¶1The plaintiff in error was convicted of an assault with the intent to murder in the second degree and his punishment was fixed by the jury at two years confinement in the penitentiary.
¶2He has appealed, but has brought up a record without a bill of exceptions, and without any. error *656apparent upon its face. The result is that the judgment must be affirmed, so far as he is concerned.
¶3The State complains of the disposition of costs as made by the trial Judge, which is as follows: “In the event of the insolvency of the defendant, the plaintiff will pay its costs when taxed and certified.”
¶4This was error in cases such as the present. Under the provision of Subsec. 3 of Sec. 1 of Ch. 20 of the Acts of 1897, the State can only be required to pay costs after a judgment against the defendant, and execution regularly issued and a return by the officer of nulla bona. That Act makes this return the evidence of the insolvency of the defendant, and a condition precedent to charging any costs against the State. When this has occurred, then it is the duty of the Court to see that only those costs are certified for payment by the State that are contemplated by that Act.
¶5So much of the judgment in this cause as has been quoted above is, therefore, reversed.