been found, or the defendant acquitted: Provided, that no person shall be made a prosecutor after the finding of the bill, unless he shall have been notified to show cause why he should not be made the prosecutor of record.

NOTICE OF MOTION.-An announcement in open court, upon the calling and continuance of a case, that a motion would be made at next term to mark a witness as prosecutor, the witness being present, is sufficient notice of the motion. Norwood, 84-794.

A notice given by defendant alone to have the prosecutor marked as such and adjudged to pay the costs, is sufficient, and the solicitor may make the motion without further notice. Hughes, 83-665.

Where the prosecutor testifies in court in the investigation of facts upon the motion to mark him as prosecutor and tax him with the costs, he has sufficient notice of the motion. Hamilton, 106-660.

The court has no power to mark one as prosecutor without his consent and without notice to show cause. Crosset, 81-579.

The presence of a prosecutor to convict the defendant is, in law, a presence to answer the latter in costs for the false clamor if the prosecution is adjudged frivolous, and a judgment against the prosecutor for such costs is valid, though rendered in his absence and without notice. Spencer, 81-519.

One marked as prosecutor on a bill of indictment is charged with knowledge of all subsequent proceedings in the case, and a motion to set aside an irregular judgment taxing him with the costs of the prosecution can not be made more than a year after the rendition of the judg ment. Horton, 89-581.

An erroneous judgment can not be set aside at a subsequent term of the court, and the only remedy is by appeal. Ib.

PROSECUTOR MAY APPEAL.-A prosecutor may appeal from a judgment taxing him with costs. Byrd, 93-624.

APPEAL BOND COVERS WHAT COSTS.-On appeal to the supreme court the appeal bond covers costs, both of the supreme court and the superior court. Patterson, 27 (5 Ired.), 89.

PROSECUTOR'S NAME MUST BE MARKED ON INDICTMENT.-No person is to be regarded as a prosecutor within the meaning of the statute making him liable to pay costs unless his name is marked as such on the bill of indictment. Lupton, 63-483.

ORDER MADE EX MERO MOTU.-The court er mero motu may order that a prosecutor be taxed with the costs. Adams, 85-560.

For

PROSECUTOR'S MOTIVE IMMATERIAL.-If the prosecutor had good cause, though his motives be of the worst kind, he ought not to pay costs. syth, 1 (Tay. Rep.), 16.

NO APPEAL WHERE EVIDENCE SUPPORTS JUDGMENT.-Where there is evidence to support the order taxing the prosecutor with the costs on the ground that the prosecution was frivolous or malicious the judgment will not be reviewed by the supreme court. Whitley, 123-728.

MAY APPEAL FROM JUSTICE.-An appeal lies from the judgment of a justice of the peace taxing the prosecutor with the costs, such taxing being in the nature of a civil judgment. Morgan, 120-563.

FINDINGS BY JUSTICE REVIEWABLE.-The findings of fact of a justice of the peace in taxing the costs against the prosecutor are reviewable in the superior court. Morgan, 120-563.

FINDINGS OF SUPERIOR COURT NOT REVIEWABLE.-The findings of fact by

the superior court, on a motion to tax the prosecutor with the costs, are not reviewable in the supreme court. Such findings by a justice are reviewable in the superior court. The reason for this distinction is

given in In re Deaton, 105-62, 63. Morgan, 120-563.

STATE CAN NOT APPEAL.-The state can not appeal from the judgment of the superior court declining to tax a prosecutor with the costs of an action tried in a justice's court. Morgan, 120-563.

No appeal lies in behalf of the state from a judge's finding of fact that the person taxed by a justice of the peace as prosecutor was not in fact such. Morgan, 120-563.

DEFENDANT'S ATTORNEY MAY GIVE NOTICE OF MOTION.-Notice of the motion to tax the prosecutor with the costs may be given by the defendant's attorney. Jones, 117-768.

DEFENDANT'S WITNESSES-FINDING OF FACT.-The finding that the witnesses were necessary for the defence must be made before the prosecutor can be taxed with the fees of such witnesses. Jones, 117-768.

