
    Jackson, ex dem. Vanderwenker, against J. Stiles, (J. T. Close, Tenant.)
    ALBANY,
    Jan. 1813.
    leased a lot and the lease powi^of re-“°of the rent, Stc.
    ses, under the 23d section of the act, (sess. nonpaym\nt' ^and^a** on the 27th of B. leased the same premises to C. by parol. A bro’t an action of ejectment for tember, 1811, against the casual ejector, and final judgment entered on the 23d of December, 1811, and a writ of possession thereon executed before Janiiary term, 1812.
    B. was not informed of the proceedings in the ejectment suit, until the 27th of May, 1812, and in August following, applied to set aside the default and subsequent proceedings, to be let in to defend, as landlord; and it appearing that B. had been discharged under the insolvent aet in September, 1811; it was held, that he had no further right, as landlord, to come in and defend; and that, though he had, afterwards, on the 27th of May, Mil, purchased the premises at the sheriff’s sale, under , an execution on a judgment against him, he could not, in the new character of purchaser, be let in, so long after a regular execution of the judgment in ejectment.
    P. W. BADCLIFF, at the last term, in behalf of Powers, moved that the default, and all subsequent proceedings in the cause, be set aside, that a restitution be awarded, and that JD. Powers be admitted as defendant; and for such other order as the court might direct.
    
      Gardinier, contra.
    The motion was first made in August term, and denied; but on some explanation to the court, leave was granted to renew the ..... application at the last term, and on account of the great length and opposition of the affidavits, the ctiurt took time to consider of them until this term. The affidavits stated that the default, for the tenant’s not appearing and entering into the consent rule, was entered the 27th of September, 1811, and final judgment on the of September, 1811, and the record filed and docketed bn the 23d of December, 1811, and a writ, of possession executed before January term, 1812. The ejectment was- brought under the 23d • section of the “Act (sess. 11. c. 36.) concerning distresses, and for the better security, and more easy recovery, of rents,” &c. for the forfeiture of a lease made by the lessor of the plaintiff to Daniel Powers, on the 15th of September, 1804, of the lot or ' premises in question, there being one year’s rent due on the lease, and no sufficient distress found on the premises, countervailing the arrears due, and the lessor having power, by the lease, to re-enter, &c. for the non-payment of the rent, &c. the requisite affidavit under the statute having been filed.
    
      Close stated that on the 1st of May, 1809, Daniel Powers leased the premises, by parol, to him, and that he, afterwards, took the place for another year; that after the second year, he understood that D. Powers conveyed his right to the premises, to his father, and had been, or was about to be, discharged under the insolvent act; and supposed that Powers was no longer the owner; and when the declaration and notice of the ejectment suit was served upon him, not knowing who was the owner, atid not considering him- ■ self as holding under Powers, he took no further notice of the suit.
    
      D. Powers, in his affidavit, stated, that he was not informed, until about the 27th of May last, of the writ of possession having been executed, before which time he had no knowledge of the suit being commenced, though he had frequently seen Close during the year preceding; and that Close was in possession under him, at the time the writ of possession was executed; and that the ejectment was brought on account of one year’s rent of 12 dollars and 50 cents, charged on the premises, and that he had a good defence to the suit, except as to the rent being due. That on the 24th of September, 1811, he was discharged under the insolvent act, and until that time, had not parted with his title to the possession, except to Close, whom he considered as his tenant.
    It appeared, further, that on the 13 th of Aprils 1812, a fieri facias issued on a judgment docketed the 28th of July, 1807, and revived by scire facias, at the suit of Timothy Powers against Daniel Powers, and was delivered to the sheriff, by Daniel Powers, who directed the deputy-sheriff to advertise all his property in Waterford, among which was the premises in question, in possession of Close; and on the 27th of May, the premises were sold at auction, by virtue of the execution, to Daniel Powers, as the highest bidder, for 15 dollars and 75 cents.
    
      D. Powers further stated, that he bid only 15 dollars at the sheriff’s sale; but by an arrangement with the agent of T. Powers, who attended the sale, he was bound to pay T. Powers 300 dollars.
   Per Curiam.

The proceedings on the part of the plaintiff have been regular, under the 23d section of the act of the 11th sess. c. 36. and as Daniel Powers, the former landlord of Close, the tenant in possession, was discharged under the insolvent act, the 24th of September, 1811, he has no further right, as landlord, to come in and defend. His right, whatever it might be, passed to his assignees, and they do not apply. The neglect of Close to give notice to Daniel Powers of the service of the ejectment, (assuming him then to have been his tenant) has nothing to do with this application, since the interest of Powers has been assigned. The only remaining ground of the application by Powers is upon the new interest he acquired as a purchaser, at the sheriff’s sale on the 27th of May last, but in that new character he has no right to come in at this late day, and so long after the regular execution of the judgment. He would come in as a stranger, not as landlord; and in that character he cannot be -received, but must be put to his action, if he has any. There is no precedent to warrrant so extraordinary an indulgence.

Motion denied.  