
    Weaver v. Vowles.
    October, 1843,
    Richmond.
    (Absent Cabria,, P., and Stanard, J.)
    Case Discussed.^The case of Seddon and others v. Tutop, 6 T. R. 607, cited, and the principle thereof discussed.
    Former Recovery — Plea of — Case at Bar. — In .assump-sit for work and. labour done, care and diligence bestowed, and materials provided, the defendant, besides the general issue, pleaded a former action for not performing the same promises, in which the plaintiff recovered damages for the non-performance of the same: the plaintiff replied that the promises were notthe same identical promises in respect whereof the judgment was recovered, and tendered an issue, which was joined. At the trial, the plaintiff having given evidence on the general issue, the defendant, to sustain his plea of former recovery, gave in evidence the 439 record of the former suit, the declaration *in which contained two counts, one for work and labour, care and diligence, and materials, as' well as for goods sold, money lent, money paid, and money received; and the other upon an account stated. The defendant also gave in evidence the account filed in that case, which contained credits and charges up to the 24th of October 1835, “le.aving out the building of a large barn, and work done on a new mill ” The verdict and judgment in that case being for $630 63 cents, the plaintiff examined a witness, who proved that an account was settled with the defendant in October 1835, on which a balance of $630 53 cents was struck; that the account filed in the former cause was a copy of the account so settled; and that the settlement did not include the plaintiff’s demand for work done on the barn or the new mill, charged-in the account in the second case, but that this demand remained for future adjustment. It was farther proved, that on the trial in the former cause, the account not being then filed which was afterwards filed in the second suit, all evidence in regard to that account was excluded, and the plaintiff rested his case on the count upon an account stated, and relied upon the settlement before mentioned, shewing the said balance of $630 53 cents, and recovered upon that ground only. Thereupon 'the defendant moved the court to exclude from the jury all the evidence offered by the plaintiff in support of the items charged in the account filed in the second case, on the ground that he was precluded from recovering the same in this action by the recovery in the former suit, and that the demand of the Plaintiff for the said sum of $630 53 cents recovered in the former suit, and for the items charged in the account filed in this case, was one entire demand, and could not be made the subject of two separate suits, and therefore the plaintiff was precluded by the recovery in the former suitfrom recovering in this suit. But the court overruled the motion, and a verdict was rendered for the sum found by the jury to be due upon the account filed in the second case. On a supersedeas to the judgment given on this verdict, the same was affirmed.
    On the 9th of May 1837, Vowles sued out a writ of capias ad respondendum against Weaver, in the circuit superior court of Fauquier, in an action of trespass on the case. The declaration, which wasfiled the 3d of July 1&37, set forth that Weaver, on &c. was indebted to the plaintiff in the sum of 2S00 dollars, for work and labour, care and diligence, and divers materials 440 and necessary *things in and about the said work, by the said plaintiff to and for the use of the said defendant, at his special instance and request, before that time done and performed, bestowed and provided, and being .so indebted, in consideration thereof promised &c. The defendant pleaded non assumpsit and setoff, on which issues were made up. He also filed a special plea in writing, setting forth, that theretofore, to wit, on the 9th of May 1837, the plaintiff impleaded the defendant in the circuit superior court of Fauquier, in a plea of trespass on the case on promises, to the damage of the plaintiff 5000 dollars, for not performing the same identical promises and undertakings in the declaration mentioned, and such proceedings were thereupon had, that afterwards, on the same day and year aforesaid, the plaintiff, by the consideration and judgment of the said circuit court, recovered in that plea against the defendant 630 dollars 53 cents, with interest from the 24th of October 1835 till paid, for his damages which he had sustained on occasion of the not performing the same identical promises and undertakings in the said declaration mentioned, and 17 dollars 80 cents costs, whereof the said defendant was convicted, as by the record thereof still remaining in the said circuit court would appear, which said judgment yet remained in full force, nowise reversed, satisfied, or made void; and this the defendant was ready to verify by the said record. To this plea the plaintiff replied, that the several promises and undertakings in the declaration mentioned were not, nor was any or either of them, any of or any one of the same identical promises and undertakings, for and in respect whereof the said supposed judgment in the said plea mentioned was recovered, as the defendant had in his said plea alleged; and this the plaintiff prayed might be inquired of by the country. The defendant took issue on the replication.
