The rule to assign errors was a nullity. The record itself was removed by the certiorari, which presented an issue to be tried. If the defendant was to plead de novo, as it is said he is entitled to do, (and as was, in fact, done here,) the prosecutor ought to have called on the defendant to plead, or abide by his former pleas ; or if he was not so entitled, the prosecutor ought to have considered the cause at issue, and proceeded to trial. The proceedings of the prosecutor were therefore clearly irregular.
On the merits also, we are of opinion the proceedings ought to be set aside. Here is color for the suggestion that the defendant was tenant to John Fort; at least the fact is litigated, and ought to be otherwise determined. This is an application to the equitable discretion of the court; and those who stand behind the tenant may here, as in ejectment at common law, and independent of the statute, be received to defend the right. John Fort, claiming the premises as landlord of the defendant, and *the latter disclaiming his title and attorning to another, are facts which may be tried in the present action, and ought to arrest any collusive proceedings between the prosecutor and the defendant. It is unnecessary here to say in what form the landlord may be admitted to defend; but his right to *402make a defence, we think, is undoubted. It is therefore ordered, that the default, judgment, and all proceedings thereon, be set aside, and if a writ of restitution has been executed, that re-restitution be awarded. The motion must be granted.
Motion granted.(b)
(b) See 3 Chitt. Crim. Law, ed. 1832, p. 1135, et seq. Bouv. Law Dic. h. t. Cora. Dig. h. t. Bac. Ab. h. t. Poth. Proc. Civ. p. 2, c. 3, a. 3. Domat Supp. au Dr. Pub. 1. 3, t. 4, s. 3. 1 Russell on Crimes, 304, et seq. Steph. Crim. Law, 83. 2 Hale’s P. C., Phila. ed. 1847, 171, et seq. 213 ; vol. 1, 445.