
    Marsh vs. Haywood.
    X. Where the jurisdiction 'Of a court of chancery fails, all power of the court over the subject matter fails also, except to give judgment for costs.
    2. Where a judgment is attempted to be enforced by execution which has been satisfied or released, the execution may be suspended by supersedeas and on motion satisfaction may be entered in the court from which the execution emanated.
    3. The writ of audita querela is obsolete in this State.
    4. When a defendant answers a bill in chancery and contests the merits of the case without objection to the jurisdiction, the court will entertain the bill unless the matter be unfit for equitable cognizance.
    This is a bill which was filed in the Chancery Court at Lewisburgh, by Marsh against Haywood, to restrain the enforcement of a judgment obtained in the Supreme Court at Nashville, by Haywood against said Marsh and one Ross on the ground that the said judgment had been satisfied and discharged. The defendant Haywood answered and denied the satisfaction of the judgment in part. The Chancellor dissolved the injunction on a bond to refund having been given; the money was collected and paid over to Haywood. Proof was taken and at the hearing at the June term, 1845, the Chancellor being of opinion that a court of chancery had no jurisdiction ordered the bill to be dismissed, and gave a decree to Marsh for the money he had paid on the dissolution of the injunction and ordered that Haywood might proceed with execution from the Supreme court. Haywood appealed.
    
      Rainey, for the complainant.
    1. He contended that the old remedy in cases of this kind was the writ of audita querela. That writ was used to relieve upon good matter of discharge which had happened after judgment, as where the plaintiff had given a release, or the defendant had paid'the debt to plaintiff without procuring satisfaction to be entered on the record. In these and the like cases, says Tomlin, voí.'l, p. 131, an audita que-rela lies in the nature of a bill in equity to relieve the defendant against the oppression of the plaintiff.
    The writ of audita querela is nearly obsolete in England. 3B .Com.; 1 Salk. R. 93; Ray. 439, and is absolutely unknown and obsolete in the practice of this State.
    The remedy by supersedeas and by motion, on the return of such supersedeas, has not been used in cases of difficulty and doubtful facts. “It has been said by Eyre, Ch. J. that the court will interpose in a summary way in all cases where the party would be entitléd to relief on an audita querela, but the point must be clear or they will not assist him.”— Bacon Tit. audita querela, page 428. This is therefore a case proper for the intervention of a Chancellor.
    2. The defendant answered without objection to the jurisdiction. That question is waived more especially as the appropriate remedy by audita querela, is a proceeding “in the nature of a bill in equity.”
    
      M. Haynes, for defendant,
    For the defendant it is contended: 1st. That the Chancery Court had no jurisdiction over this cause; that it was a matter wholly within the province and under the control of this court.
    By the act of 1835, “ch. 3, sec. 15, Nicholson and Caruth-ers, page 237, the Judges of the Supreme Court, or any one of them, on a proper case being made out, shall have authority to grant the process of supersedeas to an execution returnable to their own-court.”
    Supersedeas from this court is the proper remedy in cases of this kind. See 2 Yerg. R. 579; 4 Yerg. R. 184,6; 9 Yerg. R. 32; 3 Black. C. 313, (n. 3.)
    
      The office of an injunction is fully stated in 2 Story Eq. Ju. 200. This case is not within its scope.
    2nd. The Chancellor erred in decreeing that the defendant should refund the money collected on the injunction bond.— 2 Dev. and Bat. Eq. R. 501; where it is decided, that when the jurisdiction fails, all power of the court (except for costs against the complainant,) also fails. See also 2 Yerg. Rep. 579; 8 Yerg. R. 162.
    3. The proper remedy, if Marsh is entitled to any relief, would be by motion founded on petition, &c. in this court, for supersedeas to set aside the execution. Formerly, (and perhaps now,) the writ of audita querela was the proper remedy, where a party sought to be relieved from an execution upon good matter of discharge, which had happened since judgment. But see 3 Black. Com. 313; 4 Yerg. 186, and 9 Yerg. 32; 1 Bacon’s Ab.; 5 Randolp. Rep. 639; 4 Johns. R. 191; 2 Hill, R. (S. C.) 298.
   Green, Judge,

delivered the opinion of the court.

