6 Vt. 243 | Vt. | 1834
The opinion of the court was delivered by
— The whole complaint in this audita querela is, that the defendant, in a former suit, declared against the now plaintiff in an action of debt on judgment, as administrator of one John W. Mott, deceased, and recovered a judgment in said suit; - and the plaintiff now alleges that in fact the defendant was not the administrator upon said estate. It is a well settled principle, that an audita querela will not lie to overhaul a judgment, where the defence could have been made in the original suit, unless such defence has been prevented by the fraud of the opposite party. In this case no facts are alleged from which fraud can be inferred, and that epithet being applied to the party or the transaction is of no use in the absence of such facts. In that suit, if the plaintiff did not make a profert of his letters of administration, the declaration would have been bad on special demurrer; if he did, the defendant might have plead in abatement, according to 3 Stark. 547; or in bar, according to 2 Chitty, 450. Ne unques administrator is certainly a good plea in abatement, and perhaps in bar; and if the plaintiff declare upon a cause of action arising in his own-time under the general issue, the plaintiff must prove his administration as part of his title. — 2 Starkie, 548. This plaintiff then had in the first suit an ample privilege to put the then plaintiff upon the proof of his administration, which, if he neglected it, was his own folly. Besides, it appears that the present defendant has since taken out letters of administration, and the plaintiff will now be protected in the payment of the judgment. We have treated the plea as being demurred to, which brings the declaration in question upon which the decision is founded, because it was so treated at bar; and as that is insufficient, it would be useless to pass upon the question to dismiss.
Judgment of the court that the declaration is insufficient.
