Ex Parte Harrison.

urer for a sum, the amount whereof, and the time when, and the person to whom the same may be due are fixed by law, or ascertainable from a public record, with proof of personal identity."

"1414. He may also draw his warrant upon the treasurer for a sum allowed, or certified to be due, by any court of record authorized to use a seal and having jurisdiction beyond that of justices of the peace, or by the board of county commissioners."

"1415. The said courts may allow sums to persons serving as assistants to the sheriff, in preparing the court-house for the reception of such courts, and in the preservation of order, and in attendance upon juries, and to persons performing any services under the order of such court. But the number of such assistants employed shall never exceed the actual necessities of the case."

Section 1416 authorizes the courts of the class referred to in section 1414 to make allowances for fuel, furniture and repairs for their respective court-rooms; and section 1417 empowers courts of the same class to make allowances for the necessary expenses incurred in procuring the attendance of women, children, aged, infirm or poor persons as witnesses in State prosecutions. See, also, 1 R. S. 1876, 62.

With these very liberal and comprehensive provisions so long in force, it has never been held by this court that the costs which ordinarily accrue to a clerk for services performed in a criminal cause could either be taxed or allowed against the county.

The rule of decision has always in effect been, that, where a public officer is required to rely upon fees for his compensation, only such fees as are authorized by law can be taxed against any one, and that when the officer is unable to collect his fees from the person liable to pay them he must incur the loss. Laws regulating fees and salaries are presumably enacted upon the theory that each particular officer named will, under their respective provisions, be capable of realizing an

Ex Parte Harrison.

aggregate sum sufficient to compensate him for all the services he is required to perform.

Upon that theory, the officer accepts his office with all the burdens and inconveniences which are imposed by it, in conjunction with the benefits which it confers. In this view an officer, whose emoluments are derived from the allowance of fees for particular services, may be required to perform other official services without additional compensation.

The defence, by an attorney, under the order and direction of the court, of a person prosecuted for a criminal offence, constitutes a service of a different character. An attorney is neither a public officer nor an officer of the court, in the sense in which a prosecuting attorney, a clerk, a sheriff or coroner is an officer in both of these respects. In the mere practice of his profession, he is not in the receipt either of a salary or fees allowed by law, but is simply engaged in a private pursuit. Consequently, his particular services can not be required without compensation. Blythe v. State, 4 Ind. 525; Webb v. Baird, 6 Ind. 13; Board, etc., v. Wood, 35 Ind. 70; Gordon v. Board, etc., 52 Ind. 322; Buchman v. State, 59 Ind. 1; Dills v. State, 59 Ind. 15.

The 39th section of the act of March 31st, 1879, on the subject of fees and salaries, known as section 5766, R. S. 1881, declares that "The board of county commissioners shall, unless in cases of indispensable public necessity, to be found and entered of record as part of its orders, make no allowance not specifically required by law to any county auditor, clerk, sheriff, assessor, or treasurer, either directly or indirectly, or to any clerk, deputy, bailiff, or employee of such officer; nor shall they, except in cases above provided, employ any person to perform any duty required by law of any officer, or for any duty to be paid by commission or percentage." Α violation of this provision is made a misdemeanor.

Section 40 of the same act, known as section 6030, R. S. 1881, further declares that "No judge of any court in this

Ex Parte Harrison.

State shall make any allowance to any officer or person named in this act, except as in this act provided."

There being no provision of law specifically requiring the fees charged for in this case to be paid out of the county treasury, both the board of commissioners of Whitley county and the Whitley Circuit Court are, by these last named sections, absolutely prohibited from ordering such fees to be so paid.

Sections 1778 and 1779, R. S. 1881, are in the following words:

"1778. In all changes of venue from the county, the county from which the change was taken shall be liable for the expenses and charges of removing, delivering, and keeping the prisoner, and the per diem allowance and expenses of the jury trying the cause, and of the whole panel of jurors in attendance during the trial."

