20 Ala. 140 | Ala. | 1852
Tbe proceeding in this case, in tbe court below, cannot be regarded as a preceeding at common law, in tbe strict sense of that term. It is substituted, in our practice, for tbe writ of audita querela, and tbe same rules which governed tbe one, must regulate tbe other, with but slight exceptions. Lockhart v. McElroy, 4 Ala. Rep. 572; Edwards v. Lewis, 16 Ala. Rep. 813; Dunlap v. Clements, 18 Ala. Rep. 778; Rutland v. Pippin, 10 Ala. Rep. 469. This writ, and tbe proceeding on which it was founded, were in tbe nature of a bill in equity; (1 Bac. Ab. 307; 2 Black Com. 405); and tbe ground of tbe jurisdiction to award it is said be, tbe power and duty of all courts to prevent tbe abuse of their process, where an improper, or unjust use is attempted to be made of it, (Lockhart v. McElroy, supra); indeed, it may be properly regarded in all instances, in which tbe matter of discharge insisted upon in tbe petition does not appear on tbe record, as a substitute for a bill in equity. Great latitude must, therefore, be allowed in making up tbe issue, and a corresponding latitude extended to tbe proof under such issue. So, that, even, if tbe matter relied upon by tbe petitioner would form a good equitable satisfaction of tbe judgment, which tbe writ of execution is used to enforce, it may be
We find no error in the record, and the judgment must be affirmed.