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Where there is a fund in court, which is afterwards adjudged to belong to the plaintiff, and pending the controversy an order is made allowing a reference fee in the cause, which is paid out of the fund, and the final judgment is against the defendant for all of the costs, this sum so paid, is properly taxed in the costs, and must be paid by the defendant. White v. Jones, 94-411.

NOTE. The last paragraph of this section, which places the taxation of referee's fees in the discretion of the court, was added 1889, ch. 37. The above decisions were all made prior to that amendment.

See, also, 535, (2) post, as to different rule as to reference on claims against a deceased person.

Sum allowed. The sum allowed referee is in the discretion of the court, and not subject to review. Worthy v. Brower, 93-492.

Sec. 534. Costs against infant plaintiff. C. C. P., s. 286.

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

Next friends.-But "next friends," unlike the guardian, are not really parties to an action. Mason v. McCormick, 75-263; George v. High,

85-113; Tate v. Mott, 96-19.

And cannot be taxed with costs, unless the court finds that he officiously procured himself appointed, or has been guilty of mismanagement or bad faith. Smith v. Smith, 108-365.

Sec. 535. Costs in action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. C. C. P., s. 287.

(1) 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 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 defence.

Former practice.-Where the plea of "fully administered" was found for the defendant and a judgment quando (under the old system) rendered for the plaintiff, the defendant was entitled to judgment against the plaintiff individually for costs. Lewis v. Johnston, 67-38; Lewis v. Johnston, 69-392; Welborn v. Gordon, 5-502: Battle v. Rorke, 12-228; Terry v. Vest, 33-65.

NOTE. These decisions are based upon the practice before the adoption of the above section.

Trustee, etc., not taxable personally unless guilty of mismanagement or bad faith. A trustee cannot be taxed personally with costs unless the court adjudges that he has been guilty of mismanagement or bad faith in the action or defence. Smith v. King, 107-273.

In proceedings to sell lands to make assets, the realty is liable for costs as well as for the balance of the judgment, unless the court which rendered the judgment taxed the cost against the executor (or administrator) personally, or against the plaintiff. Long v. Oxford, 108-280.

While the "next friend" is not, strictly speaking, a party to the action, and generally will not be taxed with costs, yet where the court finds the fact that he officiously procured his appointment, or was guilty of mismanagement or bad faith, it may tax him with costs. Smith v. Smith, 108-365.

Counsel fees, etc., out of fund.-A trustee as against those for whose benefit the fund is created will be allowed payment out of the fund for such costs and expenses, including counsel fees, as may be necessary to protect it, but he will not be allowed such disbursements against one who establishes an adversary title to the property. Chemical Co. v. Johnson, 101-223.

(2) 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.

But not unless defendant refuse to refer under 1426, or unreasonably delayed payment. The Code, 1429.-When payment is not unreasonably delayed or neglected by the administrator or executor, and he has not refused to refer the matter in controversy, pursuant to The Code, 1426, no costs will be awarded against him. The Code, 1429; Morris v. Morris, 94-613. Eleven years' resistance of a just claim is such unreasonable delay. Long v. Oxford, 104-408.

See

525, 526 and 533, ante, and cases cited.

Sec. 536. Costs in civil actions by the state. C. C. P., s. 288. In all civil actions prosecuted in the name of the state by an officer duly authorized for that purpose, the state shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the state as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be recovered of the state till after execution issued therefor against such private party and returned unsatisfied.

If subject matter disposed of, no appeal as to costs.-Where upon an appeal to the supreme court it appears that the subject matter of the action has been disposed of, and the only matter involved is a question as to costs, the appeal will be dismissed. State v. Railroad, 74-287.

Sec. 537.

Costs in action by the state for a private person. C. C. P., s. 289.

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.

Sec. 538. Costs in appeals by state to the supreme court of the United States. C. C. P., s. 289 (a). 1871-'2, c. 26, s. 1. 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 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 governor, who shall thereupon issue a warrant for the same, directed to the state treasurer, who shall pay the same out of any moneys in the treasury not otherwise appropriated.

Sec. 539. Costs against assignee after action brought. C. C. P., s. 290.

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.

Does not apply, when. This section does not apply to an assignment of a cause of action as a collateral security for a continuing obligation nor when the assignment is only of a part and not the whole of the cause of action, but when the assignee under 188 can be substituted for the original plaintiff. Davis v. Higgins, 92-203.

Assignment by plaintiff suing in forma pauperis.-Where plaintiff who sues in forma pauperis assigns the cause of action, the assignee must be substituted and give prosecution bond unless similar leave is granted dispensing with it. Davis v. Higgins, 91-382.

Sec. 540. Costs on appeals generally. C: C. P., s. 292.

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 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.

Judgment reduced on appeal.-Though on an appeal from a justice's court the judgment is reduced by allowing the defendant a credit claimed and denied below (which was the sole ground of the appeal), if the plaintiff recovers judgment or any amount he is entitled to costs. Kincaid v. Graham, 92-154. See 22 565 and 566, post.

Cost of unnecessary matter.-An appellant, though awarded a new trial, will be taxed with the costs of unnecessary matter sent up with the transcript. Kivett v. McKeithan, 90-106; Tobacco Co. v. McElwee, 95–71. See Rule 22 of supreme court, post, and cases cited.

Sec. 541. Costs in special proceeding. C. C. P., s. 294.

The cost in special proceedings shall be as herein allowed in civil actions, unless where otherwise specially provided. As in civil actions. -Costs in special proceedings are allowed as in civil actions. Mayo v. Jones, 78-406.

When title put in issue in proceedings to make real estate assets,—In a proceeding to make real estate assets, where the defendants set up title to the land in controversy, which issue is found against them, the costs of the proceeding, except those of filing the petition, are taxable against the defendants. Noble v. Koonce, 76-405.

Sec. 542. On appeals from justices of the peace. C. C. P., s. 295.

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.

Court may require prosecution bond.-Upon an appeal from a justice's judgment, the court has discretion to require the plaintiff to give bond for costs or not. Smith v. Railroad, 72-62; Lea v. Brooks, 49-423.

See564, post.

Sec. 543. Judgment for costs against plaintiff and surety on failure to maintain action. R. C., c. 31, s. 126. 1831, c. 46, ss. 1, 2.

Whenever an action shall be brought in any court in which security shall be given for the prosecution thereof, or when any case shall be brought up to a court by an appeal or otherwise, in which security for the prosecution. of the suit shall have been given, and a judgment shall be rendered against the plaintiff for the costs of the defendant, the appellate court, upon motion of the defendant, shall also give judgment against the surety for said costs, and execution may issue jointly against the plaintiff and his surety.

See, 209, ante.

SECTION.

TITLE XIII.

OF APPEAL IN CIVIL ACTIONS.

544. Writs of error abolished and appeals substituted.

545. Writs of certiorari, recordari and supersedeas.

546. Orders made out of court, how
vacated or modified.

547. Who may appeal.
548. Appeal, in what cases may be
taken.

549. When taken, execution not
suspended, when.
550. Appeals to be entered by clerk
on judgment docket; case,
how stated and settled.
551. Clerk to make copy of judg-
ment-roll, and send to clerk
of supreme court.

552. On appeal, security must be
given or deposit made, un-
less waived.

553. Appeal in forma pauperis.

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