    
      441 *A trial being- thereupon had, the jury found for the plaintiff the issues joined, and assessed his damages to 914 dollars 91 cents with interest from the 1st of April 1836 till paid. The defendant moved the court to set aside the verdict and grant him a new trial; but the court overruled the motion, and rendered judgment for the plaintiff for the damages and interest found by the jury, and the costs of the suit.
    By a bill of exceptions filed by the defendant and made part of the record, it appeared that the following proceedings took place at the trial.
    The plaintiff exhibited the accounts filed by him in the cause, and gave evidence to prove the items''therein stated. One of these accounts, marked A, contained various items for work done and materials furnished by the plaintiff in erecting a barn for the defendant. The only date specified in the account was that prefixed to the first item, namely, October 1, 1832. The other account, marked B, was for work done and materials furnished by the plaintiff in erecting a new mill for the defendant; and in this account also, the only date specified was that prefixed to the first item, namely, October 24, 183S. The aggregate of the charges contained in these two accounts exceeded the amount of damages found by the jury. ,
    The defendant, to sustain his plea of former recovery, gave in evidence a transcript of the record (including the writ of capias ad respondendum) in a former suit between the parties to this action. The writ was sued out on the 31st of December 1836. The declaration contained two counts; the first of which charged, that on &c. Weaver the defendant was indebted to Vowles the plaintiff in the sum of 5000 dollars, ! ‘as well for work and labour, care and diligence, and divers materials and necessary things in and about the said work, by the said plaintiff to and for the, use of the said defendant, at his special instance 442 and request, ^before that time done, performed, bestowed and provided,” as for divers goods &c. sold and delivered, and divers sums of money lent &c. paid &c. and had and received &c. and being so indebted, the said defendant in consideration thereof promised &c. The second was a count in the common form upon an account stated. The cause was tried upon the plea of non assumpsit, and the jury lound that the defendant did assume upon himself in manner and form as the plaintiff againsr him had complained, and they assessed the plaintiff’s damages, “by occasion of the nonperformance of those assumptions,” to 630 dollars &c. with interest &c. (as stated in the special plea).
    The transcript so given in evidence by the defendant, though certified by the clerk of the circuit court as a complete copy of the record, did not contain any account shewing the items of the plaintiff’s demand in that suit. The bill of exceptions, however, after setting forth in haec verba the transcript given in evidence by the defendant, stated that the said defendant also gave in evidence “the account filed in that case by the plaintiff, in these words: 1830, March 23.” &c. This account consisted, first, of various items for goods furnished and cash paid by Weaver (the defendant) to Vowles (the plaintiff), commencing the 23d of March 1830 and terminating the 23d of October 1835, amounting in the aggregate to 914 dollars 60 cents; and secondly,-of various credits to Vowles, commencing the 23d of March 1830 and terminating the 24th of October 1835, amounting in the aggregate to 1545 dollars 13 cents, and so exceeding the amount of Weaver’s charges against
    Vowles by 630 dollars 53 cents, (the sum for which the verdict and judgment in the first action were rendered). These credits to Vowles, except the last item, were chiefly for goods furnished by him to Weaver. The last item was as follows: “1835, Octo. 24. By additional credits for mill-443 wright work *and other charges up to this date, leaving out the building ,of the large barn, and work done on a new mill, not completed, which were not taken into this account, $1345. 75.”
