Jackson ex dem. Mentz v. Stiles

4 Johns. 489

Opinion

Per Curiam.

The excuse given by the attorney of the defendant, for not entering into the consent rule in season, is frivolous and inadmissible. But here the tenant swears to merits ; and as no trial has been lost, we will not let the possession be changed, in an action of ejectment, without an opportunity to the tenant to defend it. It was said, in the case of Jackson, ex dem. Rosekrans, v. Stiles, (1 Caines, 503.) that the court would set aside a default, to protect the possession of the tenant, in an action of ejectment, when they would not do it in any other action. We, therefore, grant the y motion, on payment of costs, and on the tenant’s entering into the consent rule, and pleading within 10 days, so ■that the cause may be tried at the ensuing circuit in Ulster.

Rule granted.