Majority
p. 415Haff against Hutchinson. said, that the 2d proviso in the 4th section, 51 that nothing therein contained should extend to an action of
Headnote
Iu an action for a libel, brought in this court, the plaintiff is entitled to recover full costs, though his verdict be less than $¿0.Action for a libel, printed in a publick newspaper, and a verdict for the plaintiff of 7 dollars ; and the judgment was entered for full costs.
Swetland, moved to set aside this judgment,
so far as it was for costs ; and that a judgment for costs be entered for the defendant. He insisted that the provision in the 4th section of the act concerning costs, (1 R. L. 344,) “ that if in any personal action in this Court, the plaintiff shall not recover more than 50 dollars, he shall pay costs to the defendant,” applied to this case. He said, though an action for a libel is a personal action, yet it is not an action of slander, within the meaning of the 2d proviso in that section. In 2 Dunlap’s Pract. 712, it is said, that a recovery in a libel suit, unless it exceed 50 dollars, will not carry costs.
Foote, contra,
p. 416said the definition of a libel given oi$ the other side was too limited. It embraces not only written and printed scandal, but pictures, intended to ridicule another. The action for a libel is a personal action of trespass on the case, and as such, is within the jurisdiction of a justice. The 25 and 50 dollar acts contain an exception of slander merely, which, as I have already shewn, does not extend to a libel. A justice has cognizance of several actions, as difficult in their nature as an action for a libel.
slander,” was intended to embrace the recovery in a libel sti it Slander is a generic term, and clearly includes libel, which is written slander. The provision in the 6th section, that.in aG^ons for slanderous words, if the damages are assessed under 50 dollars, the plaintiff shall recover no more costs than damages, was not intended of slanderous writing, or libel. In the 4th section, the generic term is used; in the 6th, the specific term. The first includes libel-^-the last excludes it, and this leaves the first section of the act, which carries costs in all cases where any thing is recovered, to its effect upon this action, and the plaintiff is, therefore, entitled to full costs.
Swetland, in reply,
I think the word slander, as used iti the 2d proviso of the 4th section of the statute of costs, was intended to include libel.
Slanderous words are spoken of in the 6th section of this statute, as distinct from slander, which is excepted from the operation of the 4th section.
I have known several instances of actions for libels, with very trifling verdicts, in which the right to full costs was not drawn in question.
Motion denied.