"1779. All costs and charges specified in the last preceding section, or coming justly and equitably within its provisions, shall be audited and allowed by the court trying such cause; but where specific fees are allowed by law for any duty or service, no more or other costs shall be allowed therefor than could be legally taxed in the court from which such change was taken."

As regards the ordinary costs taxed in a criminal cause on a change of venue, the court trying the cause is, under the foregoing sections, as fully prohibited from allowing them as a charge against the county treasury as is the court from which the change was taken, and no county is any more liable for such costs than other costs in criminal cases. Board, etc., v. Summerfield, 36 Ind. 543; State, ex rel., v. Miller, 107 Ind. 39. Nor is there anything in section 260, R. S. 1881, authorizing a court, under certain circumstances, to allow a person to prosecute or defend an action as a poor person, which can rightfully be construed as imposing any liability on a county for costs accruing in a criminal cause. section is a part of the civil code, and has particular refer

That

The State v. Bain.

ence only to civil causes. to change the rules governing the taxation of, or liability for, costs in criminal proceedings. Webb v. Baird, supra.

It neither changes nor assumes

As having some bearing on the matters discussed in this cause, see the cases of Bynum v. Board, etc., 100 Ind. 90; Board, etc., v. Gresham, 101 Ind. 53; Noble v. Board, etc., 101 Ind. 127; Waymire v. Powell, 105 Ind. 328.

The judgment is affirmed, with costs.

Filed Nov. 28, 1887.

No. 13,759.

THE STATE v. BAIN.

CRIMINAL LAW.-Adultery.-Fornication.-Joint Offence.- Acquittal of One Defendant Discharges the Other.-Adultery or fornication is the joint offence of both the participating persons, and if one shall be acquitted the other must be discharged. SAME.-Prosecuting Attorney.- Void Agreement to Discharge Defendant.-- Plea in Abatement.—An agreement between the prosecuting attorney, with the approval of the court, and one charged with adultery or fornication, that if the latter shall give bond for his appearance from time to time, support his family and conduct himself with propriety, the cause shall be continued until a subsequent term of court, and such defendant then discharged, is unauthorized and void, and a plea in abatement by the other defendant founded thereon is bad, unless the agreement has been so far executed as to have resulted in the legal discharge or acquittal of the defendant with whom it is made.

From the Huntington Circuit Court.

L. T. Michener, Attorney General, E. C. Vaughn, Prosecuting Attorney, J. H. Gillett and R. C. Griffith, for the State. B. M. Cobb and C. W. Watkins, for appellee.

The State v. Bain.

Howk, J.-The affidavit and information herein, filed in the court below on the 2d day of April, 1887, charged, in substance, that appellee, Sarah H. Bain, on the 1st day of January, 1887, at Huntington county, in this State, did then and there, and on divers other days and times, as well before as after that date and previous to this presentment, at and in the county and State aforesaid, she, appellee, a single woman, and Frazy E. Low, at the times aforesaid, then and there having a lawful wife living, and at all of said times she, Sarah H. Bain, and Frazy E. Low, not being married to each other, did then and there during said times, unlawfully live and cohabit together as man and wife, as Alzina Low had complained on oath, contrary to the form of the statute, etc.

Appellee answered specially, under oath, by what is called her plea in abatement herein; and to this answer or plea the State demurred, upon the ground that it did not state facts sufficient to constitute a legal bar to this prosecution, or, in any way, to abate the same. This demurrer was overruled by the court, and to this ruling the State at the time excepted; and the State refusing to reply or plead further, it was adjudged by the court that appellee go thence without day, upon her plea in abatement.

From this judgment the State appeals to this court and has here assigned as error the overruling of its demurrer to appellee's answer or plea in abatement.

In her answer or plea, appellee said that the State ought not to have or maintain this prosecution against her, because she is charged with having committed the offence of adultery and fornication with one Frazy E. Low; and she averred that, at the January term, 1887, of the court below, said Frazy E. Low was presented therein by information and affidavit charging him with adultery and fornication with appellee herein; that the acts and circumstances, and all the evidence whereby the State expected to convict appellee in this cause, were the same as, and no other than, those which