¶1delivered the opinion at' the court.
¶2It is unnecessary in this case to consider the sufficiency of the cause set forth in the affidavit, filed in support of the motion made to set aside the judgment of affirmance entered by the law commissioner.
¶3Although great prominence is given to the matter of fees to be paid to the law commissioner, in every act which concerns his office, and although the act of 17th of February, 1851, in the 12th section, allows him to charge a fee of one dollar, to be paid on the filing of ‘‘ each appeal case” from a justice of the peace, there appears to be no provision for his affirming the judgment for the non-payment of the dollar. The transcript, in this case, begins by reciting that the appeal was filed on the 25th of July, 1851, and then sets out the proceedings before the justice, and an appeal perfected on the 19th of July. On the 7th of August following, the law commissioner orders “ that the judgment of the justice rendered herein, be affirmed, appellant making default in the payment of the fee, given by law to the commissioner, upon the filing of the appeal papers.” The appellant moved to set this order or judgment aside, and the motion was overruled.
¶4When the appeal was filed, if it was filed upon credit, the commissioner must collect his dollar with his other fees. If some other person than the appellant paid the dollar, to give the commissioner possession of the case, he must proceed to determine the case upon its merits. He is not allowed to take possession of the case for the purpose of affirming the judgment of the justice, because his dollar has not been paid. •
¶5Let his judgment be reversed and the case be remanded.