
    W. W. MOORE v. YOUNG B. McLEMORE.
    Jackson,
    September Term, 1876.
    (S. C., 1 Leg. Rep., 42, 43.)
    1. WITNESS. Eees taxed without resummons after new trial.
    While a witness is not bound to attend after final judgment has been rendered in the ease, and incurs no forfeiture for failure; nevertheless, having been originally summoned, he is entitled to prove his attendance without being re-summoned after a new trial granted, or after the cause has been reversed and remanded by the supreme court, if he continues to attend on the original subpoena.
    2. SAME. No fees taxed with subpoena, but it need not be on file.
    A witness not summoned but attending, cannot have his fees taxed in the bill of cost; but the fact that there is no- subpoena on file is not conclusive evidence that the witness has not been summoned. [See notes under sec. 5621 of the Code.]
    Cited: 2 Yer., 230, 323.
   Deaderioe, Ch. J.,

delivered the ©pinion of the court:

Our attention has been called to several motions which, in the disposition of this cause, at this term, were overlooked.

After the trial of this cause in the circuit court, the attorney for defendant, IVLcLemore, moved the court to disallow in the taxation of costs, any costs for attendance of certain named witnesses, because absent at the trial term. This motion was, as to part, allowed, and disallowed as to others, who were present, and we see no error in the action of the court, in this respect.

The defendant entered a further motion that the clerk be directed not to tax, in the bill of costs, the fees of any witnesses accrued since the former trial, unless such witness had been re-summoned since said former trial. But the circuit judge held, if such witness had been summoned before the former trial, and had since attended as a witness, he would be entitled to his attendance. There was no error in this bolding. While a witness is not bound to attend after a final judgment has been rendered in the case, and incurs no forfeiture for failure, nevertheless, having-been originally summoned, he is entitled to prove his attendance without being re-summoned, after a new trial granted, or after the cause has been reversed and remanded by the supreme court, if he continues to attend on the original subpoena.

The defendant further moved that the clerk be directed to tax the fees of no witness who is not shown by subpoena on file to have been summoned. This motion was also properly refused. A witness not summoned, but attending, cannot have his fees taxed in the bill of costs, but must look to the party for his fees who requested his attendance. 2 Yer., 280.

Tut the fact that there is no subpoena on file is not conclusive evidence that the witness has not been summoned. It may have been lost or destroyed after service. A witness may prove his attendance, notwithstanding there may be no subpoena on file with papers in the case.

■And, after a witness has proved his attendance, it was held by this court that it will be presumed the record justified it. 2 Yer., 323.

There wTas no error in the rulings of the circuit judge upon the several motions, and his action thereon is affirmed.  