pay costs: Noble v. Koonce, 76-405. As to costs in partition proceedings, see Hinnant v. Wilder, 122-149; Wilson v. Lumber Co., 131-167.

1273. Allowed in supplemental proceedings. The court or judge may allow to the judgment creditor, or to any party examined in proceedings supplemental to execution, whether a party to the action or not, witnesses' fees and disbursements.

Code, s. 499; C. C. P., s. 273.

1274. Laying off homestead and exemptions. The costs and expenses of appraising and laying off the homestead or personal property exemptions, when the same is made under execution, shall be charged and included in the officer's bill of fees upon such execution or other final process; and when made upon the petition of the owner, they shall be paid by such owner, and the latter costs shall be a lien on said homestead.

Code, s. 510. Lien exists in favor of officers for their fees, sheriff having right to retain costs out of amount collected, and no compromise between debtor and creditor can affect officer's remedy: Long v. Walker, 105-90.

1275. On re-assessment of homestead. If the superior court at term shall confirm the appraisal or assessment, or shall increase the exemption allowed the debtor or claimant, the levy shall stand only upon the excess remaining, and the creditor shall pay all the costs of the proceeding in court. If the amount allowed the debtor or claimant shall be reduced, the costs of the proceeding in court shall be paid by the debtor or claimant, and the levy shall cover the excess then remaining.

Code, s. 521. See Beavans v. Goodrich, 98-225.

1276. Against infant plaintiff, guardian responsible. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor.

Code, s. 534.

1277. Actions by or against executors, trustees or persons authorized by statute. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected out of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. And whenever any claim against a deceased person shall be referred, the pre

vailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law.

Code, s. 535. See sections 92, 97, 1799. No judgment recoverable against executors, etc., for cost unless it appears that payment unreasonably delayed or neglected or that defendant refused to refer matter in controversy: Whitaker v. Whitaker, 138-205; Morris v. Morris, 94-613; May v. Darden, 83-238; see section 97-or acted in bad faith or was guilty of mismanagement, Sugg v. Bernard, 122-156; Lewis v. Johnston, 69-395; Davis v. Duval, 112-833; Varner v. Johnston, 112-577. An administrator should be taxed with the cost of a suit subjecting him to liability for misapplication of funds: Valentine v. Britton, 127-57. Old case of interest: Arrington v. Coleman, 5-102.

Costs in actions by and against trustee should be taxed against estate in hands of trustee except where trustee guilty of mismanagment or bad faith, when they can be taxed against him personally, Smith v. King, 107-278. A trustee, as against those for whose benefit the trust is created, will be allowed to apply so much of the fund to payment of costs and expenses: Chemical Co. v. Johnson, 101-223.

Where court finds that "next friend" oficiously procurred his appointment or was guilty of mismanagment or bad faith, it may tax him with cost; Smith v. Smith, 108-365.

Referee's fees in action against deceased persons are taxed against losing party: Wall v. Covington, 76-150.

As to taxing costs against receiver, see Battle v. Mayo, 102-433.

1278. Assignee after action brought, liable for. In actions in which the cause of action shall become by assignment after the commencement of the action, or in any other manner, the property of a person not a party to the action, such person shall be liable for the costs in the same manner as if he were a party.

Code, s. 539. See Davis v. Higgins, 92-204.

IV. ON APPEALS.

1279. Generally. On an appeal from a justice of the peace to a superior court, or from a superior court or a judge thereof, to the supreme court, if the appellant shall recover judgment in the appellate court, he shall recover the costs of the appellate court and those he ought to have recovered below, had the judgment of that court been correct, and also restitution of any costs of the court appealed from which he shall have paid under the erroneous judgment of of such court. If in any court of appeal there shall be judgment for a new trial, or for a new jury, or if the judgment appealed from be not wholly reversed, but partly affirmed and partly disaffirmed, the costs shall be in the discretion of the appellate court.

Code, s. 540. See section 1280. Section discussed generally in Williams v. Hughes, 139-17.

