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JULY 1829.

afford relief, and that there was error in sustaining the demurrer and dismissing the bill, and that therefore the cecree should be reversed and the cause remanded, with leave to answer.

Fryer

Austill.

R. 49.

By JUDGE WHITE. The only question in the present case is, whether the complainant could not have had ample redress at law. If he could, the decree of the Chanceilor below, dismissing his bill was correct, and should be aförmed. He complains that the one hundred and thirty-six dollars enjoined had been made out of John E. Myles, for whom his intestate was security in a writ of error bond, and against whom and his said intestate, judgment was afirnied; but that the sheriít returned the execution “no money made,” absconded, and a second execution issued against the estate of his intestate in his hands, for the whole amount of said judgment, Myles having in the mean time died insolvent. In the case of Lonsing

a 1 John. Cli. v Eddy, a it is determined, “that an injunction will not be granted to stay a sale under execution on the ground that the judgment has been fuly paid and satisfied; for the party has a prompt and adequate remedy at law.” These are the words of the marginal note. In the body of the case, b it is said, that this remedy is by order of the b page 51. Judge; what kind of order this is does not appear, except that it will stay a second sale, and afford ample redress. I should however presume, from an analogous practice, which I will presently shew, prevails in the English Courts, that it must be in the nature of a supersedeas, and having satisfaction entered of record. Neither can it be supposed that this practice grows out of any peculiar provision of the statutes of New York, as this is not intimated in the cases, and a similar mode of redress obtains in others Courts of Common Law jurisdiction; and if we were to admit as contended for, that a supersedeas is entire, and cannot apply to a part only of an execution, still the present case would not be distinguished from the one cited, because the complainant, by paying the part of the judgment which had not been previously made out of his principal, and which he in his bill states he is ready to pay, might have superseded the whole execution. In Blackstone's Commentaries, it is laid down, that if after judr. c Vol. 3, p.106. ment a defendant has obtained a general release, or paid the debt, and satisfaction is not entered of record, the ancient method of redress was by writ of audita quercla, which

JULY 1829.

Fryer

V. Austill.

was in the nature of an equitable proceeding. It was a common law process, though in the nature of a bill in equity. Under this proceeding, an inquiry was had by the Court, says Blackstone, into the fact which constituted the parties right to redress who sued out the process. If this fact was a payment, upon this appearing, it was cntered of record, for the very object of the inquiry under this ancient writ in such a case, was to have the payment entered of record. This was beneficial to the party, and that which he had a right to demand, that he might have perpetual evidence of his discharge from the judgment. But in the same place, of the same book, it is said that "the indulgence now shewn by the Courts in granting a summary relief upon motion, in cases of such evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice. This being the case, it is fair to presume the remedy by motion now allowed, is substantially of the same nature, equally, nay, more extensively remedial than that formerely given by the writ of audita querela. But this writ, says Blackstone, was very remedial, hence the remedy by motion must be so likewise, under this writ too, facts were inquired into by the Court, and a payment, when shewn to be made, was ordered to be put on the record. So also it may be on motion, or the substituted remedy would not ensure the same benficial ends as that which it has superseded. It is observable that though this author, in speaking of the payment to be inquired into, mentions a payment to plaintiff, yet he does not seem to design to distinguish between such, and those made to the sheriff. Indeed, I cannot, as it relates to this question, perceive any difference between them. A payment to the sheriff, is a payment to the party, so far at least as it operates to the discharge of the defendant. Besides, the sheriff is the ministerial officer of the Court, and is commanded by its process, not only to make the money, but to make a true return of what he has done. This is not merely for the benefit of the plaintiff, but for the safety of defendant; for, as already shewn, he has a right to have record evidence of his discharge from the judgment, when he pays it. Can it then be possible, in this view of the case, that a court of common law is so destitute of power to effect its own purposes, and control its own officers, as to force suitors into Chancery to prevent oppression from the false and fradulent conduct of such officers, done too, if not in

JULY 1829.

Fryer

v. Austill.

contempt of, at least contrary to its own mandate? I cannot believe it. It has already been seen, that they have the power to inquire into the fact of payment, on motion in open court, and if so, they must have the incidental power to supersede an execution in vacation, until the sitting of court. This is not only apparent from the case cited from Johnson, as a common law principle, but as I conceive from the provisions of our own statute. In the Laws of Alabama, page 319, this statute will be found; its words are “That the Judges of the Circuit Courts respectively, shall have power and authority in vacation, to supersede any execution, when it shall satisfactorily appear to them or any of them, that the same shall have improperly issued from the clerks's office of any of the Circuit Courts of this State.” A supersedeas is a remedial writ, and if so, it cannot be conceived that this statute was intended to restrict its beneficial operation. Then I should

