retroactive operation which would result in the creation of a cause of forfeiture which was not expressly provided for by the act of the parties. Nor could the act of 1865 be given any such retroactive operation without impairing the obligation of the contract of lease.26 If however, the act be construed to have a retroactive effect as far as the mode of creating a forfeiture is concerned it is difficult to see why it must not equally be construed to have a retroactive effect so far as the creation of a new cause of forfeiture goes. But, if so construed, it is void as far as the latter effect is concerned and, since both applications of the act are inseparable,27 the whole must be bad. The way to have met this difficulty would have been to hold either that the act had no retroactive effect of any kind, or else that it had no effect at all unless there was an express condition of forfeiture in the lease. In Woods v. Soucy our supreme court refused to take the former step and, in cases which we have already examined, it has refused to take the latter.28

§ 40. Mode of perfecting a forfeiture as altered by the agreement of the parties-Provisions for the benefit of the landlord: The landlord's principal difficulties are as follows:

(1) Suppose he has a responsible tenant who wants to quit: If he declares a forfeiture that is exactly what the tenant desires. On the other hand, if the landlord accepts possession of the premises from the tenant the claim will be made. that the lease has been terminated by a surrender.29 The first of these difficulties has been overcome by a provision for entry by the landlord without forfeiture.30 The second might

26 Ante, § 26.

27 Cooley, Constit. Lim., 1st ed., pp. 178-179; People v. Cooper, 83 Ill. 585, 595; Hinze v. People, 92 Ill. 406, 424; People v. Martin, 178 Ill. 611, 625; People v. Knopf, 183 III. 410, 422; Noel v. People, 187 Ill. 587, 597; Donnersberger v. Prendergast, 128 Ill. 229, 234; People v. Hazelwood, 116 Ill. 319 326; Strong v. Dignan, 207 385, 394.

28 Ante, §§ 24, 25.

29 West Side Auction Co. v. Conn. Mut. Life Ins. Co., 186 Ill. 156; Marshall v. Grosse Clothing Co., 184 Ill. 421; Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514.

30 Grommes v. St. Paul Trust Co., 147 Ill. 634; Heims Brg. Co. v. Flannery, 137 Ill. 309; cf. Johannes v. Kielgast, 27 Ill. App. 576.

conceivably be obviated by a clause that any surrender shall be in writing signed by the party to be charged.31

(2) When an irresponsible tenant pays no rent and undertakes to keep possession he is met by clauses providing for forfeiture without entry, without demand for rent and without notice to quit.32

§ 40a. Provision for the protection of the tenant: No reason is perceived why the common law and statutory modes of forfeiture may not be done away with by mutual agreement for the benefit of the tenant as well as of the landlord. Thus, it may be provided (and this is especially appropriate in long leases), that a forfeiture shall occur only upon a longer notice than that provided by the statute; and this, it is submitted, will exclude any forfeiture upon a five or ten day notice.33

PART 7.

REMEDY IN CASE OF FORFEITURE DULY PERFECTED.

§ 41. By ejectment or forcible detainer suit: An action of ejectment would seem to be an appropriate remedy in all cases of forfeiture duly perfected. Where a fee simple has been forfeited perhaps it is the only remedy by action, since the forcible entry and detainer statute provides a summary remedy for possession in case of forfeiture only "when any lessee of the lands or tenements, or any person holding under him, holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise." 34

§ 41a. Actual entry upon the land-Action of forcible entry and detainer for possession by the one put out-Introductory: A forfeiture having been duly perfected, how far may the 31 Perhaps this would not help Ill. 238, 245; Belinski v. Brand, matters much for it might fairly be contended that the parties could waive such a clause by mutual agreement, and that the acts relied upon as a surrender by mutual assent could be used also to show such a waiver.

76 Ill. App. 404; Mueller v. Kuhn, 46 Ill. App. 496. See, however, Woodward v. Cone, 73 Ill. 241, where the language of the lease was not sufficient to constitute a waiver.

