1261. Civil actions by state for individuals. In an action prosecuted in the name of the state for the recovery of money or property, or to establish a right or claim for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the state.

Code, s. 537.

1262. In bribery prosecutions. The expenses which shall be incurred by any county in investigating and prosecuting any charge of bribery or attempt to bribe any state officer or member of the general assembly within said county, and of receiving bribes by any state officer or member of the general assembly in said county, shall be a charge against the state, and the properly attested claim of the county commissioners shall be paid by the treasurer of the state. Code, s. 742; 1868-9, c. 176, s. 6; 1874-5, c. 5.

1263. On appeal by state to supreme court of United States. In all cases, whether civil or criminal, to which the state of North Carolina is a party, and which may be carried from the courts of this state, or from the circuit court of the United States, by appeal or writ of error, to the United States circuit court of appeals, or to the supreme court of the United States, and the state shall be adjudged to pay the costs, it shall be the duty of the attorney general to certify the amount of such costs to the auditor, who shall thereupon issue a warrant for the same, directed to the treasurer, who shall pay the same out of any moneys in the treasury not otherwise appropriated.

Code, s. 538; 1871-2, c. 26.

III. CIVIL ACTIONS AND PROCEEDINGS.

1264. When allowed plaintiff; when limited by amount of recovery. Costs shall be allowed of course to the plaintiff, upon a recov ery, in the following cases:

1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial.

2. In an action to recover the possession of personal property.

3. In actions of which a court of a justice of the peace has no jurisdiction unless otherwise provided by law.

4. In an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recovers less than fifty dollars damages, he shall recover no more costs than damages.

5. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange or instrument in writing, or in any other case, for the same cause of action against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, provided the party or parties proceeded against in such other action or actions shall have been within the state and not secreted at the commencement of the previous action or actions.

Code, s. 525; 1874-5, c. 119; R. C., c. 31, s. 78.

1265. When allowed pauper plaintiff. Whenever any person shall sue as a pauper, no officer shall require of him any fee, and he shall recover no costs, except in case of recovery by him.

Code, s. 212; 1895, c. 149; 1868-9, c. 96, s. 3.

1266. When allowed defendant. Costs shall be allowed as of course to the defendant, in the actions mentioned in section one thousand two hundred and sixty-four, unless the plaintiff be entitled to costs therein. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor or any of them.

Code, ss. 526, 527; C. C. P., s. 277.

1267. Discretionary in other actions. In other actions, costs may be allowed or not, in the discretion of the court, unless otherwise provided by law.

Code, s. 527.

1268. When in discretion of the court. Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:

1. Application for year's support, for widow or children.

2. Caveats to wills.

3. Habeas corpus; and the court shall direct what officer shall tax the costs thereof.

4. In actions for divorce or alimony; and the court may both before and after judgment make such order respecting the payment of such costs as may be incurred by the wife, either by the husband or by her from her separate estate as may be just.

5. Application for the establishment, alteration or discontinuance of a public road, cartway or ferry. The board of road supervisors or board of county commissioners may order the costs incurred before them paid in their discretion.

6. The compensation of referees and commissioners to take depositions.

7. All costs and expenses incurred in special proceedings for the division or sale of either real estate or personal property under the chapter entitled Partition.

8. In all proceedings under the chapter entitled Draining Lowlands, except as therein otherwise provided.

9. In proceedings under section six hundred and ninety-one.

Code, ss. 2134, 2161, 1660, 1294, 2039, 2056, 533, 1422, 1323; 1889, c. 37; 1893, c. 149, s. 6.

Note. See ss. 54, 58, 339, 407.

1269. Petitioner pays, when. The petitioner shall pay the costs in the following proceedings:

1. In petitions for draining or damming lowlands.

2. In petitions for condemnation of water mill sites when the petitioner is allowed to erect the mill; but when he is not allowed to erect the mill, the costs shall be paid by the person who is allowed to do so.

3. In petitions for condemnation of land for railroads, street railways, telegraph, telephone or electric power or light companies, or for water supplies for public institutions, or for the use of other quasi-public or municipal corporations; unless in the opinion of the superior court the defendant improperly refused the privilege, use or easement demanded, in which case the costs must be adjudged as to the court may appear equitable and just.

4. When the petition is refused.

Code, ss. 1299, 1855, 2013; 1893, c. 63; 1903, c. 562.

1270. Defendant pays, unreasonably defending action after notice, no personal claim. In case of a defendant, against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects real or personal property, and that no personal claim is made against such defendant. If a defendant on whom such notice is served unreasonably defends the action, he shall pay costs to the plaintiff.

Code, s. 216.

1271. None allowed to party suing on usurious contract. No costs shall be recovered by any party, whether plaintiff or defendant, who may endeavor to recover upon any usurious contract.

1895, c. 69.

Note. See ss. 1950, 1951.

1272. In special proceedings. The costs in special proceedings shall be as allowed in civil actions, unless otherwise specially provided.

Code, s. 541.

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.

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.

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 prevailing 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.

Note. See ss. 92, 97, 1799.

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.

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 judg ment of such court. If in any court of appeal there shall be judg ment 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.

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.

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.

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.