
    Byrd v. Cocke.
    October Term, 1793.
    Sheriffs — ProperRemedy against — Case—Debt: —Case
    at Bar. — An action of debt will not lie against a Sheriff for levying an execution upon the property of the plaintiff’s tenant, without paying him a year’s rent. The proper remedy is case for consequential damages.
    This was an action of debt brought by the appellee against the appellant as high sheriff, for levying an execution on the property of the plaintiff's tenant, without paying him an years rent, due at the time. The declaration ‘ ‘demands £80, which the defendant owes and detains, for that the defendant refused to pay the plaintiff the said sum of though he the defendant, as sheriff, levied an execution on the property of J. Stith, which property was on the plaintiff’s premises, rented to the said Stith, for the said ^80 a year, and notwithstanding, the said Stith was in arrear to the plaintiff, for the last years rent, to wit, for 1780 and although the defendant was applied to for the said ^80, contrary to the form and effect of the act of Assembly &c. and the defendant still refuses to pay the said A80 tho’ often required &c. to the plaintiffs damage ^1S0” &c. — Plea non as-sumpsit-verdict and judgment for the plaintiff for £83: 13: 4 damage.' — This judgment, being affirmed in the District Court, an appeal was prayed to this court.
    The attorney general for the appellant.
    This record though small, is as full of error as it can well be. — The writ is in case —the declaration in debt — the issue is non assumpsit, and verdict and judgment is entered for the plaintiff, though the jury have not found that the defendant did assume.
    The declaration being in debt, makes an incurable error in the proceedings, at the very threshold. Debt will not lie in a case of this sort, where no contract exists, unless it were given by statute. It is brought too, against the sheriff for an act of commission, for which-, even an action on the case would not lie. But if the action were proper, still the issue is immaterial, for tho’ the defendant did not assume, yet he might be liable to the recovery of the plaintiff.
    *Wickham for the appellee.
    That an action will lie against the sheriff, for levying an execution upon the property of a tenant on the demised premises, without paying a years rent to the landlord, if the same be due, is settled by the cases of Palgrave v. Windham, 1 Str. 212, and Gore v. Gofton, 1 Str. 643, both of which, being adjudications upon the statute of Ann, from which our act is copied, will be considered as authority.
    The objection to the declaration, is more to the form, than the substance of it, tho’ it begins like a declaration in debt, by stating the defendants to owe and detain &c. yet upon a view of the whole of it, we shall find it to be in fact a declaration in case; and if so, the debet et detinet may properly be rejected as surplusage. It states the act of Assembly — the rent due, and execution levied, notwithstanding notice to the sheriff, and demand of the years rent.
    As to the issue, it is only informal, and therefore cured by the act of Jeofails — nil debet, may be pleaded to an action upon the case — not guilty to an action of debt; and tho’ neither are formal, yet they are cured by verdict.
    
      
      Sheriffs — See monographic note on “Sheriffs.”
    
    
      
      Pieading — Declaration—Effect Where Wrong Action Brought. — In Taylor v. Rainbow, 2 Hen. & M. 441, it is said: “In Byrd, v. Cocke, 1 Wash. 232, this court observed, that the declaration being- in debt, although after a verdict, they could And no authority to justify a rejection of that part as surplusage, which designated it to be an action of debt', and for that reason reversed the judgment. The case of Gibbons v. Jameson, Nov. 15, 1804, was reversed upon the game point, because the plaintiff had brought an action of debt for military certificates. ” The principal case is also cited in Cunningham v. Hern-don, 2 Call 533.
    
    
      
      Debt. — See monographic note oil “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
   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. __  