Webber, J.
We are here asked to examine the sufficiency of the declaration in a writ which invokes the ancient remedy of audita querela. Tested by demurrer, the declaration was deemed insufficient by the presiding justice below and exceptions were seasonably taken to his action in sustaining the demurrer.
“The writ (of audita querela) is a remedial process to relieve a party who has been injured or who is in danger of being injured from the consequences of a judgment because of some improper action of the party who obtained it which could not have been pleaded in bar to the action.” Martin’s Notes on Pleading page 87; 5 Am. Jur. 491. “Such process, according to the authorities, is ‘in the nature of a bill in equity, to be relieved against the oppression of the plaintiff.’ It lies where, after judgment, the debt has been paid or re[214]*214leased, and yet the debtor is arrested, or in danger of being arrested, on an execution issued on such judgment; and where the debtor has had no opportunity to avail himself of such payment or release, in defense; and in other cases where a defendant had good matter to offer in defense, but had no opportunity to offer it before judgment against him.” (Emphasis supplied) Bryant v. Johnson, 24 Me. 304 at 306. The remedy is preserved by statute, R. S., 1954, Chap. 127. “It is a general and well settled principle that when a party has had a legal opportunity to make his defense, or when the injury of which he complains is to be attributed to his own neglect, he cannot be relieved by an audita querela.” 5 Am. Jur. 493, sec. 3; see Radclyffe v. Barton, 161 Mass. 327, 37 N. E. 373; Staniford v. Barry, 15 Am. Dec. (Vt.) 692; Goodrich v. Willard, 77 Mass. 380, 11 Gray 380; Walter v. Foss, 67 Vt. 591, 32 A. 643; State v. Hall, 17 S. W. (2nd) (Mo.) 935; Parker v. Murphy, 215 Mass. 72, 102 N. E. 85. The neglect of the party to make seasonably the defense available to him will defeat his right to the writ of audita querela even when that neglect stems from his ignorance of the existence of the defense, where it is apparent that by the exercise of reasonable diligence, he could have ascertained it. Avery v. U. S., 12 Wall. (U. S.) 304, 20 L. Ed. 405. “But a payment of a part of a demand, or of the whole of it, made before judgment, could not support * * * * an audita querela: because it was the folly of the party, that he had not the advantage of it before judgment rendered.” Thatcher et al. v. Gammon, 12 Mass. 268 at 270. A contrary rule would overlook the necessity of putting an end to litigation, would result in “great confusion” and “perpetuity of disputes,” and “would lead to endless embarrassments in the administration of justice.” Thatcher et al. v. Gammon, supra, at page 271; Avery v. U. S., supra, at page 306.
In a few instances the writ has been allowed where the alleged defense was available at the trial but not made be[215]*215cause of the intervention of the fraud and deceit of the defendant which actively prevented the introduction of the defense. In Lovejoy v. Webber, 10 Mass. 101, payment was made after suit but before judgment, and the court in determining whether audita querela would lie, said at page 104, “Before judgment was entered indeed the adjustment had been made; but with an understanding that the suit was thereby finally compromised, and was to be discontinued by the care of this defendant. In this the plaintiff was deceived : but the present defendant is not to avail himself of this fraud, which is pointedly, and as he has confessed, truly alleged against him.” (Emphasis supplied.) Plaintiff’s declaration in the writ of audita querela was adjudged sufficient. Likewise in Bower, Inc. v. Silverstein, 298 Ill. App. 145, 18 N. E. (2nd) 385, payment in full having been made after suit but before judgment, the defendant promised the plaintiff that he would instruct his attorney to dismiss the case, and the plaintiff, in reliance on the promise, left town and disregarded the pending litigation. In his absence, judgment was taken against him. Here also audita querela was deemed applicable. We are satisfied, however, that in neither the Lovejoy case nor the Bower case would the court have allowed the use of the remedy had there not been present active and affirmative fraud and inducement on the part of the defendant which effectively intervened to prevent the making of the available defense.
With these principles in mind, we proceed to a consideration of the averments of the voluminous declaration before us. The declaration discloses that plaintiff owed an interest bearing note to the estate of which defendant was administrator. Suit on the note was instituted and service made on the present plaintiff in December, 1952. His second payment on account was made on January 3, 1953, at which time he received from the defendant a receipt as follows:
[216]*216“$50.00 January 3, 1953 No. 173
Received of Kenneth J. Wintle
Fifty and OO/xx--------------Dollars
Payment on note to late Geo. A. Libby, Balance due if paid before January 10, 1953 $159.5b
by Carl R. Wright, Adm. Geo. A. Libby est.”
On January 9, 1953, plaintiff prepared his check for $159.54 but there is no allegation that it was tendered to or accepted by the defendant on that day. We note that there was no endorsement on the check to indicate that it was tendered in full payment or in discharge of the pending action or the like. On January 10,1953, the defendant gave the plaintiff his receipt as follows:
“$159.54/100 January 10, 1953 No. 179
Received of Kenneth J. Wintle
One Hundred Fifty-Nine and 54/100 Dollars Payment on note to late Geo. A. Libby Writ entered in court before received check.
by Carl R. Wright, Adm.
