delivered the opinion of the Court:
The error assigned in this case is, that the action was debt, and a verdict and judgment in damages.
That this is error has been so often adjudged by this court that argument is unnecessary. It is matter of substance, and not of form. Jones v. Lloyd et al. Breese, 225 ; Jackson v. Haskell, 2 Scam. 565 ; Howell v. Barrett, 3 Gilm. 433 ; O’Conner v. Mullen, 11 Ill. 57 ; Chapman v. Wright, 20 ib. 120, and other cases.
Appellee, however, insists that, if this be error, this court will give judgment in the proper form, all the evidence therefor being before it in the record, and refers to Guild et al. v. Johnson, 1 Scam. 405. That is a per curiam opinion, and no reasons assigned for so ruling.
This court has, on one or more occasions, rendered such a judgment here, as the court below should have rendered. But here is a finding of a jury on which no judgment could be rendered. Frazier et al. v. Laughlin et al. 1 Gilm. 347.
For this error the judgment must be reversed and the cause remanded.
Judgment reversed.