Cooper v. Livingston

Citations

• 19 Fla. 684

Syllabus

<p>1. When the damages laid in the declaration are greater than are claimed in the praecipe and writ, the remedy of the defendant is to move to set aside the declaration for irregularity before pleading in bar. The plea is a waiver.</p> <p>2. If the damages assessed are greater than the amount claimed in the declaration, the plaintiff may remit the excess or amend the declaration in that respect before judgment. Judgment for the excessive amount is erroneous, and will be reversed.</p> <p>3. Costs cannot be recovered against an executor or administrator when the suit is brought within six months after the issuing of letters.</p> <p>4 In a suit against the executor of a will upon a note made by deoedent and endorsed to plaintiff before due, defendant having pleaded a want of consideration, it is shown that plaintiff admitted that the note was given for an invalid consideration, and that he knew it at the time he traded for it, and plaintiff does not expressly deny making these admissions, he cannot recover upon the note without showing a valid consideration as between the maker and the payee, though the plaintiff paid a valuable consideration for the note.</p> <p>5. “Conjuring” a sick man to cure him of his illness is not a valid consideration for a iiromissory note.</p> <p>6. In a suit against an executor upon a note of the decedent, a judgment that “the plaintiff have and recover from the defendant,” is not a proper judgment. The judgment should be that plaintiff recover against the defendant as executor of the last will, &c., of the testator to be made out of the goods, etc., of the estate of the deceased, and that he have execution thereof, and not against the defendant generally.</p>