The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-08-29


1aee Csie ~ sgt Jsmes @. Besmsm -fhis sotiea,
involving natsrs Of seoesnt between the srna parties
"a sent 20 referee for trial. whs sster great many
repsst In favor q tho plaintiff fer 3 at the Same
time certifying that in his opinion the oass being diff
hsus g exraosdinsry there eusat = bs allowed 70 the
plaintiff according to the c0ds by way Of Indemnity
for hsexpenses in the action" addition charges
properly ds0ominated COSTS per oentage the rscov
objects to this extra allowance, and also to sunAry
items in the regular taxed bill He insists frst that the
Oos 70 b. Or L. .Ss Ss. n
Of merely an incidental question, to be compelled, on
every occasion to review all the proceedings aud evidence
taken before another officer in other words virtu ally
to try tho de nopo? Such practice never could
have been contemplated and If established would lead
to consumption Of time and delay of justice which
would not be endured The good sense Of the rule
seems TO BIO that the opinion, duly certified. Of the
referee, or jucgs. Who tried the shall be
elusive to determine whether the difficult
extraos binary unless The plaintiff points out distinctly
specific ana papabe grounds Of the amount Of
the proposed aowasce should great carry the
evidence OF prejudice or misconcpon its face rne
difficult and extraordinary are in them selves,
more or lass uncertain That which easy to grade
OF ability may be arduous to anohsr; snd that which
ton,thes 10 Gay as unusual be thing of every
to Like the terms reasonable and
unreasonable in law and orthodox aud in
ology their definitions IN practice various
human miDd and the habits OF thought and business
which 1t has be- trained This criticism implies dis
arrangement of the code. Uncertainty in greater
degree is common TO all laws and indeed of
speech In the present case moreover in ques.
the very nature Of the subject itself Hence Mr. JUS
tice Gray remarked in Sands against Sands Justices OF
the same district have in similar cases differed not only
upon the question of allowance, but upon It's amount
ana in different districts different opinions exist in rea
tior TO what difficult extraordinary cases. and the
disparity in the amounts allowed alone renders the
administration Of justice. in this respect, inharmo
NOUS Not feeling disposed to increase the uncertainty
inherent in the subject shall adopt general rule
the certificates OF the referees The dty dollars there
fore being within the cenage prescribed by the cods
must be allowed The next objection made BY the de.
amounting in the aggregate, TO doarsior postponed
hearings before the referee. 1t Ia conceded that there
no law expressly authorizing these items. They
only DO sustained il at all By analogy When allowed"
says the Code section ao7, costs shall b. as follows
(sDumerating several Is and among them actual
trial whether by court lefree closing With the
cult term at which the necessarily on the
calendar ana not reached is postponed excluding that
at which 1t Is tried or heard ten dollars This language
s clearly inapplicable to referee lie holds neither
circuit nor term. nor has he ia legal speech calendar
When he assigns day fer hearing he is presumed to be
ready on that day and postponement takes place
s usually at the instance OF both of the parties
Having set apart that particular Gay that parc uar
cause he can fairly be said in the language Of the Code
section 33, to have spent day in the business the
reference and TO be entitled, as consequence, to
his fee Of three dollars" Not so with the par
Is usually an affair Of weeks, and sometimes even
months whereas before referee. the dollar fee is
claimed for each single day II the multiplication of
circuit fees in cases not reached postponed be
planned Of an oppressive abuse what must be the inev
u
tive meetings before referees Of ten dollars the
ney in addition to three to the referee The system of
references already viewed with alarm, account Of its
expensiveness must like its predecessor the masters
Office. inevitably break down under such practice The
Code it should be recoected far respects attorncs
and counsel sboshes the old fee bill in all its parts and
prccribes comparatively few simple items to be allowed
in t stead If that too is to be tortured by ingenuity
and stretched by construction little will have gained
in the way of REFORM unless it be the substitution
abuse for another AS these remarks apply with equal
force to the next item complained ofthe charge Of Office
lent at the rate of dollar per day in don to the
three dollars expressly provided forthat charge as well
the several charges Of ten dollars each. above
TONED must be stricken out With respect to the charge
Tor Office rent 1t may be further observed that by the
former law, referees were expressly allowed two dol
lars each per day for services and for expenses
franers OF the Code. in raising the compensa-
ton from two to three dollars and emitting all
mention Of .expencesn intended the enhanced ALLOW,
10 be equivalent for both 1t is that in sec
3ll it is provided that the clerk in the entry Of judg
ment shall insert the of the charges for costs
above and the necessary disbursements and fees Of off,
GERS allowed by law including the compensation of
erees > but This does not alter the case unless it be
necessarily paid by the referee for that particular pur
pos and secondly. that 1t is disbursement allowed
by la =" SO far from being allowed by any pa,cular
Jaw, The repeal Of the cid provision in the Revised
Satntcs for the payment OF the expences of referees
ma, fairly be construed equivalent to express dis
Allowance already suggested Of any charge for
actual expences Of The referee, much of such
merely constructive A room, it may bs said is inds
peni ble to reference and some equivalent therefor
should be given for its the argument however
nay be urged IN favor Of board lodging and ira yeliDg
oils and indefinite variety of other items Once open
he door, and no check remains The expcnces OF the
e1tes under the Old Law. when allowed restricted
expressly has been to dollar per day. Had
INIT TO their amount. Such field for favoritism and
injustice could not fail to expose the judiciary to fire.
qutn: temptation and constant suspicion and would add
greatly 10 the embarrassment already sufficiently pain
iul although probably unavoidable arising out Of the
Of extra per centsge allowances Counsel for defen.
taLt. Benjamin Galbraith, Esq