permitted to"--he coughed as a suppressed snicker ran round the
court--"that is--may I not--er--Oh, look here! How did you happen to
have the idea of getting a dog?"
Mrs. Appleboy turned the full moon of her homely countenance upon the
court.
"The potato peel came down that way!" she explained blandly.
"What!" exploded the dealer in rubber novelties.
"The potato peel--it spelled 'dog,'" she repeated artlessly.
"Lord!" deeply suspirated Pepperill. "What a case! Carry me out!"
"Well, Mr. Tutt," said the judge, "now I will hear what you may wish to
say upon the question of whether this issue should be submitted to the
jury. However, I shall rule that the indictment is sufficient."
Tutt elegantly rose.
"Having due respect to Your Honor's ruling as to the sufficiency of the
indictment I shall address myself simply to the question of _scienter_.
I might, of course, dwell upon the impropriety of charging the defendant
with criminal responsibility for the act of another free agent even if
that agent be an animal--but I will leave that, if necessary, for the
Court of Appeals. If anybody were to be indicted in this case I hold it
should have been the dog Andrew. Nay, I do not jest! But I can see by
Your Honor's expression that any argument upon that score would be
without avail."
"Entirely," remarked Witherspoon. "Kindly go on!"
"Well," continued Tutt, "the law of this matter needs no elucidation. It
has been settled since the time of Moses."
"Of whom?" inquired Witherspoon. "You don't need to go back farther
than Chief Justice Marshall so far as I am concerned."
Tutt bowed.
"It is an established doctrine of the common law both of England and
America that it is wholly proper for one to keep a domestic animal for
his use, pleasure or protection, until, as Dykeman, J., says in Muller
vs. McKesson, 10 Hun., 45, 'some vicious propensity is developed and
brought out to the knowledge of the owner.' Up to that time the man who
keeps a dog or other animal cannot be charged with liability for his
acts. This has always been the law.
"In the twenty-first chapter of Exodus at the twenty-eighth verse it is
written: 'If an ox gore a man or a woman, that they die; then the ox
shall be surely stoned, and his flesh shall not be eaten; but the owner
of the ox shall be quit. But if the ox were wont to push with his horn
in time past, and it hath been testified to his owner, and he hath not
kept him in, but that he hath killed a man or a woman; the ox shall be
stoned, and his owner also shall be put to death.'
"In the old English case of Smith vs. Pehal, 2 Strange, 1264, it was
said by the court: 'If a dog has once bit a man, and the owner having
notice thereof keeps the dog, and lets him go about or lie at his door,
an action will lie against him at the suit of a person who is bit,
though it happened by such person's treading on the dog's toes; for it
was owing to his not hanging the dog on the first notice. And the safety
of the king's subjects ought not afterwards to be endangered.' That is
sound law; but it is equally good law that 'if a person with full
knowledge of the evil propensities of an animal wantonly excites him or
voluntarily and unnecessarily puts himself in the way of such an animal
he would be adjudged to have brought the injury upon himself, and ought
not to be entitled to recover. In such a case it cannot be said in a
legal sense that the keeping of the animal, which is the gravamen of the
offense, produced the injury.'
"Now in the case at bar, first there is clearly no evidence that this
defendant knew or ever suspected that the dog Andrew was otherwise than
of a mild and gentle disposition. That is, there is no evidence whatever
of _scienter_. In fact, except in this single instance there is no
evidence that Andrew ever bit anybody. Thus, in the word of Holy Writ
the defendant Appleboy should be quit, and in the language of our own
courts he must be held harmless. Secondly, moreover, it appears that the
complainant deliberately put himself in the way of the dog Andrew, after
full warning. I move that the jury be directed to return a verdict of
not guilty."
"Motion granted," nodded Judge Witherspoon, burying his nose in his
handkerchief. "I hold that every dog is entitled to one bite."
"Gentlemen of the jury," chanted the clerk: "How say you? Do you find
the defendant guilty or not guilty?"
"Not guilty," returned the foreman eagerly, amid audible evidences of
satisfaction from the Abyssinian brother, the Baby's World editor and
the others. Mr. Appleboy clung to Tutt's hand, overcome by emotion.
"Adjourn court!" ordered the judge. Then he beckoned to Mr. Appleboy.
"Come up here!" he directed.
Timidly Mr. Appleboy approached the dais.
"Don't do it again!" remarked His Honor shortly.
