
    Briggs vs. Allen and another.
    The statute (2 R. S. 617, § 26) giving costs to a defendant where one or more of several issues are determined in his favor, and the others in favor of the plaintiff^ applies only to cases in which a verdict is actually rendered for the defendant.
    Accordingly, where the declaration in an action for libel contained five counts, the third relating exclusively to a charge of mal-practice by the plaintiff as a physician and surgeon, and most of the others relating to the same charge in connection with other libellpus matter, to the whole of which the defendant pleaded the general issue, accompanied by a notice of justification as to the charge of mal-practice; and, on the trial, the plaintiff expressly waived all claim for damages on account of such charge, so that the defendant was precluded from giving evidence under his notice, and the plaintiff obtained a general verdict: Held, that inasmuch as no separate verdict was rendered for the defendant, he was not entitled to the costs of the issue upon the third count.
    Independently of the above statute, the only consequence of a discontinuance as tor one count or part of a count, is to deprive the plaintiff of costs upon the matters thus discontinued. Per Nelson, Ch. J.
    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. The defendants pleaded the general issue, and gave notice that they would prove the truth of what was alleged in the libel respecting the mal-practice in the case of Van Eck. On the trial, the plaintiff’s counsel expressly waived all claim to damages upon the third count, and for every thing contained in the libel relating to the case of Van Eck ; in consequence of which the defendants were prohibited from giving evidence to support their notice of justification. The defendants did not ask for a verdict in their favor on the third count, and a general verdict was rendered for the plaintiff of $300.
    
      J. How, for the defendants,
    now moved that they be allowed their costs of defence in relation to the third count. He read affidavits showing the above among other facts, and that the defendants had subpoenaed many witnesses, who were in attendance at the trial, for the purpose of supporting the notice of justification.
    
      W. T. Worden, contra.
   By the Court,

Nelson, Ch. J.

The 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 as 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.)

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