¶1delivered the opinion of the court
¶2. A proper disposition of this cause requires an examination of the defendant’s objections to the items claimed as •disbursements, and whether such items were properly •taxable. The items of plaintiff’s cost bilLare as follows in -fhe circuit court;»
¶4Clerk’s fees...-.— ÍO O CD
¶5Sheriffs fees... CO O CO
¶6Attorney’s fees.... ÜT O O
¶7Officers’ fees in the trial of said canse in said justice’s court as follows:
¶8Justice's fees_____ r>
¶9Sheriff’s fees-----zo bO
¶10Witness fees as follows in the trial of said cause in said circuit court:
¶11W. F. Boothby, one day, two miles__ bO co
¶12Harry Gibson, one day, two miles.. tO to
¶13Harry Singleton, one day, two miles. bO to
¶14W. H. Byrd, one day, two miles.. bO bo
¶15Witness fees in trial of said cause in said justice’s court for Salem precinct as follows;
¶16W. H. Byrd, one day, two miles... r] -a
¶17Henry Rogers, one day, two miles__ rl
¶18W. F. Boothby, one day, two miles-H <r
¶19Harry Gibson, one day, two miles... rl ki
¶20Total.....§75 65
¶21The defendant objected to the allowance of plaintiff’s claim for mileage and attendance of witnesses in circuit court as follows: Harry Gibson, one day, two miles, §2.20; Harry Singleton, .one day, two miles, §2.20; W. H. Byrd, one day, two miles, §2,20; because said Gibson and Singleton and Byrd were not necessary or material witnesses in said action, and as to said Byrd and Singleton, for the further reason that they were not sworn as witnesses in said circuit court. The defendant also objected to the allowance of plaintiff’s claim for mileage and attendance of witnesses on justice’s court as follows: W. H. Byrd, one day, two miles, §1.70; Henry Rogers, one day, two miles, §1,70; Harry Gibson, one day, two miles, §1.70, because said Byrd, Gibson and Rogers were not necessary or material witnesses in said action, and as to said Rogers, *88for the further reason that he was not sworn as a witness at the trial of said action in the justice’s court.
¶22The plaintiff essayed to meet defendant’s objections to the claim for the witness Rogers by the following' statement in his amended verified statements: “Plaintiff alleges that the witness, Rogers, was necessary and material in the trial of said cause in the justice’s court, for the reason that the defendant, by his answer, raised the issue as to whether or not said plaintiff performed the work sued for by plaintiff, and said Rogers was a material witness to show that plaintiff did superintend said work and labor on said drug store building, but he was not sworn for the reason that defendant, on the trial of said cause in said justice’s court, admitted that plaintiff did said work and labor as alleged.”
¶23Opposed to the defendant’s objections to the other witness fees, both in j astice’s and circuit courts, the amended verified statement of plaintiff contains the following: 1 ‘ The witnesses W. H. Byrd and Harry Gibson were necessary and material witnesses on the trial of said cause in said justice’s court for the reason that the defendant made the defense therein in such trial, that the account sued for by plaintiff was assumed by said' Harry Gibson and Harry Singleton, and that plaintiff was to look to them for his money; that this defense by defendant rendered it absolutely necessary to call said Harry Gibson and W. H. Byrd to dispute the same, which they did in said justice’s court. That Harry Gibson, Harry Singleton, and W. H. Byrd were necessary and material in the trial of said cause on appeal in the said circuit court, for the reason it was necessary to have such witnesses subpoenaed on the trial of said cause in said circuit court; and plaintiff paid said witnesses their fees in advance by the said sheriff; that the defendant never notified plaintiff that he would abandon said defense relied on in said justice’s court; that said witnesses were not sworn for the reason that defendant abandoned such defense in the circuit court, and said plaintiff had every reason to believe that defendant would *89attempt the same defense in the circuit court, which would render said witnesses necessary. The defendant attempted by such defense in said justice’s court to show his non-liability to plaintiff, and by these witnesses plaintiff could show that the account had not been transferred to or assumed by said Gibson and Singleton, and that said plaintiff had no knowledge of any such transfer or assumption of said account sued on.”
