
    Fox v. Althorp.
    A tenant covenanted to pay as rent “twelve hundred dollars per annum, payable in monthly installments of one hundred dollars at the first of each and every month.” Installments for four months being due and unpaid, the landlord began, at the same time, in a justice’s court two suits — one for November and December, the other for January and February — the bill of particulars in each case referring to the same lease. A trial as to November and December resulted in a verdict for the plaintiff for eighty dollars, and at the same time, on the same evidence, judgment for the same sum was rendered in each case against the tenant. He appealed the case for January and,February; paid the other judgment and then pleaded it in bar in the common ideas. The record shows no objection by him, in any form, in the justice’s court, to the separate suits on the same covenant. Held: As the case was, the plea was insufficient.
    Error to the District Court of Hamilton County.
    • In a lease dated January 21, 1875, Althorp covenanted to pay to Fox, as rent, for the premises described therein, during the term, “ twelve hundred dollars per annum', payable in monthly installments at the first of each and every month.” The installments payable on the first days of September, October, November and December, 1877, and of January, February and March, 1878, remaining unpaid, Fox, on March 19th, 1878, began, at the same time, four suits against Althorp before a justice of. the peace, his bills of particulars all plainly referring to the same lease and claiming the rent due in September and October in one; that for November and December in another; that for January and February in the third and that for March in the fourth. Althorp made defense, and the case for September and October was tried to a jury, which found a verdict in favor of Fox for $80, and judgment was rendered on the verdict. On the same evidence the justice then rendered judgment for a like sum in each of the other actions. Althorp paid the judgment for the installments due in November and December, 1877; appealed from the'Other judgments to the common pleas, and there pleaded the satisfied judgment in bar. Issue joined on this plea in one case was tried by the court (a jury being waived), which made a finding and judgment for the plaintiff. A motion for a new trial was overruled and a bill of exceptions, presenting all the evidence taken. This included the bills of particulars in all the cases, and the oral testimony of the justice relating the proceedings in his court. This disclosed no objection of any kind by Althorp to the severance of the claim of Fox. On error, the district court reversed the judgment of the common pleas, and Fox here asks a reversal of the district court.
    
      D. Wulsin and Wm. Worthington, for plaintiff in error.
    The following cases are exactly in point: Palmer v. Stanage, 1 Levinz, 43; Badger v. Titcomb, 15 Pick., 409; Andover Bank v. Adams, 1 Allen, 28; Sparhawk v. Wills, 6 Gray, 28; Perry v. Dickerson, 85 N. Y., 345; McIntosh v. Lown, 49 Barb., 550; Dulaney v. Payne, 101 111., 325; Wehrly v. Morfoot, 103 Id., 183; Merchants Ins. Co. v. Algeo, 31 Pa. St., 446; Shaw v. Beers, 25 Ala., 449; Bobbins v. Harrison, 31 Id., 160; Sweeny v. Daugherty, 23 Iowa, 290; Stiekel v. Steel, 41 Mich., 350; Breekenridge v. Lee, 3 A. K. Mar., 449; Beck v. Devereaux, 9 Neb., 109.
    The following eases are authority, because of the reasons by which the conclusions reached are sustained: Florence v. Jenings, 2 C. B. N. S., 454; Johnson v. Pirtle, 1 Swan, 262; N. O., M. T. B. B. Co. v. Castello, 50 Ala., 12; Waldo v. Jolly, 4 Jo. Law (N. C.), 173; Caldwell v. Beatty, 69 N.'C., 363; Staples v. Goldrieh, 21 Barb., 317; Secor v. Sturgis, 16 N. Y., 548; Griffin v. Wallace, 66 Ind., 410, 416; Steele v. Spight, 2 Roll., 178; Doe v. Woodbridge, 9 B. & C., 376; Doe v. Peck, 1 B. & Ad., 428; Boyce v. Christy, 47 Mo., 70; and see Spatchurst v. Sir Matthew Mins, Aleyn, 57; Palmer v. Stanage, 1 Levinz, 43; 3 Com. Dig., 552, Distress, A, 1; Gambree v. Bari of Falmouth, 4 A. & E., 73; Welbie v. Phillips, 2 Vent, 129.
    
      
      J. Shroder, for defendant in error,
    cited Casselberry v. Porquer, 27 111., 170, 172; Nickerson v. Rockwell, 90 Id., 460; Lucas v. Lecompte, 42 Id., 303; Rosennmeller v. Lampe, 89 Id., 212; Reformed Prot. L>. Church v. Brown, 54 Barb., 191; Jex v. Jacobs, 19 Hun, 105; O'Beirne v. Lloyd, 43 N. Y., 248; Perry v. Dickerson, 85 Id., 345; Burritt v. Belfy, 47 Conn., 323; 3 Parsons on Cont. (5th ed.), 188; Baird v. U. S., 96 U. S., 430; Shepherd v. Willis, 19 Ohio, 147; Thayer v. Brooks, 17 Ohio, 489.
   Granger, C. J.

Counsel upon both sides have ably argued for and against the right of a landlord to maintain separate actions for.overdue installments of rent in a case such as this, and they have furnished the commission with references to leading cases in many other states and in English courts. It is evident that where such severance is forbidden and a plea of former recovery sustained, the rule is based upon two grounds: First, a plaintiff is presumed to have included in his cause of action everything due to him thereon up to the time when he began suit, and, after judgment rendered, he is estopped from claiming that more was due. And, second, to prevent oppression of a defendant by compelling him to pay unnecessary costs. The record before us discloses that Fox, at the moment he began suit, asked for all the rent then due, although he prayed for four judgments instead of one. Hence he did nothing to raise an estoppel. The bills of particulars disclosed that the four actions were for overdue rent under the same lease, but it does not appear that Althorp made any objection to the severance, or that he sought, as soon as judgment was rendered in the case tried to the jury, to plead it in bar of the other three actions. As presented in the bill of exceptions the fair presumption is that he acquiesced in the severance as enabling them to promptly try their dispute in a justice’s court. It appears that, practically, the four suits were tried as one, and that his defense reduced his rent from one hundred dollars per month to forty dollars without interest. When it is evident that a defense is purely technical, the conduct of the defendant presenting it should be scrutinized by the court, and if it does not appear that he set it up at his first opportunity, it ought not afterwards to avail him.

Judgment of the district court reversed and that of the conynon pleas affirmed.  