
    Toal, Appellant, vs. Clapp and another, Respondents.
    
      September 25
    
    
      October 13, 1885.
    
    Unlawful Detainee.: Execution: Constitutional Law. (1) Molding over after term: Notice to quit. (2) Execution for costs. (8) Action of tort: Imprisonment for debt.
    
    1. Under subd. 1, seo. 3358, R. S., a tenant bolding possession after tbe expiration of tbe term by lapse of time, without the permission of tbe landlord, may be removed without giving him notice to quit.
    2. Tbe execution for costs, “ as in other actions of tort,” authorized by sec. 3366, R. S., may be issued in all cases of unlawful detainer under tbe statute, whether there was a forcible entry or not.
    3. An action for unlawful detainer is an action of tort, and the imprisonment of the defendant under an execution issued therein for the costs is not imprisonment “for debt arising out of or founded on a contract,” within the meaning of sec. 16, art. I, Const, of Wis.
    APPEAL from the Circuit Court for Walworth County.
    The case is thus stated by Mr. Justice Cassoday:
    “False imprisonment. It appears that, January 15, 1819, the defendant Clapps being the owner and in possession of the premises and dwelling-house in question, verbally leased the same to the plaintiff, Toal, for the term of one month, and from month to month until the said lease should be terminated by thirty days’ notice given by either party, for the monthly rental of $8. Thereupon Toal went into possession and paid the monthly rent as it accrued until February 24, 1883, when Clapp duly served upon Toal a written notice to the effect that she thereby terminated the agreement and lease under which he (Toal) held the premises, such termination to take effect March 31, 1883, which was the end of the rental month, upon which last-mentioned day she thereby required the possession to be delivered to her. Toal having failed to quit the premises, Clapp, on April 6, 1883, commenced an action against him for the unlawful detention of the premises, before Samuel Bishop, a justice of the peace in 'Whitewater. April 10, 1883, Toal appeared therein and answered a general denial and that he was in possession under a lease from July 1,1882, to June 30,1883. Said issue was thereupon tried before said justice, who, April 12, 1883, found that Toal was “ guilty of the allegations of the complaint,” being substantially as stated above, and thereupon rendered a judgment of restitution therein against Toal of said premises, and also rendei’ed judgment against him therein in favor of Olapp> fov $19.17 costs therein. May 8, 1883, at the request of both the defendants, Olapp and Hawes, the justice issued an execution therein for said costs in the usual form against the body of Toal, and placed the same in the hands of the deputy sheriff to be served, and May 18, 1883, the deputy sheriff arrested Toal thereon, and conveyed him to and committed him in the county jail by virtue of said execution, and then and there closely confined and imprisoned him therein upon said execution until May 22, 1883, when he -was released from close confinement therein, and allowed to go at large upon the jail limits under and by virtue of the usual bond executed therein, and so continued upon the jail limits until May 25, 1883, when he, having sued out a writ of habeas corpus, was taken thereon before the court commissioner issuing the same, and after hearing had thereon, he was remanded by the commissioner to the jail limits, where he remained until May 28, 1883, when he was finally released from said imprisonment by the county judge, but only upon proceedings had before said county judge for that purpose, and upon his making the oath prescribed by law for the discharge of persons in custody and imprisonment upon civil process. Said Olapp is a woman and said Homes is her brother.
    “ This action is brought by Toal against Olapp and Homes for false imprisonment upon a complaint alleging, in effect, the facts above stated, and also that Hawes had no pecuniary interest in the imprisonment of Toal, nor any reason therefor, other than to gratify his malice and spite, and to ad-vanee tbe interest of Mrs. Glcvpp by forcing Toal to pay tbe judgment of $19.77 for costs; and that be bad otherwise wrongfully assisted and counseled bis said sister. Upon issue being joined and tbe cause called for trial, tbe defendants demurred to tbe complaint ore temis, and sucb demurrer was sustained by tbe court, and, no amendment being applied for, tbe complaint was dismissed. From tbe judgment entered accordingly the plaintiff appeals.”
    
      Henry Heady, for the appellant.
    For tbe respondents there was a brief by Weeks & Steele, and oral argument by Mr. Weeks.
    
   Cassoday, J.

