Jackson ex dem. Rosekrans v. Stiles

1 Cai. Cas. 503, 1 Cole. & Cai. Cas. 317

Opinion

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.

(a) 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.