C. L. Allen, P. J.
I cannot discover where the remedy of the plaintiff in the present action is, unless it lies in the course which he has pursued. The learned justice who tried the cause came to the conclusion that the judgment upon which the execution was issued was satisfied, and that the execution had no force. But he remarks that the plaintiff has mistaken his remedy, which is perfect at law. The case of Lansing v. Eddy, (1 John. Ch. R. 49,) cited in support of this remark, decides that where perfect relief may be obtained at law, equity will not interfere ; and such is the ruling in other cases. (See 4 John. 191; 17 Wend. 631.) In the case of The Bank of the United States v. Jenkins & others, (18 John. 305,) the court said that the proper course, where a ca. sa. was improperly issued, was by motion, on affidavit. And in Brooks v. Hunt, (17 John. 484,) which was a motion to discharge from an arrest on a ca. sa. and for an audita querela, after the discharge of" the debtor from his debts, under the insolvent act, the court granted the audita querela, but denied the discharge, remarking that the parties might take issue on an audita querela, and that it was not uncommon, where the case was difficult or dubious, to deny the motion for a discharge, and put the party to his audita querela. Where the party had had an opportunity of pleading his discharge in an action of debt brought on the judgment, after it was recovered, the court said he should have availed himself of his plea, and having neglected to do so, relief was denied either by motion or audita querela. But where evidence was not discovered until after trial in the common pleas, which court had no power to grant a new trial, and no' other remedy could be found, a court of equity interfered. (Floyd v. Jayne, 6 John. Ch. R. 479. And see Foster v. Wood, 6 John. Ch. R. 90. 1 Barb. Ch. R. 167.) In the present case the plaintiff could have no relief by motion. The judgment upon Avhich the execution against his body issued was rendered in a justice’s court, and no transcript having been filed in the county clerk’s office, the county court had' no jurisdiction, and could entertain no motion for his discharge, if he had been imprisoned on the execution. (17 Wend. 631. 7 Hill, 186. 11 Barb. 481.)
[434]*434The execution being fair and regular upon its face, and issued upon a judgment regularly obtained, it is a full protection to the defendant Scott, the constable serving it. (20 Wend. 236. 24 id. 485. 5 Hill, 440, and various other cases.) The plaintiff, therefore, on being compelled to pay the judgment or be imprisoned on the execution, would have no remedy against him. The same authorities also show that the justice who issued the execution would be equally protected against an action in favor of the plaintiff. In Luddington v. Peck, 2 Conn. R. 700,) which was an action of trespass for false imprisonment, brought against the plaintiff in the execution, the court said, in reference to the clerk who issued the execution, that when the defendant produced the first execution unindorsed and unsatisfied, the clerk of the .court was bound to renew or grant an alias. He could not investigate the fact whether it had been paid or not. Here the justice, conceding that he may have been and was informed of the facts, was called upon to place a judicial construction, at his peril, upon section 293 of the code. He had rendered a regular judgment for the recovery of the value of property which had been wrongfully levied upon and sold, under an execution, and was required in the regular exercise of the duties of his office, to issue an execution to collect the amount. I do not say that if he had known that the judgment had been fully and fairly paid or satisfied, or if he had acted corruptly and maliciously, that he would not have been liable. But there is no pretense that he did not act honestly, in this case; and I think if he erred he could not be made liable to the plaintiff in an action.' (17 John. 145.)
