Phelps v. Bulkeley
Supreme Court of Vermont
Audita querela to set aside an execution issued by a justice of. the peace, upon the ground that an appeal was improperly refused in the case.
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Audita querela to set aside an execution issued by a justice of. the peace, upon the ground that an appeal was improperly refused in the case. The complainant alleged in his writ, that the defendant commenced an action against him upon a promissory note, for $15,00, executed by the complainant, dated Jan. 26, 1846, and made payable to one Ira Carpenter, or bearer, on demand with interest; that at the return day of the writ the complainant appeared and offered in offset anote for $51,17, executed by Ira Carpenter, dated January 1,1845, and made payable to Orange Smith, or bearer, on demand…
1Opinion of the Court
*19The opinion of the court was delivered by
Hall, J.
It was held in Tyler v. Lathrop, 5 Vt. 170, that audita querela might be sustained, where a justice improperly denied an appeal; and the question in this case is, whether the action described in the writ was appealable. The action, being founded on a note for the sum of $15,00, was not of itself appealable; but it would become so, if the defendant pleaded in offset any bona fide demand, exceeding the sum of $10,00. Rev. Stat. chap. 26, sec 51..- Does it appear from the writ of audita querela, which is demurred to, that such a demand was pleaded…
2Cases cited2 opinions
- Tyler v. LathropSupreme Court of Vermont · 1832
- Adams v. BlissSupreme Court of Vermont · 1844
3Cited by3 opinions
- Lee v. SilvaCalifornia Supreme Court · 1925
- Clute v. SteeleNevada Supreme Court · 1871
- Johnson v. KelleySupreme Court of Vermont · 1895