The plaintiff brought this action • against defendant Sykes for possession of the premises mentioned, alleging that Sykes was his tenant, and. had defaulted in paying rent. The defendant Pickett filed an affidavit before a Justice of the Peace before whom the action was pending, and applied to be made a party-defendant, and to plead and defend the action, alleging that he was the owner and that Sykes was his tenant. This motion was refused, and Pickett appealed to the Superior Court, and renewed his motion to intervene. Pickett was made a party-defendant and was allowed to plead and try the question of tenancy, but, as we understand, was not allowed to make any other defense, and from this ruling, and the judgment recorded, the defendant appealed to this Court.
*212Erom the affidavits and evidence it appears that in 1892 the plaintiff, Cheek, contracted to sell tire land described to the defendant Pickett, took Pickettis notes for the purchase money, and gave him a bond for title when the purchase price was paid, and Pickett rented the land to Sykes; that Pickett has made some payments. It also appears that subsequently Pickett agreed that his tenant might pay the rents to- the plaintiff, toi be credited on his land note; that thereafter the tenant Sykes rented from the plaintiff, agreeing to become his tenant, and that this agreement was entered into without the knowledge or consent of Pickett, who afterwards, for reasons stated in his evidence, forbade Sykes to pay rents to the plaintiff any longer.
We have recited tire above for the purpose of saying that we think Pickett has an interest in the matter, and that he has the right to intervene as a party-defendant and make such defense as he may have.
We express no opinion, however, on the rights of the parties, but we think there has been error committed in the course of the proceedings. The Justice who had the action before him ought to have allowed Pickett to intervene as a party-defendant, and to plead and make his defense, and when the cause came Before his Honor by appeal he should have remanded the case to tire Justicei, with directions to' allow Pickett to become a party and to plead.
Wo, therefore, remand the case to the Superior Court, and direct that his Honor set aside the order heretofore made allowing- Pickett to intervene in that court, and that he remand the cause to the Justice of the Peace, directing him to allow Pickett to be made a party-defendant, and to plead and defend the action, as he may be advised.
Error and remanded.