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The opinion of the court was delivered by

Williams, Ch. J.

Iir this case, Warner, the complainant,' has brought a writ of audita querela to be relieved from a judgment recovered by Thaddeus Crane, in his life time, .against the complainant, Warner. The error complained of, and- for which .relief was sought in the audita qieerela, was that the clerk entered a judgment against the said Warner, and in favor of the said Crane, for a larger sum than he was entitled to, The judgment was affirmed in the supr.eme' court in this county, and the ' execution' issued from this court. ' This writ of audita querela'was brought" against Crane, in his life time, before the county court, 'and, while it was,there pending, Crane deceased, and his estate was represented insolvent, His administrator,' Green, was cited in to appear at the county court, and, at their term in May, 1843, moved to dismiss, the writ.and complaint for the reasons- set forth in his motion. On this motion the county court dismissed the complaint, to which Warner, the complainant, filed exceptions; and the question now is, whether the county court- rightly dismissed the same.

The object of this .audita querela is both-to be relieved from.the judgment complained of, and 'to recover, damages. The.county court had no jurisdiction to effect either of -these objects. . .

The judgment was rendered in the supreme court; arid, although it is true that original jurisdiction of all civil actions is given by statute to the county court, yet this cannot extend to judicial writs, which, from their nature, must issue from the court where the record of the judgment remains on which it is designed to operate. Hence a. scire facias, either on a judgment or recognizance, or against the person who has become bail on a writ, must issue from the court where the final judgment is rendered. An audita querela is a judicial *82writ, and was so declared to be in the case of Gleason v. Peck et al., 12 Vt. 56. At common law it was usually granted at the discretion of the court. As our court is not always in session, the statute has confided this discretion to a single judge. When the object of the writ is to vacate a judgment or execution, it must, from the character of the writ, issue from the court where the judgment was rendered. The judgments of the supreme court are not to be vacated by any inferior tribunal; nor are their executions to be stayed at the discretion of a judge of the county court. The county court had no jurisdiction of the-present complaint.

On the other question presented, viz., whether an audita querela can, in any case, be sustained against an executor or administrator, it is not necessary for us to determine. There may be cases where, unless the suit could be sustained by, or against an executor or administrator, there would be a failure-of justice. In the present case it may be remarked that, if the object of the complainant was to recover damages of Crane, the intestate, if such claim survived, the jurisdiction over it is>. by statute, transferred to the commissioners appointed to receive, examine, and adjust the claims against his estate. Commissioners on estates represented insolvent are empowered to try and decide upon all claims, without distinction, which by law survive against, or in favor of executors or administrators, except claims for the possession of real estate. And, when commissioners are appointed, no action, except, as before mentioned, in relation to the possession of real estate, can be commenced or sustained.

In the present case, as one object of the writ was to operate on a judgment of the supreme court, it could only be had before that court; — the other object, viz., to recover damages, in consequence of the death of Crane could only be obtained before the commissioners appointed on his estate. The judgment of the county court is therefore affirmed'.

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