( Kinne v. Duncan, 323 Ill. App. 363, 55 N.E.2d 545 (abst. only); McGowan v. London Lancashire Indemnity Co. 237 Ill. App. 561, 569; Warner Construction Co. v. Lincoln Park Comrs. 278 Ill. App. 42, 53; see also, Moll v. Sanitary District of Chicago, 228 Ill. 633.) This rule has recently been criticized for its inequities (64 Yale Law Journal, 1019) for the reason that it deprives an unsuccessful appealing judgment creditor of the interim use of the money due on a judgment when, by virtue of such unsuccessful appeal, the propriety of the original judgment, as here, is affirmed.

However, under traditional theory, when the creditor appealed the inadequacy of the judgment, he was denied interest because the creditor's own act delayed payment of the judgment. ( Kinne; McGowan v. London Lancashire Indemnity Co. of America (1925), 237 Ill. App. 561, 569-70.) The supreme court held in Pinkstaff that the 1955 amendment to section 3 of the Interest Act eliminates this delay analysis and secures the right of the creditor to interest even if he appeals from the judgment; the tender provisions of section 3 specify the method for the debtor to stop the accrual of that interest — by tendering payment.

( Watson Lumber Co. v. Guennewig (1967), 79 Ill. App.2d 377, 226 N.E.2d 270; see Ill. Rev. Stat. 1973, ch. 74, par. 2.) We believe, therefore, that interest dating from May 13, 1970, was improperly awarded and, instead, should have been assessed from the judgment date of May 3, 1976. Ill. Rev. Stat. 1969, ch. 74, par. 3; McGowan v. London Lancashire Indemnity Co. of America (1925), 237 Ill. App. 561. For the foregoing reasons, we find the judgment of May 3, 1976, ordering the return of the $22,000 to defendants, was correct and, to that extent, it is affirmed; but, we find also that the assessment of any interest prior to May 3, 1976, was incorrect and, to that extent, the judgment is reversed and the cause is remanded with directions to reassess the interest from that date and to enter judgment for the total of that interest and the $22,000.

This has always been recognized by the Illinois courts, which, despite an interest statute which has been in effect in Illinois since 1845, see Smith-Hurd, Ill Anno Stats Chap 74, Sec 3, Historical Note, p 37, have consistently refused to sanction an award of interest to a dissatisfied judgment creditor during the pendency of his unsuccessful appeal. Moll v. The Sanitary District of Chicago, 228 Ill. 633; Cook v. South Park Commissioners, 61 Ill. 115; Kinne v. Duncan, 323 Ill. App. 363, 55 N.E.2d 545; McGowan v. London Lancashire Indemnity Co., 237 Ill. App. 561; 23 ILP 32." (Emphasis from the brief.)

We believe that the "rent" condition is also modified by that requirement. Daggitt v. Mensch, 41 Ill. App. 403; Daggitt v. Mensch, 141 Ill. 395; Hawes v. Sternheim, 57 Ill. App. 126; McGowan v. London Lancashire Co., 237 Ill. App. 561. The bond is indemnity for one who had a right to the forcible entry and detainer judgment, not a benefit for one who had no such right.

Defendant, however, points out that this case has never since been cited in a forcible entry and detainer suit; that there was no attempt made in the opinion to distinguish between "damages for withholding" and "rents"; that the decision was made under the act of 1861 and that the statute at that time did not, as at present it does, carefully distinguish between rent and damages. In McGowan v. London Lancashire Indemnity Co., 237 Ill. App. 561, the third division of this court squarely holds that the question of relationship of landlord and tenant cannot be raised by a defendant to a suit on a bond of this character. In that case the plaintiff lessor had judgment in forcible detainer, from which the defendant tenant prayed an appeal, which was allowed.

While the point was properly in the case, it was not controlling and was evidently not so regarded either by counsel or the court. The proposition as there stated is evidently only a half truth, for the third division of this court in McGowan v. London Lancashire Indemnity Co. of America, 237 Ill. App. 561, and the Supreme Court of the State in Gunsul v. American Surety Co. of New York, 308 Ill. 312, have held the law to be that where a surety company is doing a business for profit the contracts entered into are construed as contracts in indemnity or insurance, and that the contract will be construed in such cases most strongly against the surety. (See also 21 R.C.L., pp. 1160-1162; Royal Indemnity Co. v. Northern Ohio Granite Stone Co., 100 Ohio St. 373, 126 N.E. 405, reported in 12 A.L.R. 378.) It is unnecessary to say that these decisions were not called to the attention of this court in the consideration of the City of Chicago v. Southern Surety Co., supra.