Smith, O. J.,
delivered tbe opinion of tbe court:
This was a proceeding by scire facias upon a forfeited recognizance.
It appears that the plaintiff in error was indicted, at the May term of the Circuit Court of Yalobusha county, for vending spirituous liquors, in violation of the Act approved March 2, 1854, in relation to the sale of vinous or spirituous liquors in the town of Grenada in said county. The said Act prohibits the sale of vinous or spirituous liquors in any quantity whatever in the town of Grenada, or within three miles of the limits of the corporation.
The indictment contained two counts, in each of which it is charged, in general terms, that the defendant sold vinous and spirituous liquors in violation of the Act, without any averment as to the quantity of tbe liquors sold, whether in quantities of less or more than one gallon.
The defendant having been arrested under said indictment, entered into a recognizance with surety to appear and answer the same; and failing to appear, a forfeiture and judgment nisi was taken against him and bis sureties, on the 7th of November, 1859. A scire facias was issued upon this judgment, returnable to the May term of the court in 1860.
Subsequent to the entry of the judgment nisi, that is, on the 24th of January, 1860, the Act above referred to was repealed; but with a proviso declaring that the repealing Act “should not be so construed as to release or discharge from prosecution and punishment any offender or offenders who bad violated tbe Act intended to be repealed, by selling vinous or spirituous liquors in less quantities than one gallon,” &c. Acts, 1860, p. 314.
At tbe return-term of tbe scire facias tbe defendant demurred, and, upon tbe overruling of tbe demurrer, be filed bis pleas to tbe scire facias, which, being adjudged insufficient, a judgment final was entered against him and bis sureties.
It is contended, in support of the exception to tbe judgment, that, as tbe indictment does not charge an illegal sale of vinous or spirituous liquors in quantities less than one gallon, tbe defendant is not included in tbe proviso of tbe Act repealing tbe Act under wbicb tbe indictment was found. And as tbe pending indictment is not a valid charge for any offence in respect to wbicb tbe penalties incurred under tbe Act of tbe 2d of March, 1854, wereintended to be saved by tbe repealing Act, the defendant could not legally be convicted of any offence provided for by any existing law. Hence, as it is assumed that tbe effect of tbe repealing Act was to absolve tbe defendant from any penalty incurred under -the Act repealed, tbe scire facias should have been dismissed.
It appears to be well settled that, after tbe expiration or repeal of a law, no penalty can be enforced nor punishment inflicted for violations of tbe law committed whilst it was in force, unless some special provision be made for that purpose by statute; and that penalties incurred under a statute must be collected before, and cannot be collected after, tbe repeal of such statute. Yeaton et al. v. United States, 5 Cranch, 281; Stone v. Sumrall, 1 Watts, 258; Lewis v. Foster, 1 N. H. R. 61; 7 Barr, 173; 9 Ind. R. 309.
And it may be conceded that tbe indictment set out in tbe record, wbicb charges generally tbe illegal sale of vinous and spirituous liquors, without specifying tbe quantity sold, would be invalid as a charge under a statute declaring it to be unlawful for any one to sell such liquors in less quantities than one gallon; but it does not follow, under tbe circumstances presented by tbe record, that it is defective, and therefore obnoxious to demurrer.
It is not pretended that the indictment here, when returned into court by the grand jury, was invalid because it did not allege that the quantity of liquor averred to have been sold by the defendant was less than one gallon. Proof of the sale of vinous or spirituous liquors in any quantity whatever, by the defendant in the town of Grenada, or within three miles of the limits of the corporation, would have sustained the indictment. It was, when returned, valid. It was tbe manifest and expressed intention of the Legislature not to relieve against every violation of tbe Act of the 2d March, 1854, but only as to those infractions which had been committed by a sale of liquor in quantities of one gallon and upwards. Hence the only logical or sensible effect which can be ascribed to the repealing Act is to render the general charges in the indictment specific as to the quantity of liquor alleged to have been sold, and to limit the inquiries of the jury and the court to the fact whether the defendant had not been guilty of selling liquors in quantities less than one gallon. Hence, if, upon the trial, it should appear that, although the proof might show that the defendant had sold liquor in violation of the Act of 1854, unless it should also be proved that he had sold such liquor in less quantities than a gallon, he would be acquitted. On the other hand, if it were proved that the defendant had violated said Act by selling liquor in less quantity than one gallon, he should be convicted.
By giving this effect to the repealing Act, no possible injury could arise to parties indicted, before its adoption, under the Act of 1854. But, if we assented to the position, assumed by counsel, that the legal effect of the former Act was to render invalid all indictments then pending for violations of the latter, the unmistakable intention of the Legislature would be defeated.
Judgment affirmed.