Hutchinson, J.
delivered the opinion of the court. Two cases have been submitted for a decision, between these parties, differing only in this, that the other case was of greater magnitude, the damages assessed being one hundred dollars for a trespass to the person of Hubbell, while the one here stated, where the damages were assessed at twenty dollars, was for a trespass upon the ' [494]*494freehold. In both, the damages have goner to\ the utmost extent of the jurisdiction of the justice.
It becomes important, in deciding upon the sufficiency- of this-complaint,to ascertain the nature' of the grievance complained of,., and the propriety of this writ as a source of relief.
The nature of the grievance is, that the justice .entered up judgment, on default, for the damages described in the record, without-hearing any witnesses or testimony upon tho subject.- The complaint, alleges, it is true, that Ilubbell fraudulently and oppressively, §ic. procured the justice so to enter up judgment. But-■those expressions mean nothing, unless accompanied with the description of some act which would be fraudulent and oppressive. If the action had been upon a note, and the complainant had used the same terms, to wit, that Ilubbell fraudulently and oppressively, &c. procured the justice to enter up judgment on default, without evidence, and said no more, no one would attach any meaning to those opprobrious epithets. But, if it added to those epithets the deceiving the justice,and substituting another, and much larger note, for the one declared upon,f&thathe thereby procured the-justice to render judgment for a much larger sum than was sought in the declaration, those epithets would have some meaning.— They now, as they stand,have their meaning with the jury, in assessing damages for the complainant; that is, if supported by any proof. But they have no tendency to show what ought to be the remedy -of the complainant against Ilubbell. These remarks apply to the several parts of the complaint where those epithets are introduced. The record, described in the complaint, shows, on the face of it, a regular judgmentfby default. There are no errors in law apparent upon the record of the judgment. The error assigned is the error in fact of rendering a judgment without testimony, in a case from the nature of which the damages are uncertain. If our statute would admit a writ of error to reverse the judgment •of a justice of the peace, the remedy of the complainant would be plain. He might bring his writ of error, and assign such, error in iact; and, if the same were supported by proof, he would be sure to reverse the judgment. This would not destroy the plaintiff’s [495]*495action, but secure an assessment of the damages "in a proper way. But this remedy, by writ error, is expressly táken áway by statute. This .statute -was passed when the jurisdiction of justices did not exceed $33, and all matters of a disputable natur-e were subject to appeal to the county court. The jurisdiction ’has since been raised to $53, then to $100, and the appeal taken -away in all civil actions upon contract riot demanding over $ 10-damages, and upon notes and settled accounts that do not exceed $20. It appears, to me at least, rather extraordinary,that all these important alterations should be made and yet there should not be discovered by the legislature the absolute necessity of some express provision by statute, to remedy the evils that must frequently arise, from the mistakes or ignorance* •and,- possibly, from the prejudice or partiality of justices of the peace, so numerous as they are, and clothed with a jurisdiction jso important to the rights and interests of the people. The Legislature can adapt a remedy to the grievance, They may provide for a new trial by petition to some higher court. But we, as judges,are .bound 'by our oath, as Well as our duty, to dispense the 'law as we find it.
What, then,is the .’law that is applicable to this case ? We have stated bow the judgment is described in the complaint. That -covers the whole ground in point of principle : for there can be mo objection to the execution, and noneis made, but what depends upon the validity of the judgment. While that appears and remains regular and in force, it supports the execution, and the prayer of the complaint is, that both may be set aside ; the objection to the certificate beingmáde on the execution, when the record shows no judgment that the trespass was malicious, must mean that the only record of such adjudication is on the execution. For the -certificate is so worded as to be full proof that the trespass-was adjudged to be malicious ; andl know of nolaw rendering void such a full certificate, before the record is made elsewhere.
We may well consider, then, allthe complaint centering in the impropriety of the judgment, which appears regular upon the record.
We come now to the question, whether these proceedings ought to be set aside by audita querela f We will notice the provisions [496]*496of our statute about this writ. The statute, (sec. 11,p. 61,) 'makes provision for the allowance'of this writ when the judgment was rendered in the Supreme and County Courts. Those provisions, according to the words ofthe statute,extend to “cases proper for issuing an audita querela.'” It does not describe at all what those cases are.
