The opinion
Tompkins, Judge.
I concur in the opinion of the Court reversing the judgment, but it is my opinion that a party who demands a trial of the right of property in the possession of the constable has no right, by declining to proceed in the trial, to deprive the constable of the benefit which the statute holds out to the constable by such trial, and that the constable,- for his own security, may still go on and try the right.