To require respondent to enter a judgment for costs in favor of relator, wbo is defendant in an action of assumpsit, wberein tbe declaration contained a special count and tbe common counts; upon tbe trial, upon defendant’s motion, plaintiff elected to seek recovery on tbe special count and bad judgment, wbieb was reversed in tbe Supreme Court, wbicb found tbat tbe special count contained no cause of action; plaintiff tben discontinued as to tbe special count, and defendants, assuming tbat tbe election on tbe former trial bad cut off recourse to tbe general counts, moved for judgment for costs.
Denied February 11, 1880, with costs.