The opinion of the court was delivered by

The general doctrine, that, after a suit is brought upon a debt and costs incurred, the defendant cannot bar the plaintiff’s suit by paying the debt merely, without also paying the costs, is well settled. And when such payment is made, the plaintiff will generally be entitled, in such case, if the costs are not paid, to take a judgment for nominal damages and his costs.

Whether, in a case, where, during the pendency of a suit, the plaintiff accepts the amount of his debt and gives a full release, or discharge, of the same, he can afterwards proceed and take a judgment for nominal damages and costs, it is not necessary now to decide. It is no doubt competent forra party, who has commenced an action, to receive the amount of his debt, and waive his claim for costs; and in a case, where costs were so waived, either in express terms, or by fair inference from the circumstances attending the transaction, the plaintiff would not be permitted to proceed with his suit for the recovery of costs, but would be subjected to pay costs, if he persisted in farther prosecution of his suit. In the present *290case it appears from the auditor’s report, that after this suit was commenced in this state, the plhintiff called upon the defendant in the state of New York to pay the debt, and threatened him with a suit there, unless he paid the debt, and then disavowed, that this suit was brought by his authority, or direction; The defendant thereupon paid the amount of the debt to the plaintiff, and took a discharge of the same; but it does not appear, that he paid- any costs, or that the plaintiff claimed any; neither does it appear, that the plaintiff in terms waived the payment of costs.

If the plaintiff, with a knowledge that a suit had been brought and costs incurred, consented to accept the amount of his debt, without making any claim for costs, it would be a strong circumstance, tending to show he intended to relinquish his claim to costs, —but perhaps not alone sufficient to prevent the plaintiff from after-wards insisting upon costs. In the present case, however, the plaintiff stands upon much less favorable ground; he not only made no claim to costs, but, on the contrary, denied all connection with, or responsibility for, the suit, which had been brought, — although the auditor has found, that such statement was false, and that the suit was brought by his direction. The defendant had a right to rely upon his statement ;and when the plaintiff not only denied having authorized this suit, but threatened to commence another for the same debt, the defendant might well suppose, the plaintiff would never call upon him to pay the costs of such unauthorized suit, and that he would be fully absolved from- all claim of the plaintiff, by paying the debt.

The assertion of the plaintiff to the defendant, at the time he paid the- amount of the plaintiff’s debt, was fully equivalent, in our estimation, to an- express waiver of any right to call' upon him to pay costs in the suit; and having by such statements induced the defendant to pay him the amount be claimed as his debt, he ought not to be permitted to afterwards turn round and prosecute his suit merely for the- recovery, of a bill of costs.

Judgment affirmed.