This being an action of tort for injury done to real estate, and some damages having been recovered, had *377nothing else appeared, this would have warranted a taxation of full costs. But in the progress of the trial, the judge held, that, on the case proved by the plaintiffs, trespass quare clausum fregit would not lie. On this, the defendants would have been entitled to claim a verdict and judgment. It was not competent for the plaintiffs, on this count, to go for personal injury to the wife only, as the substantive cause of action. Eames v. Prentice, 8 Cush. 337. But the court had authority to permit an amendment, by striking out the averment of a breach of the plaintiffs’ close, and allowing the plaintiffs to go for the personal injury to the wife. St. 1852, c. 312, §§ 32, 33. If the plaintiffs elected to go on, under this permission, without actually amending, they can stand on no better footing than if they had actually amended and converted the case into an action for personal injury; and it not appearing that, in that form, any question of title to real estate did in fact come in question, the plaintiffs could recover no more than one quarter costs.
It is competent for the judge to,insert a statement in the record,which i:- necessary to the decision of any question which may afterwards arise, on appeal, or in any other stage of the cause. Holmes v. Leland, 1 Gray, 625. This becomes of great importance since the new practice act, under which the pleadings are too brief to present many questions actually raised and decided. Exceptions overruled.