
    Den ex dem. Sheppard against-.
    1. \Vhere there has been a judgment by default in ejectment against the easual ejector, and a habere facias possessionem issued thereon, the court will, on affidavit of fraud or surprise, and of a'real defence, and, on payment of costs upon the judgment, set aside the Inhere facias and order restitution.
    2. The cast; of Den v. Ferin (Halst. Rep. partially overruled.
    The attorney for the plaintiff had signed judgment hy default, in November term last, against the casual ejector, and issued a habere faeias possessionem, in the vacation, which had been executed.
    
      
      White, for the defendant,
    now moved the court to set aside the judgment against the casual ejector, and the habere facias issued thereon, and award a writ of restitution; and read, in, support of *his motion, certain affidavits, stating, in substance, that he had, at the last term, informed Mr. Smalley, the plaintiff’s attorney, that he was employed for the defendant, and that he would, at any time, exchange consent rules with him ; but that owing to the nature of the public business in which he was then engaged, he had not then time to draw them; that he, therefore, requested Mr. Smalley to draw the rules, and that Smalley 'consented to do it; that relying upon the plaintiff’s attorney to draw the consent rules, he had paid no further attention to it; that the judgment had been entered against his knowledge, and that his client had a good defence; and cited 4 Bur. Rep. 1996, to shew that a regular judgment by default might be set aside where there had been no trial lost.
    
      Dayton opposed the application,
    and read counter affidavits of Mr. Smalley, qualifying but not materially changing the statement made by Mr. While: and he insisted, that although the judgment should be set aside, that the court could not set aside the habere facias, or make any order for the restitution of the premises — and cited Den v. Ferin, Halst. Rep. 431.
   Kirkpatrick, O. J.

This court has the power to set aside a habere facias, and award a restitution; and the case cited, so far as it touches that' point, has been repeatedly overruled.

Per Curiam.

Let the judgment and habere facias be set aside, and a'writ of restitution granted, but upon payment of costs.  