Brown v. Stearns
Massachusetts Supreme Judicial Court
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, (1) and Galloway vs. Pitman fy al. (2)
1Opinion of the Court
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.
2Cited by2 opinions
- Crosby v. FolgerU.S. Circuit Court for the District of Massachusetts · 1833
- Mason v. WaiteMassachusetts Supreme Judicial Court · 1823