"Does that description apply to the person whose remains you examined."

"In a general way it does."

"I must ask you for a direct answer--yes or no. Does it apply?"

"Yes. But I ought to say that my estimate of the height of the deceased is only approximate."

"Quite so. Judging from your examination of those remains and from Mr.

Jellicoe's description, might those remains be the remains of the testator, John Bellingham?"

"Yes, they might."

On receiving this admission Mr. Loram sat down, and Mr. Heath immediately rose to cross-examine.

"When you examined these remains, Doctor Summers, did you discover any personal peculiarities which would enable you to identify them as the remains of any one individual rather than any other individual of similar size, age, and proportions?"

"No. I found nothing that would identify the remains as those of any particular individual."

As Mr. Heath asked no further questions, the witness received his dismissal, and Mr. Loram informed the Court that that was his case.

The judge bowed somnolently, and then Mr. Heath rose to address the Court on behalf of the respondent. It was not a long speech, nor was it enriched by any displays of florid rhetoric; it concerned itself exclusively with a rebutment of the arguments of the counsel for the pet.i.tioner.

Having briefly pointed out that the period of absence was too short to give rise of itself to the presumption of death, Mr. Heath continued:

"The claim therefore rests upon evidence of a positive character. My learned friend a.s.serts that the testator is presumably dead, and it is for him to prove what he has affirmed. Now, has he done this? I submit that he has not. He has argued with great force and ingenuity that the testator, being a bachelor, a solitary man without wife or child, dependant or master, public or private office of duty, or any bond, responsibility, or any other condition limiting his freedom of action, had no reason or inducement for absconding. This is my learned friend's argument, and he has conducted it with so much skill and ingenuity that he has not only succeeded in proving his case; he has proved a great deal too much. For if it is true, as my learned friend so justly argues, that a man thus unfettered by obligations of any kind has no reason for disappearing, is it not even more true that he has no reason for not disappearing? My friend has urged that the testator was at liberty to go where he pleased, when he pleased, and how he pleased; and that therefore there was no need for him to abscond. I reply, if he was at liberty to go away, whither, when, and how he pleased, why do we express surprise that he has made use of his liberty? My learned friend points out that the testator notified n.o.body of his intention of going away and has acquainted no one with his whereabouts; but, I ask, whom should he have notified? He was responsible to n.o.body; there was no one dependent upon him; his presence or absence was the concern of n.o.body but himself. If circ.u.mstances suddenly arising made it desirable that he should go abroad, why should he not go? I say there was no reason whatever.

"My learned friend has said that the testator went away leaving his affairs to take care of themselves. Now, gentlemen, I ask you if this can fairly be said of a man whose affairs are, as they have been for many years, in the hands of a highly capable, completely trustworthy agent who is better acquainted with them than the testator himself?

Clearly it cannot.

"To conclude this part of the argument: I submit that the circ.u.mstances of the so-called disappearance of the testator present nothing out of the ordinary. The testator is a man of ample means, without any responsibilities to fetter his movements, and has been in the constant habit of traveling, often into remote and distant regions. The mere fact that he has been absent somewhat longer than usual affords no ground whatever for the drastic proceeding of presumption of death and taking possession of his property.

"With reference to the human remains which have been mentioned in connection with the case I need say but little. The attempt to connect them with the testator has failed completely. You yourselves have heard Doctor Summers state on oath that they cannot be identified as the remains of any particular person. That would seem to dispose of them effectually. I must remark upon a very singular point that has been raised by the learned counsel for the pet.i.tioner, which is this:

"My learned friend points out that these remains were discovered near Eltham and near Woodford and that the testator was last seen alive at one of these two places. This he considers for some reason to be a highly significant fact. But I cannot agree with him. If the testator had been last seen alive at Woodford and the remains had been found at Woodford, or if he had disappeared from Eltham, and the remains had been found at Eltham, that would have had some significance. But he can only have been last seen at one of the places, whereas the remains have been found at both places. Here again my learned friend seems to have proved too much.

