Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1859-07-19

The SUPREME JUDICIAL CoURT held an
adjourned session of the April term, in this
city, yesterday, Judge Bigelow presiding.
The forenoon was occupied with hearing on
bill in equity in the case of Elliott ct al, of
Dorchester VS.. Balcom ct al, of Bridgeport,
Conn. The case was argued on the prelimi-
nary questions, and continued to be heard
Oct. 20 next, at Boston. E. Washburn and
Deyens & Hoar for plaintiffs, and Bacon and
| Dewey for defendants.
In the afternoon, hearing was commenced
on the petition of Henry d. Stone, an insol-
vent debtor, setting forth that he is "unlaw-
fully imprisoned and restrained of his liberty"
on two warrants issued by Hon. Charles Mat
toon, Judge of Insolvency for Franklin coun-
ty, acting for Worcester, Hon. Henry Chaplin
warrants were issued for contempt of court in
refusing to file schedule of his property, and
in refusing to submit to examination concern,
ing the same.
Hon. F. H. Dewey, on behalf of the peti-
toner, stated the objections to the legality of
the commitment, as 1OlloWS:
l. The original warrant in the case of said
Stone was issued by Horace |. Hodges, Judge
OF Insolvency for Hampshire county, said
Hodges assuming to act because there was a
vacancy in the office of Judge of Insolvency
for Worcester county, by the resignation Of
Judge Bullock, and a vacancy in the office of
Judge for Franklin county by death. Therefore,
it was commended, Judge Hodges proceedings
were void, the statute giving no jurisdiction to
the Judge of an adjoining county, in such
case, but only in the case of an existing Judge
| who fails to act.
| q If said Hodges had jurisdiction the pro-
ceedings are void because there was no proper
record ofthe facts which gave his jurisdiction
and no proper certificate of those facts made
| by the Register.
3. The proceedings are void because Hon.
w. w. Rice, who sat as judge in the case at
the meeting where the assignees were chosen,
was disqualified by reason of having been
counsel for creditor of Stone, in the collec-
ton of claim against him.
q. The filing of the schedule and submitting
to the examination by Stone, would tend to fur
nish evidence against him on a criminal charge,
and he had right under the Constitution of
Massachusetts to refuse so to do, and could
not be lawfully punished for such refusal.
5. There having been an Injunction issued
| by the Supreme Court restraining the present
Judge of Probate and Insolvency from proceed
ing with the case, till the further order of the
Court, Stone cannot lawfully be imprisoned
longer upon these warrants.
The Court stated that as the imprisonment
had been submitted to by the petitioner for a
long time without objection, and as many i'm
portant questions were presented, he should
report the fact for the decision of the full
Court Whereupon the parties put in portion
of their testimony, and agreed that Joseph
Mason, Esq, should be appointed commits
sioner to take further testimony, if either
party should desire.
Hon. G. f. Hoar, for the assignees of Stone,
stated that they were prepared to show that
Judge Rice had never been counsel for any
creditor of Stone, in any matter to be affected
by the proceedings in his case, and was not
interested or biased therein.
The case was then continued to the next
October term of the Court, the Judge order
ing Stone to give bail in the sum of 500 900,
which, failing to do, he was remanded FIJI.
Dewey for plaintiff Devens and Hoar for as
signees,