    The plaintiff examined a witness, who proved that he, during the period of that account, acted as the agent of the defendant, and kept his books. That he entered on the defendant’s book an account between him and. the plaintiff, which contained various items of debit and credit. That, in the month of October 1835, the plaintiff came to the house of the defendant to have a settlement of their accounts. That the aforesaid account entered on defendant’s book was produced, and admitted to be correct. That the plaintiff then exhibited a statement of other charges against the defendant, for work done in repairing the merchant mill and saw mill of the defendant, and building a horse mill, and containing an item for the board of defendant’s nephew, and possibly other items. That these bills were examined by the defendant, and the sum of 1345 dollars 75 cents being admitted to be due on account thereof, a credit for that sum was entered on the book, the debits were taken from the credits, and a balance of 630 dollars 53 cents struck, either on the book or on a separate piece of paper, as the balance due to the plaintiff by the defendant upon the settlement then made. That the said settlement did not include the plaintiff’s demand for work done on the barn, or the new mill, charged in the accounts filed in this case. That the account filed in the former cause, and before referred to, is a true copy, taken from the defendant’s books, of the account then settled. That it was agreed by the parties, that the said sum of 630 dollars 53 cents was due by the defendant to the plaintiff upon the settlement aforesaid. And that the plaintiff’s demand for work on the barn and new mill remained for future adjustment between the parties.
    444 *The plaintiff further proved, that when the former cause was called for trial, he offered to file the accounts now-sued on, and to embrace both demands in that suitbut the defendant’s counsel objected to their being then filed, unless the plaintiff would continue the case, which he refused to do, and all evidence in regard to those accounts was consequently excluded. That on the trial in the former case, in consequence of those accounts being thus excluded, no evidence was given upon the count for work and labour,- but. the .plaintiff rested his case on the .count upon an account stated, and relied upon the settlement before mentioned,, shewing, the said balance of 630 dollars S3, cents, and recovered upon that ground only.
    • And thereupon the defendant* by his counsel moved the court to exclude from the jury all the evidence offered by the plaintiff in support of the items charged in the accounts filed in this case, . on the ground that he was precluded from recovering the same in this action, by the recovery in the- former suit; and .that the demand of the plaintiff for the said sum of 630 dollars 53 cents, recovered in the former suit, and for the items charged in the accounts filed in this case, was one entire demand,-and could not be made the subject of two separate suits, and therefore the plaintiff is precluded by the recovery in the former suit from recovering in this suit. But the court overruled the said motion, being of opinion that the demand for the said sum of 630 dollars S3 cents was so far separate and distinct as to form the ground of a separate action. To which decision of the court the defendant excepted.
    On the petition of the defendant, a super-sedeas was awarded to the judgment.
    Stanard, for plaintiff in error.
    The principle by which the court must be regulated where a prior recovery for the same cause of action is pleaded, ■ is this: 44S *Where the declaration in the second suit is framed . in such a manner as that the causes of action may be the same with those in the first, it is incumbent on the plaintiff to shew that they are not the same. Lord Bagot v. Williams, 3 Barn. & Cress. 23S; 10 Eng. C. L. R. 62. The declaration in the first suit between these parties assigns the cause of action in the very, same words as the declaration in the second ; and the damages claimed in the first suit were sufficient to cover the amount of both recoveries. Prima facie therefore, according to the authority already cited, the cause of action in the second suit was embraced by the first. How does the plaintiff meet the onus probandi thus cast upon him by the law? He adduces parol evidence to shew that the first recovery was had, not -upon the count for work and labour, but solely'upon the count alleging an account stated. . Such evidence directly contradicts the record- of .the first recovery,in which a general.verdict is found for the nonperformance of the assumptions charged in the declaration. The evidence' is therefore inadmissible. The party may, it is true, offer parol, evidence to shew that the work and labour for which the first recovery was had was not the same with, or did not include, the work and labour for which the recovery is sought in the second action; for such evidence does not contradict the record : but it is - not competent to shew by parol, either that no evidence was submitted to the jury in the first suit in reference to the.claim for work and labour, or that the jury did not pass upon that evidence. Field v. Gibbs &c., 1 Peters’ C. C. R. 1SS; Reed v. Jackson, 1 East ,355; Hess’s ex’or v. Heebie, 6 Serg. & Rawle 57. In the case of Seddon v. Tutop, 6 T. R. 607, (which will probably be relied upon by the other side) it is to be inferred from the -whole report, though it is not expressly stated, that the first verdict was found, in terms, upon only one of the counts in the declara-446, tion,- — the.count, namely, upon *the promissory note. This inference is confirmed by the remarks of Bayley, J., in Bagot v. Williams, 10 Eng. C. E. R. 64. Moreover, the first verdict in Seddon v. Tutop was not found on issue joined between the parties-: it was merely an assessment of damages on a writ of enquiry, the defendant being in default. On both grounds, the case is distinguishable from the present.
