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 *420skilled 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.