Job v. Walker ex rel. Gieselman , 3 Md. 129 ( 1852 )

Mason, J.,

delivered the opinion of this .court.

The ancient practice in a case like the present, was by audita querela. Blackstone in his Commentaries, (3 vol., page 405,) says : “An audita querela is where a defendant, against whom a judgment is recovered, and who is therefore in danger .of execution, or, perhaps, actually in execution, may be relieved upon good matter of discharge which has happened since the judgment, as if the defendant hath paid the debt to the plaintiff without procuring satisfaction to be .entered on the record.” In latter years, this proceeding, both in England and in this country, has fallen almost entirely into disuse. Indeed we know of no instance in Maryland where it has ever been resorted to. In 1 Bos. and Pul., 428, Chief Justice Eyre says: “ I take it to be the modern practice, to interpose, in a summary way, in all cases where the party would be entitled to relief on an audita querela,” And in 4 Burr., 2287, it is asserted as a general rule, that the courts will not put the defendant to the trouble and expense of an fiudita querela, but will relieve him in a summary way on motion. And in Virginia, the same view is expressed in Smock vs. Dade, 5 Rand., 639. There is no reported case in Maryland in which this summary proceeding, on motion, has been employed, but in an unreported .case, (Mason vs. Stoops and others,) on the Eastern Shore, at June term 1836, relief, in this summary way, was granted to a defendant, by the Court of Appeals, on an execution issued out of that court. By the act of 1829, ch. 51, the appellant has the same remedies against the assignee of the present judgment as he would have had against the original plaintiff, if no assignment of the judgment had been made.

Upon these authorities we could not do otherwise than treat the present proceeding as regular in all respects.

Nor do we think the objection to the proceeding tenable, upon the ground that the affidavit, which was the foundation of the rule, was made by another instead of the appellant himself. As this affidavit constituted the basis only of the proceeding, and as no rights were determined or directly affected by merely granting the rule, we think it immaterial who made the affidavit.

The remaining question for us to determine arises out of the facts, and is, whether the .credits claimed by the appellant are sustained by proof? This we are not able to do upon the evidence as it at present stands before us.

The record in this case discloses, that there is evidence to sustain, in part, if not wholly, the claim of the petitioner, but owing to irregularities in the mode of taking the proof, and the inability of the counsel to concur in recollection as to the terms of the agreement alleged to have been made for the purpose of waiving form, &c., in taking the affidavits, it is manifest to our jninds, that complete justice to the parties cannot be had as the record now stands, and, therefore, for the purpose of authorising a new trial, and of enabling the parties to collect their proof in due form of law, w.e will remand this cause to the circuit court of Frederick county.

Judgment reversed, and cause remanded with, costs.