"But I need not occupy your time further. I repeat that, in order to justify us in presuming the death of the testator, clear and positive evidence would be necessary. That no such evidence has been brought forward. Accordingly, seeing that the testator may return at any time and is ent.i.tled to find his property intact, I shall ask you for a verdict that will secure to him this measure of ordinary justice."

At the conclusion of Mr. Heath's speech the judge, as if awakening from a refreshing nap, opened his eyes; and uncommonly shrewd, intelligent eyes they were when the expressive eyelids were duly tucked up out of the way. He commenced by reading over a part of the will and certain notes--which he appeared to have made in some miraculous fashion with his eyes shut--and then proceeded to review the evidence and the counsels' arguments for the instruction of the jury.

"Before considering the evidence which you have heard, gentlemen," he said, "it will be well for me to say a few words to you on the general aspects of the case which is occupying our attention.

"If a person goes abroad or disappears from his home and his ordinary places of resort and is absent for a long period of time, the presumption of death arises at the expiration of seven years from the date on which he was last heard of. That is to say, that the total disappearance of an individual for seven years const.i.tutes presumptive evidence that the said individual is dead; and the presumption can be set aside only by the production of evidence that he was alive at some time within that period of seven years. But if, on the other hand, it is sought to presume the death of a person who has been absent for a shorter period than seven years, it is necessary to produce such evidence as shall make it highly probable that the said person is dead.

Of course, presumption implies supposition as opposed to actual demonstration; but, nevertheless, the evidence in such a case must be of a kind that tends to create a very strong belief that death has occurred; and I need hardly say that the shorter the period of absence, the more convincing must be the evidence.

"In the present case, the testator, John Bellingham, has been absent somewhat under two years. This is a relatively short period, and in itself gives rise to no presumption of death. Nevertheless, death has been presumed in a case where the period of absence was even shorter and the insurance recovered; but here the evidence supporting the belief in the occurrence of death was exceedingly weighty.

"The testator in this case was a shipmaster, and his disappearance was accompanied by the disappearance of the ship and the entire ship's company in the course of a voyage from London to Ma.r.s.eilles. The loss of the ship and her crew was the only reasonable explanation of the disappearance, and, short of actual demonstration, the facts offered convincing evidence of the death of all persons on board. I mention this case as an ill.u.s.tration. You are not dealing with speculative probabilities. You are contemplating a very momentous proceeding, and you must be very sure of your ground. Consider what it is that you are asked to do.

"The pet.i.tioner asks permission to presume the death of the testator in order that the testator's property may be distributed among the beneficiaries under the will. The granting of such permission involves us in the gravest responsibility. An ill-considered decision might be productive of a serious injustice to the testator, an injustice that could never be remedied. Hence it is inc.u.mbent upon you to weigh the evidence with the greatest care, to come to no decision without the profoundest consideration of all the facts.

"The evidence that you have heard divides itself into two parts--that relating to the circ.u.mstances of the testator's disappearance, and that relating to certain human remains. In connection with the latter I can only express my surprise and regret that the application was not postponed until the completion of the coroner's inquest, and leave you to consider the evidence. You will bear in mind that Doctor Summers has stated explicitly that the remains cannot be identified as those of any particular individual, but that the testator and the unknown deceased had so many points of resemblance that they might possibly be one and the same person.

"With reference to the circ.u.mstances of the disappearance, you have heard the evidence of Mr. Jellicoe to the effect that the testator has on no previous occasion gone abroad without informing him as to his proposed destination. But in considering what weight you are to give to this statement you will bear in mind that when the testator set out for Paris after his interview with Doctor Norbury he left Mr. Jellicoe without any information as to his specific destination, his address in Paris, or the precise date when he should return, and that Mr. Jellicoe was unable to tell us where the testator went or what was his business.

Mr. Jellicoe was, in fact, for a time without any means of tracing the testator or ascertaining his whereabouts.

