Cate v. Pecker

delivered the opinion of the court.

In our practice, leave to enter a nolle prosequi is always obtained from the court. The practice seems to be the same in Massachusetts. 1 Pickering, 500.

In cases where one of several defendants interpose a defence which is personal to himself, as infancy, &c. it is a matter of course to grant leave to enter a nolle prosequi as to him. 1 Pickering, 500; 5 Johns. 160; 1 Peters S. C. R. 75, Minor v. The Bank of Alexandria; 2, M. & S. 444, Moravia v. Hunter; 1 Chitty’s Pl., 32—33; 1 Saunders, 207, note (2); 1 Tidd’s Prac. 631; 1 Wilson, 89, Noke v. Ingham.

But when counts are misjoined, the mistake will not be permitted to be cured by a noils prosequi. 1 H. Bl., 108, Rose v. Bowler; 4 D. & E. 360, Drummond v. Dorant.

When there are several counts, to one of which there is a demurrer, the plaintiff may have leave to enter a nolle prosequi as to that. 6 Taunton, 444; 1 B. & P. 157.

In this case a nolle prosequi has been entered by leave of the court, and we must now presume ¡that there was a proper occasion for entering it until the contrary appears. There is then no ground for arresting the judgment.

If leave to enter the nolle prosequi was improve¡ently granted, the proper course is to move to set it aside.

Judgment on the verdict.