The cases were reserved after a full hearing; and therefore, though the motion might have been proper if made earlier, it is now too late. The plaintiff cannot have recourse to two remedies ; if the audita querela gives him a remedy, the bill in equity will be dismissed; and vice versa.

T. H. Sweetser Sf A. R. Brown, for the plaintiff. The judgment of the defendant against the plaintiff was made up erroneously by the clerk, in the plaintiff’s absence, on the supposition that the prior judgment had been fully satisfied. The plaintiil did not know of th mode of taking judgment until too late to *175bring error. The defendant did not levy his execution for some years, though the plaintiff was a man of property. He Knew that no real satisfaction of the former judgment had been obtained, and was guilty of a fraud in obtaining the judgment in the form he did against the plaintiff. Under these circumstances, audita querela is the proper remedy. Turner v. Davies, 2 Saund. 148. Dingman v. Myers, 13 Gray, 1. Lovejoy v. Webber, 10 Mass. 101. If not, relief may be afforded under the bill in equity. Ocean Ins. Co. v. Field, 2 Story R. 59. If no other relief remains open for the plaintiff, at least he should be allowed to redeem.

B. F. Butler & W. P. Webster, for the defendant.

The plaintiff in the first suit ileeks, by his writ of audita querela, to be relieved from a judgment and execution recovered against him. To entitle himself to this relief, he must show that something has occurred affecting the validity of the judgment or execution, which he has not had an opportunity to plead.

But on a careful analysis of the case, we do not find that anything has been done, of which the plaintiff has a legal right to complain. The case must be one where legal process has been abused, and injuriously employed to purposes of fraud and oppression. Lovejoy v. Webber, 10 Mass. 101. Now, though the plaintiff’s condition is an unfortunate one, and we are by no means sure that the defendant of those claiming under him, may not have taken advantage of it in a manner not commendable, yet there does not appear to have been any perversion or abuse of the process of the courts.

The plaintiff, iu the first instance, recovered a judgment against the defendant, and caused his execution to be levied by the sale of an equity of redemption in real estate, which he averred was the defendant’s property, and conveyed by him in fraud of his creditors. The execution was returned as satisfied, and appeared by the record to be so. The defendant afterward prosecuted his writ of review, and prevailed therein. A judgment was thereupon rendered in his favor against the plaintiff, for the same amount for which the plaintiff had previously *176recovered his judgment and taken execution. Such a judgment was expressly authorized by Rev. Sts. c. 99, the statute then in force; and if the plaintiff’s execution was really as well as apparently satisfied, it was the only proper judgment that could be entered. In any event, it was a judgment which the court could lawfully enter in its discretion. If the plaintiff wished to show that he had derived no actual benefit from his levy, the time for him to do it was when the judgment in review was entered. It would then have been competent for the court to enter as the judgment in review a reversal of the original judgment. Thayer v. Goddard, 19 Pick. 60. Carrique v. Bristol Print Works, 8 Met. 444. And this judgment would have effected complete justice between the parties, because the execution and levy would have become inoperative, with the reversal of the judgment upon which they were founded. Or, when judgment was rendered for the plaintiff in review in its present form, the present plaintiff might have brought scire facias on his original judgment, and have shown that the apparent satisfaction of his execution had failed, and thus obtained a new judgment to be used in set-off.

But the real source of his difficulty is, that he paid no attention to the entry of judgment in review, and made no application to the court for the entry of such a judgment as would protect him. The court had no means of knowing that a complete title to the equity of redemption sold on the execution had not been obtained, or that the title had not passed to some purchaser in good faith. Under these circumstances, they rendered the usual, legal, proper judgment in review. If the present plaintiff suffers by it, it is the consequence of his own inattention and neglect. He is in no worse condition than that of any party in a case where there are cross judgments, and an omission to procure a set-off of the judgments on executions.

Judgment for the defendant.

In the second suit, for the reasons already given upon the audita querela, the plaintiff has no title to relief in equity against the judgment and execution which the defendant has enforced against him.

*177We can see no reason, however, why this bill may not be sustained as a bill to redeem from the levy on execution, for which purpose it was seasonably begun, A decree for redemption may therefore be entered upon the terms provided by Gen. Sts. c. 103, §§ 26, 29, 30, 31.