him. And should the plaintiff fail, on trial of the action of as-
sumpsit, and have a verdict and judgment given against him,
still he would be precluded thereby from maintaining another
action for the same goods, involving the same evidence, and in
effect, the same *cause of action, for the question, or ^907-1
subject-matter of dispute, having passed once in rem "
judieatam, he shall not again vex the defendant or those claiming
under him with a second action. Young v. Black, 7 Crau. 567.
Neither is it material in such cases, that both actions were
commenced on the same day, or at different dates, and were
both pending afterwards, at the same time, and the action last
brought, tried first, and judgment rendered in it; still the plain-
tiff will be bound by it, and be precluded from further main-
taining the action first entered, and so vice versa. This was the
case in Garvin v. Dawson, 13 Serg. & Rawle, 246, where the
second action between the parties commenced about one month
after the first was tried, and a judgment rendered in it in favour
of the defendant, which was afterwards held to be a bar to the
VOL. iv. 21 321
287 SUPREME COURT [Philadelphia,
[Marsh v. Pier.]
plaintiff's further maintenance of his first action. This is ac-
cording to the rule, nemo bis vexari debet, which allows to every
one the opportunity of having his complaint fairly investigated,
and fully heard before the judicial tribunals of the state, but
being once decided by the proper court, after such investiga-
tion and hearing, the peace and quiet of the community require
that there should be an end of the dispute. If we disregard
this rule we have no other, and every controversy must become
interminable.
From the views which I have taken of this part of the case,
it appears to me, that the exemplification of the record of the
Superior Court of the city of New York, was not only perti-
nent to the issue joined, and therefore admissible, but would
have been conclusive evidence against the plaintiff's right of
property to the logwood, had it been received, unless he had
shown that the logwood for which he made a claim in that
action, was not the same claimed in this, or that he had on the
trial of that, withdrawn that part of his claim which consisted
of the logwood. The defendant below in this action, pleaded
property in the logwood, and the judgment of the Superior
Court of the city of New York, showing that the plaintiff had
been divested of his right to it, by a sale made thereof, under
which the defendant below in this action, claims to derive his
right, established greatly the most important link in the chain
of his title. And although the judgment of the Superior Court
of the city of New York was rendered during the pendency of
this action still I think it was not necessary to plead it, in order
to make it admissible evidence, because it was, in effect, the de-
cision of a competent court of concurrent jurisdiction, given in
affirmance of the sale of the logwood, mentioned in the record
of the judgment made by the defendants therein named, before
the commencement of this action, under which the defendant
here claims a right to the logwood. Neither do I conceive that
it was necessary to plead it, in order to make it conclusively
binding upon the jury against the plaintiff below; for if it was
properly admissible under the plea of property, of which I en-
tertain no doubt, as it went directly to establish the validity of
the sale of the logwood, under which the defendant below
r*988l c l a i me d it> it being the judgment of a competent *court,
J must be considered the conclusion or sentence of the
law on the facts of the case, and therefore not to be set aside,
reversed, or disregarded, by either court or jury in this action.
This doctrine, as I conceive, is not inconsistent with the rule
laid down by a majority of this court, in Kilheffer v. Herr, 17
Serg. & Rawle, 322, but comes within the qualification there
mentioned, but wherever the party is not bound to plead speci-
322
MarcA 29,1833.] OF PENNSYLVANIA. 288
[Marsh v. Pier.]
ally to enable him to give the record of a former recovery in
evidence, it will, when given, in evidence, although not pleaded,
be conclusive and binding upon the plaintiff', the court, and the
jury. 1 Phil. Ev. 223-4, (New York, 1816.) Where a sub-
ject or question in controversy has been once settled by the
judgment of a competent tribunal, it never ought to be per-
mitted to be made the ground of a second suit between the
same parties, or those claiming under them, as long as the
judgment in the first suit remains unreversed. The peace of
the community is a great desideratum, and nothing ought to be
tolerated, that would disturb it unnecessarily. Before the ren-
dition of a judgment, the court is presumed to be made ac-
quainted by one or the other, or by both of the parties, with
everything that is necessary to be known, in order to procure
a correct decision upon the case ; so that the judgment of the
court not being pronounced until after it has been so informed,
must be taken and considered as corresponding and answer-
ing fully to the claims of justice. It is therefore altogether
inadmissible to say, that a renewal of the contest shall or
ought to be permitted, because the first decision was not just
or right.
