Stimson v. Huggins. of the costs in the entry of judgment; the notice to the other party is merely collateral to the principal act. The object of the notice is to protect the party against the allowance of illegal and unjust charges; but if the notice is omitted to be given it does not affect the essence of the act required to be performed by the clerk, to wit, the insertion of the costs in the entry of judgment. The clerk is substituted by the code, in the place of the taxing officer under our former system; if he finds illegal items in the bill of costs presented for adjustment, it is his duty to strike them out. (Belding v. Conklin, 4 How. Pr. R. 199.) Justice BARCULO holds in this case that the clerk is substituted in the place of the taxing officer, and although the word "tax" is no longer used, the substance of the duty remains the same as before the code. Under our former practice an irregular taxation never was allowed to affect the regularity of the judgment. (7 Cowen, 412. 2 Wend. 244. Grah. Pr. 2d ed. 238.) If the clerk irregularly adjusts the costs and inserts the same in the entry of judgment, no good or well founded reason can be discovered why it should any more affect the regularity and validity of the docket of judgment now than it formerly did. If the statute directing the notice of adjustment to be given, is merely directory, (and not imperative,) as we have no doubt it must be, it then follows that the act of adjusting the costs by the clerk does not depend for its validity on the giving of the notice, by one party to the other. The power or authority of the clerk to perform the act is not conferred by the notice, but by the law itself. The remedy of the party entitled to have the notice of adjustment and insertion of the costs in the entry of judgment, may safely rest, in the right to compel a re-adjustment, at the expense of the party who shall obtain such insertion and adjustment without giving the notice required by : 311 of the code. Justice GRIDLEY, in the case of Richards v. Sweetzer, (4 How. Pr. R. 414,) decided that a judgment is not irregular, or liable to be set aside, because the two days' notice of the application to the clerk to enter the costs in the judgment were not given. Also the same learned jurist, in the case of Dix v. Stimson v. Huggins. Palmer and others, (5 How. Pr. Rep. 234,) comes to the same conclusion on a review of the cases. We are aware that in the case of Mitchell v. Hall, (7 How. Pr. Rep. 490,) it was held by Justice BARCULO that the clerk had no authority to adjust the costs, until the notice of two days was given. This case holds that it is the notice which confers authority on the clerk. It is remarkable if the legislature intended to attach so much potency to the giving of the two days' notice, that they did not indicate it by some express words in the act. If it was intended that the authority of the clerk should depend upon the giving of notice to the opposite party, proof of its having been given should be made to the clerk; otherwise he ought not to insert the costs in the judgment. We do not concur in the opinion of the learned justice, that the clerk derives his authority to insert the costs in the entry of judgment from the giving of the two days' notice. Before the code was made, the taxation of costs without notice was an irregularity, because it violated a standing rule and the practice of the court. The adjustment of costs and the insertion in the entry of judgment by the clerk without notice, is now an irregularity, because it violates the requirements of § 311 of the code. We are of opinion that the clerk's authority is not derived from the act of giving the notice. If the clerk adjusts the costs and inserts the amount in the entry of judgment without notice to the other party, it can only be regarded as an irregularity of the party, not affecting the authority of the clerk or the validity of the judgment. The only consequences arising from such irregularity are, to order a re-adjustment of the costs at the expense of the party omitting to give the notice, and to compel such party to pay the costs of a motion to obtain a re-adjustment. It is obvious that many times a delay of two days in docketing a judgment will entirely defeat the party recovering a verdict from collecting any portion of it; ample time will thus be given, to create liens and shifts of property, by which the vigilant creditor may be entirely defeated in obtaining the fruit of his litigation. If the party obtaining a verdict desires to enter and docket his judgment without delay, for the purpose Stimson v. Huggins. of reaching the property of his adversary and thereby securing the demand, we are unable to discover any prohibition in the code taking away the right to do so. The former practice allowed the party to enter a judgment, and give notice of a retaxation of the costs. We see no good reason to change the practice in that particular. On the whole case, therefore, we are of opinion that the order of the special term must be reversed, but without costs to either party. Justice GRAY gave no opinion. [CHENANGO GENERAL TERM, January 10, 1854. Crippen, Shankland, Gray and Mason, Justices.] INDEX. A ADVERSE POSSESSION. 1. Where the owner of land, over 1. A note for $4000, dated September anty; but when loans to the amount 2. The defendant applied to the plain- 3. A parol agreement was entered |