Jackson ex dem. Eden v. Varick

7 Cow. 412

Opinion

Curia.

The omission to give notice of taxing costs, never affects the regularity of the judgment. This has been ruled many times; and the practice is settled beyond all dispute. The only consequence of omitting notice, is a re-taxation at the expense of the party.

True, a bill of exceptions stays proceedings, per se, while •£ jg peeing for argument in this court; but not a moment longer. The party who prevails, may, op our passing upon it, take the effect of our decision as. soon as he pleases, subject to be arrested by writ of error and bail within the 4 days. A writ of error has, in this case, been prosecuted; but no bail is in to this day.

[1]

Motion- denied.

In the state of New York, in the practice under the code, the effect of omitting to give notice of adjusting the costs, in the cases'where the defendant is entitled thereto, has been differently decided. In the Bank of Massilon, 2 Code Rep. 49; Goldsmith, v. Marpe, ib. 49; Doke v. Peek, 1 Code Rep. 54, Elson v. N. Y. Equit. Ins. Co., 2 Code Rep. 36, it was held that the omission made the judgment irregular, *md liable to be set aside on motion. But in Richards v. Swetzer, 1 Code Rep. 117; Hughes v. Mulvey, 1 Sandf. Sup. Ct. Rep. 92; Dix v. Palmer, 3 Code Rep. 214; 5 Pr. Rep. 233, the omission was held not to affect the regularity of the judgment, but only to entitle the defendant to a re-adjustment at the cost of the plaintiff. See Voorhie’s Code pp. 251, 258.