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Of Prosecuting an Audita <%uerela. hy. the Defendant in. the Suit.
i An audita querela lies not after judgment upon a matter which might have been pleaded before, but where the party was condemned, and had no day .in court to plead it, an. audita querela lies. Cro. El. 25.
As if a release be' given after the day of nisi prius, and before the day in bank, the desendant cannot. plead it, because there is a verdict a]ready in. the cause, and upon another plea; and therefore the cause is already determined, so that he is put to his audita querela to hinder the execution of the judgment. 2 Lutw. 114.3, 1174.
If on a judgment and a' writ of error brought, the plaintiff in the original action brings debt on the judgment, and recovers a judgment thereon, and afterwards the first judgment is reversed on the writ of error, an audita querela may'be 'brought for relief against the second judgment.
So, if an action be brought against A. for a trespass commi ttedJimul cum B. and judgment be obtained thereupon, and afterwards the plaintiff release B.—A. may have an audita que>ela on the release.
But jf a fare facias was brought on a judgment, and the desendant has a release and omits to plead it to the/are facias, he shall not have an audita querela.
Where a desendant had matter which might have been pleaded to a si. fa. and has lost the benefit of that by an award of execution upon z.fcire fec i returned, he is estopped for ever, and can never have an opportunity to take advantage thereof again: but if it was an award of execution upon two nihils returned, he may be relieved by bringing an audita querela: And the court will not even drive him to that, but relieve him on motion, unless the ground of his audita querela be a release, or some such foreign matter, which ought to be pleaded.
If one be taken in' execution, and afterwards set at liberty by the plaintiff, and then taken again upon the same execution, he may bring his audita querela to be enlarged, for the execution was discharged; and being once discharged;- h discharged forever, and supposes a satissaction •-"
\ Judgment for 500/. against the ancestor who pays it, awl dies, not having taken a release or deed upon the payment. Resolved, that the heir may maintain an audita
Os Prosecuting zn-Audita Querela by the Defendant in the Suit.'
querela upon this payment, though no deed or specialty. 2 J&*. 455. .....
'An administrator recovered in trover, counting of his own possession after administration committed, but before execution the administration was revoked, and the desendant brought audit a quertla, and adjudged it lay. For though or goods in his own possession he had no need to name himself administrator; yet the goods here are assets, and he is chargeable as executor deson tort after administration repealed for. the goods so taken'in execution.—So, where baron and feme executrix recover, and the feme dies before execution, the baron (hall not have fire facias. Vide 2 Kcb, 668. Cro. Car. 208, 227, 464.
The plaintiff had a verdict in trespass against two, and after the day at riisiprius, and before the day in bank, in consideration of 10/. released to one of the. desendants — On which the other desendant after the day in bank, but before judgment entered, to take advantage of the release, sued out an audita querela, put in bail, and declared as of the judgment entered.—The plaintiff in the original action to the declaration in audita querela pleaded md tiel record, on which plea the plaintiff in audita querela moved, that the plaintiff in the original action might bring in the po/lea and enter the judgment, or that he should do it for him. Per cur. Let the plaintiff in. the original action enter his judgment within such a time as of the day in bank, or let it never be entered, and let the suit on the audita querela stay. Ranfere v. Meredith and Baker. Pas. 26 Car. 2. I Mod. 111.
The plaintiff, a feme sole, married after the interlocutory judgment, and before executing the writ of enquiry; and it was now moved to set aside the writ of enquiry,' and the inquisition thereon taken. But resused by the court. And the desendant was left to his audita querela. Bunb. 283.
The plaintiff, a feme sole, between interlocutory and before final judgment, married; and after the final judgment, the husband and wife brought a feire facias thereupon, lor the desendant to shew cause quart ex. non, &c. And then the desendant moved to have the judgment set a/idp j but the court refused to do it on motion, an J put him to his audita querela. Bunb. 282.
One lent money, and for security accepted a judgment; the money was paid within a day or two after it became
B b 3 due,
Of Prosecuting an Audita g>gerela by the De-r fendant in the Suit.
due, and the party gave an acquittance, and promised to acknowledge satissaction, and this was proved before the secondary; yet the plaintiff took the desendant in execution, and he remains in prison. Per cur. The proper remedy is by audita querela; but let the plaintiff appear here next term, to shew cause why he should not acknowledge satissaction on record. Anon. Mich. 29 Car. 2.
