The opinion of the Court was delivered by

The statement made on ’circuit fully authorized the order of the Judge. The payment of the plaintiff’s demand and the costs incurred by him in the prosecution of his suit, and which had been accepted under an impression that this proceeded from defendants, well authorized the entry on the docket to protect the plaintiff from any future molestation for defendants’ costs.

*405It turns out now, however, by the frank statement of plaintiff’s counsel, that he was misled as to the facts. The payment was made by a volunteer and without authority from the defendants. He was a witness in the case and attended at great sacrifice of private interest, and preferred to incur the hazard of individual loss if his act should not be recognized.

For the purposes of the present motion it is enough that we are given to understand the defendants repudiate the act and insist on their supposed rights, holding the plaintiff to answer eventually for the costs to which, as they allege, through their counsel,''the defendants were unjustly subjected.

It is not perceived that any rule of practice can be laid down on this subject. Such cases must depend on the special circumstances of each. As a general rule such entries are only made by consent, though cases readily suggest themselves in which plaintiffs would be entitled to the protection of such an order as the one in question would afford, from future liability for defendants’ costs, and that too notwithstanding the objection on the part of the opposite party.

In the present case, not the slightest imputation attaches in any quarter of a purpose to secure an unjust advantage or avoid a just liability. Without prejudice to either therefore it is proper that the case be restored to the docket for a further hearing or an amicable adjustment between the parties as they may be advised,- and it is so ordered. It is further- ordered on the motion of defendants’ counsel, that defendants have leave to pay into Court the sum of eighty-five dollars and seventy-nine cents, which sum they allege to have been offered to plaintiff before the commencement of this suit and refused by him.

dissenting. Not concurring with the majority of the Court, I will briefly state the reasons which have influenced me in differing from them in the opinion pronounced in this case.

*406When the defendant pleads a tender, or if, under the general issue, the plaintiff’s right to recover anything is resisted, it is proper that the consent of all the litigants should be given before an entry of “ settled” is made on the docket; because after such an entry, the defendant could not enter a judgment for the costs that he may be entitled to recover.

In this case, no tender was pleaded, and the defendants, under the general issue, ask leave to pay into Court eighty-five dollars and sevénty-nine cents, agreeably to the rule adopted in the case of Broughton vs. Richardson, (2 Rich. 64,) which directs, “ that if the plaintiff take the money out of Court before the final determination of the suit, the Clerk shall, in the receipt to be taken for the money, require such plaintiff to say for the information of the'defendant, whether he accepts the money in full discharge of the action, or takes it with the intention of proceeding further.” Por the amount paid into Court, and the costs taxed up to the time it is paid, the plaintiff is entitled and may take it in full discharge of the action, and in such an event, I presume that “ settled ” would be a proper entry.

When money is paid into Court under the terms of this rule a nonsuit would not be granted, nor a discontinuance ordered in invitum ; nor could the defendant obtain a verdict on trial, because the payment into Court is the acknowledgment of his legal liability to the extent of his payment and costs.

When the case is called at the next term, and the plaintiff shall again inform the Court that it is settled, and the order proposed by the defendant to pay eighty-five dollars and seventy-nine cents into Court is granted,-the plaintiff might, in addition to the amount he has already received, capture this also, and then, under the rule established' in Broughton & Richardson, the action would be fully discharged and settled. It is difficult to perceive how the ends of justice'will be accomplished by continuing this litigation.

Motion granted.