The sole question involved in this appeal is whether or not a witness in a civil case pending in the circuit court is entitled to have his fees for attendance and mileage taxed against the losing party without having, in the time and manner provided by statute¿ proved his account therefor. The statute is as follows:
“Every account for attendance as a witness shall be sworn to, and shall state that he was summoned to attend as a witness in the cause upon which the charge is made and the number of days he attended and, if summoned without the limits of the county, the number of miles he traveled in consequence o.f the summons.” Section 3524, Kirby’s Digest.
This court, in Fulks v. State, 64 Ark. 148, held that a witness in a criminal case could not''have his fees taxed unless he proved same in the manner and within the time prescribed by the statute. The statute applies equally to" civil and criminal cases.
It was shown in evidence in the present case that it had always been the prevailing custom in Cross County, where the case was pending, for witnesses to report to the clerk verbally the number of days’ attendance, without making out an account and swearing to it, as provided by the statute. This alleged custom does not alter the rights of the parties, nor prevent the operation of the statute. Parties, witnesses and officers are all presumed to know of the existence of this statute, and it cannot be abrogated by custom.
Reversed and remanded with directions for further proceedings on the motion to retax costs not inconsistent with this opinion.