If the defendant’s claim for the damages he is entitled to recover for the cutting of his trees, is to be treated as a matter of contract, then it may properly be adjudicated upon in this suit. If so there is a balance due the defendant; if not, then there is a balance due the plaintiff.

The act for which the damages are allowed was in the outset a trespass. It can only be turned into a matter of contract by the mutual agreement of both parties. Does such an agreement appear upon the auditor’s report ?

The plaintiff’s remark, “ When the line is run out if I have cut timber on your land I will pay you for it, but I have not cut on your land,” is as referable to an intention to pay damages for the trespass, as to an intent to have his liability stand on contract. More so. For he does not admit any liability, nor enter into any contract to run the line and settle the damages. His expression to the defendant afterwards, “I want this matter settled, and if you do not sue me I shall sue you,” seems to point to a suit to be brought between them in- which the claims on both sides might be adjusted, and that could only be by an action founded on contract, and by treating the claim of damages as matter of contract. But the auditor on this evidence does not find the fact that the parties did agree to so treat it. The defendant afterwards sued in trespass, and does not appear to have agreed to waive his claim against the plaintiff as a tort feasor,

*28Upon these facts the court below, in passing upon the auditor's report, did not find that the parties had agreed to treat the tort as matter of contract, but finds the contrary. Upon this finding (which I think was fully warranted by the report) the court below disallowed the defendant’s account, as still being a claim for damages arising from a trespass. In this there was no error.

Judgment affirmed.