delivered the opinion of the court, April 23d 1883.
This was a petition for a writ of audita querela. The court below granted a rule to show cause why the writ should not issue, and subsequently, after hearing, discharged the rule. To this action this writ of error was taken.
We were asked to reverse upon the ground that the writ is of right, and no allowance of the court necessary.. The authorities are not so. While the writ is now seldom used in practice all the precedents, so far as I have had access to them, show that it has been issued upon petition and allowance. A carefully prepared form will be found as a precedent in 1 Tronbat & Haley, at page 1171. The old authorities are uniform that an allowance is necessary and that it can be only issued out of the court in which the judgment was entered. Audita querela is not to be allowed but in open court: 3 Viner’s Abridg. 335; 1 Comyn’s Digest 789; 1 Bul. 149; 2 Bul. 97; 2 Sho. 240; Waddington v. Vredenburgh, 2 Johns. Cas. 229. “ And therefore, when the cursitor has wrote the writ, an allocatur shall be indorsed by the secondary in court Comyn’s Dig. 789. “ So if it be' irregularly granted, a vacat shall be entered upon the record Ibid. And if bail also be given it shall be discharged: 1 Bul. 140.
The learned judge refused to allow the writ for two reasons, 1st. That the plaintiff had been fully heard upon a motion to *567open the judgment, and 2d. That she was not entitled to it upon the merits.
We do not propose to discuss the first proposition, nor to decide the question whether a hearing upon a motion to open a judgment, and a denial of said motion, is a bar to a subsequent proceeding by audita querela for the same cause. The learned judge was clearly right in refusing the motion upon the merits, and we may well defer the consideration of the effect of this antiquated writ until such time as it becomes necessary.
The averments of the petition are extremely vague in their character. Fraud is freely charged in connection with the mortgage, which is the subject of the controversy, but we are not informed who the parties are that committed the fraud. There is no allegation that fraud was practiced upon the petitioner by the mortgagee either in the creation of the mortgage or its execution. She says “ that the fraud, misrepresentation and coercion practiced upon her, render the mortgage totally void.” Whose fraud, misrepresentation and coercion? Of this we are left entirely in the dark, and if the averments are untrue, they are so vague that no indictment for perjury would lie. The chief ground of complaint, however, is that there was no service of the scire facias upon the petitioner, and that the appearance for her by counsel was “without any authority from your peti-, tioner.” ' Here again, while all that is stated may be true, there is much omitted that should have been stated. It may be literally true that the petitioner never authorized Mr. Mutehler to appear for her, and it may be equally true that she knew her husband had authorized him to. appear for both of them, and approved of it. After this lapse of time it would not be a violent presumption that she had authorized her husband to act for her. Indeed, this would be conclusively presumed in favor of a purchaser at a sheriff’s sale : Evans v. Meylert, 7 Harris 402; McCullough v. Wilson, 9 Id. 436. The judgment on the scire facias was entered September 1st 1879. This ap-. plication was made April 28th 1882. There is nothing upon the face of the petition to account for this delay. Nor is there any averment that the petitioner did not know that Mr. Mutehler was employed by her husband, on their joint account, and that judgment had been entered against her by default. If she did know, it was her duty to seek relief at the earliest possible day, and if she did not know such ignorance should have been stated as an excuse for the delay. On the whole the petition is more remarkable for what it omits than for what it avers, and we think the learned judge was fully justified in refusing the writ.
Judgment affirmed.
Sterrett, J., dissented.