"Eh? Beg pardon, Your Honor, I mean--"
"I said: 'Don't do it again!'" repeated the judge with a twinkle in his
eye. Then lowering his voice he whispered: "You see I come from
Livornia, and I've known Andrew for a long time."
As Tutt guided the Appleboys out into the corridor the party came face
to face with Mr. and Mrs. Tunnygate.
"Huh!" sneered Tunnygate.
"Huh!" retorted Appleboy.
Wile Versus Guile
For 'tis the sport to have the engineer
Hoist with his own petar.--HAMLET.
It was a mouse by virtue of which Ephraim Tutt had leaped into fame. It
is true that other characters famous in song and story--particularly in
"Mother Goose"--have similarly owed their celebrity in whole or part to
rodents, but there is, it is submitted, no other case of a mouse, as
mouse _per se_, reported in the annals of the law, except Tutt's mouse,
from Doomsday Book down to the present time.
Yet it is doubtful whether without his mouse Ephraim Tutt would ever
have been heard of at all, and same would equally have been true if when
pursued by the chef's gray cat the mouse aforesaid had jumped in another
direction. But as luck would have it, said mouse leaped foolishly into
an open casserole upon a stove in the kitchen of the Comers Hotel, and
Mr. Tutt became in his way a leader of the bar.
It is quite true that the tragic end of the mouse in question has
nothing to do with our present narrative except as a side light upon the
vagaries of the legal career, but it illustrates how an attorney if he
expects to succeed in his profession, must be ready for anything that
comes along--even if it be a mouse.
The two Tutts composing the firm of Tutt & Tutt were both, at the time
of the mouse case, comparatively young men. Tutt was a native of Bangor,
Maine, and numbered among his childhood friends one Newbegin, a
commercial wayfarer in the shingle and clapboard line; and as he hoped
at some future time to draw Newbegin's will or to incorporate for him
some business venture Tutt made a practise of entertaining his
prospective client at dinner upon his various visits to the metropolis,
first at one New York hostelry and then at another.
Chance led them one night to the Comers, and there amid the imitation
palms and imitation French waiters of the imitation French restaurant
Tutt invited his friend Newbegin to select what dish he chose from those
upon the bill of fare; and Newbegin chose kidney stew. It was at about
that moment that the adventure which has been referred to occurred in
the hotel kitchen. The gray cat was cheated of its prey, and in due
course the casserole containing the stew was borne into the dining room
and the dish was served.
Suddenly Mr. Newbegin contorted his mouth and exclaimed:
"Heck! A mouse!"
It was. The head waiter was summoned, the manager, the owner. Guests and
garçons crowded about Tutt and Mr. Newbegin to inspect what had so
unexpectedly been found. No one could deny that it was, mouse--cooked
mouse; and Newbegin had ordered kidney stew. Then Tutt had had his
inspiration.
"You shall pay well for this!" he cried, frowning at the distressed
proprietor, while Newbegin leaned piteously against a pâpier-maché
pillar. "This is an outrage! You shall be held liable in heavy damages
for my client's indigestion!"
And thus Tutt & Tutt got their first case out of Newbegin, for under the
influence of the eloquence of Mr. Tutt a jury was induced to give him a
verdict of one thousand dollars against the Comers Hotel, which the
Court of Appeals sustained in the following words, quoting verbatim from
the learned brief furnished by Tutt & Tutt, Ephraim Tutt of counsel:
"The only legal question in the case, or so it appears to us, is whether
there is such a sale of food to a guest on the part of the proprietor
as will sustain a warranty. If we are not in error, however, the law is
settled and has been since the reign of Henry the Sixth. In the Ninth
Year Book of that Monarch's reign there is a case in which it was held
that 'if I go to a tavern to eat, and the taverner gives and sells me
meat and it corrupted, whereby I am made very sick, action lies against
him without any express warranty, for there is a warranty in law'; and
in the time of Henry the Seventh the learned Justice Keilway said, 'No
man can justify selling corrupt victual, but an action on the case lies
against the seller, whether the victual was warranted to be good or
not.' Now, certainly, whether mouse meat be or be not deleterious to
health a guest at a hotel who orders a portion of kidney stew has the
right to expect, and the hotel keeper impliedly warrants, that such dish
will contain no ingredients beyond those ordinarily placed therein."
* * * * *
"A thousand dollars!" exulted Tutt when the verdict was rendered. "Why,
anyone would eat mouse for a thousand dollars!"
The Comers Hotel became in due course a client of Tutt & Tutt, and the
mouse which made Mr. Tutt famous did not die in vain, for the case
became celebrated throughout the length and breadth of the land, to the
glory of the firm and a vast improvement in the culinary conditions
existing in hotels.
