
    Catharine Frank v. John J. Speed, Wayne Circuit Judge.
    
      Division of costs.
    
    How. Stat. § 8974 gives costs to the plaintiff only if he recovers on any count of a declaration where all are for the same cause of action; where otherwise, to defendant also, if he recovers on any .count. A woman helped turn a man off her husband’s premises, and he assaulted and afterward arrested her. She sued him, counting on assault and battery, malicious prosecution and false imprisonment, but recovered on the first two only. Costs were allowed on the third to defendant. Mandamus to set aside this allowance was denied on the ground that it did not appear that the causes of action were substantially the same.
    Motion for order to show cause.
    Submitted and denied June 24.
    Relator, having aided in forcibly ejecting one Wiegert from premises belonging to her husband, was assaulted by him, and afterwards brought before a justice of the peace. Being discharged on examination, she sued Wiegert in the circuit court, counting upon the assault and battery, on malicious prosecution and on false imprisonment. The case was left to the jury on the first two counts, and on these they found for the plaintiff, but on the third they were instructed to find for the defendant, and did so. On defendant’s motion costs were allowed him on the third count, and plaintiff, relying upon How. Stat. § 8974, asks for mandamus to set aside this order.
    Section 8974 provides that where the several counts of a declaration rest upon the same substantial cause of action, and plaintiff recovers upon some of them, he shall receive costs, but that defendant shall recover no costs even though he should have judgment on another count; but where the counts are not all for the same cause of action, each shall be allowed costs.
    
      Wm. B. Jackson and H. A. Chaney for the motion.
   The Court denied the order, being of opinion that it did not satisfactorily appear that the count on which the defendant had verdict in his favor was for the same substantial cause of action for which the plaintiff recovered.  