I think there is no doubt that the plaintiff might take his rule nisi, as upon a certificate of probable cause. True, the Court decided in Hasbrouck v. Tappen, that a bill of exceptions, per se, stayed the proceedings ; but they did not consider its effect as to the rule for judgment.]
Henry. Suppose we are successful in our motion for a new trial, the Court must then reverse their rule.
Woodworth, J.This rule is merely contingent in its terms, and is not at all inconsistent with the defendant’s rights upon the bill.
Savage, Ch. J.The same objection of reversing the rule would hold upon a case made, and certificate of prooable cause; yet it has never been allowed.
Sutherland, J.A motion is pending in this cause, and has been argued, to treat this bill of exceptions as a frivolous one, within the rule referred to. Suppose that motion succeeds : it appears to me important that the party should have a right to his rule nisi, so that he can immediately take the effect of the decision. So in all cases. If this be not so, he must wait four days after we have passed upon his case. The notice to tax the costs is not a proceeding which we can set aside.
Motion denied with costs.