Morning herald., 1839-12-27

In Chanccry.
Before the Vice Chancellor Of the First Circuit.
De A.-Darid Hull, cs. JOIN Thomas, Samuel
X. Head James q. Wiison and 4fmos Head.--ln
this case the complainant filed bis bill, alleging that
the defendants, Thomas X Head, his late co-parners,
under the firm Of Head, Thomas, Hull & Co., were
indebted to him in q large sum Of money, including
the amount of his capital advanced to the firm, be-
sides sum which was said to have accumulated out
of the profits of the IL was also charged
in the BILL that after the dissolution of said firm, the
defendant Head, sold out certain property with in
tent to defraud the ompainant This sale was made
10 Wilson and consisted Of press and other prin-
ters' materials. 1t ase alleged that Wilson 9
purchase only colorado, and intended to keep
the complainant out Of possession of said property.
The bill further prayed that Injunction issue
against all the defendants, Head, Thomas and Will
SON. and that receiver be appointed. A motion
was at the same time made for injunction to re-
strain Head j. Thomas from collecting or paying
away any monies.
The motion was resisted by Mr.. Dresser. ON the
part fthe defendants and refused as to Wilson, his
puI chase being pronounced by the to be val :
but the IN 'tion was granted as 10 Head &, homas
and an order made against them. requiring them TO
desst from collecting or receiving &c, any money
due the firm. Before the service of this Injunction
and after the making of the order. Head collected
and received from Wilson, large proportion of the
purchase money due Tor the press &c, and as it
proved, paid over TO Thomas $500, and conve rted
the residue IN other ways. Ii also in proof that
note Of Wilson. which had been received by s. K
Head towards this payment. had been transferred
his brother, Amos Head. In this state Of facts
motion was made by complainant for an attac chment
against s. X. Head Thomas, for violating an order
OF the court. 1t bsing to that they had full
knowledge Of the ord.r, although the injunction had
not been served. This motion, after hearing Heads
counsel was granted, and Ii cad & Thomas were ar.
rested on attachment and brough ht into court 70
answer lnterrogatories Bail was taken as usual and
alter their answers to the nterrogatsres were put
in, the court adjudgcd them guilty Of contempt but
reserved the Imposition OF fine till il should be re-
serred to master to take betw the co.
partners and to ascertain what the sum due the
complainant. This order Of reference was made 10
Thomas Adds Emmett, Esq. master.
Previous to this, and after II ascertaned that
Amos Head had received Of $. X. Head the note of
Wilson, in payment Of money by him lent to S X.
Head, supplemental bill was filed, and Amos Head
made party 10 the suit, and injunction q anted
against him and Wilson, 10 prevent Wilson's paving
the note and Head from receiving it from him;
meanwhile the several defendants had nut in their
answers Ia tn. bill of plant. The master on the
10Th day OF October, 1889, reported that the deen
dants Head and Thomas, owed complainant SlS4I l9;
and soon after the coming in Of his report w. c.
RUSSELL Esq complanant's solicitor, moved that
Head and Thomas be fired that amount, and stand
commttsd till the fine be paid, together with the
costs Of the attachment, etcetera.
This motion was granted, and the same day a war
rant of commitment was issued, on which Head and
Thomas were arrested and committed TO the Debtors
the regular tax en- according to the rules
Of the court. Vide sec. l3i and III.
Mr.. Dresser thereupon sued out writ OF habeas
corpus to bring the bodies Of his clients befo re the
Recorder. This was done on the 18th Instant, and
the writ made returnablc the l7lh. The day pre-.
vious TO the return, Bushnell, the complanant's
counsel, served the Sheriff with a eountermand Of
the commitment, as also the original warrant.
On the 18th, the jalor brought up the prisoners on
the writ, and returned that he held them by virtue
Of both commitments, but refased 10 return that he
held by the last warrant. To this return Mr. Dres-
put in answer denying the validity Of the
writ and moving that the bad been taxed,
aud that the rules o the Court Of Chaneery had not
day e. hear this point argued. After two days
gument by Dresser FOR the defendants, and Bushnell
for the complainant, his Honor promised 10 look
into the matter and give his opinion early day.
On Wednesday (Christmas Day,) His Honour
the Recorder, delivered the following decision and
opinion in writing.
In HE matter Of John Thomas and SAMUEL X. Head upon
Hahea Corym The 42d sections Of the Habess Corpus
N shsll be the duty of such of5ccr forthwith
nd such party IL il snail appear that he detained
ody either Tor any con smp specially and plainly charged
the commitment By court, officer, body, having
thoiiy TO commit for the contempt charged
The commitment must state what the Imprisoned guilty
The two commitments uron winch the defendant. ar. h.
custody, only state that the defendants
contempt mcni ned the order without stating th. con-
duet the de. ndsn were guilty Of which the Vce Chsnee
or adudsed TO be contempt There - nothing in the
mment shelving that the Vice Chancellor had jur,dictios
the acts the conduct o the defendants which he s
Judged 10 be contempt nothing showing he had authority
I, for conemp For hi. reason the
are defective, IN substance required BY law rendering
void.
unnecessary for 20 For The above hereby
discharge said John Thomas Samuel X Head from the
custody of the sheriff aud his Dspute Of the city o. New
YORK. (signccA ROBERT VI. MORALS
Recorder of the city ef N,wYork.
Counsel for complainant, ar Ruse for defendants Mr..
Dresser.