by Arthur Train
“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 garcons 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 papier-mache 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 an
d 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.”