
    Rose against Stuyvesant.
    The discretion given to a justice, by «lie sd section of the act, sess. si. c. a0iau9e,aiiOnot cretioi!TabutdlS‘ ought to be sound!}' and judidousiy éxercieed*
    IN error, on certiorari, from a iustice’s court. d
    
      Stuyvesant sued Rose, before .the justice. The first J process was a summons, which was returned as person»lly served by reading. The plaintiff appeared on the return day, at the time and place appointed, and exhibited his demand. The return to the certiorari stated* • ' * • 7 that, previous to this, on the morning of the day on which , . J e e the -parties were to appear, Rose applied in writing, for sn adjournment, on account of his child being daisy gerously sick. That the justice returned an answer, . r . , , . , that he wished further satisfaction on the subject, and unless it was received, he would proceed, at the hour, to try the cause. On the same day; and before the parties were called, Rose's father appeared in his behalf, to get the trial adj'ourned; but the plaintiff below would not consent. The parties were called. Rose's father answered for him, and prayed an adjournment, and was told by the justice, that the" issue must first be joined. The plaintiff declared, and Rose's father being asked, whether he should plead, he declared his ignorance of the law, and want of instruction how to plead, and that he wanted an adjournment. He was sworn to testify to the occasion of Rose's absence, and said that RoseV child was dangerously sick; but an adjournment was refused. Rose lived two miles from the place of trial. It appeared that Rose's father had no authorir ty in writing to appear, and he did not offer to make any defence.
    A judgment was given for Sluyvesaut.
    
   Per Curiam.

The only point is about the regularity of refusing the adjournment. Another point was made, that the justice refused to admit the father to defend; but the return does not justify this objection.

Under the second section of the act, the justice had a" discretion, on the non-appearance of the defendant below, to put off the hearing of the cause, to such reasonable time, as he should appoint, not exceeding six days. (sess. 31. c. 204.)

This discretion is not an arbitrary one: it ought to be soundly and judiciously exercised. The situation of Rose's child was such as ought to have induced the justice to put off the trial. We are of opinion, therefore^ that the judgment ought to be reversed.

Judgment reversed.  