The plaintiff appeals from the ruling of the court below upon a motion for the retaxation of costs.

• The plaintiff brought suit against defendant in the District Court, upon an account. The petition was filed on the 23d day of March, 1859; upon the 28th day of the same month the defendant paid to the clerk the full amount of plaintiff’s claim, and the further sum of $5.90, the amount of the clerk’s and sheriff’s fees due at that date. The plaintiff accepted the amount tendered in satisfaction of his claim, but claimed the further sum of $13.00 as costs, including in this amount the sum of $10 as an attorney’s fee, under the 70th rule of said District Court.

*416We think the District Court very properly refused to tax this amount of costs to defendant.

The plaintiff after the commencement of his suit had a right to disregard the tender and prosecute his suit to final judgment, and in the event of his recovery, the costs would have followed the judgment. lie thought proper, however, to accept the amount of his claim, and the record does not disclose the fact that any judgment was rendered in favor of plaintiff. If not, he was not entitled to any costs whatever.

At the time of the payment by defendant of plaintiff’s claim to the clerk, the amount of costs paid by defendant was all that was justly due. If more costs had been made, it should have so appeared in the motion to retax the costs.

Judgment affirmed.