
    Burnett v. Coffin.
    In actions ex delicto, under the R. S. 1843, where, the title to real estate eomes in question, the plaintiff, when successful, is entitled to recover full costs, though he does not recover 5 dollars in damages.
    Action to recover damages for the overflow of the plaintiff's land by a mill-dam erected by the defendant. Plea, not guilty. Verdict for the plaintiff for 1 cent, and judgment accordingly, and for costs. The R. S. 1843 were then in force. The evidence was not upon the record. Held, that it must be presumed that the title to real estate came in question, and that the judgment for costs was, therefore, right.
    
      APPEAL from the Hendricks Circuit Court.
    
      Monday, June 6.
    
      C. C. Nave, for the appellant.
    
      J. S. Harvey, for the appellee.
   Perkins, J.

This was an action by Coffin against Burnett to recover from the latter the amount of damages alleged to have been done to the lands of the former by an overflow occasioned by a mill-dam erected by the latter. There was a jury trial of the issue raised by the plea of not guilty, and a verdict for the plaintiff for 1 cent in damages, and judgment for that amount, with full costs.

The defendant below brings the’case to this Court and assigns for error the giving of full costs to the plaintiff.

In actions ex delicto, under the code of 1843, where the title to real estate comes in question, the plaintiff recovers full costs, when successful, even though he do not recover 5 dollars in damages. R. S. 1843, p. 735, . The title to real estate may have come in question under the general issue in this case, and, the evidence not being upon the record, we must presume that it did, and that the action of the Court below upon the subject of costs was right. Stewart v. Henry, 5 Blackf. 445.

Per Curiam.

The judgment is affirmed with costs. 
      
       The R. S. 1852 contain a similar provision. Sec. 398, of vol. 2, p. 127, enacts that, “ In all actions for damages solely, not arising out of contract, if the plaintiff do not recover five dollars damages, he shall recover no more costs than damages, except in actions for injuries to character and false imprisonment, and where the title to real estate comes in question.”
     