
    Abraham Booden versus Joshua Ellis.
    Where it appears to the court that justice has been done by a verdict rendered in an action, which, in point of form, was improper, they will not disturb such verdict, but judgment shall be entered upon it.
    Trover for a quantity of cord-wood. At the trial before Thatcher, J., at the sittings here after the last June term, the plaintiff, in support of his declaration, produced evidence to show that he put on board the schooner Laura, owned by the defendant, forty-one cords of wood, to be carried from Penobscot to Boston, on freight, the master, John Booden to account to the plaintiff for one half of what the wood should sell for in Boston. In the prosecution of the voyage, the master was lost, and the vessel stranded near Newburyport. The defendant, who lives in Boston, hearing of the misfortune, went to Newburyport, where the vessel lay, and took charge of her and her cargo, part of which he sold at Newburyport, and carried the remainder to Boston, where it was sold by him. Before the plaintiff commenced this action, he made a demand of the wood of the defendant.
    * If the Court should be of opinion that trover is main- [ * 508 J tainable upon these facts, then the verdict, which was in the plaintiff’s favor, was to stand; otherwise the plaintiff was to become nonsuit, and the defendant recover his costs.
    
      Abbot, for the defendant.
    From the facts in this case, it appears that there existed a contract between the plaintiff and John Booden, the master, by which the latter had undertaken to carry the wood to Boston, and to account with the plaintiff for one half of the proceeds thereof. It is, then, certain that, if the master had proceeded to Boston, and had there sold the wood, he would not have been answerable to the plaintiff in trover. The master was the agent of the defendant, who, upon his death, assumed and performed his duties; and no action will lie against the principal, which could not have been maintained against the agent. The selling of a part of the cargo at Newburyport must be considered to arise from necessity, and does not alter the case. There is, in fact, no evidence of a wrongful conversion, without which this action cannot be supported.
    This objection to the form of the action was taken at the trial and the plaintiff ought then to have been nonsuited. In all cases, where the judge misdirects in a point of law, the Court will grant relief to the party injured.  The proper remedy in this case would have been an action to account, or for money had and received ; and it is important that the boundaries between the different actions should be preserved.
    
      Wilde, for the plaintiff,
    argued that the case found a demand and refusal, which was sufficient for the jury to infer a conversion. By refusing satisfaction, the defendant rescinded the contract, and became answerable for a tort.
    But, even allowing that the plaintiff mistook the form of his remedy, if, upon the whole, justice has been done between the parties, the Court will not disturb the verdict, and turn the plaintiff ovei to a new action, which will issue in the very same judgment as that which will follow the present verdict. 
    
    
      
       5 Mass. Rep. 365, Boyden vs. Moor. — 6 D. & E. 125, Savignae vs. Roome
      
    
    
      
       2 Burr. 936, Foxcroft & Al. vs. Devonshire & Al.
      
    
   * Curia.

We think the form of action adopted in this case liable to many objections, under the particular circumstances. But we are all agreed that, when justice has been done in the form of an action, upon which the verdict has been found, it is not in our discretion, nor are we required by the agreement of the parties, to disturb the verdict upon a question of form only; and especially where, in adjusting the demand, the defendant has had every advantage, which he could have had, or could claim, under any other form of action,

Judgment on the verdict. 
      
      
         [Graham on New Tr. 341, 357, 360. But the Court seems to have disregarded the only point reserved, and the terms upon which it was reserved, and to have turned ofi' the case upon another ground, which was not open for argument. — En.]
     