
    (Hamilton County Common Pleas.)
    JOHN E. HART et al. v. HENRY WALTER et al.
    
      Conversion and attachment — Tort and' tortious elements — Replevin and change of remedy—
    
    Wilson & Herrlinger, for plaintiff.
    Burch & Johnson, contra.
   SPIEGEL, J.

In conversions of property of the kind in controversy, the tort may be waived and a suit brought ex contractu Woodward v. Suydam, 11 O., 360; Penn. R. R. v. Peoples, 31 Ohio St., 537; Dean v. Yates, 22 Ohio St., 388.

2. In actions on implied contracts, where there are tortious elements, but the tort is waived, attachment lies. Wade on Attachment, sec. 22; Dean v. Yates, 22 Ohio St., 388; Butler v. Hildreth, 5 Met. (Mass.), 49.

3. The doctrine of election does not apply in this case because none of the actions relied on to show election are inconsistent with defendant’s rights. I concede that a replevin suit which is founded on a title in plaintiff, bars him from a later suit for conversion or for breach of contract, because the latter is-based on the theory that title has passed to the defendant, and whichever of the two it is at the beginning it must remain,a party not being privileged to invest and then divest another’s title at pleasure. But in the case at bar no right or title, but only a remedy, is selected, and until judgment there is no bar to a change of remedy. Dean v. Yates, 22 Ohio St., 388.

The proceedings in error must be dismissed.  