TION AND And a defendant was allowed to enter satisfaction on the SATISFACroll, upon a judgment obtained against him in the king's CANCELLING. bench, on his acknowledging satisfaction for the amount, upon a judgment obtained by him in the common pleas, against the plaintiff, for a larger amount, although he had the plaintiff in custody in execution on that judgment.33 So, after a plaintiff had recovered damages under a writ of inquiry in trover, for the conversion of his title deeds, the court permitted satisfaction of the damages to be entered on the roll, upon the terms, of the defendant delivering up the deeds, and paying all the plaintiff's costs, as between attorney and client, and submitting to other terms, by which plaintiff was placed in as good a situation as he was in before the cause of action.34 36 It has been held,35 that a levy on sufficient personal property to satisfy the judgment, operates per se as a satisfaction, and that the judgment ceases to be a lien from the time of the levy, although the execution be afterwards returned unsatisfied, and the defendant is discharged.38 But this rule may not apply where the levy is not proceeded with, on account of doubts existing as to the right of property, and a defendant who prevents its being pursued, by denying his right of property, cannot avail himself of the rule.39 And where a judgment is confessed by a third person, as collateral security for another judgment, and a levy is made under the collateral judgment, it does not operate per se as a satisfaction of the original judgment, but only so far as payment is actually obtained from it.40 Where there are two suits for the same cause of action, both of which proceed to judgment and execution, a satisfaction of either judgment is a discharge of the other." 41 SATISFAC TION AND CANCELLING. Imprisou ment in exe An agreement by the owner of an execution, with certain persons, to prevent the usual competition at a sheriff's sale, and in order to leave a small balance on the execution, for the purpose of seizing the property of the debtor, was held to be fraudulent, and the execution deemed in law to be satisfied, there having been lands seized on the execution, amounting in value to a far greater sum than the debt, and which, in consequence of such fraudulent agreement, sold for mere nominal prices.12 Where the sheriff, instead of making a levy, took the defendant's negotiable note, receipting it as payment in full, and returned the execution satisfied, and the defendant afterwards paid the note to a third person, to whom it had been transferred, it was held that this did not operate as a legal discharge of the execution, nor entitle the defendant to a satisfaction of the judgment; the sheriff not having power to discharge an execution, even by returning it satisfied, unless he proceeds and executes it in due course of law.45 How far the imprisonment of the defendant in execution is cution how a satisfaction of the judgment, will be found treated of under the head of capias ad satisfaciendum. far a satisfaction. When and how the court will compel the plaintiff to faction. If the plaintiff proceed upon his judgment, after it has been satisfied, or refuse to acknowledge satisfaction, the defendant may move the court for permission to enter up satisfaction: enter satis and where a judgment had been fully paid, and the plaintiff, on the application of the defendant, refused, without any reason, to acknowledge satisfaction, the court ordered him to enter satisfaction at his own expense, and to pay the costs of the motion.45 Where the plaintiff resided in a foreign country, and the defendant produced affidavits to show that the judgment which had been obtained seven years before, was satisfied, a rule to show cause why satisfaction should not be enteron the record was granted, which was directed to be ed up 42 4 Johns. Ch. Rep. 254. 44 2 Caines' Rep. 256. 20 Johns. Rep. 294. TION AND served, by delivering a copy to the attorney of the plaintiff on SATISFAC record, and putting up another copy in the clerk's office.46 CANCELLING. Where, however, the case is complicated, the court will not always direct satisfaction to be entered, but will only grant a stay of execution, to enable the party to apply to a court of equity, for relief.47 fraudulently be vacated Where satisfaction has been entered fraudulently, the court Satisfaction will order it to be vacated. So, where the plaintiff, after he entered will had assigned a judgment to a third person, and given notice to the defendant of such assignment, entered up satisfaction on the record, it was ordered to be vacated.48 But if, after the satisfaction is entered, and before it is vacated, the defendant confesses judgment to a bona fide creditor, the second judgment is entitled to priority.49 After a judgment has been fully paid and satisfied, it cannot be kept on foot, to cover new demands of the plaintiff.50 Audita Querela.] An audita querela is an action com- Its nature, mencing by writ, and is in the nature of a bill in equity, to be relieved against the oppression of the plaintiff,51 and lies where a judgment is improperly kept open, or the defendant imprisoned in execution;52 and in it the party may plead the matter of fact on which he relies for his discharge. A party, who obtains his discharge under an insolvent act, after judgment, may be relieved by audita querela.54 The indulgence now shown by courts, in granting summary relief upon motion, in cases of evident oppression, has almost rendered the writ of Almost obaudita querela useless and obsolete. As there are, however, solete. AUDITA QUERELA. When still the proper remedy. Must be al lowed in cases in which it is still the proper remedy, some account of it seems necessary. 55 Although it is now usual to relieve the party, if clearly entitled to relief, on motion, without putting him to an audita querela, yet, if the facts on which the defendant relies as a discharge, are denied by the plaintiff, an audita querela seems to be the proper course.56 As where the defendant alleged payment to the plaintiff, made by him on a judgment which had been assigned to a third person, the court, on motion for that purpose, refused to award a feigned issue, to try the truth and validity of the payment; but left the party to his remedy by audita querela, as the time when the defendant received notice of the assignment was contested: though the court might, if they had thought proper, have stayed execution on the judgment, until it was revived by scire facias, or by an action of debt, when the plaintiff might plead the payments. 57 The writ of audita querela must be allowed in open court, and open court. is not of itself a supersedeas of execution.58 Thus, where a defendant had been discharged, under the "act for the relief of debtors, with respect to the imprisonment of the irpersons,"59 and was afterwards, under an insolvent act passed subsequently to the recovery of the judgment, and repealed before the motion was made, discharged from his debts, and the plaintiff, notwithstanding the discharge under the last-mentioned act, issued a fi. fa. on the judgment under the provision of the first act; the court refused to set aside the execution, the discharge under the second act being unconstitutional,60 leaving the defendant to his audita querela, but not allowing it to operate as a superse deas to the execution, or to stay the proceedings on the execution, pending the audita querela.101 55 4 Johns. Rep. 191. 1 Ib. 533. n. 5 Taunt. Rep. 558. 56 1 Johns. Rep. 533. n. 2 Johns. Cas. 261. 57 Wardell vs. Eden, 2 Johns. Cas. 258. 58 2 Johns. Cas. 227. CHAPTER II. OF EXECUTION. Execution, in the actions of which we are now treating, is Definition, the mode of obtaining the debt or damages recovered by the judgment. At common law, the party recovering a judgment history, could not have execution against the body or lands of the other party, except in special cases; but could have execution only of his goods and chattels, and of his corn and other present profits of his land: for which purposes the law gave him two several writs, to be sued within the year; one called a fieri facias, which was only of the goods and chattels; the other a levari facias, whereby the sheriff was commanded, that of the lands and chattels of the defendant, he should cause to be levied, &c. A writ of elegit was, by the statute of Westminster, 2d, given in order to have execution of the lands themselves. All these objects are now effected in this state by means of the fieri facias alone; under which, every species of property which is subject to execution, may be levied upon, and sold in satisfaction of the judgment. It was only in actions of trespass vi et armis, that the party could, at common law, have the capias ad satisfaciendum, or execution against the body: This is now, however, by statutory provisions, extended to all actions, and may be always had upon a judgment, except in some special cases. Upon and nature this species of execution, the satisfaction obtained is the confinement of the debtor's body in jail, or upon the jail liberties, until he escapes, or is discharged from imprisonment, either by satisfaction, or what is equivalent to a satisfaction of the of |