#### EARL FERGUSON v. REX SPINNING COMPANY.

(Filed 2 May, 1934.)

Judgments L a—

In order to sustain a plea of estoppel by judgment in an action instituted after judgment of nonsuit tbe court must find that tbe allegations and evidence in tbe second action are substantially identical with tbe first.

Appeal by plaintiff from Stack, J., at January Term, 1934, of GastoN.

Reversed.

*912 J. L. Hamme for plaintiff.

J. Laurence J ones for defendant.

Pee Cueiam.

In Batson v. Launcky Co., ante, 371, is tbe following: “In tbe case at bar tbe trial judge beard no evidence and found no facts. Hence, it does not appear whether tbe merits of tbe present case are substantially identical to tbe former case or not. Therefore, tbe Court is of tbe opinion that tbe judgment dismissing tbe action upon tbe plea of estoppel, was prematurely and inadvertently made.” For tbe reasons given, tbe judgment of tbe court below is

Reversed.