Glazier v. Carpenter , 82 Mass. 385 ( 1860 )

Bigelow, C. J,

The record in this case shows that the ap-

peal was regularly taken and duly entered in this court, and that the case was remitted to the court of common pleas for the purpose of trying the question of the validity of the defendant’s discharge. This was in accordance with our well settled practice in similar cases. Morris v. Briggs, 3 Cush. 342. Lewis v. Shattuck, 4 Gray, 572.

If the appeal was wrongly taken, the plaintiff should have either moved for judgment in the court of common pleas when the appeal was claimed, or applied to have it dismissed when it was entered in this court. But he did neither; on the contrary, the case was duly entered in this court, and remained here until it was sent back to the court of common pleas for the very purpose of enabling the defendant to plead his discharge in insolvency. After these proceedings, it was too late for the plaintiff to insist on the objection that the appeal was improvidently taken and allowed. Exceptions overruled.