
    [ *140 ] *Albert Day and others, vs. Henry W. Webb.
    In an action on the case, under a statute authorizing such action, in which the plaintiff set out in his declaration a debt of $220 due him from _ the defendant, and sundry fraudulent acts of the defendant in contracting the debt, and in evading its legal collection, to which the defendant pleaded a general denial, the jury brought in the following verdict: “ The jury acquit the cD.fenclant of the fraud charged, but find for the plaintiff to recover of the defendant $220 and his costs.” Each party claimed the verdict as one in his favor. Held that the verdict was not an intelligent answer to the issue, and was insufficient as a verdict for either party, and that a new venire should be issued.
    Action on the ease, brought under the statute (Rev. Stat., tit. 1, sec. 283,) which provides that when any person shall be guilty of fraud in the contracting of a debt, or shall conceal or remove his property to prevent the same being taken by legal process, or shall refuse to pay a debt admitted or established by a judgment, while having money, or property exempt from.execution, sufficient to discharge the same, concealed or withheld, &c., any creditor aggrieved thereby may institute an action on the case against such person, setting forth his debt in his declaration, and setting forth particularly such fraudulent acts, and have process of attachment and execution against the body of the defendant, to he proceeded with in all respects as in other actions of tort. The declaration contained two counts, both setting forth the indebtedness of the defendant to the plaintiff in the sum of $207.21 for goods sold him on the 27th of August, 1857. The first count alleged that the defendant fraudulently contracted the debt, that the debt was admitted by him, but that lie refused to pay it, and that he had fraudulently concealed, withheld and removed property belonging to him, exempt from execution, sufficient to satisfy the claim, for the purpose of preventing it from being taken on legal process by the plaintiffs. The second count alleged that the defendant admitted the debt hut refused to pay the same, and that he had, at the time, property belonging to him, exempt from execution, sufficient to satisfy the debt, which he fraudulently ^concealed and [ *141 ] withheld, so that it could not be taken by legal process. The case was tried to the jury on the general issue, and the following verdict returned.
    Albert Day and others, WAWebb. H.
    Superior Court) Sept. Term} 1858.
    
      Plainliff’s Verdict.
    
    In this case the jury acquit the defendant of the charge of fraud set up in the declaration, but find for the plaintiffs to recover the sum of two hundred and 26-100 dollars and their costs.
    Gaylord Meacham, Foreman.
    The court accepted the verdict. The defendant thereupon moved in arrest of judgment, and also that judgment be rendered in his favor upon the verdict, as a verdict for the defendant. The plaintiffs claimed that they were entitled to a judgment upon the verdict, but filed a motion also for a venire facias de 
      
      novo. The questions arising upon these motions were reserved for the advice of this court.
    
