Whitaker v. David ( 1873 )

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The Act of 1871, giving to the plaintiff in execution the right, when a claim is withdrawn, to go to a jury on an issue that the claim was interposed for delay, and seek the damages provided in such cases by the claim laws, is not, in its terms,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 declares that if a claim is interposed for delay only, it shall be the duty of the jury to punish the claimant, at any rate, by ten per cent., and by more, at its discretion. And this is plainly entirely independent of whether the delay has been, in fact, a greater damage than is compensated by the interest.

If the Act of 1871 is only to be understood as authorizing the plaintiff to go to the jury and recover his actual damage, the objection would not apply, since that would only be giving him a new remedy for a right he already had. But the Act of 1871 evidently intends the damages, penalties, allowed against a claimant who has put in a claim “for delay only,” which damages turn, as we have said, not upon the actual hurt the plaintiff has suffered, but on the good faith of the claimant.

When this claim was put in, the plaintiff was not liable to this penalty. He was only liable to a suit for the actual damage, and this is sometimes great. I have known a wagon and team worn out during the pendency of a claim, and the defendant insolvent. The effect of the Act of 1871 is to impose a penalty, not simply a new remedy for actual damage, and it cannot have a retrospective operation. To so construe it, would make it a technical ex post faeto law, prohibited both by the State Constitution and the Constitution of the United States.

Judgment reversed.