
    The United States, plaintiff in error, vs. Henry E. Switzer, defendant in error.
    
      Error to Cedar.
    
    Where the public prosecutor entered a nolle prosequi on an indictment for burglary, it was held that the county was liable for the costs of prosecution.
    At the District Court held in and for the county of Johnson, while the county of Linn was attached for judicial purposes, to wit: at May-term 1840, Henry Switzer, Lester Wallace, and William Long were indicted for burglary. The case was afterwards transferred to Linn, and the venue, as to the defendant Switzer, changed to the county of Cedar. And was disposed of at the May term of the Cedar District Court, 1842, by the district prosecutor entering a nolle prosequi. A judgment was thereupon rendered against the county of Linn for the payment of the costs.
    The county of Linn, in the name of the United States, prosecuted a writ of error.
    Error assigned :
    The court erred in rendering a judgment against the county of Linn for costs.
    Bates, for plaintiff in error.
   Per Curiam,

Mason, Chief Justice.

The only question involved in this case, is whether the county is liable to pay the costs of the prosecution, in cases where a nolle prosequi has been entered by the public prosecutor. It was undoubtedly in the power of the District Court to direct the costs to be thus paid, prior to the act of February 15th, 1842. The sixth section of that act declares that no costs shall be rendered by the court in the event of the acquittal of a person charged with a criminal offence against the private prosecutor, unless the court is satisfied that the prosecution is malicious; or the county, or the territory, except, dsc.” This section makes no change in the previous law, except in the event of an “ acquittal.” The entering of a nolle prosequi, is not an acquittal, and therefore the court was justified in entering up a judgment for costs against the county.

Judgment affirmed.  