Babcock

Injured party may waive tort, and sue in assumpsit. (Fratt v. Clark, 12 Cal. 90 ; Roberts v. Fvans, 43 Cal. 382 ; Tuite v. Wakelee, 19 Cal. 692 ; Caussidiere v. Beers, 2 Keyes, 198 ; Civil Code, sec. 1621.)

Cope & Boyd, for Respondents.

The action is not upon a contract within the meaning of the statute. (Code of Civil Procedure, secs. 537, 538.) The gravamen of the action is a tort—a wrongful conversion of the property and money of the plaintiffs. There is no allegation of any promise or undertaking on the part of the defendants, and the idea of a contract is expressly negatived by the averments of the complaint.

The facts stated in the complaint do not make a case which would support a writ of attachment under the provisions of the Code of Civil Procedure.

Order affirmed. Remittitur forthwith.