61 So. 811 | Ala. | 1913
Under section 6889 of the Code the fees of court officers in cases “in which defendants have been convicted, and have been proved insolvent by the return of executions, No property found/ ” must be paid by the county treasurer out of the fine and forfeiture fund of the county, provided there shall at any
HoAvever, neither the pleading nor the proof shoAved that there Avas such a surplus of the fine and forfeiture fund in the treasury. The existence of that fact Avas the sine qua non of payment failing which the court had no authority to order payment. This court has held that it is a matter which must affirmatively appear of record in order to sustain a judgment against the treasurer for damages for refusal to pay such claims.—Bilbro v. Drakeford, 78 Ala. 318. In a mandamus proceeding the rule must be the same.
The fact that the claims have been paid in part by the proceeds of the convicts’ labor is no bar to the assertion of the claims, in any legal way, to the extent that they remain unpaid.—Gray, Treasurer, v. Abbott, 130 Ala. 322, 30 South. 346. And against double pay-
The judgment will be corrected by striking out the order for payment, and, as corrected, will be affirmed, with an equal division of the costs of this appeal.
Affirmed.