Byrd v. Cocke , 1 Va. 232 ( 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. But the declaration is certainly in debt, and tho’ 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. __