By the Court.
Lumpkin J.delivering the opinion.
The Clerk based his claim in this case, upon the Act of 16th February, 1854; and the Court looking to that Act alone, very properly repudiated the application. That Act was called for entirely, to meet the exigency growing out of the formation of the new county of Fulton out of the county of DeKalb. It provides, “that the accounts heretofore examined and allowed by the Judge of the Superior Courts of the Coweta Circuit, in favor of the officers of the county of DeKalb, before the organization of the county of Fulton, for costs due them, on insolvent criminal cases, and those in which the State was cast, be paid out of any moneys raised from fines and forfeitures in said counties, in the order in which they were allowed.” Pamphlet Acts, p. 327.
This Act was merely intended to secure to the officers of DeKalb county, from Fulton county, the payment of their proper proportion of costs which was due and owing, before Fulton was cut off from DeKalb; and nothing more. So also was the Act passed on the same day, by the same Legislature, Pamphlet Acts, p. 108. This Act requires of Solicitors General, within their respective Circuits, to pay over at the Fall Term of the Courts, in each county, all unsettled balances in their hands, to the county Treasurer.
The question in this case depends upon the construction of the Act of 1850. Cobb 863. And although this Act is very badly worded and punctuated, still we think the meaning is unmistakable. It provides “ that from and after its passage, it shall be the duty of Sheriffs and Solicitors General, and other collecting officers of the several counties of this State, *331and they are hereby required to pay over to the Clerks of the Superior Courts of the several counties in this State, their proportionate amount of all moneys arising from fines and forfeitures to the oldest- orders passed in their favor for costs due on insolvent State cases, said Sheriffs and Solicitors, reserving their proportionate amount in like manner.”
This Act gives priority to the oldest- orders for costs due on insolvent State cases. If of the same date, to be paid proportionally. It gives also to the officer collecting the fund, the right of retainer, should he hold the oldest lien. And the only discrimination now made under the law, is between Solicitors themselves. The incumbent is entitled to a preference, over his predecessors, where the money is collected during his Term. Acts of 1849 — Cobb 363.
The Act of 1856, then makes it obligatory upon the Solitors General, to pay over all moneys arising from fines and forfeitures, to the oldest orders passed, for cost due on insolvent State cases, deducting the cost due in the particular case first. And the Act of 1854, first quoted, puts this fund, when raised in Fulton county, upon the same footing as if it had been raised in DeKalb, as to costs due, before the division of those counties. If then, Brown, the Clerk of DeKalb has older orders than the Solicitor, the Solicitor is bound under the Act of 1850, to pay the balance in his hands to the Clerk. And such is the old law and practice of the Courts. It is equitable and just, making no distinction between officers equally meritorious.
Judgment reversed.