The opinion
BeowN, J.,
dissenting. Upon the facts as found by the judge of the Superior Court, the defendant took an appeal in open •court from the judgment rendered, and paid the fees of the justice of the peace fixed by law, and demanded that the transcript be forwarded to the Superior Court. This was not •done. I think the defendant did all the law required of him, and that it was the duty of the justice to forward the appeal without further request. Having done all the law required, I think the defendant ought not to be charged with the justice’s neglect, and that the case should be docketed as upon recordari. Where there is no substantial negligence upon part of a litigant, his cause should not be dismissed. The law favors trials upon the merits.