Geo. A. Libby est.”
The plaintiff alleges that this payment was “in full of the indebtedness demanded of him by the said defendant.” Whether this has reference to the defendant’s demand or offer of settlement which expired on January 9, or is intended to allege that the defendant’s demand was the same on January 10, is not decisive of this issue. The question is rather whether the defendant fraudulently induced the plaintiff not to appear in court and raise the defense of payment.
The writ was made returnable to the term of court held in January, 1953. The plaintiff here failed to make appearance and judgment was rendered against him by default for $163.94 with costs of $11.95. On a subsequent execution, [217]*217credit was given for the payment of $159.54. When cited to disclose, the plaintiff here again failed to appear and was subsequently arrested on a capias execution on which the officer was instructed to collect $28.58.
There are no other material averments bearing on what we deem to be the determinative issue here. It is apparent from the allegations of the declaration that plaintiff was given an opportunity to settle his obligation at any time “before”
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Webber, J.
We are here asked to examine the sufficiency of the declaration in a writ which invokes the ancient remedy of audita querela. Tested by demurrer, the declaration was deemed insufficient by the presiding justice below and exceptions were seasonably taken to his action in sustaining the demurrer.
“The writ (of audita querela) is a remedial process to relieve a party who has been injured or who is in danger of being injured from the consequences of a judgment because of some improper action of the party who obtained it which could not have been pleaded in bar to the action.” Martin’s Notes on Pleading page 87; 5 Am. Jur. 491. “Such process, according to the authorities, is ‘in the nature of a bill in equity, to be relieved against the oppression of the plaintiff.’ It lies where, after judgment, the debt has been paid or re[214]*214leased, and yet the debtor is arrested, or in danger of being arrested, on an execution issued on such judgment; and where the debtor has had no opportunity to avail himself of such payment or release, in defense; and in other cases where a defendant had good matter to offer in defense, but had no opportunity to offer it before judgment against him.” (Emphasis supplied) Bryant v. Johnson, 24 Me. 304 at 306. The remedy is preserved by statute, R. S., 1954, Chap. 127. “It is a general and well settled principle that when a party has had a legal opportunity to make his defense, or when the injury of which he complains is to be attributed to his own neglect, he cannot be relieved by an audita querela.” 5 Am. Jur. 493, sec. 3; see Radclyffe v. Barton, 161 Mass. 327, 37 N. E. 373; Staniford v. Barry, 15 Am. Dec. (Vt.) 692; Goodrich v. Willard, 77 Mass. 380, 11 Gray 380; Walter v. Foss, 67 Vt. 591, 32 A. 643; State v. Hall, 17 S. W. (2nd) (Mo.) 935; Parker v. Murphy, 215 Mass. 72, 102 N. E. 85. The neglect of the party to make seasonably the defense available to him will defeat his right to the writ of audita querela even when that neglect stems from his ignorance of the existence of the defense, where it is apparent that by the exercise of reasonable diligence, he could have ascertained it. Avery v. U. S., 12 Wall. (U. S.) 304, 20 L. Ed. 405. “But a payment of a part of a demand, or of the whole of it, made before judgment, could not support * * * * an audita querela: because it was the folly of the party, that he had not the advantage of it before judgment rendered.” Thatcher et al. v. Gammon, 12 Mass. 268 at 270. A contrary rule would overlook the necessity of putting an end to litigation, would result in “great confusion” and “perpetuity of disputes,” and “would lead to endless embarrassments in the administration of justice.” Thatcher et al. v. Gammon, supra, at page 271; Avery v. U. S., supra, at page 306.
In a few instances the writ has been allowed where the alleged defense was available at the trial but not made be[215]*215cause of the intervention of the fraud and deceit of the defendant which actively prevented the introduction of the defense. In Lovejoy v. Webber, 10 Mass. 101, payment was made after suit but before judgment, and the court in determining whether audita querela would lie, said at page 104, “Before judgment was entered indeed the adjustment had been made; but with an understanding that the suit was thereby finally compromised, and was to be discontinued by the care of this defendant. In this the plaintiff was deceived : but the present defendant is not to avail himself of this fraud, which is pointedly, and as he has confessed, truly alleged against him.” (Emphasis supplied.) Plaintiff’s declaration in the writ of audita querela was adjudged sufficient. Likewise in Bower, Inc. v. Silverstein, 298 Ill. App. 145, 18 N. E. (2nd) 385, payment in full having been made after suit but before judgment, the defendant promised the plaintiff that he would instruct his attorney to dismiss the case, and the plaintiff, in reliance on the promise, left town and disregarded the pending litigation. In his absence, judgment was taken against him. Here also audita querela was deemed applicable. We are satisfied, however, that in neither the Lovejoy case nor the Bower case would the court have allowed the use of the remedy had there not been present active and affirmative fraud and inducement on the part of the defendant which effectively intervened to prevent the making of the available defense.
