The People ex rel. Burroughs agt. Willett. pear that the action is for an injury to person or character, or for wrongfully taking, detaining or converting property, and it only remains to be considered whether it is for injuring property. On this subject the decision of the superior court in Tracy agt. Leland, (2 Sandf. S. C. R. 729,) which has not, that I am aware, been overruled, seems to relieve us of all doubts, and leads to the conclusion that this is not an action for an injury to property. The relator was not liable to arrest by the judgment as entered at any rate, without an order from a judge, and whether it was a proper case for an order cannot be decided here, for the facts do not appear. He certainly was not, in the view I have taken of the case, unless some other fact, such as non-residence or an intent to remove from the state, be superadded to all that appears in the judgment record before me. He could not, therefore, have been arrested on the facts shown to me under sections 179 and 181, before judgment, and it follows from section 288, that he was not properly arrested on the judgment obtained in that suit, and he, therefore, must be discharged. My conclusions are: First-That in this writ of habeas corpus, I am authorized to inquire, 1. (2 R. S. 568, § 43, subdivision 4.) Whether the process though proper in form, is allowed by law, in this case; and, 2. (Ibid, subdivision 6.) Whether the process is authorized by a judgment, order or decree of a court, or by a provision of law. Second. That an action on the custom against an innkeeper or common carrier, is founded in tort or misfeasance, and not on contract. Third. That in such an action, a defendant cannot properly be held to bail, except under section 179, by order of a judge, on proof, in addition to the facts constituting the cause of action, that defendant is a non-resident of the state, or is about to remove therefrom. Fourth. That as the record of judgment in such a case does Haynes and others agt. Mosher. not show all the facts necessary to authorize an arrest in the suit before judgment, execution against the body cannot properly be issued on it, at least without the order of a judge, and on proof of the additional facts required to entitle the plaintiff to it. SUPREME COURT. EDMUND HAYNES and others agt. ALLEN MOSHER. The requisites of an affidavit on taxation of costs, to support the charges for the travel and attendance of witnesses, are well stated by Mr. Justice BALCOM, in Wheeler agt. Lozee, (12 How. 446.) It should appear that each of the witnesses, for whom fees are claimed, was a material and necessary witness for the party upon the trial of the action; that each actually attended the court as such witness the number of days specified, and actually travelled the number of miles specified, for the purpose of attending as such witness in the action, and in returning from the trial. Where it appears that witnesses were not sworn on the trial, that fact furnishes presumptive evidence that they were not necessary. Before the party can be allowed for the travel of such witnesses, it is incumbent on him to overcome this presumption by showing how it happened, if they were material and necessary witnesses for him, that he was able to dispense with their testimony on the trial. It is the duty of the taxing officer to see that the prevailing party recovers no more for the expenses of witnesses, than he has himself actually and in good faith incurred. The object of the law is reimbursement, not profit. In an action to recover the possession of lands, the surveyor's fees in procuring the boundaries of the land, is not a disbursement in the action, which the prevailing party has a right to charge in his costs. It is only when the survey is a part of the proceedings in the action, as in the case of partition or admeasurement of dower, that the surveyor's fees are taxable as disbursements. Albany Special Term, June, 1857 MOTION for retaxation of costs. THE action was brought to recover the possession of lands. It was tried upon an issue of fact, at the Rensselaer circuit, in June, 1857. The trial resulted in a verdict for the defendant. Haynes and others agt. Mosher. Upon the taxation of the costs, the defendant was allowed for the attendance of nineteen witnesses. The aggregate number of days allowed was 106, and the whole number of miles allowed for the travel of the witnesses was 668. The defendant was also allowed $48, for surveyor's fees. These charges having been duly objected to on the taxation, the plaintiffs moved for a retaxation. JOHN J. VIELE, for plaintiffs. MARTIN I. TOWNSEND, for defendant. HARRIS, Justice. The motion for a retaxation of the costs, must be granted. The affidavits in support of the charges for the travel and attendance of