
    JOSEPH P. HENRY v. E. THEODORE WALTON.
    A witness from a foreign county is entitled lo mileage on,his first attendance at court. The allowance of further- mileage is under the discretionary control of the court in which the action is pending.
    On motion to re-tax costs.
    A Circuit cause having gone off for the term upon the affidavit of the defendant upon the terms of payment of plaintiff’s costs, this motion is made to the court by the defendant to re-tax the bill of costs presented to him by the plaintiff.
    The facts are as follows: The cause had been upon the day •calendar for Thursday of a week during term, at which time the plaintiff was present, with certain witnesses from a foreign ■county. The cause not being reached on that day, plaintiff was again present with his witnesses on the following day. By agreement of counsel, the cause was then marked by the • court not to be moved before the succeeding Tuesday. On that day the plaintiff and his witnesses were in attendance. 'The defendant then presented an affidavit of his inability to procure a material witness, based upon information received since the cause was last before the court. The court deemed the affidavit sufficient, and ordered that the cause go off upon "the payment by the defendant of plaintiff’s costs. The bill of ■costs now under consideration was thereupon taxed by the ■counsel of the plaintiff.
    A question arises as to the construction to be given to the '“Act concerning fees and costs,” in so far as it applies to the mileage of witnesses from a foreign county. Rev., p. 408. The contention of the plaintiff is, that he is thereunder entitled to have a mileage allowance for attending court and ■returning taxed for each witness for each day of actual attendance upon court. The contention of the defendant is, that .•such allowance can be taxed but once for each witness, irrespective of the number of days he may have been in attendance upon court.
    I hereby refer the question above stated to the- Supreme •Oourt for its advisory opinion.
    C. G. Garrison, Judge.
    
    Argued at November Term, 1889.
    For the plaintiff, Alfred Hugg and H. A. Drake.
    
    .For the defendant, Grey & Grey.
    
   Pee Cueiam.

A witness from a foreign county is entitled to mileage on-his first attendance at court; whether he is entitled to more-than this depends on circumstances. He should be allowed further mileage if his going home and returning to court is-reasonable conduct on his part. The court in which the action is pending has the matter, to some degree at least, under its-discretionary control.

Let the Circuit be so advised.  