i. executiox. exemp I. The defendant moved the court below to discharge certain property attached in the action, on the ground that it was exempt from the levy, under g£aj.a|.a The m0{¿0n was sustained. Among the property discharged were a cultivator and plow, and a yearling heifer. The proof shows that a part of the indebtedness for which the action was brought was incurred in the purchase of the cultivator and plow. They were therefore excepted from the exemption of the statute. See Code, § 3077. The heifer was a yearling, and was not, therefore, exempt under the provision of section 3072, which provides that “two cows and a calf” may be held exempt from execution. The circuit court erred in ordering the discharge of this property from the attachment.
2 insTitTJcery on items" admitted. II. The court below refused to give an instruction asked by plaintiff to the effect that he is entitled to recover “ the amoant charged in the bill of particulars for all items which have been admitted by defendant to p0 correct.” The abstract shows that such admissions were made. Plaintiff was entitled to recover thereon. The instruction should have been given.
*1233. pleading: amena? ' III. Numerous objections, in addition to those just noticed, are made to the judgment of the circuit court. Of these we are required to notice the following: The defendant was permitted t# amend, his answer and counter-claim. The amendment was, it is contended, erroneously permitted, for the reason that it was contradicted by the evidence. The right to amend did" not depend upon the character of the evidence given in the case. If the allegations of the amendment were not supported by the evidence, the issues presented therein would have been found for plaintiff.
4. evidence: §r?nstruc? tlons‘ IT. The defendant testified in regard to the terms of a lease, against plaintiff’s objection, based upon the ground as lease was in writing, parol evidence of the contract was not competent. But this evidence was afterwards withdrawn from the jury, and they were instructed not to -consider it. The error of its admission was therefore cured. We do not consider other questions in the case, for the reason that they may not arise upon a new trial.
For the errors above pointed out the judgment of the circuit court must be
Reversed.