manufacturer thereof; and the second set of counts, being for selling casks, containing lime, not made, marked and branded, are within its terms.
*457As to the first ground, relied upon by the plaintiff to obviate the effect of the repealing act, he relies, with much apparent confidence, upon the principles which governed the courts in the decisions of Couch, qui tam, v. Jeffries, 4 Burr. 2460, and Dash v. Van Kleeck, 7 Johns. R. 477. These cases, however, upon examination will not be found, at all points, parallel with the one before us. In neither of those cases was there a direct repeal of the provisions upon which the actions were respectively founded. In the first, which was for not paying the stamp duties upon an indenture of apprenticeship, and the defendant after verdict against him therefor, paid to the proper officer the duty, relying upon a law enacted after the action was instituted, that such delinquents, on paying the duty within a certain time, should be discharged from the penalty, the court held the act to be prospective, and that it could not affect actions in which the defendant had no day in Court to interpose such a defence. In the latter case, a sheriff was sued by a creditor, and for an escape of his debtor, who had given bonds for the liberties of the jail, which was a security only to the sheriff; and afterwards an act was passed declaratory of the law, to the effect, that such actions should not be brought against the sheriff, but, that bonds, so taken by him, should be assigned to the creditors, upon which they might seek their remedies. The Court held the act to be prospective; and that it did not interfere with the right of the plaintiff, which was considered as previously vested.
But the authorities cited by the defendant’s counsel are abundant to show, that where a penal action, as the one before us undoubtedly is, the penalty being given to any one who may sue for the same, is founded on a statute repealed after action brought, it takes away the foundation upon which the superstructure is based; and this Court has often decided that actions so situated must fail to be sustained. A large number of actions, lately pending for penalties, which had accrued under the militia law, were ruled to be no longer sustainable, when that law was abrogated.
*458But with regard to the other ground, relied upon by the plaintiff, our conclusion is different. The 10th section is clearly in force. From the finding of the jury, under the instruction of the Court, we must regard it as a fact, that the casks were not branded as required in that section. The instructions were as favorable to the defendant as he could properly claim to have had them. The jury were required, in order to a conviction, to find that the casks were not seventeen inches in width between the chimes, and were not made, marked and branded as required by that statute. They were not instructed that a deficiency in either particular would be sufficient to sustain the action, but that they must find them all, conjunc-tively, to be as alleged, before their verdict could be returned against the defendant. Hence, in finding the defendant guilty, they must be regarded as having found, that the casks were not branded as required in §10; and, having so found, the defendant was not aggrieved by the instruction, and had no right to except thereto; and the second set of counts may be sustained. The instruction, as applicable to the first set of counts, was erroneous, but were immaterial, and therefore can form no cause for sustaining the exceptions.
Exceptions overruled