Page:The Green Bag (1889–1914), Volume 08.pdf/84

 The Supreme Court of Maine. "lottery vender." He filed a plea in abate ment and argued that this addition was an epithet calculated to prejudice the jury, and assumed as proved the very issue to be tried on the plea of not guilty. The court sus tained the plea and discharged the defend ant. In all of the succeeding volumes, in cluding the thirty-eighth, until he went upon the bench, will be found his cases, increasing in number until they reach more than twelve per volume. As the reported law cases in those days rarely ever reached one hundred to the volume, —often much less, — his standing and ability, as described by ChiefJustice Peters, is thus fully corroborated. The prevalent custom, too, of reporting ar guments of counsel more fully than at the present day, affords a field from which to draw instances in which some of those rapier thrusts of " Saladin's sword " were employed to the discomfiture of his oppo nents. In Kowe v. Godfrey, 16 Maine, 128, he argued against the admission of deposi tions containing leading questions to the witness, where opposing counsel was not present, and urged the court to discounte nance the practice in these words: "The practice is to be arrested, or a witness is to be reduced to the position of an automaton, governed and controlled solely by the pul leys and wires attached to him and the counsel." In Billington v. Sprague, 22 Maine, 34, only two of the three referees named in a rule of court had joined in mak ing an award; and counsel, opposed to the acceptance of this report of a majority, claimed that there was no authority to issue a rule authorizing a major part of the ref erees to report, although it appeared that such was the usual form and that there had been a full meeting of the board attended by both parties. Alluding to the conse quences that must follow if this technical objection prevailed, he thus concludes : "Most assuredly writs of error and a rever sal of judgments in all such cases. And the defendant's counsel at this late day shall

65

have all the credit of having made the dis covery, and of springing a trap upon the community and catching his own client." In connection with the authorities cited by the other side in this case he says : " Per haps I ought to except the case of Tetter v. Rapesnyder, 1 Dall. 293. This case I consider no authority; it was only the deci sion of an inferior court, and whether an in ferior judge or not, we have no means of determining, excepting from the absurdity of the decision." The reader does not need to be assured that the opinion of the court, drawn by Chief-Justice Whitman, overruled the technical objection. In Argyle v. Dwinel, 29 Maine, 29, which was a writ of entry to recover a lot of land located for public uses, he argued for the plaintiffs, and claimed that the trustees were not legal ly trustees, and that their acts were void. On this point he said: "And this leads me to the fourth point, or Satan on the mountain, for this board of trustees under take to give away what they do not pos sess." Hodgdon v. Chase, 32 Maine, 169, is a cause eclcbre. His argument, reported in full, showed such terse logic and reasoning that the court, although feeling compelled to decide against him, did not undertake to answer it; saying, orally : " It has been argued by the plaintiff's counsel with much ingenuity and force, but we think the reason ing cannot prevail. To maintain such an action would render the statute inoperative, except to change the form of actions from assumpsit to case or tort." In commending the argument, Chief-Justice Shepley point edly called the attention of the Bar to it, and advised them all to read it. In the leading and oft-cited case, Reed v. Pierce, 36 Maine, 456, he had better success with the court, where his argument was sustained, it being there decided that a discharge in bankruptcy is not a bar to action of covenant broken when the action did not take place until after the filing of the petition in bankruptcy,