Smith v. Haines

58 N.H. 157

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1877
• Status: Published

Opinion

Bingham, J.

The petition was filed in September, 1842, and entered in court at the next October term, and being continued from term to term, judgment was rendered at the May term, 1847. The Revised Statutes took effect March 2, 1843, at which time the petition was pending, and the effect of the judgment depends upon the statute in force at the time the proceeding was commenced. It is provided in the chapter enacting the Revised Statutes, that pending suits and proceedings shall not be affected thereby. Rev. St., c. 230, s. 5. But if it were not for this provision, we do not think that, under the construction given like statutes in this state, Rev. St., c. 37, s. 6, was intended to have a retrospective action. Morrison v. Annis, 48 N. H. 286, and the authorities cited on p. 290.

The statutes in force at the time of the commencement of the proceeding provided that the judgment of the court should be of the same force and effect as would have been an agreement of the selectmen of the towns. Laws of 1830, title 95, ss. 1, 3. An agreement of the selectmen under these sections would have been competent evidence to be considered in the location of the line, but not conclusive. Lawrence v. Haynes, 5 N. H. 33; Pitman v. Albany, 34 N. H. 580; Hanson v. Russell, 28 N. H. 116. The referee erred in holding the adjudication of 1847 to be conclusive evidence of the location of the line.

Case discharged.

Stanley, J., did not sit.