
    The town of Norwich against Hyde :
    IN ERROR.
    For tho support of a prisoner in gaol, committed in pursuance of a convic. tion of a crime or matter of delinquency, before a justice of the peace, tho town in which such conviction was had, is not liable.
    The costs of prosecution, for which such town may eventually be liable, include only the taxable costs.
    This was an action of assumpsit, brought originally before a justice of the peace, by Augustus Hyde, keeper of the county gaol in Norwich, against the town of Norwich, to recover for support furnished, by the plaintiff, to James Hazard and John Blake, prisoners in such gaol, from the 8th of October to the 27th of November, 1827. The declaration stated, That on the 8th of October 1827, in the town of Norwich, Hazard and Blake were severally tried for and convicted of a breach of the peace in.that town, before Asa Roath, Esq., a justice of the peace for New-London county, and were sentenced to pay á fine of seven dollars to the treasury of the town of Norwich, to pay also the costs of prosecution, taxed at 4 dollars, 45 cents, and be imprisoned in the common gaol for the term of one month ; that by virtue of warrants issued on these judgments, Hazard and Blake were, on the same day, committed to the county gaol in Norwich, of which the plaintiff was the keeper, and there remained, until the 27th of November following, when one of the select-men of Norwich took their notes, respectively, for the fines and tasked costs, and discharged them ; and that during this period, the plaintiff furnished them with necessary food, drink and washing, to the amount of 10 dollars ; of all which the defendants, on said 27th of November, and also on the 25th of December, 1827, liad notice. The cause was appealed to the county court, and was tried before that court, on the general issue, in June, 1828; when the plaintiff obtained a verdict for the amount of his claim. The defendants filed a motion in arrest for the insufficiency of the declaratioh ; which was overruled, by the court ; and judgment was rendered on the verdict, 
       The defendants then brought a writ of error in the superior court; which was reserved for the advice of this Court.
    
      J. W. Huntington, for the plaintiffs in error,
    contended, That a town in which a conviction for a public offence is had, is not liable for the subsequent support of the offender in gaol. At common law, a town is no more liable than any other civil corporation, for the support of paupers within its limits. If the town of Norwich is liable, in this case, it must be by express statutory provision. It cannot be liable for the support of these prisoners, by virtue of the general provisions of our poor laws ; for it does not appear, that either of them had a settlement in Norwich. If this town is liable at all, it must be by virtue of the 115th section of the act concerning crimes and punishments. Stat. 175. That section provides, that if, in case of the conviction of any person prosecuted for a crime, the costs of prosecution cannot be had out of his estate, such costs, if the trial be before a justice of the peace, shall be paid out of the treasury of the town wherein the prosecution is had. The case, then, is narrowed to the question, whether the “ necessary food, drink and washing,” furnished by the plaintiff, to these prisoners, were “ costs of prosecution,” within the meaning of the statute referred to. That they were not, is evident, First, from the terms used in the same section, which go to explain the terms in question. The proceeding intended by that expression is thus described : “ Every person who shall be informed against, complained of, indicted, or in any lawful manner prosecuted, for any crime or matter of delinquency.” The proceeding, in every variety of form here specified, terminates with the rendering of final judgment. The last clause “in any lawfful manner prosecuted,” is evidently meant to extend as far as, and no farther than, the previous expressions.
    
      Secondly, the costs of prosecution intended by this statute, are such as the justice may draw for immediately after the trial; and he can draw for none, except such as lie may draw for immediately. This excludes any costs subsequent to the deter-urination of the prosecution.
    Thirdly, from the use of the expression “ costs of prosecution” in the statute concerning work-houses, (Stat. 481. tit. 109. s 5.) where it is used in contradistinction from the support of the prisoner. “ The earnings of any prisoner more than sufficient to pay for his support and the costs of prosecution against him,” &c.
    Fourthly, from the provision in the 114th section of the act concerning crimes, (p. 175.) that the expense of “doing exe- “ cution, shall be taxed as a part of the costs against the delinquent.” This provision would be unnecessary, if the costs of prosecution extended beyond the judgment.
    Fifthly, from the consideration that in the statute concerning gaols, (p. 252. s. 9.) special provision is made for subjecting the prisoner to the expenses of commitment and support. This provision also would be unnecessary, if the costs of prosecution included such expenses.
    Sixthly, from the regulations regarding work-houses. By the 6th section of the principal statute (p.481.s. 6.) persons committed to work-houses are to be taken care of, at the expense of the town where-they belong. By an act passed in .1823, on convictions of theft and breaches of the peace, a justice is authorized, at his discretion, to sentence the delinquent to the work-house of the town in which the conviction was had.
    Now, upon the plaintiff’s construction, if the delinquent is sentenced to imprisonment in the county gaol, the town in which the conviction was had, is liable for his support; if to a workhouse, or to the gaol as a work-house, the town to which he be- • longs. Did the legislature intend to make such a distinction; and to leave it to the discretion of the justice, whether the burden of support shall fall on his own town or another ?
    Lastly, from the general acceptation of the terms — costs of prosecution. These, in relation to a criminal proceeding are precisely equivalent to costs of suit in a civil cause. In neither case, have they ever been understood to include expenses subsequent to the judgment and execution. Why should the words be wrested from their ordinary signification ?
    If it. be asked, who is to pay this expense, if the town where the conviction was had is not hable; we answer, in the first . , , , . ’ , , place, that we are not to be subjected, merely because no one else can be. But, in the next place, it is reasonable to presume, that the state, by whose direction the expense was incurred, will provide for its reimbursement.
    
      H. Strong, contra,
    after premising, that the gaoler is bound by law to furnish support to delinquents committed on criminal prosecutions, and is not to be regarded as a volunteer in so doing, as in case of commitments on civil process, insisted, 1. That the convictions in this case having been had in the town of Norwich, and the fine being payable to that town, it is liable to pay the costs arising upon the prosecution. Stat. 175. tit. 22. s. 115. A different form of expression is subsequently used, viz. “ costs of prosecution but this refers to the former, and evidently means the same thing.
    2. That the expression costs arising upon the prosecution, as here used and with reference to this subject, includes the support of the delinquent after conviction. Tyler v. Brooklyn, 5 Conn. Rep. 185,G. Such support is a necessary expense arising upon the prosecution. It. requires no strained construction to bring it within the very terms of the statute. It is certainly within its spirit. Ex concessis, the board of the prisoner down to the time of judgment rendered, is to be paid for out of the town treasury, as this expense is included in the bill of costs taxed; but why should the prisoner’s support before and after judgment, an expense arising upon the same prosecution, be paid from different funds? Indeed, if the town in which the conviction was had, and into whose treasury the fine goes, is not to pay, it may well be asked, who is ? No other town or other corporation is liable. Is the gaoler, acting in the faithful discharge of his duty, to be remediless ?
    The counsel, in conclusion, relied much on the practical construction of the statute ; insisting, that it had been a long continued and general practice for the gaoler to obtain satisfaction for the prisoner’s support after conviction, out of the treasury of the town in which the conviction was had.
    
      
      
         There was also a bill of exceptions filed to the charge of the court, the object of which was, to bring up the question, whether the plaintiff, if entitled to recover at all, was not limited to the sum of one dollar per week for the support of each prisoner ; but the ultimate decision in the case having superseded this question, the statement necessary to present it, is omitted.
    
   Williams, J.

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 fine 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 very 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-terwards ; 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 shall 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.  