#### Richard J. Hamilton, Commissioner of School Lands for Cook county, Illinois, plaintiff in error v. Truman G. Wright, impleaded with Norman Clark, defendant in error.

Error to Cook.

In an action upon a note given to the Commissioner of School Lands of a county, for money loaned of the school fund, in order to entitle the plaintiff to recover the twenty per centum penalty given by the statute of 1835, it must be claimed in the declaration.

The twenty per centum interest which borrowers of the school fund are eompelled to pay, upon a failure to pay the principal and interest punctually, is given as a penalty.

This cause was heard in the Court below, at the August term, 1837, the Hon. Jesse B. Thomas presiding. Judgment was rendered for the plaintiff in error.

F. Peyton, for the plaintiff in error,

cited acts of 1835,27.(1)

G. Spring, for the defendant in error,

cited 1 Cranch 194; 1 Peters’ Cond. R. 291.

(1)

Gale’s Stat. 638.

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of debt brought by Hamilton, a commis*583sioner of school lands, against Wright and Clark. The summons was only served on Wright, who suffered the judgment to go by default. The defendants in the note sued on, stipulated to pay ten per cent, interest. On the assessment of damages by the clerk, the plaintiff moved the Court to instruct the clerk that the plaintiff was entitled to recover twenty per cent, on the principal, and on the interest due—which instruction the Court refused to give,—and which refusal is assigned by Hamilton as error.

The declaration is in the usual form of debt, and contains no claim for twenty per cent, damages, in case of failure to pay either principal or interest. The instructions were properly refused. The twenty per cent, is given as a penalty, and it cannot be recovered unless the plaintiff claims it in his declaration.

The judgment is therefore affirmed,—and the defendant in error is entitled to the costs of this Court.

Judgment affirmed.

Note. See Pearsons v. Hamilton, Ante 415.