The plaintiff has shown no case for sustaining an audita querela. The facts stated show that he had knowledge of the service of the writ against him by an attachment, and of course he must have had notice of the existence of the suit, although he might not have known the precise day when it was returnable. But, what is of more importance, the service as to himself was duly made by leaving a summons at his last and usual place of abode. This the statute declares to be a legal and effectual notice. Further, the plaintiff was justly indebted to the defendant in the sum for which judgment was taken. Although in fact the summons did not come to his hands, yet that would furnish no sufficient ground for a stay of execution or the granting of a review, unless some defence existed to the demand.
The fact that the plaintiff had become a subject of proceed- ’ ings in insolvency, pending the action, constituted no defence to the action. It might have been a ground for a motion to continue the case, but such an order was a discretionary *285matter with the judge, and not a matter of legal right with the plaintiff.
But if an insolvent debtor neglects to take the necessary-steps in court to postpone the action, and subsequently a discharge is granted after judgment has been rendered, the party has no remedy by audita querela. Faxon v. Baxter, 11 Cush. 35. This case presents no element of fraud or improper proceedings on the part of the defendant, nor any legal defence to the former action of which the plaintiff has been deprived. Under these circumstances, no ground exists for maintaining the present action.
As to the right of appeal to this court, we think that the statement of facts agreed to by the parties in the superior court was intended to present the question of law, whether, upon the facts stated, this process would lie, and whether any case was shown for sustaining an audita querela and setting aside the former judgment; and the appeal was properly taken.
Plaintiff nonsuit.