      L. F. Robinson and H. C. Robinson for the plaintiffs.
    1. The verdict is not for the defendant. 1st. Without the latter clauses, in which an issue is found for the plaintiff in terms, it would be no verdict at all. Although one material fact, or more, essential to the plaintiff’s right of recovery, should be negatived, there would still be no verdict without an issue found. State v. Wallace, 3 Ired., 195. Rex v. Woodfall, 5 Burr., 2662. Collins v. Sutton, Sid., 234. It would be merely argumentative, and therefore void. Gramvel v. Rhobothan, Cro. Eliz., 865. Gerrish v. Train, 3 Pick., 124. 2nd. As it is, the jury have found expressly for the plaintiffs, with full damages. The court can not reverse their finding on the ground that it argues one thing and concludes another.
    2. It is a good verdict for the plaintiffs on the second count. 1st. A single issue is raised by the pleadings, and the verdict is general. It will be applied, therefore, to the count which it sustains. Baker v. Rand, 13 Barb., 152. Hudson v. Matthews, 1 Morris, 94. Jones v. Cook, 3 Dev., 112. Wolcott v. Coleman, 2 Conn., 324. Smith v. Cleveland, 6 Met., [ *142 ] *332. 2d. Courts will infer from the language of verdicts that there is a finding one way upon one count and another way upon another, although the jury do not explicitly so declare, Nabors v. State, 6 Ala., 200. Chambers v. People, 4 Scam., 351. In the present case the purport of the verdict is, that upon the second count, to support which proof of actual fraudulent intent is not essential, we find for the plaintiffs. The court will infer that they have found for the defendant on the first count. If such is the clear meaning of the verdict, it should be upheld, notwithstanding obscurity of expression or rudeness of form. Forster v. Jackson, Hobart, 54. Hawkes v. Crofton, 2 Burr., 698. Hodges v. Raymond, 9 Mass., 318. Wood v. Maguire, 17 Geo., 361. Porter v. Rummery, 10 Mass., 66. 3d. It upholds the second count, because actual fraud is not essential to the cause of action stated in that count. The statute describes the acts which shall constitute constructive fraud, and the word “ fraudulently ” is surplusage. So that, even if the jury designed to negative that epithet contained in the second count, they have merely gone out of their way to decide an immaterial issue, and the negation of fraud in their verdict is as much surplusage as the affirmation of it is in the count itself. Utile per inutile non vitiatur. Richmond v. Talmadge, 16 Johns., 307. Lincoln v. Hapgood, 
      11 Mass., 358. Bacon v. Callender, 6 Mass., 303. Duane v. Simmons, 4 Yeates, 441.
    3. If the verdict is repugnant, because the particular fact found by it conflicts with the issue as found generally, it is simply void, and a venire facias de novo should be awarded. Smith v. Raymond, 1 Day, 189. Stearns v. Barrett, 1 Mason, 153. Bellows v. Hallowell & Augusta Bank, 2 id., 31. Kegwin v. Campbell, 1 Root, 268. Patterson v. United States, 2 Wheat., 221.
    
      Gilman, for the defendant.
    1. The verdict is a good and legal verdict. A verdict is *the finding of the jury upon the issue joined. [ *143 ] 3 Bla. Com., 377. The issue here joined was the general issue, a denial of the allegations in the plaintiffs’ declartion. The action is one of tort, in form and substance, and fraud is the gist of it. The statute speaks of it as such, and it has been expressly so held. Armstrong v. Ayres, 19 Conn., 540. The issue was therefore, whether the defendant was guilty of fraud or not. The jury have expressly found that he was not. The verdict therefore meets the issue, and must be regarded as good.
    2. It is a verdict in favor of the defendant. The fraud was essential to the plaintiffs’ right of recovery, and the jury have decided that there was no fraud. The declaration charged him with being guilty of certain fraudulent acts, and the jury have found that he was not guilty. How could they have found for the defendant more clearly ? It is not enough that they have found this informally. Every reasonable construction is to be adopted in support of a verdict. Huntington v. Ripley, 1 Root, 321. Simmons v. Rarden, 9 Geo., 543. A verdict need not conclude formally in words of the issue. If the points in issue can be collected, and the substance of the issue has been found, it is good, and the court will mould it into form, and make it serve according to the justice of the case. Hawks v. Crofton, 2 Burr., 698. Porter v. Rummery, 10 Mass., 64. Allen v. Aldrich, 9 Foster, 63. Russell v. Wheeler, 1 Hempst., 3. Pettes v. Bingham, 10 N. Hamp., 514. A verdict will not be set aside for uncertainty, as to matters not essential to the gist of the action, if it finds the material matter in issue. Pejepscot Proprietors v. Nichols, 10 Maine, 256. State v. Bright, 2 Car. Law Rep., 634. If a jury, by their verdict, find the issue, and something more, the latter part of the finding will not vitiate the verdict ; it will be struck out as surplusage. Patterson v. United States, 2 Wheat., 221. Bacon v. Callender, 6 Mass., 303. Tuley 
      v. Mauzey, 4 B. Munro, 5. Stearns v. Barrett, 1 Mason, 169. State v. Arrington, 3 Murphy, 571. We claim, therefore, that judgment should be rendered in favor of the defendant upon the verdict.
   [ *144 ]

* Waldo, J.

