Page:Federal Reporter, 1st Series, Volume 8.djvu/435

 IN BE SCOTT. 421 �ceedingB upon the inteilocutory reference, which the clerk has allowed, upon notice of taxation by the register. The attorneys for the wit- ness and for the opposing crediter presented their afifidavits to the effect that the register agreed to make no charge for adjournments, which alleged agreement the register denies. Counsel for the witness contends that Gillies, as a mere witness, oannot be made chargeable with the register's fees on the reference until or unless he is f ound to be wrong in refusing to answer, and that the interlocutory reference is for the information of the court, to enable it to determine that question. If the reference were purely of the character and for the purpose claimed by counsel for the witness, Ishould agree with them that it would be the duty of the creditor, as the moving party, to pay the register's fees. But I cannot so interpvet the order made by my predecessor, upon hearing the matters certified to him concerning the original questions put to the witness and his refusai. The plain meaning and eliect of that order were, that the witness must answer the questions, unless he chose to have a reference for further testi- mony concerning their propriety, no sufficient grounds then appear- ing to justify the refusai to answer. This gave an election to the witness to take such a reference, if he desired, for bis own justification and for his own benefit ; not a reference for the information of the court, upon its own motion, before any decision could be made upon the matters before it. The matter was decided against the witness, unless he chose to take a reference for further proofs, to justify him- self, if he could. It belongs, therefore, to the witness and not to the opposing creditor to pay, in the first instance, the fees upon the reference which was had upon his own election and for his own bene- fit. If the ultimate decision upon the referee's report should be in favor of the witness, he would be allowed his costs against the oppos- ing creditor. And he bas a right, if he chooses, notwithstanding' the composition, to bring the reference to a legal close, that his rights may be adjudged and protected. �The register is •prima fade legally entitled to a reasonable com- pensation for his attendances upon the numerous adjournments. If an agreement is relied upon to vary an officer's right to legal compensation, by making it either more or less, and the alleged agreement be disputed, I think the usual rule as to disputed agree- ments between attorneys sbould be applied, viz., not to regard them unless reduced to writing or entered in the minutes. The register must, therefore, be held entitled, in the absence of anv such entry, to a reasonable compensation. ��� �