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over and above the debt and demand of the said plaintiff, to at least the sum of $80,000. And the said plaintiff insists that the individual defendants abovenamed, thereby, by virtue of the statutes relative to incorporations, became and are liable to the said plaintiff for his several debts aforesaid 1

And the said plaintiff demands judgment, that the said The Hudson River Iron and Machine Company may be judicially declared to have been dissolved at the time aforesaid, and that the said defendants may be required to pay to the said plaintiff the amount of his several judgments, with interest and costs, and that he may have such other or further relief as shall be deemed just, with his costs. HUGHES & NORTHUP,

Plaintiff's Attorneys.

1 This is a mere legal inference, and is unnecessary and improper.

(No. 82.)

Complaint in the nature of an audita querela, asking that a judgment which has been satisfied may be adjudged to be discharged and extinguished, and that the plaintiff therein may be enjoined from proceeding on an execution upon such judgment.1

SUPREME COURT-SARATOGA COUNTY.

Darling P. Mallory
agt.

Titus Norton and John Scott.

The plaintiff complains of the defendants, for that on the 31st day of March, 1853, the defendant, Titus Norton, commenced an action against the plaintiff before John Gifford, Esq., then and still a justice of the peace in the

The case is reported 21 Barb., 424, and the following is an extract from the opinion at the General Term:

"An audita querela is where a defendant against whom judgment is recovered, and who is therefore in danger of execution, may be relieved upon good matter of discharge, which has happened since the judgment, as if the plaintiff has given a general release, or if the defendant has paid the debt to the plaintiff without procuring satisfaction to be entered on the record, and where the party has had no opportunity of pleading it, &c. In all such cases an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. (3 Black. Com., 305.) This remedy seems to have been adopted, in our state, with the common law (2 John. Cas., 258, 261; 1 John., 532; 9 id., 221; 17 id., 484; 4 id., 191), and in other states. (10 Mass. Rep., 101; 17 id., 153; 2 Conn. Rep., 700.)

"It is not abolished by the Code, but preserved. (Sec. 468; 5 How., 51.) As matter of necessity, in my judgment, it should exist in this case." Per ALLEN, J., in Mallory v. Norton, 21 Barb., 43.

town of Greenfield, in the county of Saratoga, by summons returnable before said justice, at his office in said town, on the 6th day of April thereafter; which suit was brought to recover damages for the alleged wrongful taking by the plaintiff, from the said Norton, of a certain horse, and the said Norton in said suit claimed to recover $100 damages; that said summons was duly served upon the plaintiff, who appeared in said suit, and such proceedings were had therein that afterwards, to wit, on the 26th day of April then next, a judgment was rendered in said action by said justice, in favor of the defendant, Norton, and against the plaintiff, for $77.89, damages and costs.

And the plaintiff further alleges, on his information and belief, that prior to the recovery of said judgment in favor of the said Norton, against the plaintiff, to wit, on the 15th day of January, 1852, a judgment was recovered against said Norton, in the Supreme Court of the State of New-York, in favor of Jacob Van Demark and Helen Van Demark, for $153.38, damages and costs, which said last mentioned judgment was duly docketed in the office of the clerk of Saratoga county on the day and year last aforesaid; that at the time of the rendition of said judgment first abovementioned, said last mentioned judgment was still unsatisfied to the amount of $75 and upwards; that an execution against said Norton was issued, on said last mentioned judgment, to Henry H. Hathorn, then and still sheriff of the county of Saratoga, on the 27th day of April, 1853, to collect the amount then remaining due and unpaid thereon, which then exceeded the sum of $75; that on said 27th day of April, 1853, at Saratoga Springs, in said county, while said last mentioned execution remained in the hands of said sheriff and unsatisfied as aforesaid, and before the issuing of any execution by said justice on the judgment in favor of the defendant, Norton, against

the plaintiff, the plaintiff paid to the said sheriff the sum of $75, to apply on said judgment in favor of said Jacob and Helen Van Demark, and the sheriff executed and delivered to the plaintiff a receipt therefor, pursuant to section 293 of the Code of Procedure.

And the plaintiff further says, that at the time of said payment to the sheriff by him, as aforesaid, he was not indebted to the defendant Norton in any sum, or for any other cause soever, except the judgment first before mentioned; that on the 27th day of April, 1853, notice was given, to said Norton and the said justice, of said payment so made to the sheriff, as aforesaid.

And the plaintiff further says, that afterwards, to wit, on the 7th day of July, 1853, the said justice, on the application of the said Norton, as the plaintiff is informed and believes, issued an execution, on said judgment against the plaintiff, for the whole amount thereof, to John Scott the defendant, then and still a constable of Greenfield, in said county; that afterwards, on or about the 20th day of July, 1853, the plaintiff paid to said constable the balance due thereon, after deducting the sum paid to the said sheriff, as aforesaid, and specified in said receipt, together with the fees of the constable on said execution; that afterwards, on the 21st day of December, 1853, the said Gifford, justice as aforesaid, on the application of the said Norton, issued another execution on said judgment against the body of the plaintiff to the said defendant, John Scott, requiring him to collect the sum of $75 thereon, and in default thereof commanding said constable to take the body of the plaintiff, and him commit to the common jail in and for the county of Saratoga; that both of the defendants refuse to recognize said receipt of the sheriff as a payment on said judgment, and that said Norton insists upon disregarding said payment to the sheriff, and has directed the constable to enforce the collection of

said execution, and the said Scott threatens that, unless the plaintiff pays said sum of $75, and his fees thereon, that he will arrest the plaintiff by virtue thereof, and him commit to the common jail of the county of Saratoga. And the plaintiff alleges that said judgment in favor of said Norton has been entirely paid and satisfied since its rendition, as before stated, and that the issuing of said execution for said sum of $75 was erroneous and wrongful.

And the plaintiff further alleges, on his information and belief, that the defendant Norton is utterly insolvent, and that in case the plaintiff is compelled to pay said sum of $75 again, the same will be lost, as the same could not be collected of the said Norton.

Wherefore the plaintiff demands judgment that the said execution so issued to the said Scott, as aforesaid, on the 21st day of December, 1853, on said judgment by said justice, against the body of the plaintiff, be set aside, and that said judgment be decreed, satisfied and extinguished, and that said defendants be each perpetually enjoined from enforcing the collection of said execution, and that in the mean time, and until further ordered in the premises, the defendant Scott may, by order of this court, be restrained from enforcing said execution, and from arresting or attempting to arrest the body of the plaintiff thereon, and from all proceedings by him on said execution, and that the plaintiff may have such further or other relief in the premises as the case requires.

POND, LESTER & BARTLETT,

Plaintiff's Attorneys.

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