security, to be approved of by the clerk, in such sum as shall be specified in the order of the court or judge allowing such writ of error, which recognizance shall be conditioned for the defendant's prosecuting said writ of error to effect and surrendering himself to the custody of the sheriff of the county in which such conviction was had, in case the judgment of the court shall not be reversed, or a new trial ordered.

SEC. 512. [Defendant in penitentiary. When the defendant has been committed to the penitentiary of this state, and the judgment by virtue of which the commitment is made shall be reversed on a writ of error, by which reversal the defendant shall be entitled to his discharge or to a new trial, the clerk of the court reversing said judgment shall, under the seal of the court, forthwith certify the same to the warden of the penitentiary.

SEC. 513. [Same.-Said warden, on receipt of such certificate, in case a discharge of such defendant be ordered, shall immediately discharge such defendant from the penitentiary.

SEC. 514. Same.]-In case a new trial be ordered, the warden of the penitentiary shall forthwith cause said defendant to be taken and conducted to the county jail and committed to the custody of the keeper thereof in the county in which said defendant was convicted.

EXCEPTIONS TAKEN BY PROSECUTING ATTORNEY.

SEC. 515. [Presented to supreme court.]--The prosecuting attorney may present to the supreme court any bill of exceptions taken under the provisions of section four hundred and eighty-three, and apply for permission to file it with the clerk thereof for the decision of such court upon the points presented therein; but prior thereto, he shall give reasonable notice to the judge who presided at the trial in which the bill was taken, of his purpose to make such application; and if the supreme court shall allow such bill to be filed, such judge shall appoint some competent attorney to argue the case against the prosecuting attorney, which attorney shall receive for his services a fee not exceeding one hundred dollars, to be fixed by such court, and to be paid out of the treasury of the county in which the bill was taken.

SEC. 516. [Decision.]--If the supreme court shall be of the opinion that the questions presented should be decided upon, they shall allow the bill of exceptions to be filed, and render a decision thereon.

SEC. 517. [Same-Effect.]--The judgment of the court in the case in which the bill was taken, shall not be reversed, nor in any manner affected; but the decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterward arise in the state.

CHAPTER XLIX.-EXECUTIONS.

SEC. 518. [In penitentiary case.]-Every person sentenced to the penitentiary shall, within thirty days, and as early as practicable after his sentence, unless the execution thereof be suspended, be conveyed to the penitentiary of this state, by the sheriff of the county in which the conviction took place, and shall there be delivered into the custody of the warden of said penitentiary, together with a copy of the sentence of the court ordering such imprisonment, there to be safely kept until the term of his confinement shall have expired, or he shall be pardoned. If the execution of the sentence be suspended, and the judgment is afterward affirmed, the defendant shall be conveyed to the penitentiary within thirty days after the court shall direct the sentence to be executed.

SEC. 519. [Assistance, etc.]-The sheriffs of the several counties of this state, during the time they shall be employed in conveying to the penitentiary any person sentenced to imprisonment therein, shall have the same power and authority

SEC. 515, 516. Cited 5 Neb. 287.

to secure him in any jail within the state, and to demand the assistance of any sheriff, jailer, or other person within this state, in keeping such prisoner, as if the sheriff were in his own proper county; and all such sheriffs, jailers, or other persons so called upon, shall be liable, on refusal, to the same penalties as if the sheriff making the demand were in his own county.

SEC. 520. [Sentence to jail.]-When any person convicted of an offense shall be sentenced to imprisonment in the county jail, the court or magistrate shall order the defendant into the custody of the sheriff, constable, or other proper officer, and shall issue to such officer a warrant of commitment, who shall deliver the convict, together with a copy of the warrant, to the jailer, in whose custody he shall remain in the jail of the proper county, until the term of his confinement shall have expired, or he shall liave been pardoned, or otherwise legally discharged. SEC. 521. [Execution against body.]-In all cases of misdemeanor, in which courts or magistrates shall have power to fine any offender, and shall render judgment for such fine, it shall be lawful to issue executions for the same, with the costs taxed against said offender, to be levied on the goods and chattels of any such offender and, for want of the same, upon the body of said offender, who shall thereupon be committed to the jail of the proper county until said fine and costs be paid, or secured to be paid, or the offender be otherwise discharged according to law.

