The opinion of the court was delivered by
Bennett, J.This is an audita querela, brought to set aside an execution, issued upon a judgment rendered in an action founded upon a contract, entered into since the first day of January, 1839. The execution issued against the body of the judgment debtor, and he had been taken into custody by the officer, who had the execution for collection. As, in such case, the execution should issue only against the estate of the debtor, and not against the body, this execution issued against law, and would, no doubt, have been set aside upon motion; and it is contended that there can be no relief by audita querela.
It is true that the process of audita querela does not bear upon the judgment of the court, but upon the acts of the opposite party. There is no complaint in this case of the preceedings of the Court, but the party has taken an illegal execution, and attempts to have it executed. The process of the court is used to effect an illegal purpose, to the injury of the complainant, and he has had no opportunity of being heard in court. There are cases in the English books, showing that where an elegit has issued, and the sheriff has delivered to the creditor lands, upon which the elegit was not extendable, the levy may be avoided by an audita querela. In Johnson v. Harvey, 4 Mass. 483, it was held that an execution, irregularly issued upon a regular judgment, might be set aside, either upon motion, or audita querela. In Hurlburt v. Mayo, 1 D. Ch. 390, an execution was, upon audita querela, set aside upon the ground that there had been a fraudulent levy made of it upon real estate. One piece of land, of less value, was caused to be appraised, and the return upon the execution was made to embrace a different piece, of greater value.
In the case before Us the execution was wrongfully issued against the body. The creditor is attempting to make use of it, for the illegal and oppressive purpose of restraining the complainant of his personal liberty. Though the complainant might have a summary *256ielief by motion to set aside the execution, yet we think the audita querela must be, in this case, a concurrent remedy; and, in many instances, it would be the only adequate remedy.
The judgment of the county court is affirmed.