¶1The opinion of the Court was drawn up by
¶2Insuperable difficulties are presented in the report to the maintenance of this action. The defendant had a conversation with William Freeman touching this suit, in April, 1856, in which he said he had no other defence thereto than the title to the land. This, certainly, cannot be regarded as an express promise to pay for the hay which he cut; neither does it imply an engagement to account in any way therefor, being said to one who had no connection with the land, as the plaintiff’s agent or otherwise.
¶3The plaintiff relies upon a title to the land in himself, under his levy on execution against Tobias A. Hall, and the fact that the defendant had the benefit of the hay, in support of the count for money had and received. It is well settled that where a party has obtained property belonging to another, by a trespass, and has received money therefor, or money’s worth, the tort may be waived and assumpsit maintained by the owner. Jones v. Hoar, 5 Pick. 285, and note. But the evidence does not bring this case within the principle. Simply receiving the benefit of the hay in its use, by the one who took it, does not constitute a basis for the action in favor of the plaintiff, if the title to the land on which it grew was in him.
¶4But the title to the land is claimed by the defendant to have *50been in Rutb M. Hall at the time the grass was cut by him, and that he was acting as the agent for taking charge of the property. By the deeds on record, the title was then in Ruth M. Hall, but the plaintiff treats that title as void against creditors of Tobias A. Hall, on the ground of fraud. Whether it can be impeached on this ground, by the plaintiff, is not a question which can be settled in an action of assumpsit. Codman & al. v. Jenkins, 14 Mass. 93. Plaintiff nonsuit.