The motion for judgment, in an action of ejectment, must be founded on an . affidavit of the service of the writ, and must be at the term when default is made.
Error to the Common' Pleas of Fayette county.
Richard E. Bowman brought this action of ejectment against Geo. Tracy, for a house and lot oí ground, with the premises, situate in Smithiield, George township, and occupied by said Traer as a public house, containing forty four perches of ground, number-11 in the plan of. said town, adjoining lots of-.” The writ-contained the same description. The suit was brought to October term, 1823. There being no appearance. fo,r the defendant, the court,,on motion,'entered a judgment for the plaintiff; which they afterwards, on argument refused to open.
The errors assigned were — I. That the judgment ivas entered without an affidavit of the service of the writ, and not at the term when default was made, and, 2, That the .description was not sufficient.,,
W. Wilkins, for plaintiff in error,
cited 2 Sec. of the Ret of IS Rpril, 1807, Purd. Dig. 204. Lyons v. Miller, 4 Serg. 8? R. 279.
Rustin contra,
cited Cahill v. Benn, 6 Bin. 99. 1 Penría. Prac. 32. Crosby v. Massey, 1 Penría. Rep. 232. 2 Penría. Frac. 425.
It is unnecessary to saly any thing about the description, as the judgment is clearly irregular. The act of assembly-points out the method to b.e pursued in similar cases. The motion for judgment must be founded on an affidavit of service, and must *71be at the term when default is made. There was no affidavit here# and the judgment was had at an improper time; so that it is impossible to sustain it.
Judgment reversed
3 Pen. & W. 70
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