delivered the opinion of the Court. *

This case is within the letter of the section of the act of Jeofails, applicable to it; the judgment having been rendered after that section took effect, though the verdict was before; and the Court is of opinion, that it is within the mischief intended to he provided against also. Damages equivalent to the injury complained of, can only he recovered, either in the action of trespass, or trespass on the case. A construction of the act of Jeofails, therefore, which will comprehend this case, cannot affect any substantial right of the defendant. He might have demurred io the declaration before the section of the act alluded to *442went into operation, if his counsel had thought proper.Having failed tó do so, and the merits having been as fairly tried in this.form of action, as if it had been trespass, and not tresPass on the case, the act of Jeofails ought not to receive a construction that would now permit him to avail himself of the advantage of a demurrer. It is not, therefore, material to decide, whether the plaintiff has mistaken his action or not. On that point, the Court is inclined to the opinion, that the proper action was trespass, and not trespass on the case.

The judgment is to be affirmed.