"The evidence of the housemaid, Dobbs, and of Mr. Hurst is rather confusing. It appears that the testator came to the house, and when looked for later was not to be found. A search of the premises showed that he was not in the house, whence it seems to follow that he must have left it; but since no one was informed of his intention to leave, and he had expressed the intention of staying to see Mr. Hurst, his conduct in thus going away surrept.i.tiously must appear somewhat eccentric. The point that you have to consider, therefore, is whether a person who is capable of thus departing in a surrept.i.tious and eccentric manner from a house, without giving notice to the servants, is capable also of departing in a surrept.i.tious and eccentric manner from his usual places of resort without giving notice to his friends or thereafter informing them of his whereabouts.

"The questions, then, gentlemen, that you have to ask yourselves before deciding on your verdict are two: first, Are the circ.u.mstances of the testator's disappearance and his continued absence incongruous with his habits and personal peculiarities as they are known to you? and second, Are there any facts which indicate in a positive manner that the testator is dead? Ask yourselves these questions, gentlemen, and the answers to them, furnished by the evidence that you have heard, will guide you to your decision."

Having delivered himself of the above instructions, the judge applied himself to the perusal of the will with professional gusto, in which occupation he was presently disturbed by the announcement of the foreman of the jury that a verdict had been agreed upon.

The judge sat up and glanced at the jury-box, and when the foreman proceeded to state that "We find no sufficient reason for presuming the testator, John Bellingham, to be dead," he nodded approvingly.

Evidently that was his opinion, too, as he was careful to explain when he conveyed to Mr. Loram the refusal of the Court to grant the permission applied for.

The decision was a great relief to me, and also, I think, to Miss Bellingham; but most of all to her father, who, with instinctive good manners, since he could not suppress a smile of triumph, rose and hastily stumped out of the Court, so that the discomfited Hurst should not see him. His daughter and I followed, and as we left the Court she remarked, with a smile:

"So our pauperism is not, after all, made absolute. There is still a chance for us in the Chapter of Accidents--and perhaps even for poor old Uncle John."

CHAPTER XV

CIRc.u.mSTANTIAL EVIDENCE

The morning after the hearing saw me setting forth on my round in more than usually good spirits. The round itself was but a short one, for my list contained only a couple of "chronics," and this, perhaps, contributed to my cheerful outlook on life. But there were other reasons. The decision of the Court had come as an unexpected reprieve and the ruin of my friends' prospects was at least postponed. Then, I had learned that Thornd.y.k.e was back from Bristol and wished me to look in on him; and, finally, Miss Bellingham had agreed to spend this very afternoon with me, browsing round the galleries at the British Museum.

I had disposed of my two patients by a quarter to eleven, and three minutes later was striding down Mitre Court, all agog to hear what Thornd.y.k.e had to say with reference to my notes on the inquest. The "oak" was open when I arrived at his chambers, and a modest flourish on the little bra.s.s knocker of the inner door was answered by my quondam teacher himself.

"How good of you, Berkeley," he said, shaking hands genially, "to look me up so early. I am alone, just looking through the report of the evidence of yesterday's proceedings."

He placed an easy chair for me, and, gathering up a bundle of typewritten papers, laid them aside on the table.

"Were you surprised at the decision?" I asked.

"No," he answered. "Two years is a short period of absence; but still, it might easily have gone the other way. I am greatly relieved. The respite gives us time to carry out our investigations without undue hurry."

"Did you find my notes of any use?" I asked.

"Heath did. Polton handed them to him, and they were invaluable to him for his cross-examination. I haven't seen them yet; in fact, I have only just got them back from him. Let us go through them together now."

He opened a drawer and taking from it my notebook, seated himself, and began to read through my notes with grave attention, while I stood and looked shyly over his shoulder. On the page that contained my sketches of the Sidcup arm, showing the distribution of the snails' eggs on the bones, he lingered with a faint smile that made me turn hot and red.

"Those sketches look rather footy," I said; "but I had to put something in my notebook."

"You did not attach any importance, then, to the facts that they ill.u.s.trated?"

"No. The egg-patches were there, so I noted the fact. That's all."