Error in judgment of lower court, to which exception taken, entitles plaintiff to cost in supreme court although only nominal damages recovered: Lumber Co. v. Lumber Co., 137-431.

Where certain infant appellees were not represented by guardian or next friend it was deemed proper to tax cost of appeal against appellants: Cooper, ex parte, 136-130.

Successful party on appeal to supreme court is entitled to recover back cost of transcript and certificate, though judgment against him finally rendered in lower court: Dobson v. Rwy., 133-624. Where judgment modified, costs on appeal taxed against appellee: McLean v. Breece, 113-393. Where judgment reversed, it includes cost: Stafford v. Newsom, 34-17.

Appellant from justice's court to superior court, if he recovers judgment, should recover all costs, including what he should have recovered in justice's court: Kincaid v. Graham, 92-155—but if appellant is a defendant appealing from justice's judgment refusing his counterclaim, and in superior court jury allows counterclaim yet plaintiff gets judgment for balance due, costs of superior court shauld be awarded plaintiff, Ibid.

Where subject matter of action is destroyed before appeal heard, judgment below is presumed to be correct until reversed and no part of costs should be adjudged against appellee: Taylor v. Vann, 127-243; Comrs. v Gill, 126-86; Wikel v. Comrs., 120-452. There is no appeal from a judg ment awarding costs only and the supreme court will not entertain appeal upon the merits of a case just to settle the matter of costs: Comrs. v. Gill, 126-86; Taylor v. Vann, 127-243; Herring v. Pugh, 125-437; State v. Horne, 119-853; Futrell v. Deanes, 116-38; Elliott v. Tyson, 116-184; Russell v. Campbell, 112-404; Pritchard v. Baxter, 108-129; State v. Byrd, 93-624; Hasty v. Funderburk, 89-93; State v. R. R., 74-287; Martin v. Sloan, 69128; Osborne v. Henry, 66-354; but see Blount v.. Simmons, 120-19; Mills Co. v. Lytle, 118-837; Hobson v. Buchanan, 96-444; May v. Darden, 83-237. Where appellant was awarded a partial new trial, as to one issue only out of several, costs of appeal are in court's discretion: Rayburn v. Casualty Co., 142-376. Where new trial granted in supreme court, the awarding of costs is discretionary: Metal Co. v. R. R., 145-293; Satterthwaite v. Goodyear, 137-302. Where new trial awarded but imperfect record sent up, costs divided: Sprinkle v. Wellborn, 132-469.

Appellant failing to show that order he appealed from is prejudicial; taxed with cost: Harrington v. Rawls, 136-65.

Where, pending appeal, statute under which action brought is repealed, judgment below as to cost will stand: Wikel v. Comrs., 120-452.

In a fragmentary appeal judgment below as to division of costs will not be disturbed: Rodman v. Calloway, 117-13.

Judgment for costs in supreme court is rendered in that court: Johnson v. R. R., 109-504.

Where both parties appeal from judgment dismissing action, which judgment is affirmed, defendant's appeal will be dismissed with cost: Horne v. Horne, 72-534.

Undertaking for costs required is to secure costs of appellee, therefore surety not liable for appellant's cost: Morris v. Morris, 92-142.

1280. Of transcript on appeal taxed in supreme court. Whenever an appeal is taken from the superior court to the supreme court the clerk of the superior court, when he sends up the transcript, shall send therewith an itemized statement of the costs of making up the transcript on appeal, and the costs thereof shall be taxed as a part of the costs of the supreme court.

1905, c. 456. This section overthrows decision of Roberts v. Lewald, 108405, holding that the cost of transcript is superior court cost.

Appellant will be taxed with cost of unnnecessary and irrelevant matter in the record in case on appeal: Yow v. Hamilton, 136-357; Harris v. Davenport, 132-697; Land Co. v. Jennett, 128-3; Gray v. Little, 127-304; Tobacco Co. v. McElwee, 96-71; Kivett v. McKeithan, 90-106—and this is so even though he succeeds in getting final judgment, Yow v. Hamilton, 136-363; Gray v. Little, 127-304; Kivett v. McKeithan, 90-106.

