Briggs v. Allen , 4 Hill & Den. 538 ( 1842 )

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 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)

(a) See The People v. Feeter, (12 Wend. 480;) Willis v. Bailey, &c. (19 Johns. Rep. 268.)