delivered the opinion of the court.

| John A. Miller, now deceased, by mistake out trees upon f Evans’ land, and used them in erecting houses and fences on his own land. Evans pointed out to the emploj’-ees of Miller the supposed boundary line which separated the land of the one from that of the other. A subsequent survey having disclosed the true line, this action of assumpsit was brought by Evans against M. Georgie Miller, administratrix of John A. Miller’s estate, to recover the value of the trees cut. The court below instructed the jury substantially that no recovery could be had, because-of Evans having consented to the felling of the trees, and because, the timber not having been by Miller converted into money, assumpsit could not be maintained for its value, but that Evans must sue in trespass or trover.

Neither of these propositions was correct under the circumstances of the case.

Evans did not consent to the felling of his trees. On the contrary, he distinctly forbade Miller’s employees to trespass beyond what he supposed to be the true line. That he was mistaken as to where the line was, no more deprived him of the right to claim compensation for his trees than to claim ownership in the soil from which they were taken. Consent given to the taking, or acquiescence in the taking, of that to which one supposes that he has no title, will not prevent a recovery of the thing taken, when the true title is subsequently discovered. It will acquit the party taking from all claim for damages, direct or consequential, but it will not divest title, nor prevent the owner from recovering the actual value of his propert}L

In the case at bar, Evans is entitled to recover the actual value of his trees, to be estimated upon the basis most favorable to Miller, who took them through a mistake into which he was partly led by Evans.

The action of assumpsit can be maintained though there *125was no actual conversion of the trees into money. It is held by many courts of high authority that a tort can only be waived and an action ex contractu maintained where the tortfeasor has converted into money the proceeds of his wrongful act, and has thus subjected himself to an action for money had and received.

An intimation of this sort was thrown out in O’ Conley v. City of Natchez, 1 Smed. & M. 46, and again in Mhoon v. Greenfield, 52 Miss. 440, and certainly it is supported by many adjudicated cases in England and America. A more liberal, and, we think, a more sensible rule, is laid down by the later text-writers, and sustained by many courts, to the' effect that the tort may be waived and assumpsit maintained whenever the property taken has been converted either into money or into any other beneficial use by the wrong-doer, and especially where it has been so applied to his use as to lose its identity. Cooley on Torts, 95, and cases cited; 2 Green!. on Ev., sect. 108, note 5 ; Hill, on Torts, 42 ; 1 Hill, note a.

It is impossible to perceive any valid objection to this doctrine.

So long as the trespasser retains, in its original shape, the property taken, he may logically deny that he holds it under a contract, and demand that he be proceeded against in tort, and that the tort be established against him ; but when he has parted with it, either for money or other property, or when he has mingled it with his own, consumed it in its use, or changed its form, he should not be permitted to deny the assumption to pay its value which the law imputes from his method of dealing with it. It is, indeed, greatly to his advantage to be sued in assumpsit rather than in trespass or trover, since in the former action he escapes all claims for damages, obtains the right of set-off, and can be held only for the actual value of the property.

The provisions of sect. 1536, Code of 1880, abolishing all forms of action, by the provision that “it shall be no objection to maintaining any action that the form thereof should *126have been different,” would render anjr future discussion of this question unnecessary; but, this case having been tried before the adoption of that Code, we dispose of it without reference to its provisions.

Reversed, and new trial awarded.