Chapman v. Wright

Walker, J. This was an action of debt, commenced by appellee against appellant, in the Cook County Court of Common Pleas. The declaration contains six counts. The first on a lease, for rent due, and double value of the premises from the 1st day of September, 1855, to the 20th May, 1856-, when suit was brought; and avers that appellee leased to appellant certain lots, for which appellant agreed to pay the yearly rent of $50, and all taxes and assessments on the same during the continuance of the Jease, and contained a clause of forfeiture of the lease on non-payment on the day; that appellant occupied the premises until the 1st day of September, 1855, at which time $59 of rent was due and unpaid; that appellee on that day entered and took possession, and brought his action of unlawful detainer on the 10th day of September, before a justice of the peace, and recovered a judgment on the 6th day of October, 1855 ; that the yearly value is $75, and concluded with demanding $177.86. The second count was for $155.84, rent on the premises from July 6th, 1854, to the termination of the lease. The third count is for $59.44, as rent from July 6th, 1854, to August 1st, 1855. The remaining counts are the common counts 'for money paid, for money had and received, and for an account stated. The defendant pleaded non-assumpsit, and subsequently a plea to the 1st, 4th, 5th, and last counts, that the action of unlawful detainer was still pending and undetermined, on appeal from the judgment rendered by the justice of the peace in the Cook County Court of Common Pleas. To this plea, appellee replied that the action of unlawful detainer ought to be dismissed, because the appeal was not entered into in proper time. To this replication appellant filed a demurrer, which remains undisposed of by the court. The parties went to trial, and the cause was heard by the court without the intervention of a jury, by consent. After hearing the evidence, the court rendered a judgment in favor of the appellee, for §129.25, damages; and the cause is brought to this court by appeal. The first count proceeds for the recovery of double the yearly value, for a holding over after the expiration of the term. The lease contains a clause “ that if the said rent, or any part thereof, be not paid on the day of payment, or if default be made by said lessee in any of the conditions of said lease, that then and in that case the said lessor might, at his election, declare said term ended, and re-enter and take possession of said premises.” The doctrine seems to be well' settled, that in cases of forfeiture of a lease for non-payment of the rent, there must be a demand, and generally, where a penalty as well as a re-entry is given for the non-performance of a condition, the forfeiture cannot be taken advantage of, without a demand at the time fixed. 1 Wood’s Convey. 11; Sterne’s Real Act. 27; Hob. 82. This declaration fails to aver any such demand, and was, for the want of such an averment, insufficient to entitle the appellee to recover for double the yearly value. The 2nd section of the 60th chap. B. S. 1845, giving the right to recover double the yearly value of the lands held after the expiration of the term, requires that demand shall be made and notice in writing given, for the possession by the. landlord or other person entitled to the possession, before such a recovery can be had. This action is, in its nature, highly penal, and in all such cases, the party proceeding for the penalty must, by his pleadings, show that he is entitled to recover. Courts will not extend acts imposing penalties beyond the cases provided for by the legislature, and will require the party to bring himself strictly within its provisions. The statute has imposed, as a condition, that a demand must be made and written notice given for the possession before the penalty can be recovered, and the appellee has failed to show by averment that he has complied with this provision, and the first count of the declaration is, in this respect, fatally defective. And a recovery under it cannot be sustained, as there is no right of recovery of this penalty shown. And this judgment should be arrested for that cause. . It has been repeatedly held by this court, and is the settled law, that it is error to try a cause while a demurrer remains in the record undisposed of in some appropriate manner. Moore v. Little, 11 Ill. R. 549. This court has held, uniformly, that it is error, in an original action of debt in the Circuit Court, to render judgment in damages. Howell v. Barrett, 3 Gil. R. 433 ; O’Connor v. Mullen, 11 Ill. R. 57. The judgment Avas, in that respect, erroneous. Bor these various errors, the judgment of the court below must be reversed and the cause remanded. Judgment reversed.