22.

33 Crandall v. Sorg, 99 Ill. App.

32 Espen v. Hinchuffe, 131 Ill. 468; Williams v. Vanderbilt, 145 34 R. S. 1874, ch. 57, sec. 1, § 4.

grantor or landlord physically enter and take possession? To answer this question let us suppose that he does actually enter and take possession. Will he have any defence to the several actions which the one put out may bring against him? Suppose an action of forcible entry is brought. Is it any defence that at the time the defendant entered, a forfeiture had been perfected and he had a right to possession?

§ 42. Where the entry is forcible-Before 1872: The answer to the question of the preceding paragraph must depend upon the construction to be given our forcible entry and detainer statutes.

Up to 1872 the form of the act so far as it touches the present problem followed the first section of the act of 1827.35 It was this: "If any person shall make any entry into any lands, tenements or other possessions, except in cases where entry is given by law, or shall make any such entry by force, such person shall be adjudged guilty of a forcible entry and detainer It was further provided that if the defendant be found guilty, judgment should be given "for the plaintiff to have restitution of the premises."

By the literal language of this act, a forcible entry by one having the immediate right to possession gave to the one put out the statutory remedy for repossession, yet this was an absurd result, for when accomplished it simply produced further litigation, viz., an action of forcible entry and detainer or ejectment against the person who had just been restored by judicial process to an unlawful possession. It has even been said that the effect of such a construction of the act was to produce in some degree the evil sought to be avoided, by encouraging the scramble for a possession which, however defective the title upon which it was founded might be, could only be attacked by an action involving the validity of the plaintiff's title." Pehaps such a result was impossible under

35 R. S. 1827, p. 230; R. S. 1833, p. 311; R. S. 1839, p. 313; R. S. 1845, ch. 43, p. 256; Gross' Stats. of Ill., vol. 1, ch. 43, p. 299; superseded by Forcible Entry and Detainer Act of 1872 (Gross' Stats. of Ill., vol. 2, ch. 43, p. 187). Repealed in terms by R. S. 1874, ch. 57, sec. 21.

55

1 Right of a Landlord to Regain Possession by Force, 4 Am. Law Rev. 429, 447; dissenting opinion of Mills, J., in Chiles v. Stephens, 3 A. K. Marshall (Ky.), 340, 350.

2 Right of a Landlord to Regain Possession by Force, 4 Am. Law Rev. 429, 447.

the English statutes on forcible entry and detainer, for those acts had a distinct criminal character and operation by which the one having the right to possession might be punished for a forcible entry, even though he were not restored to possession.3 Furthermore, restitution under the English acts was never awarded "except to a freeholder under the stat. 8 Hen. VI., or to à tenant for years under the stat. 21, Jac. I.,"4 and where, under these statutes, a writ of restitution was sought, "it was requisite for the title of the plaintiff to be truly set out, and mere possession made a prima facie title, only if not traversed." 5 The Illinois forcible entry and detainer act of 1827, however, was not in character or operation a criminal statute; nor did it limit the right of restitution in any way so as to exclude the case where the plaintiff had no right to possession. Perhaps, then, there was no alternative but to follow the language of the act and restore to a wrongful possession the one forcibly put out by him who had the immediate right to possession. At all events that is what our supreme court did.

§ 43. Since 1872: In 1872 our forcible entry and detainer statute was fundamentally changed," being altered to conform pretty closely to the provision of the Massachusetts act of 1836.8 then in force in that state as chap. 137 of the Genl.

3 Turner v. Meymott, 1 Bing. 158 (semble); Taunton v. Costar, 7 T. R. 43 (semble); Taylor v. Cole, 3 T. R. 292 (semble).

4 Right of a Landlord to Regain Possession by Force, 4 Am. Law Rev. 429, 446. See also, F. N. B., 248 H. Cf. 1 Hawkins Pleas of the Crown, p. 508, sec. 47, (chap. 28 of Forcible Entries and Detainers).

