The decision of the supreme court in this case, which *8is reported in volume 28 of these reports, page 266, was affirmed by the court of appeals at the June term, 1865. It is therefore settled that a party to an action is not entitled to fees as a witness of his adversary, when he succeeds in the action, for testifying in his own behalf, notwithstanding he makes an affidavit that he would not have attended the trial but for the purpose of being such witness.