dissenting [omitting his statement of the case, which has been given supra~\. Costs are purely statutory. As a rule, no one can recover them unless he can lay his finger upon the law which authorizes it. This applies with special force where the parties concerned are unable to pay costs, or. have left the country, and it is sought to charge the State or the county with the costs. Section 172, General Statutes, provides as follows: “Fees for the actual collection of taxes only shall be allowed, and no costs or expenses shall be paid by the county or the State on any execution issued or hereafter to be issued, and returned nulla bona.” Afterwards, in 1884 (18 Stat., 736), the legislature passed an act, which declares “that in no case when there shall have been, or shall hereafter be, entry of judgment or issuing of execution in the Courts of General Sessions, by the clerk thereof, against defendants in said courts for fines, fees, or costs taxed and due upon the prosecution of said defendants, shall nulla bona costs be paid to the clerk or sheriff therein by the county commissioners or county treasurer, in which such judgments may have been or shall hereafter be entered,” &c. In 1887 (19 Stat., 882), the legislature passed another act in relation *562to the “collection of taxes,” which authorized the county treasurer to issue “a warrant or execution” against a defaulting tax payer, including school, county, and special taxes, under which the sheriff was directed to sell the property of the- defaulter, taking “from such defaulter” certain specified costs for his services, but making no provision whatever for any costs which could not be made out of “such defaulter.”
It seems therefore clear that, up to this time (1887), the “warrant or execution” issued by the treasurer to collect taxes, including taxes of all kinds due by the defaulter, whether for land, personal property, or his poll. They were- all embraced in the same “execution,” and were collected at the same time and in the same manner. But in February, 1889, the comptroller general issued his circular, above cited, requiring the delinquent polls to be placed in the hands of a trial justice, to proceed against the defaulter as for a misdemeanor. Under this authority, and in conformity with the act upon the subject, the warrants were issued, which the sheriff returned “non est inventus and the question now is, whether the county is liable for the sheriff’s costs in making “searches” for the parties and returns that they could not be found.
It is urged that section 172 of the General Statutes (cited above), which disallows nulla bona costs in collecting taxes, was only intended to apply to “executions” for the recovery of taxes on property. If we assume that it refers expressly to “executions,” we do not think it follows that poll taxes were thereby excepted. On the contrary, at the time the act was passed, those “executions” referred to included and enforced payment of poll taxes, as well as of property taxes. No discrimination was made as to the poll tax element in them; and we are at a loss to find any authority for the view taken that the act was intended only t'o apply to a property tax.
It is, however, further contended that, by issuing warrants against parties charged with a simple poll, the proceeding was changed from one civil in character to a criminal proceeding, and therefore the county commissioners were hound to pay for the services rendered by the sheriff, as in other criminal eases, where costs are not collected from the defendants. The change made *563in the form of the proceeding was not by authority of a permanent law, but in the annual act to raise supplies; and we incline to think that in its new form — given for a year only — it was still substantially a proceeding for the collection of poll taxes. But if we assume that by the change of form it became a regular criminal proceeding, we do not see how the respondent can escape the force and effect of the act of 1884, above cited, which expressly declares that neither the county commissioners nor the county treasurer shall pay to the clerk or sheriff any nulla bona costs in the Court of General Sessions, when the defendant is charged and the costs taxed against him, but he is unable to pay the same. It seems to me that the case is much stronger where, the defendants being out of the county, the return is “non est inventus.” The question is not whether the sheriff should be deprived of compensation for his services, but whether under the law — especially the act of 1884 — the county is chargeable therewith.
Judgment affirmed.