This in action of assumpsit, for money had and received, and on account annexed for hay and timber cut on a lot, which plaintiff claims to own. The case states that the lot was sold for taxes, and a deed given to the town, and that an agent of the town cut the grass and timber. There is no fact stated which shows any contract, direct or implied, between the parties. The cutting, apparently, was under a claim of a title, adverse to that of the plaintiff, and against his will or consent.

There is no allegation in the agreed statement, that any money had been received by the town from said hay or timber, or that it had ever been sold and converted into money. We see no ground on which the tort can be waived, and assumpsit be maintained.

Plaintiff nonsuit.