"Was tbe plaintiff lawfully imprisoned on tbe judgment and execution for costs in tbe unlawful de-tainer suit? His tenancy ended and was terminated March 31, 1883, by notice given in accordance with tbe stipulation contained in tbe lease under which be had up to that time held tbe possession. By tbe same notice be was required to deliver tbe possession of tbe premises to Mrs. Gla^p on that day. He held over and refused to so deliver. Of course sucb bolding over was not under the lease, for that bad been terminated, and tbe plaintiff no longer had any right under it. Sucb bolding over, therefore, was without any authority from Mrs. Glayop and contrary to tbe notice and demand made by her upon him. Sucb being tbe condition of things, did tbe statutes authorize bis removal without other or further notice? They expressly declare that any tenant or lessee ... for any part of a year . . . of any real property . . . may be removed therefrom . . . (1) when sucb person bolds possession after tbe expiration of tbe term by lapse of time . . . and without tbe permission of tbe landlord.” Sec. 3358, R. S. Here, upon tbe notice being given as provided by tbe express stipulation in tbe lease, tbe term expired by lapse of time, March 31, 1883, and tbe bolding over thereafter was confessedly without permission of Mrs. Clapp. The time of the expiration of the lease was uncertain until the notice was given, when it became fixed and certain. The contract thereupon became the same, in effect, as though it had been in writing expressly providing that it should terminate or expire at the time named. Under such a lease both parties would necessarily know the day on which it would expire by lapse of time. Knowing the fact, there would be no necessity of being notified of it, and the statute quoted did not require it. Under the second and third subdivisions of the same section, where the proceeding is after default in the payment of rent, or where the tenant holds over without permission, contrary to some condition or covenant in the lease, it is otherwise, and hence in such cases a three days’ notice must be given. But neither of those subdivisions have any application to a case where the expiration of the term is by lapse of time. This, as we have seen, after the notice was given, was such a case. This being so, such holding over clearly came within the language of the statutes quoted, and hence the plaintiff was liable to be removed from the premises without other or further notice.

This gave Mrs. Clapp the right to such judgment of restitution as the statutes authorized the justice to render in such a case. The statutes expressly declare that “ if upon the trial of cmy such action the justice . . . find the defendant . . . guilty of the allegations in the complaint, the justice shall thereupon enter judgment for the plaintiff to have restitution of the premises, and tax the costs for the plaintiff . . . against such defendant. . . . Such justice shall issue execution in favor of the plaintiff for such costs as in oilier actions in tort, and also issue a writ of restitution.” Sec. 3366, B. S. It is claimed that this section only applies to cases mentioned in sec. 3360, in which there have been an “unlawful or forcible entry a/nd” detention. But it is the only section regulating the entry of judgment under that chapter. Besides, it expressly provides that “when the action is brought under the provisions of sec. 3360,” the justice “ shall impose a fine,” etc., and then provides for the collection of such fine. From this it appears, by necessary implication, that the section does apply to a class of cases not coming under sec. 3360, and in which no fine can be imposed, for the reason that there has been no “unlawful or forcible entry and” detention, but only an “ unlawful detainer,” as in the case before us. But an “ unlawful detainer ” is necessarily tortious, and hence the provision that “ such justice shall issue execution in favor of the plaintiff for suoh costs as in other actions in tort.” In such other actions in tort “an execution may be issued against the person of the defendant when the action in which judgment is rendered is founded on tort, or is for a penalty,” etc. Sec. 3681, K. S. That such “ unlawful de-tainer ” is tortious is manifest from the fact that it subjects a party to treble damages when, as here, the action is not “brought for the nonpayment of rent.” Sec. 3367, E. S. That this provision giving treble damages “ is penal in its nature” there can be no question. Chase v. Dearborn, 23 Wis. 445. The action was for “unlawful detainer,” and made tortious by express statutes, and hence the plaintiff was not imprisoned for debt arising out of or founded on a contract, express or implied,” within the meaning of sec. 16, art. I, Const, of Wis. This is so clearly established by the authorities as to require no discussion. Howland v. Needham, 10 Wis. 495; In re Mowry, 12 Wis. 53; Cotton v. Sharpstein, 14 Wis. 226; In re Kindling, 39 Wis. 60; Baker v. State, 54 Wis. 378; In re Milburn, 59 Wis. 30 et seg.; In re Burrows, 33 Kan. 675.

The view we have taken of the question considered renders it unnecessary to consider the others, so thoroughly discussed by counsel, as they are each dependent upon the one already determined.

By the Court.— The judgment of the circuit court is affirmed.  