Hadlock vs. Clement & a.

at the last term, cited 6 Dane's Abr., ch. 186, a. 1, § 4, 21: 3 Black. Com. 103, 406; Com. Dig., And. Qu. A. C.; 10 Mass. R. 103, Lovejoy vs. Webber; Cunningham’s Law Die., Tit. And, Qu.; 1 Mod. Ill; Cro. Jac. 29; Yelv. 38, 88, 125; N. II. Laws 90; 10 Verm. R. 87, Sutton vs. Tyr-rel; 1 Verm. R. 437, Weeks vs. Lawrence; 1 Aiken’s R. 363, Little vs. Cooke; 1 Verm. R. 498, Dodge vs. Huhbell; 1 Aiken 323.

1. As to the first cause of demurrer, it is unnecessary to allege any more than the default, because final judgment follows thereupon, of course. Howe’s Pr. 266; 14 Mass. R. 115. 2. The defendants proceeded irregularly in obtaining their execution, and assessing damages. 3 Black. Com. 395; N. H. Latos 91. The statute giving effect to the default is merely in affirmance of the common law, except that it dispenses with the jury. Default admits only the traversable allegations. 5 Wend. 134, Bates vs. Loomis. 3. The irregularity was such that audita que-rela lies for redress. 2 Saund. 248, Turner vs. Davis; 4 Mass. R. 484, Johnson vs. Harvey; 10 Mass. R. 101, Love-joy vs. Webber.

This action being in the nature of trespass, damages are given. Cro. J. 29, Agnel vs. Randol.

It also being in the nature of a bill in equity, judgment is rendered according to the exigency of the case. Execution discharged, Cro. El. 756; that the defendant have no execution, and the plaintiff be restored to what he has lost. Turner vs. Davis, Sp Lovejoy vs. Webber, before cited.

Audita querela lies for relief against an execution satisfied in part, as to the part satisfied; and is the proper remedy when facts are in dispute. 1 Johns. R. 533, Wardell vs. Eden, (in notes:) see, also, D. Chipman’s R. 387, Hurlburt vs. Mayo.

The plaintiff, if necessary, would amend his count, so as to set forth the rendition of a judgment.

This action, though for some purposes concurrent with the petition for review, is not superseded by the order of the court therein. The present action being more remedial, by restoring the plaintiff immediately to the money he has wrongfully been deprived of; yet, as it still leaves the defendants the benefit of the default, on which they may take inquest of damages, it is less remedial than the review. We are entitled to damages for the iniquitous and profligate courses of the defendants in regard to us.

Without entering into any questions relating to the form of this writ, or any special causes of the demurrer, it is sufficient for the disposition of the present case, that we are of opinion that this is not the appropriate remedy for the grievance set forth by the complainant.

An audita querela lies for a man in execution, or in danger of it, upon a judgment, statute merchant, staple, or recognizance, where he has matter in fact, or in writing, to avoid such execution, and no other means to take advantage of it. Com. Dig., Audita Querela, A. The authorities generally adopt similar language, in describing it. 2 Saund. 148, a, note 1; 3 Black. Com. 405; Jacob's Law Dic., by Tomlin, Tit. Aud. Qu.; 6 Dane's Abr. 314, § 4; 17 Mass. R. 158, Brackett vs. Winslow; 1 Verm. R. 496, Dodge vs. Hubbell; 1 Aiken's R. 323, Staniford vs. Barry's Adm'r.

Several cases in which it lies are set forth, 1 Fitz. Nat. Brev. 102, where forms of the writ are also to be found. It is there said that upon an audita querela sued, the party shall have a supersedeas, in the same writ, to stay execution, but not upon a new writ after a nonsuit.