SEC. 522. [Imprisonment at hard labor in such cases.]—When the convict is adjudged to be imprisoned for fines, or costs, as provided for in section five hundred, the sentence and execution may, in the discretion of the court, or magistrate, require the imprisonment to be at hard labor by the convict. [Amended 1875, 18.]

SEC. 523. [No dungeon or jail in county.]-Where any jail, in any county in this state, shall not have a cell or dungeon therein, then, and in that case, when the court shall sentence any person or persons to imprisonment in the cell of any jail, under the provisions of this act, the person or persons so sentenced shall be confined in that part of the jail usually allotted to the confinement of criminals, or such convict may be imprisoned as provided in section three hundred and seventy-seven, when there is the necessity therefor mentioned in said section.

SEC.524. [Lien of judgments-Exemptions from execution.-Judgments for fines and costs in criminal cases shall be a lien upon all the property of the defendant within the county from the time of docketing the case by the clerk of the proper court, and judgments upon forfeited recognizance shall be a like lien from the time of forfeiture. No property of any convict shall be exempt from execution, issued upon any such judgment as aforesaid, against such convict, except in cases where the convict shall be sentenced to the penitentiary for a period of more than two years, or to suffer death, in which cases there shall be the same exemption as at the time may be provided by law for civil cases.

SEC. 525. [Execution for fines, costs and forfeited recognizance.]It shall be the duty of the clerk of the district court to issue execution for every judgment rendered during the term, for fines and forfeited recognizance, and for the costs in such cases, which remain unpaid and unreplevied; and upon like condition each magistrate shall issue execution forthwith for fines and costs assessed by him.

SEC. 526. [Replevy of fine and costs.]-It shall and may be lawful for any person or persons, convicted of any criminal offense, to replevy the judgment for the fine and costs, or the costs only when no fine shall be imposed, by such convicted person or persons, with one or more good and sufficient freeholders entering into a recognizance before the court or magistrate, to the people of this state, for the payment of such fine and costs, or costs only, within five months from the date of the acknowledgment; which recognizance, so taken, is hereby declared valid in law, and to create a lien on the real estate of all such persons as shall acknowledge the same; and upon the breach thereof, execution shall be issued

against the goods and chattels, lands and tenements of the persons who entered into recognizance, in the same manner as if it had been a judgment, which execution shall be collected in the same manner as is prescribed in the preceding section. No scire facias shall be necessary previous to issuing such execution.

SEC. 527. [Same.]--In all cases where the person or persons, convicted as aforesaid, shall replevy the fine and costs, as is provided in the last preceding section, no execution shall issue for said fine and costs, as prescribed in section five hundred and twenty-five; and further, such person or persons, after replevying the fine and costs as aforesaid, shall not be imprisoned for such fine and costs, but such person or persons shall be wholly discharged from any imprisonment, in consequence of any conviction, unless where imprisonment is by this code made a part of the punishment; in that case such convicted person or persons shall be discharged from his, or her, or their imprisonment at the expiration thereof, if he, she or they have replevied the fine and costs as aforesaid.

SEC. 527 [a.] [Execution to any county.]-Executions for fines and costs of prosecution, and on recognizances taken in pursuance of the preceding section, may be issued into any county in this state.

SEC. 528. [Release of fine and costs.]--Whenever it shall be made satisfactorily to appear to the district court, or to the probate judge of the proper county, after all legal means have been exhausted, that any person who is confined in jail for any fine or costs of prosecution, for any criminal offense, hath no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of said court or judge to discharge such person from further imprisonment, for such fine and costs; which discharge shall operate as a complete release of such fine and costs; Provided, That nothing herein shall authorize any person to be discharged from imprisonment before the expiration of the time for which he or she may be sentenced to be imprisoned, as part of his or her punishment, nor until the convict shall have been imprisoned at least one day for every three dollars of the amount adjudged against him.