This bill was filed to enjoin an execution issuing out of the Supreme Court, on the ground that it has been discharged and satisfied.

The bill states that in the year 1833, the defendant, Haywood, recovered a judgment for $700 or $800 in the Supreme Court, against Marsh, the complainant, and one Thos. Ross; that a short time after the rendition of the judgment, Ross paid into the clerk’s office at Nashville, one half of said judgment, and that an execution issued for the balance due thereon, which was fully paid- and satisfied in a settlement between the complainant and defendant, notwithstanding which, the said Haywood has lately caused an execution to be run against the complainant for one half of the judgment aforesaid.

The defendant admits in his answer, that he received a note of $50, which the complainant held on him as part payment of the sum due on the execution; and states that the complainant represented that he had other notes on defendant to the amount of $250 or $300, which he offered to give up in further discharge of the execution, and which the defendant agreed to receive in that way.

He exhibits a note from the complainant, dated 22d June, 1834, stating that he was ready to pay the costs whenever the amount could be ascertained, and that he would meet the defendant at any convenient place and pay him, and let him have his notes.

The answer states that the notes here mentioned, were afterwards put in suit, and the defendant was compelled to pay them — -and no part of the execution has been paid, except the $50 aforesaid.

Proof has been taken showing that the execution, or a large portion of it has been satisfied by some arrangement between the parties. The' Chancellor dissolved the injunction on the coming in of the answer, and the defendant has had satisfaction of the execution.

On the final hearing the bill was dismissed for want of jurisdiction, and the defendant was ordered to refund the sum collected on the dissolution of the injunction, but had leave to sue out his execution from the Supreme Court on the original judgment. From this decree the defendant appealed.

1st. We think his honor, the Chancellor, erred in decreeing that the defendant refund the money collected, if, as he supposed, the court had no jurisdiction of the cause. When the jurisdiction fails all the power of the court also fails, except to give judgment for costs. 2 Dev. & Bat. L. and Eq. R. 501.

2d. But we are of opinion, that the case made by the bill and answer, is fit for equitable relief. Possibly a demurrer to the bill would have been allowed; but the defendant chose to answer, and contest the merits of the case. No objection to the jurisdiction can now be heard, unless the cause is of a character unfit for equitable relief. Unquestionably the simple and proper remedy where an execution has been satisfied and the plaintiff refuses to enter the satisfaction, is by motion. If in vacation, the execution is in the hands of an officer for collection, a supersedeas may be granted upon a proper application; and at the next term, the court may, on motion hear proof, and order the satisfaction to be entered.— This summary remedy has been adopted to save the trouble and expense of resorting to the audita querela. Where a party has good matter to plead in discharge which has happened since the judgment, an audita querela would lie in the nature of a bill in equity to relieve him against the oppression of the plaintiff. But the indulgence of the court in granting summary relief upon motion where the remedy was formerly by audita querela, has occasioned this remedy to be very rarely resorted.to in England. Nevertheless, where the ground of relief is. a release; where there may be some doubt about the execution, or some matter of fact which cannot be clearly ascertained, and, therefore, proper to .be tried, the court has driven the defendant to his audita querela; 2 Black. Com. 406 and note 3. But the audita querela is obsolete in this country, and therefore, if the case present complication and difficulty, or where the facts may be in the knowledge of the other party, a bill in chancery is the proper remedy.

In the case before us, it is manifest from the bill and answer, that the parties had some settlement of the matter now in controversy, and satisfaction has been received to some extent by the defendant. He states an agreement to receive satisfaction in his own notes, and he makes an exhibit of a letter of the complainant recognizing such agreement.

From his own confession satisfaction has been made, at least in part; and although the complainant might have obtained relief by motion in this court — yet, as the defendant has answered the bill, and the trial of all these facts on motion would have been embarrassing, we do not think the complainant ought to be refused the relief he seeks in equity.

The decree will be reversed, and the cause will be referred to the clerk and master to take an account and state what payments have been made upon the execution, and to what extent it has been satisfied, and he may hear additional testimony.  