The ruling of the presiding judge that, assuming the evidence produced upon the trial to be true, the defence set up by the defendants would not avail, them, and that the plaintiffs were entitled to recover the value of the sand sued for, was erroneous. If the evidence was true, it was clearly shown that there had been no contract, express or implied, between the parties, and therefore an action of contract cannot be maintained by the plaintiffs. Assuming that the sand belonged to the plaintiffs, and that it was sold to the defendants by Coman without authority, their remedy is against him, or against the defendants in an action of tort for the unlawful taking, detention and conversion of the property. It is only when the wrongdoer has sold the property unlawfully taken or detained, and received the money for it, that the owner can waive the tort and maintain an action of contract, and in that case the action must be for money had and received to the use of such owner. Jones v. Hoar, 5 Pick. 285. The exceptions therefore are sustained, and a

New trial grcmied.