AUDITA QUERELA (Lat.). A form of action which lies for a defendant to recall or prevent an execution, on account of some matter occurring after amounting to a discharge, and which could not have been, and cannot be, taken advantage of otherwise. Thatcher v. Gammon, 12 Mass. 268. If in a justice's suit the defendant is out of the state at the time of the service of the writ and remains away until after the return day and has no notice of suit, judg ment by default may be set aside by audits guerela; Sawyer v. Cross, 65 Vt. 158, 26 Atl. 528; but not unless the action was on its face appealable; Sawyer v. Cross, 66 Vt 616, 30 Atl. 5.
It is a regular suit in which the parties appear and plead ; Brooks v. Hunt, 17 Johns. (N. Y.) 484; Gleason v. Peck, 12 Vt. 56, 36 Am. Dec. 329 ; Clark v. Hydraulic Co., 12 Vt 435; Melton v. Howard, 7 How. (Miss.) 103; Avery v. V. S., 12 Wall. (U. S.) 305, 20 L Ed. 405; and in which damages may be re covered if execution was issued improperly; Brooke, Abr. Damages 38; but the writ must be allowed in open court, and is not of itself a supersedeas; Emery v. Patton, 9 Phila. (Pa.) 125.
It is a remedial process, equitable in its nature, based upon facts, and not upon the erroneous judgments or acts of the court; 2 Wms. Saund. 148, n.; Lovejoy v. Webber, 10 Mass. 103 ; Brackett v. Winslow, 17 Mass. 159; Little v. Cook, 1 Aik. (Vt.) 363, 15 Ale. Dec. 698; Porter v. Vaughn, 24 Vt 211.
It lies where an execution against A has been taken out on a judgment acknowledged by B. without authority, in A's name; Fitzh. N. B. 233; and see Cro. Eliz. 233; and gen erally for any matters which work a dis charge occurring after judgment entered; Cro. Car. 443; Pettit v. Seaman, 2 Root (Conn.) 178; Com. v. Whitney, 10 Pick. (Mass.) 439; see 5 Co. 86 b ; and for mat ters occurring before judgment which the defendant could not plead through want of notice or through collusion or fraud of the plaintiff ; Johnson v. Harvey, 4 Mass. Smock v. Dade, 5 Rand. (Va.) 639, 16 Am. Dec. 780; Wardell v. Eden, 2 Johns. Cas. 258; Williams v. Butcher, 1 W. N. C. (P•) 304.
It may be brought after the day on which judgment might have been entered, a though it has not been ; 1 Rolle, Abr. 306,
431, p1. 10 ; 1 Mod. 111; either before or aft er execution has issued ; Lothrop v. Bennet, Kirb. (Conn.) 187.
It does not lie for matter which might have been, or which may be, taken advan tage of by a writ of error ; Sutton v. Tyrrell, 10 Vt. 87; in answer to a aoire Maas of the plaintiff ; 1 Salk. 264; nor where there is or has been a remedy by plea or otherwise; T. Raym. 89; Thatcher v. Gammon, 12 Mass. 270 ; Barrett v. Vaughan, 6 Vt. 243; Avery v. U. S., 12 Wall. (U. S.) 305, 20 L. Ed. 405; nor where there has been an agreement to accept a smaller sum in payment of a larger debt, while any part of the agreement con tinues executory ; Keen v. Vaughan's Ex'x, 48 Pa. 477; nor to show that a confessed judgment was to be collateral security only ; Emery v. Patton, 9 Phila. (Pa.) 125 ; nor where a judgment is erroneous in part with out a tender of the legal part of the judg ment; Rickard v. Fisk, 66 Vt. 675, 30 Atl. 93; nor against the commonwealth; Com. v. Berger, 8 Phila. (Pa.) 237.
In modern practice it is usual to grant the same relief upon motion which might be ob tained by audita querela; Baker v. Judges, 4 Johns. (N. Y.) 191; Witherow v. Keller, 11 S. & R. (Pa.) 274; and in some of the states the remedy by motion has entirely supersed ed the ancient remedy ; Smock v. Dade, 5 Rand. (Va.) 639, 16 Am. Dec. 780 ; Long worth v. Screven, 2 Hill (S. C.) 298, 27 Am. Dec. 381; Marsh v. Haywood, 6 Humphr. (Tenn.) 210; Dunlap v. Clements, 18 Ala. 778; Chambers v. Neal, 13 B. Monr. (Ky.) 256; while in others audita querela is of frequent use as a remedy recognized by statute; Sawyer v. Cross, 66 Vt. 616, 30 Atl. 5; Rickard v. Fisk, 66 Vt. 675, 30 Atl. 93; Stone v. Chamberlain, 7 Gray (Mass.) 206; Foss v. Witham, 9 Allen (Mass.) 572.
"Audita querela was given quite recently, that is to say in the tenth year of the in Parliament, . . . and it was never given before" Y. B. 18 Edw. III, Rolls Se ries, p. 308. See Jac. L. Diet. ; Fitzh. N. B. 102 ; Register of Writs, vol. 1, pp. 149, 150 (for the writ itself).