
    Townsend against Phillips.
    ALBANY,
    Jan. 1813.
    Where goods taken on an execution aconstoble’ were claimed propei-ty! and summoned^a jury of inquiclaim; it was inquiskkmwas fion uTan^ac" tion of tresbyA against but went oiiiy in mitigation oi damages ¡ though such may¡¡n many cases, justify the officei for making a return of nulla bona
    
    Whether a constable has powei to summon a jury of inquiry to property; taken by him on execution ? Quiere. try’a’ciaim
    IN ERROR, on certiorari, from a justice’s court. Phillips brought an action of trespass against Townsend, for taking and 7*S »’ay a quantity of oars, the "property¡s^the plaintiff below. Townsend, the defendant, who xrattiftibhstable, pleaded that he took the oars in question near the store of William Shaw, by vir* execution against Jofin Inman, and as bis property; that the plaintiff claimed them as his property, and the defendant thereupon called a jury of giquiry to try the claim, and the j7 found the oars to be t*e property of Inman. The facts defendant’s plea were proved; but the justice,, ootwithstanding, directe^ti^ cause to proceed; and the defendant then waived all thejmmier proceedings, and the cause was investigated ou^p^ merits. The plaintiff proved a bona fide sale of the oars to him, for a valuable consideration, by Inman, 4 or 5 days m before the .execution issued, and the justice gave judgment for the plaintiff, for 17 dollars damages.
    
      Powers, for the plaintiff in error.
    
      Cantine, contra.
   Per Curiam.

The inquisition taken by the constable was not of the plaintiff" below, 1 justification to him, in an action of trespass, for taking the goods It could only go in mitigation of damages. The authorities referred to in the case of Bayley v. Bates, (8 Johns. Rep. 185.) generally support this point, and make a distinction between an action against the sheriff for taking goods not belonging to the defendant in the execution, and an action against him, by the party in the execution, for returning nulla bona, upon the strength of such an inquisition. It may, in many cases, justify him upon a charge for a false return, for omitting to act; but not in the other case, for actually seizing goods, not belonging to the party against whom he was" to proceed.

Assuming, therefore, that a constable may, upon an execution, summon a jury, and take an inquisition, (on which point the court give no opinion,) yet, in this case, and in this suit, it did not amount to a justification.

Judgment affirmed.  