*420The opinion of the court was delivered by
Rbdfield, J.This is a petition to bring forward upon the docket of this court a case finally determined by the same court at a former term.
The petitioners were claimants of a fund attached by trustee process. The petitioners were cast before the magistrate in their claim; they appealed; the matter was referred to a referee; and on his report the petitioners prevailed in the County Court, and upon exceptions the judgment of the County Court was affirmed in the Supreme Court. The clerk of the Supreme Court refused to tax costs, because there was no order of court allowing costs.
If this cause was brought forward on this docket, this court could make no order as to costs. The statute, c. 34, s. 56, provides that “ when such claimant is admitted as a party, * * * the court may, in its discretion, award costs between him on the one part, and the attaching creditor and the supposed trustee, or either of them, on the other part, as justice and equity may require.” This “ discretion” is to be exercised by the court that tried the case. The Supreme Court sits as a court of error, and can try only such questions as are brought up on the exceptions, and appear on the record. The judgment, which was affirmed in the Supreme Court, so far as we know, has been executed ; and it will be without precedent, to bring a case forward on this docket several years after it has passed into a final judgment, and has been enforced, and reverse the judgment on the exceptions, in which judgment had been affirmed, for the purpose of moving the County Court, composed of different men, to exercise its discretion whether costs should be allowed or not. Costs are the incident of a judgment. Sometimes they follow as a matter of law ; sometimes they may be allowed in the discretion of the court. In the latter case, it is the duty of the counsel claiming costs, to invoke that “ discretion ” at the time • judgment is rendered, or “ ever thereafter hold his peace.” The party prevailing recovers his cost in the Supreme Court on exceptions as a matter of right, without any order of the court.
Petition dismissed with costs.