Dean v. Dazey , 5 Del. 440 ( 1854 )

A previous action of ejectment had been tried and verdict rendered as between the real, but not the nominal, parties to this action. On the trial of the second ejectment, the record of the former action was admitted in evidence. This was the principal error relied on; and it was argued — 1. That the record was not evidence, because it was not between the former parties. 2. Because the term sued for as laid in the several demises, was not the same. (1 Greenl. Evid., 590, § 522, 520; Adam's onEject., 192, 294, 312; 1 Mod. Rep., 10; 2 Harr. Rep., 30; 3 Ib., 489; 4Ib., 100.)

Mr. Cullen, contra. — The record of the former trial was properly admitted in evidence. It is between the same real parties, and for the same subject matter. The fictitious parties will be noticed only for form sake. The court overlook them on a question depending on the rights of the real parties. The term laid in the demise is of no consequence on this question. (1 Saund. Pl. Ev., 1064; Bull. N. P., 87, 232; 2 Phill.Ev., 8; 28 Com. Law. Rep., 19, 11; 1, 2 Barn. Adolp., 690, Root vs.Winch; Excheq. Rep., 728; 2 Cromp. Mees. Rosc., 728; 4 Bac. Ab. Ev.; 7Watts Rep., 20, 26.)

Judgment affirmed.