delivered the opinion of the court.

This appeal presents an interesting question, not entirely new to other jurisdictions, but one which has never arisen in this court. Susie Richardson, appellee, sued the Yazoo & Mississippi Valley Railroad Company, appellant, in the circuit court of Warren county, and lost her suit. The clerk of the court issued certificates to a number of witnesses for the defendant for their per diem and mileage, and these certificates were taxed in the bill of costs. Plaintiff below, appellee here, made a motion to retax the costs, and the evidence in support of this motion is embodied in an agreed statement of facts.

It is agreed that the witnesses for defendant composed two classes: (a) Witnesses who came to Warren county from their respective homes in Mississippi, other than Warren county, and from Memphis, Tenn., at the request of defendant, who were never served with process, either before or after they reached the place of trial which wit*584nssess were sworn and testified as witnesses at the trial; (b) witnesses who came from their homes in Mississippi and Tennessee to the place of trial at the request of defendant, and were served with process after they arrived at the place of trial. The trial court held that the witnesses who had not been served with process could not claim either mileage or per diem against plaintiff, including in this category those witnesses who were sworn and testified in the trial of the case; that the witnesses who had been served with process after they reached Vicksburg, the place .of trial, were entitled to per diem, but were not entitled to mileage to and from their homes in Mississippi, or to and from the state line, for those whose homes were Memphis, Tenn. In short, the trial court, held that a witness could not recover costs against the losing party, where he came to the trial court at the request of the losing party’s adversary, unless he. had been served with a subpoena, either before he started or after he reached the court, and that mileage could not be recovered, although the witness was. subpoenaed after he reached the court.

The courts to which these questions have been presented have reached different conclusions.. Some courts have decided that, as the process was only to enforce the attendance of the witness, if the witness waived the service of process, and came voluntarily, at the request of a successful party to the suit, he was entitled to mileage and per diem. Many reasons are given for this view, and much may be said in favor of the reasoning employed in support thereof. It will be observed that the trial court in this case decided that the adversary witnesses could not have their per diem taxed in the bill of costs against the loser, unless they had been served with subpoena to compel their attendance, and although they had actually testified as witnesses. • In other words, the witness was .not a witness, under the control of the court, until he had been served with process which compelled his attendance.

*585Section 3948 of the Code of 1906 provides that the first process, in all canses, “to compel the attendance of a witness, shall be a subpoena;” that the subpoena shall be directed to some proper officer “where the witness may reside, stating the time and place for the appearance of the witness, the parties to the cause, and the party at whose instance the witness is subpoenaed.” Section 3952 provides that a subpoena shall “be served personally,” etc., “and the person so subpoenaed shall appear;” and this section further provides that, if the suit shall be settled in vacation, notice shall be given the witnesses, “otherwise they shall be entitled to the same compensation for their subsequent attendance in pursuance of the subpoena as if the suit had not been settled.” An orderly procedure to provide a record of the witnesses in causes pending in the courts is prescribed, for obvious reasons. A witness to be under the control of the court must be brought under the jurisdiction of the court by some process of the court. "When does a witness become a witness in the legal sense? "When he is actually and physically in áttendance upon the court at the request of a party to the suit, or when he has been commanded by the court, in the prescribed way, to attend?

We are not considering the relations between the witness and the party at whose instance he is in attendance upon the court; but we are considering quite a different question, viz.: When can a successful party in a lawsuit demand that his losing adversary pay witnesses in attendance at his instance? We think that the trial court was right in holding that a witness cannot be charged to a party who did not procure his attendance, unless the records of the court show that the witness has been subpcenaed. To hold otherwise would be to open the door to fraud and uncertainty. If a case should hang on from term to term, it is easy to imagine that no one could be found who could tell whether or not the witness holding a certificate of attendance was ever in fact in attendance *586upon the court, or, if he was, it would often he practically impossible to ascertain at whose instance he attended. The witness might die, and the parties originally in charge of the suit could not remember anything about the witness. It would be easy to pad the cost bill without the chance of detection, and in fact without a subpoena anybody in need of a few dollars could obtain easy money by qualifying himself by affidavit to secure a witness certificate.

We believe that the trial court adopted the safer rule, and the judgment of the court retaxing the costs is affirmed.

Affirmed.