
    Jesse Balcom, Executor of Job Knap, versus Benjamin Craggin.
    Knap, being a constable, attached in 1807, upon a writ in favor of Craggin against Hosea Sprague, an ox-wagon and a pair of oxen, as the property of Hosea S., and delivered them to Phoebe Sprague, taking her receipt and promise to redeliver them when called for. Craggin recovered against Hosea S. and within thirty days from judgment delivered his execution to Knap, and the bailee having refused to deliver the chattels, Knap brought an action against her ; in which he failed, not having demanded the chattels within the thirty days, and judgment was rendered in favor of the bailee for costs of suit. (Knap v. Sprague, 9 Mass. R. 258.) While that action was pending, Craggin, by a written contract not under seal, “ agreed to release Knap from all costs on account of the action, Sic., and it was agreed that Knap was to be entirely released from the same both as to debt, costs or damage.” The executor of Knap paid the costs recovered by the bailee, and brought the present action upon Craggin’s agreement above recited for an indemnity ; but as it did not appear that the suit against the bailee was prosecuted at Crag-gin’s request, the Court held that the contract was without consideration and ordered a nonsuit.
    
      Sibley and Merrick, for the plaintiff,
    cited Howes v. Martin, 1 Esp. R. 162.
    
      Taft, Davis, and Mien, for the defendant
     