Rosse v. Rust
4 Johns. Ch. 300
New York Court of Chancery
1820
Check Treatment
The Chancellor.

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. *301It 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.