majority">By the court, Parker, P. J.

The defendants in error instituted summary proceedings before ,a justice of the peace tjnder the statute, to dispossess .the plaintiff in error of certain premises occupied by him as their tenant, which upon a trial by jury, resulted adversely to the plaintiff in error, and he brought the case into this court by certiorari. A return having been made to .the certiorari by the justice, a motion is now made for an order setting aside the return on various grounds,.and.directing a new one; or if it shall not be.set-aside, for the striking out of portions of it,.and for an amended- return answering various interrogatories.

The return should, not be set aside on the ground that it is incorrect or untrue, or defective in its statements, or that it contains immaterial matters.' The only available ground' on which the. plaintiff in error asks to set it aside is, that the attorney and counsel of the defendants in error improperly interfered with the getting up and making of it.

• It appears that the attorney of. the defendants in error made a draft of a return for the justice, which he took home with him, and “ corrected, altered and fixed,” to correspond with his minutes and recollection., and then caused it so corrected to be- copied and filed. It was held in Hunter agt. Graves (4 Cow. 537), that a return drawn by the attorney for the defendant in error, would'not be set aside for that reason, unless some abuse is shown, though a stricter rule is held when it is drawn by the attorney of the party seeking, to reverse the judgment. I do not see any such reason to believe that any abuse ha.s occurred here as to call-for the setting aside of the return. -

*377In regard to the amendment of the return, in answer to the several interrogatories contained in the notice of motion, I think the plaintiff in error may be entitled to it for the purpose of bringing more distinctly before the court the points of his case on which he relies for a reversal of the decision before the justice. It is not necessary here to decide whether the testimony of Mr. Brooks should have been allowed, or. was properly stricken out. I think the plaintiff in error, is entitled to have it returned, with the rulings in regard to it.

There is one of the interrogatories however (the 18th), which I do not think should be allowed to be answered. It inquires in whose handwriting a portion of the return is. This is a matter not within the requirements of the writ, and by no means appertains to the return, to speak of.

The matters sought to b§ stricken out are neither irrelevant nor improper, but are facts material to appear, in the case, and the proper subjects of a return. If any of them are untrue, they cannot be disposed of in this summary manner. I think the motion, therefore, should be denied except as:to the amendment, a.nd that an order should be entered directing the justice to answer all the interrogatories contained in the notice of motion, except the 18th, and that no costs of this motion be allowed to either" party.

Order accordingly.

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