The only remedy, it appears to me, of which the plaintiff could avail himself) would be by action against Norton. It is averred in the complaint and found by the justice, that Norton was “ at the time of the issuing of the execution, and ever since has been and still is, utterly insolvent.” If the plaintiff, therefore, is compelled to pay the amount of the execution, he can only bring an action against a person entirely worthless, and of whom nothing could be collected. I think that unless the defendants can be restrained from proceeding upon the execution, in the [435]*435manner proposed by the present action, the injury to the plaintiff will be irreparable. The case of Spear v. Cutter, 5 Barb. 486,) was a motion to dissolve an injunction which had been previously granted, to restrain waste, and to prevent the removal of timber already cut. The court said, “ In this case, as the defendant is insolvent, the injury to the plaintiff will be irreparable, if the defendant is permitted to remove or dispose of the timber he has already cut, on the premises in question.” So here, the plaintiff must be compelled, if the present proceeding cannot be sustained, to pay the amount of the judgment, or be imprisoned upon the execution, and then is left to resort to an insolvent party for redress, and add to his injury by the payment of the costs attendant upon the recovery of a worthless judgment. The relief by audita querela, at common law, was intended to be preventive, to stay the commission of an injury contemplated by the defendant. Blackstone thus defines it: “An audita querela is where a defendant, 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 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 ivhere the party has had no opportunity of pleading it, <fcc. 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, (see sec. 468; 5 How. 51.) As matter of necessity, in my judgment, it should exist in this case. No motion, as heretofore remarked, could be made, as in 17 Wend. 631, and other cases above cited. The justice who rendered the judgment could entertain no such motion. The judge finds, and adjudicates, that Norton is attempting to enforce by execution the collection of a judgment already satisfied, and that [436]*436such execution is of no force whatever, but that the plaintiff’s relief must be sought for in another form. The case he cites (1 John. Ch. Rep. 49,) was where a party went into the court of chancery for relief against an attempt to enforce a judgment in a court of record, which had been paid.
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C. L. Allen, P. J.
I cannot discover where the remedy of the plaintiff in the present action is, unless it lies in the course which he has pursued. The learned justice who tried the cause came to the conclusion that the judgment upon which the execution was issued was satisfied, and that the execution had no force. But he remarks that the plaintiff has mistaken his remedy, which is perfect at law. The case of Lansing v. Eddy, (1 John. Ch. R. 49,) cited in support of this remark, decides that where perfect relief may be obtained at law, equity will not interfere ; and such is the ruling in other cases. (See 4 John. 191; 17 Wend. 631.) In the case of The Bank of the United States v. Jenkins & others, (18 John. 305,) the court said that the proper course, where a ca. sa. was improperly issued, was by motion, on affidavit. And in Brooks v. Hunt, (17 John. 484,) which was a motion to discharge from an arrest on a ca. sa. and for an audita querela, after the discharge of" the debtor from his debts, under the insolvent act, the court granted the audita querela, but denied the discharge, remarking that the parties might take issue on an audita querela, and that it was not uncommon, where the case was difficult or dubious, to deny the motion for a discharge, and put the party to his audita querela. Where the party had had an opportunity of pleading his discharge in an action of debt brought on the judgment, after it was recovered, the court said he should have availed himself of his plea, and having neglected to do so, relief was denied either by motion or audita querela. But where evidence was not discovered until after trial in the common pleas, which court had no power to grant a new trial, and no' other remedy could be found, a court of equity interfered. (Floyd v. Jayne, 6 John. Ch. R. 479. And see Foster v. Wood, 6 John. Ch. R. 90. 1 Barb. Ch. R. 167.) In the present case the plaintiff could have no relief by motion. The judgment upon Avhich the execution against his body issued was rendered in a justice’s court, and no transcript having been filed in the county clerk’s office, the county court had' no jurisdiction, and could entertain no motion for his discharge, if he had been imprisoned on the execution. (17 Wend. 631. 7 Hill, 186. 11 Barb. 481.)
