The opinion of the court was delivered by

Had there been a count in the declaration for money had and received, the charge of the court would have been right, in stating that the plaintiff could waive the tortious conversion of the genuine scythes, and recover in assumpsit; for the plaintiff might go for the money, which the scythes might be presumed to have been sold for by the defendant. But the declaration, so far as it can embrace these articles, charges the defendant as purchaser, and there is no evidence that he ever was such; on the contrary, he uniformly denied this character, and his tortious acts will not authorize the viewing him as such. We, therefore, think the judgment must be reversed, and a venire facias de novo be awarded.

Judgment reversed and venire facias de novo awarded.