Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1860-02-09
HENRY D. STONE BEFORE THE SUPREME
cnURT ON A WRIT OF HABEAS CORPUS.

On his petition, Henry d. Stone was befor
the Supreme Court, in Boston, yesterday, b
virtue of writ of habeas corpus addressed {
Sheriff Knowlton. He alleged that he We
illegally imprisoned in the Worcester count
Jail, and has been since August e, 1858, hay
ing been committed by the Judge of Probat
and Insolvency for Worcester county. TIL
ca Sc was heard by Chief Justice Shaw.
II. Dewey appeared for the petitioner; J. L
Nelson, Appleton Dadmun, and E. b. Stod
-.sIard for creditors; Dwight Foster for the
Sheriff.
Mr. Dewey presented the petition, which
so,s forth that when the proceedings were
p commenced, the Office Of Judge OF Probate
and Insolvency was vacant, and that the case
was brought before Judge Hodges, of Hamp-
shire county, but there were subsequent hear.
inps before Judge Rice of Worcester county,
and Judge Dlattoon of Franklin county. 1t
was urged that all the acts of these Judges
ere illegal, there being no provision of law
bv which, in case of a vacancy in Worcester
county. the Judge of Probate and Insolvency
for another county could act, and therefore,
as the primary proceedings were not accord
ing to law, all subsequent proceedings were
illegal.
The prisoners petition also set forth that he
was held upon nine writs and processes, each
of which was defective, because each of the
accompanying affdavits failed to set forth, ac.
cording to the requirements of law, that the
plaintiff had reason to believe" that the defend
ant was about to leave the state, and 'that the
plaiutif had reason to believe" that he had prop
erty which he intended to apply to other pur-
poses than the payment of debts" The
omission of the words chad reason to believe"
&C.. it was claimed, invalididated each pro-
cess. 1t was also set forth that three of the
afilavits contained no declaration in reference
to the defendant having property which he did
not intend to apply to the payment of the
plaintiffs.
Another objection urged for the petitioner
was, that these arrests, made upon the
9TH Of June, 1858, (he being already in jail,)
were made after sunset, portion of them be-
ing without sufficient authority from a magis
trate, as provided by the law Of 1857, and that
therefore they were illegal, and two of them
them without any such authority fromsa mag.
istrate.
Some other unimportant points made by the
prisoners counsel were finally waived, and the
case was confined to those above stated.
Mr.. Stoddard, appearing for VIM. Dickin-
son, one of the creditors, answered that after
the return was made, the defendant had an OPP
portunity to take the poor debtors oath, and
declined to do SO, but made no objection to the
return. If however, the return was wrong,
he asked that the officer be allowed to amend
his return. In answer to the objection that
4he plaintiff had failed to say he chad reason"
to believe the declarations made, he urged that
the certificate OF the magistrate showed that
he had become satisfied that the plaintiff chad
reason to believe his declarations, and there
fore it was not necessary to put the words in
the writ
Mr.. Z. L. Nelson, who appeared for the
plaintiffs, in four of the writs, urged that the
writs were sufficient without the words chad
re ason," and the fact that the defendent being
already in Jail when arrested, it was proper to
make the arrest after sunset, without authority
from a magistrate.
After hearing the arguments, Judge Shaw
to ok the case into consideration, and decided
ag ainst Mr.. Stone the points which alleged I'M
pc rfection of the writs, and of the service of
them. He intimated that the afiidavits were
su tficient, and the processes valid.
Thereupon, Mr.. Dewey, for the prisoner,
sked to have the case argued before the full
be nch. This was granted Immediately, and
the hearing before the full bench took place
yesterday afternoon at three o'clock. After
hearing argument, the Judges decided that the
three writs whose accompanying affdavits
failed to have in them the words, ''the defend
ant has property, not exempt from execution,
which he does notintend to apply to the plaintiffs
claim, were not valid. The other six writs were
held under adyisement, and the decision in re.
gard to them will be rendered to-day. The
three writs invalidated were issued in prosecu-
ton of some of the heaviest claims agaicst Mr.
Stone, amounting in the aggregate to some
S25, 900.
The prisoner and others returned TO Wor-
cester in the extra train, which arrived at half
past one this morning. He will remain in Jail
until the final judgment of the Court is de-
clared.