#### Phineas Oakes, impleaded, etc., Plaintiff in Error, v. Tiffany Ward, et al., Defendants in Error.

ERROR TO GALLATIN.

If a judgment is for more damages than is claimed by the declaration, it is bad.

The defendants in error sued the plaintiff and one Cyrus Thayer, in an action of debt, upon a judgment obtained in the State of Ohio.

Plaintiff only was served with process, and pleaded, in abatement of the suit, that Thayer died in the State of New York, before the commencement of the suit, which plea defendants traversed, and issue was joined upon the plea.

The cause was submitted to the court for trial at the May term, 1857, of the Gallatin Circuit Court, when judgment was rendered, in favor of the defendants, for ¡§1,568.99.

The only evidence in the case is as follows:

John Dutiel states that he is acquainted with plaintiff, and was acquainted with Thayer in his lifetime ; knew Thayer about six years before his death, which occurred in the year 1844, as he believes; is not acquainted with defendants; was acquainted with Phineas Oakes, before the year 1844, about fifteen years, since which he has not seen him, or known much about him; and believes Cyrus Thayer to be dead. About the year 1844, he left Scioto county, Ohio, to go to the State of Maine, on a' visit to his parents, and Ms wife received information, by letter from New York city, that he was there sick, and not expected to live, since which time he has heard nothing from him; he did not come back to his family, with whom he has been acquainted ever since.

Maria linger soil, another witness, states that she is not acquainted with the plaintiff in the court below, but she is acquainted with Phineas Oakes, and was acquainted with Cyrus Thayer in his lifetime. She was acquainted with Cyrus Thayer about six years before his death, which occurred about the year 1844, as she believes. She was acquainted with Phineas Oakes for about fifteen years, and she believes the said Cyrus Thayer is dead. About the year 1844, he left the county of Scioto, in *47the State of Ohio, to visit his parents in the State of Maine, and on his return he was taken dangerously sick at the city of New York, as she was informed by letter to her from his brother’s daughter there, since which time she has heard nothing from him, as he never returned, nor did she ever get any further information of him — which was all the evidence in the cause.

Whereupon the court overruled the defendant’s plea in abatement, and rendered a judgment in favor of the plaintiffs in the court below, defendants in error, as aforesaid.

Nelson & Johnson, for Plaintiff in Error.

N. L. Freeman and W. H. Green, for Defendants in Error.

Caton, C. J.

In this case the judgment was for more damages than were claimed in the declaration, and for that reason the judgment must be reversed and the cause remanded.

Judgment reversed.