    II. But if. the parol evidence here can properly be admitted, it does not prove that any cause of action in the second suit had not been legally passed upon in the first. For, where evidence offered to prove one of several demands is excluded by the court, and the plaintiff suffers a verdict to pass on the whole case,- the judgment on such verdict is a bar to subsequent actions for that demand. Smith v. Whiting, 11 Mass. R. 445. The distinction is between those cases in which the demand is never submitted to a jury, but is abandoned at or before the trial, by striking out the count, or discontinuing the action upon the record as. to such demand, so that no evidence is offered in relation to it; and those cases in which the .claim is not abandoned at or before the trial, but the issue joined thereupon, together with the other issues in the cause, is submitted to a jury, and a general verdict is suffered to pass on the whole case. If a claim is submitted to a jury, and they disallow it, or allow less than the plaintiff is entitled to recover, or overlook part of his demands, a verdict and judgment thereon will furnish a conclusive bar to a second action for - the same oause. Brockway- v. Kenney, 2 Johns. R. 210; Irwin v. Knox, 10 Johns. R. 365; Platner v. Best, 11 Johns. R. 530; Hess’s ex’or v. Heebie, before cited, 1 Wms. Saund. 207, note 2. In like manner, where a - submission to arbitration embraces a particular demand as to which no evidence is offered before the arbitrator, that demand is- nevertheless barred by an award in general terms on the matters submitted. Smith v. John- . son, 15 East 213; Dunn v. Murray,
    447. - 9. Barn. *& Cress. 780; 17 Eng. C. E. R. 498; Wheeler ,v. Van Houten, 12 Johns. R. 311. The evidence here does not shew that on the trial in the first action no attempt was made to adduce proof in support of the first count. Further, the evidence to support a declaration upon a stated account (supposing the subject to be work and labour done and materials furnished) would equally support a declaration for work and labour done and materials furnished. The acknowledgment by the defendant, of the justness of an account containing such items, would certainly prove that the work was executed for him, and the materials furnished to him, by the plaintiff.
    III. Where the plaintiff’s claim is entire and indivisible, he cannot be allowed to bring suit and recover upon a part, and afterwards recover in a separate action for the residue. Jackson v. Colver, 1 Wend. 487; Guernsey v. Carver, 8 Wend. 492; Smith v. Jones, IS Johns. R. 229; Farring-ton &c. v. Payne, 15 Johns. R. 432; Seddon v. Tutop, 6 T. R. 607, and remarks of lord Kenyon in that case; Ford. Bagot v. Williams, 10 Eng. C. E. R. 62; Markham v. Middleton, 2 Str. 1259. But a claim upon an account for goods sold and delivered, all due, is indivisible. Guernsey v. Carver and Markham v. Middleton, ubi supra. The same principle must equally apply to a general account for work and labour done. In both cases, a judgment for part of the amount is a bar to any action for the remainder. Upon an analogous principle, where a plaintiff brings separate actions for demands which might have been embraced in a single suit, such actions will be consolidated at his costs. Cecil v. Brigges, 2 T. R. 639; Hutson v. Eowry &c., 2 Va. Cas. 42; Willard v. Sperry, 16 Johns. R. 121. The whole demand of the plaintiff here, embraced in his two actions, was due at the time the first action was brought.
    448
    *Morson for defendant in error.
