Mason, J.
The judge at the circuit was right in directing judgment to be in the alternative. The code has changed the law upon this subject, and where, in an action for the recovery of personal property, the property is delivered to the plaintiff and he fails in the action, the defendant cannot now have a judgment for a return of the property, or a judgment for its value, at his election. But he must, under section 277 of the code, take a judgment in the alternative, for the return of the property, or for the value thereof as assessed, in case a return cannot be had. (Dwight v. Enos & Jones, Seld. notes of cases decided in the Court of Appeals, March term, 1854. Fitzhugh v. Wiman, id. 78.) The judge erred, however, in directing the jury to assess the value of the property in this action in behalf of the defendant, who had only a special property in the horse, to the amount of his lien on his executions, at what they found the real value of the property to be.
The property being in the hands of the plaintiff, the general owner, and the defendant having only a special property therein as against the plaintiff, the true value to be assessed and recovered by the defendant is the value of the special property, which in this case would be the amount of the two executions and the defendant’s fees. I admit that sections 261 and 279 taken together would seem to require the assessment of the value of the property, and the consequent judgment to be for the real actual value of the property. Such construction, however, would work very great injustice in cases like the present, and the court of appeals have decided, in the case of Fitzhugh and others v. Wiman, (Selden’s notes of cases, supra, 78,) that the assessment of the value, and consequent judgment, in a case like the present, must be at the real value of the defendant’s interest in the property, or at the value of his special property, whenever the assessment is made against the general owner in whose possession the property is. (Selden’s notes, April 18th, 1854, p. 78.) The value of the defendant’s special property, [249]*249In this case, is the amount of the two executions and his fees, and the judge should have directed the verdict accordingly. There must be a new trial for this error.
There are other questions in the case, which have been discussed, and which will necessarily arise upon the retrial of the cause. These we may as well settle now. The most important question in the case arises upon the judge’s charge in defining the duties of the officer and the rights of the defendant, in regard to designating and determining what, of the exempt property, shall be taken and what left for the defendant, when, as in the present case, a selection is to be made from property of the same class which may be exempt under the statute of 1842. The plaintiff claims and insists that in a case like the present the officer must, before he makes his levy, notify the debtor that he has the execution and is about to levy, and that he is required to elect which of the apparently exempt property he will claim as exempt, and that the officer must leave, to the amount of $150, such property as the debtor designates; and that if the officer levies without such notice to the debtor and opportunity to elect, and the property taken is of the class of exempt property, such levy is wrongful, and the officer becomes liable in this action. The defendant, on the contrary, claims and insists that the charge of the judge in this case prescribes the true rule on this subject. The doctrine contended for by the plaintiff would, it seems to me, be a very impracticable one. The officer in many cases would find himself utterly powerless in attempting to enforce his execution, under such a rule, and in many cases the debtor might annoy the officer with difficulties, which it would be very unjust that he should possess the power to do. The prescribing a rule which shall define the duties of the officer, and at the same time properly protect the rights of the debtor, in a case like the present, is not free from difficulty. I do not think a more judicious rule can be laid down than that embraced in the charge of the judge in the case at bar, and am therefore disposed to adopt it.
It will hardly do to hold that the officer is invested with the absolute authority to determine, before he makes the levy, which [250]*250of the three horses belonging to a defendant in an execution, shall be taken, and which two shall be exempt as a team for the defendant. He might leave the defendant one of the three horses which would not work in a team with another horse at all, and thereby literally deprive the defendant of the benefit, of a team. If we allow the officer the absolute right of determining which two of the three horses shall be exempt, he may in very many ways use the authority so oppressively as to render this statute, which was intended to secure a team to a judgment debtor as exempt property, of very little value to the debtor. On the contrary, if we allow the defendant in the execution the unqualified right of selecting from the class of exempt property to the extent of holding the officer liable as a trespasser in case he does not, before he makes his levy, call upon the execution debtor and request him to elect from the class of exempt property which he will claim as exempt, such a requirement would render the execution of the process extremely onerous upon public officers, and in many cases would seriously prejudice the rights of judgment and execution creditors. If, on the other hand, we hold, as one member of the court thinks the law is, that the question whether the particular property levied upon is exempt or not, is one of fact, to be referred to the jury in every case, it leaves the law, and consequently the rights of the parties, very uncertain. The judgment and discretion of the jury, in each individual case, would become the law of such ease. The officer could never know, until the verdict of the jury was received, whether he had rightfully executed his process in regard to this species of exempt property or not. I do not understand the case of Willson v. Ellis, (1 Denio, 462.) as going the length which my brother Balcom supposes. He regards that case as holding the unqualified doctrine • that. the question whether a given article of property is exempt from execution under this statute or not, is a question the determination of which belongs to the jury, in every conceivable case. This statute of 1842 only exempts “necessary household furniture, working tools and team.” Now all that the case of Willson v. Ellis, (1 Denio, 462,) decides is that the question [251]*251whether a given article was necessary for the person claiming the exemption is one of fact, and not of law, and when the jury, as in that case, had in a justice’s court found that a clock owned by a householder was not exempt, it was held that the verdict could not be disturbed on certiorari. I discover nothing in that case which in any respect conflicts with the views which I have expressed with regard to the statute. The jury have the question ultimately left to them, I admit, so far certainly as to determine whether the property claimed to be exempt is necessary for the party claiming the exemption. But under a statute so extremely loose as the one under consideration, there is .a seeming necessity for the courts interfering and laying down some rule of conduct for the government of this class of officers, in executing processes of this kind.
