— 1. The necessity to give notice to Clements of this motion in order to sustain the judgment, is shewn by the case of Baylor v. McGregor & Darling, [1 S. & P.I58] in which the precise question was raised and determined.
The terms used in the judgment entry, are as applicable to an ex parte hearing, as thejT would be to a consideration of a cause when all the parties were before the court. It is not improbable that the plaintiff may have been represented when the motion was heard, but this is not shown to be so by the record; the *533omission of notice would be conclusive even if the merits seemed to be with the defendants in execution.
As the main question has been very fully argued, and may be again presented, we deem it proper to consider its merits as disclosed by the record, and considered in argument.
2; 3. It is assumed that the damages given on the affirmance of a judgment, must be considered as a mere incident to the principal demand, and therefore, the discharge of the prinpal demand is the discharge of the damages incurred by the affirmance of the original judgment. Neither the assumption, or the conclusion drawn from it, are warranted by any terms contained in the statute authorizing damages to be given. Its terms are: e{ When the supreme court shall entirely affirm any judgment or decree brought before it, the plaintiff in error, if he be the defendant below, shall pay to the defendant in error, ten per centum on the amount due, with lawful interest from the time of rendering the original judgment or decree, besides the costs of the original suit and writ of error.” A subsequent enactment, permits the damages to be given, only in those cases where the judgment of the inferior court has been suspended. [Aikin’s Dig. 257, sec. 19, 20.] If the first enactment had continued, the damages would seem to be a mere penalty for the prosecution of a writ of error which proved to be unsuccessful; but controlled as it now is by the latter provision, it only allows damages in those cases in which the judgment is suspended by the execution of the statutory bond, and in these alone, is delay a necessary consequence of a writ of error.
We apprehend that a party who sues out a writ of error, has no pretext to call for reimbursement, for the cost and damages consequent on the affirmance of the judgment, from another who may be bound to pay the amount of the principal demand, if actually satisfied by the party suing out the writ of error. The right to delay a judgment is incidental to no contract, and if a party standing in the condition we have just stated, cannot recover the costs and damages paid by him, as money laid out for the use of the party liable to him for the principal demand, *534we are unable to perceive how it can correctly be assumed, that the damages are incidental to the contract. It is well settled that an indorser who has paid costs, cannot recover the sum paid, from the maker. Simpson v. Griffin, 9 John. 131; Capp v. McDougle, 9 Mass. 1; Steele v. Sawyer, 2 McCord, 459. No distinction, favorable to the defendants, can be drawn between the case of an indorser thus circumstanced, and one who for delay, or for any other cause, chooses to incur the risk of damages by suing out a writ of error. The reason given against the claim of an indorser for reimbursement for costs, is, that they have been unnecessarily incurred by him, and this will apply with equal force, to one who sues out a writ of error, and delays the judgment by giving a superseding bond.
If, it was admitted, the damages are incidental, it does not follow after the penalty has been incurred, that it can be discharged by the payment of the original demand by another party.
If the payment by another could produce such an effect, it would seem to be an absurdity, not to allow a payment, made by the party himself, to produce the same effect.
We are satisfied that the motion should not have been granted on the circumstances disclosed; the judgment of the circuit court is therefore reversed, and the cause remanded.