Briggs v. Allen

Court for the Trial of Impeachments and Correction of Errors

Decided June 15, 1842

Court for the Trial of Impeachments and Correction of Errors · decided 1842-06-15

Costs. The action was for a libel upon Briggs, imputing to him various instances of misconduct, and, among others, malpractice as physician and surgeon for the Auburn State Prison, in the case of one Van Eck, a prisoner. The declaration contained five counts, the third of which related exclusively to the charge of mal-praetice. Most of the remaining counts related to that charge also, but connected it with others, sufficient in themselves to sustain the action.

Relies on People v. Feeter

Decided 1842-06-15

¶1By the Court,

Nelson, Ch. J.

¶2The 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 *540as 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.)

¶3Motion denied, (a)

¶4See The People v. Feeter, (12 Wend. 480;) Willis v. Bailey, &c. (19 Johns. Rep. 268.)