"Come in, Mr. Barrows! Come right in! I haven't seen you for--well, how
long is it?" exclaimed Mr. Tutt, extending a long welcoming arm toward a
human scarecrow upon the threshold.
"Five years," answered the visitor. "I only got out day before
yesterday. Fourteen months off for good behavior."
He coughed and put down carefully beside him a large dress-suit case
marked E.V.B., Pottsville, N.Y.
"Well, well!" sighed Mr. Tutt. "So it is. How time flies!"
"Not in Sing Sing!" replied Mr. Barrows ruefully.
"I suppose not. Still, it must feel good to be out!"
Mr. Barrows made no reply but dusted off his felt hat. He was but the
shadow of a man, an old man at that, as was attested by his long gray
beard, his faded blue eyes, and the thin white hair about his fine
domelike forehead.
"I forget what your trouble was about," said Mr. Tutt gently. "Won't you
have a stogy?"
Mr. Barrows shook his head.
"I ain't used to it," he answered. "Makes me cough." He gazed about him
vaguely.
"Something about bonds, wasn't it?" asked Mr. Tutt.
"Yes," replied Mr. Barrows; "Great Lakes and Canadian Southern."
"Of course! Of course!"
"A wonderful property," murmured Mr. Barrows regretfully. "The bonds
were perfectly good. There was a defect in the foreclosure proceedings
which made them a permanent underlying security of the reorganized
company--under The Northern Pacific R.R. Co. vs. Boyd; you know--but the
court refused to hold that way. They never will hold the way you want,
will they?" He looked innocently at Mr. Tutt.
"No," agreed the latter with conviction, "they never will!"
"Now those bonds were as good as gold," went on the old man; "and yet
they said I had to go to prison. You know all about it. You were my
lawyer."
"Yes," assented Mr. Tutt, "I remember all about it now."
Indeed it had all come back to him with the vividness of a landscape
seen during a lightning flash--the crowded court, old Doc Barrows upon
the witness stand, charged with getting money on the strength of
defaulted and outlawed bonds--picked up heaven knows where--pathetically
trying to persuade an unsympathetic court that for some reason they
were still worth their face value, though the mortgage securing the debt
which they represented had long since been foreclosed and the money
distributed.
"I'd paid for 'em--actual cash," he rambled on. "Not much, to be
sure--but real money. If I got 'em cheap that was my good luck, wasn't
it? It was because my brain was sharper than other folks'! I said they
had value and I say so now--only nobody will believe it or take the
trouble to find out. I learned a lot up there in Sing Sing too," he
continued, warming to his subject. "Do you know, sir, there are fortunes
lying all about us? Take gold, for instance! There's a fraction of a
grain in every ton of sea water. But the big people don't want it taken
out because it would depress the standard of exchange. I say it's a
conspiracy--and yet they jailed a man for it! There's great mineral
deposits all about just waiting for the right man to come along and
develop 'em."
His lifted eye rested upon the engraving of Abraham Lincoln over Mr.
Tutt's desk. "There was a man!" he exclaimed inconsequently; then
stopped and ran his transparent, heavily veined old hand over his
forehead. "Where was I? Let me see. Oh, yes--gold. All those great
properties could be bought at one time or another for a song. It needed
a pioneer! That's what I was--a pioneer to find the gold where other
people couldn't find it. That's not any crime; it's a service to
humanity! If only they'd have a little faith--instead of locking you up.
The judge never looked up the law about those Great Lakes bonds! If he
had he'd have found out I was right! I'd looked it up. I studied law
once myself."
"I know," said Mr. Tutt, almost moved to tears by the sight of the wreck
before him. "You practised up state, didn't you?"
"Yes," responded Doc Barrows eagerly. "And in Chicago too. I'm a member
of the Cook County bar. I'll tell you something! If the Supreme Court of
Illinois hadn't been wrong in its law I'd be the richest man in the
world--in the whole world!" He grabbed Mr. Tutt by the arm and stared
hard into his eyes. "Didn't I show you my papers? I own seven feet of
water front clean round Lake Michigan all through the city of Chicago I
got it for a song from the man who found out the flaw in the original
title deed of 1817; he was dying. 'I'll sell my secret to you,' he says,
'because I'm passing on. May it bring you luck!' I looked it all up and
it was just as he said. So I got up a corporation--The Chicago Water
Front and Terminal Company--and sold bonds to fight my claim in the
courts. But all the people who had deeds to my land conspired against
me and had me arrested! They sent me to the penitentiary. There's
justice for you!"
