
    Rankin against John and Thomas Crowill.
    DECEMBER, 1823.
    Judgment by da-feíaratíonf &- ror not cured by wards films
    
      Sallee, for plaintiff
    
      Crawford and Hitchcock, for defendant in Error.
   JUDGE Minor

delivered the opinion of the Court.

In this case it is assigned as Error — that the judgment was rendered when there was no declaration filed or suit pend-mg,

.It appears that the Writ issued, and was executed on the 27th day of March, 1822 : that at the return term {April, 1822,) no declaraban being filed, final judgment by default was rendered against Rankin. With the transcript of the Record sent up on the return of a certiorari, is a copy of a declaration, which the Clerk certifies to have been filed in his office on the 1st day of July, 1822 ; and that he inserted it in the transcript by mistake. Marks of erasure are drawn .across it. This copy can no more be considered part of the Record than any other matter which the Clerk might insert by mistake and afterwards obliterate ,; nor could his act make a paper which had been filed in his office after final judgment, part of the Record, or lay a foundation for the judgment .after it had been rendered. That a defendant cannot be in default for not pleading until he has been duly informed by the plaintiff’s declaration of the charge to be answered, and that this should so set out the cause of action that the judgment may bar any other action for the same cause, are positions too evident to require argument or authority.

It is the opinion of the Court that the judgment and proceedings be reversed down to the Writ, and that the cause foe remanded.  