The propriety of those decisions which have admitted a judg-
ment in a former suit, to be given in evidence to the jury on
the trial of a second suit for the same cause, between the same
parties or those claiming under them, but at the same time have
held that the jury were not absolutely bound by such judgment
because it was not pleaded, may well be questioned. The maxim,
nemo debet bis vexari, si constet curice quod sit pro una et eadam
causa, being considered, as doubtless it was, established for the
protection and benefit of the party, that he may therefore wave
it ; and unquestionably, so far as he is individually concerned,
there can be no rational objection to his doing so. But then it
ought to be recollected, that the community has also an equal
interest and concern in the matter, on account of its peace and
quiet, which ought not to be disturbed at the will and pleasure
of every individual, in order to gratify vindictive and litigi-
ous feelings. Hence, it would seem to follow, that wherever
on the trial of a cause, from the state of the pleadings in it,
the record of a judgment rendered by a competent tribunal
upon the merits in a former action for the same cause, between
the same parties or those claiming under them, is properly
given in evidence to the jury, that it ought to be considered
conclusively binding on both court and jury, and to preclude
all further inquiry in the cause ; otherwise the rule or maxim,
expedit reipublicce ut sit finis litium, which is as old as the law
itself, and a part of it, will be exploded and entirely disregarded.
323
289 SUPREME COURT {Philadelphia,
[Marsh v. Pier.]
*But if it be part of our law, as seems to be admitted
by all that it is, it appears to me that the court and jury
are clearly bound by it, and not at liberty to find against such
former judgment. A contrary doctrine, as it seems to me, sub-
jects the public peace and quiet, to the will or neglect of indi-
viduals, and prefers the gratification of a litigious disposition on
the part of suitors, to the preservation of the public trauquility
and happiness. The result, among other things, would be, that
the tribunals ot the state, would be bound to give their time
and attention to the trial of new actions, for the same causes,
tried once or oftener, in former actions between the same parties
or privies, without any limitation, other than the will of the
parties litigant, to the great delay and injury, if not exclusion
occasionally of other causes, which never have passed in rem
judicatam. The effect of a judgment of a court having jurisdic-
tion over the subject-matter of controversy between the parties,
even as an estoppel, is very different from an estoppel arising
from the act of the party himself, in making a deed of indenture,
<fec., which may, or may not be enforced at the election of the
other party ; because, whatever the parties have done by com-
pact, they may undo by the same means. But a judgment of a
proper court, being the sentence or conclusion of the law, upon
the facts contained within the record, puts an end to all further
litigation on account of the same matter, and becomes the law
of the case, which cannot be changed or altered, even by the
consent of the parties, and is not only binding upon them, but
upon the courts and juries ever afterwards, as long as it shall
remain in force and un re versed.
The fourth error is, that the court below refused to admit in
evidence the exemplification, in connection with the bill of par-
ticulars already set out verbatim. That the exemplification was
admissible, has been shown ; but if it had not been admissible of
itself, it is not easy to conceive how r this writing, called "a bill
of particulars," would have made it so. Indeed, without any
proof having been given, or even offered, to show that this bill
of particulars was made, and came from the plaintiff, Sylvester
Pier, or from his attorney or his counsel, to William Nott, the
defendant in the action, set forth in the exemplification, or to his
attorney or counsel, before the trial of that action, in short, to
show that it was genuine, and what it purported to be on its
face, I am at a loss to conjecture upon what ground the counsel
offering it in evidence, could have imagined that it was admissi-
ble, either conjunctively or separately. If such evidence, how-
ever, as I have mentioned, of its having come from the plaintiff,
his attorney or counsel, to the defendant in the action set forth
in the exemplification, his attorney or counsel, before the trial
324
March 29, 1833.] OF PENNSYLVANIA. 289
[Marsh v. Pier.]
of it, had been first given, or the court had refused to receive it
when offered, it would have been error in the court below, not to
have received such preliminary testimony, and, after that, not to
have received the bill of particulars itself in evidence, after the
exemplification had been first read in evidence, or not to have
admitted it in connection with the exemplification. But without
such preliminary proof being made, it was clearly not admissible ;
*after it, it was, because it would have shown to demon- r*9q/yi
st ration, that the cause of action, so far as it consisted L
of a claim for and on account of the logwood in the suit tried in
the Superior Court of the city of New York, was identically the
same with the cause of action in this case. The court below
were right in rejecting the bill of particulars, as no proof was
>ffered to show that it was genuine, and what it purported to be.
