The opinion of the court was delivered by

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,

*170The 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.