#### Rains vs. The City of Oshkosh.

It is not necessary, in an action against a city, to allege in the complaint that the defendant is a municipal corporation.

An action under chapter 161, R. S., for the unlawful detention of leased premises, will lie against a municipal corporation.

The complaint in such an action alleged the demise of certain premises by the plaintiff to the city, the non-payment of rent for three days after it became due according to the terms of the lease, a subsequent demand in writing that the city should deliver up possession of the premises, and its neglect to do so before the oommencement of the action, which was more than three days after such demand. *Held,*that the complaint was sufficient.

APPEAL from the County Court of *Winnebago*County.

This was an action for an unlawful detainer of certain leased lands. The complaint, which was filed October 9 th, 1860, alleged that the plaintiff, on the 29th of August, 1859, demised to the defendant certain premises therein described ; that the defendant was justly indebted to the plaintiff for one year’s rent of the premises, amounting to twenty-five dollars, and the same had remained due and unpaid more *373than three days; that the said sum became- due on the 29th of August, 1860, according to the terms of the lease ; that on the 4th of October, the plaintiff made a demand in writing of the defendant that it deliver up possession of the leased premises, but it had refused to do so, and still unlawfully detained the same. Answer, a general denial. Judgment for the defendant.

*Freeman*& *Jackson,*for appellant.

*K L.*WMttemore, for respondent. -

December 11.

*By the Court,*

Cole, J.

This was an action instituted by the appellant against the city of Oshkosh under chapter 151, R S., for an unlawful holding over of demised premises after rent had become due by the terms off a lease and remained unpaid. The case was tried before a justice of the peace, where judgment was rendered for the appellant and a restitution of the premises ordered. The city took an appeal to the county court of Winnebago county ; and ón the trial of the cause in that court, the counsel for the city objected to the evidence on the part of the appellant, because the complaint was insufficient in not alleging that the defendant was a municipal corporation duly organized under the laws of the state; that an action for an unlawful holding over of demised premises will not lie against a municipal corporation ; that the complaint did not set forth a sufficient notice to quit; that it did not allege that the appellant was entitled to ‘the premises, either sis owner, or by possession, or by right of possession; and that it was not alleged that the defendant was in possession when notice to quit was served, or at any other time. An application was made to amend the complaint so as to obviate these objections, but the amendments were refused, the court Folding that the complaint was insufficient because the action did not lie against a municipal corporation. As we consider the complaint sufficient, ' it will not be necessaryAo notice the point that the court should have granted leave to amend. It was clearly unnecessary to allege in the complaint that the city of Oshkosh was a municipal corporation duly organized by the laws of the state. The charter organizing the city was a public act, *374of wbicb tbe courts were bound to take judicial notice. *The City of Janesville vs. Milwaukee & Mississippi R. R. Co.,*7 Wis., 484; *State ex rel. Cothren vs.*Lean, 9 id., 279; *Clark vs. Oity of Janesville,*10 id., 136. Besides, in actions brought by a private corporation it is not necessary to allege that such corporation was duly organized by tbe laws of tbe state from wbicb it derived its corporate powers, where there would be far more reason for requiring such an allegation than in tbe preseñt case. *Farmers' & Millers’ Bank vs.*Sawyer, 7 Wis., 379; *The Bank of Wisconsin vs. Knowlton,*12 id., 624. Nor do we think the objection well taken, that tbe action will not lie against a municipal corporation. Tbe language of tbe statute is general, and applies to any person who bolds over demised premises after tbe termination of tbe lease, or contrary to the covenants thereof, or after rent becomes due; and we have no doubt that tbe word “person” extends to municipal corporations. We can conceive of no possible reasons why tbe statute should not extend to corporations, public or private, for tbe remedy is quite as essential and necessary against them as against a natural person. Tbe *city of Oshkosh*is authorized to lease property ; it is endowed with tbe power of suing and being sued; and what principle of law ‘or public policy is violated by rendering it amenable to this action? We can imagine none. It is true that tbe corporation is organized for police and governmental purposes, but that furnishes no satisfactory reason why it should not pay rent due upon a lease for property wbicb it uses and enjoys, or why, if it will not or cannot pay according to tbe stipulations of the lease, it should not then be dispossessed. Tbe remedy for an unlawful detention of demised premises is undoubtedly given by statute, but it is as competent for tbe legislature to give it against a municipal corporation as against a natural person, and they appear to have done so.. Tbe remedy may not be as effectual and complete against tbe corporation as it would be against a natural person, but this is no reason why a party should not have tbe benefit of tbe action against tbe city as far as it is available. It certainly can be made efficacious to this extent, to enable him to obtain possession of property for tbe use of *375wbicb tbe city refuses or neglects to pay rent according to its contracts. This is an essential and important benefit. And as tbe legislature bas not exempted municipal corporations from liability to answer* in an action for unlawful de-tainer, tbe courts should not. See also subdivision 12, sec. 1, chap. 5, where the legislature bas given a rule for tbe construction of statutes in wbicb tbe word person” is used. We must therefore bold that under our statute an action for unlawful detainer will lie against tbe city.

Tbe third objection, that tbe complaint does not set forth a sufficient notice to quit, is not true in point of fact. Tbe allegation is, that on tbe 4th day of October, 1860, tbe appellant made a demand in writing that tbe city deliver up tbe possession of tbe premises, wbicb tbe city refused to do. It bad been previously averred, that a year’s rent fell due on tbe 29th of August. Nor was tbe complaint obnoxious to tbe fourth and fifth objections taken to it. It clearly and explicitly shows that tbe appellant was entitled to tbe possession of tbe premises wbicb were held by tbe respondent, and tbe allegations upon these points are sufficient'

Tbe complaint showing a good cause of action, it follows that tbe county court improperly ruled out tbe evidence offered by tbe appellant to maintain tbe issues on bis part to be sustained under it.

Tbe judgment of tbe county court is therefore reversed, and a new trial ordered.