Case No. 8,723.

McCORMICK v. MAGRUDER.

[2 Cranch, C. C. 227.]¹

Circuit Court, District of Columbia.

April Term, 1821.

MISTAKE—FAILURE OF CLERK TO ENTER APPEARANCE—EJECTMENT—HABERE FACIAS—MOTION TO QUASH.

In ejectment, if the clerk by mistake omit to enter the tenant's appearance at the first term, and judgment be entered against the casual ejector, and a habere facias be issued, the court will, at a subsequent term, upon affidavits, quash the habere facias, and rescind the judgment, and permit the tenant to appear, upon entering into the common rule.

[Cited in Reiling v. Bolier, Case No. 11,671. Cited in brief in Blagden v. Broadrup, App. Fed. Cas.]

In ejectment there had been judgment at December term, 1819, against the casual ejector by default, and a habere facias issued returnable to this term.

Mr. Taney, for the tenant, moved the court to quash the execution, and rescind the judgment, and permit the tenant to appear, upon entering into the common rule.

This motion was founded upon affidavits that Mr. Marbury ordered the clerk to enter his appearance for the tenant before the judgment was entered, but the clerk, by mistake, entered it in another case.

Mr. Wallach and Mr. Jones, for plaintiff, mentioned the case of Baker v. Glover [Case No. 769]. And see, also, Sherburne v. King [Id. 12,759], at June term, 1820, and Jones v. Llwellyn [Id. 7,477], at March term, 1820, and December term, 1819.

THE COURT, upon the affidavits and motion, quashed the habere facias, rescinded the judgment, and permitted the tenant to appear.

¹ [Reported by Hon. William Cranch, Chief Judge.]

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