PROSECUTOR MARKED ON BILL BEFORE GRAND JURY.-A person marked as prosecutor on a bill before it was acted on by the grand jury is properly adjudged to pay the costs where the prosecution is found not to be required by the public interest. Baker, 114-812.

FINDING SUFFICIENT.-A finding by the judge that the prosecution "was not for the public interest," is equivalent to a finding that it "was not required by the public interest." Baker, 114-812.

PAYMENT OF DEFENDANT'S WITNESSES BY COUNTY.-Where no prosecutor is marked it is in the discretion of the judge to make an order for the payment of defendant's witnesses by the county, and the exercise of such discretion is not reviewable. Ray, 122-1095.

It is discretionary with the trial judge to refuse to order the witnesses of the defendant paid by the county. Hicks, 124—.

SUCCEEDING JUDGE MAY HEAR MOTION.-Upon motion and notice to show cause the prosecution may be adjudged frivolous by another judge at a subsequent term. Sanders, 111-700.

FINDING OF FACTS NECESSARY.-It is error to tax a prosecutor with the costs without a previous finding of facts by the court. Roberts, 106-662. BILL IGNORED BY THE GRAND JURY.-A prosecutor can not be taxed with the costs of the prosecution when the grand jury returns the indictment "not a true bill." Following State v. Cockerham, 1 Ired., 381. Horton, 89-581.

The prosecutor can not be taxed with the costs when the bill is ignored by the grand jury. Gates, 107--832.

Sec. 105 (738). Prosecutor, when imprisoned for non-payment of costs. R. C., c. 35, s. 37. 1800, c. 558, s. 1. 1879, c. 49, s. 2. 1881, c. 176. Every such prosecutor may be adjudged not only to pay the costs, but he shall also be imprisoned for the non-payment thereof, when the judge, court, or justice of the peace before whom the case was tried shall adjudge that the prosecution was frivolous or malicious.

SOLICITOR'S FEE CAN NOT BE TAXED.--Where the prosecutor is adjudged to pay the costs on the ground that the prosecution was frivolous or malicious, the solicitor's fee can not be taxed against him. Dunn, 95-698.

NO APPEAL.-No appeal lies from a judgment taxing a prosecutor with

the costs because the prosecution was "frivolous and not required by the public interest." The finding of fact is not reviewable. Hamilton, 106-660.

Sec. 106 (1204). Pay of witnesses in state cases, court to direct the prosecutor to pay costs in certain cases. R. C., c. 35, s. 37. 1800, c. 558, s. 1. 1879, c. 49, c. 92, s. 2. 1881, c. 176.

All witnesses summoned or recognized in behalf of the state shall be allowed the same pay for their daily attendance, ferriage and mileage as is allowed to witnesses attending in civil suits; and such fees for attendance shall be paid by the defendant, only upon conviction, confession or submission; and if the defendant be acquitted on any charge of an inferior nature, or a nolle prosequi be entered thereto, the court shall order the prosecutor to pay the costs, if such prosecution shall appear to have been frivolous or 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.

Sec. 107 (895). Party convicted to pay costs; if accused acquitted, complainant to pay costs. 1868.'9, c. 178, sub chap. 4, s. 19. 1879, c. 92, s. 3. 1881, c. 176.

The party convicted in a criminal action or proceeding before a justice, shall always be adjudged to pay the costs; and if the party 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, commenced or tried in a court of a justice of the peace, shall the county be liable to pay any costs.

Sec. 108 (1211). Convicted persons must pay the costs. R. C., c. 35, s. 46. Every person convicted of an offence, or confessing himself guilty, or submitting to the court, shall pay the costs of prosecution.

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.

INSOLVENTS-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 Code N. C., section 3739, prescribing in detail the fees due clerks, no fee for entering a nol pros. can be charged. Section 739, which gives him half fees for entering a nol pros. is in conflict with section 3739, 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-WORK-HOUSE.-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 work-house 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 judgment 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. Whithed, 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 discov

ered in the bill, and a new bill is found for the same offence, 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. Hashaw, 4 (Repos. and Tay.), 230.

LAXING 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 liabil ity. 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 judgment, 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.

WHEN SUPREME COURT WILL HEAR QUESTION OF COSTS.-Where the subject mtater 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 afterwards 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.