This is a controversy between different classes of creditors, claiming rights adversely to each other; and the parties have agreed upon a statement of facts, as far as they affect the question of jurisdiction.

The question in the present case depends upon the true construction of the St. of 1856, c. 284.

This act made considerable alterations in the system of insolvent laws, commencing with St. 1838, c. 163, and altered and modified by many intermediate acts. One great purpose of the act seems to have been to establish a court of a fixed and permanent character, where all insolvent proceedings should be afterwards commenced and conducted. It constituted a court of record, to be held by a judge commissioned and qualified for the office according to the constitution, to be paid by a fixed salary, such court to be established in a fixed place for keeping its records in the shire town of the county; also to have a recording office and a register to record its proceedings. And all the jurisdiction in cases of insolvency, before that time, vested in judges of probate, masters in chancery, or commissioners of insolvency, was thenceforward to be vested in such court of insolvency. Dearborn v. Ames, 8 Gray, 1.

*571There is a provision that the judge, as well in vacation as at a stated court, may do certain things which may be considered as matters of course, which require no order of notice or hearing of parties; implying that the other and ordinary business of the court is to be done in court, and in presence of the register. These considerations are perhaps not otherwise of importance than as they tend to show the fixed and permanent character of the court, and the mode of conducting its judicial proceedings, compared with the former administration of the insolvent laws.

The, fifth section of St. 1856, c. 284, is as follows: “ If any of said judges shall, from sickness, absence or other cause, be unable 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, if such case shall arise in the county of Dukes County or Nantucket, be performed by the judge of the insolvency court of Barnstable County; and if such case shall arise in any other county than Dukes County or Nantucket, such duties shall be performed by the judge of the insolvency court of that adjoining county having the least number of inhabitants according to the next preceding decennial census. And the register of the court within whose jurisdiction such case shall arise shall make upon the record of the case a certificate of such inability, upon its being made known to him, and shall forthwith transmit a certified copy of the same to the judge whose duty it is to act in the case, and who shall, during such inability, act in the case in the county in which the case shall arise.”

Upon a careful examination of this section of the statute, looking at the general scope and purpose of the provision, and at each particular clause and word, we are of opinion that it was not intended to provide for calling in a judge from a neighboring county to hold a court when the office of the regular judge of such court is vacant; but that it was intended to provide for invoking such aid, when the office is full, but when the incumbent is unable, from sickness, absence or other cause of similar kind, to perform the duties which might be justly re-quired of him, if such disability did not exist.

*572The importance of this question seems to make it necessary to analyze this section and examine it in detail. The exigency specified by the statute is the inability of the judge, by reason of sickness or absence, not merely when the judge is absent, or when the judge is not present.

Again; no duties can be required to be performed by a deceased person, or by one who has been, but has ceased to be, a judge. These words rightly describe duties to be performed by an absent judge, that is, an existing judge not present. The words are “ required of him.” If it had been merely “ duties of the office,” it would have been easy to use other words, or words equivalent, instead of the words “ required of him,” which imply an existing person. And further, “in any case arising within his jurisdiction ” — the jurisdiction of such judge. Can a judge be said to have any jurisdiction, when he is out of office by death or resignation ?

A similar argument may be drawn from the clause requiring a certificate to be made by the register of the court. He shall make upon the record of the ease a certificate of such “ inability ” of the judge upon its being made known to him; not of his death or resignation. In the present case, the register did not enter on his book a certificate of the inability of the judge to attend by reason of absence, but the fact of the resignation of Judge Bullock, and the consequent vacancy in the office. We do not mean to say that this certificate was wrong; on the contrary, it is the only certificate he could make with truth, and it was strictly correct.

The theory of construction which would render a vacancy in the office of judge an exigency for calling in a judge of insolvency from another county, would seem to require a certificate to be entered by the register, to some such effect as this :

“ I hereby certify, that by the resignation of Hon. Alexander H. Bullock, late judge, &c. the office of judge of insolvency for the county of Worcester is now vacant, and I further certify the inability of the said judge, by reason of absence occasioned by such resignation, to perform the duties required of him.”

Such a certificate seems to be almost contradictory; and yet *573it only states in words the necessary facts, if the theory of interpretation relied on in support of the jurisdiction of Judge Hodges is correct. That theory implies that the absence, that is, the mere non-presence of any judge qualified to act as judge of insolvency in any county, although there be no such judge, because the office is vacant, and that fact known to the register and certified on his record, is an “ inability ” which, under this statute, warrants the calling in of a neighboring judge.

Then taking the whole section and reading it through, we can come to no other result than the one stated, as to the intent and purpose of the legislature.

It is argued, however, that all the reasons of urgency which apply to the case of the disability of an incumbent in the office, apply to the case of a vacancy. In answer to this argument we say that when the terms of a statute are clear and free from ambiguity, and the matter is plainly within the scope of just legislative authority, there is not much room for questioning the reasons on which the legislature have acted. But there are some considerations which may have influenced the legislature in making a distinction between inability of an incumbent and a vacancy. The inability may continue for months, or even years, when business would suffer extremely if there is no relief; and yet no successor can be appointed when there is no vacancy. But under the appointing power of the executive, the vacancy may be filled in a fortnight, and ordinarily would be filled in the course of a few weeks.

It is the manifest policy of the law, that the important judicial duties of a judge of a court of insolvency for a county, should be performed by a permanent local judge, rather than by the temporary service of a judge from another county.

If it be said that this judgment comes too late, and after the irregularity in the commencement of the proceedings has been too long acquiesced in to be now disturbed, we answer that we have not the piecise date before us at which this bill was filed, and we think it was not at a great distance of time; but however this may be, the substantial answer, as it appears to us, is, that lapse of time could only be evidence of acquiescence and *574consequent consent; and in a case like the present, affecting a great variety of persons and interests, consent cannot give jurisdiction.

It is argued, among other things, for the defendants, that the validity of these proceedings in insolvency cannot be drawn in question, in a collateral proceeding. Supposing this argument to be correct, we think its operation is to support this bill which seeks distinctly to set aside the whole proceedings, by a single judgment, and is therefore not a collateral proceeding. Had these plaintiffs brought their action at law, and attached the property of Stone as their debtor, and the assignees had placed their title on the ground of the assignment under the authority of these insolvent proceedings, and the plaintiffs had attempted to sustain their right to attach, because the proceedings in insolvency were void, that would have been a collateral suit, within the meaning of the rule. But this summary proceeding, according to the course of chancery, is given by the original insolvent act, in the nature of an appeal, to any party aggrieved, in order that the validity of the insolvent proceedings may be drawn in question once for all, and sustained or reversed in whole. Wheelock v. Freeman, 4 Met. 504. Several other cases have been since before us, upon bills in equity to set aside proceedings in insolvency, on the ground that it is the appointed and appropriate mode of determining the legality of the proceedings, and by one judgment affirming or reversing them.

On the whole case, the court are of opinion, that the injunction to stay all proceedings must be made perpetual.

Decree accordingly.

Note. By the Gen. Sts. c. 119, § 4, in case of a vacancy in the office of judge, the duties shall be performed in the same county by the judge of any other county designated by the register. And by St. 1860, c. 70, all insolvency proceedings before Judge Hodges in the counties of Worcester and Franklin, so far as they were ineffectual or invalid for want of jurisdiction or authority of said Hodges under the St. 1856, c. 284, § 5, are “ confirmed, and the same shall be taken and deemed good and valid in law to all intents and purposes whatsoever”