The note upon which this action was brought, was given under the school law of 1845, which was reenacted in terms in 1849. It was said by this court, in the case of Trustees of Schools v. Bibb, 14 Ill. R. 272, that this last act was substantially the same as the law of 1835 as to the penalty for not promptly paying school money loaned, except that the penalty is reduced from twenty to twelve per cent. If the question was not directly presented in that case, it is in this, and we are still of the same opinion. Under the law of 1835, it was decided by this court, in the case of Hamilton v. Wright, *531 Scam. R. 582, that the twenty per cent, imposed for not paying school money borrowed, when due, was in the nature of a penalty, and could not be recovered upon a declaration in the ordinary form upon the note, but that a special averment should be inserted, claiming the penalty. We think the same rule prevails under the statute of 1845. It may, no doubt, as the statute says, be recovered in an action upon the note, but then the declaration should expressly show that the note was given for school money borrowed, and should specially claim the penalty of twelve per cent, for withholding the money. The declaration in this case is in the ordinary form, and contains no such averment. How could the clerk know when he assessed these damages, or how can we know now, that this note was given for school money loaned ? It may have been for the rent of school land, or to compromise a trespass upon school land, or for some other consideration other than money loaned. The defendant below, by making default, confessed that he owed the amount purporting to be due upon the note, but he did not thereby confess that the note was given for money loaned, or that he was liable for the penalty given for withholding money borrowed of the school fund after it became due.
The judgment must be reversed and the cause remanded.
Judgment reversed,.