In Sutton vs. Tyrrell, 10 Verm. R. 87, it is said that it is a writ to set aside an execution for causes which arose after judgment, and to recover damages of the opposite party — ^that it did not at common law extend to the judgment; and that no judgment of the court, on any question of law or fact on which it was the duty of the court to pass, can be revised by audita querela. But this perhaps must be received with some qualification. In Bacon's Abridgement, Tit. Aud. Qu.. it is described as a writ to be delivered against an unjust judgment, or execution, by setting them aside, for some injustice of the party that obtained them, which could not be pleaded in bar of the action. Other authorities hold that it lies where the complainant has had no day in court, or where the judgment is fraudulently obtained. 10 Mass. R. 101, Lovejoy vs. Webber; 1 Aiken's R. 323; 1 Verm. R. 437, Weeks vs. Lawrence; 5 Verm. R. 549, Stone vs. Seaver; 6 Verm. R. 243, Barrett vs. Vaughan. In the first of these cases, however, the complainant’s lands were held in execution. In another the writ alleged that he was in danger, &c. The danger of execution appears in another, and may perhaps be fairly inferred in the residue.

The complainant in the present case had day in court; and although there may be error in making up the judgment, fraud does not appear. He is not under arrest, nor are his goods in execution, nor have his lands been extended, so that a discharge of the execution, and of the judgment, if that might be done, would operate to release him, or his property; nor is he ill danger of execution. The writ alleges that the execution which issued has been satisfied by the payment of the money, and it is discharged. The case, therefore, does not come within the rule laid down, nor can this proceeding furnish the remedy indicated by the authorities cited.

It seems to be supposed, in the argument, that the same thing might be effected in this case, by making the judgment, to be rendered, operative to restore the money collected on the execution. How this is to be effected, whether by an action to be brought by the complainant to recover back the money, or by an execution to be issued in this case, or by a special order for its restoration, and an attachment in case of disobedience, has not been stated. As the complainant claims damages by his writ for the wrong done, and according to several of the authorities is entitled to them if he prevails, (held otherwise, Dyer 194,) it would seem, that if he could sustain this proceeding, the money collected on the execution should form part of those damages. But an execution does not, of itself, restore, or carry with it, in all cases, any certain assurance of the collection of the money. And the same remark may be made in relation to the other modes of enforcing any judgment in this case, with a view to its restoration. It is apparent, therefore, that this is not like a case where a party, by means of a wrongful execution, holds the body or property; and where, when the execution is annulled, the discharge of the party, or the release of the property held by it, so that the owner may at once take possession, is a matter of course.

Furthermore: It is supposed, in the argument, that a judgment here, for the complainant, would leave the defendants the benefit of the default in the original action, on which they might have an enquiry of damages. But according to the authorities in Vermont, a judgment for the complainant would put an end to all further proceedings in that case, and compel the defendants in this process, who, it is admitted, have good cause of action, to begin anew; instead of setting aside the proceedings so far as they are erroneous, and permitting the party to proceed again from the point of the error. 1 Verm. R. 498; Ditto 438; 10 Verm. R. 90.

For these reasons, we think the complainant must be left to his ordinary remedies for the correction of the error which has occurred. Reference has been made, in the argument, to the fact that he has petitioned for a review of the action. If he does not deem this an adequate remedy, he is not without relief. We are inclined to think that error well lies in such case; for the judgment must be regarded as the act of the court, although the erroneous proceeding has been occasioned by the fault of the party in entering it up without having an enquiry into the damages. Howe's Practice 267; 1 Verm. R. 437, 8. When error will lie, or the party has any other remedy, it has been said that audita querela will not lie. 6 Dane 317, § 21. But this has been denied. If, however, the supposition were correct, that a writ of error could not be sustained here, because the omission of an enquiry into the damages is the wrongful act of the party, the complainant might be relieved, on motion, in the common pleas, where the judgment was rendered. According to Lister vs. Mundell, 1 B. & P. 427. relief might be had in that mode, even if this process would lie. 1 D. Chip. R. 391, acc.

There is certainly no occasion, therefore, for extending a remedy, which has fallen into disuse in the cases where it has been held to be applicable, to a case beyond the ordinary scope of it.