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Mason, J.
The judge at the circuit was right in directing judgment to be in the alternative. The code has changed the law upon this subject, and where, in an action for the recovery of personal property, the property is delivered to the plaintiff and he fails in the action, the defendant cannot now have a judgment for a return of the property, or a judgment for its value, at his election. But he must, under section 277 of the code, take a judgment in the alternative, for the return of the property, or for the value thereof as assessed, in case a return cannot be had. (Dwight v. Enos & Jones, Seld. notes of cases decided in the Court of Appeals, March term, 1854. Fitzhugh v. Wiman, id. 78.) The judge erred, however, in directing the jury to assess the value of the property in this action in behalf of the defendant, who had only a special property in the horse, to the amount of his lien on his executions, at what they found the real value of the property to be.
The property being in the hands of the plaintiff, the general owner, and the defendant having only a special property therein as against the plaintiff, the true value to be assessed and recovered by the defendant is the value of the special property, which in this case would be the amount of the two executions and the defendant’s fees. I admit that sections 261 and 279 taken together would seem to require the assessment of the value of the property, and the consequent judgment to be for the real actual value of the property. Such construction, however, would work very great injustice in cases like the present, and the court of appeals have decided, in the case of Fitzhugh and others v. Wiman, (Selden’s notes of cases, supra, 78,) that the assessment of the value, and consequent judgment, in a case like the present, must be at the real value of the defendant’s interest in the property, or at the value of his special property, whenever the assessment is made against the general owner in whose possession the property is. (Selden’s notes, April 18th, 1854, p. 78.) The value of the defendant’s special property, [249]*249In this case, is the amount of the two executions and his fees, and the judge should have directed the verdict accordingly. There must be a new trial for this error.
There are other questions in the case, which have been discussed, and which will necessarily arise upon the retrial of the cause. These we may as well settle now. The most important question in the case arises upon the judge’s charge in defining the duties of the officer and the rights of the defendant, in regard to designating and determining what, of the exempt property, shall be taken and what left for the defendant, when, as in the present case, a selection is to be made from property of the same class which may be exempt under the statute of 1842. The plaintiff claims and insists that in a case like the present the officer must, before he makes his levy, notify the debtor that he has the execution and is about to levy, and that he is required to elect which of the apparently exempt property he will claim as exempt, and that the officer must leave, to the amount of $150, such property as the debtor designates; and that if the officer levies without such notice to the debtor and opportunity to elect, and the property taken is of the class of exempt property, such levy is wrongful, and the officer becomes liable in this action. The defendant, on the contrary, claims and insists that the charge of the judge in this case prescribes the true rule on this subject. The doctrine contended for by the plaintiff would, it seems to me, be a very impracticable one. The officer in many cases would find himself utterly powerless in attempting to enforce his execution, under such a rule, and in many cases the debtor might annoy the officer with difficulties, which it would be very unjust that he should possess the power to do. The prescribing a rule which shall define the duties of the officer, and at the same time properly protect the rights of the debtor, in a case like the present, is not free from difficulty. I do not think a more judicious rule can be laid down than that embraced in the charge of the judge in the case at bar, and am therefore disposed to adopt it.
