In this case after the verdict the plaintiff The American Car Company filed a motion in the trial court to have the fees and expenses of its non-resident witnesses taxed in the costs to follow the judgment. The trial justice, Mr. Justice COLE, in granting the motion delivered the following opinion:

This is a motion to tax as costs in the case, recoverable by plaintiff against the defendant, fees and expenses of witnesses from St. Louis to Washington and return, and expenses of maintenance while here and fees and expenses of another witness while detained here as such.

The motion involves the determination of questions not heretofore decided by this court, either at special or general term, so far as I have been able to learn, though kindred questions relating to recoverable costs of another character have been decided at special term.

The first point to be determined is what, if any, statute upon the subject is in force in this District.

Section 880 of the Revised Statutes of the United States relating to the District of Columbia provides that "Witnesses are entitled to the same compensation as received for their attendance in the circuit courts of the District prior to July 7, 1838."

The statute in force prior to the last-mentioned date is the act of February 28, 1799, 1 Stat. 624, in the sixth section whereof it is provided that a witness shall be entitled to receive "for each day he shall attend in court one dollar and twenty-five cents, and for travelling at the rate of five cents per mile from their respective places of abode to the place where the court is holden, and the like allowance for returning." While only the word "attendance" is used in Section 880 above referred to, the proper construction of that section seems to be that it refers to the act of February 28, 1799, as the law providing for and defining all the taxable costs of a witness.

Section 848 of the Revised Statutes of the United States,

which was Section 3 of the act of February 26, 1853, provides for the payment of witness' fees in courts of the United States in substantially the same language contained in the sixth section of the act of February 28, 1799, above referred to, and the compensation provided for by each law is the same, except that Section 848 of the Revised Statutes fixes the per diem at one dollar and fifty cents, while the act of 1799 provides one dollar and twenty-five cents. Both statutes allow mileage, and at the same rate.

Therefore, which one of these statutes is to be followed in the taxation of witnesses' costs is immaterial except as to the inconsiderable item of twenty-five cents per day. It may be remarked, however, that under previous rulings of some of the judges of this court it might be properly held that Section 848 of the General Statutes is in force in this District.

In two separate cases-one decided by Justice Cox and the other by Justice JAMES, in neither of which was there a written opinion-it was held that Section 903 of the Revised Statutes of the District, fixing the fees of attorneys and solicitors to be taxed in the costs in favor of the prevailing party at five dollars in law cases and ten dollars in chancery cases, was superseded by Section 824 of the General Revised Statutes, taken from the act of 1853, fixing such fees at higher rates. See Wash. Law Rep., Vol. 14, p. 490.

If these rulings are correct there would seem to be no reason why they do not apply to the statutes under consideration, especially as Sections 824 and 848 relate to the same general subject of taxable fees or costs and are embraced in the same chapter; but as this question has not been argued in this case and would make but a slight difference in the amount to be taxed, whichever way it might be determined, I have not decided it except pro forma, but will follow the unvarying practice and direct the per diem to be taxed at $1.25 under the act of 1799. Undoubtedly one or the other of those statutes is in force in this District;

and as it is immaterial which, as affecting the questions argued before me, I adopt the one last referred to as being the one recognized by the court and bar up to this time as fixing the per diem at $1.25.

The important questions presented by the motion and arguments are:

First. What, if any, fees or expenses of witnesses other than the per diem can be taxed in the costs in favor of the prevailing party so as to make it a part of the judgment and collectible by execution?

Second. If any such fees or expenses other than the per diem are so taxable, under what circumstances may they be allowed?

The plaintiff claims the right to have taxed the actual necessary traveling and living expenses of the necessary witnesses from the time they left their homes at St. Louis until their return there, including their reasonable hotel bills while necessarily detained in Washington in attendance upon the trial; or, if not that, then mileage from St. Louis to Washington and return, at the rate of five cents per mile each way. The defendant contests the right to either.

The right to costs being of statutory and not of common law origin, it follows that where a statute prescribes certain allowances as "compensation" to a witness for attending a trial, all allowances not therein specified are by implication excluded as effectually as if the statute stated in express terms that no other or different allowances should be made. The actual traveling and living expenses of a witness not being provided for in the statute cannot be allowed. The five cents per mile for travel each way is intended to cover these expenses, and, whether it does or not, the court has no authority to allow anything more except the per diem for attendance in court. There is no doubt, however, that in a proper case the prevailing party is entitled to have taxed in the costs the mileage of witnesses specified in the statute.

It is contended by the defendant's counsel in this case, however, that it cannot be allowed because the witnesses were not summoned and lived at a greater distance than one hundred miles from the place of trial, and that, therefore, their depositions might have been taken.

Upon the first question, whether it is necessary that a witness shall be summoned in order to entitle him to mileage, the authorities are somewhat in conflict, but in the recent case of United States v. Sanborn, 28 Fed. Rep. 299, Mr. Justice Gray reviewed all the more important cases and held that the better opinion is, that where a witness attends at the request of a party for whom he testifies, and travels from his place of residence to the place of trial for the sole purpose of testifying, he is entitled to mileage the same as if he had attended in obedience to a subpoena or summons regularly served. That opinion is a construction of Section 848 of the Revised Statutes, but the language of that section in all particulars material to the question of mileage is substantially the same as the sixth section of the act of February, 1799. The learned justice allowed mileage in that case although the witness lived at a greater distance from the place of trial than one hundred miles and was not summoned. While that case is not binding upon this court, the reasons for the ruling seem so cogent that it ought to be followed.

The same rule was held in the old Circuit Court of this District in two reported cases, which was a construction of the very act now under consideration. United States v. Williams and Ray, 1 Cranch C. C. 178; Pawler v. Semmes, 1 Cranch C. C. 247.

The objection that mileage cannot be allowed because the witnesses in this case resided at a greater distance than one hundred miles from the place of trial and that their depositions should have been taken as authorized by Section 863 of the Revised Statutes, was also decided by Mr. Justice Gray in the case of United States v. Sanborn, supra, following the

construction given a statute by Mr. Justice Story, holding that it was optional with the party to take the deposition or procure the personal attendance of the witness, and that in many cases the presence of the witness before the court and jury was so important to a fair trial of the issue that it would be a hardship upon the party to deny the right of mileage where the presence of the witness seemed material or proper. Undoubtedly, as shown by the opinions last above referred to, the court has a discretion in this particular, and ought and would not permit a party to unnecessarily swell the costs by bringing from a distance witnesses whose testimony could as well be presented by deposition. Of course the proper exercise of this discretion depends upon the nature of the issue to be tried and the scope and nature of the evidence given by the witness. In this case the main issue was what amount of recoupment, if any, was the defendant entitled to by the alleged failure of the plaintiff to manufacture the cars, the price of which the action was brought to recover, in accordance with the contract between the parties. The witnesses from St. Louis were the men who had charge of the manufacture of the cars, and it was impossible for the plaintiff to have anticipated the defendant's proof upon these points and rebut it by depositions taken before the trial, nor was there any unnecessary multiplication of witnesses upon a single point. While each of the St. Louis witnesses gave evidence upon the same question to a certain extent, it is also true that each had a more definite and certain knowledge upon some one or more material points than the others. The court should always carefully guard against the improper enhancement of costs by the production of unnecessary witnesses, or by the personal attendance of witnesses where their depositions would as well serve the purpose of the party; but it is not contended in this case that there was any unnecessary multiplication of witnesses or that their depositions would have served the same purpose as their personal attendance at the trial.

5 Ct. App.-34