The twelfth section describes the mode of obtaining this writ when judgment is rendered by a justice of the peace — but gives no description of the grievances for which this writ shall be a remedy. This section gives jurisdiction of these writs to the County Courts, as in cases brought before them by original writs. That is, they try the merits of these writs, just as they try the merits of original writs — dr, in other words, they try their truth by the Verdict of a jury, and decide their sufficiency by the rules of law; and these must be the rules of the common law; for the statute prescribes no rules whatever upon the subject. Then what are the rules of the common law ? or, to what cases do they apply this writ ? The ground rule is, that, when there is a judgment a- ' gainst a man, and he fears an execution, or one is already out against him, and he has a good defence, of which he has had no opportunity to avail himself, because it has arisen since the judgment, he shall have remedy by audita querela. Thus, he may have paid the debt, and procured a discharge, since judgment tvas obtained, and yet the creditor be pursuing his execution.— •This rule has been so far enlarged as to extend to all cases where the defendant has not had his day in court. That is, where be bas not had notice of the suit, so as to appear and defend : or has been wholly prevented from attending by the misconduct of the plaintiff. We believe it has never been extended further than this at common law.
An idea has sometimes been entertained that, when a man was under a greivance, and has no other remedy, hé has the remedy by audita querela, of course. This is altogether erroneous.— Give this power to this process, and it would evade all the restrictions of our statutes upon the protracted controversies in actions within the jurisdiction.of a justice. It would virtually repeal the 7th section of the justice act — p. 126. That section pro-[497]*497wides “tliat no judgment sentence or decree, had or rendered by any justice of the peace, within this state, on the merits of any civil cause or action, within the jurisdiction of a justice., .shall be removed by a writ of error,.certiorari,
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Hutchinson, J.
delivered the opinion of the court. Two cases have been submitted for a decision, between these parties, differing only in this, that the other case was of greater magnitude, the damages assessed being one hundred dollars for a trespass to the person of Hubbell, while the one here stated, where the damages were assessed at twenty dollars, was for a trespass upon the ' [494]*494freehold. In both, the damages have goner to\ the utmost extent of the jurisdiction of the justice.
It becomes important, in deciding upon the sufficiency- of this-complaint,to ascertain the nature' of the grievance complained of,., and the propriety of this writ as a source of relief.
The nature of the grievance is, that the justice .entered up judgment, on default, for the damages described in the record, without-hearing any witnesses or testimony upon tho subject.- The complaint, alleges, it is true, that Ilubbell fraudulently and oppressively, §ic. procured the justice so to enter up judgment. But-■those expressions mean nothing, unless accompanied with the description of some act which would be fraudulent and oppressive. If the action had been upon a note, and the complainant had used the same terms, to wit, that Ilubbell fraudulently and oppressively, &c. procured the justice to enter up judgment on default, without evidence, and said no more, no one would attach any meaning to those opprobrious epithets. But, if it added to those epithets the deceiving the justice,and substituting another, and much larger note, for the one declared upon,f&thathe thereby procured the-justice to render judgment for a much larger sum than was sought in the declaration, those epithets would have some meaning.— They now, as they stand,have their meaning with the jury, in assessing damages for the complainant; that is, if supported by any proof. But they have no tendency to show what ought to be the remedy -of the complainant against Ilubbell. These remarks apply to the several parts of the complaint where those epithets are introduced. The record, described in the complaint, shows, on the face of it, a regular judgmentfby default. There are no errors in law apparent upon the record of the judgment. The error assigned is the error in fact of rendering a judgment without testimony, in a case from the nature of which the damages are uncertain. If our statute would admit a writ of error to reverse the judgment •of a justice of the peace, the remedy of the complainant would be plain. He might bring his writ of error, and assign such, error in iact; and, if the same were supported by proof, he would be sure to reverse the judgment. This would not destroy the plaintiff’s [495]*495action, but secure an assessment of the damages "in a proper way. But this remedy, by writ error, is expressly táken áway by statute. This .statute -was passed when the jurisdiction of justices did not exceed $33, and all matters of a disputable natur-e were subject to appeal to the county court. The jurisdiction ’has since been raised to $53, then to $100, and the appeal taken -away in all civil actions upon contract riot demanding over $ 10-damages, and upon notes and settled accounts that do not exceed $20. It appears, to me at least, rather extraordinary,that all these important alterations should be made and yet there should not be discovered by the legislature the absolute necessity of some express provision by statute, to remedy the evils that must frequently arise, from the mistakes or ignorance* •and,- possibly, from the prejudice or partiality of justices of the peace, so numerous as they are, and clothed with a jurisdiction jso important to the rights and interests of the people. The Legislature can adapt a remedy to the grievance, They may provide for a new trial by petition to some higher court. But we, as judges,are .bound 'by our oath, as Well as our duty, to dispense the 'law as we find it.