It will hardly do to hold that the officer is invested with the absolute authority to determine, before he makes the levy, which [250]*250of the three horses belonging to a defendant in an execution, shall be taken, and which two shall be exempt as a team for the defendant. He might leave the defendant one of the three horses which would not work in a team with another horse at all, and thereby literally deprive the defendant of the benefit, of a team. If we allow the officer the absolute right of determining which two of the three horses shall be exempt, he may in very many ways use the authority so oppressively as to render this statute, which was intended to secure a team to a judgment debtor as exempt property, of very little value to the debtor. On the contrary, if we allow the defendant in the execution the unqualified right of selecting from the class of exempt property to the extent of holding the officer liable as a trespasser in case he does not, before he makes his levy, call upon the execution debtor and request him to elect from the class of exempt property which he will claim as exempt, such a requirement would render the execution of the process extremely onerous upon public officers, and in many cases would seriously prejudice the rights of judgment and execution creditors. If, on the other hand, we hold, as one member of the court thinks the law is, that the question whether the particular property levied upon is exempt or not, is one of fact, to be referred to the jury in every case, it leaves the law, and consequently the rights of the parties, very uncertain. The judgment and discretion of the jury, in each individual case, would become the law of such ease. The officer could never know, until the verdict of the jury was received, whether he had rightfully executed his process in regard to this species of exempt property or not. I do not understand the case of Willson v. Ellis, (1 Denio, 462.) as going the length which my brother Balcom supposes. He regards that case as holding the unqualified doctrine • that. the question whether a given article of property is exempt from execution under this statute or not, is a question the determination of which belongs to the jury, in every conceivable case. This statute of 1842 only exempts “necessary household furniture, working tools and team.” Now all that the case of Willson v. Ellis, (1 Denio, 462,) decides is that the question [251]*251whether a given article was necessary for the person claiming the exemption is one of fact, and not of law, and when the jury, as in that case, had in a justice’s court found that a clock owned by a householder was not exempt, it was held that the verdict could not be disturbed on certiorari. I discover nothing in that case which in any respect conflicts with the views which I have expressed with regard to the statute. The jury have the question ultimately left to them, I admit, so far certainly as to determine whether the property claimed to be exempt is necessary for the party claiming the exemption. But under a statute so extremely loose as the one under consideration, there is .a seeming necessity for the courts interfering and laying down some rule of conduct for the government of this class of officers, in executing processes of this kind. Whether the officer must find the execution debtor and allow him to make his selection from the exempt property before he makes his levy, on the pain of subjecting himself to an action of trespass for levying upon exempt property, is purely a question of law. The rule settling these conflicting rights between the officer and the execution debtor must be prescribed and settled by the courts, and the only question in my mind in regard to the whole matter is, what is the most salutary and judicious rule which can be prescribed in the given case. Shall the execution debtor be allowed the unqualified right of selecting his $150 from the class of exempt property before a levy can legally be made, or shall the officer be permitted to make his levy, reserving $150 to the debtor, and be allowed to go on and sell the same, and regard the property left by him as the exempt property, unless the debtor notifies the officer, within a reasonable time after the levy, that he desires to hold as exempt some of the property levied upon, and designates the articles; or shall we allow the officer the unqualified right of selecting for the debtor his exempt property from the class of property exempt; or shall we allow the officer to select, and refer every case to the approval of a jury, whether he shall be justified in the selection which he has made, and consequently be protected in his levy ; or shall we allow the officer to call in [252]*252a disinterested third person to select for the debtor $150 from the class of exempt property? There is no such thing on either side as an absolute question of right in regard to the selection from the class of exempt property under the statute. The debtor is entitled to possess just such rights as the courts may think it right and proper he should possess, and the case is precisely the same in regard to the officer. The' rule, however, should be definite, fixed and certain, and as the legislature have left the matter all loose and open, the courts must prescribe the rule which shall govern the conduct of the officer in regard to the execution of such process against this class of exempt property. I am satisfied with the rule prescribed in the charge of the judge, and think we should adopt it as the rule.
Shankland, J., concurred in the opinion of Justice Mason.
Gray, J., was of the opinion that the horse levied upon was net exempt property, but came to the conclusion that a new trial should be granted, on the ground that the judge at the circuit erred in directing the jury to assess the property at its full value as against the plaintiff, instead of the amount of his executions. And upon this point all the members of the court concurred.
Balcom, J.
