The opinion of the court was delivered by

There are reserved, by the two bills of exceptions in this case, two questions of some importance in practice.

Were the two suits identical, or were they so far distinct, that they could not properly be consolidated? We think they were clearly distinct suits, so that they could not, with any reasonable regard to good practice, have been consolidated. One was the original suit, which was at first defaulted before the justice, brought into this court by petition. The other was an action of debt, brought upon the first judgment, obtained by default. So that the actions could not properly be esteemed identical. But after the first judgment was set aside by petition, the second suit became entirely useless ; for whatever might be the event of the litigation in the first suit, the judgment upon which the second was predicated was gone, and that judgment could never be restored.

It was proper, then, that the second suit should be discontinued ; and it seems to be a case, in which costs should be made to abide the result of the litigation. By the express terms of the statute, when a plaintiff discontinues his suit, the court are to award the defendant costs, — but they are to be “ reasonable costs,” of which the court must judge.

Judgment affirmed.