
    Lawrence Myers & Co. vs. John R. Irvine & Co.
    APPEAL FROM A TAXATION OF COSTS BY THE CLERK OF THE SUPREME COURT.
    Where costs in this Court are discretionary, they are not recoverable unless specially awarded: but the objection to their allowance should be made at the time of their taxation under the notice; and if a party fails to attend and make his objections before the Clerk, he cannot object by appeal.
   Flandrau, J.

By the Court This application is in the nature of an appeal from the order of the Clerk allowing costs in this case. The silence of the order awarding a new trial on the question of costs would have been fatal to their allowance, as in all cases where costs are discretionary they are notrecoverable unless specially awarded, but the time to make objection to the allowance of costs is at the taxation before the Clerk under the notice, and if a party fails to attend and object, but suffers them to pass against him by default, it is too late to object by appeal. There is no actual decision of the clerk to review. The rule which we have so often affirmed that a party must be vigilant or he will lose his rights obtains here, and the Defendant is too late. We feel less hesitation in enforcing this rule here than we would in some cases, because we are clearly of opinion that it was our intention to allow the costs, but omitted it from inadvertance. Motion denied.

Note. — The cases decided at December Term, 1860, and not reported, will be published in the Fifth volume.  