With these principles in mind, we proceed to a consideration of the averments of the voluminous declaration before us. The declaration discloses that plaintiff owed an interest bearing note to the estate of which defendant was administrator. Suit on the note was instituted and service made on the present plaintiff in December, 1952. His second payment on account was made on January 3, 1953, at which time he received from the defendant a receipt as follows:
[216]*216“$50.00 January 3, 1953 No. 173
Received of Kenneth J. Wintle
Fifty and OO/xx--------------Dollars
Payment on note to late Geo. A. Libby, Balance due if paid before January 10, 1953 $159.5b
by Carl R. Wright, Adm. Geo. A. Libby est.”
On January 9, 1953, plaintiff prepared his check for $159.54 but there is no allegation that it was tendered to or accepted by the defendant on that day. We note that there was no endorsement on the check to indicate that it was tendered in full payment or in discharge of the pending action or the like. On January 10,1953, the defendant gave the plaintiff his receipt as follows:
“$159.54/100 January 10, 1953 No. 179
Received of Kenneth J. Wintle
One Hundred Fifty-Nine and 54/100 Dollars Payment on note to late Geo. A. Libby Writ entered in court before received check.
by Carl R. Wright, Adm.
Geo. A. Libby est.”
The plaintiff alleges that this payment was “in full of the indebtedness demanded of him by the said defendant.” Whether this has reference to the defendant’s demand or offer of settlement which expired on January 9, or is intended to allege that the defendant’s demand was the same on January 10, is not decisive of this issue. The question is rather whether the defendant fraudulently induced the plaintiff not to appear in court and raise the defense of payment.
The writ was made returnable to the term of court held in January, 1953. The plaintiff here failed to make appearance and judgment was rendered against him by default for $163.94 with costs of $11.95. On a subsequent execution, [217]*217credit was given for the payment of $159.54. When cited to disclose, the plaintiff here again failed to appear and was subsequently arrested on a capias execution on which the officer was instructed to collect $28.58.
There are no other material averments bearing on what we deem to be the determinative issue here. It is apparent from the allegations of the declaration that plaintiff was given an opportunity to settle his obligation at any time “before” January 10, 1953 for $159.54; that he failed to take advantage of that offer; that on January 10, 1953 he made payment in that amount which, for aught that appears to the contrary, either in the receipt or from the conduct of the parties, was given and accepted as a payment on account; that defendant here neither receipted for the payment as in full discharge of the obligation in suit nor offered or agreed that he would withdraw the writ or dismiss the action. On the contrary, his receipt of that date, inferentially at least, gave warning and notice that his intention was otherwise. The receipt acknowledged payment “on” the note, not of it. It did not recognize the payment as in full or as in discharge of the pending suit. There is no suggestion in the declaration that the note itself was given to or demanded by the plaintiff. The receipt specifically called attention to the fact that the writ had already been filed in court for entry, without suggestion or commitment as to what further should be done with it. The plaintiff here alleges no act or conduct of the defendant which would tend to induce or entice him to neglect the court action or fail to raise a defense of payment whether in part or in full. Unless fraudulently induced by the defendant, such neglect is fatal to the right to audita querela. To hold otherwise would be to destroy the universally accepted limitations upon the use of the remedy, and to invite a flood of litigation attacking the validity of the judgments of our courts.
[218]*218The defendant here is a- practicing attorney while the plaintiff is a layman presumably unskilled in the law. We do not intimate or suggest by this opinion that we condone or approve anything less than the most meticulous care and responsibility on the part of a member of the legal profession when dealing with a layman. We would have no hesitation in expressing in unmistakable language our disapproval of the conduct of any attorney at law who failed in any duty to give full explanation or advantaged himself improperly of the ignorance of a layman as to the legal consequences of any proposed settlement. But this matter is before us on demurrer. This defendant is not denied the use of demurrer in an appropriate case merely because he happens to be an attorney. The technical restrictions upon demurrer are such that it is impossible for the defendant to use it to attack the legal sufficiency of the declaration in the writ and at the same time raise affirmative defenses which might explain or justify his conduct. While a demurrer admits the truth of the allegations for the purpose of determining the legal sufficiency of the declaration, it does not go so far as to admit their truth for other and unrelated purposes. In his use of demurrer the defendant here employs a proper vehicle and says in effect, “Assuming for the moment everything you have alleged, still the remedy of audita querela is not a proper one upon the facts alleged and the law applicable thereto.” In this legal position the defendant is correct as the presiding justice properly ruled. We think that censorship of the defendant’s conduct at this stage and before he has been heard upon the merits would be premature and ill advised. This court has great power to destroy the reputation and confidence enjoyed by a member of the legal profession. That power must be exercised with the greatest care and restraint and only upon certain knowledge that the attorney merits rebuke. Until we have before us legal evidence which demonstrates some failure in the performance of professional duty on the part of the [219]*219defendant, we will reserve our judgment as to whether or not his conduct properly subjects him to censure.
The entry will be,
Exceptions overruled.