Opinion by
Mb. Justice Heydbick,
The defendant was indicted for forcible entry and detainer, and, having pleaded to the indictment, was, on Sept. 14, 1887, found “ not guilty of forcible entry, but guilty of forcible detainer.” On the next day a rule for a new trial was granted, which was, on Jan. 30, 1888, made absolute. Nothing further was done in the cause until Dee. 11, 1888, when the defendant pleaded guilty, as well =to the counts charging forcible entry, on which he had been acquitted, as to one charging forcible detainer alone. The next step in this somewhat remarkable proceeding was taken on Feb. 21, 1889, when the court sentenced the defendant, inter alia, to restore the property de*178tamed, and upon the petition of the prosecutor awarded a writ of restitution. Promptly, within two days thereafter, Mrs. Catharine Win ton presented her petition to the court, setting forth, in substance, that she had title to one undivided half of the premises ; that Griffin had been her tenant, put in peaceably by her; that she had retained counsel to defend him, but that he had ignored such counsel, and, in collusion with the prosecutor, pleaded guilty to the indictment, and left the premises ; and that she had resumed possession by other tenants. Upon this petition a rule to show cause why the order for a writ of restitution should not be vacated was granted, and subsequently made absolute. This is all that is before this court, but it must be presumed that - the learned court below found, upon proper evidence, the facts set forth in the petition upon which its rule to show cause was granted. This being done its way to make the rulé absolute was clear. No court ought ever to lend its aid in the enforcement of a collusive judgment to the prejudice of innocent persons. Griffin was out of possession, and therefore, so far as he was concerned, a writ of restitution would have been of no avail; and as the persons in the actual possession did not hold under him, but under Mrs. Winton, whose interests he had endeavored to betray, the writ could serve no lawful purpose: Com. v. Gable, 1 Penny. 26. It would, however, have harassed and annoyed the tenants in possession, and if the sheriff had been ill advised, it would, no doubt, have led to further litigation, of a character which would have left the right of possession as far from being settled as it now is.
The order of the court below, making absolute the rule to vacate the order for a writ of restitution, is affirmed.