
    Herbein against The Railroad Company.
    In a proceeding against a railroad company to recover damages for injury done to the lands of an individual, costs are not recoverable unless given by the statute which provides the remedy.
    ERROR to the common pleas of Berks county.
    Samuel Herbein against the Philadelphia and Reading Railroad Company.
    
      Venire to assess damages upon the lands of the plaintiff, caused by the construction of the Philadelphia and Reading Railroad through the same.
    November 10,1838, petition presented, and on due proof of notice, venire awarded to the sheriff of Berks county according to law. November 10, 1838, venire issued. December 22, 1838, proceedings of inquest filed, finding for plaintiff, Samuel Herbein, the sum of nine hundred and seventy-five dollars damages; January 16,1839, on motion of David F. Gordon, Esquire, confirmed nisi. May 14, 1839, the court decree that the defendant pay the plaintiff the bill of costs of witnesses, on his part, as has been taxed by the prothonotary.
    
      Strong, for plaintiff in error,
    contended that the court erred in decreeing costs to the plaintiff, and cited Pam. Laws of 1832-3, page 144, sec. 4; 2 Whart. 275.
    
    
      Hoffman, for defendant in error,
    cited 8 Watts 243.
    
   Per Curiam.

We are compelled to believe that the case of the Philadelphia and Norristown Railroad v. Johnson, was not cited in the court below; for it is, in all particulars, the case before us, and it certainly would not have been disregarded. To the omission of the counsel, therefore, is to be attributed the necessity of. an appeal to this court.

Judgment reversed for the costs of witnesses, and affirmed for the residue.  