Amite County MsArchives Court.....Gayden, Vs. Bates 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 7:38 pm

Source: Reports Of Cases - Mississippi
Written: 1834

December Term 1825

GAYDEN AND WIFE vs. BATES AND WIFE.

In an action of slander, a verdict was rendered for one dollar damages and 
costs, after the passage of a law enacted subsequent to the commencement of 
the suit, but before the verdict, declaring that costs are not to be allowed 
in actions of slander, where the amount of the verdict for the plaintiff does 
not exceed ten dollars. The costs are recoverable, as the law must not be 
construed so as to give it a retrospective effect.

OPINION OF THE COURT — by THE HON. EDWARD TURNER.

This is a motion to quash a writ of fi fa, issued in this case, in the Amite 
Circuit Court, on a judgment obtained therein, for the damages and costs. The 
action is slander, and the verdict of the jury rendered at April Term, 1823 is 
in favor of the plaintiff for one dollar damages, besides costs. After 
verdict, the cause was referred to this court, on a motion to abate the suit; 
which motion was overruled, and judgment rendered in favor of the plaintiffs 
at December Term 1824. Whereupon the execution in question was issued on the 
22d March 1825, for the damages and costs of suit, including a bill of costs, 
which accrued in the supreme court on the reference aforesaid, amounting to 
thirty-five dollars, sixty-two and one half cents, returnable to the April 
term 1825, on which a levy was made and forthcoming bond taken, and returned 
with the execution to that term.

The defendants by their counsel then moved to quash the fi. fa. as to costs, 
on the following grounds, to wit: first, because the action was an action of 
slander, and the verdict was for plaintiff for one dollar only. Second; 
because the law allowed no costs in the supreme court, where the case was 
referred by the judge upon doubts, and the court doubting as to the law and 
rule of decision, referred this motion to the supreme court. The suit was 
commenced after the November term 1819, and previous to April term 1820. 
Afterwords, and whilst the suit was pending, the legislature passed the act of 
June 1822, establishing the circuit court, the 74th section of which provides 
for the recovery of costs generally, by the parties prevailing in the cause, 
and the law was so, previous to that time. But the act concerning the 
limitation of actions, Rev. code, p. 187, sec. 17 provides, that in all 
actions of assault and battery and slander, commenced and prosecuted in any 
court of law of this state, if the jury find for the plaintiff, under the sum 
of ten dollars, he shall not recover any costs. It is contended by the 
defendant's counsel, that according to the provisions of this statute, the 
plaintiffs are not entitled to any costs, that although by the law existing at 
the time of the commencement of the suit, a plaintiff, in a case like this, 
prevailing in his cause was entitled to costs, yet that the costs did not then 
constitute a vested right, and were subject to legislative control, at any 
time during the pendency of the suit, and that the language of the statute 
above recited, extended to causes then pending, as well as to those which 
might be afterwards commenced, and refers to a case found in the Massachusetts 
reports vol. II, page 340.

Having given to this case all the consideration which its novelty and 
importance require, we have been unable to find any principle, or any adjudged 
case, which will sustain the present motion on the first ground. It seems 
wrong in principle, that the law should authorise a recovery of costs at the 
time suit was commenced, and that whilst the suit is pending, that the law 
should be altered, so as to lessen the plaintiff's claim. Ex post facto laws 
are clearly void, and those having a retrospective effect are not to be 
favored. It cannot be denied, moreover, that the probable amount of costs had 
great influence with the jury in assessing the damages, for, by their verdict, 
as appears by the record, the jury find the defendant guilty, and assess the 
damages to one dollar and costs. Although the jury had nothing to do with the 
costs, yet having included them in their verdict, their intention is 
perceived, although the latter part of the verdict is surplusage.

The act of 1822 relied on by the defendant's counsel, is a general law 
enacted, not so much to alter the then existing law, as to provide a salutary 
general rule on this subject, and as the legislature was engaged in embodying 
and establishing a general system of statute law for our state. But if any 
reasonable doubt existed in relation to this point, by the phraseology of the 
act of 1822 above cited, we consider that the proviso found, in the 7th 
section of the act, declaring what laws of a public nature shall be 
incorporated in the revised code, and providing for the publication thereof, 
passed June the 30th 1822 at the same session of the above recited act, 
removes all doubt and furnishes the rule on which this matter must be decided. 
The proviso is in those words: "Provided that all rights which shall have 
accrued, and all remedies which shall have been commenced under former laws, 
shall be, and remain as though the said code had never been adopted. Rev. 
code, p. 8: see also the 8th section of the same act, and 2 Mass. Rep. 461.

We consider these provisions conclusive on this question, and that the 
plaintiff is entitled to his costs. As to the 2d reason for quashing the 
execution, it is not relied on. The statute gives no costs in the supreme 
court in a case referred by a circuit judge, on doubts as to the law.

Motion to quash the execution overruled.

Let an order be made that the supreme court costs, amounting to thirty-five 
dollars sixty-two and one half cents, be credited on the bond and execution.

Judges Hampton and Black concurred.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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