What, then,is the .’law that is applicable to this case ? We have stated bow the judgment is described in the complaint. That -covers the whole ground in point of principle : for there can be mo objection to the execution, and noneis made, but what depends upon the validity of the judgment. While that appears and remains regular and in force, it supports the execution, and the prayer of the complaint is, that both may be set aside ; the objection to the certificate beingmáde on the execution, when the record shows no judgment that the trespass was malicious, must mean that the only record of such adjudication is on the execution. For the -certificate is so worded as to be full proof that the trespass-was adjudged to be malicious ; andl know of nolaw rendering void such a full certificate, before the record is made elsewhere.
We may well consider, then, allthe complaint centering in the impropriety of the judgment, which appears regular upon the record.
We come now to the question, whether these proceedings ought to be set aside by audita querela f We will notice the provisions [496]*496of our statute about this writ. The statute, (sec. 11,p. 61,) 'makes provision for the allowance'of this writ when the judgment was rendered in the Supreme and County Courts. Those provisions, according to the words ofthe statute,extend to “cases proper for issuing an audita querela.'” It does not describe at all what those cases are.
The twelfth section describes the mode of obtaining this writ when judgment is rendered by a justice of the peace — but gives no description of the grievances for which this writ shall be a remedy. This section gives jurisdiction of these writs to the County Courts, as in cases brought before them by original writs. That is, they try the merits of these writs, just as they try the merits of original writs — dr, in other words, they try their truth by the Verdict of a jury, and decide their sufficiency by the rules of law; and these must be the rules of the common law; for the statute prescribes no rules whatever upon the subject. Then what are the rules of the common law ? or, to what cases do they apply this writ ? The ground rule is, that, when there is a judgment a- ' gainst a man, and he fears an execution, or one is already out against him, and he has a good defence, of which he has had no opportunity to avail himself, because it has arisen since the judgment, he shall have remedy by audita querela. Thus, he may have paid the debt, and procured a discharge, since judgment tvas obtained, and yet the creditor be pursuing his execution.— •This rule has been so far enlarged as to extend to all cases where the defendant has not had his day in court. That is, where be bas not had notice of the suit, so as to appear and defend : or has been wholly prevented from attending by the misconduct of the plaintiff. We believe it has never been extended further than this at common law.
An idea has sometimes been entertained that, when a man was under a greivance, and has no other remedy, hé has the remedy by audita querela, of course. This is altogether erroneous.— Give this power to this process, and it would evade all the restrictions of our statutes upon the protracted controversies in actions within the jurisdiction.of a justice. It would virtually repeal the 7th section of the justice act — p. 126. That section pro-[497]*497wides “tliat no judgment sentence or decree, had or rendered by any justice of the peace, within this state, on the merits of any civil cause or action, within the jurisdiction of a justice., .shall be removed by a writ of error,.certiorari, <ar any other process whatever ; or shall be re-examined., or reversed by the Supreme Court of Judicature; any law,, usage or custom to the .contrary notwithstanding.'”
If the action is within the jurisdiction,and judgment Is rendered upon the merits, it comes within this statute. We must not try, by any of these writs, whether the judgment rendered upon the merits was correctly rendered. This statute does not interfere at all with the audita querela in its appropriate use. For errors in law or ¡fact,the writ of error is the proper remedy. If the statute hag taken that away, In this case, it would be very inconsistent to apply the audita querela as a remedy. That is as much taken away by the statute in the cases above named.,as the writ of error-■“Shall not be removed by writ of error, certiomri, or any other process whatever,” are the words of the statute, with regard to judgments rendered upon the merits, &c. But, it is urged that, In this ease, there was no judgment upon the merits ; because no witnesses were heard, and the damages were in their nature uncertain. If so, why not bring a writ of error, for that would be error in fact. The answer is, the statute forbids it. And so, we understand, have always been the decisions. Then let the audita querela come within the expression “ any other process whatever,” as we think it must, and the same objection lies; and also the objection before noticed, that the case comes not within the purview of this writ
■ If Hubbell, in the present case, had, by any Improper act,.put It out of the power of Dodge to appear at Court by himself or counsel, or palmed upon Mm any deception to procure him to mistake the day of the court, or had called the court at a different time or place from those appointed in the writ, and, by any of these, Dodge had been actually prevented from attending court, this remedy might have been proper. But his being legally imprisoned on the writ, or staying away through negligence, or choice, is [498]*498jiot a deprivation of his day in court, in any pense contemplated in the law.
