Majority
p. 300Rosse and others, assignees of C. Snow, against C. Rust and others, representatives of A. Rust. Jan. 18th.
Headnote
Where a cause was set down for a hearing, on the bill and answer, and the bill was dismissed with costs, because no person appeared for the plaintiff and the decree was enrolled, the decree was held' to be no bar to another suit for the same matter.THE bill, in this causé, which was filed the 19th of April, 1814, was substantially for the same matter for which a bill was filed on the 9th of June, 1810, by Ephraim Snow, •against Amaziah Rust, which cause was set down for a hearing on the bill and answer, the 10th of September, 1812, when no person appearing on the part of the plaintiff, the bill was dismissed with costs; and the decree of dismissal was enrolled.
The defendants now pleaded the former suit,, and decree therein, in bar.
Tucker, for the plaintiffs.
Cady, contra.
The present suit is for the same matter, in substance, as that contained in the pleadings in the former action, and the question is, whether the decree dismissing the bill in the former suit at the hearing, (the cause having been set down for hearing by the defendant, upon' leave previously had and obtained on a previous default of the plaintiff,) because no person appeared on the part of the? plaintiff, is a bar to the present suit.
The merits of. the former cause were never discussed, and no opinion of the Court has ever been expressed upon them.
p. 301
It is, therefore, not a case within the rule rendering a decree a bar to a new suit. The ground of this defence by plea is, that the matter has been already decided, and here has been no decision on the matter. In Brandlyn v. Ord, (1 Atk. 571.) Lord Hardwicke said, “ that where the defendant pleads a former suit, he must show it was a res judicata, or absolute determination of the Court, that the plaintiff had no title. A bill dropped for want of prosecution, is not to be pleaded as a decree of dismission, in bar to another bill.” The same doctrine is stated in Lord Redesdale’s treatise. (Mitf. Pl. p. 195.) The decree in this case was equivalent to a judgment of nonsuit at law.
Plea overruled, and the defendants ordered to answer.