As against Peters, the defendan t 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 ivas 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 shoiv 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. *557If 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.