The successful party on appeal from superior court is entitled to recover back cost of transcript and certificate, though subsequently final judgment rendered in lower court against him: Dobson v. Rwy., 133-624.

Successful party on appeal will not be allowed to recover cost for printing record in excess of amount prescribed by supreme court rule, except in extraordinary cases where the necessity for such printing is made to appear: Roberts v. Lewald, 108-405.

1281. From justices of the peace. After an appeal from the judgment of a justice of the peace shall be filed with a clerk of a superior court, the costs in all subsequent stages shall be as herein provided for actions originally brought to the superior court.

Code, s. 542. See Kincaid v. Graham, 92-154. The judge may or may not require prosecution bond of plaintiff on appeal from justice of the peace: Smith v. R. R., 72-62.

1282. Not allowed plaintiff unless his recovery is greater than before justice. If on appeal from a justice of the peace judgment be entered for the plaintiff, and he shall not recover on his appeal a greater sum than was recovered before the justice, besides interest accrued since the rendition of the judgment, he shall not recover the costs of the appeal, but shall be liable at the discretion of the court to pay the same.

Code, s. 566; R. C., c. 31, s. 106; 1794, c. 414, s. 17.

V. LIABILITY OF COUNTIES IN CRIMINAL ACTIONS.

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 judg ment 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 fogery, perjury and con

spiracy, when they shall receive full fees. And in the following counties the county shall pay one-half their lawful fees, when "not a true bill" is found: Alexander, Alleghany, Ashe, Bertie, Brunswick, Burke, Caldwell, Caswell, Catawba, Chatham, Clay, Craven, Davie, Duplin, Gaston, Granville, Greene, Henderson, Iredell, Jackson, Johnston, Jones, Lenoir, Lincoln, Madison, McDowell, Mecklenburg, Montgomery, Northampton, Onslow, Orange, Pamlico, Pender, Pitt, Richmond, Robeson, Rowan, Rutherford, Sampson, Scotland, Stanly, Stokes, Surry, Swain, Transylvania, Wake, Watauga, Wayne, Wilkes, Yadkin and Yancey. All persons subpœnaed as witnesses before the grand jury in Moore county in any criminal prosecution, or who shall be subpoenaed to appear before the judge in any criminal prosecution in said county, shall receive. one dollar per day for each day attending, and five cents per mile for each mile traveled to and from court one time, whether a true bill be found or not. 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 subpœnaed 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. In the counties of Brunswick and Catawba the county shall not be liable for any part of the costs of justices of the peace. Half fees shall be allowed in Burke county in case of acquittal of defendant upon appeal to superior court, in all criminal actions commenced in good faith before a justice of the peace having final jurisdiction where no prosecutor is marked therein.

Code, ss. 733, 739; 1901, cc. 715, 765; 1903, cc. 57, 73, 288, 298, 581; 1905, c. 134, s. 3; 1905, cc. 203, 324, 362, 370, 375, 511, 598; R. C., c. 28, s. 8; R. S., c. 28, s. 12; 1874-5, c. 247; 1907, cc. 40, 93, 94, 162, 208, 606, 627, 695.

See special act, 1907, c. 269, amending this as to New Hanover county. For special act as to fees in Wake county, see 1907, c. 204, and in Cherokee county, see 1907, c. 226.

Constitution exempts acquitted defendant from payment of necessary witness fees of defense, but does not require that they be paid by public: State v. Hicks, 124-829.

Where nol pros is entered upon indictment for homicide, as to murder in first degree, state's witnesses subsequently attending trial entitled to only half fees: Coward v. Comrs., 137-299.

COUNTY'S LIABILITY. This section and sections 1290, 1303, 1306, collated and construed together, places it in discretion of judge to refuse to direct fees of state's witnesses or for an acquitted defendant to be paid by county, and from his decision there is no appeal: State v. Hicks, 124829; State v. Ray, 122-1095.