Page:The Granite Monthly Volume 2.djvu/189

 DECISIONS OF CHIEF JUSTICE SMITH.

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��amount of a debt secured by a mort- gagees a bar to a suit afterwards brought by the principal defendant up- on the mortgage against the trustee. The dicta in this state upon this point have been very conflicting and it must be a wise man who knows what the law is.

Morey v. Orford Bridge, 91, contains a valuable discussion of the constitu- tional question as to whether a grant of a ferry and the like is a contract which the constitution of the United States prohibits the states from impairing. This decision was made six years be- fore the opinion was given by Chief Justice Marshall, in Fletcher v. Peck. Judge Smith held that the grant of a ferry is against common right and must therefore be construed strictly. This doctrine was affirmed in the supreme court of the United States in the Charles River Bridge case, contrary to the opinions of Marshall and Story. Judge Smith also held that a ferry and a bridge, though they serve the same end, are things totally distinct in their nature ; that a grant of a ferry does not prohibit persons from crossing or ena- bling others to cross in any other way ; and that the grant of a ferry would not infringe the grant of a bridge.

In Frost v. Brown, 113, it was held that where a minor had contracted for his own services, and his employer had agreed to pay him therefor, his earn- ings could not be attached on trustee process by a creditor of his father. Ig- norant of its existence, the legislature many years afterwards, re-enacted this decision.

In the case of St. John's Church at Portsmouth, 17S, it was held that the exercise of corporate privileges for up- wards of a century, recognition in an- cient records and papers, and in acts of the legislature, were evidence of due incorporation.'

In Currier v. Basset, 191, it was held that towns may settle disputed lines so far as respects jurisdiction.

In the case of Flanders v. Herbert, 205, it was held that a writ of attach- ment, without a declaration, is not a writ, and that no officer could justify under it. -

��In Doe v. Morrell, 255, it was held unlawful for one tenant in common of a house, to make partition with a saw.

We had before heard of an eccentric lawyer in Vermont, who summarily dis- solved the firm of which he was a mem- ber, by sawing his partner's name off their common shingle.

In Cornish v. Kenrick, 270, the his- tory of the origin of proprietary and town governments is summarized. An examination of the reports of the su- preme court of the United States and of the states, shows that nobody out- side of New England, and compara- tively few within it, ever understood either.

The opinion in Boynton v. Emerson, 298, was the foundation of the magnifi- cent argument of Parker Noyes which carried the court with him in the noted case of Weld v. Hadley, 1 N. H., 295, in which it was held that a tender of specific articles, unaccepted, vested the property in the chattels in the person making the tender.

In Hodgdon v. Robinson, 320, it was held that where an execution is ex- tended upon two tracts of land, it is not necessary that the same persons should be appraisers on both tracts.

Thompson v. Bennet, 327, contains a masterly opinion by the chief justice that a deed attested by only one wit- ness is inoperative. This decision was afterwards disregarded by the majority of the superior court, and from that time to this confusion has reigned. The decision in French v. French, 2 N. H., 234, was as bold an act of judicial usur- pation as that in Taltarum's case.

The editor makes an ingenious effort to reconcile the decisions in Hastings v. Cutler, 24 N. H., 48 1, and in Bar- ker v. Bean, 25 N. H., 412, and we presume would reckon Gooding v. Ri- ley, 50 N. H., 400, as in harmony with Barker v. Bean. It would seem impos- sible to any one who knew the real facts to reconcile these two cases. The truth is that when Hasting v. Cutler and Barker v. Bean were decided, one judge as a rule knew little about the opinions of any other judge. The cases were divided among the judges.

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