
    The Town of Poultney v. The Treasurer of State.
    
      Extent for collection óf taxes, fyc. Audita querela.
    
    
      Audita querela is a judicial writ, founded upon the record, and upon common law principles is directed to the court in which the judgment was rendered, and where the record remains.
    
      Audita querela cannot be sustained in the County Court, to set aside an Extent from the Treasurer of the State for collection of taxes.
    
      Audita querela to set aside an Extent from the Treasurer of the State, for the collection of taxes. After demurrer and joinder in demurrer, the defendant moved to dismiss, on the ground that the court has no jurisdiction of the subject matter of the suit.
    The County Court, September Term, 1852, — Collamer, J., presiding, — dismissed the cause for want of jurisdiction.
    Exceptions by plaintiff.
    
      J. B. Beaman t and Edgerton Sf Allen for plaintiff.
    1. The Extent is in the nature of an execution, and like an execution, is issued to enforce the payment of a supposed liability, and if issued in the absence of such liability, should be set aside; and it is insisted that the proper remedy is by audita querela. Comp. Stat. 292, § -6. Ball v. Sleeper, 23 Vt. 574. Phelps v. Slade, 13 Vt. 195. Sawyer et al. v. Vilas, 19 Vt. 43.
    2. The Treasurer had no authority to issue an Extent against the town, unless he has previously, and within thirty days after the time limited for the payment of the tax, issued his Extent against the constable. Comp. Stat. 468, § 36,37, 38. Comp. Stat. 469 § 43.
    The town cannot act under this last section, and are not empowered to make payment to the Treasurer, in any manner, until after the Treasurer has issued his Extent against the' constable and the town — and it would oftentimes operate great injustice to the town, as it would do in the present case, to allow the Treasurer to withhold his Extent for two years, (and if two years, a longer time,) until the constable and his sureties have lost all ability to re-imburse the town; and besides, it is insisted that the selectmen have the power to issue their tax bill under this 43d sec. only when the Treasurer shall have issued his Extent as aforesaid, that is, as allowed by the 38th section; and this latter section allows an Extent against the town only when the sheriff shall return milla bona, in “such Extent” as shall have been issued against the constable under the power given the Treasurer by the 36th section; that is, a power to issue it “ within thirty days,” &c. 2 Cow. & Hill’s Notes, 1003.
    
      C. B. Harrington, and M. G. Bvarts, and Peck fy Colby for defendant.
    1. The writ Audita querela is authorized by our statutes, but the eases in which it will lie, (with the exception of judgments rendered by justices of the peace,) must be determined by the principles of the common law. Stamford v. Barry, 1 Aik. 321.
    It is a judicial writ founded upon the record, &c. Gleason v, Peek et al. 12 Vt. 56.
    ■ In the case of Garfield Sr Wife v. The University of Vermont, 10 Yt. 536, it was held that a writ of audita 'querela wss a writ at common law, issuing from a court of law; and that the statute only recognized it as a writ to stay proceedings ia a. judgment by a court of law.
    The Treasurer’s Extent, sought to be set aside- by- this, proceeding, did not issue upon a judgment of any court of law, nor is it in. the nature of an exéeution.
    2. This court sits as a Court of Error, to revise the decisions of the County Court; and it is well settled that the court can only consider such questions as have been raised in and. decided by the court below. Patridge v. Davis, 2.0 Vt, 199. Savgmni v. Butts, 21 Vt. 99.
   The opinion of the court was delivered by

Bennett, J.

The question in this case is, has the County Court power to set aside an Extent from the Treasurer of the State, for the collection of taxes, upon an audita querela.

Though the statute gives the County Court power to issue this writ, yet the cases in which it may be issued must be determined by the principles of the common law. 1 Athens, 321. 10 Massachusetts, 101. 17 Massachusetts, 153.

The audita querela is a judicial writ, founded upon the record, and upon common principles is directed to the court in which the judgment was rendered, and where the record remains,

The process sometimes acts directly upon the judgment, by setting it aside; yet more ordinarily, it acts upon the execution issued on such judgment.

In the case before us, there is no judgment and no record in the court to which this audita querela was directed, and if it can be sustained, it ceases to be a judicial writ, and might be resorted to, to set aside any Extent for the collection of taxes, down to a school district tax.

The case of Hurlburt v. Mayo, 1 D. Chip. Rep. 387, has been relied upon to sustain this process; but we apprehend it has little bearing upon the question. In that case, a fraud was perpetrated upon the officer, who extended the execution upon the real estate of the debtor. One parcel was appraised, and another described in the officer’s return, and for this fraud the levy was set aside upon .an ayidita querela. In the English Books there are cases in which an Elegit has been set aside upon audita querela, it having been levied upon more than a moiety of the lands subject to the Extent. But the Extent termed an Elegit is always issued upon a judgment of a court of competent jurisdiction, and the eases cannot by analogy sustain Abe present process.

We apprehend this is the first instance of an attempt to sustain an audita querda, to set aside an Extent for the collection of taxes; .and that to sustain it, would b.e $t war with the fundamental principles relative to that peculiar process. It is not for us to say what the remedy for the town must be, if ¡they have sustained an injury which should be redressed. All that is now necessary for us to decide is, that this process cannot be .sustained.

The judgment of the County Court is .affirmed.  