In personal actions, the plaintiff can recover no more than he has demanded; and the judgment below is undoubtedly erroneous. A remittitur of the surplus beyond the demand, cannot be made after judgment; nor in a term subsequent to that, in which the judgment was entered. 2 Tidd's Prac. 806. Wray v. Leister, 2 Stra. 1110. Chevely v. Morris, 2 Bla. Rep. 1300.
The judgment below must be reversed; and according to the established practice of this court, in similar cases, the cause remanded, that the damages may be legally assessed. The reversal will not open the cause below, beyond the exigencies of justice; and, as was said, in Gleason v. Chester, 1 Day 152. it will “be retrospective so far, and so far only, as the proceedings on the record, appear to have been impugned, by the judgment of reversal.” When there exists an error in the assessment of damages only, it is entirely incompatible with justice, that the previous proceedings in the cause should be set aside. So far as they are legal, they must be permitted to remain. It follows, that the effect of the reversal must be limited to the assessment of damages, and not be suffered, by retrospection, to vacate any part of the anterior proceedings, in respect of which there has been, and can be, no complaint.
The other Judges were of the same opinion.Judgment reversed; and The cause remanded.