delivered the opinion of the court.

The declaration, and notice thereto attached, not having been noticed on the record at the term to which the tenants were warned to appear, though filed with the clerk of the court before the appearance term, it was erroneous at a subsequent term to proceed in the cause, and by common order, take judgment against the'casual ejector: 3 Mar. R. 551.

It is the opinion of a majority of the court, Judge Mills dissenting, that the judgment must be reversed, with cost.