
    Forrester v. Wilson.
    Nov. 20, 1852.
    The court will relieve a tenant, upon equitable terms, against whom a judgment of dispossession, under the act authorizing summary proceedings to recover the possession of land, had been obtained by surprise. In such a case an injunction restraining the landlord from executing a warrant of dispossession will be granted upon the payment into court, by the tenant, of the rent claimed to be due.
    This case came before the Chief Justice, at chambers, upon a motion to show cause why an injunction should not issue restraining the defendant from executing, as landlord, a warrant of dispossession against the plaintiff, as tenant, for the non-payment of a quarter’s rent. The ground of the application was, that the judgment upon which the warrant was grounded, had been obtained by surprise, and that the plaintiff had an equitable set-off to,the demand for rent; the plaintiff, however, offered to pay into court all the rent that was claimed to be due.
    The Chief Justice, after consultation with the other judges, granted the injunction as prayed for, upon the condition of the immediate payment of the rent as claimed by the defendant. .
    The ground of the decision was, that as the magistrate, by the issuing of the warrant, was funches officio, the plaintiff, unless by the interposition of a court of equity, would be remediless.
    
      C. A. Burling, for plaintiff.
    
      H. P. Fessenden, for defendant.
    Vide Capet v. Parker, 3 Sand. S. C. R. 662; Moffat v. Smith, 1 Barb. Sup. C. R. 65.
   Upon appeal this decision was affirmed at general term.  