delivered the opinion of the court.
This was an indictment for gaming, and upon motion of the circuit attorney the prosecution was dismissed at the costs of the defendant. A judgment for costs was entered, and the only question in the case is whether the attorney’s fee was properly taxed against the defendant as costs.
The circuit attorney is allowed a fee of four dollars for a conviction -upon indictment for an offence such as was prosecuted in this case. As there was no conviction, he was of course not entitled to this fee, unless the special agreement of the defendant with the circuit attorney was distinctly otherwise. It is not necessary to say whether such an agreement could be enforced in this way, since no such agreement is set up in the case.
The circuit court allowed the fee, under the fifth and seventh clauses of the section of the fee law regulating the fees of circuit attorneys. The fifth clause allows this officer a *35fee of four dollars for “ Ms services in all actions which it is Ms duty by law to prosecute or defend.” It is obvious that this section has no reference to criminal proceedings, for which the second clause had already provided. The seventh clause relates to criminal proceedings, and deprives this officer of any fee when the indictment is quashed, or held bad on demurrer, or judgment is arrested. There is nothing in this clause which, either directly or by implication, could affect the question in this case.
Judgment reversed.
The other judges concur.