malicious, but if the court shall be of opinion that such prosecution was neither frivolous nor malicious, and a greater number of witnesses have been summoned than were, in the opinion of the court, necessary to support the charge, the court may, nevertheless, order the prosecutor to pay the attendance of such unnecessary witnesses, if it appear that they were summoned at his special request.

Code, s. 1204: R. C., c. 35, s. 37; 1800, c. 558, s. 1; 1879, c. 49; 1879, c. 92, 8. 3; 1881, c. 176.

Sec. 166 (1307). Who pays in justice's court.

The party convicted in a criminal action, or proceeding before a justice, shall always be adjudged to pay the costs; and if the part v charged be acquitted, the complainant shall be adjudged to pay the costs, and may be imprisoned for the non-payment thereof, if the justice shall adjudge that the prosecution was frivolous or malicious. But in no action or proceeding of which he has final jurisdiction, commenced or tried in a court of a justice of the peace, shall the county be liable to pay any costs.

Code, s. 895; 1868-9, c. 178; 1879, c. 92, s. 3; 1881, c. 176.

Sec. 167 (1291). When defendant pays.

Every person convicted of an offense, or confessing himself guilty, or submitting to the court, shall pay the costs of prosecution.

Code, s. 1211; R. C., c. 35, s. 46.

Sec. 168 (1292). Defendant imprisoned, detained until cost paid.

If the sentence be that the guilty person be imprisoned for a time certain, and that he pay the costs, there shall be added to it that he shall remain in prison after the expiration of the fixed time for his imprisonment until the costs shall be paid, or until he shall otherwise be discharged according to law.

Code. s. 905: 1868-9, c. 178.

COSTS OF TRANSCRIPT.-The clerk has no right to demand the costs of the transcript to be paid in advance, whether an appeal bond is given, or the appeal is in forma pauperis. Nash, 109-822.

FEES DUE DEFENDANT'S OWN WITNESSES.-Fees due defendant's own witnesses can not be taxed in the bill of costs and defendant imprisoned for their non-payment. Such fees constitute only a personal debt against defendant which may be enforced by the witnesses by suing out execution. Wallin, 89-578.

JUDGMENT NUNC PRO TUNC.-Where judgment is directed by the supreme court to be entered in the court below, both for the punishment and costs, and the court at the succeeding term enters judgment for the punishment only, judgment may be entered at the next term, nunc pro tunc, for the costs also against defendant and his sureties on his appeal to the supreme court. Patterson, 27 (5 Ired.), 89.

SOLICITOR'S FEE ON PEACE BOND.-The solicitor is not entitled to a fee on a recognizance to keep the peace. Red, 24 (2 Ired.), 265.

INSOLVENT-DISCHARGED, WHEN.-There were three indictments against the defendant, to one of which he pleaded guilty, and judgment was suspended on payment of costs. He was found guilty on the other two, on one of which he was sentenced to imprisonment for ten days. After serving the ten days, and twenty days additional, he took the insolvent debtor's oath, and applied for his discharge: Held, that he was entitled to his discharge in all three cases. McNeely, 92-829.

NO FEE FOR ENTERING NOL PROS.-Under Revisal, 1905, section 2773, prescribing in detail the fees due clerks, no fee for entering a nol. pros. can be charged. Section 1283, which gives him half fees for entering a nol pros. is in conflict with section 2773, which says that his fees "shall be the following, and no other," and the latter statute omits the fee for a nol pros. Johnson, 101-711.

PRISONER TO BE DISCHARGED, WHEN WORKHOUSE.-Upon complying with the provisions of The Code, section 2967, et seq., a prisoner is entitled to be discharged from imprisonment for the non-payment of a fine and costs, notwithstanding a workhouse has been established by the county, in accordance with section 786. Williams, 97-414.

REMEDY WHEN CLERK REFUSES TO ADMINISTER OATH.-Defendant, after giving the required notice of twenty days, made application to the clerk to be allowed to file his schedule, surrender his property and take the required oath, in order to be discharged from custody, and being refused, sued out a writ of habeas corpus before a judge holding court in an adjoining district, who upon hearing the facts ordered the clerk to administer the oath, appointed a trustee to take charge of the property, and that, upon taking the oath, defendant be discharged from further confinement: Held, that defendant's proper remedy, on being refused the privilege of taking the oath by the clerk, was by appeal to the judge holding the courts of the district, and not by habeas corpus; but it being made to appear to the court that defendant has been released under the writ, and that he has complied with all the requirements of the statute, the judgment will not be reversed. Miller, 97–451.

