
    MARY PEMBRIDGE AND ST. LOUIS PUBLIC SCHOOLS vs. FRANCIS H. MANTER AND CHARLES W. HICKS.
    ERROR, to St. Louis Court of Common Pleas.
    STATEMENT OF THE CASE.
    This was an ejectment brought in the Sf. Louis court of common pleas by ihe defendant in error against Mary Pembridge for a lot in St. Louis, fronting 30 feet on Broadway by 100 feet deep; the writ was served on the defendant below on the eighih day of August, 1849, and returnable to the September term of the couit. On the 24lh day of September, an interlocutory judgment was entered against the defendant for want of a plea, and on the 21st day of November, an in t ni i y of damages was had, the defendant not appearing. On the 9th day of January succeeding, and during the same le.m, motions were made on behalf of the defendant, and also of the said board of publ e schools to set aside the default and permit a defence in the suit on the merits These motions weie eiounded on the affidavits of the lessee, of the clerk and the aft rney of the hoard.
    The affidavits set forth in substance that the lot of land sited for was leased under the hoard of public schools, that ihe lessee built a brick house on the lot, underlet a part of said house to the said defendant in the fall of 1848, that the lessee having learned that a suit had been commenced for the lot, applied to the sheriff’s office for information and was there furnished with a mem uandum of the parties to the suit as he supposed, lie took this memorandum to the odice of the boa'd and left it there with the clerk and also gave notice of there being such a memorandum with the clerk to the atton ey of the hoard. The attorney was furnished wiih the slyle of the suita, ii appeared on ihe memoiandum and caiefully examined the dockets of the commi-n pleas ami circuit court, but found no tr-ce of any such suit; on further inquiry the attorney uas (old that file suit about which he was seeking information had been disposed of and that ihe land on Broadway had been sold some short time before, upon the execution; the attorney conclu ling that tne lessee had taken fright at the sale on execution and that mi ejectment was in fact pending gave over further search. The affidavit of the attorney stated that he was acquain'ed with the respective titles, and he believe.d if the default were set a=ide, Ihe defendant could successfully defend on the merits.
    The court below overruled the motions, exception was saved and the case is now in this couit by writ of error.
    R. M. Field, for plaintiff in ,error.
    The court commi'tpd error in overruling the motion to set aside the default.
    The rule in ejectment cases on Ellis subject is thus stated: “As the situations of claimant and defendant in ejectment are material,y different, the courts are l.beral in their rules for setting aside judgments against the casuai ejecior, allhough regularly signed, and will grant them even af’er execution executed, upon affidavit of merits or other circumstances which at their discretion they may deem sufficení.” '1 illinghasts ejectment 252 and eases cited.
    Athough the supreme court of this State in some reported cases sei ms to have established a rule in regard to setting aside defaults less liberal than ihat which is adopted elsewhere, the rule has never yet been extended to ejectments, nor will it justify the action of the court-fcelow.
    Lecompte vs. Wash, 4 Mo. Rep., 557; Wimer vs. Morriss, 7 Mo, Rep., 6; Green vs. Good-Joe, ib, 25; Steigers vs. Da-by, 8 Mo. Rep., 679; Field vs. Matson, ib., 6-6, Lament vs. Mullikin, 10 Mo. Re ., 49r; Austin vs. N. Ison, 11 Mo. Rep., 192; Stout vs, Lewis, ib., 438; Sloaue vs. Forse, ib., 126,
    Ckockett, for appellees.
    The appellants have failed to show cause by their affidavits, for setting aside the judgment, and granting a new trial. Field vs Matson, 8 Mo. 686; Barry vs. Johnson, 3 Mo., 263; Wi-r vs. Morriss, 7 Mo. 6; Green vs. Goodioe,7 Mo. 25.
   Rtland, Judge,

delivered the opinion of the court.

The same question presents itself here, as in the case decided at this term ot Webster vs. McMahan and others.

The question of diligence — it seems to me a little strange, that the inquiry had not been made of the clerk, of either the common pleas or circuit court. Thes'e officers would have informed the lessee, whether there had been a suit or not. If the attorney for the board liad made enquiries of either of the clerks, he would have found out. These officers know the writs they issue; or they would have known, time enough to make out the docket — and that would have been before the return day of the writ. I am unwilling to interfere in this case with the judgment of the court below. The reasons given in case of Webster vs. McMahan and others, need not here be repeated.

Judgment affirmed.  