¶24The clerk of the circuit court overruled defendant’s objections to the various witness fees, not because the witnesses were shown to be material in the prosecution of the action, but because, as he puts it in his allowance, “they were regularly subpoenaed and paid for their attendance. ” The sheriff charged $19.80 for his fees in the circuit court and the defendant objected to the entire amount except the following items:
¶25Serving notice of appeal....$ 25
¶26Making and delivering copy of notice of appeal. 40
¶27Mileage, serving notice of appeal, two miles. 20
¶28Serving subpoena on W. F. Boothby.. 25
¶29Making and delivering copy of subpoena. 10
¶30Mileage, serving same two miles... 20
¶31Amount...__$1 40
¶32The sheriff charged $6.25 for his fees in justice’s court, and defendant objected to . all of that sum except the following, which are taken from the schedule of constable’s fees established by law, as the service could have been performed by a constable and is paid for by constable’s fees:
¶33Serving justice’s summons...§ 50
¶34Mileage on same, two miles. — . 20
¶35Attending court_ 50
¶36Serving subpoena on W. F. Boothby__ 50
¶37Mileage on same..... 20
¶38Amount_,_$1 90
¶39*90The appellant claims that these are the only services performed by the sheriff in either court for which he is permitted to make any charge, and that the amount allowed by law for the same is correctly set out in his objections.
¶40The following are the charges of the sheriff for services in the justice’s court which are claimed to be illegal for the reason that the schedule of constable’s fees makes no allowance for the same:
¶41Making copy of summons___$ 20
¶42Serving copy of complaint__ 50
¶43Five charges for certificate and return_1 '25
¶44Four charges for copying subpoena__ 80
¶45Making copy of notice of appeal.... 30
¶46Serving same........__ 50
¶47Mileage on same..__ 20
¶48Return on same.... 10
¶49The following are excessive and unnecessary:
¶50Excessive mileage on service of summons_ 40
¶51Serving three subpoenas (immaterial witnesses).... 1 50 Mileage on same___.'.... 60
¶52Total overcharge in justice’s court..$6 35
¶53It is claimed by the appellant that the following are the only items for services by the sheriff in the circuit court properly taxable:
¶54Serving notice of appeal____. $ 25
¶55Making and delivering copy of notice of appeal, four folios at ten cents...... 40
¶56Mileage serving same, two miles.. 20
¶57Serving subpoena on W. F. Boothby_ 25
¶58Making and delivering one copy of same, one folio. _ 10
¶59Mileage on same, two miles... 20
¶60Total.40
¶61*91The appellant claims that the following charges by the sheriff are illegal because there is no law providing for their payment:
¶62Four returns on subpoenas___§ 40
¶63Mileage to pay fees advanced___ 60
¶64The following are excessive and unnecessary:
¶65Excessive charges copying one subpoena_ 10
¶66Excessive mileage serving one subpoena-- 20
¶67Serving three unnecessary subpoenas .. 75
¶68Copying same..... 60
¶69Mileage on same___1 20
¶70Total overcharge in circuit court...$3 85
¶71These several charges will now be separately examined— first, as to the claim for witness fees paid Henry Rogers. I think the answer presented an issue as to whether or not the plaintiff performed the work and labor mentioned in the complaint, and the plaintiff had the right to subpoena witnesses to support his allegations, and that in such case, if the defendant upon the trial conceded that the plaintiff did the work, thereby rendering it unnecessary to call witnesses to prove it, he may still charge for the attendance of such witnesses. The allowance for Henry Rogers’ attendance in the justice’s and circuit courts is affirmed.
¶722. Henry Gibson and W. H. Byrd attended as witnesses in the justice’s court and were not sworn, and the plaintiff seeks to recover for their attendance. If a witness attend upon the trial of a cause and is not sworn, the party causing him to be present cannot recover from the adverse party the expense incurred for such witness, unless some sufficient reason exists which would legally excuse his failure to testify. In other words, it must be made to appear that his attendance was necessary at the time, but that by reason of some unforeseen or other sufficient cause it become unnecessary for such- party to cause such witness to be sworn. The plaintiff has assumed this to be the law and has endeavored to give a reason why these wit--*92nesses were not sworn. According to bis version of the matter, it was to meet an issue not made by the pleadings. This he could not properly do. He was bound to assume that the only issues triable in this cause were such as were made by the pleadings, and if be subpoenaed witnesses to testify to matters outside of such issues, be did so at his-peril. No doubt there may be cases where collateral questions may be inquired into upon the trial, and a party may bring witnesses to testify in relation to the same, but before be can properly charge as disbursements the expense incurred in procuring the attendance of such witnesses, be must show that the attendance was necessary. The attendance seems to have been unnecessary, and the witnesses not having been sworn or testified in the cause, the items objected to must be disallowed.