The eighth and last error is, that the verdict is general for the
plaintiff, giving the amount of damages, which the jury conceived
the plaintiff was entitled to recover, without finding the value of
the goods eo nomine, and damages separately besides for their
detention, so that the judgment might have been rendered ac-
cordingly and for a return irrepleviable. Where the defendant
in replevin claims property in the goods for which the writ is
sued out, and gives bail to the sheriff, as was done in this case,
the sheriff cannot replevy them. He is bound to take the bail,
if good, and to leave the goods in the possession of the defend-
ant. The plaintiff must, therefore, count in the detinet, as the
goods are not delivered to nim, and, if he succeeds on the trial
in establishing his right of property to the goods, he "shall
have judgment to recover all in damages, as well as the value of
the goods as damages for the taking of them and his costs." F.
N. B. 69, L. and the cases referred to in note (c) 9th ed. Dublin,
1793. No judgment for a return of the goods is given in such
case, but for damages equal in amount to the value of them, as
a compensation for their loss, and the property in the goods is
thereby transferred, as I have already said in another part of
this case, to the defendant. The judgment rendered in this
case is in the usual form. Gilb. on Replev. 125-6. Easton
v. Wortiiington, 5 Serg. & Rawle, 131 ; Hosack v. Weaver, 1
Yeates, 478; Hardy v. Metzgar, 2 Yeates, 347. In those two
last cases, the judgment in each was rendered in the same form
in favour of the plaintiff, upon the plea of property, as in this.
There is, therefore, no error in the form of entering the judg-
ment here, but it must be reversed for the third error assigned.
Judgment reversed, and a venire facias de novo awarded.
Cited by Counsel, 1 Wh. 8; 2 Wh. 41.3; 3 Wh. 398; 4 Wh. 37; 5 Wh.
491 ; 6 W. 349 ; 7 W. 162, 196 ; 8 W. 412 ; 9 W. 570 ; 10 W. 226 ; 1 W. & S.
525 ; 3 W. & S. 142, 168; 5 W. & S. 560; 1 Barr, 252; 2 Barr, 30; 3 Barr,
325
290 SUPREME COURT [Philadelphia,
[Marsh v. Pier.]
296 ; 7 Barr, 376 ; 8 Barr, 299 ; 9 Barr, 66 ; 1 J. 222, 267 ; 1 H. 366 ; 5 H.
413 ; 6 H. 450 ; 8 H. 23, 417 ; 12 H. 244 ; 7 C. 382 ; 8 C. 199, 469 ; 10 C 51 ;
11 C. 311, 435 ; 12 C. 394, 456 ; 1 G. 1 18 ; 6 Wr. 408 ; 9 Wr. 19 ; 3 S. 196, 226 ;
5 S. 176; 7 S. 448; 8 S. 368; 17 S. 164; 18 S. 22; 20 S. 49; 28 S. 80; 29 S.
219, s. c. 2 W. N. C. 376; 31 S. 382; 32 S. 68; 5 N. 53; 2 O. 181, 455; 3 W.
N. C. 446; 11 W. N. C. 382.
Cited by the Court, 3 W. & S. 107 ; 5 W. & S. 17 ; 2 Barr, 206 ; 3 Barr, 21,
49; 7 Barr, 417 ; 10 Barr, 34; 1 J. 49; 6 C. 194, 230; 3 S. 227; 24 S. 309;
2 O. 278, s. c. 10 W. N. C. 567 ; 5 W. N. C. 142.
[*291] *[PHILADELPHIA, MAECH 29, 1833.]
Hough against Doyle.
IN ERROR.
A mutilated piece of paper, which appears to have been torn out of a book,
in which the name neither of the plaintiff nor defendant appears, which con-
tains no charges against the defendant, and which is unintelligible without
explanation by the plaintiff, is not admissible in evidence, as a book of origi-
nal entries.
The act of an agent does not bind his principal, unless it be proved that it
was done during the agency, and was within the scope of his authority.
How far the acts and declarations of an agent bind his principal.
THE record of this case being returned on a writ of error
from the Court of Common Pleas* of Northampton county,
accompanied by two bills of exceptions to evidence, it appeared
that it came before the court below, on an appeal from a justice
of the peace, before whom an action was brought by John
Doyle, the plaintiff below and defendant in error, against Joseph
Hough, for work and labour done by the former for the latter,
on a canal.
