Alexander v. Abbott , 21 Vt. 476 ( 1849 )

By the Court.

We think this suit well brought. The case of Marvin v. Wilkins, 1 Aik. 107, is, we think, no extension of the remedy by audita querela, beyond what it has been sustained in other analogous cases, ever since the enactment of the' statute of 1829. And this, with the cases upon other grounds, where audita querela had been brought and sustained, before the statute affording a remedy by petition was enacted, have still been considered as in force, and followed, — as, for example, where the party had been unjustly denied an appeal; Tyler v. Lathrop, 5 Vt. 170 ; and yet this is the very case named in the statute. The statute, in this and other cases coming within its purview, where audita querela had been sustained, has been held merely cumulative.

The objections, that the writ does not claim damages, or that it is not competent to recover back money collected on the execution, have not, in practice, been regarded as sound. The writ might, for some reason, not be made to operate as a supersedeas; and in such case, if the recovery of the money would defeat the writ, the party would be remediless. If the money is to be recovered at all, it is proper it should be here recovered, to prevent multiplicity of actions. All the damages are claimed here, which are in any action of the kind. Judgment affirmed,