Doty agt. Campbell. representations of fact, and as such are not necessarily fraudu lent, though they afterwards turn out to be wholly unfounded and untrue." "The representations relied upon for a recovery in this case related to a matter that could not ordinarily be expected to be within the knowledge of the person making them. There is nothing in the case in any way indicating that the plaintiff had any reason for supposing that the defendant possessed any other knowledge upon the subject concerning which he was applied to for information, than that which one person in business will commonly acquire concerning others in the same business, residing in the same place." At pages 573 and 574, justice GROVER said: "The plaintiff was entitled to recover, so far as the point under consideration is concerned, if the defendant is to be understood as speaking of his own personal knowledge of the affairs of Kahn in making the statement." "Notwithstanding the positive form of the reply, I think that the fair presumption is that the defendant intended only to express his firm belief and confident opinion, that such was the pecuniary situation of Kahn; and that he would be so understood, not only by business men in general, but that he was in fact so understood by the plaintiff." I have quoted liberally from the opinion written in the Marsh case, for the justices here fully met the argument made in this case by the respondent, and their reasoning is unanswerable. Upon the merits of the case the plaintiff herein must fail upon all the evidence in the case. But on another branch of the case the judgments should be reversed. During the progress of the trial and while the plaintiff was examining one of his witnesses, the defendant appeared before the justice, by his attorney, and asked to be permitted to answer and disprove the case as made by the plaintiff. The justice denied this request. The respondent now insists that this was a matter of discretion with the justice, and cannot be reviewed here. If it were a matter of discretion then, of course, the decision of that question ought not to be considered upon this appeal. VOL. I 14 Doty agt. Campbell. The respondent cites Jenkins agt. Bowen (21 Wend., 454); Montford agt. Hughes (3 E. D. Smith, 591); Mead agt. Danogh (1 Hilt., 395) and Sammis agt. Brice (4 Denio, 576), as authority supporting the action of the justice. In the cases cited from 3 E. D. Smith, 21 Wendell, and 4 Denio, the defendant failed to appear upon the return day, and upon the adjourned day appeared and offered to plead. In the case in 1 Hilton, upon the return day, after the cause was adjourned and the plaintiff had left the room, the defendant appeared and answered. Each of these cases differs from the one under consideration and do not control this. Here the summons was returnable at one o'clock. The justice returns that he waited a full hour before proceeding with the cause, and further certifies that at half-past two o'clock, or within half an hour from the time commnenced the trial of the cause, and it seems while all of plaintiff's witnesses were in the court-room the defendant appeared by counsel and asked to be permitted to answer. This request was denied. Had it been apparent that the answer was not interposed in good faith, and that it was offered for delay, then it might well be said that the justice properly exercised his discretion.. The discretion that is given to a court is a "judicial discretion," which must be exercised according to legal and just rules; it cannot be an arbitrary discretion to be exercised as the court shall arbitrarily decide, overriding the natural rights of a suitor and depriving one of his means of fairly meeting a claim urged against him. The mere statement of the case strikes one as a harsh and unjust ruling. It is not suggested in what way the plaintiff could have been injured or wronged by permitting the defendant to make any legal defense he had. It is possible that the answer might make it necessary for the plaintiff to adjourn the trial, if so, the court had full power to grant an adjournment upon such terms as should be just to all, but this is no ground for denying the defendant the right to make the best defense he had. In Ryan agt. Lewis (3 Hun, 429), justice MULLIN used Hooker agt. Townsend. this language: "But, assuming that the allowance of an amendment rests in the discretion of the court, yet the refusal in this case was a gross abuse of the discretion, and the only remedy of the party is by appeal. A judicial officer who should refuse leave to a party to amend, when it is apparent that the application is made in good faith, and is absolutely necessary for the protection of his rights, ought to be indicted or removed from his office." It is very pointed, yet it may with great propriety be quoted in this case (See, also, Walsh agt. Comett, 17 Hun, 27, and Wood agt. Shullis, 4 Hun, 309). There are several other matters urged as error, but in the view above taken of the case it is unnecessary to consider them. The judgment must be reversed. SUPREME COURT. N. W. HOOKER agt. H. D. TOWNSEND. Sureties on appeal-Code of Procedure, sections 334, 338—Liability of sureties on undertakings on appeal — Two separate undertakings admissible — Code