By Advice of Counsel

"I—I—" he stammered. "The lady in the red bonnet is—the—New York lady."

"You mean she isn't his wife although the defendant went through the form of marriage with her, because he was already married to another," suggested His Honor. "You might, I think, put things a little more simply. However, do it your own way."

"Ye-es, Your Honor."

"Go on."

But Caput was lost—hopelessly. Every vestige of the composure so laboriously acquired at Madam Winterbottom's salon had evaporated. He felt as if he were swinging in midair hitched to a scudding aeroplane by a rope about his middle. The mucous membranes of his throat were as dry and as full of dust as the entrails of a carpet sweeper. His vision was blurred and he had no control over his muscles. Weakly he leaned against the table in front of the jury, the room swaying about him. The pains of hell gat hold upon him. He was dying. Even the staff felt compunction—all but the Honorable Peckham.

Judge Russell quickly sensed the situation. He was a kindly man, who had pulled many an ass out of the mire of confusion. So with a glance at Mr. Tutt he came to Caput's rescue.

"Let us see, Mr. Magnus," he remarked pleasantly; "suppose you prove the Illinois marriage first. Is Mrs. Higgleby in court?"

Both ladies started from their seats.

"Mrs. Tomascene Higgleby," corrected His Honor. "Step this way, please, madam!"

The former Miss Startup made her way diffidently to the witness chair and in a faint voice answered the questions relative to her marriage of the preceding spring as put to her by the judge. Mr. Tutt waved her aside and Caput Magnus felt returning strength. He had expected and prepared for a highly technical assault upon the legality of the ceremony performed in Cook County. He had anticipated every variety and form of question. But Mr. Tutt put none. He merely smiled benignly upon Caput in an avuncular fashion.

"Have you no questions, Mr. Tutt?" inquired His Honor.

"None," answered the lawyer.

"Then prove the bigamous marriage," directed Judge Russell.

Then rose at the call of justice, militantly and with a curious air of proprietorship in the overmarried defendant, the wife or maiden who in earlier days had answered to the name of Alvina Woodcock. Though she was the injured party and though the blame for her unfortunate state rested entirely upon Higgleby, her resentment seemed less directed toward the offending male than toward the Chicago lady who was his lawful wife. There was no question as to the circumstances to which she so definitely and aggressively testified. No one could gainsay the deplorable fact that she had, as she supposed, been linked in lawful wedlock to Mr. Tutt's isosceles client. But there was that in her manner which suggested that she felt that being the last she should be first, that finding was keeping, and that possession was nine points of matrimonial law.

And, as before, Mr. Tutt said nothing. Neither he nor Tutt nor Bonnie Doon nor yet Higgleby showed any the least sign of concern. Caput's momentarily returning self-possession forsook him. What portended his ominous silence? Had he made some horrible mistake? Had he overlooked some important jurisdictional fact? Was he now to be hoist for some unknown reason by his own petard? He was, poor innocent—he was!

"That is the case," he announced faintly. "The People rest."

Judge Russell looked down curiously at Mr. Tutt.

"Well," he remarked, "how about it, Mr. Tutt?"

But the old lawyer only smiled.

"Come here a minute," directed His Honor.

And when Mr. Tutt reached the bench the judge said: "Have you any defense in this case? If not, why don't you plead guilty and let me dispose of the matter?"

"But, Your Honor," protested Mr. Tutt, "of course I have a defense—and a most excellent one!"

"You have?"

"Certainly."

The judged elevated his forehead.

"Very well," he remarked; "if you really have one you had better go on with it. And," he added beneath his breath, but in a tone clearly audible to the clerk, "the Lord have mercy on your soul!"

The assistants saw Caput subside into his chair and simultaneously Mr. Tutt slowly raise his lank form toward the ceiling.

