The judge’s refusal to instruct the jury that the defendant was liable, as a trespasser ab initia, was clearly right. The only error in the trial was the admission in evidence of the declaration of Ann McGough as to her ownership of a part of the property which the defendant attached as hers.

All the property mentioned in the plaintiff’s declaration, except the pork, was claimed by the plaintiff under a sale thereof to him by his sister, Ann McGough ; and the question on which the defence of the action turned was whether that sale was fraudulent and void as against her creditors for whom the defendant attached it. The plaintiff did not claim the pork under a sale from his sister, but denied that it ever belonged to her, and contended that it was always his own. And he introduced testimony for the purpose of proving that fact, which, if proved, would have supported his action so far as to have entitled him to damages for the attachment of the pork. To control that testimony, the defendant was permitted, against the plaintiff’s objection, to introduce, among other evidence, the declaration of Ann McGough, not made in the plaintiff’s presence, that the swine, of which the pork was a part, were hers, and were bought by the plaintiff with her money. Evidence of that declaration should have been excluded. She was a competent witness, and might have been called by either party. If she had been called *504by the plaintiff, and had testified that the pork was never her property, the defendant might then, for the purpose of discrediting her testimony, have given evidence of her having made a contrary declaration. Exceptions sustained.