Peters vs. Bradford. L. T. DOWNING, for plaintiff in error. HENRY L. BENNING; PEABODY & BRANNON, for defendant. MCCAY, Judge. As against Peters, the defendant in the fi. fa. was not, under the decision of the Supreme Court of the United States, in the case of Gunn vs. Barry, entitled to this money. Peters' debt was contracted before the 21st day of July, 1868. The record does not show when the debts, on which the other (Brockett's) judgment was founded, was contracted. But we do not think that material. There is nothing in the record to show any such affirmative waiver by Peters of his right to be paid out of the money raised at the second sale, as charges him with laches, and as estops him from insisting on his legal right to the money actually in hand. When he moved his rule he had no call to go upon the sheriff for any more of the fund than would pay him. Perhaps, if defendant in the judgment had interfered before the money was paid out to Brockett's fi. fa., and insisted that Peters should go on that fund, because he, Peters, had two and Winter but one, he might have been compelled to do so. But Winter is just as much in fault in not stopping the sheriff as Peters is, and and we can see nothing to justify setting Peters, who has a superior lien, aside for Winter. Had Winter's claim been superior to Peters', we are not so sure that the sheriff would be liable to Peters. He kept enough in hand to pay Peters; but that is not in the case as it now stands. Nor do we decide anything as to the amount of money now in hand. The Judge did not, as we understand the record, settle the question as to whether the money paid to General Benning and Judge Worrill was by consent of Mr. Downing, so as to lessen the fund for which the sheriff is liable; that is a question of fact turning on the evidence. The rule ought not to have been discharged. It is, in our judgment, still open. Skinner et al. vs. Allen, Preer & Ilges. If Mr. Downing only consented on condition that the fund was not reduced below the amount of his claim, the sheriff who had the money in hand and knew the amount, or was bound to know the amount of the fi. fa., ought not to have paid it, or paid it on condition that it should be returned, if needed, to pay Peters. Judgment reversed. W. R. SKINNER et al., plaintiffs in error, vs. Allen, Preer & ILGES, defendants in error. The evidence being conflicting and the Judge trying the case having refused a new trial, this Court will not interfere, as there is sufficient evidence to support the verdict. New trial. Before Judge JAMES JOHNSON. Muscogee Superior Court. November Term, 1872. Allen, Preer & Ilges, brought assumpsit against W. R. Skinner and L. Skinner, upon the following account: W. R. SKINNER and L. SKINNER, 1869. In account with ALLEN, PREER & ILGES: June 18th. To discount your note (draft) due 18th October, $434 00 66 66 66 July 8th. 66 1st November, 108 60 66 1st November, 342 29 217 86 October 27th. By cash through Mr. C. Gachet, to pay your drafts, dated June 18th, and July 19th......... 777 29 $326 43 The defendants pleaded the general issue, set-off and payment. The evidence as to whether the account had been paid was conflicting in the extreme. The plaintiffs made out a prima facie case by swearing to its correctness. A draft was presented to Mr. Allen by defendants, dated June 10th, 1869, Skinner et al. vs. Allen, Preer & Ilges. signed by W. R. Skinner and L. Skinner, addressed to the plaintiffs, payable four months after date, for $325 50. Upon this paper the entire controversy turned. Mr. Allen testified that it was sent to plaintiffs by W. R. Skinner, as collateral security for the payment of goods to be furnished defendants; that the goods were sent and are embraced in the account against Mrs. L. Skinner, dated July 30th, 1869, for $217 83, in favor of Preer, Ilges & Company, which was paid by plaintiffs; that he cannot tell how this draft came into the possession of the defendant. On the other hand, W. R. Skinner testified positively that this draft was sent to the plaintiffs and they were to return goods, but that the goods embraced in the bill to Preer & Ilges, referred to in the account sued on, are all that were ever received by defendants; that he paid this draft to Mr. Allen himself; that the balance of his indebtedness was paid by Mr. Gachet; that there is now nothing due to the plaintiffs. Other testimony was introduced unnecessary to be set forth. The jury found for the plaintiffs. The defendants moved for a new trial because the verdict was contrary to the evidence. The motion was overruled and the defendants excepted. PEABODY & BRANNON, for plaintiffs in error. INGRAM & CRAWFORD, for defendants. TRIPPE, Judge. The draft, which was the matter of contest, was drawn by the husband and wife since the Act of December, 1866. It did not appear that the wife executed the paper as security for her husband, or that it was drawn to pay his debts. In fact it appeared that she was the beneficiary of some of the transactions of which this draft formed a part. The wife should be protected against any control or power that the husband may wrongfully exercise over her that involves her Whitaker vs. David. separate estate, especially if known to the creditor. nothing of this sort is charged in this case. But The evidence was conflicting on the question of payment. There was testimony to support the verdict had it been either for plaintiffs or defendants. The jury has passed upon it, and the Judge trying the case refused to interfere, and though the testimony of the defendant himself is somewhat more positive in its terms than that of plaintiff, yet, upon the whole, we do not feel constrained to set the verdict aside. Judgment affirmed. PLEASANT H. WHITAKER, plaintiff in error, vs. WILLIAM J. DAVID, defendant in error. The Act of 1871, Code of 1873, section 3741, authorizing the plaintiff in execution, where a "claimant" has withdrawn his claim, to go to the jury and recover damages, "in case it is made to appear that the claim was interposed for delay only," is not retroactive, so as to apply to claim cases then pending, it not appearing that any previous claim of the same property had been put in and withdrawn by the claimant. Claim. Damages. Before Judge JAMES JOHNSON. Harris Superior Court. April Term, 1873. An execution in favor of Grief W. Epps against John M. Granberry, principal, and Tomlinson F. Brewster, security, which had been transferred to William J. David, was levied on May 1st, 1867, on five hundred and twenty acres of land, situate in the county of Harris. This property was claimed by Pleasant H. Whitaker on June 4th, 1867. The issue thus formed came on for trial at the April term, 1873, when, after the evidence had been introduced and the jury charged, the claimant withdrew his claim. The plaintiff in execution insisted on proceeding for damages. The claimant objected. The objection was overruled and the claimant excepted. Whitaker vs. David. The Court then charged the jury, "that they should determine from the evidence whether the claim had been interposed frivolously and for delay only, and that in connection with the testimony they might take into consideration in determining the question of fact that the claimant had withdrawn his claim." To which charge the claimant excepted. The jury returned a verdict for the plaintiff in execution for $222 53 damages. Error is assigned upon each of the aforesaid grounds of exceptions. JAMES M. MOBLEY; BLANDFORD & CRAWFORD, for plaintiff in error. INGRAM & CRAWFORD, for defendant. MCCAY, Judge. The Act of 1871, giving to the plaintiff in execution the right, when a claim is withdrawn, to go to a jury on an issue that the claim was interposed for delay, and seek the damages provided in such cases by the claim laws, is not, in its terms, retroactive, so as to apply to claims then pending. True, the language is broad enough to cover such cases; but the rule is well settled that we are not to give a retroactive operation to an act, unless that is the plain intent. This is especially the case when to give it that construction would be to make it divest a vested right, or to operate so as to impose a penalty for an act already done. We think this act would so operate, if it is to be taken as applying to claims then pending. The damages authorized to be given in a claim case are penalties. They do not turn on the actual damage received by the plaintiff. They must be ten per cent., and, may be, such other higher per cent. as to the jury may seem reasonable and just. It may be that the plaintiff is not, in fact, damaged. The property may still pay his debt, with the interest, during the pendency of the claim. The real damage in such a case is to the defendant in execution. But the law |