[434]*434The execution being fair and regular upon its face, and issued upon a judgment regularly obtained, it is a full protection to the defendant Scott, the constable serving it. (20 Wend. 236. 24 id. 485. 5 Hill, 440, and various other cases.) The plaintiff, therefore, on being compelled to pay the judgment or be imprisoned on the execution, would have no remedy against him. The same authorities also show that the justice who issued the execution would be equally protected against an action in favor of the plaintiff. In Luddington v. Peck, 2 Conn. R. 700,) which was an action of trespass for false imprisonment, brought against the plaintiff in the execution, the court said, in reference to the clerk who issued the execution, that when the defendant produced the first execution unindorsed and unsatisfied, the clerk of the .court was bound to renew or grant an alias. He could not investigate the fact whether it had been paid or not. Here the justice, conceding that he may have been and was informed of the facts, was called upon to place a judicial construction, at his peril, upon section 293 of the code. He had rendered a regular judgment for the recovery of the value of property which had been wrongfully levied upon and sold, under an execution, and was required in the regular exercise of the duties of his office, to issue an execution to collect the amount. I do not say that if he had known that the judgment had been fully and fairly paid or satisfied, or if he had acted corruptly and maliciously, that he would not have been liable. But there is no pretense that he did not act honestly, in this case; and I think if he erred he could not be made liable to the plaintiff in an action.' (17 John. 145.)
The only remedy, it appears to me, of which the plaintiff could avail himself) would be by action against Norton. It is averred in the complaint and found by the justice, that Norton was “ at the time of the issuing of the execution, and ever since has been and still is, utterly insolvent.” If the plaintiff, therefore, is compelled to pay the amount of the execution, he can only bring an action against a person entirely worthless, and of whom nothing could be collected. I think that unless the defendants can be restrained from proceeding upon the execution, in the [435]*435manner proposed by the present action, the injury to the plaintiff will be irreparable. The case of Spear v. Cutter, 5 Barb. 486,) was a motion to dissolve an injunction which had been previously granted, to restrain waste, and to prevent the removal of timber already cut. The court said, “ In this case, as the defendant is insolvent, the injury to the plaintiff will be irreparable, if the defendant is permitted to remove or dispose of the timber he has already cut, on the premises in question.” So here, the plaintiff must be compelled, if the present proceeding cannot be sustained, to pay the amount of the judgment, or be imprisoned upon the execution, and then is left to resort to an insolvent party for redress, and add to his injury by the payment of the costs attendant upon the recovery of a worthless judgment. The relief by audita querela, at common law, was intended to be preventive, to stay the commission of an injury contemplated by the defendant. Blackstone thus defines it: “An audita querela is where a defendant, 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 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 ivhere the party has had no opportunity of pleading it, <fcc. 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, (see sec. 468; 5 How. 51.) As matter of necessity, in my judgment, it should exist in this case. No motion, as heretofore remarked, could be made, as in 17 Wend. 631, and other cases above cited. The justice who rendered the judgment could entertain no such motion. The judge finds, and adjudicates, that Norton is attempting to enforce by execution the collection of a judgment already satisfied, and that [436]*436such execution is of no force whatever, but that the plaintiff’s relief must be sought for in another form. The case he cites (1 John. Ch. Rep. 49,) was where a party went into the court of chancery for relief against an attempt to enforce a judgment in a court of record, which had been paid. The court said his remedy was by obtaining a judge’s order to stay proceedings, which in that case was ample and easy. Here no such order can be obtained, the judgment' being in a justice’s court, and the county court not having obtained jurisdiction. The great difficulty which I have found, in this case, has arisen from the consideration of two questions, viz:
1. Whether this remedy, being in the nature of a bill in equity, the court has jurisdiction; the amount involved'being less than $100. It may be remarked, and is suggested in the points presented by the plaintiff, that this is an ordinary suit at law, where the party is attempting to enforce the collection of a judgment already paid, and that it is the only one that can be resorted to for the purpose of preventing the threatened injury, and one over which the supreme court, on the law side, formerly had jurisdiction. But upon the supposition that this is an action on the equity side of the court, is it necessary, under the code, that the amount in controversy should exceed $100 ? The limitation of the jurisdiction of the court of chancery is prescribed, 2 R. S. 173, § 37. But this evidently had its origin in the distinction which then existed, between the courts of law and the court of chancery. The proceedings in the latter court were cumbrous, complicated and expensive, and it was deemed beneath the dignity of the court to take cognizance of causes of small amounts. Chancellor ICent remarked in one case that “ a small sum will not bear the expense and burden of the litigation, and the remedy would be worse than the disease.” (Moore v. Lyttle, 4 John. Ch. Rep. 183. See Fullerton v. Jackson, 5 John. Ch. 276; Smets v. Williams, 4 Paige, 364.) But the code, sec. 69, has expressly abolished the distinction between actions at law and suits in equity, and the forms of all such actions j and it declares that there shall [437]*437be but one form of action for the enforcement or protection of private rights and the redress of private wrongs. By section 468 all statutory provisions inconsistent with this act are repealed. And by section 140 all the forms of pleading heretofore existing are abolished, and the forms of pleading are to be determined by the code. In Giles v. Lyon, (4 Comst. 600,) it is said that law and equity, under the code, “were to be blended and formed into a single system, which should combine the principles peculiar to each, and be administered thereafter under the same forms, and under the same appellation.” That case virtually decides that cases of an equitable nature may now be brought in the supreme court, where the amount in controversy does not exceed the amount for which an action at law may be entertained in the same court. Any other construction would destroy the evident intent of the section, and.make permanent a rule, the reason for which does not longer exist. (Van Santvoord, 373; 4. 1 Whit. 306 and cases cited.)