SEC. 529. [Transcript of judgment filed with clerk.] In every case, whenever it is desirable to obtain execution to be issued to another county, or against the lands or real estate of any person against whom a judgment for fine or costs has been rendered by a magistrate, the magistrate may file with the clerk of the district court of the county wherein such magistrate holds his office, a transcript of the judgment and proceedings in the cause, whereupon such clerk shall enter the cause upon the proper docket for execution to be forthwith issued thereon by such clerk, and served in all respects as though the judgment had been rendered in the district court of such county.

SEC. 530. [Treatment of prisoners. When the physician regularly employed to have the medical care of persons in a county jail, shall certify in writing to the jailer, that the health or safety of any convict confined in such jail requires that he be treated in a manner different from that prescribed by the sentence. of such convict, such jailer shall render to the convict such other and different treatment as shall be specified in such certificate as necessary, and may discharge him altogether if required by such certificate; Provided, That such physician be one employed for such medical care by the approval of the county com

missioners.

SEC. 531. [Employing convicts in jail. For the purpose of enabling the county commissioners of any county in this state to employ in a profitable manner, all persons who have heretofore been, or may hereafter be sentenced to hard labor in the jail of the county, said commissioners, or a majority of them, shall have power to designate the place where the persons so sentenced shall work, and to make all proper and needful regulations and provisions for the profitable employment of such convicts, and for their safe custody during such employment. The county jail is hereby declared to extend to any stone quarry, road or other place that shall be designated by the county commissioners for the employment of such convicts.

SEC. 532. Proceeds of convict labor. It shall be the duty of the county commissioners to make the contracts for the employment of convicts as specified in the preceding section, and the sheriff of the county shall collect the proceeds of all such labor, and after paying the board of such convicts and the expenses incident to such labor to pay the balance to the county treasurer within ten days. CHAPTER L.-RECEIPTS AND DISBURSEMENTS OF MONEY IN CRIMINAL CAUSES.

SEC. 533. [To whom paid.]-All moneys due upon any judgment for fines. costs, or forfeited recognizance, shall be paid to the magistrate or clerk of court where the judgment is pending, if paid before execution is issued therefor, otherwise to the officer holding the execution; or such moneys may be paid to the sheriff of the county if the judgment debtor is in jail, and every sheriff, constable, marshal, or other ministerial officer who shall receive any such moneys as aforesaid, shall pay the same to the proper magistrate or clerk of court within ten days from the time of receiving the same.

SEC. 534. [Same.]-Every magistrate or clerk of court, upon receiving any money on account of forfeited recognizances, fines, or costs accruing or due to the county or state, shall pay the same to the treasurer of the proper county, (except as may be otherwise expressly provided), within ten days from the time of receiv ing the same. When any moneys shall be paid to a magistrate or clerk of court on account of costs due to individual persons, such magistrate shall pay the same to the persons to whom the same are due, upon demand therefor.

SEC. 535. Misdemeanors.]--No costs shall be paid from the county treas ury in any case of prosecution for a misdemeanor, or for surety to keep the peace, except as provided in section five hundred and forty-one.

SEC. 536. [Felony before a magistrate-Costs.]-Upon examination before a magistrate on complaint of a felony, whether the accused be held to answer in court or discharged, the magistrate may file with the county clerk a certified transcript of the costs, giving the items of the same, and to whom each is due, and on what account. As early as may be after the filing of such bill as aforesaid, but without assembling for the special purpose, the commissioners of the proper county shall examine into such bill of costs, as to its correctness, justice, and legality, and may, if need be, examine under oath any person upon the subject, which oath may be administered by the county clerk. And it shall be the duty of said commissioners to disallow any item, in whole or in part, of such bill, that shall be found to be unlawfully or needlessly incurred; or, if it shall appear that the complaint was made for a felony, when it should have been for a misdemeanor only, they may, in their discretion, disallow the entire bill, or any part thereof. Said commissioners may order that such bill, or so much thereof as they find to be lawful and just, be paid from the county treasury, whereupon the county clerk shall draw warrants upon the county treasurer for the sums respectively due to each person upon such bill so allowed, which warrants said treasurer shall pay from the county general fund. And the amount of costs so allowed shall be certified by the county clerk, and the certificates filed with the papers in the cause, in the office of the clerk of the district court. And if the defendant shall be convicted, judgment shall be rendered against him for the costs. so allowed, in addition to the costs made in the district court.

