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 *488neglected 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,