Jackson ex dem. Cantine v. Stiles

Per Curiam. That was sufficient notice. [495] 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; [496] 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.