*51The opinion of the court was delivered, May 17th 1873, by
Williams, J.The judgment of nonsuit rendered by the justice in the previous suit, brought on the same note, is no bar to the action in this case. It was not a judgment on the merits, after-hearing the proofs and allegations of the parties, but a judgment of nonsuit in default of the plaintiff’s appearance on the day to which the hearing of the case had been continued. It is immaterial that the plaintiff appeared by attorney on the return-day of the summons, if he* was guilty of such subsequent neglect as authorized the judgment. It was as much his duty to appear on the day to which the hearing'of the case was adjourned, as to appear on the return-day of the writ; and for his default in not appearing, no judgment except that of nonsuit could be properly rendered against him. Why then should it be regarded as final and conclusive of the rights of the parties ? It was not rendered after hearing their proofs and allegations, as was the judgment of nonsuit in Crawford v. Gould, 2 Barr 89, whjch was consequently held to be final, regardless of its form; nor was it entered after the appearance of the parties on hearing, as in Lawver v. Walls, 5 Harris 75, because the plaintiff was not able to substantiate his claim. If it had been, then it might be regarded as equivalent to a judgment that the plaintiff had no cause of action. But it was, as the docket entries show, a judgment of nonsuit in default of the plaintiff’s appearance; and in his absence no other judgment could be rightfully entered against him. It is conceded that if the judgment had been rendered in default of the plaintiff’s appearance on the return-day of the writ, it would not be conclusive of the rights of the parties. Why then should it be when entered in default of his appearance on the day to which the hearing was continued ? The default in the one ease is the same as in the other; why then should not the judgment be the same ? It would be a narrow construction of the act to hold, if the plaintiff appears on the return of the writ and the hearing of the case is continued to a subsequent day, that the justice has no power to enter a judgment of nonsuit against him under its provisions, if he fails, to appear at the time appointed for the hearing; and it would be a harsh construction to hold that a judgment of nonsuit against the plaintiff, that such default is conclusive of the rights of the parties and a bar to any subsequent suit for the same cause of action.
The act is susceptible of a more reasonable construction. It undoubtedly authorizes the justice to give judgment against the plaintiff by nonsuit in default of his appearance either on the day appointed by the summons, or on any subsequent day to which the hearing may be continued. The justice, therefore, had power to enter the judgment of nonsuit, and its only effeet was to put an end to the action without concluding the rights of the parties. It follows that the court below erred in charging the jury that the *52parties having once appeared, the justice of the peace afterwards had no right to enter a judgment of nonsuit against the plaintiff, and that, having done so, the effect of it was a judgment in favor of the defendant, from which the plaintiff’s only remedy was by an appeal, and their verdict should be for the defendant.
Judgment reversed, and a venire de novo awarded.