majority">Pierpoint, J.

This is an audita querela brought to set aside a judgment of a justice of the peace, rendered against the plaintiff in this proceeding, on the ground that an appeal was *426improperly denied him. Neither the plaintiff ’s« writ, nor his claim in the proceeding before the justice come within the statute so as to make the case appealable, but it is insisted that the plea which the defendant in that suit filed as a defence was of such a nature as to bring the case within the provision of the statute allowing appeals in such cases, when such plea is filed in good faith. Whether in this instance the plea was filed in good faith or not, the magistrate must determine before granting or denying the appeal, He denied the appeal. Whether his judgment in the matter is to be regarded as conclusive or not, is a question we do not now determine. But we are all of the - opinion that in a case of this kind audita querela is not a proper remedy. In Tyler v. Lathrop, 5 Vt. 170, audita querela was held to be a proper remedy to set aside a judgment when the magistrate rendering. the judgment had illegally denied an appeal. The case upon its face was appealable, and the statute gave the right absolutely, and the magistrate had no discretion or judgment to exercise in the matter.

That case has since been followed, but with reluctance, and, if the question were now an open one, probably a different rule would be adopted. This court has said in following that case, that they would not extend the rule therein laid down, but in cases of this character would confine its application to cases “ precisely identical;" Spear v. Flint, 17 Vt. 499; Harriman v. Swift, 31 Vt. 385.

We are inclined to this strictness from the consideration that the proceedings by audita querela are harsh, and often unjust in their operation. The party has his judgment vacated, his security destroyed, if he has any, and he is involved in costs, without remedy, and this independently of the meri’s of his claim ; while the other party has an ample remedy by petition under the statute, where the rights of both parties are fully secured and protected, and. a new trial granted if the party is entitled to it, and the merits of the claims finally adjusted and determined. To that remedy, we think, the plaintiff in this case should have resorted, and to that we are inclined to leave him.

The judgment of the county court is reversed, and judgment rendered for the defendant for his cost. .

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