
    
      James Jackson, on the demise of Rosekrans, v. John Stiles, Benjamin Howd, tenant.
    
    THIS was an action of ejectment, brought to recover lands to which the tenant derived title under the state.
    The declaration, &c. had been duly served on the tenant, and by him delivered to the attorney- general on the I4fh of April last. The notice was of course for the last May term, and the consent rule, and plea were, immediately afterwards, drawn and forwarded to a clerk in the office of the clerk of this court in Albany, directed to the attorney for the plaintiff, who the attorney- general believed to reside in or near Albany. The consent rule and plea, were duly received, but from inattention in the clerk to whom they were transmitted, they were filed instead of being served. T he consent rule, and plea not having been received, the plaintiff took his judgment by default against the casual ejector, sued out a writ of possession, and turned out the tenant. On these facts it was intended to move the court last term to set aside the judgment and writ of possession, and that a writ of restitution should issue ; but it being inconvenient to both parties to bring it on then, a written agreement was entered into, consenting to postpone the application till this term, and that the delay should not be deemed a loches in the tenant.
    Caines, on the above facts,
    substantiated by affidavit, now moved to set aside the default and subsequent proceedings, and that a writ of restitution should issue. There were, he said, but two objections which could be made to the motion. First, that the default was not accounted for; secondly, that the application ought to have been made at an earlier day. As to the first, this court had allowed the miscarriage of pleas when sent by the mail to excuse a default, and though this was not exactly that case, it was within its principle; for, the defendant’s attorney had taken every necessary step in due time. On the second point, the written agreement was a complete answer. In addition to this, no injury could be induced by granting the application ; if the plaintiff had any right, he would, on a trial, be able to prove it; on the other hand, if the motion was denied, it might be of the utmost prejudice, as it would shut out the defendant from ^11 possibility of showing his title. Besides, .the rule was not asked for but on payment of all costs, so that the plaintiff would be. where he was, with all his rights, titles, and even his ppcket unimpaired.
    
      Van Vechten, contra,
    read affidavits stating that the lessor of the plaintiff had been duly put in possession of the lands in question by the sheriff of the county, and had, on the same day, granted a lease of the premises to a third person; that in conversations with the lessor of the plaintiff, he had acknowledged that he held under the patent of Clifton park, whereas those delivered were claimed under that of Kayaderosseras, and that the lessor of the plaintiff had acknowledged he believed the premises delivered under the writ, were in Kayaderosseras. It was, therefore, insisted, that, as now the right of a third person was implicated, the court would not interfere; that the title was acknowledged, and it would, therefore, be useless. The excuse of the default was also denied to be similar to the cases relied on.
    Caines, in reply.
    The lease granted since’the execution of the writ, and before the signing of the agreement, must have been so recent as to admit of no improvements. The third person, therefore, cap sustain no injury, Allowing the right to be with the lessor, still it cannot be thus tried on affidavit. A jury is the tribunal for its determination. In referring it to a. jury, he has all his rights, and the expense he has been put to, we agree to pay. He, therefore, cannot suffer; but the defendant may, as he cannot gbtain compensation from the state, unless he shows a defence, to which alone he asks to be admitted.
    
      
      
        Hudson v. Henry, ante, p. 168.
    
   Per Curiam.

The proceedings, on the part of the defendant, certainly have net been perfectly regular, for they ought, in strictness, to have been sent to the agent of the plaintiff’s attorney. It appears, however, that every measure necessary fa-the defence was actually taken, though, from an idea on one hand of the clerk of the defendant’s attorney. that the plaintiff resided near Albany, and a mistake on the other, in the office of the clerk of the court, the papers never reached their proper destination,— In ejectment, as it is the creature of the court, every thing will be done to promote the justice of the case, according to right, and the court will go further to protect the possession, when it can be done without injury to the plaintiff’s claim, than it is willing, in other cases, to proceed. As, therefore, there was a full knowledge in October last, of an intention to make this application, and the transactions are all of a recent date, we are of opinion, that the default entered against the casual ejector, the judgment thereon, and the writ of possession sued out, be set aside, .and a writ of restitution issue,- on payment of costs.  