The opinion of the Court was delivered by
Whitner, J.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.
O’Neall, Wardlaw, Withers, and Munro, JJ., concurred.