OPINION ON MOTION POR. REHEARING.
SMITH, P. J.The defendant suggests that plaintiff’s instruction number one which authorized the jury if it found for plaintiff to include in its assessment of *546damages $10.55 costs which were adjudged to plaintiff by the Illinois court in the case in which the judgment sued on was recovered, was in that respect erroneous. As no statute of the State of Illinois was introduced in evidence under which a prevailing party is entitled to costs, and as we must presume the common law exists in that State, and as under it no costs were recoverable, it results that the instruction was erroneous. Hoover v. Railway, 115 Mo. 77.
But notwithstanding this,' if the plaintiff will, within ten days hence remit the said amount of costs, $10.55, with six per cent interest thereon from April 20, 1878, amounting in the aggregate to $26.30, the motion for rehearing will be overruled, and the judgment of affirmance will be allowed to stand, otherwise it will be set aside.
It results, of course, that the costs of the appeal must be adjudged against the plaintiff.