The ruling of the judge, that neither the action brought against Littlefield, the attaching officer, by the plaintiff, in which he became nonsuit, nor the judgment recovered against him by Clark, his lessor, was a bar to this action, was rightly made; as was decided when this case was formerly before the court. 5 Allen, 158.
*191The instruction to the jury, as to the attachment of the plaintiff’s farming tools, appears to have been correct. And the instruction, as to the use of the barn, was sufficiently favorable to the defendant.
The exceptions do not show that the instruction was wrong, concerning the attachment of corn in the plaintiff’s possession, necessary, procured and intended for the use of his family. The court, however, adhere to the views heretofore expressed on this matter, in 5 Allen, 160, 161; and if, on a new trial, (which is to be granted,) the case shall be found to come within the decision formerly made on this point, the law, as then held, will doubtless be stated to the jury.
We are of opinion that one of the questions discussed by counsel is immaterial, and need not be decided; to wit, whether the plaintiff had an attachable interest in the hay or other fodder produced on the farm leased to him by Clark, who caused it to be attached. The jury were instructed that the plaintiff had not such an interest therein. To this ruling the plaintiff has not excepted; and the defendant has not suffered from it, because, even if it was incorrect, the damages for which, by the other instructions to the jury, he was held liable to the plaintiff, were not greater than they would have been, if the plaintiff’s interest in the hay or other fodder had been held by the judge to be attachable. The jury were instructed that the plaintiff had such an interest in those productions as entitled him to damages for the attachment thereof, and that his injury thereby caused was to be measured, not only by his loss in being disabled to feed his own and others’ cattle thereon, but in his “ being also disabled thereby from leaving upon the farm the quantity of fodder required to be left by him by the covenants of his lease.” We must understand the meaning of this last instruction to be, that the plaintiff was entitled to recover damages for having been disabled, by the attachment made by his lessor, to spend or consume all the hay or other fodder on the premises, which was produced thereon, according to the terms of his lease; for he did not therein covenant to “ leave ” the hay or fodder on the premises, in any other manner. But this cause *192of damage to the plaintiff does not exist. The lessor, by causing the attachment, disabled the plaintiff to perform that covenant, and he cannot be made answerable to the lessor for not performing it. Chit. Con. (10th Amer. ed.) 811. Platt on Covenants, 594, 595. The exception to this instruction must there fore be sustained. New trial granted.