
    Charles Hubner vs. Francis Hoffman.
    This court has no jurisdiction, on the report of a judge of the superior court, of the question whether he ought to have granted the certificate as to costs, provided for in the St. of 1862, c. 36.
    Tort to recover damages for diverting water from its natural course and discharging it upon the plaintiff’s land. At the trial in the superior court, before Reed, J., the jury returned a verdict of $5 for the plaintiff, and he applied to the judge for a certificate under the St. of 1862, c. 36, which enacts that “ in all actions relating to easements, and in all others in which the title to real estate may be concerned, the party finally prevailing shall recover his full costs, without regard to the amount of damages recovered, provided the right to the easement or the title to real estate shall in fact be concerned in the particular case, and the judge before whom the cause is tried shall certify such to be the fact.” The judge declined to make the certificate; and reported the case, for the, determination of this court “ whether a certificate under the statute to entitle the plaintiff to costs should have been made.” The other facts stated in the report are now immaterial.
    
      3. Morse, (P. 3. Oooney with him,) for the plaintiff.
    
      Q-. A. iSomerhy, for the defendant.
   Gray, J.

This court has no jurisdiction of the question presented in this report. The St. of 1862, c. 36, making it a condition of the right to recover costs under that act, that the judge before whom the cause is tried shall certify that a right to an easement or title to real estate is in fact concerned, does not authorize him to refer to' this court the question whether he shall give such a certificate. The St. of 1869, c. 438, is limited to questions arising before verdict and reported by consent of parties. The Gen. Sts. e. 115, § 6, by which the court after verdict may report the case for determination by this court, extend only to questions of law affecting the rights of the parties to the subject matter in controversy, and do not include points incidental to the taxation of costs. Questions of law affecting the taxation of costs only, and not appearing of record so as to be the subject of appeal, cannot be brought to this court otherwise than by bill of exceptions under the Gen. Sts. o. 115, § 7; and all questions of fact or discretion must be finally determined in the court below. Report dismissed.  