5 Rex v. Wilson, 8 T. R. 357, 360; 2 Chit. Crim. Law, 1136. See also Right of a Landlord to Regain Possession by Force, 4 Am. Law. Rev. 429, 446.

It seems clear the one forcibly put out had no qui tam action for damages under the English statutes if the defendant showed a

right to possession in himself: Right of a Landlord to Regain Possession by Force, 4 Am. Law Rev. 429, 437; 1 Hawkins Pleas of the Crown, p. 495, sec. 3.

6 Baker v. Hays, 28 Ill., 387; Shoudy v. School Directors, 32 Ill. 290; Smith v. Hoag, 45 Ill. 250; Huftalin v. Misner, 70 Ill. 205. See also Chiles v. Stephens, 3 A. K. Marshall, (Ky), 340; Right of a Landlord to Regain Possession by Force, 4 Am. Law Rev. 429, 446, citing Krevet v. Meyer, 24 Mo. 107 and King v. St. Louis Gas Light Co., 34 Mo. 34.

7 Gross' Ill. Stats. Vol. 2 (18711872) Ch. 43, p. 187; R. S. 1874 Ch. 57, p. 535.

8 R. S. (Mass. 1836) Ch. 104.

Stats. of 1860.9 Sec. 1 of the Illinois act follows word for word sec. 1 of the Massachusetts act.10 It reads: "No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force but in a peaceable manner." Sec. 2 of the Illinois act is modeled upon sec. 2 of the Massachusetts statute as it appears in R. S. (Mass. 1836) ch. 104, and in Genl. Stats. (Mass. 1860), ch. 137.11 This is the section which actually gives the remedy for restitution or possession in certain cases. Illinois statute provides in part as follows: "§ 2. The person entitled to the possession of lands or tenements, may be restored thereto in the manner hereinafter provided: FirstWhen a forcible entry is made thereon. Second-When a peaceable entry is made and the possession is unlawfully withheld." Like the Massachusetts acts 12 the Illinois statute provides in sec. 5 that the complaint shall be made by the party "entitled to possession." Like the Massachusetts acts 13 the Illinois statute, in sections 13, 14 and 16, provides that the plaintiff shall have an execution for possession "if it shall appear that the plaintiff is entitled to possession," and "if the plaintiff is non-suited or fails to prove his right to possession, the defendant shall have judgment."

In the recent Massachusetts case of Page v. Dwight14 it was held that since 1836, with the exception of one year from 1851 to 1852, it had been the law under the Massachusetts forcible entry and detainer statutes that one forcibly put out by another, who had the immediate right to possession, could not bring forcible entry and detainer. The court conceded that under the early laws of Massachusetts "every forcible entry by a private individual was unlawful, and might sub

9 See also Pub. Stats. (Mass. 1882) Ch. 175; Rev. Laws (Mass. 1902) Ch. 181.

10 R. S. (Mass. 1836) Ch. 104, sec. 1; Genl. Stats. (Mass. 1860) Ch. 137, sec. 1; Pub. Stats. (Mass. 1882) Ch. 126, sec. 15; Rev. Laws. (Mass. 1902) Ch. 136, sec. 15.

11 See also Pub. Stats. (Mass. 1882) Ch. 176, sec. 1, and Rev. Laws (Mass. 1902) Ch. 181, sec. 1.

12 R. S. (Mass. 1836) Ch. 104, sec. 4; Genl. Stats. (Mass. 1860) Ch. 137, sec. 5; Pub. Stats. (Mass. 1882) Ch. 175, sec. 2; Rev. Laws (Mass. 1902) Ch. 181, sec. 2.

13 R. S. (Mass. 1836) Ch. 104, secs. 6 and 7; Genl. Stats. (Mass. 1860) Ch. 137, secs. 7 and 8; Pub. Stats. (Mass. 1882) Ch. 175, sec. 5; Rev. Stat. (Mass. 1902) sec. 5. 14 170 Mass. 29.