DocketNumber: No. 42
Judges: Nisbet
Filed Date: 3/15/1847
Status: Precedential
Modified Date: 11/7/2024
By the Court
delivering the opinion.
The defendant in error, R. W. Jones, Esq. as Solicitor General, held, in his hands a certain amount of funds collected from fines. Colonel Hackett, the plaintiff in error, and the former Solicitor General of the same circuit, moved a rule, before Judge Wright, calling upon him to show cause why the money so in his hands should not be paid to him, in satisfaction of an order in his favour, granted by the Court whilst he was in office, for costs. The defendant, in his answer to the rule, set up a similar claim to the money, that is, an order of the Court for the payment of costs; and also a claim founded on the fact that he brought the money into court as collecting officer of the State. The contest therefore was, which of these officers, the present or the former Solicitor General, should have the money? The Court gave it to the present incumbent, the defendant in error, and error is assigned here upon that decision. The question depends upon the construction of the
There is in this section a great want of precision, it is clumsily drawn; in its gramatical construction it does not greatly signalize ■the learning of the draughtsman. Its meaning, however, is not dubious. To analyze it, I think it asserts the following propositions :
First. In the cases enumerated where the party charged is not liable to pay costs, or being liable is unable to pay, the officers of court, who are entitled to costs in such cases, including the Solicitor General, shall be paid their costs out of money which may he collected on fines and forfeited recognisances. This proposition sets apart and appropriates the fund out of which the costs shall be paid. It cannot be applied to any other purpose, whilst any costs, accruing as before stated, remain unpaid.
Second. It requires the officers to present their bills of costs, and makes it the duty of the court to examine and allow them, if right.
Third. When approved, it further authorizes the presiding Judge to pass an order directory to the Clerk or Sheriff, who may at the time be the depositary of that fund, to retain his own bill, and to pay those of the other officers.
In accordance with these propositions, the orders, which both plaintiff in error and defendant held, were granted by the Court. The meaning of this Act, as thus analyzed, will not be questioned; the difficulty in the case before us grows out of the fact, that there are two orders upon the same fund, held by two officers, and both unpaid. That of plaintiff in error has priority of date; has it also priority of right? Before proceeding further, we will strip the question of two or three collateral embarrassments.
And first, the lien of the Solicitor General, who brought the money into court for his commissions, is not in controversy; that is admitted on both sides. '
Second. Nothing can be claimed in behalf of the defendant in error from the fact that the fund happens to be in his hands ; he is an officer of the court, and his possession is that of the court, and it is therefore subject to the order of the Court.
Third. No argument, as counsel for the defendant believes, can be drawn from that language of the act which authorises the Sheriff or the Clerk, in cases where they happen to be the temporary keepers of the money, “ to retain for their own use ” the amount of their respective accounts. This authority to retain is
The view then, which we take of this Statute, is as follows. The money raised upon fines and forfeitures, is set apart for the payment of costs, which under certain circumstances, are due to the Solicitor General and other officers of the court. The Court becomes the agent of the law for ¡that purpose and is in character of trustee of the fund. The order for the payment when passed by the Court, is the evidence that costs are rightfully due. This order constitutes a charge upon the fund, if in hand, and if not, whensoever it shall he in hand. For the law directs the payment of these bills of costs, not out of a specific amount of money already collected, but which either is collected, or may he in future collected. It could not have contemplated an always existing and competent fund, for the immediate payment of all costs which might at any time he due. There might not he a single fine, or a single forfeiture collected for a number of consecutive*terms, and bills of costs might fall due to the officers at each and every term; and one fine, or one forfeiture, when, realised, might be, and in fact often is, quite sufficient for the payment of costs in arrear for a length of time. The legislature believed, no doubt, that the amount realised from fines and forfeitures, would in the long run, pay all costs, which from that source of revenue, it appointed to be paid. What the legislature has done in this act is to appoint a resource for the payment of these hills of costs. It did not mean that any one officer should go unpaid; and having designated a fund out of which all should he paid, there is no resort for payment but that. Should the unpaid Solicitor for example, petition the legislature for an appropriation to pay his costs, it is altogether probable that it would remit him to his rights under this law. The granting of the order does not depend upon the fact whether there