174
��DECISIONS OF CHIEF JUSTICE SMITH.
��taries and town corporations not to be found elsewhere in so compact a form. Secondly, the principles underlying these decisions have been frequently considered in a variety of forms by many of the American courts as well as our own. Thirdly, the compiler him- self, late one of the ablest and clearest headed members of our supreme court, has, by the notes which he has append- ed to these cases, given the profession in a compact form a concordance of the decisions here and elsewhere, wherever the same or similar questions have been considered. These notes show great care and are exceedingly valuable.
We note the following as cases of in- terest : Muzzy v. the Assessors of Am- herst, N. H., 1-38.
This was the pioneer decision here in favor of religious toleration. A ma- jority of the court, Wingate, J., dissent- ing, held that Presbyterians and Con- gregationalists were not the same re- ligious sect, &c.,_within the meaning of the constitution. Before Smith was ap- pointed, the court had decided that Universalists were of the same "persua- sion, sect, or denomination," as Con- gregationalists, and could be taxed for the support of settled ministers of the Orthodox church. This decision was affirmed in Henderson v. Erskine, Cheshire, Oct. term, 1802, by Judges Farrar and Liver more. Smith took no part in this decision, though he seem- ingly acquiesced in it as the settled law of the state. But though a Unita- rian himself, when it came to the ques- tion whether the Presbyterians must pay tribute in this way to the Congregation- alists he stood up stoutly for the inde- pendence of the church of Scotland, to which his kith and kin belonged.
In Kidder v. the Assessors of Dun- stable, 155, .Cheshire, April term, 1807, the case of Kelly v. the Selectmen of Warner is cited, but without any at- tempt to summarize the history of that once famous case, nor does the chief justice seem to have understood what the facts really were.
The Rev. William Kelly was born at Newbury, Massachusetts, October 30,
��1744, graduated at Harvard, in 1767, and was ordained at what is now War- ner, N. H., February 5, 1772, where he resided till his death, May 18, 1813. Warner j at the time of the ordination, was so thinly inhabited, that after the council had convened it was rumored among the people that there were not enough professors of religion in town to form a church, and therefore the ordi- nation must fall through. In this .emergency an old Dutch hunter, who had lately moved into town from New York, anxious to help the council out of their supposed dilemma, sent them word that rather than not have them proceed he would join the church himself, but if they could get along without him he would rather not. The council went on without his assistance. Kelly received, by way of settlement, $100, with an annual salary of ^40, to be increased till it should equal p£6o per annum, and twenty cords of wood. About 1792, Kelly found such inroads made upon his society as to render his support burdensome to his friends, and thereupon gave up his contract, and afterwards was repeatedly refused a dis- mission. Soon after this an unfriendly board of selectmen taxed his property, and collected the tax by distress. Kel- ly brought suit against the selectmen which the town defended, and at the May term, 1798, the court decided that the property of a settled minister of the gospel, under his own management, was exempt from taxation. On March 11, 1 80 1, after he had won this cause, Kelly was dismissed by a council called at his own request.
Fisher v. Steward, 60, is a Claremont case. The court held that one who finds a swarm of bees in a tree on an- other's land, marks the tree, and noti- fies the land-owner, has no right to the honey. This case shows the strength of traditionary law. Many people be- lieve to this day that the contrary is true because the tradition has come down to them on the stream of genera- tions as an heir-loom.
In Melven v. Darling, 74, it was held that an unsatisfied judgment against a trustee in foreign attachment for the
�� �
