
    Webb, Executor of Osborne, v. M’Neil.
    Friday, March 20th, 1812.
    I. Appellate Practice—Reversal of Judgment.—If a judgment on a summary motion he reversed, on the ground that the plaintiff’s claim is not supported by evidence, the appellate Court should proceed to enter judgment, that the plaintiff take nothing by his motion. And such judgment would he a bar to another motion for the same cause of action. But if such judgment he not entered, the judgment of reversal is too imperfect to be a legal bar. See Mantz v. Hendley, 21-I. & M. 318, and Darby v. Henderson, and others, ante.
    Under the second section of, the act “to empower securities to recover damages in a summary way,  the appellant made a motion in the Nottoway County Court against the appellee, for 22,183 pounds of inspected tobacco, *and two dollars and seventy-six and an half cents, “being one half of the amount of a judgment, rendered in the Court of the said County, in favour of Archer Jones, executor of Robert Jones, deceased, against the said Conrad Webb, executor of Abner Osborne, on a bond executed by Robert Watkins, with the said Hector M’Neil and Abner Osborne his securities, to the said Robert Jones; which judgment the said Conrad Webb had fully paid.” Upon the hearing of this motion, the plaintiff having produced a copy of the judgment, and receipt for the same, mentioned in the notice, and an execution on a judgment rendered in his favour, against Robert Watkins, which execution was returned “no effects;” and having álso proved that the defendant and the plaintiff’s testator were co-securities for the said Watkins in the bond whereon the first-mentioned judgment was rendered ; the defendant produced in evidence, in bar of the said motion, “a transcript of the record between the plaintiff and defendant for the same cause of action;” from which it appeared that a judgment before obtained i,n the County Court, by the plaintiff against the defendant, had been reversed by the Superior Court, on the ground that the same had been rendered without any evidence to prove the securityship of M’Neil, or the insolvency of the principal obligor; but the Superior Court in reversing that judgment, had’failed to enter such judgment, in lieu thereof, as the County Court ought to have rendered. It was contended by the defendant, that this judgment of reversal was a bar to the plaintiff’s recovery on the present motion : but the Court gave judgment for the plaintiff, according to notice; to which opinion the defendant excepted; and a bill of exceptions was signed, &c. This judgment was reversed by the Superior Court, upon a writ of su-persedeas, on the ground “that the judgment, in the bill of exceptions in the record set forth, having been given on the merits of the case, was a bar to any future motion for the same cause;” and it was further considered, “that the defendant *in error take notice by his motion,” &c. Whereupon he appealed to this Court.
    Call, for the appellant.
    The first judgment in favour of the plaintiff was reversed, expressly on the ground of a mere failure to produce certain evidence: „but judgment was not entered that he take nothing by his motion. The case was therefore left open, and there was nothing to prevent his renewing the motion, 
    
    G. K. Taylor, contra.
    A trial on the merits, and decision against the plaintiff is conclusive, though on defective testimony. The necessity of suffering a non-suit in order to bring a new action is founded on this principle. The general rule, that “nemo debet bis vexari” is laid down in 3 Wils. 308, Kitchen and others v. Campbell; and the only exceptions to it are there stated.
    Call, in reply.
    The case in Wilson is not apposite to this. In that case the right in controversy had been tried and determined in the previous action: but in this, it does not appear that the Superior Court passed any sentence upon the claim now exhibited, which is supported fully by evidence. I believe that Court intentionally omitted to give such a judgment as would destroy the claim; in order that the plaintiff might be permitted to prosecute again.
    
      
      See monographic note on “Appeal and Error” appended to Hill V. Salem, etc., Turnpike Co., 1 Rob. 263.
      The principal case is cited m Anderson v. Com., 18 Gratt. 301.
    
    
      
       Revised Code, 1st vol. ch. 14o, p. 281, 282.
    
    
      
       5 Bac. 440.
      
    
   Friday, March 27th,

JUDGE ROANE

delivered the following opinion of this Court.

‘ ‘Although the judgment of reversal, offered in bar of the motion now in question, was for the same matter, and the judgment therein referred to was reversed on the merits; as appears from the reasons assigned therein; yet, the Superior Court not having entered such judgment on the reversal as the County Court should have rendered (which, in this case ought to have been, that the plaintiff should take nothing by his motion;) the Court *is of opinion, upon authority, that that judgment of reversal is too imperfect to form a legal bar to the motion aforesaid. On that ground, the judgment of the Superior Court is reversed with costs, and that of the County Court affirmed.”  