#### Emanuel F. Selz, Appellee, v. James W. Stafford, Appellant.

Gen. No. 22,871.

(Not to Tbe reported in full.)

Abstract of the Decision.

1. “Appeal and error, § 1170 * ,—when moot question not determined. In an action brought to recover rent and for forcible detainer where, before the trial, possession of the premises is surrendered, it is not proper that the court determine the moot question as to possession.

2. Municipal Court of Chicago, § 13*—what is effect of striking affidavit of defense and counterclaim and proceeding with trial. In an action of the fourth class where a defendant’s affidavit of defense and counterclaim are stricken from the files and the cause proceeds to trial, defendant is in default and admits every material averment of plaintiff’s claim.

Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed May 21, 1917.

Rehearing denied June 4, 1917.

Statement of the Case.

Action of the fourth class by Emanuel F. Selz, plaintiff, against James W. Stafford, defendant, in forcible detainer for the possession of certain premises and to recover rent alleged to be due. From a judgment in favor of plaintiff for $2,358.19, defendant appeals.

C. Van Alen Smith, for appellant.

Mayer, Meyer, Austrian & Platt, for, appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

Illinois Notes Digest, Vols. XI to XT, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.

*5593. Municipal Court of Chicago, § 13*—what need not be attached to statement of claim in action for rent. In an action in the Municipal Court of Chicago to recover rent due under a lease, plaintiff is not required to attach a copy of the lease to his statement of claim or to offer it in evidence.

4. Municipal Court of Chicago, § 8*—when jurisdiction not affected by commencement of action as of fourth class. The fact that an action in the Municipal Court of Chicago was commenced as an action of the fourth class does not deprive that court of jurisdiction to enter judgment in excess of $1,000.

5. Municipal Court of Chicago, § 28*—when objection as to lack of jurisdiction is too late. An objection that the Municipal Court of Chicago is without jurisdiction to enter judgment in excess of $1,000, in an action commenced as an action of the fourth class, comes too late when first made on appeal.

6. Municipal Court of Chicago, § 8 * —what constitutes conceding of jurisdiction by defendant in action of fourth class. "Where defendant in an action of the fourth class in the Municipal Court of Chicago states in his affidavit of set-off and counterclaim that his damages exceed plaintiff’s claim and also that his damages amount to $20,000, he concedes the jurisdiction of the court to enter a judgment in favor of either party in excess of $1,000.

7. Landlord and tenant, § 297*—when tenant not entitled to apportionment of rent. In an action to recover rent claimed to be due under a lease, where the amount claimed is admitted by defendant’s default, defendant is not entitled to an apportionment of the rent hy reason of his having surrendered the premises before the expiration of the time for which rent is sought to be recovered.

8. Landlord and tenant, § 311*—when tenant may not offset against rent damages for interference with use of premises. A tenant who continues in the use and occupation of the premises cannot offset against the rent, damages claimed to have been caused him by reason of inconvenience in the use and occupation of the premises and hy reason of conduct of the landlord tending to interfere with their beneficial enjoyment.

9. Set-off and recoupment, § 44*—what is extent of right of set-off. Under Hurd’s Rev. St. ch. 98, sec. 12 (J. & A. ji 7633), a set-off is limited to the amount of plaintiff’s claim.

10. Set-off and recoupment, § 10*—what is not subject of. A claim for unliquidated damages can neither be set off nor recouped against a claim for liquidated damages.