Sawyer v. Cross & Son

66 Vt. 616

• Court: Supreme Court of Vermont
• Decided: January 15, 1894
• Status: Published

Opinion

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.