
    *Joseph Hunt against Paul Morris.
    In an action of trespass on the case for overflowing lands,' brought in the Supreme Court, if the title is actually brought in question by the evidence of the defendant, the plaintiff though he recovers less than two hundred dollars, will be entitled to full costs.
    This was an action of trespass on the case.
    The declaration sets forth in substance—
    1st. .That the plaintiff, Hunt, was possessed of. a tract of land in Middlesex county, containing ten acres, adjoining a certain creek there flowing and accustomed to flow, and that the defendant intending to injure him, and to deprive him of the use and profits of the land, and to put him to great charge, whilst he was possessed thereof, the defendant wrongfully kept, continued and supported a dam across the creek, by means whereof the water overflowed' and covered the land ; and whereby the grass of the plaintiff was damnified and destroyed, and the soil of the said land injured and rendered unfit for use; and the plaintiff Iqst the profit, use and advantage of the land, and was prevented from tilling the same.
    The second count sets forth the possession of the plaintiff, and that the defendant intending to deprive him of the use and profit of the land, raised and erected a certain mill-dam across the creek, higher by one foot than the same had been before, by means whereof, the grass of the plaintiff had been damnified and destroyed, and the soil of the land greatly injured and unfit for use, and the plaintiff.hath lost the profit and advantage of the land, and has been prevented from tilling the same to his damage five hundred dollars.
    To this declaration the defendant pleaded, that he was not guilty, and the plaintiff filed the usual replication.
    The cause was tried at the Middlesex Circuit before the chief justice, and a verdict was found for the plaintiff for one hundred dollars. On the return of the postea the plaintiff moves for judgment, and insists, he is entitled to costs.
    
      Wood, for the plaintiff.
    
      J. S. Green, contra,
    said, It is incumbent on the plaintiff to make out this point. Costs are due by statute.
    *The act giving costs is to be found in Rev. Laws 168 ; and to the first section there is this proviso, that such costs are not to exceed the fees stated and allowed by law.
    Under this law, if the plaintiff recovered any amount, he was entitled to costs, and hence no doubt, many suits were brought in the Supreme Court for small amounts, to the great trouble of the court and at the great expense of the parties.
    In the year 1797, the legislature passed another law, Rev. Laws 309. The very title shews the object; to prevent suits under a certain sum being brought in the Supreme Court.
    The evil then was the bringing of suits in the Supreme Court.
    
      Sea. 1. The plaintiff must recover 200 dollars before he should be entitled to costs with but two exceptions. 1. When the title to land may come in question. 2. Cases removed by habeas corpus.
    It is insisted that the case now before the court, is within the exception, and that the plaintiff is entitled to costs.
    
      The act is to be so construed as to effect the object of the legislature. The plaintiff' is to shew that this case is within the exception.
    1. What is the meaning of the word title. This has been settled in the case in 6 Halst. 63.
    The title must not then have necessarily come in question here. Por I hold that the correct view of the subject is expressed in page 65 of 6 Halst.
    
    1. The pleadings do not shew it; the plaintiff merely sets forth his possession, complains of an injury to that possession, the grass, &c. — no title set up.
    2. Uothing in the evidence on the trial; and here the question is not what was offered, but what was essential for the plaintiff to offer, and the correct rule is laid down in page 67 of 6 Halst.
    
    Possession alone was necessary to be proved against a wrong doer, p. 70, Justice Drake.
    
    Deeds were offered by the plaintiff and defendant, but not necessarily; the defendant did not dispute the plaintiff’s title, or his right to the soil;. the defendant’s deeds were offered tó shew *that he had a right to erect a dam, not on plaintiff’s land, but his own.
    Plow is this court now to say that the title did come in question ? It does not- appear by the record ; it does not appear by the certificate of the judge who tried the cause; it must be at the trial of the cause, he must find and certify. Rev. Laws 666. This is the only way in which this court can take legal knowledge of this matter.
    Another view will show the plaintiff is not entitled to costs. This matter was cognizable before the court for the ¿rial of small causes. 6 Halst. 63, shows the jurisdiction of that court; and we find in the act constituting that court, in see. 43, p. 341, Rev. Laws, that the plaintiff is not entitled to costs unless he recovers more than 100 dollars. This is not only intended to protect this court but to save to that court its proper jurisdiction, and in this view, the case in 6 Halst. is a full authority.
   By the Court.

The plaintiff is entitled to costs. The defendant set up a right to overflow this land; and to prove it produced a succession of deeds, including all the lands which the waters drowned by a dam of a certain height. Under these deeds he claimed title to overflow as he had done; and it became a question whether he had overflowed according to the deeds or beyond them; the latter appearing to the jury to be the truth, they rendered a verdict against him. The title then was actually brought in question by the defendant. Though in this action title does not necessarily come in question, yet it may, by evidence of title given by the defendant under the general issue; and when it does, the fact may be ascertained by the oral or written certificate of the judge. Rev. Laws 666, sec. 1,-relates to the action of trespass only.  