audita querel

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 or
perhaps actually in execution,) grounded on some matter of discharge which
happened after the judgment, and not upon any matter which might have been
pleaded 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 of
the opposite party, and not upon the erroneous judgments or acts of the
court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will therefore, where the
cause 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 which
the equitable rights of the parties will be considered. 10 Mass. 101; 14
Mass. 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, in
the 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 in
Virginia, 5 Rand. 639, and South Carolina, 2 Hill, 298; the summary remedy,
by motion, has superseded this ancient remedy. In Pennsylvania this writ. It
seems, may still be maintained, though relief is more generally obtained on
motion. 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. 425
2 John. Cas. 227 1 Root; 151; 2 Root, 178; 9 John. 221 Bouv. Inst. Index,
h.t.