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
