The opinion
By the Court, Jewett, J.
I am unable to . discover any . thing in the affidavit of the defendant, or in that of the constable, or in the facts and circumstances of the case, tending in the least to throw suspicion on the good faith of the application of the defendant on the adjourned day, to be permitted to plead *577 or which causes a doubt that his failure to appear on the return of the process was in fact the consequence of mistaking its return day.
If this was established, the cause of justice required that the magistrate, in the exercise of a sound judicial discretion, should have permitted the defendant, on the terms offered, to plead to the action. But although we think that the application ought to have been granted, still, it being merely a matter of discretion, the court of common pleas was not authorized to reverse the judgment for that cause. (Pickert v. Dexter, 12 Wend. 150 ; Jenkins v. Brown, 21 id. 454.) The judgment of the common pleas must be reversed and that of the justice affirmed.
Judgment reversed