WAKEFIELD V. SMYTHE. T. T. 1864. first plaint, with the first item indorsed on the plaint in the present Queen's Bench action, set forth seriatim the proceedings in the first action down to recovery of judgment by the plaintiff for a sum of £434. 18s. 6d., with sixpence costs, as found by the jury, together with £89. ls. 11d. for costs, making together the sum of £524. Os. 5d.; and averred that that sum included the sum of £239. 8s. Od., being the first item indorsed on the plaint in the present action; that on the 24th of March 1864, a writ of fi. fa. was issued and delivered to the Sheriff directing him to levy the said sum of £524. Os. 5d., with interest at £4 per cent., for the plaintiff's debt, costs, and interest; that the Sheriff by virtue of that writ seized the defendants' goods to the value of £125. 3s. 3d.; that the Sheriff, before the commencement of the present action, filed his return stating the levy of that sum, of which he paid £1. 6s. Od. for poor-rate, and lodged the residue in Court, and that the defendants had no more goods in his bailiwick; and the defence then concluded with a general averment of the performance of all conditions precedent entitling the defendant John Smythe to have the said. sum of £125. 3s. 3d., so levied aforesaid, applied in part satisfaction of the aforesaid judgment. To this defence the plaintiff demurred.* O'Driscoll and Sidney, for the plaintiff. The defence does not sufficiently show an appropriation of the sum levied in part satisfaction of the half-year's rent due on the 1st of November 1863: Simson v. Ingham (a); Peters v. Anderson (b); (b) 5 Taunt, 596. (a) 2 B. & Cr. 65. * These points of demurrer were noted for argument:-First; that the second defence was not an answer in law to the action. Second; that there is nothing in the second defence to show that a year's rent of the premises was not due at the commencement of this action. Third; that, whilst the second defence avers that one year's rent was not due as aforesaid, the said defence in effect discloses facts which show that it was due at the commencement of the suit. Fourth; that there is nothing in the second defence to show that the judgment therein referred to was recovered for the rent indorsed on the summons and plaint. Fifth; that, assuming that the said judgment was recovered in fact for the same rent, it is no legal answer to this action. Sixth, that the second defence is defective in substance. Queen's Bench Arnold v. The Mayor of Poole (a); Williams v. Griffith (b). T. T. 1864. Palles and Sergeant Armstrong, contra. To sustain an action of ejectment for non-payment of rent, it must be shown that one year's rent is due. If any part of the half-year's rent due on the 1st of November 1863 was paid, one year's rent does not remain due. An action of ejectment for nonpayment of rent does not lie for rent which was sued for in a previous action in which judgment was recovered; at all events, not after an execution levied, in which case the matter has become a res judicata. None of the cases cited in support of the passage in Mr. Furlong's work go nearly far enough to sustain his broad proposition. In Drake v. Mitchell a single debt had been secured by two independent securities; and it was well held, that a recovery upon one of the securities did not prevent an action upon the other, which had not merged. The second case cited by Mr. Furlong is Twopenny v. Young (f). But there the bill of sale was merely a further security, and so did not extinguish the remedy on the promissory note, which was the pre-existing security. Since the publication of Mr. Furlong's treatise, the case of King v. Hoare (g) has placed the law on a different footing. The decision in that case was grounded on the proposition, that the recovery of a judgment is an extinguishment of the debt sued for; which being extinguished, the creditor cannot again sue the persons liable upon the debt, although his remedy upon it would be larger than that on the judgment. That case was considered in, and affirmed by the case of Ex parte Higgins, in re Tyler (h). The case of Rush v. Purcell was a decision of a single Judge, and rests on the authority of Drake v. Mitchell; but the grounds (a) 4 M, & Gr. 860. (c) 3 East. 251. (b) 5 Mee. & W. 300. (e) 3 Cr. & Dix. Cir. Cas. 162; 2 Furl. L. & T. pp. 1151 to 1157. WAKEFIELD บ. SMYTHE. (f) 3 B. & Cr. 288. (g) 13 Mee. & W. 494. (h) 3 De. Gex. & Jones, 33. T. T. 1864. on which it is based have been completely distinguished by the Queen's Bench cases of Ex parte Higgins and King v. Hoare. WAKEFIELD v. SMYTHE. Since the passing of the Common Law Procedure Amendment Act (Ireland), the action of ejectment for non-payment of rent has become an action for, not only the recovery of the premises, but also the amount of the rent. No man can have at law two remedies to effect the same end. year's rent due on the 1st of November 1863 has already been recovered: Percival v. Dunne (a). But judgment for the half The second question touches the partial levy under the judgment in the former action. How is the money so levied to be applied? The debtor, if he paid the money, could appropriate it as he pleased. That rule does not apply when the Sheriff's hand pays the money. The debtor cannot in that case direct how the money shall be appropriated, because it is paid by process of law. The Sheriff, being only a ministerial officer of the law, directed to levy the money on foot of the judgment generally, cannot appropriate