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Of the Habeas Corpus ad faciendum et recipiendum, and herein of granting a Procedendo.

you can in fuch manner, according to the law and cuftom of England, as you fhall fee proper. Our faid writ to you thereupon firft directed to to the contrary in any thing notwithstanding.

Witness William earl of Mansfield, &c.

Stormont and Way.

Upon carrying the writ of procedendo to the fecondary of the court to which it is directed, and filing it, the court inftantly reaffumes the jurifdiction of the cause, which can never afterwards be taken from them again before judg

ment.

As the writ of habeas corpus removes all the caufes that were in the court against the defendant, the writ of procedendo remands all back again.

Of

368

A

Of Audita Duerela.

N audita querela is a writ to give relief against a judg ment or execution awarded, or likely to be awarded against the party, by fetting the fame afide upon fome ground of injuftice pointed out to the court.

If there is any other remedy at law, either by plea or otherwife, an audita querela does not lay, except in one or two inftances in which the party has his election of this or another remedy.

An audita querela is an action, and is in the nature of a bill in equity to be relieved against the oppreffion of the plaintiff. The writ ftates that the complaint of the defendant hath been heard audita querela defendentis, and then fetting out the matter of the complaint, it at length enjoins the court to call the parties before them; and having heard the allegations and proofs, to caufe juftice to be done between them.

It alfo lies to relieve bail in fome cafes, and is a writ of a most remedial nature, and feems to have been invented, left in any cafe there fhould be an oppreffive defect of justice, where a party has a good defence, but by the ordinary forms of law had no opportunity to make it. But the indulgence now fhewn by the courts in granting a fummary relief upon motion, in cafes of evident oppreffion, has almost rendered the writ of audita querela useless, and driven it quite out of practice. However, as there are a few cafes in which this must still be the remedy, fome short account of the proceedings therein cannot be altogether unneceffary.

*

* For it has been held, that relief may be granted on motion in cafes proper for audita querela, where it is not grounded on foreign matter, as a release, &c. Ld. Raym. 439. Barnes 277.

4

Out

Out of what Court the Writ iffues.

N audita querela fhall be granted out of the court, where the record upon which it is founded remains, or returnable in the fame court. F. N. B. 105.b.

And therefore, if a man recovers in B. R. or C. B. the defendant having a release after judgment and before execution, fhall fue the audita querela out of B. R. or C. B. where the record is. Ibid.

And if a recognizance is acknowledged, and there is a release of it, and then execution be fued on it, the party to be relieved fhall fue his audita querela out of the fame court. Ibid.

And fuch audita querela out of the rolls of the fame court is judicial. Ibid.

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But it may be original, and the party may fue it out of Chancery returnable in the court where the record remains. Ibid.

But it cannot be granted out of any court, returnable in the fame court, where the record upon which it is founded is not there. Ibid.

The writ of audita querela fhall be allowed only in open court. 1 Bulf. 140. 2 Bulf. 97. 2 Show. 240. And on motion by Trin. 9 fac. 1. And therefore, when the curfitor has written the writ, an allocatur fhall be indorfed by the fecondary in court.

So if it be irregularly granted, a vacat' fhall be entered upon the record. Mo. 354.

VOL. II.

Bb.

Of

Of Profecuting an Audita Querela by the De

fendant in the Suit.

T was faid, before that an audita querela lies to relieve the

and alfo that it lies to relieve bail when judgment is had against them upon a faire facias to anfwer the debt of their principal; but as the proceedings in the two cafes fome-, what differ, I fhall first treat of the audita querela by the defendant himicif.

In all cafes it is ufual, that the plaintiff in an audita querela be bailed, if he fhews matter in writing for his dif charge, and the defendant be demanded whether he can gainfay it. 1 Rol. 133, 384. 2 Rol. 113. 1. 5.

If the plaintiff in audita querela has a release or other writing upon which his audita querela is founded, the fame must be proved in court by the witnefles thereto, before the writ of audita querela can be allowed, or a fuperfedeas granted, I Sid. 35.

And then, after proof of fuch release, &c. and allowance of the writ, if he be not in execution he may be bailed by the court, and on motion may have a fuperfedeas, Com. Dig. I vol. 489. Salk. 92.

But if the plaintiff in audita querela be in execution, he cannot be bailed till the defendant plead to the audita querela. Comp. Att. 214

But where an infant was taken in execution and brought an audita querela, he was difcharged on clearly proving his infancy. Carth. 278.

If an audita querela be founded on record, or the party be in cuftody, the procefs upon the audita querela, when allowed, is a feire facias-But if the audita querela is grounded on a matter of fact, or the party be not in cuftody, but only brought quia timet, the procefs on the audita querela when allowed, &c. is a venire facias; and on default thereto, a diftingas ad infinitum. Salk. 92.

If brought by one in execution, the fcire facias is the procels. Carth. 303.

An audita querela is no fuperfedeas of itself, and therefore execution may be taken out, unless a fuperfedeas be actually fued upon the allowance of the writ of audita querela. Salk. 92.

If the first writ of audita querela abate, upon a fecond purchased, he may have another fuperfedeas. F. N. B. 104. R.

Of Profecuting an Audita Querela by the Defendant in the Suit,

If one in execution is admitted to bail upon bringing an audita querela, he must procure four perfons to be bail for him. The bail-piece is in this form:

Eafter term, in the twentieth year of king George
the third.

To wit, C. D. of &c. is delivered on bail to pro-
fecute, with effect, a writ of audita querela
brought by him to be difcharged of and from
a judgment given against him in the court of
our lord the king, before the king himself, at the
fuit of one A. B. for five hundred pounds of
debt, and for damages, cofts, and charges, to

E. F. of, &c.

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YOU feverally acknowledge yourselves to owe A. B. the fum of one thousand pounds

Upon condition that the faid C. D. fhall profecute his fuit with effect, and if he fhall be convicted or make default in the premifes, that he fhall pay the condemnation money, or you fhall do it for him. Are you content?

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