The opinion of the Court was pronounced by
Williams, J.This is a writ of audita querela to which the defendant pleads the Statue of Limitations in bar.— The Statute is “ that no judgement or proceedings in Courts of Justice in any real or personal action shall be
It is considered that the writ of Audita Querela is in the nature of a bill in equity, for the purpose of obtaining com-*553reversed or avoided for any error or defect therein unless the writ of error or suit for reversing such judgement or proceedings in course of justice be commenced and duly served on the defendant, or defendants in error, within one year next after the rendition of the judgement, or within one year next after such error or defect shall have intervened.” To this plea the plaintiff has demurred:
The Courts in this State have considered the writ of au-dita querela as a remedy applicable to cases like the one set forth. In the case of Marion vs. Wilkins, 1 Aik. 107, and in the case of Dodge vs. Hubbel, 1 Vt. Rep. 491, it was recognized as a principle in our system of jurisprudence, that an audita querela is' a proper remedy when a judgement of a Justice of the Peace has been obtained against a party, who has had no suitable notice to appear and defend against the same. It is emphatically the proper remedy when a party has been precluded from having notice by the misconduct of the party who obtained the judgement. To maintain this writ, it is not necessary that the party who brings it, should be actually in execution. It is sufficient if he is liable to an execution on a judgement obtained against him without notice. He may sustain his writ of audita querela quia timet.
The object is not always to annul or vacate a judgement. It frequently supposes the judgement to be regular and is brought to set aside the execution. The object is sometimes for the recovery of damages alone. Annulling the judgement is rather the incidental than the direct object of the writ.
It is not a writ of error, or in the nature of a writ of ef-ror or certiorari, to reverse a judgement. The judgement therein is never to affirm, though it sometimes is to vacate a judgement. If it were a writ- of error or in the nature of a writ of error, it would not be brought to examine a judgement rendered by a Justice of the Peace, as the judgement of a Justice of the Peace, can only be reversed on appeal; and are not subject to removal, or to be re-examined or reviewed in the language of the Statute “by writ of error certiorari or any other process whatever, (sec. 7 Justice act) whereas it is expressly admitted by the 12th Section of the judiciary act, that a writ of audita querela *554may be brought on a judgement rendered by a Justice of the Peace.
It differs from a writ of error or certiorari in this, an au-dita querela is founded upon facts not appearing on the record and not before the Court who rendered the judgement. These facts must be set forth. They may be traversed or their sufficiency denied by a demurrer. It is in the nature of an original suit, or as it is sometimes said, in the nature of a bill in equity. A writ of error is founded upon the record, brings it up for the examination of the record and correction of any errors intervening therein. Unless it be for some error in fact, as infamy, &c,, no issue of fact can be joined thereon.
A writ of certiorari brings the record and in some cases the evidence upon which the adjudication was had by the inferior tribunal, and when they are certified, the Supreme Tribunal determine upon them whether the decision of the inferior was correct, and either affirm or quash the proceedings, but no facts are to be controverted and tried by jury-
From this view of the nature of a writ of audita querela, it is obvious that it does not, and cannot come within the section of the Statute of Limitations before mentioned.
That Section (Sec. 11 Limitation Act) appears designed to limit the time within which a writ of error, or writ in the nature of a writ of error shall be brought for the purpose of reversing a judgement. It speaks of the defendant or defendants in error, also, of errors or defect in the judgement; and although the term made use of is more general, to wit, “ the writ of error or suit for reversing the judgement” yet we think that by the term suit, must be understood such a suit as brings the record in controversy, and has directly for its object the reversing a judgement for some error or defect therein, and is in the nature of a writ of error. In this view it would probably embrace the writ of certiorari.
It is very clear that it would not be extended to all writs of audita querela as the cause for which the writ may be brought may not arise in many cases under more than a year from the rendition of the judgement, as in the case o-t payment or discharge, of one of two joint debtors from *555commitment on an execution, and an alias execution issuing more than a year thereafter.
Moreover as an erroneous judgement supposes that the' party had regular notice of the process on which the judgement was rendered, he knows whether error has intervened, In those proceedings which are subject to be reversed or quashed on certiorari, the party is supposed to have notice and may well be limited to bring his writ to reverse the judgement within a year..
But in a judgement like the one here complained of, the party is supposed to have no notice. He may neither know of the judgement or the manner in which it is procured until years after it was rendered. To limit him to a year within which he must bring his suit would in effect deny the remedy altogether.
As the section of this Statute does not name a writ oí audita querela, as it could not with propriety be extended without doing violence to the spirit of the law giving the remedy, as well as the Statute of Limitations, we are of opinion that tne plea does not interpose any bar to the plaintiff’s writ.
This will lead us to examine the complaint, and inquire whether there are those defects in it which have been urged. It is said there is no allegation of fraud and deceit in the defendant, and we are referred to the case of Lovejoy vs. Webber, 10 Mass. 101, where it is said that such an allegation is essential. The book is not in town so that we can examine the case. If it decides that the words fraudulently and deceitfully, must be made use of in a writ, without which it would be bad, I should hesitate before I could subscribe to the authority. If it decides that those facts must be set forth which show fraud and deceit in the party complained of, this declaration is not liable to objection on that account.
Though somewhat loosely drawn and though it does not particularly specify the manner in which the writ was' served, yet it does say that the defendant caused a return to be made by the person deputed to serve the writ, that a copy was left with him when he (Seaver) knew no such copy was left, and that complainant had no notice of the suit. This is a sufficient allegation of fraud and deceit in *556defendant, to satisfy that requirement in the declaration if it be necessary.
If this return had been made by a Sheriff or a regular officer, it might be questioned whether such an allegation
would be received against his return. Whether his return would not be conclusive as to that part, not to be controverted in a writ of audita querela and the party left to take his remedy for a false return.
Rut however this may be as to returns made by the regular officers, no such effect can be given to a return of service made by a person deputed at the risque and request of the plaintiff in a suit. The acts and doings of such a person, if done at the request and by the procurement of a plaintiff may be treated as the act of the plaintiff himself and are not entitled to that confidence which is reposed in the doings of a Sheriff or Constable.
We do not discover that the declaration is insufficient or that it will not stand the test of a demurrer. The judgement of the Court is that the plea in bar is insufficient, and the judgement rendered as purported to have been rendered by John Skinner, Esq. a Justice of the Peace in favor of the defendant, Seaver, against the complainant, Stone, is hereby annulled, and the plaintiff recover his damages and costs.