Page:The Green Bag (1889–1914), Volume 06.pdf/88

 Legal Reminiscences.

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LEGAL REMINISCENCES. VI. L. E. Chittenden-. INCIDENTS of the lost art of special pleading seem to interest the younger members of the profession. I will furnish another pair of them. Hathaway guardian v. Rice, was my first victory in this noble warfare. The curious will find it reported in 17 Vermont Re ports or thereabouts. Rice was a school master, Hathaway, the infant, a pupil who ' was impudent, and the master corrected him. Hathaway, pen, sued Rice in an action of trespass, and declared that Rice " with force and arms did assault, beat, wound and injure the youngster, insomuch that his life was greatly despaired of." Rice pleaded the relation of teacher and pupil, averred that the boy was impudent, " wherefore he gently laid hands upon and corrected him as he lawfully might," etc. I demurred to this plea on the ground that it could not justify a wounding. Instead of amending by pleading not guilty to the charge of wounding and a jus tification of the assault and battery, my adversary, fresh from the Harvard Law School, undertook to teach me a lesson in special pleading. He joined in demurrer, and when the court decided against him, carried the case t6 the full bench of the Supreme Court on exceptions. Unmoved by a cart-load of authorities and an argu ment of two long hours, that court affirmed the judgment, but permitted him to amend his plea on condition that he paid all the plaintiff's costs and waived his own, up to that time. He paid up, and as the infant had been saucy and his case promised neither fees nor farther amusement, I dis continued the action! I was younger then or I should not have esteemed it such a famous victory.

Moss v. Hindes was the cause celcbre which illustrated the science of special pleading in Vermont, in the middle years of the present century. Moss was a Hunker who, if he had survived, would have been a Mugwump. He was wealthy, also a miser who owned a large part of the real property in his school district, in which, by the de struction of the old, it became necessary to build a new school-house. Moss declared with profane emphasis that he would not pay a d d cent of the expense. The other voters decided that the school-house should be paid for by a tax on the grand list, or the property within the district. The house was built, the tax warrant issued to the collector, who, as Moss still refused to pay, levied his warrant upon Moss's cattle, and sold them at auction for an amount sufficient to pay the tax. It was quite possible to do all this in a lawful manner. A lawyer would have ad vised the prudential committee of the dis trict that to justify such a proceeding, there must be a record which showed the lawful organization of the district and a compliance with the numerous successive requirements of the law, and that in the absence of such a record the seizure of the property by the collector was a naked trespass. The district was more destitute than the family which " was pretty mueh out of Bible" when the minister called. It was entirely out of record, and in fact had never been the possessor of anything of the kind. Moss knew this fact; his lawyer advised him to lay low and say nothing, and he would have the district at his mercy. That lawyer mis calculated. He did not take into account the boundless resources of the science of special pleading. He commenced the