SEC. 537. [Costs on conviction or acquittal. Upon the discharge or conviction of the defendant in any case of felony in the district court, it shall be lawful for the clerk of such court to file in the office of the county clerk a bill of the costs not previously allowed by the county commissoners, whereupon, the same shall be examined into, audited, and allowed, and paid in the manner specified in the last preceding section; Provided, That nothing in this or the preceding section shall preclude any magistrate or clerk, in any case, from de

SEC. 536. Costs in prosecution before magistrates are payable only as provided in this and sec. 341. The complaint, although charging a felony, is not conclusive on question of allowance and payment. 10 Neb.

laying the filing of such cost bill for allowance as aforesaid, until it shall be determined whether the same will be collected from the defendant; and no cost bill shall be filed for allowance as aforesaid under the provisions of this section, while there is pending in the cause any proceedings in error, or any unexpired recognizance for replevy of the judgment as provided in section five hundred and twenty-six.

SEC. 538. Duty of officers in collecting costs and fines. In any case of indictment for felony, where the defendant shall be convicted, it shall be the duty of the prosecuting attorney, clerk of the court, and sheriff of the county to use all lawful means within the scope of their respective powers, if need be, for the collection of the costs from the defendant, and the fine also, if any shall have been adjudged against him. And when the costs shall have been collected, if the same shall have been allowed for payment from the county treasury as provided in the last preceding section, it shall be the duty of the clerk of the court to certify and pay the same immediately to the county treasurer, together with any fine that may have been collected in the case.

SEC. 539. Magistrates' statement of fines.]-Each and every magistrate shall, on or before the first day of February in each year, make out and deliver to the county clerk of the county in which he may reside, a statement in writing of all fines assessed by him for the year ending on the first day of January next preceding, showing the name of the party and the amount of the fine, the time when assessed, whether execution was issued thereon, and the return upon the same, or if no execution has been issued, the reasons for not issuing the same; and in case no fines have been assessed by such magistrate he shall return that fact, and said statement shall be certified by such magistrate to be a true and correct statement from his docket.

SEC. 540. [Duty of officers paying or disbursing moneys.-Any officer who shall pay to the county treasurer of any county any money collected for any fine, costs, forfeited recognizance, or proceeds of jail labor, shall take therefor the said treasurer's duplicate receipts, one of which shall be immediately filed with the county clerk, and the same shall be by him preserved in his office. All such receipts shall show upon the face thereof, definitely, what the moneys paid in were for, whether for fines, costs, forfeited recognizance, or jail labor, and the sums paid on account of each of said causes, and also the cause in which each item is paid, giving the name of the defendant in each case. All such moneys arising from fines and recognizance, shall be credited by such treasurer to the county school fund, and the costs and proceeds of jail labor he shall credit to the county general fund. Whenever any costs in any criminal case shall be paid from the county treasury, such payment must be made from the county general fund; and when any warrant is drawn by the county clerk upon the treasurer of the county for the payment of such costs, a true record of the same and the definite purpose of every such warrant shall be recorded in his office, showing the cause in which such costs are paid.

SEC. 541. [Uncollectable--Payment.]-Magistrates and clerks of courts may furnish to the county clerks of their respective counties certified copies of any cost bills that are not collectable, in cases of misdemeanor and peace warrant causes; and it shall be the duty of each county clerk receiving any such bills to place them upon a separate file and preserve them in his office. At the first meeting of the county commissioners in each county, in the months of April and October, of each year, if it shall appear from the records and files of the county clerk's office that the receipts into the county treasury from the sources mentioned in the last preceding section, from and after the taking effect of this code, are in excess of the amount allowed to be paid from said treasury, in the same time, for costs in criminal cases, including the sums paid for keeping and transporting prisoners in criminal cases, said commissioners shall make an order that a sum equal to such excess be appropriated from the county general fund, for the payment of cost bills, filed as aforesaid, in misdemeanor and peace warrant causes,