ERROR TO COOK.
Where a greater sum is recovered than that stated in the ad damnum, it is erroneous. It might be otherwise, if no specific sum is stated in the ad damnum.
This was an action of assumpsit, commenced agianst the plaintiff below by writ of attachment, returnable at the March term, 1857, of the Circuit Court of Cook county.
The declaration contains two special counts, one upon each note sued on, besides the common, consolidated money count, and concludes by averring the common breach and ad damnum, in the words following, viz.: “ Yet the said defendants have not paid the said several sums of money, or any or either of them, or any part thereof, but to pay the same have hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said plaintiff of four dollars, therefore he sues which is the only averment of breach or damages in the declaration.
At the November term, 1857, the cause was submitted to a jury on this issue, and they found a verdict for the plaintiff below, and assessed his damages at three hundred and twenty dollars and forty cents, whereupon defendants below moved for a new trial, which motion the court overruled, and entered judgment for the plaintiff below, for three hundred and twenty dollars and forty cents, the damages assessed by the jury, with costs of suit, and awarded execution therefor.
One of the errors assigned is, that the assessment of damages by the jury aforesaid, is irregular, excessive, and void.
Parsons & Goodwin, for Plaintiff in Error.
C. S. Cameron, for Defendant in Error.
Catón, C. J.
The ad damnum in this declaration is for four dollars, and the verdict and judgment are for three hundred and twenty dollars and forty cents. When a sum is stated in the ad damnum, the judgment cannot exceed that, no matter what amount the stating part of the declaration may show to be due. It might be otherwise, if no specific sum was "stated in the ad damnum.
The judgment is reversed, and the cause remanded, with leave to the plaintiff to amend his declaration.
Judgment reversed.