
    Avery and Avery against Curtiss and Weed.
    Action, on a joint and several promissory note, made by the defendants, who pleaded separately the general issue. On the trial, the verdict was for the plaintiff, against Curtiss, and for Weed, against the plaintiff, upon which Weed’s attorney entered a rule for judgment, in his favour, with costs, which it was now moved to set aside, on the authority of the case, Ex parte E. Nelson, (1 Cowen’s Rep. 422.)
    J. Maynard, for the motion.
    In an action arising ex-cont.-aclu, against several defendants, some of whom succeed, and-others have a verdict against them, the former are not entitled to casts.
    
      A. Gibbs, contra.
   Curia.

This case comes within the second section of the general statute concerning costs, (1 R. L. 343) the construction of which, in reference to this question, was considered" in the case, Ex parte Nelson, (1 Cowen’s Rep. 417). Though the question was not directly decided, the reasoning of that case applies. The course upon the English statute, which is worded like our second section, has always been to deny costs to one whose co-defendants are convicted, though a verdict pass for him. The 10th section, (1 R. L. 345) applies to certain actions arising ex delicto only. The potion must be granted.

Motion granted,  