#### Collins Lovejoy *versus*James Webber.

Where a debtor, after the service of an original writ upon him, and before its return, satisfied the demand; yet the creditor afterwards entered the action, recovered judgment, and caused his execution to be levied on the debtor’s property; it was holden that the debtor was entitled to his writ of *audita querela.*

This was a writ of *audita*querela, in which the plaintiff sets forth that, on the 21st day of January, 1809, he gave the defendant his promissory note for 40 dollars, payable in sixty days from the date; that on the 1st day of August following, the defendant sued out a writ against him on the said note, returnable on the third Tuesday of November then next, which was duly served; that after the service of said writ, *viz.,*on the 8th day of September, 1809, the plaintiff paid to the defendant, and the defendant received, the sum of 41 dollars, in full satisfaction of the said note, and in discharge of said action; that, nevertheless, the defendant, contriving and intending to vex and greatly to injure the plaintiff, covinously returned his said writ, entered his said action, recovered judgment, on default, for the sum of 41 dollars 78 cents, damage, with costs taxed at 9 dollars 24 cents, and afterwards, of his [*102] * fraud and covin aforesaid, on the 9th of December, sued out his writ of execution, delivered it to a deputy sheriff, who afterwards levied it upon the property of the plaintiff. Wherefore the plaintiff prays that he may be discharged from the execution aforesaid, so fraudulently obtained against him, and be restored to the property so thereon taken.

The defendant demurred to the writ, and assigned for cause that the plaintiff has no right to maintain this action, inasmuch as it appears that the matter alleged as the cause of complaint, *viz.,*the payment of the money, might have been pleaded by said *Lovejoy*in bar to the said action ; and his remedy, if any, should have beer by a writ of review, and not by this writ of *audita querela.*

The plaintiff joined in demurrer.

*Whitman*in support of the demurrer.

The very definition of the writ of *audita querela*shows that it will not lie for relief against any supposed wrong, which might have been pleaded to the action; and for this good reason, that it was the plaintiff’s own fault. (1) The statute of reviews (2) provides expressly for the case which the plaintiff has disclosed in his writ, and is an abundant remedy. It is true the writ of *audita querela*lies to avoid a judgment oi *113award of execution, in cases where the party had no day in court, as in the cases of statute merchant and staple in *England,*and perhaps, also, upon a recognizance before a justice here, by virtue of our statute of 1782, c. 21; but not where the party has another sufficient remedy at law.

*Todd*for the plaintiff.

(1)

*Bac. Abr., Aud. Quer.*

(2)

*Stat.*1788, c. 11, § 2.

Sewall, J.,

delivered the opinion of the Court.

To a writ of *audita querela,*the defendant appears and pleads by demurring to the writ, with these special causes assigned; — that the matter alleged as the cause of complaint might have been pleaded in bar-; and, 2dly, because the plaintiff’s remedy, if any he has, is not by *audita querela,*but by a review, which, upon petition, ac cording to the late statute, the Court would authorize. The demurrer * having been joined by the plaintiff, the [ * 103 j process and the complaint, as confessed by the demurrer, - are before us, to be sustained or dismissed; and if sustained, we are to afford such relief in the grievance complained of as justice requires.

As to the last exception to this writ, the defendant’s counsel have not placed much reliance upon it, and no authority has been cited in support of it. The authorities are clearly otherwise. An *audita querela*being at common law, it is not taken away or abolished by a concurrent remedy, if any suitable to the case had been provided ; and certainly a remedy by right is not excluded by a provision for a remedy, to be permitted on petition; which proceeds upon the supposition that the applicant has no means of redress in the ordinary course of law.

But it is not correct to say that an *audita querela*is to be sustained only where there is no other remedy. It is a concurrent remedy with others; as in cases where redress may be had by summary proceedings on motion, the party is sometimes put to his *audita querela,*because material facts are controverted, which the Court will not undertake to decide. (3), *(a)*

The statute (4) which directs the forms of proceeding in *audita querela*has left the question of the cases, in which it is a suitable remedy, to be determined by rules and precedents at common law.

The remedy is said to be in the nature of a bill in equity. An allegation of fraud and deceit seems to be essential, and the case supposed must be one where legal process has been abused, and injuriously employed to purposes of fraud and oppression. *114But allegations of abuse are not to be heard as a ground of complaint, where the party complaining has already had a legal opportunity of defence; or when the injury, if any has been sustained, is to be attributed to his own neglect; for, otherwise, legal proceedings would be endless. It is a rule, therefore, that an [*104] *audita** *querela*does not lie, where the party has had time and opportunity to take advantage' of the matter which discharges him, and haa neglected it. (5), (b)

It lies, however, where a man satisfies a judgment, and afterwards is taken in execution ; or while a writ of error is pending, if the plaintiff releases all executions, yet affirms the judgment, and takes out execution; so if, after a verdict at *nisi prius,*and before the day in bank, the party obtaining releases all actions and demands to the party charged by the verdict, yet afterwards takes judgment upon it, and sues out execution. These are cases not within the rule; and yet in all of them there may be perceived a possible interval or opportunity for redress ; as upon motion to the court, if the party, finally injured by the execution, had been aware of his danger at some earlier period of the proceedings fraudulently managed against him. And the case at bar seems to be within these precedents.

If the facts averred in the writ are true, and these are now to be understood as confessed, the plaintiff in this action, — defendant in the action wherein a judgment, as he alleges, has been fraudulently recovered against him, — had no opportunity of pleading the payment or discharge of the demand which he had adjusted. Before judgment was entered, indeed, the adjustment had been made, but with an understanding that the suit was thereby finally compromised, and was to be discontinued by the care of this defendant. In this the plaintiff was deceived; but the present defendant is not to avail himself of this fraud, which is pointedly, and, as he has confessed, truly alleged against him.

Upon the whole, the Court sustain the writ and declaration. These are adjudged good and sufficient; and the plaintiff is to have judgment upon the defendant’s demurrer, unless other cause is shown, (c)

ADDITIONAL NUIL.

[See *Clark*vs. Freeman, 5 *Verm.*122.

When a party has had a legal opportunity of defence, or suffers injury from his own negligence, an *audita querela*does not lie. — *Barrett*vs. Vaughan, 6 *Verm.*243

*115It is the proper remedy, where a defendant has been committed on execution after the plaintiff's death. — *Com.*vs. Whitney, 10 *Pick.*439.

In *South*Carolina, this remedy has been superseded by that of a summary motion to the court. — *Longworth*vs. Screven, 2 Hill, 298. — And see *Durand*vs. Halback, 1 *Miles,*46.

So in *England,*where the case is clear—not otherwise. — *Symons*vs. *Blake*4 *Dowl P. C.*263. — *Baker*vs. *Ridgway,*2 *Bing.*41. — F. H.]

(3)

*Com. Dig.,*tit. *Aud. Quer.*D.—2 *Str.*1198.

(a)

*[Brackett*vs. Winslow, 17 *Mass. Rep.*158. — Sed vide *Marsel., Mud. Quer.*100. — 2 *Sound.*148, a.— *Young*vs. *Collet, T. Ray.*89. — Ed.]

(4)

1 *Stat.*1780, c. 47

(5)

 1 *Rol.*306. — *T. Raym.*89. — 1 *Sid.*43.

(b)

6) *[Thatcher*vs. Gammon, 12 *Mass. Rep.*270.— Ed.]

(c)

*[Brooks*vs. Hunt, 17 *Johns. Rep.*487. — *Wardell*vs. Eden, 2 *Johns. Cos.*261. — *Baker*vs. *Judges Ulster Com.*Pl. *Johns. Rep.*191. — Ed ]