Majority
p. 97J. and S. Watson against Depeyster & Co. mentioned, that in Wallace v. Lochwell it had been decided, if a party compromise without knowledge of his attorney, each pays his own costs.
Headnote
If a suit be compromised between the parties, without the knowledge of the attorneys, and nothing said about costs,- each party pays his own.This and three other suits, were commenced against the above defendants and several others, on a policy of insurance on the brig Defiance, and a consolidation rule' signed and entered. About a year afterwards, the defendants in. the above suit compromised with the plaintiffs, who can-celled the policy as to them; of this the defendants’ attorney had no information, nor was there any rule to discontinue, or other rule entered, and the other suits proceeded.
The principal cause went on to trial, and the [*67] jury found a verdict for the defendants, which w'as acquiesced in. The defendants’ attorney thereupon entered rules for judgment as in case of nonsuit in all the causes, pursuant to the consolidation rule, and the costs were taxed, and judgment rolls ready to be signed. It was now submitted to the court, on these facts, to decide whether the rules for judgment, and the judgment for costs as in case of nonsuit, were regular or not; or whether they ought to be set aside, as at the time of compromise nothing was said about the costs.
Hoffman, as amicus curiae,
In every suit each party is supposed to advance as his suit proceeds. If each has paid costs, and then they compromise, the suit is settled; for the transaction imports no further proceeding is to be had; nothing more than a simple discontinuance to enter on record, and nothing_ being said about costs, each must pay his own.
p. 98
The parties ought to have informed their attorneys there was a compromise.
Costs denied.[1]
(a) (a) Where a suit is settled by the parties, without mentioning costs, each, bears his own. Johnston v. Brannan, 5 Johns. Rep. 268 . A settlement with the plaintiff of even the costs is valid, if made without notice from his attorney, and bona fide. The People v. Hardenbergh, 8 Johns. Rep. 335 .