On Exceptions from Nisi Prius, Howard, J. presiding.

Assumpsit.

The evidence for the plaintiffs tended to show, that one G. S. was tenant for life of a lot of land, on which trees were growing, and that the plaintiffs were the reversioners, entitled to the land upon the determination of that life tenancy ; that the defendant cut trees upon the lot and of some of them made wood for his house and repairs' upon his vessel; that the acts of the defendant were done in the day time, and were continued for many days; that the tenant for life residing upon the lot, and the plaintiffs residing within a few rods from it had full opportunity to see the cutting and the hauling away of. the timber; and also that since those acts the life estate had been determined by the death of the tenant.

Upon this evidence, the defendant contended, that an action in this form, (assumpsit,) could not be maintained, and thereupon the Judge ordered a nonsuit, to which order the plaintiffs excepted.

1. From the openness with which the cutting and hauling were done, and from the plaintiffs’ opportunities of seeing the operation, the jury might have inferred, that the plaintiffs had knowledge of the defendant’s acts, and from that knowledge, without prohibition or objection made by them, it was fairly deducible by the jury, that the plaintiffs assented ; and from such assent, the law would imply a promise. Foster.v. Dixfield, 18 Maine, 380.

2. The growing timber belonged to the inheritance.

The life tenant had no rights in it. The plaintiffs therefore, being the reversioners, might have maintained trespass against the defendant for taking it away. And if so, they might waive the tort and sue in assumpsit. Frothingham v. Mc-Cusiclc, 24 Maine, 403; Stowell v. Pike, 2 Maine, 387.

3. By the death of the life tenant, the defendant’s acts were purged of tort, making assumpsit the proper form of action.

4. The acts proved did not constitute a trespass within the provision of the R. S. chap. 119, sect. 10, which has essentially modified the common law definition of trespass; inasmuch as it is there made requisite to allege and to prove, that the act, amounting to trespass, was without the consent of the owner. But the very bringing of this suit in assumpsit negatives the want of such assent.

5. All authorities maintain that, when the defendant has sold or had the benefit of the property, the tort may be waived. Reports passim.

The using the timber for fuel and for repair of the vessel were equivalent to a sale. Lightly v. Couston, 1 Taunt. 112.

6. Tort can be waived and assumpsit maintained in all cases where the defendant is not injured by it. Hill v. Davis, 3 N. H. 384; Webster v. Drinkwater, 5 Greenl. 319; Chaney v. Yeaton, 1 N. H. 154; Linden v. Hooper, Cowper, 414; 6 T. R. 695.

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