SOMERVILLE, J.
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 *513time be a surplus of such fund “over and above the sum required to pay tbe registered claims of state witnesses.” Notwithstanding the quoted condition to their payment, we think it clear that such officers’ fees become charges against the fine and forfeiture fund, not immediately upon the rendition of the judgment of conviction in such case, but upon the return of an execution against the defendant, “No property found,” and only then are they entitled to registration as such. By Local Acts 1898-99, p. 581, it is provided, with respect to Monroe county, that all claims against this fund “must be filed * * with the county treasurer within three months from the time said claim became a charge against the fine and forfeiture fund, and when not so filed the same shall be forever barred.” The fees as to which relief was granted were presented for regisi strati on within the time limited by this act, and thereby became lawful charges against that fund, and payable in the order of their presentation whenever the special surplus appeared.
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-*514meat the county is fully protected by sections 6890 and 6892 of the Code. We therefore hold that the trial court properly ordered respondent to register the claims in question, but that the order to pay them was without authority and erroneous.
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.
All the Justices concur, except Dowdell, C.J., not sitting.