
    SUPERIOR COURT.
    Anonymous.
    A fee of $10, not to be allowed for each time that a cause is noticed before a referee.
    
      At Chambers,
    
    
      October 1852.
    
      Costs.
    
    The plaintiff had obtained a judgment upon the report of a referee and claimed, upon the adjustment of costs, before the clerk, $10 for each time that the cause had been noticed for a hearing. The clerk had refused to make the allowance, and . by the consent of the attorneys the question was referred to the decision of the judge at chambers.
    It was insisted on the part of the plaintiff that the rejected charge, if not justified by the letter, was within the spirit and meaning of subdivision 8 in § 307 of the Code, which gives $10 to either party for any circuit or term at which the cause is necessarily on the calendar, and is not reached, or is postponed; and the counsel quoted and relied on the case of Benton vs. Bugnall (1 Code R. JV. S. 229), as an express decision.
   Duer, Judge.

With all possible respect for the judge who made the decision that has been cited, it is impossible for me to follow it. I can not say that a day appointed for a hearing before a referee is a circuit or term general or special, or that his private docket, if he keeps any, is a calendar. In order to meet a supposed equity, I can not stretch a statutory provision to a case which its terms can not, without violence, be made to embrace. If the case is a casus omissus, the legislature must supply it.

Even were the terms of the Code so ambiguous, that by a possible construction they might cover the rejected charge, I still should be very unwilling to allow it. Proceedings before referees,«as usually conducted, are sufficiently protracted and expensive, and it is not at all desirable to increase the temptations to delay. I must affirm the decision of the clerk. ■

Oakley, Ch. J. and Bosworth, J., concurred.  