Majority
p. 166James and Samuel Watson v. Frederick Depeyster & Co.
Headnote
THIS arid three other suits were commenced, against the above defendants and several others, on a
p. 167informed the bench, that in Wallace v. Lockwell, it had been decided, that if a party compromised without the knowledge of his attorney, and the plaintiff went on, each paid his own costs.
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 cancelled 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 sidts proceeded. The principal cause went on to trial, and the jury found a verdict for the defendant, which was 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. N. B. At the time of compromise nothing was said about costs.
Hoffman, as amicus curiis,
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. The parties ought to have informed their attornies there was a compromise.