822 CONAWAY, J. Albert C. Snyder was one of the sureties upon the official bond of Samuel Atkinson as clerk of the district court of the first judicial district of the state of Wyoming for the county of Laramie, for the term ending January 2, 1893. On March 17, 1892, the sum of three hundred and fiftyseven dollars and fifty cents was paid into court, into 323 the hands of said Atkinson as clerk, for the use of Catherine Donnelly. Atkinson never accounted for this money. Albert C. Snyder died on March 23, 1891. He left a will, of which Priscilla M. Snyder, his wife, and one of the plaintiffs in error, is executrix. She is also sole legatee. On June 22, 1891, she gave a bond pursuant to an order of court and under a statute authorizing such proceeding to "faithfully discharge all of the just debts and obligations of the late Albert C. Snyder, according to law." She thereupon took possession of all of the assets of the decedent. Catherine Donnelly, by leave of the court, presented her claim on account of the above facts to Priscilla M. Snyder as executrix and sole legatee of Albert C. Snyder, on November 11, 1893, and caused a demand and proof of claim to be so presented on November 16, 1893, which claim had been neither approved nor rejected at the commencement of this action on January 31, 1894. To a petition setting up these facts a general demurrer was overruled. Plaintiffs in error declining to plead further, judgment was rendered against them for the amount of the claim, with interest from October 20, 1893, and costs. The overruling of this demurrer and the giving of this judgment is assigned as error. Plaintiffs in error present three reasons in support of their assignments of error. "1. Upon the death of Snyder, he, and his heirs at present, were released from the bond for any misapplication of funds occurring after his death." No authority is given in support of this proposition. The authorities are directly opposed to it: 24 Am. & Eng. Ency. of Law, 767, and authorities there cited. "2. After the bond in question was given, the law was changed, providing for a different kind of bond, thus releasing the sureties on the former bond for any misapplication occurring after the change in the law." The argument is that the liability of the clerk was increased by the change in the law which requires him to account for the fees of the office, which were formerly his compensation. We cannot agree to the proposition that an increase in the responsibilities of the clerk in matters which properly pertain 324 to his office has the effect to discharge his sureties from all liability upon his bond. The liability of the clerk was not increased as to the subject matter of this action. The responsibility of the clerk of the court on his official bond for money deposited with him in his official capacity existed at the time of his election and qualification. "3. Under the terms of the legatee's bond in question, no recovery can be had for a misapplication occurring after the bond is given." The bond was conditioned for the faithful discharge of "all of the just debts and obligations" of the deceased. It is urged that the word "obligations" should be rejected as surplusage, because the statute required only a bond for the faithful discharge of "debts." Plaintiffs in error say in their brief: "It has always been held that one of the distinguishing features of the 'debt' is, that it is a fixed and determinate sum and due from one person to another. And it is further claimed that it results from this definition that the sureties on the bond of the executrix became responsible only for all sums 'fixed and certain,' which Snyder owed at the time of his death." There is no authority cited in support of this conclusion. We cannot approve of the proposition that under our statute the executor or administrator of a decedent becomes liable with his sureties only for such liabilities as are "fixed and certain," at the time of decedent's death. The following is a better statement of the law: "The term 'debts,' as used in the statutes relating to the estates of deceased persons, is not limited to such as are strictly legal debts, but manifestly includes every claim and demand by a creditor, whether recoverable at law or in equity": 5 Am. & Eng. Ency. of Law, 143. Whether the word "obligations" be rejected as surplusage or not, the result is the same. The judgment is affirmed. Groesbeck, C. J., and Potter, J., concur. OFFICERS-OFFICIAL BONDS-LIABILITY OF ESTATE OF SURETY AFTER HIS DEATH.-A contract of suretyship is not terminated by the death of the surety: Notes to Chamberlain v. Dunlop, 22 Am. St. Rep. 814; Commonwealth v. Stub, 51 Am. Dec. 524; and his estate is liable for a breach of the principal's obligation occurring after the surety's death: Royal Ins. Co. v. Davies, 40 Iowa, 469: 20 Am. Rep. 581. One who obligates himself that another will faithfully perform the duties of an office is liable upon the default in the performance of those duties. although such default takes place after the death of such surety: Green v. Young, 8 Greenl. 14; 22 Am. Dec. 218; Susong v. Vaiden, 10 S. C. 247; 30 Am. Rep. 50. The estate of a deceased surety on a bond given by an insurance agent for faithful conduct and accounting is liable for moneys coming into the agent's hands after the surety's death: Rapp v. Phoenix Ins. Co., 113 Ill. 390; 55 Am. Rep. 427. The es tate of a deceased surety upon a guardian's bond, joint and several in form, remains liable after his death: Douglass v. Ferris, 138 N. Y. 192; 34 Am. St. Rep. 435. Compare Shackamaxon Bank v. Yard, 150 Pa. St. 351; 30 Am. St. Rep. 807. OFFICERS-INCREASE OF DUTIES-EFFECT OF, UPON OFFICIAL BONDS.-Sureties upon the bond of a public officer are not discharged by the imposition, upon the principals, by the legislature, of further duties and obligations of a nature and character similar to those already taken: County of Spokane v. Allen, 9 Wash. 229; 43 Am. St. Rep. 830, and note; but imposing duties of another description, and not appropriate to the office, would discharge sureties not coming within such contemplation: Note to First Nat. Bank v. Gerke, 6 Am. St. Rep. 460; Salem v. McClintock, 59 Am. St. Rep. 334; Singer Mfg. Co. v. Reynolds, 60 Am. St. Rep. 419. MAHONEY V. STATE. [5 WYOMING, 520.] STATUTES-REPEAL-NO CLAUSE-EFFECT OF.-It is a general rule that, after a statute is repealed, without a saving clause, the former repealed statute, in regard to its operative effect, is considered as if it had never existed, except as to matters and transactions past and closed. STATUTES-REPEAL-NO SAVING CLAUSE-EFFECT OF, AS TO PENDING PROSECUTION.