Linder v. Monroe's Executors
Illinois Supreme Court
Writ of Error to the Circuit Court of Coles county; the Hon. Charles H. Constable, Judge, presiding. This was a suit instituted in the Circuit Court of Coles county, by Margaret E: Monroe, James Monroe and Joseph Peyton, executors of Byrd Monroe, deceased, against Usher E. Linder, in assumpsit, with damages laid at $300. Defendants in error declared on six promissory notes, adding four common counts and made proferí of letters testamentary in the following words: “ And the…
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Writ of Error to the Circuit Court of Coles county; the Hon. Charles H. Constable, Judge, presiding. This was a suit instituted in the Circuit Court of Coles county, by Margaret E: Monroe, James Monroe and Joseph Peyton, executors of Byrd Monroe, deceased, against Usher E. Linder, in assumpsit, with damages laid at $300. Defendants in error declared on six promissory notes, adding four common counts and made proferí of letters testamentary in the following words: “ And the said plaintiffs bring into court here the letters showing their qualifications as executors.” Plaintiff in error…
1Opinion of the CourtJustice Breese
We do not consider any of the errors assigned on this record appear upon it, nor are the positions assumed by the plaintiff in error, tenable.
The declaration pursues the form of the most approved precedents, and the plaintiffs therein make profert of the letters testamentary in the usual form.
The rule is, undoubtedly, that a party cannot recover a greater sum as damages than he has laid in his declaration, but it is equally true that he may remit the excess and have judgment for the balance. The remittitur in this case was in apt time, and the amount remaining is the limit of the recovery.
It…
2Cited by4 opinions
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