Watkins, 2 Gill & J. 326-342; Barker v. Cory, 15 Ohio, 9; Berley v. Taylor, 5 Hill, (N. Y.) 583; Terry v. Munger, 121 N. Y. 161, 24 N. E. Rep. 272; Fratt v. Clark, 12 Cal. 89. See note to Webster v. Drinkwater, 17 Am. Dec. 244. That the claim of defendant Braithwaite to recover in assumpsit the value of his interest in the boat would have been a good counterclaim had he waived the tort and sued in assumpsit cannot be doubted. When the tort is waived, the claim rests in contract, as well for the purpose of making it a cause of action arising on contract within the statute regulating counterclaims as for other purposes. In fact, the sole object in waiving the tort is often for the purpose of enabling the injured party to set up his claim as an offset, when, without such waiver, he could not, because of its tort nature, use it as a counterclaim. Morden v. Jones, 33 Wis. 600; Coit v. Stewart, 50 N.Y. 17; Brady v. Brennan, 25 Minn. 210; Car Co. v. Reinhardt, (Com. Pl. N. Y.) 20 N. Y. Supp. 872; Wood v. Mayor, 73 N. Y. 556; Barnes v. McMullins, 78 Mo. 260; Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210; Evans v. Miller, 58 Miss, 120; Pom. Rem. & Rem. Rights, § 801.
It remains to be considered whether the defendant Braithwaite has elected to waive the tort and sue in assumpsit. The portion of the answer material to this inquiry contains the following averment: “That, notwithstanding the interveners forcibly and wrongfully seized and took possession of said boat, her tackle, apparel, furniture, machinery, papers, books, stores, and merchandise, and forcibly and wrongfully dispassessed the plaintiff of the same, and there and then wrongfully converted the same to their own use at Bismarck, aforesaid.” There are other allegations in the counterclaim, but none of them throw any light upon the subject of the election of the defendant Braithwaite to waive the tort; nor are there any allegations of a sale of the property by the defendant Braithwaite, or that other interveners undertook or promised to pay for Braithwaite’s interest in the boat the value thereof or any sum whatever. The other averments of the counterclaim, so far as these matters are concerned, might as well have
