
    Jackson, ex dem. Cantine and others, against Stiles, (George Clark, tenant.) Jackson, ex dem. Cantine and others, against Stiles, (Buel, tenant.) Jackson, ex dem. Van Gorden, against Stiles, (Hollenbeck, tenant.)
    ALBANY,
    August, 1809.
    Friday, August 18th.
    After a judg* merit by default, against the casual ejector, in ejectment) the landlord may be let in, to appear and defend; and it be be an alien? he is, at the time when he is let in to defend, in season to petition for the removal of his cause into the court of the United States. Where actions of ejectment, after a judgment against the casual ejector, are removed into the circuit court of the United iSfeotefjthis court will order all further proceedings on such judgment to stay, until the further order of the court.
    SCOTT, for the defendants,
    moved to set aside the defaults entered in these three causes, and that George Clark be admitted to defend the two last causes, as landlord ; and further, that all the causes be removed into the circuit court of the United States, to be held in the district of New-York.
    
    It appeared, from the petition and affidavit of Clark, that he was a British subject, and not a citizen of the United States ; and that he was the landlord of the premises in question, which were above the value of 500 dollars ; and that he had been in the actual receipt of the rents and profits.
    The declaration in ejectment in the first cause, Was served on the 13th May last, at Catskill, in the county of Greene ; and on the same day, Clark received notice of the service of the declaration, on the tenant, in the third cause ; and on the 3d August, was informed of the service of the declaration on the tenant, in the second cause. It did not appear on what day the declarations, in the two last causes, were actually served, but it was prior to the 2d Monday of May, as the notice was to appear on that day. The premises in question, are situated in Catskill. The defaults, in all the causes, were entered on the 19th July last, and rules for final judgment entered on the 11th August. The judgment rolls were signed, and filed, on the 16th August.
    
    
      
      Van Buren and Foot, contra.
    The notice of this application, was served on Thursday evening, at 10 o’clock
    
      Van Buren and Foot.
    
    The two last causes, are not within the act of the United States,
      
       which speaks only of suits against aliens. These suits are against citizens, not aliens. Clark may, perhaps, be interested ; but the nature of the tenancy is not stated, and it may be that the defendants are tenants for life. If so, they are parties in interest.
    In the first cause, the affidavit is entitled in the cause of Jackson, ex. dem. Cantine and others, v. John Stiles. The name of Clark does not appear. There is, therefore, no suit commenced against him.
    Again, the application comes too late, after the judgment has been perfected.
    The laws of the United States, also, direct, that the defendant shall, at the time of entering his appearance in the state court, file his petition for the removal of the cause.
    
      Henry, in reply.
    It was one object of the third article in the constitution of the United States, and the intention of congress, in the judiciary act, to give to aliens a choice between the courts of the United States and the state courts. This right ought to be favoured, and construed liberally.
    The relation of landlord and tenant, between Clark and the tenants, is made out by the affidavits ; and the landlord may defend, with the tenant, if he appear, and without him, if he does not. The court cannot deny him this right, secured to him by the statute. If the tenant refuse to appear, the landlord has a right to appear without him. The default of the tenant, is equivalent to a refusal.
    
      
       1 Sess. l Cong, c. 20. s. 12. vol. 1. p. 56.
      
    
    
      
       11 Sess. c. 36. s. 30.
      
    
   Per Curiam.

That was sufficient notice.

If the landlord is admitted to defend, he cannot be said to appear until he is so admitted, and enters into the consent rule ; so that Clark, if admitted, comes strictly within the letter of the law of the United States, as to the time of presenting his petition.

The notice of the ejectment, was not received by Clark, until the 13th May, so that he is in time to apply at this court.

Kent, Ch. J.

In an ejectment, the landlord is entitled to be made defendant, after judgment has been entered against the tenant, who neglects or refuses to defend. By the judgment of law, the tenants, in the two last causes, must be considered as neglecting to defend. When the landlord is admitted as a defendant, he then appears, and is, therefore, in season to petition the court, that his cause may be removed. In the first cause, the service of the notice of the declaration was so late, that he had not time to apply before this term. (1 Caines, 503.) He is, therefore, clearly in time to make the application. As defendant, then, in all the causes, Clark is entitled, being an alien, to remove them.

As to any difficulty which may occur, in regard to the two last causes, in consequence of judgments against the casual ejector, which, under our statute are to remain, when a landlord is let in to defend, they arise from the fiction of the action of ejectment, which ought not to prejudice the right. The following rule, must, therefore, be entered : “ That George Clark be admitted to appear, and defend, as landlord, in the two last causes, and that •the default, and subsequent proceedings in the first cause, be set aside, on payment of costs ; and that as to the judgments against the casual ejector, in the two last causes, there be no further proceedings in this court; until the further order of the court; and that the motion of the said George Clark to remove all the said causes, into the circuit court of the United States, be granted.”

Thompson, J. Van Ness, J. and Yates, J. concurred.

Spencer, J.

I concur in granting the rule in the first" cause, but not in the others.

The constitution of the United States has secured to aliens, in certain cases, the right of insisting that a cause instituted in a state court, shall be tried in a court of the United States ; and if Clark has brought himself within the provisions of the constitution, and the statute under it, this court would grant him the object of his application, without travelling out of the case, to look at the subject matter of the suits, and without regard to any decisions which may have been had upon that subject, in the courts of this state.

Mr. Clark, being landlord of the premises in the two other causes, appears in time to make his application. But a serious difficulty presents itself; for though we are bound to admit the landlord to defend, on the refusal or neglect of the tenant to appear, the judgment against the casual ejector is to stand, and a stay of execution is to be entered, until the right is tried. It will be found that by the English practice, under their statute, of which ours is a copy, in relation to the admission of landlords to defend, that where the landlord defends alone, instead of the tenant, judgment must be entered against the casual ejector j that the plaintiff, after having tried his cause against the landlord, and succeeded, may have the benefit of his verdict, and obtain possession under the judgment against the casual ejector, which, under such verdict, he could not. It is a settled rule, that in ejectment, the plaintiff must prove the defendant in possession of the premises, when the action was brought; and if the rule be, as laid down in Runnington, that, upon a verdict against the landlord, the tenant cannot be dispossessed, how could the present lessors, should they prevail in the court of the United States, obtain the fruits of their verdict ?

But even this difficulty must yield to the mandates of the constitution, if these cases come within it, and the act passed to carry into effect its provisions. There is nothing in the constitution or statute, taking away the jurisdiction of a state court; they have, undoubtedly, concurrent jurisdiction ; and although in cases where foreign subjects are parties, the courts of the United States have concurrent and appellate jurisdiction, the constitution leaves it to congress, in cases where the courts of the United States have appellate jurisdiction, to regulate the manner, and to adopt such exceptions as they see fit. The 12th section of the act, to establish the judicial courts of the United States, provides, “ that if a suit be commenced in any state, against any alien,'’ then, &c. it may be removed, under certain exceptions and regulations, to the next circuit court, to be held in the district where the suit is pending. In this case, no suit has been commenced against Mr. Clark; it was technically against John Stiles, but substantially against the tenant in possession, and therefore, though the landlord may be permitted to defend here, he is not within the provision of the act, as no suit has been commenced against him. I am, for these reasons, for denying the application to remove the two last suits, but am for admitting him to defend, and ordering a stay of execution.

Rule granted, ut supra: 
      
      
         Rev. Laws, v. l. p. 146.11 sess. c; 36. s. 30.
     
      
      
        Run. 403. Barnes, 179.
      
     
      
       Art 3. s. 2.
     