
    John Den ex dem. Charles Pidcock against Hannah Pidcock and Thomas P. Pidcock.
    When the parties settle the subject matter of the suit between themselves, out of court, without noticing the costs, each party pays his own costs, and the plaintiff, on motion, will have leave to discontinue without the payment of costs.
    This was an ejectment in which rules to shew cause had been taken; on the part of the defendants, why judgment as in case of non-suit, should not be entered against the plaintiff for not proceeding to trial; and on the part of plaintiff, why he should not have leave to discontinue without the payment of costs.
    
      Saxton, for the plaintiff,
    read affidavits and produced exhibits going to prove that the ejectment was instituted upon a mortgage given by Philip Pidcock to the lessor of the plaintiff, *against the defendants, the widow and heir at law of the mortgagor who were in possession of the mortgaged premises, to recover possession thereof, in consequence of the defendants committing waste by cutting and selling timber off the premises to the injury of the property and prejudice of the security of the mortgage, as he apprehended. That after the suit had been commenced and noticed for trial at the circuit and before the day of trial, upon an interview between the parties, the mortgagee informed the defendants of the occasion of bringing the suit, whereupon the defendants promised not to commit any farther waste of the timber, if the plaintiff would not proceed farther in the suit, to which the mortgagee agreed; that the suit had not been farther proceeded in; that after-wards, Amos Wilson, the administrator of the mortgagor under an order of the Orphans’ Court, sold the mortgaged premises for the payment of debts; that the mortgagee became the purchaser; the money due on the mortgage was satisfied out of the proceeds of the sale and the premises conveyed to the mortgagee who took possession of and held the same some time, and then sold and conveyed the same to a third person; that upon the call by the administrator the widow Hannah Pidcock, the defendant, for a consideration paid her, released to the purchaser her right of dower in tho mortgaged premises; and insisted for the plaintiff', that the proceedings having been stayed by the assent of the parties, and the subject matter of the suit having been afterwards settled between the parties, and the plaintiff’s demand upon the mortgage as well as the widow’s claim of dower, satisfied, without anything being said about, the costs of the suit, each party must pay their own cost, and cited Den ex dem. Anderson v. Exton, 1 South. Rep. 177.
    
      Wall, for the defendants,
    insisted that the defendants were entitled to a judgment as in case of non-suit agaiqst the plaintiff, with costs; that the widow had a right of dower in the premises and was entitled to the possession, of which the plaintiff, by the ejectment attempted to deprive her ; that the lessor of the plaintiff had afterwards purchased this right of her and obtained her release; but that the suit was not settled ; that she ought not to be left to pay the costs necessarily incurred in defence of her right, the justice of which the plaintiff had admitted by purchasing and procuring her release of dower.
   *Ford, J.,

asked if there was any agreement made, or anything said about the costs at the time of the settlement.

Saxton. There was nothing said about the costs at the time of settlement; the parties settled the matters in controversy in the suit, as well the debt due upon tho mortgage, as the widow’s claim of dower, without taking any notice of the suit or costs; that according to common understanding, this was a settlement of the suit; that parties were not skilled in the law; knew no distinction between a settlement of the subject matter of the suit and a settlement of the suit itself; this was a refinement of counsel; that after suit instituted, the parties ought still to' be permitted to settle the matter in controversy between themselves if they thought proper — and when they did so, without noticing the costs, or making any provision as to them, each ought to pay his own; neither party ought to be permitted after-wards to come into court, and move the case for the purpose of subjecting the other to the payment of costs.

Ewing, C. J. It is certain that parties having a suit depending, have the right of settling the matter in controversy, between themselves, out of court, if they think proper to do so, without requiring the payment of costs by either party to the other. And when they do make such a settlement, without noticing the costs of the suit, it is reasonable that each party should pay his own costs; the principle advanced by the Chief Justice in the case of Den and Exton, although an obiter dictum, is a very just and proper rule to-be observed in such cases.

Pee Oukiam. Let the suit be discontinued by the plaintiff without payment of costs and the rule to shew cause why there should not be a judgment as in case of non-suit, be discharged.  