Todd v. Barton

Gray, C. J. The objection that the writ of review was improperly granted is not open. It was within the discretion of the Superior Court, if satisfied that the refusal of a continuance had worked injustice to the petitioner, to grant him a review; and the exercise of its discretion was not subject to exceptions. Reynard v. Brecknell, 4 Pick. 302, 304. Boston v. Robbins, 116 293 Mass. 313. A fortiori, no exception having been taken, at the hearing upon the petition, to the order granting a writ of review, the objection to that order could not be first taken at the hearing upon the writ. It is further contended that the discharge in bankruptcy, having been obtained since the original judgment, could not be pleaded upon the review, because no defence is open on a review which could not have been made to the original action. Hart v. Johnson, 7 Mass. 472. Foster v. Plummer, 3 Cush. 381. But the bankruptcy of the defendant was suggested, and a motion for a continuance to await the determination upon the question of his discharge made, in the original action, before judgment. The object of that motion, and its effect, if granted, would have been to enable him to plead his discharge in bankruptcy, when obtained. U. S. St. 1867, e. 176, § 11. Cutter v. Evans, 115 Mass. 27. Pleading that discharge did but perfect the same defence which had been set up in the original action, and was therefore rightly allowed upon the review. Exceptions overruled.