The defendant contends, that this action cannot be maintained, because in the action of replevin against Bird, his deputy, the jury returned a verdict of non cepit, and the court ordered a return. Bird filed a brief statement avowing the taking of the goods as the property of Carter. It appears from the cases decided in Massachusetts, cited in argument, that the court will look into the facts of the case as well as the pleadings, to determine whether there shall be a return or not. In that action it did appear, that Bird had attached the goods as the property of Carter, and that they were taken out of his possession by the writ of replevin. He had in fact taken the goods and by finding a verdict in his favor, the jury must have found the right of property in Carter, but there was an accidental omission to insert it in the verdict. By our statute the defendant may plead the general issue, aud give in evidence arjy special matter in defence by filing in the cause a brief statement of it, and a verdict upon the general issue will usually be decisive upon the matter in controversy. But a verdict of non cepit does not decide that the property belongs to the defendant. And although a return was ordered to Bird, it was not done upon the verdict alone, but upon that with the pleadings and the facts in the case.
Although a return was had, that did not decide the title to the property in favor of Bird, so that it could not be subsequently contested, but the decision went no further than that in the peculiar state of the case, he was entitled to the possession. The court had no power to decide finally upon the question of property, such determination would fall within the province of the jury. The record in that case does not interpose any obstacle to the recovery in this action.
It is further objected, that an action of trespass in this case *410cannot be sustained. There are two counts in the plaintiff is declaration. One of them is in the usual form of trespass, de bonis asportatis, the other alleges a taking and conversion of the goods by Bird, that he sold them and converted the proceeds to his own use. If the possession of Bird, for whose official acts the defendant is responsible, could not be considered wrongful, yet the sale and conversion by him must be viewed in a different light, and were injuries to the plaintiff, for which damages might be recovered in an action on the case, and the second count in the declaration is of that character. And our statute, c. 115 <§> 13, declares, that in all actions of trespass, and trespass on the case, the declaration shall be equally good and valid, whether the same shall be in form a declaration in trespass, or trespass on the case. Wherever then one will lie, the other will also, and being thus made of the same nature, no objection can arise to their joinder. If the state of facts show a party entitled to recover in trespass or case, his declaration may be framed in either form or both, the distinction between them having been very clearly abolished by the statute.
The defendant asks the cotirt to set aside the verdict as against the evidence, and although there are circumstances, from which an inference might be drawn, that the sale from Carter to the plaintiff was made to defraud the creditors of Carter, yet they are not sufficient to authorize the court to set it aside. There are no means of determining by any thing in the report of the case, whether the jury rendered damages for the pictures, which, it is alleged, had been returned to Carter, and had not been sold by him to the plaintiff, or for any pictures described in the bill of sale. Nor is it apparent from the evidence in the case, that the damages are excessive.
The motion is overruled, and judgment on the verdict