ACHESON, Circuit Judge
(after stating tlie facts as above). It is a familiar.principle, not needing tbe citation of authorities to support it, that the judgment of a court of competent jurisdiction upon a question directly involved in a suit is conclusive as to that question in another suit between the same parties. How, undoubtedly, the cause of action in the former suit between these parties wa,s the same as the cause of action in this suit. The question- in controversy there, as it is here, was the alleged negligence of the defendant, whereby the plaintiff suffered the injury complained of.' A'mere variance in the mode of describing the defendant’s alleged negligence, or an additional averment of negligence on its part in the main matter complained of, does not > affect the application of the rule as to the conclusiveness of a former adjudication. These propositions do not seem to be seriously disputed here. Certainly thé main contention of the learned counsel for the plaintiff is that the judgment in the state court is not á bar to the present suit, because the action is saved by the second section of the act of March 27, 1713 (1 Smith’s Laws, p. 76; 1 Purd. Dig. p. 1215, pl. 21), which providfes as follows:
“If in'any- of the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict passed for tlie plaintiff, and’upon matter alleged in arrest of judgment the judgment be given against the plaintiff that he take nothing by his ifiaint, writ or bill, then, and-in every such case, the party plaintiff, his heirs, executors or administrators; as the casé may require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or given against tlie plaintiff ás aforesaid, and not after.”
-The .-able argument of the plaintiff’s .counsel has failed to convince me thaffthis.case is within the scope of the act of 1713. There was ntí' j'ffdgíhéht given for the plaintiff, and, of course, there was no *747reversal of sueli a judgment. Neither “upon matter alleged in arrest of judgment” was there a judgment “given against the plaintiff that he take nothing by his plaint, writ, or bill.” So that;the literal terms of the act do not cover the case. Nor does the case come within the purpose of the act, as I read it. The act undoubtedly refers to the common-law proceeding in arrest of judgment ■ from an intrinsic cause appearing upon the face of the record. 3 Bl. Comm. 393; Delaware Div. Canal Co. v. Com., 60 Pa. 367. Npw, when a judgment in favor of a plaintiff is simply reversed, or where a verdict in his favor is lost by the arrest of judgment thereon, the merits of the controversy are left undetermined. In such a case there is no final judgment, whatever its form may be, upon the merits. In such a situation the plaintiff ought not to be .debarred from another suit. Hence this act of 1713. In the present, case, however, the record of the state court shows a judgment in favor of the defendant upon a reserved question of law. This is, something very different from a judgment upon matter alleged in arrest of judgment that the plaintiff “take nothing by his plaint,, writ, or bill.” It is little to the purpose to say that a judgment non obstante veredicto in favor of a defendant is unknown at common law. The practice in Pennsylvania in respect to reserved points on questions of law which may arise on the trial of a cause is of statutory origin and sanction; Act March 28, 1835 (P. L. 1834-35, p. 90, § 5); Act April 22, 1863 (P. L. 554); 2 Purd. Dig. p. 1695.- By the' former act it is provided that “either party shall have a right to a hill of exceptions to the opinion of the court, as if the point had been ruled and decided on the trial of the cause”; and the'latter act, which extends the power conferred by the former act to all the courts of common pleas of the commonwealth, contains- the provision, “subject, however, to the same rules and regulations in regard to writs of error from the supreme court.” Now, it is true that these acts do not expressly provide for the entry of judgment in favor of the defendant non obstante veredicto-, but the grant of such authority, I think, is plainly implied. It is safe’ to affirm that such has been the practice from the beginning. Confirmation of these views is to be found in the opinions and decisions .of' the supreme court of Pennsylvania in the cases of Wilde v. Trainor, 59 Pa. 439, 442; Koons v. Telegraph Co., 102 Pa. 164, 169; and Casey v. Paving Co., 198 Pa. 348, 352, 353, 47 Atl. 1128. The following propositions and rules are laid down by the supreme court in those cases. The purpose in reserving a point is to give the trial judge an opportunity carefully to consider a doubtful question of law arising at the trial upon which the decision of the case depends. The reservation must he of a pure question of law, and one which rules the case. The question of law reserved must be so decisive of the case as to warrant a binding instruction. In Wilde v. Trainor, supra, Judge Sharswood said, “The main object of a reserved point is to save the necessity of a second trial.” It seems, then, necessarily to follow that, upon the ruling of a reserved question of law in favor of the defendant, judgment may he entered for him-.non obstante veredicto, and that such judgment is as conclusive as-if a *748binding instruction in his favor had been given. The supreme court of Pennsylvania, in affirming the judgment of the court of common pleas in the former suit between these parties, held that the reservation by the trial court was, in substance, good, and that the question of law was correctly decided. Casey v. Paving Co., 198 Pa. 348, 47 Atl. 1128. That decision is conclusive here. I am therefore constrained to sustain the defendant’s third plea, and to hold that the judgment in the state court in the former suit between these parties is a bar to the present action.
As this ruling is decisive of the case, the court does not feel called on to make any finding whatever under the plea of not guilty. Judgment will be entered for the defendant on the third plea only, and, if the circuit court of appeals shall be of opinion that this court was in error in sustaining that plea, then, undoubtedly, the judgment of this court will be reversed with a procedendo. And now, July 16, 1901, the court finds in favor of the defendant upon its third plea, and directs the entry of judgment for the defendant on that plea only.