If the expenses of carrying the prisoner to the asylum were a part of the costs of the prosecution, the county .•of Burke would only be liable to pay the plaintiff’s claim *422 upon the acquittal of the prisoner, or upon his conviction' and. inability to. pay the costs, or if a nolle prosequi should be entered,,or the judgment arrested;, and not then until the bill of costs should be “audited, approved and adjudged”' according to the requirements of the act of 1879; ch. 264.. But this expense incurred by the plaintiff is no p rt of the costs o-f the prosecution. It is a-n expense growing out of a police regulation of the state-.

The prisoner was sent by order of Judge Shenck to the-asylum as an insane person, after having submitted the-question of his sanity to. a jury, who found him to be insane. This is one of the modes prescribed by the legislature for the removal of insane persons to the asylum. One-who is insane and in prison and not charged with a criminal offence, may be sent by the order of the clerk of the superior court;, if in jail charged with a criminal offence, he may be removed to the as^Jum by the order of the presiding, judge; and in other cases by the order of three justices. Bat. Rev., ch. 6, §§ 15, 16, 17, and chap. 57, § 9.

It was under the provisions of this last section that the-prisoner was removed to the asylum..

The act of 1868, Bat. Rev..;, eh. 6, as amended by the act of 1879, ch. 264, points out by whom the expenses of-the-transportation of the prisoner to the asylum are to be paid.. But Burke county is in no way responsible for them.

There is error. The defendants- must have judgment for-the costs.

Error. r Reversed-