June, 1830.

#### Terrel B. Bledsoe v. Den ex dem. of Thomas W. Wilson,

From Wilkes.

A writ of error can be brought only by parties and privies. Hence, in Ejectment, the tenant, before he is made Defendant, cannot bring error.

In Ejectment, judgments by default against the casual ejector are set aside, when the declaration has not been served on the tenant.

A return of executed by the Sheriff on a declaration in Ejectment, is not sufficient foundation for a judgment by default against the casual ejector. Affidavit should be made of personal service on the tenant.

When, a declaration in Ejectment is served, by leaving a copy at the house, or , with the servant of the tenant, judgment by default against the casual ejector, should not be entered, without a rule upon the tenant, to show cause why such service should not be sufficient.

The Plaintiff" filed a declaration in Ejectment, returnable to the Fall term, 1829, of Wilkes Superior Court. The notice upon this declaration to the Defendant, was returned by the Sheriff, “Executed, September 1, 1828.” And at the return term, judgment by default was entered up against the casual ejector, under which the lessor of the Plaintiff was put into possession.

In the vacation following, the Defendant applied to his Honor Judge Martin, arid made an affidavit of merits — stating further, that there were but eight days between the service of the process and the return day — that during the whole period between the issuing of the process and the return day, the Defendant was confined in prison in the Sfate of Virginia, and had no opportunity of defending the action. Upon the facts thus disclosed, and the prayer of the Defendant, his Honor directed a writ of error for error in fact, and also a writ of super-sedeas, to issue.

On the last circuit, the cause came on before his Honor Judge Martin, when “ the judgment heretofore entered *315«• in t!iis cause was reversed for error in fact, and that the same he reinstated on the trial docket. It is fur- “ ther ordered by the Court, that a writ oí restitution “ issue, commanding, &c.”

From this judgment, the Defendant in error appealed.

Bevsreux, for the Defendant in error,

admitted that the case appearing upon the record, and the allidavit of the Defendant, migiit be sufficient upon a motion to set aside the default, and also to award a writ of restitution $ but he contended that the whole proceeding was erroneous.

1st. Because Bledsoe was not a party to the record.

2d. Because the error assigned was error in law.

0(1. Because a Judge, out of Court had no power to issue process to supersede the judgment of a Court of coordinate jurisdiction.

Badger, contra.

Judgment by default, in ejectment, if irregular, is set aside of course. (Adams on Eject. 225.) Even if regular, the Court is liberal in setting aside such judgment, on affidavit of merits. If circumstances require it, the Court wii! order writ of restitution to issue. (Troughton v. Roe, 4 Bar. 1996. Mason v. Hodgson, Barnes 250. Grocers Go. v. line, 1 Eng. G. L. Rep. 78, Russell v. Moright, Barnes 17B.)

The judgment in this case was irregular':

1st Because the declaration was not returnable at the term of the judgment.

2d. For want of proof of service. An affidavit is absolutely necessary. (Run. on Eject. 155, 138. 2 Rrchbotd 46, 49.) The Sheriff's return is not sufficient evidence of service ia this action.

Hall, Judge.

It may be admitted, that a writ of error is not the proper remedy in this cace, because Bled-soe has not made himself a party to the suit by coming into Court, and confessing lease, entry and ouster, and being admitted to plead. No person can have a writ of *316error, but a party or privy to tiie suit. ('Run. on Eject. 421.) Yet lie discloses such facts in his affidavit, as entitle him to relief.

If Bledsoe was not a party to the suit, the only parties to it were the Plaintiff and the fictitious casual'ejector. Thus situated, if judgment was entered against the casual ejector, and a writ of habere facias possessionem was issued against him, every person in possession claiming title to the land, and who might have had a good title to it, would be turned out of possession. This would be iniquitous and oppressive, and a gross violation of the principle, that no man shall be deprived of his property without a hearing, or an opportunity of making his de-fence. Hence it is, in order that the fictions in this action shall do no wrong, that the Courts will not permit judgment to be entered against the casual ejector, unless it is made to appear, that notice has been given to the tenant in possession, and a declaration served on him, whereby he may become a Defendant in the suit, if he thinks proper. The affidavit setting forth the facts should be positive, that the person on whom the notice has been served was the tenant in possession, or acknowledged himself to he so. (Run, on Eject. 158.) Has this been done in the present case ? Or if it was not, ought a judgment by default to have been entered against the casual ejector ? Or ought a habere facias possessionem to have issued, and thereby dispossessed the tenant in possession ?

The 14th section of the act of 1777, (Rev. c. 115,} directs, that all writs and other process, shall be executed, at least ten days before the beginning of any term. The declaration in this case, as appears from the record sent here, was served eight days before the beginning of the Court, to which it was returnable. And if it was served in sufficient time, the particular manner of executing it does not appear, it may have been served on the tenant, or on his wife, or on some other of the fams-*317iy, or it may have been fixed to the door of the house. In the latter cases, it would have been proper to procuro a rule against the tenant, to show cause, why such service should not be sufficient, before judgment should be entered against the casual ejector. (Sprightly v. Dunch, 2 Bur. 1116.) I therefore think, that there was not sufficient service of the declaration on Bledsoe.

I have taken it thus far for granted, that Bledsoe was the tenant in possession. But did that fact appear judicially to the Court, when judgment was entered against the casual ejector ? The Sheriff’s return, to make the most of it, only proves that notice was served on Bledsoe, but not that Bledsoe was the tenant in possession. Suppose that A. B. and not Bledsoe, was the tenant in passion, and had a good title to the land, and the Plaintiff and Bledsoe had fraudulently combined to dispossess him of it, their object might be effected by a proceeding like the present.

Although the affidavit of Bledsoe cannot be received, tb contradict the Sheriff’s return, it may be received to influence the discretion of the Court, in setting aside the judgment against the casual ejector. Indeed it does not appear, that there is a contradiction between them. The notice might have been served on Bledsoe’s wife, or left pt his house, and at the same time Bledsoe might have been in jail in Virginia. Ho swears to that fact, and thereby furnishes an irresistible reason, why the judgment should be set aside. 1 think the judgment of the Superior Court, which placed the suit upon the trial docket, and ordered restitution to be made, was correct, and ought to be affirmed.

Per Curiam. — Let the judgment below be affirmed.