Byrd v. Cocke , 1 Va. 297 ( 1793 )

The President

delivered the opinion of the Court.

If the declaration could be supported, the Court might get over the errors which precede and follow it, either by considering them as cured by the verdict, or by awarding a repleader from the first fault. Bui the declaration is certainly in debt, and though, after a verdict, objections to the form of a declaration will be disregarded, yet we can find no authority to justify a rejection of that part of it, as surplusage, which designates it a declaration in debt. As an action of debt, it is not sustainable under the Act of Assembly, which does not impose a penalty upon the officer; and therefore, an action upon the case for consequential damages, was most clearly the proper remedy.

Both judgments must be reversed with costs.⁽¹⁾

(1) Taylor v. Rainbow, 2, Hen. & Munf. 444.