Briggs v. Allen

By the Court, Nelson, Ch. J. The case is not within the statute. (2 R. S. 512, § 27, subd. 2, 2d ed.) The provision contemplates a verdict for the defendant on the separate count before he is entitled to costs against the plaintiff. Independently of this section, the only consequence of a nolle prosequi [540] as to one count or part of a count in a declaration^ is to deprive the plaintiff of costs upon the matters thus discontinued, (2 Tidd, 888 ; 2 Arch. 281; Hubbard v. Biggs, 16 East, 129.) Motion denied, (a) Footnotes [(a)] See The People v. Feeter, (12 Wend. 480;) Willis v. Bailey, &c. (19 Johns. Rep. 268.)