Page:The Granite Monthly Volume 5.djvu/180

 156 THE GRANITE MONTHLY.

attach the bed unless by some strategy, so he praised the child, got the mother to show it, and ran out doors with it and put it on a snow bank. The mother, as he calculated, disregarding her condition, ran after it, and then he attached the bed as she was no longer upon it.

Whether any such incident ever took place or not is more than I know. I can only say it was told me more than forty years ago by men and women from eighty to one hundred years old, with the incidents of time, name and circumstances ; that I found their statements in relation to similar matters cor- rect j and that I never doubted the story. It was told as illustrating the ex- treme of a bad practice, and not as a common occurrence ; and let us hope for the honor of human nature that it was so, if it ever happened.

3. Under the present practice, a sheriff attaching goods, &c., is bound to take an apparently responsible receiptor ; and it is no concern of the sheriff whether he afterwards becomt-s irresponsible or not ; but such a proposition would have astonished sheriffs and courts alike a century or more ago. Then the sheriff making the attachment had the power to remove the goods if he saw fit, without regard to wind or weather. He could take a receiptor if he chose, but was under no obligation to do so. It was immaterial whether the receiptor was good, bad or indifferent. The sheriff was responsible precisely as if the goods were in his own hands. Some forty or fifty years later the court held that if he removed them in improper weather he rendered himself liable, but even then divided upon the question whether the suit should be brought in trespass or in case.

4. After exemptions from attachment came into existence, it was long the practice to attach the exempted goods when moving. The theory was that they were protected while in use in the house, but when loaded upon the teams lost their character as such. Nobody that I am aware of, had for generations, any more doubt of the soundness of this law than they had of the inspiration of the Holy Writ. It has repeatedly been done within my memory. It was done in my presence when the Montreal Railroad was building from what is now Tilton to Laconia. A tenant of Hienry Tebbetts of Northfield had loaded his goods without paying the rent to remove to some other place on the line where he was to work under his contractors. Tebbetts brought his suit, attached the goods upon the load, and the debtor paid up. So strongly intrenched was this principle in the public mind that in at least fifty instances in my practice, intelligent men have insisted that this was the law of the land.

Judge Colby puts this " delusion," as he terms it upon the same ground as that in relation to " swearing through glass." But the two things rested upon a very different basis. The English judges from the earliest period have been in the habit of charging the jury upon questions of fact. The earlier judges in this State, knowing little or nothing about the law, naturally followed this custom, or fell into the same habit. They were accustomed to tell the juries to scrutinize with care the testimony of those who claimed to have seen others through glass commit criminal acts. It was not an unbending rule of law, but simply a practical suggesdon on a question of fact. The glass at that time was very different from that now in use. It was oftentimes from one third to one half an inch in thickness, of a dusky hue, alternately convex and concave, or waving in form. It was very difficult to discern things through it distinctly.

5. The books are full of discussions upon the subject of divorces a mensaet thoro and a vinculo. The first divorce granted in New Hampshire was from bed and board. No other of that kind was ever granted. All the rest have been from the bonds of matrimony. As the law has always been held in this State, this set both parties free, and as a consequence both had the right to marry again.

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