    The pleadings and issue in this case cannot be distinguished from the pleadings and issue in Seddon v. Tutop. The replication here is the proper one, according to the authority of 3 Chitty’s PI. (7th ameri-can edi.) p. 1158. The principle on which a second action is barred by the judgment in a former, is expressed in the maxim nemo vexari debet bis pro eadem causa. 1 Starkie’s Evid. (american edi. of 1837) p. 214. To make the plea of judgment recovered a defence, the same fact must have been in issue. The test of identity is, whether the same evidence will support both actions. Id. p. 221, 2. Apply that test to the present case: Would the same evidence support the issues joined in the two actions? Under our statute, 1 Rev. Code, ch. 128; ‘i 86, p. 510, the bill of particulars is the true and only exponent, in the action of indebitatus as-sumpsit, of the matters in issue between the parties. The plaintiff cannot put in issue, under a general count in that action, any matter of demand not set out plainly in his bill of particulars. The reason is, that such a count gives the defendant no information whatever as to the precise nature of the matters demanded. Here the bill of particulars filed in the first action is wholly different from that filed in the second; and the second bill is for matters which, on the face of the first, were expressly stated to be excluded. Admitting for the present that we cannot go out of the record to ascertain whether the matters claimed in the two suits were or were not the same, how is it shewn that the bill of particulars in the first action was no part of the record? No case or dictum on that subject is to be found in our reports: and this must have been because it was never doubted that the account which the statute directs to be filed with the declaration, to supply that notice which the declaration failed to give, was thereby constituted-part of the declaration and of the record. 449 If this be so, and the account *in the first suit was properly a part of the record, the omission of the clerk to certify it as such is immaterial. It is sét out in the bill of exceptions taken at the trial of the second action, and is therein stated to be “the account filed in the first case by the plaintiff.” Taking it as a part of the record, it appears by the record that no part of the demand recovered in the second action was claimed or put in issue in the first.
    Supposing, however, that the bill of particulars is no part of the record, the question is as to the competency and effect of the parol evidence adduced by the plaintiff. Estoppels are odious in law, and must be strictly pleaded and strictly proved; they will never be favoured by presumption. 1 Chitt. Plead. 238. Opinion of Tucker, P., in Craddock v. Turner’s adm’x, 6 Eeigh 129, 130, 131. It .may perhaps be question-, able whether, in aid of estoppels, parol aver-ments and proofs are admissible; but they certainly are to rebut them. 3 Phill. Evid. (Cowen & Hill’s edi.) 834, 838 ; 8 Wend. Rep. 9, 22, 36; 10 Wend. Rep. 82; The king v. Wheelock, 5 Barn. & Cress. 511; 11 Eng. C. E. R. 291, 2; The king v. Wick St. Eawrence, 5 Barn. & Adolph. 526; 27 Eng. C. E. R 120 ; Cleaton v. Chambliss, 6 Rand. 92. In fact it is conceded on the other side, that if our evidence does not contradict the record, it is admissible. Does it contradict the record? Eet it be admitted that a claim for work and labour was in issue and passed upon in the first suit, and let all evidence be rejected which tends to disprove that fact: still, by the concession of the other side, we may shew that the work and labour so, claimed and passed upon w,as not the same with that for which the present action is brought. And is not that precisely and distinctly shewn by the evidence on the part of the plaintiff?
    If the case of Seddon v. Tutop be fairly considered, and not frittered away by metaphysical distinctions and refinements, it is absolutely conclusive against the 450 plaintiff *in error. It does not appear, as suggested on the other side,. that there was a nolle prosequi in the first action in that case, as to the demand on the open account; and it does appear on the contrary, from lord Kenyon’s remarks/that there was no withdrawal of any count in the first action. The authority of that case is fully recognized in every elementary writer, and in all the subsequent cases. Many of these are collected in 1 Starkie’s Evid. (edi. of 1837) p. 223, note 1. Neither does Seddon v. Tutop introduce any new principle; the remarks of the judges shew that they were merely reaffirming a principle long before settled. That case is stronger than the present: because there both the demands might have been proved and recovered in the first action ; whereas here, the first bill of particulars not comprising the matters demanded in the second suit, those matters could not have been proved or recovered in the first suit.
