
    Den against Ferin.
    
    IN EJECTMENT.
    Where there has been a judgment in ejectment by default, on which a hab.fae. poss. has issued, the court will, on affidavit of a real defence, open the judgment on payment of costs, but will not set aside the execution, or order restitution.
    The attorney for the plaintiff had signed judgment by default, in November term last, against the casual ejector, and issued a habere facias possessionem, in the vacation, which was executed.
    
      Griffith, for the tenant,
    moved to set aside the judgment, upon an affidavit of the attorney of the tenant in possession, which stated that there was a fair defence to the action, and that he was ready to enter into the common rule and file his plea instanter.
    
    
      
       Note. — This case partially overruled in Den ex dem. Sheppard v. —---, 2 Halst. 161.
    
   Per Curiam.

As a trial has not been lost, the affidavit is sufficient to entitle the tenant to defend. Judgment ought to be set aside, on payment of costs, but it would be transcending our powers to set aside tlie habere facias possessioneyn, or to make any order for the restitution of the premises.

J udgment opened.  