"Gentlemen of the jury," said he benignly: "My client, Mr. Higgleby, is charged in this indictment with the crime of bigamy committed here in New York, in marrying Alvina Woodcock—the strong-minded lady on the front row of benches there—when he already had a lawful wife living in Chicago. The indictment alleges no other offense and the district attorney has not sought to prove any, my learned and eloquent adversary, Mr. Magnus, having a proper regard for the constitutional rights of every unfortunate whom he brings to the bar of justice. If therefore I can prove to you that Mr. Higgleby was never lawfully married to Tomascene Startup in Chicago on the eleventh of last May or at any other time, the allegation of bigamy falls to the ground; at any rate so far as this indictment is concerned. For unless the indictment sets forth a valid prior marriage it is obvious that the subsequent marriage cannot be bigamous. Am I clear? I perceive by your very intelligent facial expressions that I am. Well, my friends, Mr. Higgleby never was lawfully married to Tomascene Startup last May in Chicago, and you will therefore be obliged to acquit him! Come here, Mr. Smithers."

Caput Magnus suddenly experienced the throes of dissolution. Who was Smithers? What could old Tutt be driving at? But Smithers—evidently the Reverend Sanctimonious Smithers—was already placidly seated in the witness chair, his limp hands folded across his stomach and his thin nose looking interrogatively toward Mr. Tutt.

"What is your name?" asked the lawyer dramatically.

"My name is Oswald Garrison Smithers," replied the reverend gentleman in Canton-flannel accents, "and I reside in Pantuck, Iowa, where I am pastor of the Reformed Lutheran Church."

"Do you know the defendant?"

"Indeed I do," sighed the Reverend Smithers. "I remember him very well. I solemnized his marriage to a widow of my congregation on July 4, 1917; in fact to the relict of our late senior warden, Deacon Pellatiah Higgins. Sarah Maria Higgins was the lady's name, and she is alive and well at the present time."

He gazed deprecatingly at the jury. If meekness had efficacy he would have inherited the earth.

"What?" ejaculated the foreman. "You say this man is married to three women?"

"Trigamy—not bigamy!" muttered the clerk, sotto voce.

"You have put your finger upon the precise point, Mister Foreman!" exclaimed Mr. Tutt admiringly. "If Mr. Higgleby was already lawfully married to a lady in Iowa when he married Miss—or Mrs.—Startup in Chicago last May, his marriage to the latter was not a legal marriage; it was in fact no marriage at all. You can't charge a man with bigamy unless you recite a legal marriage followed by an illegal one. Therefore, since the indictment fails to set forth a legal marriage anywhere followed by a marriage, legal or otherwise, in New York County, it recites no crime, and my client must be acquitted. Is not that the law, Your Honor?"

Judge Russell quickly hid a smile and turned to the moribund Caput.

"Mr. Magnus, have you anything to say in reply to Mr. Tutt's argument?" he asked. "If not—"

But no response came from Caput Magnus. He was past all hearing, understanding or answering. He was ready to be carried out and buried.

"Well, all I have got to say is—" began the foreman disgustedly.

"You do not have to say anything!" admonished the judge severely. "I will do whatever talking is necessary. A little more care in the preparation of the indictment might have rendered this rather absurd situation impossible. As it is, I must direct an acquittal. The defendant is discharged upon this indictment. But I will hold him in bail for the action of another grand jury."

"In which event we shall have another equally good defense, Your Honor," Mr. Tutt assured him.

"I don't doubt it, Mr. Tutt," returned the judge good-naturedly. "Your client seems to have loved not wisely but too well." And they all poured out happily into the corridor—that is, all of them except Caput and the two ladies, who remained seated upon their bench gazing fiercely and disdainfully at each other like two tabby cats on a fence.

"So you're not married to him, either!" sneered Miss Woodcock.

"Well, I'm as much married to him as you are!" retorted Miss Startup with her nose in the air.

Then instinctively they both turned and with one accord looked malevolently at Caput, who, seeing in their glance something which he did not like, slipped stealthily from his chair and out of the room, leaving ignominiously behind him upon the floor his precious volume entitled "How to Try a Case"!

"That Sort of Woman"

"Judge not according to the appearance."—John VII: 24.

"Tutt," said Mr. Tutt, entering the offices of Tutt & Tutt and hanging his antediluvian stovepipe on the hat-tree in the corner, "I see by the morning paper that Payson Clifford has departed this life."