Opinion
(December Term, 1859.)
There is no authority under the statute, Rev. Code, ch. 31 sec. 78, where the plaintiff in slander, etc., recover less than $4, for the defendant to recover any of his costs from the plaintiff.
MOTION before Shepherd, J., at Fall Term, 1859, of JOHNSTON, to tax certain costs against the plaintiff.
S. H. Rogers and Geo. v. Strong for plaintiff.
No counsel for defendant.
The facts of the case are as follows: In a suit for slander the plaintiff recovered of the defendant 5 cents in damages, and thereupon the court gave judgment that the plaintiff recover against defendant the damages aforesaid, and 5 cents in cost to be taxed by the clerk. The defendant then moved to tax the plaintiff with his (defendant's) costs, which motion was disallowed, and thereupon the defendant appealed.
The recovery of costs by a party to a lawsuit is by virtue of statute law. Such recovery must be in conformity to some express provision, or not at all, and the answer, therefore, to the motion of the defendant is that there is no warrant for it in The Code. Chapter 31, sec. 75, of the Revised Code provides: "That in all actions whatsoever the party in whose favor judgment shall be given, or in case of nonsuit, dismission, discontinuance or stay of judgment, the defendant shall be entitled to full costs, unless where it is or may be otherwise directed by statute."
Under this provision the plaintiff who establishes his right to recover, however small the amount, establishes at the same time his right to full costs. This is the general rule; but section 78 of the same chapter provides "that in actions on the case for slanderous words, and in actions for assault and battery, if the jury, upon the trial of the issue or inquiry of damages, do assess the same under $4, the plaintiff shall only. recover as much costs as damages." Considering these express (125) provisions of law in connection with the general principle above stated, it must appear perfectly plain that no costs can be recovered in the case before us, except 5 cents by the plaintiff. The plaintiff recovers no more because he is cut with that by the law. The defendant recovers none, because none is given him. Thus the law punishes each party by subjecting each to the payment of his own costs — the one for having slandered his neighbor, the other for having brought a frivolous suit.
PER CURIAM. Affirmed.