in Ids dissenting opinion did not attack the principle referred to, but thought the court ought to lift the veil that concealed the real parties, and that the claims of these minor legatees ought to be considered as a distinct cause of action.
From the numerous cases that support the principle contended for we cite the following:—Lane v. Cook, 3 Day, 255; Bunnel v. Pinto, 2 Conn., 431; Avery v. Fitch, 4 id., 362; Simes v. Zane, 24 Penn. St. R., 242; Logan v. Caffrey, 30 id., 196; Reformed Dutch Church of Westfield v. Brown, 54 Barb., 191; Hopf v. Myers, 42 id., 270; Secor v. Sturgis, 16 N. York, 541; Coggins v. Bulwinkle, 1 E. D. Smith, 434; Bendernagle v. Cocks, 19 Wend., 207; Guernsey v. Carver, 8 id., 492; Stevens v. Lockwood, 13 id., 64; Colvin v. Corwin, 8 id., 492; Warren v. Comings, 6 Cush., 103; Staples v. Goodrich, 21 Barb., 317; Ward v. Sperry, 16 Johns., 121; Marble v. Keyes, 9 Gray, 221; Gibbs v. Cruikshanks, L. R. 8 Com. Pleas, 454; Lord Bagot v. Williams, 3 Barn. & Cress., 235. While there is no conflict of authorities relative to the proposition as stated, there is some disagreement in the cases in applying the principle, owing to the difficulty of discriminating between demands which in their nature are single and entire and those which are several. The cases where such difficulties usually arise are those where there are running accounts for goods sold, money lent or paid, or labor performed, at different times; or where there is only one contract with stipulations for payments or acts to be done at different times, and more than one payment has become due when the first suit is brought. The case at bar belongs to the last mentioned class, and we are called upon to determine whether the cause of action was entire or several; and for this purpose we will invoke the aid of such general rules as the best authorities have prescribed.
In Badger v. Titcomb, 15 Pick., 400, a leading case in Massachusetts on this subject, it was held that a contract to do several things at several times is divisible in its nature, and that an action will lie for the breach of any one of the stipulations, each of these stipulations being considered a several *327contract, though arising out of one and the same agreement. And the court held that a running account for goods sold and delivered, money loaned or money had and received at different times, will not constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing from which such an agreement may be inferred; and Wilde, J., in giving the opinion, says that the case of Guernsey v. Carver, 8 Wend., 492, which holds that a running account for goods sold at different times, if all are due, is an entire demand incapable of being split up into separate suits, is not good law.
Afterwards Cowen, J., in Bendernagle v. Cocks, 19 Wend., 207, in a very able opinion attempts to vindicate the decisions of the courts of New York against the attack of Judge Wilde.
Upon the merits of this conflict it is not necessary for us to pass, because we think the case at bar may be brought within the saving clause of Judge Wilde’s rule, and be made an entire demand by the effect of the implied agreement upon which the action is founded.
We ought however to remark in passing, that the later decisions by the courts of New York show some concession to the position taken in Badger v. Titcomb.
In Secor v. Sturgis, 16 N. York, 548, the case of Colvin v. v. Corwin, 15 Wend., 557, was overruled, which held that the purchase by the defendant of lottery tickets at two diffei’ent times and places of two different agents of the plaintiff constituted one entire demand, and the ease of Guernsey v. Carver, supra, was somewhat qualified.
Strong, J., in giving the opinion says:—“The true distinction between demands or rights of action which are single and entire and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts. In the case of torts each trespass or conversion or fraud gives a right of action and but a single one, however numerous the items of wrong or damage may be; in respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a contract containing several stipulations to be performed at different times is no exception; *328although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others, the ground of action in such case is the stipulation, which is in the nature of a several contract. * * * Usually in case of a running account it may be fairly implied that it is in pursuance of an agreement that an account may be opened or continued, either for a definite period or at the pleasure of one or both of the parties. But there must be either an express contract or the circumstances must be such as to raise an implied contract, embracing all the items, to make them, when they arise at different times, a single or entire demand or cause of action.”-
In further illustration of the application of the principle referred to we will notice two other recent cases decided by the courts of New York, where the facts were quite like those of the case under consideration.