    The general explanation of all the authorities cited on the other side is this: they refer either to cases in which the very demand in the second suit was in issue and passed upon in the first, or to cases in which the demand in the second suit was parcel of a demand, indivisible in its nature, which had been claimed in the first. To all such cases the principle is properly applicable, that a defendant shall not be vexed at the plaintiff’s pleasure by repeated litigation for the same cause of action.
    II. Not only were the claims upon which the two actions here were brought, distinct and separate in points of fact, but they were properly separable. One was a demand for an ascertained sum; the other was an open account, not at all adjusted. They arose upon different contracts, at different times, for different work and labour. A stated account (which was the ground of recovery in the first action here) is just as distinguishable from an open account 4S1 for work and materials *(the ground of claim in the second action), as the promissory note in the case of Seddon v. Tutop from the open account there.
    III. As to the cases respecting the consolidation of actions, cited on the other side, it is sufficient to remark, that such consolidation is discretionary with the court, and the discretion, though exercised to prevent useless vexation and expense to the defendant, will never be employed to bar the plaintiff from his recovery of a just debt. There is no room for its application except where the plaintiff has several suits pending at the same time, for matters which might have been embraced in one. The case of Hutson v. Eowry &c. (a case of prohibition to a justice) has nothing to do with this. But the jurisdiction there exercised was also nothing more than a discretion, of the same kind with that exercised in consolidating actions.
    Patton in reply.
    The question here is, whether the demand in the last suit was a matter in issue in the first, — a matter as to which the plaintiff might, if he had thought proper, have given evidence before the jury. Whether evidence was or was not in fact given, is immaterial.
    Mr. Morson has earnestly contended, in order to evade the force of the authorities sustaining this proposition, that the bill of particulars is to be regarded as a part of the record, and as the only exponent of the matters in issue in the first suit. He has also contended, that the matters demanded in the two suits were wholly distinct in their nature, and though capable of being united in one action, were not necessarily to be so united. Eet us examine these propositions.
    The idea that the bill of particulars is a part of the record, is certainly novel. In England, either a statute or long usage has established the practice of requiring from the plaintiff a bill of particulars in 452 certain actions, *for the purpose of giving the defendant notice of the matters demanded by the plaintiff, so as to enable him to prepare for his defence. Our statute has merely established, in the action of indebitatus assumpsit, a similar rule. It is a rule of evidence, — of the competency and admissibility of evidence, — introduced for the benefit and protection of the defendant, and which he may waive at his pleasure. The declaration may be so particular as to dispense with any account: and where an account is necessary, it may be filed at any time before the trial, early enough to give notice to the defendant. That the account is no part of the declaration, is shewn by the cases of Moore v. Mauro, 4 Rand. 488, and Pitch v. Eeitch, 11 Eeigh 471. The effect of the statute is not, as contended, to limit the extent of the issue, —to confine it to the claims set forth in the account, — but merely to restrict the plaintiff in the admission of evidence. The stamp laws of England have precisely the same effect. Suppose a bill of exchange is excluded from the jury because unstamped: can it be said that there has been nothing in issue in the suit, because no bill of exchange has been produced, though one was declared on? Yet how is that case distinguishable from this? But if the account be a part of the declaration, the want of it in a proper case ought to be, and must necessarily be, ground of demurrer to the declaration. But who ever heard of a demurrer for that cause? [Morson. I have very little doubt that a demurrer would lie.] Again, suppose that an action of general indebitatus assumpsit goes to trial without any account filed (which is a very frequent case), and a verdict is found for the defendant: according to mr. Morson’s argument, the verdict and judgment would operate nothing, but the plaiptiff might at his pleasure bring a new suit, on the ground that as there was no account filed in the first action, nothing had ever been in issue there. In Hurst v. Watkis, 1 Camp-453 bell’s Rep. 68, it -was held *that the plaintiff was restricted to his bill of particulars, and if he failed to sustain that, he might be nonsuited : but that if the defendant chose to make another account of the plaintiff evidence in the cause, the plaintiff might recover upon such other account, the declaration and issue being sufficiently general to embrace it. The same principle may be deduced from the case of Bell v. Puller, 2 Taunt. 