One committed for the fine and costs of a criminal prosecution, may be discharged after twenty days upon taking the oath that he has no estate above his personal property exemption. Davis, 82-610.

PARDON, EFFECT OF.-An appeal to the supreme court vacates the judg ment below; therefore, in such a case where the supreme court has decided that there was no error, and upon the transcript being returned, the solicitor moved for judgment, and defendant produced an unconditional pardon, he had a right to be discharged without paying costs. Underwood, 64-599.

DEFENDANT PAYS HIS OWN COSTS.-Where the defendant is acquitted, or a nol pros. is entered, he is bound to pay his own costs, and none other. Whitted, 7 (3 Murph.), 223.

(See State v. Massey, 104-877 and Const. N. C., art. 1, section 2, which forbids taxing costs of defendant's witnesses against him unless he is convicted.)

DEFENDANT LIABLE FOR WHOLE COSTS WHEN NEW BILL IS SENT.-Where an indictment is found and defendant recognized to appear from term to term, and afterwards a nol. pros. is entered upon a defect being discovered in the bill, and a new bill is found for the same offense, neither the defendant nor the witnesses being discharged during the time, the defendant is liable for the attendance of the witnesses from the finding of the first bill. Harshaw, 4 (Repos. and Tay.), 230.

TAXING COSTS AGAINST COUNTY.-The costs of witnesses "necessary" for the defendant can not be taxed against the county when the indictment is quashed. Massey, 104-877.

Const. N. C., art. 1, section 2, which forbids that any defendant shall be taxed with the costs of necessary witnesses summoned by him, unless found guilty, does not, ex vi termini, authorize such costs to be taxed against the county; it only exempts the acquitted defendant from liability. Ib.

The resident judge of a district can not grant a judgment taxing a county with the payment of costs at chambers and in vacation, when at the time his authority in the discharge of his ordinary official duties must be exercised in another district. Ray, 97-510.

JUDGMENT DISCHARGED BY EXECUTION.-Where defendant confesses judg ment, with sureties for the fine and costs, the original judgment is discharged, and after an execution issued against defendant and his sureties is returned unsatisfied, defendant can not be again ordered into custody until the fine and costs are paid. Cooley, 80-398.

COSTS NO PART OF PUNISHMENT.-The order for the payment of costs does not constitute any part of the punishment, the legal effect of a conviction and judgment being to vest the right to the costs in those entitled to them. Crook, 115-760.

Where judgment is suspended, the payment of part of the costs is not a performance of part of the sentence. Crook, 115-760.

CLERK FAILING TO SEND COMPLETE TRANSCRIPT.-Where the clerk fails to send up as a part of the transcript the drawing and swearing in of the grand jury he will not be allowed his costs for making and sending up the transcript of the record. Cameron, 122-1074.

CLERK FAILING to Send up JuDGMENT.-Where a clerk of the superior court fails to send up the judgment in the transcript on appeal, the supreme court may refuse to allow him the costs for making and sending up the same. Crook, 132-1053.

NEW BILL SENT. Where a nol. pros. is entered upon discovering a defect in the bill and a new bill for the same offense is sent, upon which there is a conviction, the defendant is liable for the costs for the attendance of witnesses for the whole time. Harshaw, 1-230.

WHEN SUPERIOR COURT WILL HEAR QUESTION OF COSTS.-Where the subject matter of an action has been disposed of in any way the supreme court will not pass upon the merits of the original matter in litigation merely to ascertain which side ought to have won and which ought to pay the costs, since the court will not waste its time upon an abstract question; but where the question is whether a particular item is properly charged as costs, or, whether, taking the case below as rightly decided, the costs are properly adjudged, these questions are reviewable on appeal. Horne, 119-853.

COSTS OF FIRST TRIAL WHEN DEFENDANT ACQUITTED ON SECOND.-The rule that costs follow the final judgment applies in criminal as in civil cases; hence, where a prisoner was first convicted but was afterward acquitted on a new trial, the costs of his witnesses are taxable against the county in both trials, upon order of the court. Horne, 119–853.

FAILURE TO PAY WORKED ON ROADS.-One who fails to pay, or to properly secure the payment of, costs or fine may be worked on the public roads. Yandle, 119-874.

WHEN JUSTICE HAS JURISDICTION.-Where an appeal to the superior court from a judgment of a justice of the peace, in a matter in which the justice had final jurisdiction, a nol pros. was entered by the solicitor, it was error to tax the county with the costs accrued in the superior court. Shuffler, 119-867.

The state can in no event be taxed with the costs of a proceeding in which a justice of the peace has final jurisdiction. Morgan, 120-563.

Sec. 169 (3189). Expenses of bringing from another state, paid.