. Should we in.cline. to set .aside the execution, on the ground that the judgment was incomplete, and did not, therefore, warrant an execution, we are mot by the record, .which shows a complete judgment, that does warrant an execution. Should we feel ever so sure that the complainant ought to have, relief, in some ways upon his proving such facts as he alleges, we ought to do .it. in such a way as would do justice to both parties. We -must not - admit the idea, that facts may be proved which contradict the record, for the purpose of defeating that record, and causing it to.be treated a.s a nullity. .This must only be done for the purposes of correcting the record,and making it as it should originally have been. When .a record is made contrary to fact,, by accident or ■mistake, or .by ignorance, or by misconduct, a court having power to grant new trials on motion .or petition, or writ of.error, can always, on a proper application, set the matter right, and do justice to the applicant, without sacrificing his opponent; can heal the wound without killing the .patient* When the writ. of aud%ia querela is applied to affect a judgment, .and it succeeds, the effect is to vacate .the judgment wholly, and give damages to the complainant.fpr the wrongful act complained of, and the action is destroyed, the plaintiff thrown out of court, and his securities by attachment, if any, are ,all destroyed. Hence it will be seen that this writ operates upon the party compjajned.pf, and punishes his misconduct; vacates his judgment, and compels him .to remunerate in damages. It makes no complaint of the court for any errors made by them. These ¡are reme.die.d-by writ of error or eerüorari.
If a man .pursues another with an execution, .not supported by any judgment, .it ought,to be .set,asid?. The party is wrong in using.it; and he ought tp pay the-.damages he occasions by it.— So if,he brings .an action, .or has one pending, .and it is settled by mutual agreement, and discharged, and he still pursues his action to judgment.-itis a wrong in him; for .the defendant,after settlement, is out of court, and -need not be there ; nor need ■ he apprehend any further pursuit of the .action. .In such a case, the audita [499]*499q’néfélfo ís’tfié pfaffe'í féifiédy.1' the jadgmdtlt1 ought hr Ife sef ¿sitié,: afid b‘é íftoWtr out of ctotiff: ífre: par!/ iíij'üíeí^ By--stibb íi judgment; or any execution fotnídéd' üp<M ifj- oiífptf' t& recover the damages be sustains1 after tiré? settléiftéA't.' Büí would be a wrong proceeding where* the difficulty- Complained of is an error or mistake in' the?-éoúVf - that! réíide'íe the judgment, and where the party still has a claim for a judgment of some shape in the-1 action. A case is cited' from Bray ton’s Reports, where an audita querela was sustained when the matter of complaint was the taxing costs, before a justice, which the statute prohibited : and it is said that, for that reason, the whole judgment was set aside. Nothing appears in the report upon what grounds or principles they went, or by what reasons they supported their opinion. And no reason occurs to my mind that can support that decision. If the Legislature ever intended this remedy for such evils, they ought to make a provision by means of which the court can redress the greivance, and there stop.— The injustice of setting aside such a judgment, wholly, is quite as apparent, as the letting it stand a few cents, or a few dollars, too large, by an incorrect taxation of cost. This writ affords a beneficial remedy when kept within its proper sphere of operation,but, let loose to the destruction of those edifices, which it can never repair, its evils may become without limits. ‘ -
The counsel cannot fail to anticipate, from these observations, the result to which we are tending. But, thé hardship of the complainant’s situation,the certainty that he must return to the prison, if the judgment is not arrested,and there remain, without hope of deliverance, even if ever so depressed with poverty; and considering the probability that Hubbell is not without fault, though clearly the justice must have been chiefly in fault; for the'act was his, and he could not excuse himself, even by shewing he was duped by the party, in so plain a case of official duty, as would be apparent from the facts in the case ; — upon these considerations we direct* the action continued for advisement : not so much for us to advise what judgment ought to be rendered, if any, as in hopes the parties will end the dispute by an assessment of the damages by mutual agreement ;■ and that the legislature will, at their next session [500]*500make some suitable provision for future eases'. of this character, In the mean time, Hubbell is kept secure, in all the rights he now has,by the bail entered to1 prosecute this complaint, and secure the return of the body of the-' complainant, if the judgment should be arrested*
S. Royce,jr. for plaintiff.
villen and Huni, for the defendant*