
    C. H. SAWYER v. C. H. CROSS & SON.
    January Term, 1894.
    
      Question decided on demurrer cannot be raised ujoon trial. Audita querela.
    
    x. When a declaration has been adjudged sufficient on demurrer, the defendant cannot upon the trial in effect claim that the plaintiff must prove facts not alleged in order to entitle him to a recovery. That question is res judicata.
    
    2. In audita querela the fact that the judgment, which it is sought to vacate, was not founded on a just claim, if material at all, must be alleged in the plaintiff’s declaration.
    
      Audita querela to vacate xhe. judgment of a justice of the peace. Tidal by court at the September term, 1893, Washington county, Rowell, J., presiding. Upon the facts found and certified, the court gave judgment for the plaintiff. The defendant excepts.
    
      J. W. Gordon for the plaintiff.
    The law of this case has been once declared, and the same questions were or ought to have been in issue then as now. Sawyer v. Cross & Son, 65 Vt. 158 ; Childs v. Ins. Co., 56 Vt. 609; St. Johnsbury & L. C. Rd. Co. v. Hunt, 59 Vt. 294; Gould, Plead., p. 444, 445 (5th Ed.).
    
      Martin & Slack and Geo. W. Wingiov the defendants.
   MUNSON, J.

The court below found the material allegations of the declaration pi-oved, and also found, from evidence objected to by the plaintiff, that the judgment complained of was founded upon a just demand. In a former hearing of this case, reported in the 65 Vt. 158, the declaration was held sufficient on demurrer. The declaration contains no allegation that the plaintiff has a defence to the note on which the judgment was taken. The plaintiff having now established on trial the facts held sufficient on demurrer, the defendant seeks to set up the justness of the demand recovered upon by way of defence. This matter, however, is nothing in the nature of an avoidance, but is something which, if material at all, was essential to the plaintiff’s case. So the holding on demurrer was an adjudication that the plaintiff is entitled to this relief without regard to the character of the demand recovered upon; and the case as now presented raises no question that was not then disposed of.

Judgment affirmed.  