A commissioner appointed by the Governor of another state, to take depositions in this state, is not a public officer of the Commonwealth, but an officer of the state under whose authority he is appointed, who is allowed by the comity and the legislation of this state to exercise here like powers in the execution of his office as justices of the peace. Gen. Sts. c. 181, § 38. Our statutes regulating the fees of justices of the peace and other public officers do not therefore apply to him. Gen. Sts. c. 157, §§ 2, 14. The fees of commissioners appointed by the Governor of this Commonwealth, to take depositions in other states, are prescribed and limited by the statutes of Massachusetts. St. 1862, c. 76. But from the statutes of California, printed upon the plaintiff’s commission, it would appear that the laws of that state make no such provision. The plaintiff was not bound to perform services gratuitously; his fees not being regulated by law, he was entitled to recover reasonable compensation from the party who employed him; and there is nothing *424in this case to show that the agreement of the defendant to pay the plaintiff for his services as commissioner, which the evidence at the trial tended to prove, was illegal, or that the rulings on that part of the case were incorrect.

But the employment of the plaintiff as commissioner to take depositions could not authorize him by implication to employ counsel, either to instruct him in his own duties, or to look after the interests of a “party to the controversy to which the depositions related. The exception to the ruling upon this point must therefore be sustained, and as it does not appear how much of the verdict was for the plaintiff’s own services, and how much for counsel fees, a new trial must be had of the whole case, unless the plaintiff elects to remit the whole amount claimed by him for counsel fees, and take judgment for the rest of the sum found by the jury. Exceptions sustained.