On the trial in the Court of Common Pleas, the plaintiff was
sworn in support of what he produced on his book of original
entries, and testified that it was his account of work done on the
canal, for Joseph Hough ; that he kept an account of it as he
worked, and that what he produced exhibited his original entries
of his transactions with Hough. On his cross-examination, he
stated, that the paper was in his handwriting ; that it was the
first place in which he entered his work, which he never set
down upon a slate ; that it was never three days from the time
he did the work until he set it down ; that he could not tell
what had become of the rest of the book; it might be at home;
that he had a book, but could not tell how much there was of it ;
that there was none of it of use but what was produced, and he
n ould not tell when that was torn out.
326
March 29, 1833.] OF PENNSYLVANIA. 291
[Hough v. Doyle.]
His counsel then offered in evidence the paper referred to,
which was part of a loose sheet, which had some appearance of
having been torn out of a book. It is impossible accurately to
describe this paper, but its character may be understood from
the objections made by the counsel for the defendant below, to
its being admitted in evidence. They were as follows :
1. That it is not a book of original entries.
2. That neither the plaintiff's nor defendant's name ^ m it,
nor any charges against the defendant ; that it is unintelligible
without explanation, which the plaintiff is incompetent to give.
3. That it is mutilated, and not the entire book, and shows
nothing in support of the issue.
The court admitted the evidence, observing that any imper-
fections *in it, were matters for the jury, in determining r^onn-i
the credit to be given to it.
To this opinion, exception was taken by the counsel for the
defendant.
The plaintiff then produced a witness, who testified, that he
knew that Doyle had worked on Hough's job, but he could not
say how long; he was there a considerable time; that he saw
Horace Egelston there ; he hired and paid the witness ; ht at-
tended to the hands, and went round to see that the work was
done as it ought to be done ; that Silas Hough was not there at
the first offstart ; Joseph Hough might have been there at the
first, off and on, but was not there regularly. On his cross-
examination he said, that Silas Hough did not commence until
the store commenced; he was clerk in the store; Egelston em-
ployed the hands in the offstart ; he was chief employer of
hands ; when he was not there, Silas Hough employed hands
sometimes; the witness had known Egelston to discharge hands;
the concern was under Egelston's management, at least the wit-
ness considered it so ; Joseph Hough was not there constantly ;
the witness saw him there off and on ; John Doyle worked at
blacksmithing; the latter part of the time he worked there, his
family lived in a house there. The witness then proved the
handw'riting*of Horace Egelston, to a paper produced and offered
in evidence by the plaintiff's counsel, which was in these words :
"Take the season from the comencement to the first of April
16 dollars per month and then for three months or until/ the job
is finished 19.50 cents per month and when your family comes
we will a/ow you 1.75 cents per week for board."
" H. EGELSTON."
The admission of this paper was objected to by the counsel
for the defendant for the following reasons :
327
292 SUPREME COUET [Philadelphia,
[Hough v. Doyle.]
1. That Egelston was not proved to have been the defend-
ant's agent ; that the paper was not proved to have been given
during the alleged agency, or to have been within the scope of
his authority.
2. That it was without date, and mentioned neither the name
of the plaintiff nor of the defendant, nor any other matters
showing its connection with the subject in dispute.
3. That Egelston himself should have been produced, or his
absence accounted for.
The court overruled the objections, and admitted the evidence,
and exception was again taken to their opinion.
J. M. Porter, for the plaintiff iu error.
1. The paper admitted by the court below as a book of origi-
nal entries, had not that character upon its face, and could be
shown to be such a book only by the oath of the plaintiff, which
was incompetent. The distinctive character of the evidence as
r*oqo-| a book of original *entries must first be shown to the
- court, and if it possess that character, the jury are to
decide upon its errors and imperfections, but here the court
submitted to the jury the determination of a question which
belonged to itself. There is no case to support the admissibility
of an entry which upon its face does not import a charge, and
which can have that effect given to it only by the explanation of
the party himself. Unconnected scraps of paper are not evi-
dence. Thompson v. M'Kelvey, 13 Serg. & Rawle, 127. Here
is a mere scrap, more like a check roll than anything else,
charging no one, containing no name, and which is sworn not to
contain the whole account, but to be part of a book, of which
the remainder may perhaps be at home, but which the party
undertakes to say is all that is of any use. If a party is to be
allowed to give his own explanations, and by them apply his
charges to the defendant, he may, by the same process, make
every individual in the country his debtor. Poultney v. Ross,
1 Dall. 238; Ducoign v. Schreppel, 1 Yeates, 347 ;Wilmer t?.
Israel, 1 Browne, 257; Summers v. M'Kim, 12 Serg. & Rawle,
411 ; Kelly v. Holdship, 1 Browne, 36 ; Prime v. Smith, 4 Mass.