In Coggins v. Bulwinkle, 1 E. D. Smith, 434, the defendant by written contract became security that each of four seamen named should report on board a certain ship and proceed to sea, and in default thereof he agreed to refund certain wages advanced by the plaintiff and pay damages. All the seamen made default and did not appear at all on board the ship. The plaintiff first brought an action of covenant, alleging a breach in the default of one seaman, and recovered. Afterwards he brought three other suits upon the same agreement, alleging the separate default of each of the others. The court, Woodruff, J., giving the opinion, held that the agreement was single and entire and could not be split up into four suits for breaches, all of which had occurred at the same time; and the first judgment was held a bar to all the other suits.
In The Reformed Dutch Church v. Brown, 54 Barb., 191, the defendant’s testator had agreed in writing to pay one hundred dollars yearly for three years, for the purpose of supporting the preaching of the gospel at a place named. After all three of the yearly payments had become due and unpaid suit was commenced for the hundred dollars due at the end of the first year' and judgment recovered. After-wards another action was brought for the remaining sums. It was held that the first judgment was a bar.
*329In the case at har it is manifest that an action might have been brought for each month’s rent as it became due, and so far the cause of action would have been several. But after all the payments have become due and the consideration is executed, in determining whether the cause of action is single and entire or several, regard should be had to the obligation of the defendant under the contract at the time the action is brought. If there are several payments due under one and the same contract they then become consolidated, as one obligation on the part of the defendant and one demand on the part of the plaintiff. So that if this action was founded on the express contract, we should hold that all the payments due should be included in one action. But here the action is not predicated on the promise to pay monthly and the breaches of that pi-omise, but simply on the implied contract arising from the use and occupation, which was one continuous and entire thing. There is only one promise founded on one consideration, and there is unum debitum, one debt, which the defendant owes. So that the demand is clearly single and entire within all the authorities, and the plaintiff had no right to split it up for the purpose of bringing several actions, and having done so the first valid judgment on the merits for a part of the claim became an effectual bar to this action for the residue.
The result of the plaintiff’s attempt to split his cause of action will be the loss of the principal part of his debt, which is to be regretted. 'But the law ceases to be law, it ceases to promote justice, if it is changed for every case. The greatest good to the greatest number requires a firm adherence to just general principles. Should we concede to the plaintiff in this case the right he claims to maintain these two suits, it would of necessity concede also his right to split his cause of action into twenty-five parts, one for each month’s occupancy. Such a result would be simply intolerable. The two old maxims of the law on which our decision rests, “Nemo debet bis vexari pro eadem causd,” and “ Interest reipubliece ut sit finis litium are embodiments of wisdom and justice.
It may be suggested that in the cases where the principle *330we have referred to has been applied the second suit was barred by the judgment in the one previously brought, which is reversed in this case.
It is usually to be expected that recovery will be had in the suit first brought, and would doubtless have been so here if both suits had been returnable before the same court. But does the reversal of the natural order alter the principle ? We see no reason for it except that the first suit at the time it is brought is not vexatious, while the second one is. But if the second suit goes into a valid judgment on its mei’its, we do not see why it must not merge the entire demand, the same as if rendered in the suit first brought. We do not find any particular discussion of this point, but the rule is laid down to this effect in the well-considered case of Secor v. Sturgis, supra. The court says, “ The rule is fully established that an entire claim cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar in the other suits.”
Again, as the defendant might have pleaded the pendency of the first suit in abatement of the second, it is suggested whether his omission to do so may not be considered a waiver of his right to plead the matter, in bar.
The rule of law on which we base our decision is in '"the interest óf the debtor and may undoubtedly be waived by him.
It was held in Mills v. Garrison, 3 Keyes, 40, that it might be waived by an agreement for that purpose. But in this case there is no ground of waiver at all, unless it is the omission to plead the pendency of the first suit in abatement. We do not see how this can waive anything except what is involved in the order of pleading; and a neglect to plead in abatement surely waives no legitimate matter in bar. Marble v. Keyes, 9 Gray, 221.
There was error in the judgment complained of and it is reversed.
In this opinion the other judges concurred.