This case comes before the court on a writ of error to the common pleas of Delaware county. The action was against Kidzie, the defendant below, for a false return made by him, as a magistrate, in a cause of David Booth Beers and Sally Beers against the Sac/criders, defendants in the justice’s court, by reason of which false return the judgment was affirmed. To the declaration in the common pleas, the defendant pleaded, that the judgment of affirmance in the supreme court, on the certiorari, was by default. To this plea there ivas a demurrer ; on which the common pleas gave judgment for the plaintiff, that the plea was bad.
The question here is, whether a party in a certiorari, who suffers judgment to be taken against him by default, can maintain an action against a justice for a false return ?
None of the cases referred to by the plaintiff’s counsel warrant the position taken by him; and it does not seem to be sup*198ported by any general principles of law~ The declaration in this case, as it must in all such cases, avers the falsity of the re. turn, and the materiality of the matter alleged to be falsely returned ; and if it was not material, the justice might have so pleaded as to have shown this upon the trial. The plaintiffs aver, that by reason of such false return, they were unable t~ obtain a reversal of the judgment. This is sufficient. The j~udgment of the court below must, accordingly, be affirmed.
Judgment affirmed.