The opinion of the court was delivered by Justice Ford.

The defendant having set fire on his land, which spread to the land of the plaintiff, and injured and destroyed his timber, the latter, who was tenant by curtesy, brought an action of trespass, quare olausum fregit, in the Common Pleas. The defendant removed the suit into this court, where the plaintiff recovered judgment for $35, and now moves for allowance of full costs.

This action could not be maintained in the court for trial of small causes, because the injury is not to personal property lying on the land, or to the mere possession, but a permanent injury to, and destruction of, the freehold, and the title not only may, but must be shewn to enable the plaintiff to recover, (1 South. 113; 2 South. 507) and, therefore, the action was properly commenced in the Common Pleas, and had it continued there this verdict would have entitled the plaintiff to full, costs. But if the suit is removed by the defendant into this court, full costs are allowed by the statute, although the judgment should not exceed $200. Rev. Laws 309, sec. 1.

Allow full costs.