Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1860-02-10
Decision Of the Supreme Judicial Court, Declar-
ing Invalid the Proceedings of Judge Hodges
in the Case of H D. Stone.


ing Invalid the Proceedings of Judge Hodges
in the Case of H D. Stone.
We find in the Boston Daily Advertiser the
following report of the recent decision of the
| Supreme Court touching the affairs of Henry
d. Stone The report that the judges did not
all concur in the decision was incorrect The
case was argued before Chief Justice Shaw
and Justices Metcalf, Bigelow, and Merrick,
who concurred in the decision given below.
Justices Dewey and Hoar, who were not pres
ent at the hearing concurred with their asso.
GATES and the judgment is given as the deci-
sion of the Court:
To the President, Directors, &C., of the Grafton
Bank, compliments Us. VIM ". Bicktord ct
al, assignees of the estate of Henry d,
Stone, in insolvency.
The respondents were chosen assignees of
the estate OF Henry d. Stone, resident of the
county of Worcester, doing business in said
county, at a meeting of his creditors held per-
suant to warrant issued by Hon. Horace l.
Hodges, Judge of Insolvency for Hampshire
county, under the circumstances hereafter
mentioned. After they had entered upon the
duties of their office, they presented a petition
to the court of insolvency, setting forth that
the president, directors and company of the
Grafton Bank, had concealed and secreted Ger
tain property belonging to the debtor, and
praying that they might be cited in to answer
to this charge, and upon the petition of the
compliments were cited to appear before the
Insolvent Court. Wherein they applied to
Mr.. Justice Metcalf, of the Supreme Judicial
Court for an injunction to restrain all further
proceeding in the case, on the ground that the
Judge OF Insolvency, who issued the original
Al,
temporary injunction was granted and the
questions involved came up on motion to
dissolve the injunction, and were argued before
the Chief Justice and Justices Metcalf, Bige-
low and Merrick, at the last October term.
The facts disclosed at this hearing were sub
stantially as follows -
On Jan. q, 1858, Hon. A H. Bullock Judge
of Insolvency for the county Of Worcester,
resigned, and no other person was appointed
and qualified in his stead until after said war
rant was issued by Judge Hodges. Franklin
county was the county adjoining Worcester,
having the least number of inhabitants, ac-
eording to the next preceding decennial cen
sus, but before Jan. l. 1858, Horace g. New
comb, Judge of Insolvency for that county,
had died, and no person was appointed and
qualified to succeed him until after the
issuing of said warrant. Hampshire county,
for which said Hodges was Judge of Insolv-
ency, was the county adjoining Franklin,
having the least number of inhabitants, ac-
cording to said census, and also the county adj
joining Worcester having such least number
except said Franklin.
Upon the death of Judge Newcomb and the
resignation of Judge Bullock, and until the
appointment of their successors, Judge Hodges
had, upon being notified of such death and re-
signation, acted as Judge of Insolvency to said
counties of Franklin and Worcester, in all the
cases that arose in said counties during said
vacancies, and no other person so acted.
Among the cases thus coming before him in
the county Of Worcester, was that of Stone,
in which he issued the warrant for the first
meeting, at which the respondents were chosen
assigneeS as before mentioned.
The provision of the statute 1855, CHI. 284
81 is as follows "lf any of said judges SHALL
from sickness, absence, or other cause, be I'M
able 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 *** if such case shall arise in
any other county than Dukes county or Nam
tucket, shall be performed by the judge of the
insolvency court of that adjoining county hav
ing the least number of inhabitants, according
to the next preceding decennal census"
Upon the facts above stated, the petitioners
contended, among other things, that
~ The provisions of stat 1856, CHI. 284,
5, did not authorize the judge Of the insolv-
ency court Tor the adjoining county therein
specified to act in case of a vacancy in the Of
flee Of judge of insolvency, caused by death
or resignation.
~ Assuming that the judge of Franklin
county might be summoned in, to act in Wor
cester, there was no judge Of insolvency in the
county Of Franklin, to be summoned
| The case was under Amusement until last
week, when decision was made and re-
script sent TO the clerk for Worcester county.
1t was held (all the judges who sat at the
hearing concurring,) that the provisions of
the statute above cited refer to an existing
judge temporarily disabled, only and not to
a vacancy in the Office, for which no provision
is made. The acts Of Judge Hodges, there
fore, having been taken during an entire va
cancy in the office for Worcester county, and
not while judge of that county was disabled
from performing his duties, by any OF the
causes mentioned in the statue, all the pro-
ceedings in the case were void. And on this
| ground the injunction was made perpetual.
b. f. Thomas and w. +. Slocum for COM
plainants c. Devens, Jr., and G. f. Hoar for
respondents