This is an action to recover the possession of a bay horse that the defendant, as constable, took from the plaintiff by virtue of two executions against him that were issued by justices of the peace. The horse rvas retaken from the defendant and delivered to the plaintiff by the sheriff, upon an affidavit and notice issued to him at the commencement of the action. The jury found a verdict for the defendant, and by the direction of the judge they assessed the value of the horse at $65. To which direction the plaintiff excepted, and he insisted that the value of the horse should be assessed at no greater sum than the amount due upon the executions, including the defendant’s fees thereon as constable, which amount was less than $65. The plaintiff had three horses at the time the defendant levied upon [253]*253the one in question. The plaintiff claimed that he was entitled to recover the possession of the horse, upon the trial, on the ground that it was exempt from levy and sale upon execution against him.
The judge charged the jury to the effect that the plaintiff had • “ two other horses” and other articles of property which were apparently exempt from execution under the statute, or might be, at the election of the plaintiff, and which, with the bay horse claimed in this action, exceeded in value $150, and that if the plaintiff did not at the time the levy was made by the defendant upon the bay horse or within a reasonable time after he had notice of the levy, elect to claim the bay horse as exempt property, by giving the defendant notice of such election, he could not recover in this action. The judge also charged, that as the plaintiff had three horses which were proved to be worth $210, and notwithstanding two of them were necessary for the plaintiff as a team and therefore exempt from execution, yet the defendant as constable, had a legal right to levy upon and take away one of the three horses on execution against the plaintiff, and could not be made a trespasser for so doing, unless the plaintiff had made his election to claim the bay horse levied upon, as exempt, at the time of such levy; and that the plaintiff could only recover for the detention of the bay horse after giving notice to the defendant that he claimed such horse as exempt, and after demanding such horse and giving the defendant an opportunity to return the same. The different portions of the charge were separately excepted to by the plaintiff’s counsel.
I am of the opinion that the charge was incorrect. The case does not show that the plaintiff was present when the defendant levied upon the horse, or that the plaintiff demanded it of the defendant as exempt property, prior to bringing the action. The judge should have submitted the question to the jury, whether the bay horse levied upon by the defendant was a part of the plaintiff’s “necessary team.” It has been determined that the question whether a given article is exempt from execution is one of fact, and not of law. ( Willson v. Ellis, 1 Denio, 462.) The plaintiff owned three horses. The two left him [254]*254were greys, and had been worked together as a team. The one taken by the defendant was a bay, and it had been used with one of the greys and was harnessed with one of the greys when it was levied upon. It was therefore peculiarly a question for the jury to determine which two of the three horses constituted the plaintiff’s “ necessary team” at the time the levy was made.
I am also of the opinion that an execution debtor who has several horses or oxen, either two of which may constitute a team, has the right to elect which two horses or oxen, not exceeding $150 in value, he will keep for his. exempt team, and that an officer who levies upon either one of such horses or oxen without requesting the debtor to elect which he will keep for his exempt team, does so at the peril of having a jury say whether the horse or ox he levies upon is a part of the debtor’s “necessary team.” If the debtor be absent, the officer should call upon his agent, or some other person having charge of his business, to make the election. Perhaps, in the absence of the debtor, his wife may be the proper person to make the election, in some cases, as agent of her husband. (See Church v. Landers, 10 Wend. 79.)
It seems to me the most reasonable rule the court can adopt, applicable to cases where the execution debtor has more than one team, is to require the officer who makes the levy to call upon the debtor, or his agent, and request him to elect which team he desires to retain as exempt property, and in case the debtor or his agent refuses or neglects to make such election, to permit the officer to determine which of the teams is exempt from and which is liable to execution, and levy accordingly. Such a rule will protect the rights of creditors as well as debtors, and render the execution of process easy in such cases.
The judge also erred in his instructions 'to the jury as to their finding the value of the horse in question. The defendant, as constable, only had a special interest in the horse to the amount due upon the two executions on which he took it, including his fees' as constable thereon. The plaintiff was the general owner of the horse. The valúe of the horse to the de[255]*255fendant was his special interest in it. The judge should have instructed the jury, if they found for the defendant, to assess the value of the horse at the amount due upon the two executions on which the defendant took it, including the defendant’s fees as constable thereon. Such should have been the instruction to the jury upon this question, as the horse had been delivered to the plaintiff. (Code, § 277.) The rule was settled, before the code, that in an action between the general owner of property and one having only a lien upon it or a special interest in it, when the latter prevailed, his damages were limited to the amount of his lien or special interest. (8 Wend. 445. 21 id. 300. 7 Cowen, 670. 2 Caines’ Cases, 200. 4 Denio, 227.) This rule has not been changed by the code. A new trial should be granted; costs to abide the event of the action.
[Chenango General Term,
October 21, 1856.
New trial granted
Shankland, Gray, Mason and Balcom, Justices.]