Asay v. Sparr

26 Ill. 115

• Court: Illinois Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Breese, J.

The amount claimed by the landlord in the distress warrant, fixes the limit of his recovery. He is not authorized to seize property and sell it to a greater amount than that stated in the warrant, and to sustain the warrant, he must show on trial that he was entitled to as much rent as is specified in the warrant, and no more. The tenant can reduce the amount by proving payment of part. The landlord is strictly confined to the claim he makes in the distress warrant. That warrant is of the nature of a summons and declaration, and there is no rule better settled, than that it is error to render judgment for a larger sum than that claimed in the declaration, whatever may be the form of action. Brown v. Smith, 24 Ill. 197; Wolcott v. Holcomb, ib. 331.

The judgment of the court below is reversed, and the cause remanded.1 Judgment reversed.