| Pa. | Nov 5, 1866
The opinion of the court was delivered, by
The evidence has not been sent up, but the court said it sustained the averments in the defendant’s plea, that the note sued on in this action was the same for which a previous suit had been brought in the county court of Wirt county, Virginia.
But the court held, that the Virginia suit was no bar to this action,'because it terminated in a nonsuit, and wag not an adjudication of the merits.
The suit there was commenced by attachment, and the plaintiff failing to appear to his action, his writ was “ abated and dismissed,” and the court ordered that the defendant recover $5 and his costs against the plaintiff.
Very evidently this was no more than a nonsuit, and by the Virginia statutes it became, at the end of the term at which it was rendered, a final judgment, the circumstance which counsel supposes renders it a bar to the plaintiff’s recovery in our courts upon the same cause of action. But it was final of what? Not of the merits of the controversy, because they were not adjudicated, but final of the defendant’s right to have his costs of suit, and $5 for the false clamor.
This was all that was adjudicated, and this is all that that record concludes. It would not bar a subsequent action upon the note either in Virginia or here, for a nonsuit, whatever the liabilities with which it is attended, can have such effect nowhere. It is only when the merits have been passed upon, or from the course of pleadings and trial they might have been passed upon, that a judgment sustains a plea of former recovery, and bars a subsequent suit.
We are, therefore, of opinion that the direction given to the jury was right, and the judgment is affirmed.