
    James vs. Hartney.
    After an execution had been duly returned by a constable, judgment was recovered against him in an action for neglecting to return it; the justice having omitted to enter the return in his docket, and the constable being unable to prove it by other evidence. Held', that the omission of the justice did not render him liable to the constable.
    On error from the St. Lawrence common pleas. Hartney sued James before a justice, and declared against him as follows : “ The plaintiff declares in a special action on the case for gross and wilful negligence of the defendant in not entering the return of an execution in his docket, he being a-justice of the peace of &c., by which neglect the plaintiff was injured by being made liable as constable «fee., to his damage of fifty dollar’s.” Plea, not guilty. On the trial, it appeared that Hartney was a constable, and James a justice of the peace; that Hartney and his bail had been sued for his neglect to return an execution issued by James; that the suit was defended, and James testified therein to the fact of the execution having been issued, but no return of it was entered in'his docket, and he did not remember to have seen it since it was issued. Judgment was recovered against Hartney and his bail in that suit, which Hartney after-wards paid. It further appeared, on the trial of the present suit, that the execution had been duly returned by Hartney, renewed by James, and delivered to another constable. The justice rendered judgment in favor of Hartney, which was affirmed by the common pleas on certiorari, and James thereupon brought error.
    
      R. H. Gillet, for the plaintiff in error.
    
      J. D. M'Laren, for the defendant in error.
   By the Court, Beardsley, J.

The court of common pleas should have reversed the judgment rendered by the justice, as it was clearly erroneous. The declaration shows no cause of action against the defendant below, and is a nullity on its face. It alleges that the constable was made liable, because the justice neglected to enter in his docket the return of an execution. This is illogical The constable was not nor could he be made liable for the neglect of the justice, but only for his own neglect. (2 R. S. 253, § 159.) On . the trial of the suit brought against the constable and his sureties, his neglect was established, and for this the plaintiff there recovered. The constable might then have proved, had he been able to do so, that he returned the execution, although the justice had omitted to make the proper entry. The injury of which the constable complains has not arisen in the manner alleged by him. True, he has been made to pay damages in a case where •he was not liable, as the fact now appears, although the evidence given on that occasion was ample to warrant a judgment against him. It was his misfortune that he was unable to prove his defence; but this gave him no right of action against the justice. The judgments below were rendered on an erroneous view of .the law, and should therefore be reversed.

Judgments reversed,  