¶1We have been pressed to reconsider the view which we incidentally took of this question in ex parte Harrison, (4 Cowen, 61 ;) and apply The matter of Marsh, (19 John. 171,) to the bond under the late act. And it was said at the bar, that the legislature could not have meant *292that the costs should be considered in the penalty; he cause they have, in all cases, required them to be paid preliminarily to the appeal. But the penalty has no influence upon the sum to be recovered under the bond. Thu statute is, that the penalty of the bond must, in all cases, be in double the amount of the judgment. Now suppose a judgment for costs only, without damages ? Unless the costs, although paid, are in such a case, to be reckoned in forming the penalty, the bond must be without one; and thus the intention of the legislature would be entirely defeated, as to a very numerous class of cases adverted to in ex parte Harrison. We see no reason whatever for reconsidering the rule laid down in that case; and the motion must he denied.
¶2Motion denied. "'