¶733. Harry Gibson, Harry Singleton andW. H. Byrd also, attended as witnesses in the circuit court, but they were not sworn, and the reason given for their attendance in the amended verified statement is wholly insufficient, and the claim for their per diem and mileage for attendance in that court must be disallowed for the same reasons stated respecting Byrd and Gibson.
¶744. The next objection is to the charge made for fees paid to the sheriff for services in said cause rendered in the circuit court amounting to $19.80. The defendant concedes he is entitled to $1.40 and no more. It was held by this court in Jackson v. Siglin, 10 Or. 93, that the statutes which give costs are to be construed strictly, and that the rule is inflexible that an officer can demand only such fees as the law has fixed and authorized for the performance of official duties. And on every occasion where the question has been presented to this court, charges for constructive services have been constantly disallowed, and it would seem too plain for argument that an officer can make no eharge for any act performed by him by virtue of his office unless the legislature has by some statute authorized such charge. The sheriff’s claim is itemized, and inasmuch as the items occur in chronological order, it will be most *93convenient to consider tbe claim for services rendered in the justice’s court and the circuit court together, but a different rule is provided by statute as to amount of compensation. If the service were rendered in a justice’s court, the sheriff must charge the same amount allowed a constable for that service, and no more; and if rendered in any court where a constable is not permitted to act, his fees are governed by the sheriff’s schedule of fees. Hill’s Code, § 2340. The following charges are made by the plaintiff for money alleged to have been paid for services in the justice’s court for which the law has provided no compensation, and the. same are not, therefore, taxable as disbursements, but the compensation provided must be intended to include these items:
¶75Making copy of summons.§ 20
¶76Serving copy of complaint..____ 50
¶77Certificate and return.... 20
¶78Making copy of subpoena._____ 20
¶79Certificate and return...... 20
¶80There are three other copies of subpoenas with a certificate and return, for each amounting to_1 20
¶81Making copy of notice of appeal.. 30
¶82.Return....... 10
¶83Serving subpoena on Gibson and Byrd, 50 cents each 1 00
¶84Total..._$3 90
¶85To which must be added per diem claimed for Gibson and Byrd and disallowed___ 3 40
¶86Total disallowed in justice’s court..¶>7 30
¶87When the sheriff consents to act as constable and to discharge duties which a constable is authorized to perform, he can charge no other or different fees than are allowed by law to a constable for the same services; and if as sheriff he may charge for making copies pertaining to service of papers in courts of record, he cannot do it in justices’ courts.
¶88*94The following’ charges for disbursements in the circuit court are claimed by the plaintiff and disallowed:
¶89Four returns by sheriff, 10 cents each_$ 40
¶90Mileage to pay fees advanced_ 60
¶91Henry Gibson_ 2 20
¶92Harry Singleton.. 2 20
¶93Dr. Byrd_'.... 2 20
¶94Serving three unnecessary subpoenas_ 75
¶95Copying same_ 60
¶96Mileage on same_ 1 20
¶97Total overcharge in circuit court.§10 15
¶98Add amount disallowed in justice’s court. 7 80
¶99Total....:..§17 45
¶100This amount must be deducted from §57.62, the amount allowed the respondent in the court below, leaving the amount of costs and disbursements which the plaintiff is entitled to recover §40.17. The defendant objected in the court below to the amount of fees claimed by the clerk, and pointed out the several items which he claimed were taxable and that none others were proper; but he did not argue his objections here, and we therefore express no opinion in relation to the same.
¶101The judgment of the court below is modified in the particulars above specified, and in all other respects it is affirmed.