I. The plaintiff moves in arrest of judgment. To the defendant’s declaration in offset upon two promissory notes, the plaintiff pleaded the statute of limitations, the defendant replied that the cause of action did accrue, &c., negativing the words of the plea, but omitted the formal words of the conclusion, “and this he prays may he inquired of by the country.” Upon these pleadings the parties had a trial by jury and the defendant obtained a judgment upon the notes. The motion in arrest is upon the ground of the omission of the formal concluding words of the replication.
By the statute of 4 and 5 Ann, a wrong or defective conclusion can only be objected to by special demurrer. It is, therefore, net to be taken advantage of by a motion in arrest. To hold, that a party who has had his trial by jury and been cast in the verdict, may arrest the judgment because his adversary omitted the formal request for such a trial, would seem in these days like a burlesque upon judicial proceedings.
It is also claimed that the issue joined upon the plea of payment, was merely upon the day specially named in the plea, and not upon the fact of payment; and therefore that the issue was immaterial.
Where a fact alleged in a plea may he true and yet he no bar to the action, there a denial of that fact, in the words of the plea, and omitting to answer other material allegations, forms an immaterial issue. But where the fact pleaded is a good defense to the suit, and that fact is traversed in the words of the plea, such traverse is sufficient. Here the payment after the debt was due is denied in the terms in which it is alleged; thus forming a direct and material issue. The motion in arrest is, therefore, overruled.
II. The plaintiff pleaded the statute of limitations. On this issue the defendant showed that the plaintiff within six years agreed “that he would not take any advantage of the statute of limitations on the notes.” In Button v. Stevens, 24 Vt., 131, the question came before this court upon these very words. The court held that these words are an acknowledgement of the debt *683sufficient to take it out of the statute, and that the agreement need not be pleaded by way of estoppel, but may be shown in evidence under the issue formed by traversing the plea. The opinion of Judge Isham reviews the authorities and shows that the decisions in England and in the State of New York correspond with our own.
III. To support the plea of payment the plaintiff gave evidence of certain matters which he claimed to have apply as payment, which he had previously presented before the auditor for allowance in his action on book against this defendant, and which were passed upon by the auditor. It appears from the bill of exceptions that the report of the auditor was accepted by the court. The claim of the plaintiff here is that there was no testimony tending to show that the matters he claimed before the auditor were either allowed or rejected upon their merits; and as they might have been disallowed on some mere technical point, the plaintiff should be allowed to have them apply as payment unless the defendant shows affirmatively that the decision of the auditor was upon their merits.
But we think the prima facie presumption of law is to the contrary, viz : that where a question is brought before a judicial tribunal having jurisdiction of the matter and is there decided, the decision is to be presumed to be upon the merits of the controversy, and to be a final settlement' of it. The contrary, if claimed, must be made to appear by due proof. Public policy requires this presumption, that there may be an end to litigation: and experience shows that in the ordinary administration of justice the fact corresponds with the legal presumption.
The court below did not rest the case upon this point, but told the jury thát they might consider the evidence, and if they found that the auditor had either allowed or disallowed the plaintiff’s claims upon their-merits that would be a final determination and bar the plaintiff from claiming them here.-
Referring to the auditor’s report we find that the auditor specially sets forth the facts upon which the claims of the parties rested, and the objections made by the plaintiff to the defendant’s account; but does not state that any mere technical question was raised as to the plaintiff’s right of recovery, and would seem to *684have passed upon the substantial justice of the accounts. As it would, have been Ms duty to have set forth in his special report the grounds upon which he acted, if he disallowed the plaintiff’s account for reasons not affecting their justice, we think the conclusion fairly to be drawn from the report is, that he decided the case upon its merits.
In this view of the charge of the court we find no error.
IV". It is further claimed that if these matters were finally determined by the auditor, still if they were to apply as payment they ought so to apply, and the notes having been paid cannot by that determination be revived so as to become a cause of action. The court charged, first, that if the notes had been paid the defendant could not recover on them in his declaration in offset; second, but if the plaintiff had claims which by agreement he claimed ought to have applied in payment, and he submitted them to the auditor, and he adjudicated upon them upon their merits, that adjudication would be final, and bar the plaintiff from now applying them on the notes. Upon this charge the jury must have found that the auditor did not disallow the accounts upon the ground that they were payments on the notes and therefore not allowable.
The plaintiff cites the cases where a party sueing upon a note has recovered judgment for its full amount, and afterwards being sued in account by the maker of the note has been allowed to defeat the action by showing that the items were delivered in payment on the notes, though not so applied when the judgment was rendered. These cases differ entirely from the case at bar. They go upon the ground that the payments should have been shown in the suit upon the note, that they operate to extinguish a debt and, therefore, cannot be chargeable on book ; and that to allow a recovery for them upon the ground that they had not been allowed in the judgment on the note would be to impeach that judgment collaterally. In this case the verdict stands upon the ground that the accounts claimed have not been paid upon the nóte ; but that the plaintiff claimed that by some understanding between him and the defendant he had the right to insist on such an application, but that, instead of so doing, he has submitted them for adjudication to the auditor, by whose determin*685atiera they had finally been settled. The claim of the plaintiff here infringes upon the principle of the cases cited by him to sustain it; for to allow his accounts now to apply in payment on the note, would be to impeach collaterally the judgment rendered upon the auditor’s report. Payments on notes are not recoverable on book, though the judgments on the notes do not include them ; because the party might have had them applied by defending the suit on the note. Clearly then where a party has defended an action of book account and failed, or succeeded, in his claims upon their merits, (and whether he failed or succeeded does not appear) he cannot be allowed to contest the same matters over again in an action brought against him upon the note.
The judgment is affirmed.