It appears from the record there was an agreement, that if the claims offered in evidence by the defendants were valid claims on the fine and forfeiture fund, judgment should be rendered for the defendants, and if invalid, judgment should be rendered for the plaintiff. We construe this as a waiver of any objection to the claim of the plaintiff. But, as we may misunderstand the extent of the agreement, it is proper to say, that the clerk is required to certify that the costs are not imposed on the prosecutor, only in cases where there is a prosecutor. If there be no prosecutor, a certificate that the defendant was not convicted is sufficient. Allowing the clerk to amend the certificate at the trial, is error without injury.
The cases in which the fees of the officers of court are made claims against the fine and forfeiture fund, are criminal cases in -which the defendants have been convicted, and have been proved insolvent by the return of executions “ no property found or in which the State enters a nolle-prosequi;. or where the indictment has been withdrawn and filed ; or the prosecution abated by the death of the defendant. No provision is made for the payment of fees arising from criminal cases, in which the defendants are not convicted.
The record discloses that the clerk and sheriff kept no fee-books, as required by law. If this were not affirmatively shown, we would probably presume they did their duty. Section 5007 of Code provides : “ No clerk or sheriff is allowed to take or demand any fee for any service by him performed, which is not justified by the charge made, and entered in his fee-book.” The object of the statute is, that fee-books shall be kept open to the inspection of parties in interest, in which shall be entered every fee for each and every distinct service rendered ; *322and to compel compliance with the law, the penalty is a forfeiture of all fees, if no such book is kept, and if one is kept, of all fees not entered therein. Preliminary to the right to take or demand fees is a charge made and entered in the fee-book. Claims for fees which the clerk or sheriff is not allowed to take or demand can not be regarded as entitled to be paid out of the fines and forfeiture fund.
On the testimony of McPherson v. Boykin, at the present term, where the question was considered and decided, there is no error in ruling that the fees due to a justice of the peace are not valid claims. — 76 Ala. 466.
The fees of witnesses who attend on preliminary trials before a committing magistrate, or on applications for bail, are not embraced within the provisions of the statute. The fees of State witnesses who appeared before the grand jury, or before the court in which the indictment or prosecution is pending, only are entitled tobe paid out of the fund. Code, § 4459.
By the special act in relation to the trial of misdemeanors in Macon county, in force in 1881, concurrent jurisdiction with the Circuit Court for the trial of all misdemeanors, except violations of the revenue law, is conferred on the County Court, and the clerk of the Circuit Court is made the clerk of the County Court. — Sess. Acts 1874-5, p. 235. The terms of section 4459 are comprehensive enough to include the fees of State witnesses in criminal cases pending in any court, having jurisdiction to hear and adjudge finally, and having a clerk to issue the requisite certificate. The organization and jurisdiction of the County Court of Macon county answer to these conditions ; and we can conceive no sufficient reason why the fees of State witnesses in criminal cases tried and determined by the County Court, in which the defendant is not convicted, and the costs are not imposed on the prosecutor, should not be claims against the county, to be paid out of the fine and forfeiture fund.
As it does not affirmatively appear from the record, that the county treasurer had a surplus of the fund over and above the amount necessary to pay the fees of State witnesses in the County Court having priority of payment, sufficient to pay the claims of the plaintiff, for the error in disallowing such claims, the judgment must be reversed.
Eeversed and remanded.