Davis v. Wannamaker

Hallett, O. J. The penally in the bond described in the declaration is $10,000, of which sum defendant in error demanded but $2,000, and the same amount in damages. No argument will be required to show that the case cannot in that way be brought within the jurisdiction of the probate court. Upon such an instrument, although the plaintiff is entitled to collect damages only, the judgment must be for the full amount of the penalty of the bond, as debt, to be discharged upon the payment of the damages. R. S. 507. Austin v. The People, 11 Ill. 452; Freeman v. The People, 54 id. 153. According to what was said in Litchfield v. Daniels, 1 Col. 268, the obligee in a bond may remit the whole or any part of the damages due to him upon the bond, and if he should remit the whole, probably he would have no right of action upon the instrument. But the principle there asserted does not affect the rule of practice which governs cases of this kind, which is that a recovery must be for the full penalty of the bond, as debt, and for such damages as the plaintiff may be entitled to. As the want of jurisdiction was apparent upon the face of the declaration, the question was well enough presented by demurrer, for the plaintiff was certainly required to state a case within the jurisdiction of the court. There was also a defect of parties plaintiff, since there was no undertaking in the bond to pay defendant in error any [639] portion of the $10,000, the obligation being to pay that sum to her and twenty-eight others. Upon such an instrument it is impossible to say that each of the obligees may maintain a separate action. Farni v. Tesson, 1 Black, 309. We are not inclined to inquire whether the exceptions taken at the inquisition can' be allowed in this court, and the costs must take the usual course. The judgment of the probate court is reversed with costs. Reversed.