delivered the opinion of the court:

Two errors are assigned in this case, to which the attention of the court has been turned:

1. That the jury did not find all the issues joined and submitted 'to their consideration, notwithstanding which the court rendered judgment upon the verdict.

2. That the damages demanded in the declaration are eight ■hundred dollars, and verdict and judgment for a greater sum, to ■wit: eight hundred and fifty-three dollars seventy-five cents.

The question arising under the first error assigned has been determined in the case of Hanly et al. v. Levin, and it is unnecessary again to consider it.

The judgment being for a greater sum than the damages demanded in the declaration is undoubtedly erroneous. If there were no other error in the case this court might, perhaps, after reversing the judgment, enter such judgment as the court of common pleas ought to have rendered. This would be done, however, only upon condition that the plaintiff below remits the excess in the verdict. It would be useless to do it in the present case, as the first error assigned is fatal, and that defect would not be cured.

The judgment must be reversed.