Ex parte Nelson

1 Cow. 417

Opinion

Woodworth, J.

I am satisfied, on further consideration, that we were wrong in our impressions at the last term.. The 11 th section, upon which the defendant claims to be allowed his costs, provides, that if the plaintiff shall, after declaration, suffer the suit to be discontinued, the Court may adjudge costs to the defendant. It makes no provision for a discontinuance as to one of the defendants, and, I think, it applies only to a discontinuance, as to all the' counts, and all the defendants. The 2d section provides, that in every case, where a plaintiff would recover costs upon a verdict for him, the defendant shall have costs upon a verdict against the plaintiff. Now, the English statute, from which this is copied, was- not construed to give one defendant hi& tiosts, where he alone, among several defendants, was ac*>

Quitted. And this defect gave rise to our 10th section, which is, however, confined in its language, to the acquittal of one defendant by verdict, in certain actions arising ex delicto. The same rule of construction applies to the 11th section. This not being an abandonment of the whole action, I am of opinion that the plaintiff had a right to enter a nolle prosequi, and the Common Pleas a right to permit this to be done without costs. Indeed, I think the statute never intended to give costs to a single defendant, in an action like this, arising ex contractu. Cooper v. Tiffin, was an abandonment of the entire action, and the case from Otsego, of Morton’s Executors v. Croghan’s terre-tenants, in the 20th Johnson, is a similar instance.

Sutherland, J.

It was taken for granted on the former argument, and we certainly took it for granted, when we directed the rule to shew cause, that the statute extended to ¡a nolle prosequi as to one of several defendants ; and the main question then made was, whether a nolle prosequi was to be deemed within the statute, according to the case of Cooper v. Tiffin. This being the case, and the Court of Common Pleas having refused to give a judgment for costs, we granted the rule, upon the principle, that the Court below having refused to act, we would put them in motion. 1 concur, however, that there is nothing to take this case out of the rule of construction which governed upon the acquittal of one defendant among several, under the 2d section of the statute of costsj before the adoption of the provisions of the 10th section.

SavAge, Ch. J.

A mandamus is proper, where a party has a legal right, and there is no other appropriate legal remedy, and where, in justice, there ought to be one.

(o) But where a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because this Court cannot control, and ought not to coerce that discretion.(p)

Neither will a mandamus be granted, where error will lie. In Jansen and others v. Davison,(q) the Court below, on a recovery for less than $25, refused to give judgment for costs, and this Court denied the writ, saying, “ the Court below have exercised their judgment on the question of costs ; if they were- wrong, it was an error of judgment merely, and the proper remedy is by writ of error.”

There is no question about the authority of the Court, to permit a nolle prosequi to be entered in this case ;(r) and the only subject of complaint is, that the defendant Was not allowed the costs of his plea of infancy, and of his witnesses to prove it. By the 11th section of the act concerning costs, passed April 12th, 1813, (s) it is enacted, that “ if, after declaration put in, he (the plaintiff) shall suffer the suit to be discontinued, or otherwise shall be non-suited in the same, then, and in every such case, the Court may, at its discretion, adjudge costs to the defendant.” This discretion, it is said, is not arbitrary, but a sound legal discretion. It is, however, the same discretion, in the exercise of which, this Court has allowed the plaintiff to discontinue, mthout costs, where the defendant is discharged under the insolvent act.(t) Had the plaintiff asked leave to enter his nolle pros* equi, on receiving the defendants’ plea of infancy, and the motion had been granted without costs, I vqry much doubt whether the discreetness of such a decision would have been . questioned. If so, then the Court may still be correct, for it might be, that the plea could not have been supported. In my judgment, the defendant asks for costs with a very ill grace, when he has first palmed.himself upon the plaintiff as an adult, and thus obtained his property, and then pleads infancy in his discharge.

But if this ground be not sufficient to resist this motion, there is another, which is, that the proper remedy is by writ of error. The Court of Common Pleas,did not refuse to give judgment at all. 'They have rendered a judgment. If they have erred, it is an error of judgment; and a manda* mus is not the appropriate remedy.

Besides; the language of the act is, “ if he shall suffer the . suit to be discontinued, or otherwise shall he non-suited in the same.” Now, the entering of a nolle prosequi, as to one defendant,- is neither a discontinuance of the suit; nor a non-suit. The defendant, therefore, is not within the letter sf the act, and I am not aware of any decision which brings him within its provisions. In Cooper v. Tiffin,(u) the suit was discontinued, and the defendant had costs; but in Hubbard v. Biggs(v) the plaintiff entered a nolle prosequi as to some of the counts, without costs either way. There is no adjudged case in favour of the defendant, and the analogies, in my opinion, are against his right to costs.

On the whole, therefore, I am of opinion, that the mandamus should not issue.

Rule to shew cause discharged.

Rex v. Barker et al, 3 Burr. 1265. The People v. The Supervisors of Albany, 12 John. 414.

12 John. 416. 19 id. 262.

2 John. Cas. 72.

20 John. 122-3.

1 R. L. 345.

Hart v. Story, 1 John. Rep. 143. Merchants Bank v. Moore, 2 id. 294. Ludlow v. Hackett, 18 id. 252.

3 T. R. 511.

16 East 129.