it. Neither can the plaintiff appropriate it at his option; for his right to appropriate it can only exist in default of the exercise by the defendant of his right of appropriation, which right he has not in this case. Sidney, in reply. When an instrument of demise is more than a year old, the whole year's rent is presumed to be due, unless the defendant satisfies the Court that he has paid the entire or part of the rent. Thus, the defendant must show here that he has paid all or part of the half-year's rent due on the 1st of November 1863; otherwise the Court will presume that it is all due. The marginal note to King v. Hoare (b) shows that that case does not apply. If the plaintiff recovered two judgments for the same rent, he would not be allowed to execute both; or at least would be liable to suffer personal damages if he did levy under both judgments. Cur. adv. vult. (a) 9 Ir. Com. Law Rep. 422. (b) 3 Mee. & W. 494. O'BRIEN, J., pronounced judgment in favour of the demurrer. FITZGERALD, J. I concur with my Brother O'BRIEN. The plea is in a shape which plainly points out that the defendant intended to rely upon the defence that there had been a part satisfaction of the half-year's rent due on the 1st of November 1863, by the appropriation to that half-year's rent of part of the sum levied under the judgment recovered in the first action. That defence was disposed of in the course of the discussion; and I will not now advert to it further, save to point out that it was not necessary to travel out of the record at all. Sufficient was stated in the pleadings to raise the question; and I do not desire to express an opinion that the effect of the decision in Armstrong v. Turquand (a) is to be enlarged, so as to enable us to look at a judgment and a bill of particulars not stated on the record. But the defendant's Counsel then contended that the effect of the recovery of the judgment in question was, to extinguish that halfyear's rent due on the 1st of November 1863, so as that it could no longer form the foundation of this action of ejectment. He relied upon the application of the principle, transit in rem judicatam ; and he further contended that this pending action is a distinct action— a second action, brought for the recovery of the same half-year's rent. This second argument presented a double aspect. The action was instituted, not under the old Ejectment Statutes, but under the 24 & 25 Vic., c. 154, s. 52, which confers on the landlord a new remedy, and enables him to proceed by ejectment for the recovery of the land held under a tenancy from year to year, whether with or without any written agreement, "whenever a year's rent shall be in arrear." It is not necessary to discuss the sections between the 52nd and 56th, save to point out that one of their general objects was, to compel the landlord to state the particulars of the rent due, so as to enable the tenant to redeem; and that the writ of habere, when being executed, should contain an indorsement of the sum due; so that the tenant could even then get rid of the claim by paying it. The 66th deserves especial notice. That section provides that (a) 9 Ir. Com. Law Rep. 39. T. T. 1864. WAKEFIELD บ. SMYTHE. June 24. VOL. 16. 23 L WAKEFIELD T. T. 1864. "Every landlord recovering possession by such judgment or decree, Queen's Bench "in any ejectment for non-payment of rent, shall have the same 66 remedy for all arrears of rent to the time of the execution of "such judgment or decree as such landlord might have had if "possession had not been obtained under such judgment or decree." SMYTHE. In When the tenancy is not disputed, the question seems to be, whether one full year's rent was due to the landlord at the time of bringing the action, and still remains due? And that is the question now attempted to be raised. The defendant is therefore bound to show that, on the facts stated in the pleadings, one full year's rent did not remain due to the plaintiffs. support of that defence he relied principally on King v. Hoare (a). But that was not an authority ruling the present case, though no doubt it was of value, from the observations made by the Judges. King v. Hoare was merely an application of an old rule of law to a new state of facts. The plaintiff in that case, having in a former action obtained judgment against one of two joint contractors, could not be permitted, in a second action against the other, to deprive him of the right to plead in abatement the nonjoinder of his co-contractor; and the plaintiff never could have had a better writ, because he had already obtained judgment against the other co-contractor, and could not have two judgments against him. There is in the report a good deal of observation to be found, which is very valuable in the present case. The effect of the application of the rule transit in rem judicatam, as Mr. Baron Parke showed, was not to extinguish the debt, but simply to merge the remedy:-"If there be," he said, "a breach of contract, or wrong "done, or any other cause of action, by one against another, and "judgment be recovered in a Court of Record, the judgment is a "bar to the original cause of action, because it is thereby reduced "to a certainty, and the object of the suit attained, so far as it can "be at that stage; and it would be useless and vexatious to subject "the defendant to another suit, for the purpose of obtaining the "same result. Hence the legal maxim “transit in rem judicatam ;” (a) 13 Mee. & W, 494. |