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The cases were fully reviewed by Mr. Justice Harlan, speaking for the court, in the Rosen Case, and after stating the right of the accused to be advised of the nature and cause of the accusation against him with such reasonable certainty that he can make his defense and protect himself against further prosecution, the doctrine was thus summarized (p. 40):

"This right is not infringed by the omission from the indictment of indecent and obscene matter, alleged as not proper to be spread upon the records of the court, provided the crime charged, however general the language used, is yet so described as reasonably to inform the accused of the nature of the charge sought to be established against him; and in such case, the accused may apply to the court before the trial is entered upon for a bill of particulars, showing what parts of the paper would be relied on by the prosecution as being obscene, lewd, and lascivious, which motion will be granted or refused, as the court, in the exercise of a sound legal discretion, may find necessary to the ends of justice."

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We find, upon applying this doctrine to the instant case, that it was specifically charged that the letter was mailed by the accused in violation of the statute upon a day named at the post-office in a town and county named and within the District; that its contents were well known to the accused and were so filthy, obscene, lewd and offensive and of such indecent character as to be unfit to be spread upon the record of the court, and that the letter was enclosed in an envelope which was addressed to the person and place specified in the indictment. There was no attempt on the part of the accused to require a bill of particulars, giving a more specific description of the letter or any further identification of it, if that was necessary to his defense. Under the Federal practice he had a right to apply for such bill of particulars, and it was within the judicial discretion of the court to grant such order, if

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necessary for the protection of the rights of the accused, and to order that the contents of the letter be more fully brought to the attention of the court, with a view to ascertaining whether a verdict upon such matter as obscene would be set aside by the court. United States v. Bennett, supra; Rosen v. United States, supra. In Durland v. United States, 161 U. S. 306, 315, it was held that a general description of a letter identified by the time and place of mailing, when it was mailed in pursuance of a scheme to defraud, was sufficient, in the absence of a demand for a bill of particulars.

As to the objection that the charge was so indefinite that the accused could not plead the record and conviction in bar of another prosecution, it is sufficient to say that in such cases it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice is not infrequently necessary. United States v. Claflin, 13 Blatchf. 178, 25 Federal Cases, 433, No. 14,798; Dunbar v. United States, 156 U. S. 185; Tubbs v. United States, 105 Fed. Rep. 59. In the Dunbar Case it was stated that other proof, beside the record might be required to identify the subject-matter of two indictments, and the rule was laid down as follows (p. 191):

"The rule is that if the description brings the property, in respect to which the offence is charged, clearly within the scope of the statute creating the offence, and at the same time so identifies it as to enable the defendant to fully prepare his defence, it is sufficient."

The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the post-office specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, enclosed in an envelope bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of VOL. CCXXVII-28

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the accusation against him. This fact is made more evident when it is found that this record shows no surprise to the accused in the production of the letter at the trial and no exception to its introduction in evidence, and there is no indication that the contents of the letter, when it was produced, did not warrant the description of it given in the indictment.

Judgment affirmed.

TROXELL, ADMINISTRATRIX, v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COM

PANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT.

No. 854. Argued January 14, 1913. ---Decided February 24, 1913.

Where the second suit is upon the same cause of action set up in the first suit, an estoppel by judgment arises in respect to every matter offered or received in evidence or which might have been offered to sustain or defeat the claim in controversy; but where the second suit is upon a different claim or demand, the prior judgment operates as an estoppel only as to matters in issue or points controverted and actually determined in the original suit.

To work an estoppel, the first proceeding and judgment must be a bar to the second one because it is a matter already adjudicated between the parties, and there must be identity of parties in the two actions.

A suit for damages for causing death brought by the widow and surviving children of the deceased under the state law is not on the same cause of action as one subsequently brought by the widow as administratrix against the same defendant under the Employers' Liability Act, and the judgment dismissing the complaint in the first action is not a bar as res judicata to the second suit.

After a plea of res judicata has been filed and considered and the case

227 U. S.

Argument for Defendant in Error.

tried, it is too late for defendant to raise the objection in this court for the first time that the case was not at issue and should not have been tried until after plaintiff had filed a replication to the plea. 200 Fed. Rep. 44, reversed.

THE facts, which involve the construction of the Employers' Liability Acts of 1906 and 1908 and the validity of a judgment recovered thereunder, are stated in the opinion.

Mr. George Demming for plaintiff in error.

Mr. James F. Campbell, with whom Mr. J. Hayden Oliver, Mr. Daniel R. Reese and Mr. William S. Jenney were on the brief, for defendant in error:

The former action brought by plaintiff in error as widow for the benefit of herself and children, which she lost in the Circuit Court of Appeals, completely bars the present action brought by her as administratrix for the benefit of herself and children.

The Circuit Court of Appeals had the right to consider the record of the former appeal because it was not only before them, without objection, but was a part of their own records. 3 Cyc. 179; Schneider v. Hesse, 9 Ky. L. R. 1814.

An appellate court takes notice of its own records so far as they pertain to a case under consideration. That court, therefore, would judicially know that the judgment appealed from was affirmed upon a former appeal to which all the parties to the present appeal were parties, and such judgment is consequently a bar to the prosecution of the present appeal. Thornton v. Webb, 13 Minnesota, 498; Butler v. Eaton, 141 U. S. 240; Aspen Mining Co. v. Billings, 150 U. S. 31; Craemer v. Washington, 168 U. S. 124; Thompson v. Maxwell Land Grant Co., 168 U. S. 451; In re Durrant, 169 U. S. 39; Bienville Water Supply Co. v.

Argument for Defendant in Error.

227 U. S.

Mobile, 186 U. S. 212, 217; Dimmick v. Tompkins, 194 U. S. 540.

Plaintiff in error must have tried the former action under the Federal Employers' Liability Act, and as the administratrix was a mere formal party, she could have been substituted at any time as nominal plaintiff, by amendment. St. Louis & S. F. R. R. v. Herr, 193 Fed. Rep. 950; Van Doren v. Pa. R. R., 93 Fed. Rep. 260, 268; Reardon v. Balaklala Con. Copper Co., 193 Fed. Rep. 189. The parties were identical or in privity.

The Pennsylvania statutes give the right to a widow to sue in her own name, for the benefit of herself and children, for the wrongful death of her husband by violence or negligence. Act of April 26, 1855, § 1, P. L. 309.

The Federal Employers' Liability Act of 1908 provides that the action shall be brought by the administrator for the benefit of the widow and children.

The former action was brought by plaintiff in error, under the Pennsylvania acts, to recover damages against the defendant by reason of its alleged negligence causing the death of her husband, for the benefit of herself and minor children.

In the present action she sues as administratrix under the Federal Employers' Liability Act of 1908, to recover damages, for the same death, from the same accident and for the benefit of the same parties, viz., herself and minor children.

These parties are the same in both actions, and in privity with each other. Butler v. Eaton, 141 U. S. 240.

The cause of action is the same and the parties are the same. It conclusively follows, therefore, that the first action is res judicata of the second.

The two actions were brought by the same parties against the same defendant, in the same court, tried before the same judge, to recover damages for the same death in the same accident.

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