If two executors sue execution for damages recovered by the testator, where one hath released, an audita querela lies against both. Rot. Ab. 312.
If A. hath judgment against B. for costs and damages, and releases to B. all executions, and after B. brings a writ of error, and thereupon the judgment is affirmed, and further costs given for the delay of execution, and A. takes B. in execution for the whole, upon an audita querela B, shall be discharged quoad the damages and first costs, but not quoad the second costs. Cro. Jae. 337. Rol. Rep. II.
*5> Of declaring, bfe. In audita qutrik. Vide soft.
Of procuring an Audita Querela by the Bail to the original Suit.
WHEN bail bring audita qucela to be relieved from a judgment or execution had ajainft them to answer the debt of their principal; and the writ of audita qunela is allowed, they have no occasion to put in bail, unless the bail are in execution.
Where judgment is had against bail upon a feire facias upon desault of their principal, and afterwards the original judgment is reversed, bail may be relieved by audita querela, for they have no other remedy, having no opportunity to plead it. I Rcl. Abr. 308.
Judgment in debt against H. who died, not having sa*tisfied the debt or rendered his body; a feire facias i stued against the bail ; and after two nibils, execution was awarded, whereupon they brought an audita querela; and because no ca. fa. had been awarded against H. they had judgment. Cro. El. 597.
The exonerctur which had been ordered to be entered by the court was not actually entered on the bail-piece [by the omission of the proper officer.] But the plaintiff himself was apprized of the surrender; though the attorney swore, that he, the attorney, had no notice of it.—The plaintiff's attorney not being apprized of the surrender of the principal sued out feire facias's against the bail, who paid the money; but they were sued into London, where the original cause of action was, and not into Middlesex, where the surrender was made, and where the bail-piece remained. Upon both these irregularities, viz. the plaintiff's being apprized of the surrender and order of the court; and 2dly, The fcirt facias's being sued out into Middlesex, that the feire facias''s might be set aside for irregularity, with costs, and the money restored.—The court were clear as to both points, and made the rule absolute for setting the feire facias's aside, and restoring the money, but without costs, as awarding costs would have been to no purpose; — the plaintiff, who was apprized of the surrender, being gone abroad; and the attorney who was not apprized not having acted with any design to oppress. Bond v. Isaac. Burr. 4. ft. 409.
Of the Process in Audit a Querela.
IT was said before, that the process upon an audit a querela is of two sorts, viz. a scire facias and a venire facias.
The procefs of scire facias is proper when the party suing the audita querela is \a actual custody, or when the writ itself is founded on record.
The procefs of venire facias is proper when the party is not in custody, but only brings his audita querela quia times, or when the writ itself is grounded on a matter of sact. Sali. 92. Cartb. 303.
If the original suit were by original writ, there should be fifteen days at least between the le/le and return of the procefs islued upon the allowance of the audita querela, and must be returnable on a general return.
But if the original suit were by bill (it seems) that fifteen days between the test* of the first scire facias, and return of the second scire facias, are sufficient.—i. e. Seven days between the tejle and return of each writ, and not one ten and the other five.
And the writ should be returnable on a day certain in term.
But even if the original suit were by bill, and the procefs on the audita querela be a venire facias, I should apprehend that there ought to be fifteen days between the tejle and return of that writ; because the second procefs issuing upon desault thereto, is a distringas.
The desendant in the audita querela should be warned to appear.
A. being taken in execution, brought an audita querela, tested 2\/l Nov. a scire facias ifsued and bore tejle the btb Nov. The desendant appeared and demurred, and shewed for cause, that the tejle of the scire facias was before the audita querela. Sed non allocatur, for here the scire facias being but to compel the party to appear, and answer the audita querela, the appearance has helped the desect of the procefs; but upon a fire facias upon a judgment it may be otherwise, because another judgment is to be grounded upon it. Vaughan v. l.loyd% Hil. 20, 21 Car, 2,