285. These cases shew conclusively that the bill of particulars has no sort of effect to change or limit the issue, but merely to protect the defendant against being surprised by the introduction of evidence as to matters of which he had received no notice. In Jackson v. Wood, 8 Wend. 44, the bill of particulars is said by senator-Seward to be no part of the record. The case of Ross v. Milne (to be reported in 12Beigh) shews, that even after a trial on the merits, exceptions filed at the trial, and verdict and judgment for the plaintiff, if no cause of action is shewn in the declaration, the judgment will be reversed, and cannot be aided by the statute of jeofails. But if nothing is in issue where no bill of particulars is filed, there is no cause o£ action shewn by the plaintiff, and the judgment (on the authority of Ross v. Milne) must be reversed. This is the necessary consequence from the argument on the other side. [Morson. The statute of jeofails would aid the case after verdict, because, where no account is filed, there is merely a defective statement of the cause of action. In Ross v. Milne, the declaration shewed that the plaintiff had no cause of action at all.]
    But there is no evidence whatever to shew that the bill of particulars in question was filed with the declaration in the first suit. It is not certified as a part of the record by the clerk of the court below, but on the contrary is excluded. And from the parol testimony it may be inferred that it never was introduced in the first suit until the trial, and was then introduced only 454 ' as evidence *to support the count upon an account stated, by connecting it with testimony to shew that the defendant acknowledged its correctness.
    But it is argued, that because the bill of particulars professes to be only a partial statement of the plaintiff’s demands, — because it expressly states that the plaintiff had other demands against the defendant for other work and materials, — therefore those other demands were not, and could not have been, included in the causes of action in the first suit. This is manifestly a non sequitur, even supposing that the bill of particulars was only a partial statement and notice of the plaintiff’s demands. But that is not the true character of the bill of particulars. It is an account of a demand for certain items amounting to 630 dollars, besides and in addition to the demand for work done upon the barn and the new mill. And the bill of particulars was a sufficient notice of the nature and character of all those causes of action. Moore v. Mauro and Fitch v. Beitch (already cited) are full and direct authorities to that point. To these may be added the case of Hatchett v. Marshall, Peake’s N. P. Cas. 172. Objections to a bill of particulars, that it is not full and minute in its specifications, are received with very little favour. The case of Milwood v. Walter, 2 Taunt. 224, and other cases cited in Tidd’s Pract. (new edi.) p 304, shew, that a mistake in the date of an item, and other variances between the bill of particulars and the evidence adduced by the plaintiff, if they have no effect to mislead the defendant, will not be permitted to operate the exclusion of the evidence. The question always is whether the bill of particulars be sufficient to answer the purpose of notifying the defendant on what account he is sued, and of enabling him to prepare his defence to the action.
    If then the demand here asserted in the second suit was a demand embraced by the declaration and issue in the first, and the plaintiff might have adduced evi-455 dence *to sustain it under his bill of particulars, the case of Bagot v. Williams, and the other cases cited for the plaintiff in error, establish that this second action cannot be maintained, whatever be the reason that the demand was not recovered in the former action, — whether the failure to adduce evidence, the rejection of evidence adduced, or the insufficiency of proof to establish the plaintiff’s case. The only exception is where the plaintiff withdraws the demand from the consideration of the jury, by entering a nolle prosequi as to such demand, or striking out the count in which it is asserted: and that exception does not apply to this case.
