Per Curiam,

In this case the motion to s(rike> out the bill of exceptions signed by bye-standers, is sustained, as it nowhere appears that the Judge refused to sign it.

The judgment of the court below is reversed. The case should have been submitted to the jury. Although the constable might seize the whole, yet he ought to have sold but the share, of the judgment debior the subsequent sale of the whole horse made him a trespasser ab initie ^ and the other part owner may maintain trover or trespass at his election. Vide, 15th, Mass. Rep. 82, Melville vs. Brown.

Judgment reversed.