
    Gay against Patterson
    Ü’hir cause had befen referred, and the report being iti fa-tour of the plaintiff, the taxing officfer had allowed in the taxation of costs $40, as a counsel fefe for 5 days attendance of counsel before the referees;
    
      E. Williams, for the defendant,
    appealed from this taxation. He said he was aware that this charge had been allowed under the clause in the act of April b, 1813, (l R. L. 517, s. 4) which declares that, on taxation of cosls upon a reference, “ a reasonab!e allowance shall be made to the prevailing party, for such services and expenses as may accrue upon, or attend the reference of the cause.” With deference, he considered the practice incorrect. The fee bill was passed April Oth. of the samfe year, (2 R. L. 3) fixing the allowance to attorneys, counsel, witnesses, fee. and if the former act contemplated án extra allowance, it was repealed by the latter. But the statute authorizing this reasonable allowance, may be satisfied, entirely independent of attorney and counsel fees. It means no more than that the allowance shall be made for those expenses not etnbraced by the fee hill, owing to the peculiar course of proceeding ; such as the expenses of the referees, as house-room, board, fee. In all other respects the quantum should be graduated by the fee bill. If you give an extra allowance to counsel, there is nothing to prevent your enlarging the fees of the attorney, witnesses, the magistrate forswearing the referees, fee. This may certainly be donfc upon the same principle.
    
      W. H. Maynard <$■ G. C. Bronson, contra,
    relied upoti the practice as settled, and mentioned a manuscript case decided several years ago, upon the authority of which this allowance had been repeatedly made.
    The statute of April 5lh, 1813, (xesi. 36, ch. 58, s 6) providing that, in casé of refs erence, “ a reasonable allow-/ anee shall be made to the prevailing party for such services and expenses as may accrue upon, or attend the reference of the cause,” does not extend to the fees of counsel, Sec. hut is confined to the incidental expenses of the referees.
   Curia.

This counsel fee has been allowed in practice j but, on examining the subject, we think the allowance was erroneous. The words of the statute may be satisfied by taxing the incidental expenses of the referees ; and we think this is all the legislature intended. We direct a re-taxation accordingly.

Rule accordingly.  