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.