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

『« 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 nifi prius, and before the day in bank, the defendant cannot plead it, becaufe there is a verdict already in the caufe, and upon another plea; and therefore the cause is already determined, fo that he is put to his audita querela to hinder the execution of the judgment. 2 Lutw. 1143, 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 firft judgment is reverfed on the writ of error, an audita querela may be brought for relief against the fecond judg

ment.

So, if an action be brought against A. for a trefpafs committed fimul cum B. and judgment be obtained thereupon, and afterwards the plaintiff releafe B.-A. may have an audita querela on the releafe.

But if a fcire facias was brought on a judgment, and the defendant has a release and omits to plead it to the scire facias, he fhall not have an audita querela.

Where a defendant had matter which might have been pleaded to a fi. fa. and has loft the benefit of that by an award of execution upon a fcire feci returned, he is eftopped 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 fome fuch foreign matter, which ought to be pleaded.

If one be taken in execution, and afterwards fet at liberty by the plaintiff, and then taken again upon the fame execution, he may bring his audita querela to be enlarged, for the execution was difcharged; and being once difcharged, is difcharged for ever, and fuppofes a fatisfaction.

Judgment for 500l. against the ancestor who pays it, and dies, not having taken a release or deed upon the paymient. Refolved, that the heir may maintain an audita

querela

Of Profecuting an Audita Querela by the Defendant in the Suit.'

querela upon this payment, though no deed or fpecialty. Keb. 455.

An adminiftrator recovered in trover, counting of his own poffeffion after adminiftration committed, but before execution the adminiftration was revoked, and the defendant brought audita querela, and adjudged it lay. For though of goods in his own poffeffion he had no need to name himfelf adminiftrator; yet the goods here are affets, and he is chargeable as executor de fon tort after adminiftration repealed for the goods fo taken in execution. So, where baron and feme executrix recover, and the feme dies before execution, the baron fhall not have feire facias. Vide 2 Keb. 668. Cro. Car. 208, 227, 464.

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The plaintiff had a verdict in trefpafs against two, and after the day at nifi prius, and before the day in bank, in confideration of 107. releafed to one of the defendants On which the other defendant after the day in bank, but before judgment entered, to take advantage of the release, fued 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 nul tiel record, on which plea the plaintiff in audita querela moved, that the plaintiff in the original action might bring in the poftea and enter the judgment, or that he thould do it for him. Per cur. Let the plaintiff in, the original action enter his judgment within fuch a time as of the day in bank, or let it never be entered, and let the fuit on the audita querela ftay. Ranfere v. Meredith and Baker. Paf, 26 Car. 2. I Mod. 111.

The plaintiff, a feme fole, 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 inquifition thereon taken. But refufed by the court. And the defendant was left to his audita querela. Bunb. 283. The plaintiff, a feme fole, between interlocutory and before final judgment, married; and after the final judgment, the husband and wife brought a feire facias thereupon, for the defendant to fhew caufe quare ex. non, &c. And then the defendant moved to have the judgment fet afide; but the court refufed to do it on motion, and put him to his audita querela. Bunb. 282.

One lent money, and for fecurity accepted a judgment; the money was paid within a day or two after it became

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

due, and the party gave an acquittance, and promised to acknowledge fatisfaction, and this was proved before the fecondary; yet the plaintiff took the defendant in execution, and he remains in prifon. Per cur. The proper remedy is by audita querela; but let the plaintiff appear here next term, to fhew caufe why he should not acknowledge fatisfaction on record. Anon. Mich. 29 Car. 2.

If two executors fue execution for damages recovered by the teftator, where one hath released, an audita querela lies against both. Rol. Ab. 312.

If A. hath judgment againft B. for cofts and damages, and releases to B. all executions, and after B. brings a writ of error, and thereupon the judgment is affirmed, and further cofts given for the delay of execution, and A. takes B. in execution for the whole, upon an audita querela B. fhall be discharged quoad the damages and firft cofts, but not quoad the second cofts. Cro. Jac. 337. Rol. Rep. 11.

Of declaring, &c. in audita querela. Vide poff.

Of

Of procuring an Audita Querela by the Bail to the original Suit.

W

HEN bail bring audita querela to be relieved from a judgment or execution had against them to answer the debt of their principal; and the writ of audita querela is allowed, they have no occafion to put in bail, unless the bail are in execution.

Where judgment is had against bail upon a feire facias upon default of their principal, and afterwards the original judgment is reverfed, bail may be relieved by audita querela, for they have no other remedy, having no opportunity to plead it. 1 Rol. Abr. 308.

Judgment in debt against H. who died, not having fa tisfied the debt or rendered his body; a feire facias iflued 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 exoneretur which had been ordered to be entered by the court was not actually entered on the bail-piece [by the omiffion of the proper officer.] But the plaintiff himself was apprized of the furrender; though the attorney swore, that he, the attorney, had no notice of it.-The plaintiff's attorney not being apprized of the furrender of the principal fued out fcire facias's against the bail, who paid the money; but they were fued into London, where the original caufe of action was, and not into Middlefex, where the furrender was made, and where the bail-piece remained. Upon both these irregularities, viz. the plaintiff's being apprized of the furrender and order of the court; and 2dly, The fcire facias's being fued out into Middlefex, that the fcire facias's might be fet afide for irregularity, with cofts, and the money reftored. The court were clear as to both points, and made the rule abfolute for fetting the fcire facias's afide, and reftoring the money, but without cofts, as awarding cofts would have been to no purpofe;- the plaintiff, who was apprized of the furrender, being gone abroad; and the attorney who was not apprized not having acted with any defign to opprefs. Bond v. Ifaac. Burr. 4 pt. 409.

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Of the Process in Audita Querela.

was faid before, that the process upon an audita querela feire facias and a venire facias. The procefs of fcire facias is proper when the party suing the audita querela is in actual cuftody, or when the writ itfelf is founded on record.

The process of venire facias is proper when the party is not in cuftody, but only brings his audita querela quia timet, or when the writ itfelf is grounded on a matter of fact. Salk. 92. Carth. 303.

If the original fuit were by original writ, there fhould be fifteen days at least between the teste and return of the process iffued upon the allowance of the audita querela, and muft be returnable on a general return.

But if the original fuit were by bill (it feems) that fifteen days between the tefte of the firft fcire facias, and return of the fecond fcire facias, are fufficient.-i. e. Seven days between the teste and return of each writ, and not one ten and the other five.

And the writ fhould be returnable on a day certain in

term.

But even if the original fuit were by bill, and the process on the audita querela be a venire facias, I fhould apprehend that there ought to be fifteen days between the tefte and return of that writ; because the second procefs iffuing upon default thereto, is a diftringas.

The defendant in the audita querela fhould be warned to appear.

A. being taken in execution, brought an audita querela, tefted 21 Nov. a feire facias iffued and bore tefte the 6th Nov. The defendant appeared and demurred, and fhewed for cause, that the tefte of the feire facias was before the audita querela. Sed non allocatur, for here the fcire facias being but to compel the party to appear, and anfwer the audita querela, the appearance has helped the defect of the process; but upon a fire facias upon a judgment it may be otherwise, because another judgment is to be grounded upon it. Vaughan v, Lloyd, Hil. 20, 21 Car. 2,

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