(dissenting.) I concur with the majority in that part of their opinion which declares the proceedings before the al-calde void; also in that part which refers to the issue that should have been formed and tried in the court below; but I cannot assent to those parts of the opinion which represent that the respondents, by their answer, admitted the quiet and peaceable possession of appellant as averred in his petition. The appellant, on his part, represents that on a day mentioned he was in the quiet and peaceable possession of the premises in controversy, which, if true, or admitted, would entitle him to recover, but the respondents deny the averment of this appellant, and put the same iu issue, not in the technical form of making such an issue, but in substance, by declaring, “that they were in “ the quiet and peaceable possession of the same until the said “ Ladd with force and violence attempted to take possession “ thereofand that he entered upon said real estate as a tres*23passer; that the agent of respondents, at the time, represented to appellant that the property belonged to respondents, and was in their possession. The question is not what was the remedy of respondents, nor what ought to be the decision of the court below upon a trial on the merits. If the appellant was in the quiet enjoyment of actual possession, and was forcibly ousted by the respondents, with the aid of illegal interference on the part of judicial officers, he ought to recover the same and hold it until ejected therefrom by due course of law; but if the aver-ments of the answer be true, he was not in such possession, he was a naked intruder, interrupting the respondents in the peaceable possession of their premises, when he was forcibly expelled. As well might it be said that he who forcibly, and with violence, enters a room in the temporary absence of the tenant, can sustain an action for recovery, because he was forcibly ejected therefrom on the return of the tenant.
If the statements of the respondents then be true, the appellant would have no right to recover the possession, obtained through force and violence and by his own tortious acts; and the facts stated by respondents being inconsistent with the truth of the petition, the case is substantially at issue. It was unnecessary for the respondents to admit or deny that part of the complaint in relation to the illegal proceedings of the alcalde. Those proceedings should not have been set forth in the complaint, and should be rejected as surplusage, and if exceptions perform the office of demurrers, the court below should not only have overruled the exceptions in this case, but should have directed appellant to amend his complaint. If there were any rules of practice in this State regulating- the forms of proceedings before courts of First Instance it would perhaps be proper to award a repleader ; but by the acts of 28th of February, imperfections, errors and irregularities in pleadings are to be disregarded ; and believing that in substance there is an issue before the court below upon the question of peaceable and quiet possession at the time mentioned in the complaint, I think the court below did not err in overruling the exceptions, and that the issue should then have been tried on its merits, not*24withstanding notice of appeal had been given, and that this court ought not to entertain jurisdiction; the decision of the court below being on a collateral question and not conclusive as to the true points in issue.