Trespass' quare clausum commenced in the Circuit Court against, several defendants, who pleaded not guilty. Two were found guilty, and the others not guilty. The jury assessed the plaintiff’s damages at twenty-five, cents, for which there was final judgment against the defendants found guilty; and for full costs. It,appears by a bill of exceptions that the title to real estate was not brought in question on the trial of the cause.
The judgment for full costs is erroneous. It is provided by statute, that in actions commenced in the Circuit Court for tort, (except those for slander, malicious prosecution, and trespass when the title to real estate -is brought in question,) in which the plaintiff shall not recover five dollars in damages, he shall not1 recover more costs than damages; R. S. 1838, p. 461. ■ /.
That part of the judgment which respects the damages is affirmed, and that part giving full costs is re