Mallory v. Suvervisors of the same County

2 Cow. 531

Opinion

Curia, per Woodworth, J.

Before the revision of 1813, the Etct regulating the fees of the several officers and ministers of justice within this state, (2 K. & R. 76,) allowed fees to the Clerk of the oyer and terminer for certain services ; but there was no statute providing for the manner in which these were to be paid. The practice was, for the board of Supervisors to allow them as a part of the contingent expenses of the county, till forbidden by the act of 1810, (sess. 33, ch. 196, s. 7.) The law stood thus till 1813 ; and I remember that this 7th section was included in the revised bill then submitted by the revisors for re-enactment, but struck out by the Legislature. They probably thought that as the fee bill was omitted, this negatived an intention to allow any thing, and there was no need of continuing the express prohibition.

Since that time, if these charges are admissible, it must be upon the general principle contained in Bright v. The Supervisors of Chenango, that compensation should he allowed where the service rendered was specially for the benefit of the county, and for which other provision liad not been made. But the course which the Legislature took with the revised bill, evinces that they did not mean to «allow any compensation.

The same reasoning applies to a claim for services as Clerk of the sessions. There is no fee bill in the statute.

The same Clerk serves for both courts ; and the Legislature, doubtless, intended to leave him on the same footing, as to ' his public services, in each. The motiqn must accordingly be denied.

Rule discharged.