
    Bridge et al. versus Sumner.
    In ássumpsit a nonsuit upon the merits is not a bar to a future actiob.
    The plaintiffs brought an action against John Hubbard as maker, and another against the defendant as indorser, of a promissory note, and in the last action were nonsuited, at November term 1817 of this Court, with liberty to move the whole Court that the nonsuit be taken off. Such motion was made accordingly, and overruled for the reasons given in the case of Bridge et al. v. Hubbard, 15 Mass. Rep. 96.
    And now Townsend moved that the present action be dismissed, -because it was the second brought by the plaintiffs against the defendant upon the same promissory note.
    Sohier, for the plaintiffs.
   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.

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