The only questions presented in this case relate to the sufficiency of the verdict, each party claiming that the court can, with suitable changes, “ work the finding of the jury into form,’’ so that a judgment might be rendered in his favor, while both seem to admit that it is now informal, if not fatally defective. A verdict may be defined to be, the answer of the jury to the questions of fact- contained in the issue formed by the pleadings of the parties. It may be general or special. A general verdict directly finds or negates all the facts in issue in a general form. A special verdict is where the jury finds the facts particularly, and then submits to the court the questions of law arising upon them. If, in either case, the jury return a verdict varying materially from the issue, either omitting to find all the facts embraced in it, or, disregarding the issue, find other and different facts not in the issue, the verdict will be insufficient, and judgment for such cause will be arrested. Gould’s Pleading, ch. 10, sec. 9. Smith v. Raymond, 1 Day, 189. Kegwin v. Campbell, 1 Root, 268. It is not necessary that the verdict should conclude formally in the words of the issue, the general rule being that, “ although the verdict may not conclude formally or particularly in tbe words of the issue, yet, if the point in issue can be concluded out of the finding, the coui't shall work the finding into form and make it serve according to the justice of the case.” Forster v. Jackson, Hobart, 54. Porter v. Rummery, 10 Mass., 66. Stearns v. Barrett, 1 Mason, 153.

Have the jury, in the verdict under consideration, found the facts contained in the issue, either in a general form or specially ? We think they have not. They have not found the issue directly either for the plaintiffs or the defendant; nor have they found the facts specially, and submitted the law arising thereon to the court. They say they acquit the defendant of the charge of fraud, but whether it be on the ground of their intuitive belief of his innocence, or for want of satisfactory evidence to sustain the charge, is left to conjecture. They find for the plaintiffs to recover, but do not find a single fact tending to establish their right to a judgment. We may infer, ■[ *145 J perhaps, *from the language of the verdict, that the jury found that the defendant was not guilty of fraud, but they do not give us any rule by which we can ascertain what they supposed was included in the term fraud. It is possible they intended to negate simply the direct allegation of fraud in contracting the debt contained in the first count in the declaration, and to find that th.e other allegations in the declaration were sustained, and, attempting to discriminate between actual fraud* and what is sometimes called constructive or incidental fraud, they may have concluded the defendant was not guilty of the former but was guilty of the latter. If the evidence justified this view of the case, they should have found the issue upon the fir-st count in favor of the defendant, and upon the second count in favor of the plaintiffs, and their action would then have been intelligible and conclusive. Or the jury may have found the defendant not guilty of the several allegations in both counts, charging such acts as would have rendered him liable in this form of action, and still have found that he was really indebted to the plaintiffs, which debt he ought to pay, and hence they might have supposed it was proper for them, instead of returning a verdict for the defendant in general terms, to acquit him of the several charges contained in the declaration, and still render a verdict against. him for the amount of his real indebtedness. In these aspects, or in whatever aspect this verdict may be considered,.we are satisfied it is not an intelligent answer to the questions of fact submitted to the jury in the issue formed by the pleadings, and is so uncertain, defective and insufficient ■that no valid judgment can be rendered upon it; and inasmuch as the parties have not had their matters in issue determined, there must be a new trial, to effect which-a venire facias de novo must be issued. Patterson v. United States, 2 Wheat., 221. Barnes v. Williams, 11 id., 415. Bellows v. Hallowell & Augusta Bank, 2 Mason, 31.

Other points have been made, and discussed by counsel, but as some of them have heretofore been adjudicated by this court, and as none of them are necessarily involved in the *final disposition of the case, we have not thought it [ *146 ] necessary to consider them at this time. The superior court is advised that no judgment can be rendered upon the verdict, and that a venire facias de novo must be issued.

In this opinion the other judges concurred.

Judgment arrested, and a new venire to be issued.  