say, that the execution in the present case according to the true spirit of this statute, issued improperly; and that upon that fact appearing, on petition verified by affidavit, to a Circuit Judge, and the complainant paying what he admits to be due, such Judge would be bound to supersede the execution till Court; at which time he might, as appears by the books already referred to, ascertain whether payment was made, and if made, order satisfaction to be entered of record. This would be a more expeditious, less expensive, and in almost every conceivable case, an equally efficient remedy with a resort to equity. Take the case before us, as it appears to be, for an extreme one: the sheriff is runaway; the plaintiff in execution knows nothing about the payment; how then is the complainant to obtain better proof in equity than at law? Nor are these principles unsanctioned by practice in our own Courts, or those of States immediately about us. In Tennessee, where there has been a wrong taxation of costs, it is usual to supersede the execution, and correct such taxation by motion in open Court. A similar practice in like cases has obtained with the Circuit Courts in the northern end of this State. Many can bear witness to the convenience of such a remedy, whilst none as far as I linow, have there questioned its legality. Suppose A. were to sue B. and was to summon twenty witnesses, but capriciously to discharge all but two, without examining them. Would the defendant, though he might lose the suit, be liable to pay the costs of their attendance? Would they not have a

JULY 1829.

Fryer

Austill.

He cer

right to prove that attendance, and could the clerk do oth-
erwise than tax such attendance in the bill of costs? This
must be admitted. If in such a case, which is not unusual,
the defendant should not find out this imposition before the
Court adjourned, could he not obtain redress?
tainly could. But he should not be driven to a Court of
Equity. Common Law Courts have a right, at any time
before the money is paid over by the sheriff, to rectify a
taxation of costs. This is reasonable and decided to be
correct, as represented in 1. Tennessee Reports. But
this practice pre-supposes the existence of powers in Courts
of Common Law, which it is obvious would have reme-
died the injury of the plaintiff in the present case. He
then had ample redress without a resort to Chancery, and
the decrec being founded on this principle should be affirm-
ed.

By JUDGE COLLIER. I concur in the opinion pronounced by the Chief Justice, yet dissent from the suggestion made in that opinion, that an execution cannot be superseded in part and continued in force for the residue. I believe the reverse to be the law. Judges CRENSHAW, (who did not sit in this cause) and Taylor, concur with nie.

Decree reversed and cause remanded.

Hunt and CondRY V. MAYFIELD.

1. In debt on the record of a recovery in a sister State, under the issue of

nul tiel record, if a duly certified exemplification is produced, of a judgmert, valid in the State where rendered, though not founded on personal

servire, judgment must be given for the plaintiff. 2. br such cases, nul tiel recoru is the general issue, but is not the only plea

that may be pleaded. 3. Special matters of defence, for the want of jurisdiction over the subject

matter of controversy, or person of the defendant, in the Court of such

sister State, must be specially pleaded, it relied on. 4. Under the issue of nul tict record, the Court will not give the interest of

the sister State on such judgment. The rate and amount of interest must be found b. a jury.

This was an action of debt, instituted by John Hunt and William Condry, in the Circuit Court of Lauderdale coun

JULY 1820,

Hunt and

Condry Mayfield.

ty, in March, 1826, to recover of Brice M. Mayfield, the amount of a judgment which they obtained against him in the Court of Pleas and Quarter Sessions in the county of Claiborne, in the State of Tennessee; and was founded on an exemplification of the record of said recovery. They declared in the usual form on the record; the defendant plearled nul tiel record, and issue was joined on that plea.

Bv a bill of exceptions taken by the plaintiffs, it appears that they produced an exemplification, regularly certified, of the proceedirgs had in the Court of Pleas and Quarter Sessions in Tennessee, which exemplification is fully set out. It shews that on the 19th of December, 1325, before said Court, composed of six justices then sitting, she plaintiffs by their attorney moved for judgment against the defendant for $980 40, which they allege they have paid as the securities of said Mayfield, and in consequence of a judgment rendered against them in the Court of Pleas and Quarter Sessions for Claiborne county, in said State, on a note given by them and said Mayfield, to S. Posey, administratrix, in whose favor judgment was renriered the 13th of November, 1821, for $776 24, debt and damages, and $!4 39, costs of suit.” The record proceeds thus: “But it not appearing to the satisfaction of the Court by inspection of the papers, that the plaintiifs were the securities of the defendant Mayfield in said note, on which that judgmeat was obtained, it is therefore ordered that a jury be empanelled to inquire of the fait, if the plaintiffs were merely the securities of the defendant in said note;" upon this, a jury was empanelled, who found by their verdict that they were securities merely for the pavment of said note. After this, is the following entry: "It appearing to the satisfaction of the Court, by proof adduced to them, that said plaintiffs, Hunt and Condry, have paid of principal and interest under said judgment, the said sum of $950 40; it is therefore considered by the Court, that said plaintiffs, Hunt and Condry, recover of the defendant Mayfield, said sum of $980 40, and also the costs of this motion, and that the defendant be in mercy, &c.”

At the October term, 1926, of the Circuit Court of Lauderdale county, the cause was tried; and the Court being of opinion that the record was insuficient to sustain the issue for the plaintiffs, gave judgment thereon for the defendant.

The error assigned in this Court by the plaintiffs is, that the record was improperly rejected, and that the

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