Job v. Walker ex rel. Gieselman

Mason, J., delivered the opinion of this .court. The ancient practice in a case like the present, was by audita querela. Blackstone in his Commentaries, (3 vol., page 405,) says : “An audita querela is where a defendant, against whom a 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 defendant hath paid the debt to the plaintiff without procuring satisfaction to be .entered on the record.” In latter years, this proceeding, both in England and in this country, has fallen almost entirely into disuse. Indeed we know of no instance in Maryland where it has ever been resorted to.

In 1 Bos. and Pul., 428, Chief Justice Eyre says: “ I take it to be the modern practice, to interpose, in a summary way, in all cases where the party would be entitled to relief on an audita querela,” And in 4 Burr., 2287, it is asserted as a general rule, that the courts will not put the defendant to the trouble and expense of an fiudita querela, but will relieve him in a summary way on motion. And in Virginia, the same view is expressed in Smock vs. Dade, 5 Rand., 639. There is no reported case in Maryland in which this summary proceeding, on motion, has been employed, but in an unreported .case, (Mason vs. Stoops and others,) on the Eastern Shore, at June term 1836, relief, in this summary way, was granted to a defendant, by the Court of Appeals, on an execution issued out of that court. By the act of 1829, ch. 51, the appellant has the same