2. The second question, concerning which I have had doubts, is, whether the payment by the plaintiff in this cause was authorized, under sec. 293 of the code. Clearly, if the payment had been made before judgment, though after verdict, it would not have been allowed, or treated as an “ indebtedness” within the meaning of the section. (1 Code Rep. N. S. 311. Davenport v. Ludlow, 3 Code R. 66. Robinson v. Weeks, 6 How. 161.) But after judgment, a recovery in tort becomes a debt, and the cases above cited intimate that the amount may be paid to the sheriff under this section. If the judgment, however, obtained by Norton and Mallory, was a debt within the meaning and spirit of sec. 293, then it is contended that the exemption law is virtually repealed. It was for no ordinary debt, but was recovered for the- proceeds of exempt property; and if such a judgment can be converted into a debt, as contended by the plaintiff, there can be little or no exempt property but that may be so converted and brought within the section, and the whole object of the law would be entirely frustrated and . destroyed. And this too notwithstanding the provisions of sec. 472, which section expressly declares that the code shall not affect the ex[438]*438emption laws, or any of them, existing at the time of its enactment.
In the case of The People v. The Utica Insurance Co. (15 John. 358,) the court say that “ such construction shall be given as shall not suffer the statute to be eluded, and that the intention of the legislature is to be resorted to, to discover the meaning, and that a thing within the letter is not within the statute if contrary to the intention of it.” And in Jackson v. Collins, (3 Cowen, 89,) it is remarked “ that the intention of the legislature should be followed with reason and discretion, though such construction seem contrary to the letter of the statute.” Can it be contended or argued, as by the counsel for the defendants, with any degree of propriety, that the legislature intended to exempt a team from liability to execution, and yet to allow a judgment recovered for a sale of such team-on that very execution, to be paid upon the same judgment on which it issued ? It appears to me that one answer to this question is, that the party may protect himself in such case by bringing his action m the nature of replevin, for the delivery of his property, and thus have it restored, and the intention of the legislature be preserved. z,If he chooses to bring his'action to recover the value, and obtains a judgment which becomes a debt, within all the cases, he takes the risk of subjecting himself to the provisions of see. 293. Clearly any other creditor could have required the payment of the judgment, on an execution against the plaintiff—and on the ground that it was “ a debt”—after judgment. ■ And the plaintiff in the first judgment, by the course adopted, was placed in a like situation with other creditors.
The judgment should be reversed, and a new trial ordered ; costs to abide the event.
James, J.
I think the action properly brought. Before the code an audita querela would lie; now an action. (§ 69.) Although the property was exempt," the judgment was not. If Norton wished to keep his property as exempt property he [439]*439should have brought replevin for his horse. Having voluntarily put it into judgment he elected to strip it of its exempt character, and make it subject to his debts.
[Saratoga General Term,
January 1, 1856.
The judgment should be reversed and a new trial granted.
Bockes, J. concurred.
Judgment reversed.
C. L/. Alien, Bockes and James, Justices.]