Neibert v. Reed , 32 Del. 28 ( 1922 )

Harrington, J.,

delivering the opinion of the Court:

The question is whether evidence of a prior judgment for the defendant for the same cause of action is admissible under the plea of non assumpsit, or whether a special plea is necessary.

In assumpsit almost any fact which shows that the plaintiff had no cause of action when the suit was brought may be given in evidence under the general issue. Reading’s Heirs v. State, 1 Harr. 190; Klair & Hollinsworth v. P. W. & B. R. R. Co., 2 Boyce 274, 292.

It, therefore, naturally follows that evidence of a prior judgment in the same cause of action was properly considered by the referees under the plea of non assumpsit. Chitty’s Pleading, vol.1, p. 513; volume 3, p. 929 (note); Hollis v. Morris, 2 Harr. 128; Vooght v. Wrench, 2 Barn. & Ald. 663; Stafford v. Clarke, 2 Bing. 377; Gardner v. Buckbee, 3 Cow. (N. Y.) 120, 15 Am. Dec. 256; Wood v. Jackson, 8 Wend. (N. Y.) 9, 22 Am. Dec. 603; Church v. Leavenworth, 4 Day (Conn.) 274.

Whether a special plea is necessary in order for a former judgment to operate by way of estoppel, though discussed in most of the cases cited above, was not necessary to the decision ■ of this case, and, therefore, was neither argued before nor passed upon by the Court.

For the reasons above given, the exceptions are dismissed.