The opinion of the court was delivered by
Pierpoint, Ch. J.It appears that when the defendant attached the plaintiff’s horses, the plaintiff claimed that he only owned the Bemis horse, so called, and that the title to the other two was in Allen ; and that whether he had any interest in them or not, could not be ascertained until he and Allen had settled. He claimed the Bemis horse as being exempt from attachment, claiming it as his team, but declined to make any selection as between the three, for the reason above stated. This, we think, left the defendant at liberty to take the other two, if he did own the three; but did not authorized him to take the Bemis horse. If he owned the three, this was a sufficient selection of the Bemis horse. If he did not own the three, the Bemis horse was not subject to attachment. On the day of sale the plaintiff forbade the defendant selling the Bemis horse — claiming it as his team. It turned out on the trial that the plaintiff did own the three horses ; but it did not appear but that the plaintiff told the truth when he said his interest in the two depended on his settlement with Allen, nor that there was any attempt at concealment, or to mislead the officer.
The court, in their charge to the jury, seem to have proceeded upon the theory that, in order to make a selection that the officer was bound to respect, the plaintiff must first-acknowledge in some way that he owned the three, and then make his selection from that number ; and so left it to the jury, that if they found that he did not claim it as one of the three, that his claim was of no avail, and the defendant was justified in attaching it. We think, if the plaintiff claimed the Bemis horse as his team, and forbid the defendant’s taking it, that was a sufficient selection to exempt it, if he owned others, whether he said anything about the others or not. The defendant proceeded upon the ground that the plaintiff owned *473the three horses, and because the plaintiff did not acknowledge it, insisted upon taking the one that he claimed as his team instead of taking those that he did not claim as his team, simply because he did not give a satisfactory reason for his claim.
Judgment reversed, and case remanded.