(orally.) In the matter of the intervening petition of R. J. Gilliland in the Wabash Case, a motion to retax the costs in that proceeding has been filed, and the point presented is whether the attorney for the intervenor in that ease is entitled to a docket fee of $20, and whether he is entitled to $2.50 for each deposition taken and used in the case on the hearing. Vide section 824, Rev. St. U. S. The trial on account of which the docket fee is claimed was before a special master in chancery appointed in the course of a chancery suit, to audit and allow certain preferential claims against the property in the hands of the court through its receivers. There was a report in favor of the intervening petitioner. The character of the claim was this: Lt. was a claim for damages sustained by the intervenor by the burning of certain bay and fences, which were set on fire by sparks from a locomotive attached to a freight train winch was being operated by the receivers. The statute, § 824, allows a docket fee of $20 to be taxed “on a trial before a jury in civil or criminal causes, or before referees or on a final bearing in equity or in admiralty.” It is clear that there was no trial in this instance before a. jury in a civil or criminal cause. It is also clear that the trial was not. a final hearing of an equity or admiralty case. The hearing was had upon an incidental or collateral issue that arose in the progress of a foreclosure suit. The claim can only be sustained, therefore, upon the ground that it was a trial before a referee within the meaning of the statute, and that, I take.it, is the sole question to be determined.
In my judgment the word “referee,” as used in this statute, has reference to a class of officers who are appointed in pursuance of the statutes of the various states, to hear and determine all or a portion of the issues that arise on the final hearing of a cause, — it does not have reference to *686or include masters in chancery, whether they hold their place by a general appointment jr by a special appointment. I think that is the view that has generally been taken of that section.
In the case of Doughty v. Manufacturing Co., decided by Judge Woodruff, (reported in 4 Fish. 318,) the court seems to have been of the opinion that the term “referee,” as used in the statute, did not include masters in chancery. It was further of the opinion that even if the word “referee” should be given that enlarged construction, a docket fee would not be taxable for a trial or hearing had before a master on a matter arising incidentally or collaterally in the progress of a case.
In the case of Dedekam v. Vose, 3 Blatchf. 154, it was said that the statute (referring to section 824, Rev. St. U. S.) does not have reference to hearings that are interlocutory or collateral.
In the case of Beckwith v. Easton, 4 Ben. 358, it was held that no docket fee could be allowed on the trial of exceptions taken to a commissioner’s report.
In the case of Stimpson v. Brooks, 3 Blatchf. 456, it was held that a fee of $2.50 for depositions, taken and admitted in evidence, could not be allowed unless they were taken and used on the final hearing of the case. It was further said in that case that the statute has direct relation to proceedings which are “final,” and not to such proceedings connected with the case as are incidental or collateral only.
In the case of Spill v. Manufacturing Co., 28 Fed. Rep. 870, it was held that depositions taken, not for use on final hearing, but in a contempt proceeding, are not within the statute, and that the statutory fees therefor áre not taxable.
I take it, therefore, that-the fees claimed in the present case are not within the statute. Neither clause of the statute covers the case, or warrants the court in taxing either a docket fee of $20 for the attorney or a fee for depositions," as claimed. As this is an equity proceeding, however, in which the intervenor had occasion to come into court, and ask that his rights be protected, I "think it is within the power of the court to allow him all of his reasonable and necessary costs in obtaining testimony for the support of his claim, and therefore he should be allowed all the costs incurred in taking depositions which were used to. maintain his claim, other than an attorney’s fee therefor. He should also be allowed his witness fees. I find, upon looking at the master’s report, that all such allowances were made. The expense of taking depositions was taxed and allowed, and also the usual fees for all of his witnesses. Of course, at common law, an attorney was not entitled to have a fee taxed, and in this state it is not the practice to allow an attorney’s fee to be taxed in a case. I think the master has allowed the intervenor all the costs that he is entitled to. He has allowed all" that could have been recovered in the state court if the suit had been there tried. The motion to retax is overruled.