In all cases where the governor of the state has made a requisition on the governor of another state for any fugitive from justice. and has sent an agent to receive said fugitive, it shall be lawful for

the governor to issue a warrant on the state treasurer for the amount of money necessary to pay the expenses of said agent and other costs in the arresting of said fugitive from justice, to be paid by the treasurer of the state.

Code, s. 1170; 1870-1, c. 82.

Sec. 170 (1254). Criminal, not demandable in advance.

In all cases of criminal complaints before justices of the supreme court, judges of the superior and criminal courts, justices of the peace and other magistrates having jurisdiction of such complaints, the officers entitled by law to receive fees for issuing or executing process shall not be entitled to demand them in advance. Such officers shall endorse the amounts of their respective fees on every process issued or executed by them, and return the same to the court to which it is returnable.

Code, s. 1173; 1868-9, c. 178, subch. 3, s. 40.

Sec. 171 (1287). Expense incurred in going after prisoner, how paid.

When a sheriff or other officer shall arrest a person under a capias or other legal process, which requires him to have the person arrested before a court or judge of another county, and such sheriff or other officer shall be obliged to incur expense in the safe delivery of such person by reason of his failing to give bond for his appearance, or if the sheriff or other officer of the county to which the prisoner is to be carried shall incur any expense in going for and conveying said prisoner to his county, then in either case, the sheriff or other officer shall file with the court or judge issuing the capias or other legal process and with the register of deeds an itemized and sworn account of such expenses, which shall be presented by the register to the board of commissioners at their next regular meeting to be audited by them. Such sworn statement shall be received by the said board as prima facie correct. Upon such auditing the board of commissioners shall cause to be issued to such sheriff or other officer an order on the county treasurer for the amount so audited and allowed by them, and shall notify the court or judge of their action, to the end that the amount so allowed shall be taxed in the costs to the use of the county.

1885, c. 262; 1901, c. 64.

Sec. 172 (1256). Bills of criminal costs itemized; approved by solicitor. It shall be the duty of the clerks of the several courts of record, at each term of the court, to make up an itemized statement of the bill of costs in every criminal action tried or otherwise disposed of

at said term, which shall be signed by the clerk, and approved by the solicitor.

Code, s. 733; 1873-4, c. 116; 1879, c. 264.

Sec. 173 (1257). Justices required to itemize bills of.

In all trials before justices of the peace it shall be lawful for plaintiff or defendant before payment of costs, to demand of the justice before whom a trial is held an itemized statement of costs; and it shall be his duty to insert in the entry of judgment in every criminal action tried or otherwise disposed of by him a detailed statement of the different items of costs, and to whom due.

Code, s. 734; 1887, c. 297.

Sec. 174 (1258). Bills of, open to the public.

Every bill of costs shall at all times be open to the inspection of any person interested therein.

Code, s. 735; 1873-4, c. 116.

Sec. 175 (1283). County pays, when.

If there be no prosecutor in a criminal action, and the defendant. shall be acquitted, or convicted and unable to pay the costs, or serves out a sentence on the public roads of New Hanover county, or a nolle prosequi be entered, or judgment arrested, the county shall pay the clerks, sheriffs, constables, justices and witnesses one-half their lawful fees only; except in capital felonies and in prosecutions for forgery, perjury and conspiracy, when they shall receive full fees. And in the following counties the county shall pay onehalf their lawful fees, when "not a true bill" is found: Bertie, Brunswick, Caswell, Catawba, Chatham, Clay, Craven, Davie, Duplin, Gaston, Granville, Greene, Henderson, Iredell, Jackson, Johnston, Jones, Lenoir, Madison, McDowell, Mecklenburg, Montgomery, Northampton, Onslow, Orange, Pamlico, Pender, Pitt, Richmond, Rowan, Rutherford, Sampson, Stanly, Stokes, Surry, Swain, Transylvania, Wake, Wilkes and Yadkin. And no county shall pay any such costs, unless the same shall have been approved, audited and adjudged against the county as provided in this chapter. All witnesses subpoenaed by order of court to appear before the grand jury in Martin county, and who do attend, and all other witnesses who may testify in open court on the part of the state, shall be allowed to prove attendance and collect one-half fees. the counties of Brunswick and Catawba the county shall not be liable for any part of the costs of justices of the peace.

In

Code, ss. 733, 739; 1901, cc. 715, 765; 1903, cc. 57, 73, 288, 298, 581; 1905, e. 134, s. 9: 1905, cc. 203, 324, 362, 370, 375, 511, 598; R. C., c. 28, s. 8; R. S., e. 28, s. 12; 1874-5, c. 247.