Thomas Coffin vs. Peter F. Ewer & another, 5 Met. 228

Dewey, J. The writ of audita querela is of a remedial na ture, and is said to have been invented principally to relieve a party who has a good defence, but is too late to make it in the ordinary form of proceeding. 3 Bl. Com. 405. Com. Dig. Audita Querela, A. It is also said, that the practice of the courts, in granting

summary relief on motion, in most cases proper for proceeding by audita querela, has almost rendered it useless and unnecessary in modern times. 2 Saund. 148 c, note. Such being the case, it is not strange that we find comparatively so little learning on the subject, in recent works, or meet with but few modern decisions on the appropriate office of this writ, or who are properly made parties to a suit of this nature. In Massachusetts, this form of proceeding still remains in practice, and has the direct sanction of legislative authority. Rev. Sts. c. 112.

But though recognized by our statutes, as an existing legal remedy, we are left to look elsewhere for the cases in which it is an appropriate remedy, as well as for the rules of law as to parties. From the nature of the writ, and its ordinary purpose, it indicates a proceeding in a case which has been the subject of a judicial decision, or judgment in a court of law, and where the defendant in the original suit will be unjustly deprived of his rights, if the judgment or execution fas the case may be,) is allowed to be treated as valid.

It was, by common law, and is also by statute, a local action, when brought to set aside a judgment or vacate an execution ; being required to be brought in the same court in which the judgment was rendered; thus resembling a proceeding by writ of scire facias. There is a provision for a bond to be given by the debtor, in case of release from imprisonment under the process, to the party defendant ; and this seems to assume, or strongly to indicate, that the person who is the defendant in this writ is none other than the creditor himself.

And practically it will be found, almost without exception, that the writ of audita querela has been instituted by the judgment debtor against the creditor, and against him alone ; and this has been the usual form, where the party was actually imprisoned on execution. The cases in Massachusetts, so far as reported, are all between these parties exclusively. I am not aware of any reported case in the courts of any State in the Union, where the same is not the fact.

The English cases are very few, if any can be found besides the single case reported in Mo. 57, where this process has been instituted against the officer who levied the execution. We do not, however, find it necessary to express an opinion whether this process may not, under any circumstances, lie against the officer ; as, for instance, against an officer having the judgment debtor in his actual custody, and where the debtor seeks immediate relief from such custody, he not having been committed to prison. The present is not such a case.

The declaration states a recovery of a judgment by Ewer, an execution issued thereon,' a service of the execution by Gardner, the deputy sheriff, on the fourteenth day of August, by arrest of the plaintiff, and a commitment, on the next day, to the county jail. After the commitment, the party was in the custody, not of the deputy sheriff who served the execution, but of the jailer, and thus remained until after the 6th of December following, when he sued out the present writ of audita querela. It will be perceived that nearly four months had elapsed from the time of his com mitment to jail.

With his commitment, all the deputy sheriff’s authority over him ceased, and he had neither the power of continuing the imprisonment, nor of discharging the debtor therefrom. Clearly therefore the proceeding by audita querela, in the present instance, against the officer, cannot have its foundation in the fact that the debtor was in the custody of the officer, and that the object of the process, as against him, was to obtain relief from an unlawful imprisonment. As respects the officer, the process cannot be sustained on this ground.

It is, as respects him, to all purposes a mere action to recover damages for trespass and false imprisonment. The ordinary remedy for such grievance was open to the debtor, and .there was no necessity of resorting to this peculiar process merely to obtain satisfaction for an illegal arrest and imprisonment. If, however, the law has given the party this additional remedy, we admit that the fact of his having another mode of redress would be of no moment, and the party might take his election which remedy he would pursue.

It seems to us, that in the absence of any direct authority resulting from adjudicated cases upon a state of facts like the present, we are to look at the objects and purposes of this peculiar process ; and believing its leading purposes are to set aside and annul a judgment improperly obtained through the fraud and deceit of the creditor ; or where the debtor had no opportunity to interpose matter relied on in avoidance; or where an execution has been issued, and the object is to release a party from an illegal imprisonment on such execution; we do not think it ought to be extended to embrace a mere case of damages against one who is not a party to the original suit, and does not hold or claim to hold the debtor in his custody, or under his control, at the time of suing out the audita querela.

The court are therefore of opinion, that upon the facts set forth in the declaration, and in the report of this case, Gardner the deputy sheriff was not properly joined as a party to this suit, and that the plaintiff is not, in this action, entitled to recover damages against' him for the alleged illegal arrest and false imprisonment.