It appears, by the record brought up from the county court, that Silver brought his action against Mason, before a justice of the peace, for taking ,and selling, on execution, his, Silver's, only cow. This action was tried and appealed, and, on a trial before the county court, Silver obtained a verdict, and a bill of exceptions was filed and allowed, upon which the errors are now assigned. There was no dispute on the trial before the county court, but that Mason had taken and sold, upon a regular execution in his favour, against Silver, a certain cow he found in the possession of Silver, and which Silver before purchased of one Davidson. The main question was, whether this were Silver's only cow at the time of the attachment on Mason's writ, and sale on his execution ?

The Court cannot but regret the intricacy attached to this question,.by the spreading of the evidence upon the record in detail, as if the Court were to judge upon its weight, when in fact that is wholly within the province of the jury. These exceptions might have been reduced to a narrow compass, by merely stating, that the testimony tended to prove such and such facts, selecting those on which the charge of the Court was, or ought to have been, predicated.

The objections now urged, comprise the admission of testimony objected to, and the charge of the Court to the jury.

It appears that testimony was offered by the plaintiff, Silver, and objected to by Mason, but admitted by the Court, tending to prove that Silver was very destitute of property, and had a large family of children to maintain. This testimony could not be pertinent upon the question of the plaintiff’s right to recover something. For a rich man’s only cow is as strictly exempted from execution as that of a poor man. It could not be pertinent or necessary to entitle Silver to recover the value of the cow, for that depended upon the question of her being his only cow. It could not be pertinent as entitling Silver to aggravated damages, because it was not set up in the writ for that purpose *368an<^ the other party was not obliged to come prepared to meet such testimony. The Court consider this testimony ought to have been excluded. But, it is so remote in its tendency, and the charge of the Court placed the merits of recovery so entirely upon another ground, and the damages are not so high as to have been greatly enhanced by this testimony, it is doubtful whether we ought to reverse the judgment upon this ground merely. If the law of the whole case were clearly on the side of the original plaintiff, it would be an injury to the original defendant to succeed in reversing this judgment, for the sake of his chance to diminish the damages.on another trial.

We will now advert to the charge of the Court upon the main question in dispute, to wit, whether Silver was owner of any other cow at the time Mason took away the Davidson cow by his attachment, and sold her on execution ? There was testimony went to the jury, which, if they believed the witnesses, warranted their finding the following facts: that some time in August, 1823, Mason, the present plaintiff in error, sold to Silver a cow ; that some time in October following, Silver delivered this cow to one Coburn, in exchange for one other cow then delivered him by said Coburn, who was to give Silver three pecks of corn as boot, but which was never paid ; that on the 12th of November following, Mason attached.the Davidson cow, by virtue of his writ against Silver, the cow that came from Coburn being then in possession of Silver; that Silver, a little before this, told Moses Mason he owned two cows, and offered to sell him either of these in his possession ; that as late as the 15th of said November, Silver drove the Coburn cow back and presented Coburn with the line stated from Harvey Scott, sheriff, claiming to have back the Mason cow, on account of some prior attachment on a writ against Silver. Coburn changed back, and sheriff Scott, about the last of December or first of January following, sold her at publick vendue to a Mr. Corey, who furnished milk for Silver’s family a few days, and then Corey swapped with Coburn again, and let to Silver for the following summer, at four dollars, the cow he had of Coburn. After this sale by sheriff Scott, the Davidson cow was sold upon Mason’s execution.

Now it is evident from the above statement of facts, that, if sheriff Scott had attached, by any writ, the Mason cow, before Silver passed her to Coburn, he must have left her in possession of Silver, and when Silver had exchanged with Coburn, the one he had of Coburn was in his possession, under his control, and both that and the Davidson cow were his in such a sense, that a creditor taking either of them did not take his only cow. And Mason was warranted in taking the one he took, and the claim set up by sheriff Scott, had it been ever so valid as against Silver, and the change back of the cows with Coburn, at least three days after Mason’s attachment, could have no effect to defeat Mason’s attachment. So that, upon the facts that might well be found by the jury, Mason had a right to recover, even if sheriff Scott acted under a regular writ and execution against Silver. *369But there was no evidence before the Court and jury that Mr. Scott was ever clothed with any such process. He appears in the character of an individual without legal process.

Now what was the charge of the Court as the law arising upon the foregoing facts ? So far as relates to the want of evidence of Mr. Scott's having any legal process under which he acted, the charge was correct. It also correctly laid down an abstract principle of law, that “when a creditor causes the property of his debtor to be attached, and leaves it in the hands of such debtor, it was no bar to a subsequent attaching creditor.” Had the Court stopped here, and applied this principle to the case, and said no more, probably the jury would have decided the cause the other way; at least, they might have so done. But the Court proceed to charge the jury, “that the cause was narrowed down to one point; that, if they should find, on weighing the whole of the evidence, that at the time when Mason attached Silver's cow, that was the only cow he then did own, then they would find damages for the plaintiff; but if he had more than one cow, then to find for the said Mason his cost.” It is obvious that this part of the charge lets the whole cause rest upon the question of Silver's being the owner of two cows, without any suitable instruction what was intended by ownership, as applied to this case. It leaves the law and the fact to the jury, in a mixed, confused state. The Court ought to have instructed the jury, that if they believed the witnesses in their testimony about Mason's selling a cow to Silver, and the latter’s exchanging with Coburn, and his having another of Davidson, and both being in his possession at the. time of the attachment by Mason, they would consider that Silver then had and owned two cows, and Mason had a right to attach one of them, and would return a verdict in favour of Mason. For want of a charge to this effect,

The judgment of the county court is erroneous and must be reversed, and the cause pass to the county court for another trial.