Under §§ 737 and 1204 of The Code, in all criminal actions if the defendant be acquitted, nolle prosequi entered, or judgment arrested, if the prosecution shall appear to have been frivolous or malicious the Court may order the prosecutor to pay the costs, whether marked on the bill or not; and, under § 738 of The Code, he may be imprisoned for the non-payment thereof if the Court, Judge or Justice before whom the trial was had “ shall adjudge that the prosecution was frivolous or malicious.” It is found as a fact by the Judge below that the prosecution was both frivolous and malicious, and he adjudged that the prosecutor Sumner pay the costs, and this is conclusive. State v. Hamilton, 106 N C., 660.

No error.