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,