Philip Morgan & Al. versus Pliny Bliss, 1 Tyng 111

The Court. This was an action for a fraud, and the evidence was clearly insufficient to support the charge. Here was no evi dence of any conspiracy between Bliss and Wiley; nor any prooi of the plaintiffs’ ever having released their demand on J. Bliss, (and no reason shown for not producing such proof,) or of their having in any other way given a valuable consideration for the note; and without such evidence, what damage do they show themselves to have sustained ? There is nothing left in the case for the jury to deliberate upon. The Chief Justice suggested that, there might perhaps be a foundation for a criminal prosecution for a conspiracy; but

an act done in pursuance of an unlawful intent, and without occasioning actual damage, is no ground for a civil action. Nonsuit not set aside. * By the Court. The ground of surprise, on which [*113 ] this motion is made, should be cautiously admitted. It is not urged that the plaintiff was surprised by the defendant’s evidence, but because the judge required other evidence than what the plaintiff thought sufficient. However, if we were satisfied that the merits of the cause were with the plaintiff, and that from misapprehension he was without remedy, we might be induced further to consider the motion.

But a judgment on a nonsuit before ver diet is no bar to another action for the same cause: the plaintiff therefore has a remedy, if he chooses to pursue it. Bridge & Al. vs. Sumner, 1 Pick. 371. — Hull vs. Blake, 13 Mass Rep. 153