AUDITA QUERELA

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AUDITA QUERELA

AUDITA QUERELA. A writ applicable to the case of a defendant against whom a judgment has been recovered, (and who is therefore in danger of execution orperhaps actually in execution,) grounded on some matter of discharge whichhappened after the judgment, and not upon any matter which might have beenpleaded as a defence to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm. 243;Bac. Ab. h.t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252. 2. It is a remedial process, which bears solely on the wrongful acts ofthe opposite party, and not upon the erroneous judgments or acts of thecourt. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will therefore, where thecause of complaint is a proper subject for a writ of error. 1 Verm. 433,491; Brayt. 27. 3. An audita querela is in the nature of an equitable suit, in whichthe equitable rights of the parties will be considered. 10 Mass. 101; 14Mass. 448 2 John. Cas. 227. 4. An audita querela is a regular suit, in which the parties may plead,take issue, &c. 17 John. 484. But the writ must be allowed in open court,and is not, of itself, a supersedeas, which may or may not be granted, inthe discretion of the court, according to circumstances. 2 John. 227. 5. In modern practice, it is usual to grant the same relief, on motion,which might be obtained by audita querela: 4 John. 191 11 S. & R. 274 and inVirginia, 5 Rand. 639, and South Carolina, 2 Hill, 298; the summary remedy,by motion, has superseded this ancient remedy. In Pennsylvania this writ. Itseems, may still be maintained, though relief is more generally obtained onmotion. 11 S. & R. 274. Vide, generally, Pet. C. C. R. 269; Brayt. 2 or, 28;Walker, 66 1 Chipm. 387; 3 Conn. 260; 10 Pick. 439 1 Aik. 107; 1 Overt. 4252 John. Cas. 227 1 Root; 151; 2 Root, 178; 9 John. 221 Bouv. Inst. Index,h.t.

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