    In Seddon v. Tutop, the damages found by the first verdict were to an amount corresponding with the promissory note declared on in the first count. It would seem that the verdict there was not general, but restricted in terms to the demand asserted in that count, exclusively of the other. That the finding was in effect merely on the count for the promissory note, is at all events the understanding of the various judges who have subsequently noticed the case: see particularly Bagot v. Williams and Hess’s ex’or v. Heebie (before referred to) and Snider &c. v. Croy, 2 Johns. Rep. 227. And. in no other way is it possible to reconcile Seddon v. Tutop either with the subsequent cases in England, or the cases in this country, which in terms admit its authority. Further, the form of the. issue in Seddon v. Tutop is relied upon both by Frskine arguendo, and by lord Kenyon in his judgment: the issue was, whether the plaintiff had or had not already recovered damages for the identical promises declared on in the second action; and upon the evidence it was clear that he had not. Here the issue is different, and perfectly coincides with the issue in Bagot v. Williams, Hess’s ex’or v. Heebie, and other cases cited and relied on by mr. Stanard.
    We do not impugn the authority of Sed-don v. Tutop, for we do not think it necessary: but it may be remarked, 456 *that it has certainly gone as far in encroaching upon the general principle that a defendant is not to be twice vexed for the same cause of action, as the courts should ever go in any well regulated system of jurisprudence. The case may be sustained on the grounds upon which it is rested by the court which decided it, and it may be an authority in cases precisely similar ; but the principle of the decision should not be extended to other cases, different in circumstances.
    In this case the first verdict is general; it finds damages for the nonperformance of the assumptions in the declaration mentioned: and shall it be inferred from parol evidence; that the damages were not found for the nonperformance of all those assumptions, but only of some or one of them? Brockway v. Kenney distinctly decidés that such evidence is not admissible for any such purpose. "
    In point of fact, as well as by inténdment of law, the demand of the plaintiff in the second suit whs in'issue and passed upon in the first. Under the count upon the account stated, rio bill of particulars was necessary (Fitch'v. Eeitch, 11 Leigh 471); and the bill of" particulars filed specifies the items of demand asserted in the other count. Why should the plaintiff take the trouble to'file an account of those items, if he did not sue for them or seek to recover them in that action? Moreover,' the evidence in the record shews that the plaintiff did offer to prove those very'items before the jury, but that his evidence was excluded. [Morson. It does not appear that any attempt was made to sustain that count before the jury: the statement is simply that no evidence was given in support of it.]
    But we contend that the causes of action in the two suits- here were the same, because we insist that the two counts in the first suit were themselves for one arid the same cause of action, and not for 457 different causes. "*For the test of identity as to this subject (laid down in the passage quoted from 1 Starkie on Evid: 222, 3, and the case there referred to of Hitchen v. Campbell, 2 Bl. R. 827,) is, whether the causes of action alleged in several counts or declarations would be sustained by the same evidence. Here, the same evidence which would sustain the second count in the- first declaration yould also have sustained the first count. Proof of a stated' account for work and labour will sustain a declaration in indebitatus assumpsit for the performance of the work and labour; which is the character of the first count in the first action, and of the declaration upon which the present verdict and judgment have been recovered. The plaintiff might have recovered under the second count, for all that was due him at the time of the ' suit brought, by proving the defendant’s acknowledgment of an account embracing all the itenls; as on the other hand he might have recovered all under the first count, either by the very same evidence, or by distinct evidence that the work had been done and' the materials furnished at the defendant’s request. The fact that an account was stated between the parties embracing only a part of the' plaintiff’s demand, did not' sever that part so as to make it a distinct and independent cause of action ; the claim was still entire and indivisible, although the plaintiff might thereby be enabled to prove different items of it by different kinds of evidence,— to prove one portion by shewing that the defendant acknowledged his account for that portion, and the residue (or the whole, if the plaintiff thought proper) by shewing that he had performed the labour and furnished the materials for the defendant.
    In addition to the cases already cited shewing that an entire demand cannot be severed, the case of Morgan v. Plumbe, 9 Wend. 287, may be referred to.
    
      
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   . PER .CURIAM.

.The judgment is affirmed.  