
    Bulkley v. Smith, Brush, and Kettletas.
    April, 1853.
    The provisions of the B. S. relative to the allowance of costs to defendants are repealed.
    In actions for a malicious prosecution against several defendants, the allowance of costs to a defendant, who has answered separately and is acquitted upon the trial, rests wholly in the discretion of the court.
    This was an action for a malicious prosecution, in which the plaintiff had obtained a verdict against the defendants, Smith and Brush; but the jury, under the direction of the Chief Justice, who tried the cause, had acquitted the defendant, Kettletas.
    The plaintiff, in order to exonerate himself from the payment of costs to Kettletas, applied to the Chief Justice for a certificate that there was reasonable cause for making him a defendant. The application was founded upon § 19, ch. 10, Tit. l,»p. 3, of the Revised Statutes.
   The judges, consulted by Oakley, Ch. J., wer.e all of opinion that the provisions in the R. S. relative to the allowance of costs to defendants, were, no longer in force ; and that as the defendants were plainly not united in interest, and Kettletas had made a separate defence, the allowance of costs to him was governed by § 306 of the Code, and therefore rested entirely in the discretion of the court. Ho judgment for costs could be rendered in his favor, unless upon his application, and when this application should be made, the question whether he was properly made a defendant might be considered. The plaintiff’s application was therefore denied. Vide Moore v. Westervelt, 3 Sand. S. C. R., p. 762.  