R. 455.
2. There was no evidence that Egelston was the agent of
Hough. For ought that appears, Hough may have underlet the
contract, and Egelston may have been working on his own ac-
count. If Egelston was the agent of Hough, it ought to have
been shown that the paper offered in evidence was given during
the agency, and that it was within the scope of his power to
give it ; yet there is nothing to show when, how, or why it was
given. It is without date, is directed to no one, and is not
328
lfarcA29,1833.] OF PENNSYLVANIA. 293
[Hough v. Doyle.]
signed by Egelstou as agent of Hough or of any one else. Sup-
posing Egelston to have been the agent of Hough, the paper to
have been signed by him during the agency, and to refer to the
plaintiff, of which there was no proof, it is nothing more than
the declaration of the agent beyond the limits of his power, and
does not bind the principal. Lessee of Cluggage v. Swan, 4
Binn. 150; Cutbush v. Gilbert, 4 Serg. & Rawle, 556 ; Hubbel
v. Elmes, 7 Wendell, 446 ; Blight v. Astly, 1 Peters, C. C. R.
15; Shelhamer v. Thomas, 7 Serg. & Rawle, 109; Magill v.
Kauffmau, 4 Serg. & Rawle, 321 ; Roscoe on Evid. 29.
Brooke, for the defendant in error. 1. Upon the evidence
there was no doubt that Doyle worked as a blacksmith upon
the contract of Hough. The book was therefore evidence to
show how long he had worked, and it was properly submitted to
the jury with instructions to decide upon its imperfections. It
was not the case of a man keeping a book with various persons,
but an account of time with a single individual. The necessity
of the case is the foundation of the rule on which such evidence
is admitted, and a stricter rule ought not to be applied to an
illiterate labourer than to a merchant. The necessity which
regulates this sort of evidence has relation to the nature of the
business in which the party is engaged, and also to his capacity
to keep regular books, i If a claim like that of the plaintiff below
*cannot be proved in the manner proposed, it must be .-#9041
lost, for it can be proved in no other way. A labourer L
cannot call upon others to prove how long he worked, and an
account of such work cannot be kept in a more satisfactory mode
than this, which is the one universally adopted by those who are
engaged in that line of business. In the case of Curreu v.
Crawford, 4 Serg. & Rawle, 3, no one could \inderstaud the
entries without explanation, and upon the principle of that case,
of Sterrett ' v. Bull, 3 Binn. 237, and of Kaughley . Brewer, 16
Serg. & Rawle, 131, the evidence in question was admissible.
2. All the circumstances of the case showed the agency of
Egelston. The evidence of it was submitted to the jury, and if
they thought the agency not proved, they, of course, would have
given no weight to the paper. If it was proved, the paper
bound the principal, as it was immediately connected with the
business of the agency.
The opinion of the court was delivered by
ROGERS, J. The plaintiff in error has assigned several rea-
sons, any one of which is sufficient, against the admission of the
paper, purporting to be a book of original entries : That it is
not a book of original entries : That neither the plaintiff nor
329
294 SUPEEME COURT [Philadelphia,
[Hough v. Doyle.]
defendant's name appears on the paper, nor any charges against
the defendant : That it is unintelligible without explanation,
which the plaintiff is incompetent to give, and that it is mutil-
ated, and is not the entire book.
We are further of opinion, that the court were in error in
admitting the paper signed H. Egelston ; because, granting
Egelston to have been the defendant's agent, yet there was no
proof that the paper was given during the agency, or that it
was within the scope of his authority. The paper is without
date, and mentions neither the name of the plaintiff nor defend-
ant, nor is there anything in proof which shows that it has any
connection with the matter in controversy.
The general rule is this : When it is proved that one is the
agent of another, whatever the agent does, or says, or writes, in
the making of a contract, as agent, is admissible in evidence
against the principal, because it is part of the contract which he