"That was too bad!" said Mr. Tutt in a soothing voice. "But after all
what good would all that money have done you?"
"I don't want money!" affirmed Doc plaintively. "I've never needed
money. I know enough secrets to make me rich a dozen times over. Not
money but justice is what I want--my legal rights. But I'm tired of
fighting against 'em. They've beaten me! Yes, they've beaten me! I'm
going to retire. That's why I came in to see you, Mr. Tutt. I never paid
you for your services as my attorney. I'm going away. You see my married
daughter lost her husband the other day and she wants me to come up and
live with her on the farm to keep her from being lonely. Of course it
won't be much like life in Wall Street--but I owe her some duty and I'm
getting on--I am, Mr. Tutt, I really am!"
He smiled.
"And I haven't seen Louisa for three years--my only daughter. I shall
enjoy being with her. She was such a dear little girl! I'll tell you
another secret"--his voice dropped to a whisper--"I've found out there's
a gold mine on her farm, only she doesn't know it. A rich vein runs
right through her cow pasture. We'll be rich! Wouldn't it be fine, Mr.
Tutt, to be rich? Then I'm going to pay you in real money for all you've
done for me--thousands! But until then I'm going to let you have
these--all my securities; my own, you know, every one of them."
He placed the suitcase in front of Mr. Tutt and opened the clasps with
his shaking old fingers. It bulged with bonds, and he dumped them forth
until they covered the top of the desk.
"These are my jewels!" he said. "There's millions represented here!" He
lifted one tenderly and held it to the light, fresh as it came from the
engraver's press--a thousand dollar first-mortgage bond of The Chicago
Water Front and Terminal Company. "Look at that! Good as gold--if the
courts only knew the law."
He took up a yellow package of valueless obligations upon the top of
which an old-fashioned locomotive from whose bell-shaped funnel the
smoke poured in picturesque black clouds, dragging behind it a chain of
funny little passenger coaches, drove furiously along beside a rushing
river through fields rich with corn and wheat amid a border of dollar
signs.
"The Great Lakes and Canadian Southern," he crooned lovingly. "The child
of my heart! The district attorney kept all the rest--as evidence, he
claimed, but some day you'll see he'll bring an action against the Lake
Shore or the New York Central based on these bonds. Yes, sir! They're
all right!"
He pawed them over, picking out favorites here and there and excitedly
extolling the merits of the imaginary properties they represented. There
were the repudiated bonds of Southern states and municipalities of
railroads upon whose tracks no wheel had ever turned; of factories never
built except in Doc Barrows' addled brain; of companies which had
defaulted and given stock for their worthless obligations; certificates
of oil, mining and land companies; deeds to tracts now covered with sky
scrapers in Pittsburgh, St. Louis and New York--each and every one of
them not worth the paper they were printed on except to some crook who
dealt in high finance. But they were exquisitely engraved, quite lovely
to look at, and Doc Barrows gloated upon them with scintillating eyes.
"Ain't they beauties?" he sighed. "Some day--yes sir!--some day they'll
be worth real money. I paid it for some of 'em. But they're yours--all
yours."
He gathered them up with care and returned them to the suitcase, then
fastened the clasps and patted the leather cover with his hand.
"They are yours, sir!" he exclaimed dramatically.
"As you say," agreed Mr. Tutt, "there's gold lying round everywhere if
we only had sense enough to look for it. But I think you're wise to
retire. After all, you have the satisfaction of knowing that your
enterprises were sound even if other people disagreed with you."
"If this was 1819 instead of 1919 I'd own Chicago," began Doc, a gleam
appearing in his eye. "But they don't want to upset the status
quo--that's why I haven't got a fair chance. But they needn't worry! I'd
be generous with 'em--give 'em easy terms--long leases and nominal
rents."
"But you'll like living with your daughter, I'm sure," said Mr. Tutt.
"It will make a new man of you in no time."
"Healthiest spot in northern New York," exclaimed Doc. "Within two miles
of a lake--fishing, shooting, outdoor recreation of all kinds, an ideal
site for a mammoth summer hotel."
Mr. Tutt rose and laid his arms round old Doc Barrows' shoulders.
"Thank you a thousand times," he said gratefully, "for the securities.
I'll be glad to keep them for you in my vault." His lips puckered in a
stealthy smile which he tried hard to conceal.
"Louisa may want to repaper the farmhouse some time," he added to
himself.
