Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1860-02-07
,7-r c.sE oF HENRY D. STONE.

,,o-sons. sufficiently learned in the law
-, an Intelligent opinion in the case, be-
49, tbo decision of the Supreme Court touch
inc the affairs of Henry D. Stone in insolven-
cv 10 be contrary to what the law requires. 1t
is not clear to them that even the letter of the
law warrants such decision. Judge Hodges
of Hampshire county was called on to serve
in the courts of insolvency in both Worcester
and Franklin counties, under a provision of
the enactment of 1856, which was intended to
authorize such a proceeding. That enact
ment provides that, in certain cases, proceed
ings in insolvency in the counties Of Dukes
and Nantucket may be under the jurisdiction
of the Judge of insolvency for Barnstable coun-
tv ; and in each other county application shall
be made to the judge in such other adjacent
county as may have the smallest number of
inhabitants according TO the next preceding
decennial census" In describing the circum.
stances which will authorize the jurisdiction
of Judge of insolvency from another county,
the statute of 1856 said =
eff any of said judges [of insolvency. shall
from sickness, absence, or other cause, be I'M
Bble to perform the duties required OF him IN
any case arising within his jurisdiction, or
shall be interested in any such case, the duties
required of him shall be performed [by other
Judges as above stated
In the new revision of the statutes, this pro-
vision reads thus -
"In case of vacancy in the Office of judge
Tof insolvency, ! or Of his sickness, absence, or
inability to perform his duties, or of his inter-
est in case arising in his county, the duties,
while the vacancy or impediment continues,
or in cases in which he is interested, shall be
performed" [by other judges as already stated
1t will be noticed that in this version of the
law, the word vacancy" is added, but nothing
is added to the actual meaning OF the statute.
The construction of the Court appears to have
been, that the enactment of 1856 did not speci-
fly or provide for the case of a uacancy in the
Office of Judge of insolvency, by death or
resignation. But this, with every other close
construction of the law, is met by that action
of the legislature which distinctly recognized
and sanctioned the jurisdiction of Judge
Hodges, in this county, and provided payment
for his services. The following is among the
resolves passed in 1861
Resolved, That for reasons set forth in his
petition, there be allowed and paid out of the
treasury of the commonwealth, to Horace /.
Hodges of Northampton, judge of the court of
insolvency for the county of Hampshire, the
sum of two hundred and twenty-five dollars
one hundred and fifty dollars being for his SER
vices for attending the court of insolvency in
the county of Franklin, from the middle of
August eighteen hundred a I'd fifty seven, to
the date of the passage of this resolve; and
seventy five dollars for his services for attend
ing the court of insolvency in the county of
Worcester, after the resignation of Alexander
II. Bulloch, Judge of that court, to the date OF
the passage of this resolve; said allowance be-
ing in accordance with the provisions of the
fifth, section of the two hundred and eighty
fourth chapter of the acts of eighteen hundred
and fifty-six; and the governor is hereby au-
thorized to draw his warrant accordingly
This resolve, as will be seen, distinctly spec
ifies that the Office of Judge of insolvency in
Worcester county was vacant, and sanctions
the jurisdiction of Judge Hodges in the most
explicit manner. 1t covers the whole case, and
seems intended to silence every question that
might be raised. The Supreme Court declares
(not unanimously, however, that Judge Hodg-
es had no jurisdiction in Worcester county.
The Legislature declared that his Jurisdiction
was valid, and paid him for his services. There
are not many who will undertake to deny that
the Legislature is higher authority than the
court, or to question its competency to declare
the meaning of statute. Add to this view of
the case the consideration that equity seemed to
demand from the court a different Judgment,
and we have all that is necessary to explain
the feel ing with which the decision rendered
has been received wherever the case is under
stood.
The judges of the Supreme Court have had
this case under consideration since last Octo-
Der. We understand, that, until recently,
Judges Merrick, Metcalf, and Bigelow, were
in favor of such decision as has been render
ed, while Judges Shaw, Hoar, and Dewey,
were against it. Finally Judge Dewey chang
ed his position, and thus turned the scale in
favor of the judgment that has been recorded.
This report however, may not be quite cor
rect. Here in Massachusetts,, we are SO accus'
toned to bestow upon the proceedings of our
Supreme Court the greatest amount of respect,
and the smallest possible amount of criticism,
that no man among us likes to engage in seri-
GUS controversy with any of its decisions.
But, after all, that court is just as human as
every other part Of our political and social
machinery, just as liable to mistakes and i'm.
projections, and just as much in need of honest
criticism.
In the Senate, yesterday, a bill was intro.
duced by Mr.. Parker, to provide against the
seri GUS confusion of affairs, and the wrong to
innocent parties, which are likely to result
from this decision This bill, we understand,
was prepared under the supervision of the
most competent legal advisers. We print it
in full in another column. Judge Hodges had
the jurisdiction of between forty and fifty
cases in this county, and there is great need
that something should be done TO secure the
certainty, in all these cases, that what has been
fairly settled in accordance with the forms of
law, should not now be unsettled and thrown
into wild confusion.
The class of aspiring, oficious, wellinten-
toned, and nleddlesome young men, whose