# Avery v. United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
79 U.S. 304
Avery v. United States
Conceding, for the purposes of this suit, that the order of the Circuit Court in the premises is a final judgment, within the meaning of the 22d section of the Judiciary Act, to review which a writ of error will lie, did the court err in the disposition it made of the case?
The lease of the house was authorized, if the owner of the property was voluntarily absent from it and engaged in the rebellion, and, as the Federal military forces during the term of the lease occupied Memphis, it is fairly to be inferred that Avery had abandoned his house under circumstances which warranted the officers of the government in taking possession of it; and the presumption is, in the absence of an averment in the petition to the contrary, that these officers discharged their duty, and paid into the treasury the money received by them for the rent of this property long before the suit against Avery was tried in the Circuit Court. If so, and the United States, on this account, were indebted to Avery (a point on which we express no opinion), it was the duty of Avery to plead this indebtedness by way of set-off, to the action brought against him. It is a familiar principle that no one can be relieved against a judgment, however unjust he may consider it, if he had a defence and, through his own fault, failed to present it. Avery is in this predicament. It will not avail him to say that he did not know, when the suit was tried, that the money was in the treasury, for it was his business to have informed himself on the subject. This he could easily have done, by communicating with the bureau of the Treasury Department where the accounts of the leases and sales of abandoned property were kept, and this inquiry would have resulted in obtaining evidence equally available for his purpose as that which accompanies his petition. It would lead to endless embarrassments in the administration of justice, if a party were permitted to reopen a judgment on the ground that he had a defence which he did not present, because ignorant of it, but which, the court can see, he could have known if he had used reasonable diligence to ascertain it. It is impossible to suppose that Avery, on his return to Memphis after the war, was not informed of the state of things concerning the occupation of his house during his absence, and yet he institutes no inquiry on the subject, and when subsequently sued by the United States for a large demand, allows it to pass into a judgment without the assertion of any claim for the use of his property. Under these circumstances he cannot be permitted to do, two years after the rendition of the judgment, what he should have done on the trial of the cause.
It follows, as the result of these views, that the Circuit Court did not err in overruling the motion to recall the execution and satisfy the judgment.
Nor did it err in refusing the writ of audit a querel a, because this writ does not lie, where the party complaining has had a legal opportunity of defence and has neglected it.
Besides audit a querel a is a regular suit in which the parties may plead and take issue on the merits, and cannot, therefore, be sued against the United States, as in England it could not against the Crown.
JUDGMENT AFFIRMED.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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