The opinion of the Court, Emery J. not sitting on account of interest, was afterwards delivered by

This case is not distinguishable from Gilmore v. Carr, 2 Mass. R. 171. That case is not overruled by *51Porter v. Ingraham, 10 Mass. R. 88. Indeed the Court in the latter decision, state very expressly, that there are esseutkl grounds of difference between them ; and that they do not overrule the former case. Costs depend here upon our own statutes ; and cannot be affected by the law or practice of other States. The plaintiff’s motion for costs is overruled ; but as the defendant has no merits, we do not take off the default, for the purpose of awarding costs in his favor.