Faxon v. Baxter

Metcalf, J. The court are of opinion that the plaintiff is not entitled to the remedy which he seeks. It is a settled principle, that where a party has had time to take advantage of the matter which discharges him, and neglects it, he cannot afterwards be helped by an audita querela. Com. Dig. Audita Querela, C.; Staniford v. Barry, 1 Aik. 321. “ Allegations of abuse,” says Mr. Justice Sewall, “ are not to be heard as .a ground of complaint, where the party complaining has already had a legal opportunity of defence, or when the injury, if any has been sustained, is to be attributed to his own neglect; for otherwise legal proceedings would be endless.” Lovejoy v Webber, 10 Mass. 103. See also 12 Mass. 270, 271. In the present case, the judgment, from which the party asks to be relieved, was rendered on the 10th of June, 1850; and the note, on which the judgment was rendered, was proved against his estate in insolvency proceedings, on the 9th of May preceding. He, therefore, had an opportunity to resist a judgment in the action at law. He might have appeared in that action, and have obtained a continuance until his discharge in insolvency was granted, and then have interposed that discharge as a bar to further proceedings. Instead of doing this, he suffered judgment to go against him by default. He is a sufferer by his own loches, and has no redress by audita querela. No defence has arisen since the judgment. The plaintiff’s discharge, under the insolvent laws, was granted, it is true, after the rendition of judgment. But the judgment was not [37] thereby discharged; because, as it was recovered after the first publication of notice that a warrant had issued for taking possession of the plaintiff’s estate, it was not provable against that estate. Not being provable, it was not discharged. Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 Cush. 86; Mann v. Houghton, 7 Cush. 592. According to the agreement of the parties, a verdict is to be entered for the defendants