witnesses, are entirely insufficient to justify the allowance of such charges. The requisites of the affidavit in such cases are well stated by Mr. Justice BALCOM, in Wheeler agt. Lozee, (12 How. 446.) (See also Logan agt. Thomas, 11 How. 160.) It should appear that each of the witnesses, for whom the party entitled to costs claims to be allowed, was a material and necessary witness for the party upon the trial of the action, that each witness actually attended the court as such witness the number of days specified, and actually travelled the number of miles specified, for the purpose of attending as such witness in the action, and in returning from the trial. It was shown in this case, in opposition to the allowance, that a large number of the witnesses were not sworn upon the trial. This fact furnishes presumptive evidence that the witnesses were not necessary. Before the defendant could be allowed for the travel and attendance of such witnesses, it was incumbent on him to overcome this presumption, by showing how it happened, if they were material and necessary witnesses for him, that he was able to dispense with their testimony on the trial. (See Dean agt. Williams, 6 Hill, 376.) In all such cases, it is the duty of the taxing officer to see that the prevailing party recovers no more for the expenses of witnesses than he has himself actually and in good faith incurred. The object of the law is reimbursement, not profit. There Haynes and others agt. Mosher. should be no more allowed for witnesses' fees than the party in whose favor the allowance is made, has actually paid or rendered himself liable to pay to procure testimony which he deemed material and necessary. This should be the criterion by which, in all cases, the officer should be governed. He should be satisfied, and that too by legal evidence, that the party applying to have witnesses' fees allowed, has himself actually incurred the amount he claims. Nothing short of the · proof to which I have referred, can properly be deemed sufficient. The charge for surveyor's fees was improperly allowed. The party incurred the expense for his own benefit. He had the surveys made in order that he might know his rights and be prepared to protect them. Such surveys may have been made before or after the suit was commenced. In either case, the expense was not a disbursement in the action. In most actions relating to the boundary of lands, the parties employ survey. ors and avail themselves of their testimony. But the amount paid them for their services, is no more a disbursement in the cause, than the amount paid to counsel for their services. It is only when the survey is a part of the proceedings in the action, as in the case of partition or admeasurement of dower, that the surveyor's fees are taxable as disbursements. The taxation must be set aside, and the costs retaxed upon the usual notice. Treadwell's executors agt. Abrams. SUPREME COURT. JOHN TREADWELL's executors agt. ALFRED ABRAMS. Where in an action upon a promissory note, the defendant set up a counter. claim for many years' services rendered the plaintiff's testator, (the payee of the note,) previous to the date of the note, and that the testator had promised to give defendant in consideration thereof, certain real estate of large valuation, which counter claim was attempted to be proved on the trial, although a payment upon the note had been made by the defendant, as late as six weeks before the testator's death. Held, that the circuit judge was correct in charging the jury, that all the alleged services, if any, having been rendered before the date of the note, and it not being shown for what the note was given, the jury had a right to presume, in connection with the subsequent payment, that the note was a settlement of all existing claims between the parties. New-York Special Term, March, 1857. JOHN W. EDMONDS, for plaintiffs. ROOSEVELT, Justice. The defendant admits the claim of the plaintiff for $200, as the balance due on a promissory note made by him on the 28th April, 1851; but sets up a counter claim for alleged services of a prior date, to the amount of ten thousand dollars. On the trial, the judge charged, and the jury found against him; and the question now raised is, and it is in reality the only question, was the charge right? I am thus again called upon, as a single judge, to review the decision of another single judge, both of the same court, and both with the same powers. The unfitness of the procedure is too manifest for argument. Fortunately I see no reason for any diversity of opinion, as to the merits on the case as presented. Chronology, it is said, is one of the eyes of history. Applied to the defendant's claim, it leaves no room for doubt. The defendant says that John Treadwell, the payee of the |