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Stroup 08. Sullivan and Black.

plaintiffs in garnishment to continue their suit in the court in which it was pending, according to the rules and practice of that court; and their having done so, without objection from the defendant thereon, so far as the record shows, does not, in our judgment, raise the slightest presumption of fraud on their part.

It was, however, urged by the counsel for the plaintiff in error, that the payments made were in satisfaction of judgments of older date than that of the plaintiffs in garnishment, and therefore the plaintiff in error was entitled to be protected to that extent.

If the defendant in garnishment made payments in satisfaction of judgments of older date than the one upon which the summons of garnishment was predicated, it might have been a good defence for him why judgment should not have been rendered against him in the common law courts, to the extent of such payments; for it will be recollected these payments are alleged to have been made before the rendition of the judgment, and no excuse is offered why such payments were not shown at the trial when the judgment was rendered, except the one we have already noticed, as to the continuance of the suit in the court in which it was pending. If the payment of judgments of older date voluntarily by the garnishee, would constitute a good defence, after service of the summons of garnishment upon him, then it was incumbent on the defendant in the garnishment suit to have proved such payments on the trial, by way of defence; failing to do so, a court of equity canpot relieve him, according to the principles before stated. Besides, the plaintiffs in the garnishment suit have obtained their judgment against the defendant therein in a court of competent jurisdiction, which judgment is now sought to be set aside in a court of equity.

Whenever a suit is instituted against a party, it is his duty [2.] promptly to defend it, if he has any defence to make, at the proper time and in the proper manner; and if he fails to do so, and judgment is rendered against him in consequence of his negligence, a court of equity has no power to relieve him, although it might be of the opinion that the original judgment was erroneous. It is the policy of the law, and the duty of courts, to avoid a multiplicity of suits in relation to the same subject matter; and if the judgment in this case shall operate as a hardship upon the plaintiff in error, he must attribute it to his own fault and negligence. We are all of the opinion that there was no error in the judgment of the Court below in dissolving the injunction on the grounds therein stated, and that the same should be affirmed.

Hackett os. Jones.

No. 42.-Thomas C. HACKETT, plaintiff in error vs. RICHARD W.

Jones, defendant in error.

(1.) If two Solicitors General hold orders for the payment of costs, under the 4th sec.

tion of the 14th division of the Penal Code of Georgia, the oldest order is entitled to be first paid.

Rule for Solicitor General's Fees. From Cass Superior Court, Tried before Judge WRIGHT. February Term, 1847.

The facts of the case are stated in the opinion delivered by the Supreme Court, to which the reader is referred.

HACKETT, pro. per. relied upon the Statute of this State, Prince 659, 661; and also 2 Kent Com. 640.

AKIN, for the defendant.

Akin insisted

The Act of the Legislature, Prince, 659, under which the plaintiff in error seeks to rule the defendant, clearly contemplates that the officers in office shall be paid their accounts before those who have gone out of office. The act declares, “it shall and may be lawful for said Judge, by an order of said Court, to authorize and direct the Sheriff or Clerk to retain for his own use, and to pay to the Attorney or Solicitor General, and other officers of the court, the amount of their respective accounts, out of any moneys by him received for fines inflicted by the said court, or collected on forfeited recognisances."

Is a former Sheriff, under this law, entitled to the payment of his account out of a fine collected by the Sheriff in office, to the exclusion of the latter? Clearly not. For the only order which the court is authorized to pass must “ direct the Sheriff to retain for his own use" " the amount" of his account.

If the Sheriff in office have the right, whenever he may collect a a fine, “ to retain for his own use" "the amount" of his account, by what process of reasoning will the Solicitor General in office be excluded from exercising the same right?

But the Court, by its order, must“ authorize and direct the Sheriffto pay to the Attorney or Solicitor General"' " the amount" of his

Hackett os. Jones.

account. This must mean the Solicitor General in office, not an individual who had been in office.

The Court will give such a construction to this act as will carry into effect the intention of the Legislature.

The Legislature could not have intended to prevent those in office from receiving the fruits of their labour, for it is written, in the law of Moses, “Thou shalt not muzzle the ox that treadeth out the corn." Deut. 25, 4; 1 Cor.9, 9.

By the Court - NISBET, J. 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 haye 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 (1. 4th section of the 14th division of the Penal Code of Georgia, which is in these words, to wit: “A person against whom a bill of indictment shall be preferred and not found true by the grand jury, or who shall be acquitted by the petit jury of the offence charged against him or her, shall not be liable to the payment of the costs; and in all such cases, as also where persons liable by law for the payment of costs, shall be unable to pay the same, it shall and may be lawful for the officers severally entitled to such costs, to present an account therefor to the Judge of the court in which the said prosecutions were pending, which account, being examined and allowed him, it shall and may be lawful for said Judge, by an order of said court, to authorize and direct the Sheriff or Clerk to retain for his own use, and to pay to the Attorney or Solicitor General, and other officers of the court, the amount of their respective ac

Hackett os. Jones.

counts, out of any moneys by him received for fines inflicted by said court, or collected on forfeited recognisances.” Prince, 659.

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 be 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

Hackett cs. Jones.

derived from the court, and is not by virtue of any right paramount to that of the other officers, and it cannot exist until an order is passed. Indeed they being actually in possession, there is no one upon whom the Court could call to pay them; er necessitate rei, if they get their money it is by a retainer, the order to retain serving as a voucher. The authority to retain does not put them in a position at all different from that occupied by the other officers entitled to be paid out of this fund. The argument of course drawn from the peculiar phraseology of the act, as well as these views in reply to it, apply to the Solicitor General, when he, as in the present case, is in possession of the money to be distributed.

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 be 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 be 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 be due. There might not be a single fine, or å 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 bills of costs.

It did not mean that any one officer should go unpaid; and having designated a fund out of which all should be 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 therr

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