
    E. A. Strout Company, a corporation existing under the laws of the State of Maine, vs. Alfred P. Howell, and Mary J. Howell.
    Pleading—Demurrer—Effect of Decision.
    A demurrer to a plea will be stricken out, where the sufficiency of the plea has already been determined on a demurrer to the replication to such plea.
    
      (February 19, 1912.)
    Pennewill, C. J., and Rice, J., sitting.
    
      Alexander B. Cooper and Richard S. Rodney for plaintiff.
    
      Levin Irving Handy for defendants.
    Superior Court, New Castle County,
    January Term, 1912.
    Summons Case
    (No. 40,
    March Term, 1910).
    This was a general demurrer to defendants’ fifth plea. Motion to strike out said demurrer on the ground that it raises an issue which has been heretofore determined by the court. (See 2 Boyce 489, also 82 Atl. 238. For" writ of error, same case, see post, also 85 Atl. 666.)
   Pennewill, C. J.,

delivering the opinion of the court:

In the above stated case the plaintiff filed a general demurrer to the defendants’ fifth plea, which the defendants now move the court to strike out on the ground that it raises an issue which has been heretofore determined by the court in passing upon the defendants’ demurrer to the plaintiff’s replication to said plea.

Upon an examination of said fifth plea and replication, and a careful consideration of the question, we are satisfied of the soundness of the defendants’ contention, and are constrained to grant his motion.

While the previous issue was raised by a demurrer to the replication, it was nevertheless a replication to the fifth plea, and necessarily, and in fact, involved the sufficiency of said plea. While the replication did raise other questions, the important question then argued and considered was the plea and its sufficiency in law. In overruling the replication the court distinctly held the plea sufficient, and it could do nothing more in deciding the question raised by the present demurrer.

The court will not hear and determine a question that has been already decided in the same case, and for that reason we order the demurrer filed by the plaintiff to the defendants’ fifth plea stricken out.  