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Of the Habeas Corpus ad faciendum et recipiendum, and herein of granting a Procedendo.
you can in such manner, according to the law and custom of England, as you shall see proper. Our said writ to you thereupon first directed to to the contrary in any thing notwithstanding.
Witnefs William earl of Mansfield, &c.
Stormont and Way.
Upon carrying the writ of procedendo to the secondary of the court to which it is directed, and filing it, the court instantly reassumes the jurisdiction of the cause, which can never afterwards be taken from them again before judgment.
As the writ of habeas corpus removes all the causes that were in the court against the desendant, the. writ of procedendo remandj all back again.
AN audita querela is a writ to give relief against a judgment or execution awarded, or likely to be awarded against the party, by setting the same aside upon some ground of injustice pointed out to the Court.
If there is any other remedy at law, either by plea or otherwise, an audita querela does not lay, except in orie or two instances 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 oppression of the plaintiff. The writ states that the complaint of the defendant hath been heard audita querela defendentis, and then setting 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 cause justice to be done between them.
It also lies to relieve bail in some cases, and is a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an oppressive desect of justice, where a party has a good desence, but by the ordinary forms of law had no opportunity to make it. But the indulgence now shewn by the courts in granting a summary relief upon * motion, in cases of evident oppression, has almost rendered the writ of audita querela useless, and driven it quite out of practice. However, as there are a sew cases in which this must still be the remedy, some short account of the proceedings therein cannot be altogether unnecessary.
* 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. Li. Raym. 439. Barnes 277.
Out of what Court the Writ issues.
AN audita querela shall be granted out of the court, where the record upon which it is founded remain?, of returnable in the same court. F. N. B. 105. b.
'And therefore, if a man recovers in B. R. or C. B. the desendant having a release after judgment and before execution, shall sue 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 sued on it, the party to be relieved shall sue his audita querela out of the same court. Ibid.
And such audita querela out of the rolls of the same court is judicial. Ibid.
But it may be original, and the party may sue 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 same court, where the record upon which it is founded is not there. Ibid.
The writ of audita querela shall be allowed only in open court. 1 Buls. 140. 2 Buls. 97. 2 Show. 240. And on motion by Trin. 9 J ac. I. And therefore, when the cursitor has written the writ, an allocatur shall be indorsed bv the seesndary in court.
So if it be irregularly granted, a vacat' shall be entered upon the record. Mo. 354.
Of Prosecuting an Audita Querela by the Defendant in the Suit.
IT was said, before that an audita quertla lies to relieve the defendant after judgment and execution against him~aud also that it lies to relieve bail when judgment is had against them upon a /lire facias to answer the debt of their principal j but as the proceedings in the two cases somewhat differ, I shall first treat of the audita querela by the defendant himself..
In a'.i cases it is usual, that the plaintiff in an audita querela be bailed, it he shews matter in writing for his discharge, aud the desendant be demanded whether he can gainsay it. i Ral. 133, 384. 2 Rol. 113. /. 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 me witnesses thereto, before the writ of audita querela can be allowed, or a supersedes: granted. I Sid. 351.
And then, after proof of such 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 superseded*. Com. Diir. I vol. 489. Salk. 92.;
But if the plaintiff in audita querela be in execution, he cannot bs bailed till the desendant plead to the audita quevela. Comp. Att. 2 J 4.
But where an infant was taken in execution and brought an audita querela, he was discharged on clearly proving his insancy. Cart h. 278.
If an audita querela be founded on record, or the party be in custody, the process upon the audita querela, when allowed, is a sdrefacias—But if the audita querela is grounded on a matter of faiJ, or the party be not in custody, but only brought quia timet, the process on the audita querela when allowed, £$c. is a venire facias; and on desault thereto, a dis bin gas ad infinitum. Salk. 02.
If brought by one in execution, thescirefacias is the process. Carth. 303.
An audita querela is nosuperfedeas of itself, and therefore execution may be taken out, unless a supersedeas be actually sued upon the allowance of the writ of audita querela. Salk. 92.
If the first writ of audita querela abate, upon a second purchased, he may have adather supersedeas, F.ltJ. B. 104. R.
©f Prosecuting an Audit a Ztyerela by the Defendant in the Suit.
If one in execution it admitted to bail upon bringing an audha querela, he must procure four persons to be bail for him. The bail-piece is in this form:
Easter term, in the twentieth year of king George
To wit, C. D. of &c. is delivered on bail to pro-
The condition of the recognizance.
Y OU severally acknowledge yourselves pa owe A. B. the sum of one thousand pounds—
Upon condition that the said C. D. shall prosecute his suit with effect, and if he shall be convicted or make desault in the premises, that he (ball pay the condemnation money,or you shall do it for h m.
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