
    Alanson Wallis versus Pearly Truesdell et al.
    
    In trespass against an officer for attaching property of the plaintiff in an action against him which was not sustained, it was held that he was not estopped to show that the property belonged to him, although at the time of the attachment he declared it belonged to a stranger, the plaintiff having acquired no advantage and the officer having sustained no damage by such declaration.
    Where a defendant, whose property had been attached, made an agreement with the plaintiff that the defendant should take the property, and if an adjustment of the suit should not be made, should return it and the plaintiff might then sell or dispose of it as he chose, and apply the proceeds to his claim against the defendant, and the property was delivered to the defendant and returned to the plaintiff and afterwards sold by the officer, by auction, upon the mesne process, the defendant forbidding the sale $ it was held, that the defendant had a right to revoke die license to sell.
    Where an officer sells chattels attached on mesne process, without pursuing the provisions of St, 1822, c. 93, and the defendant prevails in the suit, the officer becomes a trespasser ab initia, and is liable to an action without any previous demand on him for the chattels.
    Trespass de bonis asportatis. The defendants pleaded jointly not guilty.
    
      At the trial, before Wilde J., it appeared, that the property taken was attached by one of the defendants, a deputy-sheriff, upon a suit by Truesdell against Wallis, in which Wallis prevailed. The plaintiff (Wallis) had stated on several occasions to Truesdell and to other persons, that no part of the property was owned by him. Some time after the attachment an agreement was made, at the request of the plaintiff, between him and Truesdell, that Truesdell should permit him to take the property into his possession upon his furnishing a good receipter therefor, and that if an adjustment of the suit should not be made' in two or three weeks, he should then return it to Truesdell, and Truesdell might then sell it or dispose of it as he chose, and apply the proceeds on his claim against the plaintiff. The property was delivered to the plaintiff and afterwards returned to Trues-dell, pursuant to the agreement, and was subsequently sold by the officer, by auction, upon the mesne process. The plaintiff was present at the sale and forbade it, saying the property belonged to one Lendal Wallis. There was other evidence tending to show that the property belonged to the plaintiff, notwithstanding his declarations, and that at the time of making the declarations he was in embarrassed circumstances.
    It was contended for the defendants, that this action could not be maintained, because no demand of the property had been made by the plaintiff; that the plaintiff’s declarations were conclusive evidence to prove that the property was not his ; and that the agreement respecting the sale of the property being made upon good consideration, was binding upon him, and a sufficient objection to this action. The jury however were instructed, that the declarations were strong evidence against the plaintiff, but not conclusive, and that if from the whole evidence they should be satisfied that the property belonged to him, and that his declarations were made for the purpose of preventing his creditors from attaching it, they might find a verdict in his favor. They were further instructed, that a demand was not necessary, as Truesdell did not prevail in his action, and it would have been the duty of the officer to return the property in a reasonable time after the determination of the action, if it had not been sold ; that the sale was unauthorized and made the defendants trespassers ab initia, for although the plaintiff at one time assented to the sale, yet he had a right to revoke his assent, and if he did revoke it before the sale, the officer was not authorized to proceed without pursuing the directions of the statute in such case made and provided.
    
      Sept. 18th
    
    
      Sept. 26th
    
    To these instructions the defendants excepted ; and if they were incorrect, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.
    
      G. Bliss junior and Chapman,
    
    for the defendants, cited, as to the license to sell, Tillotson v. Preston, 7 Johns. R. 285; Winter v. Brockwell, 8 East, 309; Thomas v. Sorrell, Vaugh. 351; Vin. Abr. License Jl, pi. 2, and E, cites 5 H. 7, and 1 Ma. Dyer, 92 ; — as to the necessity of a demand, Gates v. Lonusbury, 20 Johns. R. 429; — and as to the plaintiff’s declarations, 2 Stark. Ev. 28, [5th Am. ed. 18.]
    
      Bates, Dewey and Jlshmun, contra,
    
    cited on the last point, Hall v. Huse, 10 Mass. R. 39.
   Wilde J.

delivered the opinion of the Court. We are all of opinion that the instructions to the jury were correct, and that the plaintiff is entitled to judgment on the verdict. As to the question of property, the jury were instructed that the declarations made by the plaintiff were strong evidence against him, but were not conclusive; this was certainly proper, unless, as the defendants contend, they operated by way of estoppel, which cannot be maintained. If these declarations had been acted on by the other party, and thereby the plaintiff had acquired some advantages, or the defendants had sustained damages, it would have been otherwise. But the case shows that the admissions of the plaintiff, although made with a view to influence the conduct of the defendants, did not in fact influence them, and that they did not act on these admissions. On the contrary, the defendants claimed the goods in question as the property of the plaintiff, and they were sold as his property, so that if the plaintiff were estopped by his admissions, the defendants on the same ground would be estopped to deny the plaintiff’s property ; there would therefore, on that supposition, be estoppel against estoppel, and the question would be left open to the admission of other evidence. We are however of opinion, that there was no estoppel on either side. It was altogether a question of evidence for the jury, and tneir verdict must be conclusive.

On the other point, it has been objected that the license was irrevocable, because it was founded on a sufficient consideration, and ought therefore to be considered as a valid contract. But we do not view it in that light; there was no sufficient consideration to support a contract. The agreement between Truesdell and the plaintiff was of no benefit to the plaintiff, nor was it any damage to Truesdell. He had no legal right to the property attached, nor had he any control over it. And if the agreement had been made between the plaintiff and the officer, still it would be nudum pactum; for it was the officer’s duty to accept a good receipt for the property ; and if not, he has not been injured thereby, nor has the plaintiff received any benefit. We think therefore the license was revocable ; and having been revoked before the sale, the sale was unauthorized ; and thereby the defendants became trespassers ab initia.

Judgment according to verdict. 
      
       See Tufts v. Hayes, 5 N. Hampsh. R. 452.
     
      
       See Mansfield v Mansfield, 6 Connect. R 559.
     