of Civil Procedure, section 1335. After two sureties, A. and B., had executed a joint and several undertaking under sections 334 and 338 of the old Code for a stay of proceedings on appeal, A. justified, but when subsequently B. was examined, the justice before whom the examination took place filed a memorandum that he was not qualified, and that defendant in that action must produce another surety. Meantime, intermediate the filing of the memorandum and the entry of an order thereon, the defendant executed the undertakings upon which this action was brought, which were approved: Held, that by the memorandum and order referred to, the justice approved of A. as one of the sureties upon the undertakings; that it was not necessary that A. should join in the execution of the undertakings with defendant, and even if A. is not liable upon his undertaking, for want of a formal indorsement of approval upon it, the defendant should not be relieved from liability on his undertakings, which stayed plaintiff's proceedings. New York Circuit, February, 1884. Hooker agt. Townsend. Townsend Wandell and Edward S. Clinch, for plaintiff. George C. Coffin and Robert S. Green, for defendant. LAWRENCE, J.-The order of July 17, 1875, provided for a stay of proceedings on the appellant's giving undertakings in compliance with sections 334 and 338 of the old Code of Procedure. On the 11th of August, 1875, undertakings were executed in each of the actions by Howard A. Martin and Runyon W. Martin, which undertakings were filed on the 14th of August, 1875. These undertakings were joint and not joint and several. On the 6th of September, 1875, an order was made dismissing the justification of the sureties, and reciting as a ground therefor that the said sureties had failed to appear. The order also recited that the justification had previously been adjourned by stipulation, after the examination of one of said sureties. On the 7th of September, 1875, an order was made requiring the plaintiff to show cause why the order made dismissing the justification of the sureties should not be vacated, and the said sureties allowed to justify, &c., and staying plaintiff's proceedings in the meantime, and until the further order of the court. This order was obtained upon an affidavit made by James B. Kisseck which stated that on the second day of September, pursuant to notice and adjournment, Runyon W. Martin, one of the sureties, justified, and that on account of the illness of Howard A. Martin, the other surety, the further examination was adjourned until the fourth instant; that on that day the plaintiff's attorney would not adjourn said examination until longer than the sixth instant; that by reason of the negligence and oversight of a messenger, notice to that effect did not reach the surety, and that on that day, no one appearing to oppose, the plaintiff's attorney obtained and entered an order dismissing the justification of the sureties, although one surety had already justified. Howard A. Martin was subsequently examined, and on the fourteenth of September Mr. justice BRADY, before whom the examination had taken place, Hooker agt. Townsend. filed a memorandum, which was published in the Daily Register of September fifteen, as follows: "Howard A. Martin is not qualified as a surety. The defendant must produce another, and serve notice of justification within five days from the entry of the order. Justification to be on two days' notice." No order seems to have been entered upon this decision of Mr. justice BRADY, until the 24th of September, 1875. That order, in substance, recites the decision of the fourteenth of September, and directs the defendant to furnish another surety to the undertakings required in these actions, and to serve notice of justification and to justify within the time specified in said order, and that in default the stay of proceedings be vacated and removed, &c. It is quite clear to me that by the memorandum aforesaid, and his order of September twenty-four, Mr. justice BRADY accepted and approved of Runyon W. Martin as one of the sureties upon the undertakings directed to be given by the order of July 17, 1875. In the meantime, intermediate the filing of the memorandum of Mr. justice BRADY and the entry of the order thereon on the 24th of September, 1875, the defendant, on the 16th of September, 1875, executed and acknowledged the undertakings upon which these actions are brought. His examination was taken on the seventeenth of September, and pinned to the two undertakings, each of which had indorsed thereon these words: "The within undertaking is hereby approved as to its form and the sufficiency of its sureties. Dated 22d September, 1875." Only the approval on the outside paper is signed by justice DONOHUE, but I cannot accede to the proposition that as the examination taken before the notary public is pinned to both of the undertakings, and as the three papers were treated as one, that the omission of the justice to indorse the inner undertaking is to be regarded as an indication that he had disapproved thereof. On the contrary, I am of the opinion that the indorsement of the justice is to be regarded as an approval of both the undertakings, it being quite evident that on the submission of the |