Bridge v. Sumner

18 Mass. 371

Opinion

Parker C. J.

delivered the opinion of the Court. We do not find that a nonsuit even upon the merits is peremptory, so as to be a bai to another action upon the same cause, except in the few cases which are stated in Co. Lit. 139 a; and as there said, exceptio probat regulara. The difference between a nonsuit and a retraxit is, that the latter is a bar and the former is not. Co. Lit. ubi sup. ; 3 Bl. Comm. 296, 377. In England, when a second action is brought after a nonsuit upon the first, and a refusal to grant a new trial upon the facts prov 3d and upon which the judge ordered a nonsuit, the course is to stay proceedings upon the second action until the costs of the first are paid ; and this seems to be the only restriction. Melchart v. Halsey, 3 Wils. 149. The second action in such case is deemed to be vexatious, and yet the party bringing it cannot be deprived of a hearing, if he will submit to the condition of paying the costs which accrued upon'the first suit. To avoid this inconvenience, hereafter it may be necessary to take a verdict instead of a nonsuit, when it is apprehended another action may be brought.¹

Motion to dismiss overruled.

1 Morgan v. Bliss, 2 Mass. R. 113; Knox v. Waldoborough, 5 Greenl. 185. But see Foster v. Atkison, 1 Littell, 214.