| Vt. | Jan 15, 1824
delivered the opinion of the Court.
The errors assigned are, That the declaration and replication of the plaintiff were adjudged to be insufficient in law, and that the defendants recover of the plaintiff their costs.
In order to determine the sufficiency of the declaration, it becomes necessary to enquire whether it sets forth such a bond as the Sheriff was, by law, authorized to take. For a gaol bond, being a creature of the State, if it is taken in a case where none by law can be received, it is necessarily void, and no sufficient declaration can be predicated upon it.
This declaration describes the bond as having been given upon the admission of a debtor to the liberties of the prison, in a case where the debtor stood committed upon an execution, issued upon a judgment rendered against him, on audita querela, at the suit of one Moses Benedict, for ten cents damages and for $14 95 costs of suit. The only statute then in force giving authority to the Sheriff to take a gaol bond, which can have any bearing upon this case, (it not being a judgment for costs simply)
An audita querela is not a proper action of debt, covenant, contract or promise; for it does not lie to enforce the payment or to recover damages for the non-performance of either. It is described by Blackstone in his Commentaries, and in 2 Coke 29, as being an action in the nature of a suit in equity. It is rather an equitable action in the nature of trespass, by which the complainant seeks to be relieved from some oppressive injustice, brought under color of legal process by the cotnplainee, and to recover the damages consequent thereon. It is not a case within the statute. The bond therefore was void, and the Sheriff guilty of voluntary escape in admitting the defendant, Barney, to the liberties of the prison.
But if the law were otherwise on this point, the judgment of the County Court must, nevertheless, be affirmed; for by the 12th section of the same act, authority is given to a Court of gaol delivery, to discharge a prisoner, on being admitted to the poor debtor’s oath in all cases, where by the 10th section, the Sheriff is empowered to admit him to bail; in which case the defendant’s plea in bar must necessarily avail them.
It has been urged in argument for the plaintiff in error, that inasmuch as the nature of the action in which the judgment was rendered was not inserted in the execution, the Sheriff was bound to admit to the liberties, and accept of the bond. But it does not follow that because the Legislature have directed the authorities issuing executions, to insert therein the nature of the actions, in certain specified cases, the Sheriff is authorized to admit to the liberties, in all other cases. Previous to the act of 31st January, 1804, the Sheriff was left to ascertain the nature of the action, in all cases, in such manner as he could. It is indeed to be regretted, that since the Legislature have attempted to remedy that inconvenience, the provision does not extend to every case within it.
It has also been attempted to sustain this action on the ground that the bond was a voluntary bond, and therefore binding. . But
The judgment of the County Court is therefore affirmed.