
    Jackson, ex dem. Rosekrans, against Stiles, Howd tenant.
    In ejectment, the court will allow of excuses for defaults to protect the pas session, which, in other cases, would not be received. If the consent rule, &c., have been actually forwarded in time to be delivered to the attorney of the plaintiff in ejectment, and be, by mistake, filed in the clerk’s office, instead of being served, the court will set aside a judgment on such a default, and if a writ of possession has issued, award restitution, on payment of costs.
    This was an action of ejectment, brought to recover lands to which the tehant 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 14th 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. The consent rule and plea not having [*504] 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 sot 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.
    Gaines,
    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 ; 1st. That the default was not accounted for; 2d. 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 (Hudson v. Henry, ante, 67,) 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 all 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 pocket unimpaired.
    
      Van Vechten, contra,
    read affidavits stating that the lessor of the plaintiff had beeen 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 the premises delivered under the writ were claimed under that of Kayaderosseras, and that the lessor of the plaintiff had acknowledged he believed they were in Kayaderosseras. He, therefore, insisted that, as now the right of a third person was implicated,, the court *would not interfere; that the title was ac- [*505] knowledged, and it would, therefore, be useless. The excuse for the default he also denied to be similar to the case relied pn.
    Caines, in reply.
    The lease granted since the execution ol the Avrit, and before the signing of the agreement, must have been so recent as to admit of no improvements. The third person, therefore, can 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 obtain compensation from the state unless he shows a defence, to which alone he asks to be admitted.
   Per Curiam.

The proceedings on the part of the defendant certainly have not 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 for 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.

Motion granted. 
      
      
         Where the default was regular, and no trial had been lost, the court recognizing the case in the text, upon an affidavit of merits, set it aside, and admitted the tenant to defend. Jackson v. Stiles, 4 Johns. Rep. 489.
     