The jury have found by their verdict, under the special instructions of the court, that the defendant, in the lifetime of the intestate, tortiously obtained possession of the notes, and kept possession of them, and refused to deliver them to the administrator on demand, but cancelled and destroyed them.
No question is made, in behalf of the defendant, concerning the further instructions of the court, that, under such circumstances, the plaintiff might recover the value of the notes in an action of tort, or the contents of them in an action of contract. They were obviously correct. The debt had never been discharged, and therefore its payment might be insisted on. Or, looking at the transaction in another aspect, the defendant had tortiously possessed himself of the property of the plaintiff, and converted it to his own use, and was therefore liable in an action of tort, in the nature of trover, for its value.
But the defendant insists that, under the provisions of the practice act, (Si. 1852, c. 312, § 32,) it was not competent for the court to allow the' amendment; although the plaintiff, when commencing his action, was authorized by the statute, if he was doubtful to which class of actions his cause of action belonged, to insert iñ his writ both a count in contract and a count in tort. St. 1852, c. 312, § 2, cl. 5.
Without further consideration of this objection, it is sufficient to say, that the amendment allowed turned out in the end to have been wholly immaterial; that, upon the finding of the jury, the defendant could not have been, in the least degree, affected by it; and therefore that its allowance affords no reason for disturbing the verdict. Judgment on the verdict.