The question arising upon this record, is simply, whether the town of Norwich is liable to the gaoler for the support of a person not an inhabitant, — who has been convicted of a breach of the peace in that town, and ordered to pay a *533fine to the treasury of the town of Norwich, and finally discharged by one of the select-men of the town of Norwich.
The support of the poor in every community must be by voluntary aid, or under positive enactments of the legislature. A town, a"s such, is under no more obligation ' to support (he poor in it, than a county, or parish, or school district. That it is right aud proper, that those who reside in the vicinity, and may be supposed to be best acquainted with the wants of the poor, and can most readily supply them, should by law be designated for that purpose, I am not disposed to question.
The duty, however, so far as it is a legal one, must depend upon the statute provisions. And the enquiry is — -is the town oiNorwich liable, by virtue of any statute 1
It has not been contended, that the town is liable under the general law regarding paupers ; — nor can such a claim be supported, particularly, when no notice has been given to the select-men, that such a person required support. But it is said, that the town of Norwich ought to furnish the support, because the fine goes to that town, and because they are expressly made liable to the costs of prosecution.
As to the first, it cannot, of itself be a reason, why the town should pay the support of the prisoner, any more than that the county should support a prisoner, w'hen the fine goes into the county treasury. Indeed, this is not claimed tobe conclusive ; but this is drawn in to aid the argument that it was the intention of the legislature.
The act relied on is the 115th sect, of the statute concerning crimes and punishments; (p. 175.) by which it is enacted, that he who is convicted of any crime, “ shall pay all the necessary costs arising upon such prosecution before he shall be discharged ; but if the costs of prosecution cannot be obtained out of his estate, such costs, if the prosecution be in the county or superior court, shall be paid out of the state treasury, — - and, if before a justice of the peace, out of the treasury of the towm where the trial wms had.” And the question,now to be decided, is, whether the support in prison after conviction, is a part of the costs of prosecution.
It is believed, that the words “ all the necessary costs arising upon such prosecution,” must be construed to mean the same as the costs of prosecution; because provision had been made in another statute, that criminals should pay for their support in prison ; (Stat. tit. Gaols, sect. 9. p. 252.) and because the *534very next sentence (which it is claimed subjects the town) speaks only of the costs of prosecution. The town is ¡subjected only to pay the costs of prosecution .* what, then, is- in-eluded in that phrase ? The terras costs of stiit and costs of prosecution have a known technical meaning, as well understood by lawyers as the term suit or prosecution. The expression does not mean all the expenses incurred ; bui-it means the expenses pending the suit, as allowed or taxed by the court. Lord Coke says, costs are expensae lites, and shall be allowed for expense s p end ing the suit. Pelford’s case, 10 Co. 117. Even the officer’s fees on execution or warrant, are not included in the costs, properly so called; — but the officer is directed to levy to satisfy damages and costs and his oum fees. And in the 114th sect, of the same statute regarding crimes and punishments, a special provision exists, — that reasonable satisfaction shall be made to the officer, as the court or justice shall allow, and shall be taxed as part of the costs, and shall be paid as provided by lawr for the payment of other charges of prosecution. But this provision would have been entirely unnecessary, if this was part of the costs of prosecution.
In the 5th sect, of the act concerning "work-houses, (p. 481.) persons committed, if unable to support themselves, must be provided for, at the expense of the town where they belong. And for certain offences justices have a right, at their discretion, to commit to the work-house or gaol. (Stat. vol. 2.p. 30.) It certainly would be very strange, if a person, for the same offence, and tried by the s -me court, should be required to be supported by the town where he belonged, or by the town where he was tried, according to the discretion of the justice who tried the cause. Besides, under the old law, all our gaols were, or might be, work-houses. Under that law, then, (according to the claim of the gaoler) if one was convicted and sent to the gaol as a work-house, or house of correction, he must be supported by the town to which he belonged ; but if sent generally^ to the same place, as a gaol, he must be supported by the town where the conviction was had. Such a construction cannot be adopted.
Further, by the statute under which the claim is made, the justice may draw on the town treasury, immediately after the prosecution is determined, for the amount of such costs. It would seem, that the legislature could have had in view only the costs before conviction, and not costs or expenses arising af-*535terwards ; for the justice is authorized to draw but once, and that immediately, and then for the costs of prosecution. They have here made no provision for costs or expenses arising af-terwards ; nor is the court informed of any usage, that will authorize the construction contended for.
It is said, indeed, that when similar language is used, the superior and county courts allow and tax support, and draw on the state treasury therefor. Tin's is true : and the practice is easily accounted for. All agree, that it is the duty of the gaoler, by law, to provide support for criminals or delinquents, who cannot provide for themselves. And if the state has imposed this as a duty upon one of their officers, it would be derogatory to their honour, to suppose, that they would not reimburse him for this service, if they have provided no other means of payment for him. Accordingly, in convictions by the county and superior courts, no question has arisen. It has been conceded, that the man who was employed, by the state, to furnish their support, should be paid by them. But how should the amount of his claim be ascertained ? The comptroller and treasurer were often in a distant part of the state, and had no means of ascertaining the amount of claim, except by the party, or from the court. A certificate, therefore, from the court who convicted, or an order for this purpose, was the best evidence these officers could have ; and I apprehend, this practice has thus arisen. But the practice cannot authorize a justice of the peace to draw on the town treasury in the same manner, unless it is first proved, that the town are liable; which is the very point in dispute.
But it is said, that we have the authority of the Chief Justice, in the case of Tyler v. Brooklyn, 5 Conn. Rep. 185. It might be enough to say, that in that case, this point was not before the court; as the suit was not against the town where the conviction was had. It is, therefore, an opinion which, could not be binding on this court. But it ought further to be remarked, that the Chief Justice does not mean to give an opinion upon that point. He suggests, indeed, that perhaps it would not be too liberal a construction of the statute ; and that he is inclined to the opinion ; but lest it should be claimed as an authority, he says further, “ upon this subject I would not decisively speak.” Under these circumstances, there is no reason why the court should not give to the statute its proper construction.
It is asked, however, if Nonvichis not liable, who is? where *536shall we go ? The gaoler is entitled to a reimbursement. I answer, if the legislature have not pointed out a place for him to receive his money, it is not for the court to do it. Rut it they have imposed upon him a burthen, it is not tobe believed, that upon suitable application, they will refuse a recompense.
I am, therefore, of opinion, that the superior court be advised, that there is error in the judgment complained of.
The other Judges were of the same opinion.Judgment to be reversed.