the opinion of the Court was filed by
Paxson, J.:The act of 27th March, 1713, 1 Smith’s L., 76, provides that in actions on the case for slanderous words, if the jury shall find the damages under forty shillings, the plaintiff shall recover no more costs than damages. It has been held, however, that juries and arbitrators are not bound by this act, but may give full costs though the damages found be under forty shillings. Our statute pursues the words of the English statutes of 21 Jac. 1, C., 16, under which it was held that the jury may disregard the statute, and give full costs without regard to the amount of damages. The English rule was followed in Stuart v. Harkins, 3 Binney, 321, and has been uniformly recognized as the law by this court since.. In that case, however, it was held that an award of one dollar damages and costs would not carry full costs. In the analogous case of Hinds v. Knox, 4 S. & R., 417 the jury found six cents’ damages, and all costs of suit, held to carry full costs. So in Moon v. Long, 2 Jones, 207, which was an action of slander, the jury gave one dollar damages, “ and that defendant pay the costs,” and it was held that the words “the costs” carried full costs. These cases were decided upon the ground that the award upon its face sufficiently indicated that the arbitrators intended to give full costs. In the case in hand, the award was in favor of the plaintiff for six cents’ damages and costs. Under the authorities, this award would not carry full costs. This was conceded by the learned judge below, but upon a rule upon the plaintiff entered some time after the award, to show cause why judgment should not be entered for no more costs than damages, he discharged the rule, and gave the plaintiff full costs. It is to this rub ing that error has been assigned in this court. The learned judge reached this conclusion by matters dehors the record. The depositions of the arbitrators were taken, showing that they intended to give full costs. These depositions are no part of the record. .Had the award been re*452committed to the arbitrators, and amended so as to give full costs, there would have been no difficulty. But there was no action by the arbitrators as such. Their award could only be amended by themselves, acting in their official character as arbitrators, upon a recommittal of it to them by the court. The discharge of the rule was not, as the learned judge supposed, the equivalent of amending the award. While his conclusion may have been entirely correct if it had been reached in an orderly way, the vice of it consists in the fact that his mode of proceeding leaves nothing upon the record to sustain him.
The judgment is reversed, and it is ordered that judgment for costs be entered for six cents only.