AUDITA QUERELA (Lat.).
In Practice. A form of action which lies for a defendant to recall or prevent an exe cution, on account of some matter occurring after judgment amounting to a discharge, and which could not have been, and cannot be, taken advantage of otherwise. 12 Mass. 270.
It is a regular suit, in which the parties ap pear and plead, 17 Johns. N. Y. 484 ; 12 Vt. 56, 435 ; 30 id. 420 ; 8 Miss. 103, and in which damages may be recovered if execu tion was issued improperly, Brooke, Abr. Damages, 38 ; but the writ must he allowed in open court, and is not of itself a super sedeas. 2 Johns. N. Y. 227.
It is a remedial process, equitable in its nature, based upon facts, and not upon the erroneous judgments or acts of the court. 2 Wins. Saund. 148, n.; 10 Mass. 103 ; 14 id. 448; 17 id. 159 ; 1 Aik. Vt. 363 ; 24 Vt. 211 ; 2 Johns. Cas. N. Y. 227; 1 Overt. Tenn. 425. And see 7 Gray, Mass. 206.
2. It lies where an execution against A has been taken out on a judgment acknow ledged by B without authority, in A's name, Fitzherbert, Nat. Brev. 233; and see Croke, Eliz. 233 ; and generally for any matters which work a discharge occurring after judg ment entered, Croke, Car. 443; 2 Root, Conn. 178; 10 Pick. Mass. 439; 25 Me. 304; see 5 Coke, 86 b; and for matters occurring before judgment which the defendant could not plead through want of notice or through collusion or fraud of the plaintiff. 4 Mass..
485; 5 Rand. Va. 639; 2 Johns. Cas. N. Y. 258.
It may be brought after the day on which judgment might have been entered, although it has not been, 1 Rolle, Abr. 306, 431, pl. 10; 1 111 xi. 111; either before or after execu tion has issued. Kirb. Conn. 187.
It does not lie for matter which might have been, or which may be, taken advantage of by a writ of error, 1 Vt. 433, in answer to a scare facial of the plaintiff, 1 Salk. 254, or where there is or has been a remedy by plea or otherwise. T. Raym. 89; 12 Mass. 270; 13 id. 453 ; 11 Cush. Mass. 35 ; 6 Vt. 243. See 17 Mass. 158.
3. In modern practice it is usual to grant the same relief upon motion which might be obtained by audita querela, 4 Johns. N. Y.
191 ;, 11 Serg. & R. Penn. 274; and in some of the states the remedy by motion has en tirely superseded the ancient remedy, 5 Rand. Va. 639; 2 Hill, So. C. 298; 6 Humphr. Tenn. 210 ; 18 Ala. 778; 13 B. Monr.
256; 3 Mo. 129; while in others audita que rela is of frequent use as a remedy recog nized by statute. 17 Vt. 118; 7 Gray, Mass. 206.