
    Pelatiah Brown versus William Stearns and Another.
    Two defendants in an action for a toft jointly plead not guilty; one is found guilty, and the other not guilty ; this latter shall have judgment for his costs.
    This was an action of the case for a malicious prosecution. The two defendants pleaded, jointly, not guilty. On the trial of that issue, the jury found one of them guilty, and the other not guilty.
    
      Cummings moved for costs for the defendant who had been acquitted, considering him as the prevailing party within the intent of the statute of 1784, c. 28, § 9 ; and he cited the cases of Hart vs. Fitzgerald,  and Galloway vs. Pitman fy al. 
      
    
    
      Saltonstall, for the plaintiff.
    The case is not within the statute. The two defendants constitute the party, and they cannot be said to have prevailed. The cases cited for the *defendant do not apply. In Hart vs. Fitzgerald there was but one defendant, and the only point decided as to costs was, that the defendant shall recover them when judgment is arrested for the insufficiency of the plaintiff’s declaration. In Galloway vs. Pitman & al. the defendants pleaded severally, so this point could not come up.
    
      
      2 Mass. Rep. 513.
    
    
      
       3 Mass. Rep. 408.
    
   By the Court.

There seems to be no good reason why the defendant, who has been acquitted, and whose innocence is thus established, should not recover his costs. It is plain from the verdict, that the plaintiff had no cause of action against him ; as between him and the plaintiff, he is the prevailing party. The verdict has severed the two defendants as effectually as their pleading several pleas would have done. Let costs be taxed for the defendant, in whose behalf the motion was made.  