"Oh, they're all yours to keep!" insisted Doc. "I want you to have
them!" His voice trembled.
"Well, well!" answered Mr. Tutt. "Leave it that way; but if you ever
should want them they'll be here waiting for you."
"I'm no Indian giver!" replied Doc with dignity. "Give, give, give a
thing--never take it back again."
He laughed rather childishly. He was evidently embarrassed.
"Could--could you let me have the loan of seventy-five cents?" he asked
shyly.
* * * * *
Down below, inside a doorway upon the other side of the street, Sergeant
Murtha of the Detective Bureau waited for Doc Barrows to come out and be
arrested again. Murtha had known Doc for fifteen years as a harmless old
nut who had rarely succeeded in cheating anybody, but who was regarded
as generally undesirable by the authorities and sent away every few
years in order to keep him out of mischief. There was no danger that the
public would accept Doc's version of the nature or value of his
securities, but there was always the chance that some of his worthless
bonds--those bastard offsprings of his cracked old brain--would find
their way into less honest but saner hands. So Doc rattled about from
penitentiary to prison and from prison to madhouse and out again,
constantly taking appeals and securing writs of habeas corpus, and
feeling mildly resentful, but not particularly so, that people should be
so interfering with his business. Now as from force of long habit he
peered out of the doorway before making his exit; he looked like one of
the John Sargent's prophets gone a little madder than usual--a Jeremiah
or a Habakkuk.
"Hello, Doc!" called Murtha in hearty, friendly tones. "Hie spy! Come on
out!"
"Oh, how d'ye do, captain!" responded Doc. "How are you? I was just
interviewing my solicitor."
"Sorry," said Murtha. "The inspector wants to see you."
Doc flinched.
"But they've just let me go!" he protested faintly.
"It's one of those old indictments--Chicago Water Front or something.
Anyhow--Here! Hold on to yourself!"
He threw his arms around the old man, who seemed on the point of
falling.
"Oh, captain! That's all over! I served time for that out in Illinois!"
For some strange reason all the insanity had gone out of his bearing.
"Not in this state," answered Murtha. New pity for this poor old wastrel
took hold upon him. "What were you going to do?"
"I was going to retire, captain," said Doc faintly. "My daughter's
husband--he owned a farm up in Cayuga County--well, he died and I was
planning to go up there and live with her."
"And sting all the boobs?" grinned Murtha not unsympathetically. "How
much money have you got?"
"Seventy-five cents."
"How much is the ticket?"
"About nine dollars," quavered Doc. "But I know a man down on Chatham
Square who might buy a block of stock in the Last Chance Gold Mining
Company; I could get the money that way."
"What's the Last Chance Gold Mining Company?" asked Murtha sharply.
"It's a company I'm going to organize. I'll tell you a secret, Murtha.
There's a vein of gold runs right through my daughter Louisa's cow
pasture--she doesn't know anything about it--"
"Oh, hell!" exclaimed Murtha. "Come along to the station. I'll let you
have the nine bones. And you can put me down for half a million of the
underwriting."
* * * * *
That same evening Mr. Tutt was toasting his carpet slippers before the
sea-coal fire in his library, sipping a hot toddy and rereading for the
eleventh time the "Lives of the Chancellors" when Miranda, who had not
yet finished washing the few dishes incident to her master's meager
supper, pushed open the door and announced that a lady was calling.
"She said you'd know her sho' enough, Mis' Tutt," grinned Miranda,
swinging her dishrag, "'case you and she used to live tergidder when you
was a young man."
This scandalous announcement did not have the startling effect upon the
respectable Mr. Tutt which might naturally have been anticipated, since
he was quite used to Miranda's forms of expression.
"It must be Mrs. Effingham," he remarked, closing the career of Lord
Eldon and removing his feet from the fender.
"Dat's who it is!" answered Miranda. "She's downstairs waitin' to come
up."
"Well, let her come," directed Mr. Tutt, wondering what his old
boarding-house keeper could want of him, for he had not seen Mrs.
Effingham for more than fifteen years, at which time she was well
provided with husband, three children and a going business. Indeed, it
required some mental adjustment on his part to recognize the withered
little old lady in widow's weeds and rusty black with a gold star on her
sleeve who so timidly, a moment later, followed Miranda into the room.
"I'm afraid you don't recognize me," she said with a pitiful attempt at
faded coquetry. "I don't blame you, Mr. Tutt. You don't look a day older
yourself. But a great deal has happened to me!"