
    Commonwealth v. St. Clair.
    December, 1844.
    Criminal Practice—Voluntary Prosecutor—Costs.—In a prosecution for a misdemeanour at the instance of a voluntary prosecutor, the defendant files a plea in abatement, that one of the grand jurors who found the indictment was not a freeholder; and the issue made up on that plea is found for the defendant, and the indictment quashed. HEM), the court should give judgment for the costs against the prosecutor.
    This was an indictment found by the grand jury empaneled at the May term of the superior court for the county of Bed-ford, against Ephraim St. Clair, for destroying a quantity of tobacco, the property of William Hanks. And Hanks was endorsed as the prosecutor.
    The defendant appeared and filed a plea in abatement, that John Fields, one of the grand jurors who found the indictment, was not a freeholder. Issue being joined upon this plea, the attorney for the commonwealth and the defendant agreed a statement of facts in lieu of a special verdict; upon which the court gave judgment for the defendant, that the indictment be quashed, and that the defendant be discharged from the prosecution.
    After the court had given judgment for the defendant, he by his counsel moved for a judgment for costs against Hanks the prosecutor, pursuant to the 6th section of the act of February 17th, 1823, Sessions Acts, p. 12. But the court doubting whether that act applied to such *a case as the present, with the consent of the defendant, adjourned to the general court the following questions: 1st. “Whether the court, before which a prosecution is pending for a misdemeanour, hath the power, by virtue of the above mentioned act, to enter up judgment for costs against a voluntary prosecutor in a case, in which the defendant is discharged upon a plea in abatement to the grand jury?’ ’
    2d. “ What judgment ought to be given on the defendant’s motion for costs in this case?”
   By the court.

The court is unanimously of opinion, and doth decide, that judgment ought to be rendered for the defendant against the prosecutor, for the costs in this case—which is ordered to be certified &c.  