The Court below gave the following instruction to the jury : “ Where one man’s stock trespasses on another’s grain, the law implies a promise on the part of the person owning the stock to pay whatever damages the party may have sustained by reason of such trespass, and it is not necessary that an express promise be proved in order to entitle the plaintiff to recover.”

There is no count in the complaint for grain sold and delivered by plaintiff to defendant, or for pasturage. It is therefore unnecessary to decide whether a tort such as is set forth in the complaint can be waived, and a plaintiff recover in assumpsit. The complaint herein is either a declaration in trespass, or it alleges an express promise to pay the amount of damages done after the injury was consummated. Upon either construction of the complaint the instruction was manifestly wrong.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.