¶1Stebbins has been regular in his proceedings. Most of the questions mentioned at the bar, have already been decided— (Platt vs. Torry, 18 Wend. 572; and a case decided within the last year not yet published.) But Thompson swears to merits and a good cause of action; and there has been a very great misunderstanding in relation to this matter between him and his attorney on the one side, and the attorney for Stebbins on the other. I do not think there was any intention to mislead on the part of Mr. Williams, either in what he said or in what he wrote; but still it is difficult to deny, on these papers, .that the opposite attorneys have been misled. True, I do not see why Thompson should have been waiting for a rule; he might have brought his action to recover the land. But as he swears to a good title, and the intention. to assert it, I think he should be allowed an opportunity to do so.
¶2Decision.—Ordered that Thompson be at liberty at any time, within twenty days to appear, and either to plead or declare, pursuant to the statute. And in case he shall do so, then the default and judgment which have been entered by Stebbins, shall be set aside as of this day.