
    Hess v. McConville.
    1. Fees: on appeal. Tlie judgment of a justice of the peace can not be affirmed by the District Court, on the motion of the appellee, for the reason that the docket fee has not been paid in money, if the payment of such fee is secured to the satisfaction of the clerk.
    
      Appeal from Delaware District Court.
    
    
      Wednesday, October 16.
    
      Peters & Ingalls for the appellant.
    House, Brayton $ Wattson for the appellee.
   Lowe, C. J.

The only point made in this case is, that upon the motion of the plaintiff, the District Court affirmed the judgment rendered by the justice of the peace, for the reason that the appellant had failed to pay to the clerk the docket fee by the second day of the term, although in lieu thereof, he had given ample security, to the approval of the clerk, for the payment of the same at the determination of the suit; which fact was brought to the knowledge of the court by the clerk at the time, as the judge himself certifies in the bill of exceptions.

The Code requires the docket fee to be paid in cash in advance, unless security be given as prescribed in § 2528 of the Code of 1851. This latter alternative seems clearly to have been complied with by the appellant, which entitled him to a hearing of the cause on the merits; and having made his objection and taken his exception in time, we are at fault in 'finding a sufficient reason for sustaining the judgment.

Reversed.  