1. It was held in 1 Kelly, 606, in the matter of J. J. R. Flournoy, attorney general, that so far as the public is interested in a fine imposed, the executive remission has the effect to restore it to the individual fined, although it had been paid over to the attorney or solicitor general, and by him to the county treasurer, before the executive pardon was granted; and that a fine thus remitted being in the hands of the attorney general or other officer of court, unappropriated in the manner prescribed by law, will be refunded under an order of court, by rule against such officer. We think that decision governs this case. It is true the ex-sheriff states that there were some insolvent costs due him when the fine was imposed and the note given. But lie does not state how much, or that any order was granted appropriating the money to be raised from this fine to the payment of such costs, or for any other purpose. If the mere fact that a county owed insolvent costs would prevent an executive pardon from having effect after the money was in the hands of the solicitor general, or a note given therefor, there could hardly be a case in which a pardon granted after either of those acts had happened, would be of any avail, at least towards.the remission of the fine. Had the money been collected and appropriated as the law directs, the *257question would be different — vested rights would have intervened ; so if onc-half or other portion of the fine was by law to go to an informer: 2 Bay, 565; 1 Nott & McCord, 26. But, as remarked in the ease from 1 Kelly, “the money raised by the sentence, or rather its equivalent, the promissory note received by the attorney general in lieu of the money, had never passed from his hands. He is an officer of the court. The fund was therefore within reach of the court. It could lay its hands upon it and return it to the defendant. It had in this summary way the right to determine the questions made by the record.” That was a case upon a rule against the attorney general to return the note, or rather to credit it, as two defendants had been fined, a joint note given, and one of them had been pardoned. Here the question arises on an illegality to an execution sued out by the solicitor general on the note before the pardon issued. In both cases the matter was equally within the power of the court.
2. The testimony of the sheriff, which was objected to, was competent for the purpose of proving that the note on which the judgment was founded was the note taken for the fine. We cannot say that the judge, to whom the whole question ■was submitted, was not authorized from the evidence to decide that the identity was sufficiently proven. It was a matter of fact to be determined by a jury, and the judge was substituted for the jury.
Judgment affirmed.