Peeples v. Walker ( 1852 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] So far as concerns the accounts of the former Solicitor, Mr. Walker, audited and allowed since the Act of 1849, the Court was clearly right in disallowing them; for, by the Act of 1849, the incumbent who brings the fund into Court, is preferred expressly to his predecessor. His insolvent list for costs, that Act expressly declares, shall be first paid out of that fund, and then the orders of prior Solicitors, according to their priority. Cobb’s Jie.io Dig. 363.

[2.] We cannot give to this Act a retroactive force. The Legislature clearly did not intend it to apply to claims for costs allowed to retiring Solicitors before its passage. In its terms, it is prospective, and there is no ground for raising the question of retroaction. If it had been made in its terms retroactive, its constitutionality pro tanto could not be sustained.

[3.] The Legislature could not divest the rights of the former Solicitor, and the incumbent takes the office subject to those rights, The law therefore as to those accounts of Mr. Walker, allowed before the passage of the Act of ’49, remains as it was, and that is, that they must be paid, to the exclusion of the incumbent. It was fully considered by this Court, in Hackett vs. Jones, (2 Kelly, 282,) and the reasoning in that case need not now be repeated.

[4.] The time for auditing the accounts which seems to us to be most proper, is the term of the Court when the cost in each case accrues to the Solicitor. The law does not, however, require them to be allowed at that term. No time is specified, and we cannot, therefore, say that they are not to be paid, unless allowed by the Court at that term. Cobb’s New Dig. 833, 834, 863.

[5.] We hold that the Solicitor General is entitled to the fees which the fee-bill allows him, whether the cases are tried or voluntarily nol-prossed, and whether disposed of during the time that he is in office or not. As to the claim set up against the former Solicitor, that he shall account for fees illegally recieved, before he can have those that he is entitled to, we say that it is not apparent to us, that he has received fees illegally. It does not appear from this record, that he has received fees without an order allowing them.

[6.] Such order is a charge upon the fund, and we are not at liberty to open it, upon a motion to distribute the fund nowin hand. 2 Kelly, 282.

Upon this agreed case, we affirm all the rulings of the Court, except that which denies to the former Solicitor his fees upon bills voluntarily nol-prossed. That is reversed.