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Russell v. Palmer. 2 Wils. 325.

2 Esp. Dig. 393.

Pitt v. Yaeden. 4 Burr. 2060.

2 Esp. Dig. 393.

2 Esp. Dig. 394.

Knight v. Copping,

Hutt. 125.

As where the defendant was attorney to the plaintiff in a cause where the plaintiff had a verdict, and the defendant in that action having been surrendered in discharge of his bail, the attorney neglected to charge him in execution, whereby he was discharged; the action was held well to lie against him.

But the damages in the action against the attorney, must not necessarily be to the full amount of the first judgment, and therefore the remedy must be by action; not in a summary way.

For where in debt, the party was arrested by the defendant who was plaintiff's attorney, but he having neglected to declare against him in two terms, the party was discharged on common bail. Plaintiff applied for an order of court, or the attorney to pay the whole debt, but it was refused; the court saying, that the plaintiff should bring his action regularly against the attorney. For if the defendant in the first action was in solvent circumstances, the plaintiff might still recover against him, so that the whole sum should not necessarily go in damages against the attorney.

But the remedy for injuries by action of trespass on the case, is not confined to the case of attorney and client; for if, in the conduct of a suit against any person, an attorney is guilty of any dishonest or unwarrantable practices, he is subject to this action, at the suit of the party grieved.

For where the plaintiff had been sued by one Lofft, to whom the present defendant was attorney, which suit had been non-prossed, and costs assessed; yet the defendant having knowledge of this, had unduly and maliciously procured a judgment to be signed against the plaintiff, at the suit of Lofft, and taken out execution, under which the plaintiff had been imprisoned until delivered by writ of supersedeas; the action was held well to lie. But this case falls more properly under the head of malicious prosecution.

TITLE XX.

AUCTIONEERS.

1. Of the licensing of auctioneers; and the penalty

F

for their selling at auction without such license.

2. The penalty incurred by an auctioneer for receiving goods for sale, of minors or servants; or for selling his own goods before sun rise or after sun set.

3. Duty of auctioneers to keep an account of the persons of whom they receive, and to whom they sell goods. 4. Of the manner in which the penalties incurred by a breach of the act of June 16, 1795, may be recovered.

I. Of the licensing of auctioneers, and the penalty for their selling at auction without such license.

Mas. Stat. 1795, c. 8,

License to be granted

Power of selectmes

By statute it is enacted, that no person, unless he be licensed by a major part of the selectmen of the town to see. 1. which he belongs, shall sell at public vendue or outcry, any by selectmen. goods or chattels whatsoever. And if any person, without Penalty for selling such license, shall sell any goods or chattels at public ven- without license. due or outcry, he shall forfeit and pay a sum not exceeding six hundred dollars for each offence. And the selectmen, or the major part of them, at a meeting held for that pur- to grant licenses. pose, are empowered, by a writing under their hands, to license any suitable person or persons to make sale of goods and chattels in manner aforesaid; for which license, the person or persons receiving the same shall pay to the selectmen granting it, for their use, the sum of two dollars. And the selectmen are directed to record every license ed. they may so grant, in a book to be by them kept for that purpose.

The statute further enacts, that no license thus grantad, shall be of any effect to exempt any person or persons

Price of the license.

Licenses to be record

Sec. 3.

Licenses to be renewed annually.

Sec. 2.

of certain officers.

from the penalties incurred by any breach of the act, unless such license shall have been made and granted within one year next preceding such sale.

The statute has also provided that nothing therein contained shall extend to sales made by sheriffs, deputy Licenses not required sheriffs, coroners, constables, collectors of taxes, executors or administrators, or any other person who is or may be authorized or required by law, to sell goods, chattels, or lands, at vendue or outcry.

Sec. 2.

Sec. 2.

Sec. 4.

II. The penalty incurred by an auctioneer for receiving goods for sale of minors or servants; or for selling his own goods before sun rise or after sun set.

The same statute further enacts, that if any person or persons thus licensed, shall receive any goods for sale, at public vendue or outcry, of any servant or minor, knowing such person to be a servant or minor; or shall sell any of his own goods, before sun rise, or after sun set, at public vendue or outcry, he shall forfeit and pay a sum not less than fifty dollars, nor more than one hundred and seventy dollars, for each offence.

III. Duty of auctioneers to keep an account of the persons of whom they receive, and to whom they sell goods.

The same statute further enacts, that every person thus licensed, shall keep a fair and particular account of all goods and chattels, sold by him as aforesaid, of whom the same were received, and of the names of the persons to whom the same shall have been sold.

IV. Of the manner in which the penalties incurred by a breach of the act of June 16, 1795, may be recovered. These penalties may be recovered by action of debt, in any court of record proper to try the same, and appropriated to the use of him who shall first sue for the same.

NOTE.....The act of June 16, 1795, which forms the subject of the above Title, repeals all laws previously enacted on that subject.

TITLE XXI.

AUDITA QUERELA.

Definition.

An audita querela is a writ which lies where a defendant 3 Bl. Com. 4 against whom 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 judg- In what cases this ment creditor hath given him a general release; or if the judgment debtor hath paid the debt, without procuring satisfaction to be entered on the record, or indorsed on the execution.

writ lies.

So also this writ lies for bail, when judgment is obtain- Ibid. 406. ed against him by scire facias, to answer the debt of their principal, and it happens afterwards that the original judgment against their principal is reversed; for here the bail, after judgment had against them, have no opportunity to plead this special matter, and therefore they shall have redress by audita querela.

In these and the like cases, where a party, who hath a 3 Bl. Com. 406. good defence, is too late to make it, in the ordinary forms

of law, an audita querela lies to be relieved against the oppression of the original plaintiff.

This writ is given by statute, and may be sued out in the form of a writ of attachment, or a writ of summons.

The forms of both writs are prescribed by statute.

sec. 1.

This writ may be served upon the adverse party in the Mas. Stat. 1780, c. 47. same manner as writs of review are directed by law to be served: And if the sheriff, or his deputy, be a party Mas. Stat. 1780, c. 47.

sec. 3 and 8.

sec. 3.

to the writ, or to the execution issued upon the judgment recovered thereon, the same shall be directed to the coroner, and be served and executed by him.

Upon default of the respondent, after such service, Mas. Stat, 1780, c. 47. without appearance, the court may proceed to hear and try the same suit, and thereupon to proceed to final judgment and execution, in the same manner as by law they Power of the court to hear and try the are authorized when the respondent after appearance cause, and proceed to judgment and execu- becomes defaulted. And in all cases after the said writ is returned served as aforesaid, the court in which the suit thereupon is pending, shall have full power to hear and try the said cause, and thereupon to proceed to judg. ment and execution, according as to law and justice doth appertain.

tion.

Ibid.
Sec. 11.

Appeal.

Ibid.

Sec. 13.

Judgments in this action to be final.

No review.

From a judgment rendered, in this action, by the common pleas an appeal lies to the supreme judicial court, next to be holden within the same county.

But all judgments rendered by the supreme judicial court, in this action, shall be final, without being subject to reversal or alteration by any proceedings upon writs of review thereafter to be sued out or prosecuted. And all such writs of review shall by the same court, ex officio be quashed.

1. The court from which this writ must be sued, and to which it must be returned.

2. Of declaring for damages.
3. The respondent's plea.

4. Of the liberation of the complainant in case he be in gaol on the execution against which he seeks relief.

I. The court from which this writ must be sued, and to which it must be returned.

In all cases where the writ of audita querela is brought Mas. Stat. 1780, c. 47. to set aside or annul any, proceedings had upon a writ of execution, the said writ shall be sued out of and be returna

SOC. 1.

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