1. Plaintiff beloAv gave up to the defendant his claim to the servant Booker, under the contract that defendant would pay him the debt due from Martin, the father of Booker. . That portion of the contract was executed. Plaintiff lost Brooker’s services toward paying the debt due from Martin, and the defendant got them and also the services of Martin himself *356under a promise to pay plaintiff’s debt. Section 1951 of the Code excepts from the operation of the statute of frauds all cases where there has been performance on one side accepted by the other in accordance with the.contract. This case comes within that rule.
2. It was objected that the contract was illegal, because it involved the settlement or compromise of an offense against the penal Code. Section 4609 of Irwin’s Revised Code, provides that all offenses not punishable by fine and imprisonment or a more severe penalty, may be settled, etc. The penalty provided for the offense alleged to have been settled, is not fine and imprisonment, nor can it be both: Code, section 4500. Under these sections, it was not illegal to settle it. The act of 1870, Code, section 4706, applies to cases where there has been an indictment found or special presentment made. If either of these exists) then it is that there can be no settlement, unless by the approval and order of the court on examination into the merits of the ease. Here there was neither an indictment nor presentment. It may be added that the act making it an offense to entice the servant from his employer, and prescribing the punishment therefor, is unaffected by any act making misdemeanors punishable as provided in section 4310 of the Code. The act of 1866 was subsequent to a somewhat general act on the subject of penalties for misdemeanors and is not controlled by it.
