An ordinary undertaking, with two sureties, need not be approved. -The respondent could except to the sureties, and if, on notice. *358they were found sufficient, the judge before whom the justification took place-was to indorse his allowance on the undertaking. Section 1325, Code Civil Proe. By chapter 416, Laws 1886, surety companies authorized by the law of' the state could undertake for the two sureties when two were required, “provided the same is approved by a judge of the court in which such bond or undertaking is given; and such company, if excepted to, shall justify through its officers or attorney in the manner required by law.” We think it was the-design by this act to make the surety company equal to the sureties upon an apppeal to the court of appeals. It is true that the act only purports to amend, section 811, and to be limited to those cases where an approval is needed by the judge. There is great doubt on the question whether the amendment covers an appeal to the court of appeals, but, if it does, then the approval-must be indorsed on the undertaking before it is filed, and without this the undertaking is entirely null. ■ The act of 1886 only makes the company equal to two sureties when it is approved by the judge. This approval is entirely separate and distinct from the certificate given to the sufficiency of sureties, on exception to them. The surety company also justify, if excepted to.
The order should be therefore affirmed, with costs and disbursements. But' it is not right that the appeal should be lost. Leave is therefore given for-the appellant to apply to a justice of the court for the approval of the bond,, with the right thereafter to respondent to except in the usual way.