"What happened if they were exorcised?" asked Tutt curiously.
"It depended a good deal on the local power of Satan," answered the old lawyer dryly. "Sometimes they became even more prolific and destructive than they were before, and sometimes they promptly died. All the leeches were prosecuted at Lausanne in 1451. A few selected representatives were brought into court, tried, convicted and ordered to depart within a fixed period. Maybe they didn't fully grasp their obligations or perhaps were just acting contemptuously, but they didn't depart and so were promptly exorcised. Immediately they began to die off and before long there were none left in the country."
"I know some rats and mice I'd like to have exorcised," mused Tutt.
"At Autun in the fifteenth century the rats won their case," said Mr. Tutt.
"Who got 'em off?" asked Tutt.
"M. Chassensée, the advocate appointed to defend them. They had been a great nuisance and were ordered to appear in court. But none of them turned up. M. Chassensée therefore argued that a default should not be taken because all the rats had been summoned, and some were either so young or so old and decrepit that they needed more time. The court thereupon granted him an extension. However, they didn't arrive on the day set, and this time their lawyer claimed that they were under duress and restrained by bodily fear—of the townspeople's cats. That all these cats, therefore should first be bound over to keep the peace! The court admitted the reasonableness of this, but the townsfolk refused to be responsible for their cats and the judge dismissed the case!"
"What did Chassensée get out of it?" inquired Tutt.
"There is no record of who paid him or what was his fee."
"He was a pretty slick lawyer," observed Tutt. "Did they ever try birds?"
"Oh, yes!" answered Mr. Tutt. "They tried a cock at Basel in 1474—for the crime of laying an egg."
"Why was that a crime?" asked Tutt. "I should call it a tour de force."
"Be that as it may," said his partner, "from a cock's egg is hatched the cockatrice, or basilisk, the glance of whose eye turns the beholder to stone. Therefore they tried the cock, found him guilty and burned him and his egg together at the stake. That is why cocks don't lay eggs now."
"I'm glad to know that," said Tutt. "When did they give up trying animals?"
"Nearly two hundred years ago," answered Mr. Tutt. "But for some time after that they continued to try inanimate objects for causing injury to people. I've heard they tried one of the first locomotives that ran over a man and declared it forfeit to the crown as a deodand."
"I wonder if you couldn't get 'em to try Andrew," hazarded Tutt, "and maybe declare him forfeited to somebody as a deodand."
"Deodand means 'given to God,'" explained Mr. Tutt.
"Well, I'd give Andrew to God—if God would take him," declared Tutt devoutly.
"But who is Andrew?" asked Mr. Tutt.
"Andrew is a dog," said Tutt, "who bit one Tunnygate, and now the Grand Jury have indicted not the dog, as it is clear from your historical disquisition they should have done, but the dog's owner, Mr. Enoch Appleboy."
"What for?"
"Assault in the second degree with a dangerous weapon."
"What was the weapon?" inquired Mr. Tutt simply.
"The dog."
"What are you talking about?" cried Mr. Tutt. "What nonsense!"
"Yes, it is nonsense!" agreed Tutt. "But they've done it all the same. Read it for yourself!" And he handed Mr. Tutt the indictment.
"The Grand Jury of the County of New York by this indictment accuse Enoch Appleboy of the crime of assault in the second degree, committed as follows:
"Said Enoch Appleboy, late of the Borough of Bronx, City and County aforesaid, on the 21st day of July, in the year of our Lord one thousand nine hundred and fifteen, at the Borough and County aforesaid, with force and arms in and upon one Herman Tunnygate, in the peace of the State and People then and there being, feloniously did willfully and wrongfully make an assault in and upon the legs and body of him the said Herman Tunnygate, by means of a certain dangerous weapon, to wit: one dog, of the form, style and breed known as 'bull,' being of the name of 'Andrew,' then and there being within control of the said Enoch Appleboy, which said dog, being of the name of 'Andrew,' the said Enoch Appleboy did then and there feloniously, willfully and wrongfully incite, provoke, and encourage, then and there being, to bite him, the said Herman Tunnygate, by means whereof said dog 'Andrew' did then and there grievously bite the said Herman Tunnygate in and upon the legs and body of him, the said Herman Tunnygate, and the said Enoch Appleboy thus then and there feloniously did willfully and wrongfully cut, tear, lacerate and bruise, and did then and there by the means of the dog 'Andrew' aforesaid feloniously, willfully and wrongfully inflict grievous bodily harm upon the said Herman Tunnygate, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity."
"That," asserted Mr. Tutt, wiping his spectacles, "is a document worthy of preservation in the Congressional Library. Who drew it?"
"Don't know," answered Tutt, "but whoever he was he was a humorist!"
"It's no good. There isn't any allegation of scienter in it," affirmed Mr. Tutt.
"What of it? It says he assaulted Tunnygate with a dangerous weapon. You don't have to set forth that he knew it was a dangerous weapon if you assert that he did it willfully. You don't have to allege in an indictment charging an assault with a pistol that the defendant knew it was loaded."
"But a dog is different!" reasoned Mr. Tutt. "A dog is not per se a dangerous weapon. Saying so doesn't make it so, and that part of the indictment is bad on its face—unless, to be sure, it means that he hit him with a dead dog, which it is clear from the context that he didn't. The other part—that he set the dog on him—lacks the allegation that the dog was vicious and that Appleboy knew it; in other words an allegation of scienter. It ought to read that said Enoch Appleboy 'well knowing that said dog Andrew was a dangerous and ferocious animal and would, if incited, provoked and encouraged, bite the legs and body of him the said Herman—did then and there feloniously, willfully and wrongfully incite, provoke and encourage the said Andrew, and so forth.'"
"I get you!" exclaimed Tutt enthusiastically. "Of course an allegation of scienter is necessary! In other words you could demur to the indictment for insufficiency?"
Mr. Tutt nodded.
"But in that case they'd merely go before the Grand Jury and find another—a good one. It's much better to try and knock the case out on the trial once and for all."
"Well, the Appleboys are waiting to see you," said Tutt. "They are in my office. Bonnie Doon got the case for us off his local district leader, who's a member of the same lodge of the Abyssinian Mysteries—Bonnie's been Supreme Exalted Ruler of the Purple Mountain for over a year—and he's pulled in quite a lot of good stuff, not all dog cases either! Appleboy's an Abyssinian too."
"I'll see them," consented Mr. Tutt, "but I'm going to have you try the case. I shall insist upon acting solely in an advisory capacity. Dog trials aren't in my line. There are some things which are infra dig—even for Ephraim Tutt."
Mr. Appleboy sat stolidly at the bar of justice, pale but resolute. Beside him sat Mrs. Appleboy, also pale but even more resolute. A jury had been selected without much manifest attention by Tutt, who had nevertheless managed to slip in an Abyssinian brother on the back row, and an ex-dog fancier for Number Six. Also among those present were a delicatessen man from East Houston Street, a dealer in rubber novelties, a plumber and the editor of Baby's World. The foreman was almost as fat as Mr. Appleboy, but Tutt regarded this as