| Superior Court of New Hampshire | Dec 15, 1846
This is an action on the case against the deputy sheriff, for taking, upon a writ of attachment, the plaintiff’s light red cow, it being his only cow, according to his allegation, and as such exempt from the process by the provisions of the statute. There is also a count in trover for the same cow.
A verdict vras taken, by consent, for the plaintiff, subject to the opinion of the court upon questions presented by an agreed statement of the evidence.
Upon some evidence supposed to exist, that the plaintiff was at the time of the attachment the owner of two cows, a question has been made in the argument whether he had the right to elect which of them to retain, as under the protection of the statute. But the question does not properly arise, since no evidence of an election is afforded by the case, except that which is afforded by the bringing of the action. It seems plain that some other indication of election should be given, in order to enable an officer to proceed with safety in the discharge of his duties.
From the ease it seems that “ the defendant contends that there is no evidence to show that the plaintiff did not also own the dark red cow, and contends that he did own both.” We think we are not justified in construing that language as an agreement of the parties that judgment shall be rendered upon the verdict, if any evidence does exist from which the jury might find that fact. We therefore cannot undertake to consider the evidence contained in the case, further than to ascertain that it is such as might justify a verdict either way. The court will not assume to pronounce upon the weight of evidence.
For this reason, and that the jury may find whether the dark red cow was or was not the plaintiff’s, or rather
If the cow in question was his only cow, the action being case, will lie for the damage sustained by the plaintiff through the tortious act of the defendant. 1 Chit. Pl. 138; 1 Saund. Pl. and Ev. 390.
Case discharged.