#### The Peoria and Bureau Valley Railroad Company, Appellants, v. Thomas Bryant, Appellee.

APPEAL EROM PEORIA.

The successful party to a suit in the circuit court is not allowed to recover the fees of more than four witnesses, unless the court shall certify that a greater number was really necessary.

The proceedings in this case were had before Onslow Peters, Judge, at March term, 1854, of the Peoria Circuit Court.

The railroad company instituted proceedings under chapter 92 of the Revised Statutes, to procure the right of way over the land of Bryant. An assessment was made, from which Bryant took an appeal to the circuit court. The company dismissed the proceeding in the circuit court, and Bryant had judgment for costs. The clerk in taxing costs, taxed the costs of sixteen witnesses in favor of Bryant and against the company.

From this taxation the company appealed to the circuit court, and moved the court to retax the costs, so that Bryant should only be allowed for four witnesses, there not being a certificate that any greater number of witnesses was necessary.

The circuit court overruled the motion, and directed execution to issue for the whole bill as taxed by the clerk. This ruling of the court is assigned for error.

N. H. Purple, for appellants.

Manning and Merriman, for appellee.

Treat, C. J.

The Peoria and Bureau Valley Railroad Company instituted proceedings to procure the right of way over the land of Bryant. The damages were assessed, and Bryant appealed to the circuit court. In that court the corporation dismissed the proceeding, and judgment was entered in favor of Bryant for costs. The court made no certificate as to the number of witnesses necessary on the part of Bryant. The clerk taxed the corporation with the fees of sixteen witnesses summoned by Bryant. The corporation then applied to the court to retax the costs, so that Bryant should only be allowed for four witnesses. The court overruled the motion, and *439directed execution to issue for the amount of the costs taxed by the clerk.

The corporation pursued the proper course, to review the action of the clerk. Miller v. Adams, 4 Scam. 195. Sec. 12, ch. 26, R. S., reads: “ In no case in the circuit court shall the fees of more than four witnesses be taxed against the party against whom judgment shall be given for costs, unless the court shall certify on their minutes, that more than four witnesses were really necessary; in which case the clerk shall tax the costs of as many witnesses as the court shall so certify.” This provision is conclusive of the case. The successful party to a suit in the circuit court is not allowed to recover the fees of more than four witnesses, unless the court shall certify that a greater number was really necessary. The court made no such certificate in this case, and the clerk had no authority to charge the corporation with the fees of more than four of Bryant’s witnesses. If Bryant claimed to recover for more than that number of witnesses, he should have obtained the requisite certificate from the court. Such a certificate would have justified the taxation of costs by the clerk. Sec. 13, ch. 26, R. S. does not sustain the decision of the circuit court. It simply provides that where a suit is dismissed, the defendant shall have judgment for his costs. But to entitle himself to the fees of more than four witnesses, he must obtain a certificate under the preceding section. The court clearly erred in not sustaining the application for a retaxation of the costs.

The order refusing the application must be reversed, and the cause remanded.

Judgment reversed.