-If a statute repealing a former act does not contain a substantial re-enactment of the provisions of the old act, so that a suit or prosecution brought under the old statute may be finished under the new act, and such repeal takes place before the final action of the appellate court, pending proceedings in error therein from a judgment of conviction, the prosecution must be dismissed, or the judgment reversed. STATUTES-REPEAL-NO SAVING CLAUSE-EFFECT OF, AS TO PENDING PROSECUTION.-If a statute permitting scabby sheep to be removed from point to point, with the permission of the sheep inspector, or without it, to a dipping corral, with the written consent of all sheep owners along the route, is repealed, without any re-enactment of the provisions of the old statute, and without any clause saving prosecutions under the former act, by a statute which permits no removal of diseased sheep at all, except upon the permission of the sheep inspector, and then only for the purpose of treatment for the disease, a new and distinct offense is created, the old statute is no longer in force, and, if such repeal takes place while a proceeding in error to reverse a judgment of conviction under the former act is pending before the appellate court, the judgment will, on motion, be set aside, and the defendant discharged. Information for unlawfully removing scabby sheep. The defendant was convicted, and he appealed, by prosecuting a writ of error. Pending the proceedings in error, the statute under which the conviction was had was repealed. A motion was thereupon made to dismiss the proceedings and to discharge the defendant, on the ground that there was no jurisdiction to take any further steps in the matter. The motion was sustained. Charles H. Burritt and C. H. Parmelee, for the appellant. 522 GROESBECK, C. J. The plaintiff in error was convicted in the district court of Johnson county under an information in two counts, one for the unlawful removal of scabby sheep from one place to another in Johnson county, and one for the removal of such diseased sheep from Natrona county to Johnson county. He was fined in the sum of two hundred and fifty dollars, and prosecuted proceedings in error in this court, the petition in error, transcript, and bill of exceptions having been filed in this court November 30, 1894. The statute under which the criminal proceedings were instituted in the court below, chapter 31 of the Laws of 1890-91, was repealed in express terms, without a saving clause, by chapter 125 of the Laws of 1895, which also repealed all acts and parts of acts inconsistent with it, and which took immediate effect upon its approval, March 2, 1895. The plaintiff in error moves for a dismissal of the case and all proceedings thereunder, and for the discharge of the defendant, because the act under which the defendant was convicted was repealed, without keeping in force pending past prosecutions under such repealed statute. This motion was submitted upon the brief of counsel for the plaintiff in error, the attorney general not desiring to file any brief on the part of the state. So far as the case at bar is concerned, the statute under which the defendant below was convicted made unlawful the removal of scabby sheep from one county to another, or from one place to another within any county, without a written certificate of the sheep inspector, except to 523 a dipping corral with the consent of all sheep owners on the route traveled. The punishment provided for a violation of the provisions of the section of the act under consideration was a fine not less than two hundred and fifty dollars nor more than one thousand dollars: Laws 1890-91, c. 31, sec. 8. The repealing statute creates a new law on the subject, and, in relation to the matter of the moving of diseased sheep, provides that the owner of unsound sheep or sheep infected or affected with scab or any infectious or contagious disease shall obtain from the inspector a traveling permit, which shall be granted only for the purpose of moving said sheep to some place where they may be treated for disease; and that "no such sheep shall be moved until such permit shall have been obtained." The penalty provided for AM. ST. REP., VOL. LXIII. -5 the violation of these provisions is a fine of not less than five hundred dollars nor more than one thousand dollars, and the recovery in a civil action of thrice the amount of damages direct and consequential sustained by any party injured by reason of the moving of the diseased sheep: Laws 1895, c. 125, sec. 15. The statutes are essentially different, the new one permitting no removal of diseased sheep at all, except upon the permission of the sheep inspector, and then only for the purpose of treatment for the disease, and providing a greater minimum penalty than the former act, while the former statute provided that scabby sheep may in effect be removed from place to place in the county or from one county to another, with the permission or "certificate" of the inspector, or without obtaining his certificate, to a dipping corral, with the written consent of all sheep owners along the route. This statute repealing the former one does not, then, contain a substantial re-enactment of the provisions of the old act, so that a suit or prosecution brought under the old statute may be finished under the new act. The new statute does not re-enact the old one either as to the affirmance of the former law in its main provisions defining the offense under consideration, or in the quantum of punishment, but repeals in express terms the former law and every part of it, and enacts, so far as defining an offense is concerned, substantially a new provision, with an enlarged minimum of punishment, 524 and nowhere saves prosecution under the former statutes. The statute in relation to the offense of unlawfully removing diseased sheep from point to point, being a penal statute and relating to the punishment of a misdemeanor defined by its terms, and not to methods of procedure, must be held to act prospectively, and cannot have a retroactive effect, as the punishment is increased by enlarging the minimum of the fine provided from two hundred and fifty dollars to five hundred dollars, and as a new and different offense is created. The authorities submitted in the brief of counsel for plaintiff in error are numerous and support their contention that the proceedings in error being in fieri, the judgment of the lower court is not to be considered a final judgment, and that this court is bound to consider the cause and pronounce such judgment as is warranted by the statute in force at the timeof its judgment, and not under a repealed statute which does not preserve the right by a saving clause to prosecute for past offenses or to continue causes or prosecutions already begun. The general rule is, that after the statute is repealed, |