delivered the opinion of the court.

From the facts set forth in the agreed case, upon which the mandamus against the auditor is prayed for, this court must refuse the writ. The State is only liable to pay the costs in a prosecution against a slave when the slave has been convicted and executed capitally. Conviction alone and escape before execution will not put the costs on the State. The 16th section of 2d article of the act concerning costs is as follows : “ If a slave be convicted of any capital offence and executed the costs shall be paid by the State.” The 13th section of the same article is as follows: “ If a slave shall be convicted of any offence in a case where, if the convict was a free person he would be liable to pay costs, such slave shall be sold to satisfy such costs, unless the master or owner appear and pay the same within sixty days after they become due.” The 14th section directs the sheriff how to proceed to sell the slave, &c. The 15th section is as follows : “ Any slave convicted of a capital offence, who shall be reprieved or pardoned by the executive, shall be sold to satisfy the costs, unless the owner or master appear and pay the same within the time prescribed in the second preceding section” — 13th section.

Now the law is plain, and we can see the obvious design of the legislature was not to subject the State to pay costs, when a slave was prosecuted for any offence and convicted of it, until he was executed; for, as long as he could be sold, or as long as life was not taken as the punishment, the slave was to be liable to pay the costs. ITe was to be sold to raise the funds to pay the costs. He was to be executed. The lawless violence of a mob, in its impatience to inflict punishment, taking the life of a slave, is not the execution contemplated by this statute, even if the slave had been convicted before he was hung by the mob. The escape from prison does not render the State liable even after conviction. He must bo executed under the process of the court as a punishment of the offence before the State becomes liable to pay the costs.

the writ is refused.