Wishful Seeing (20 page)

When he arrived home he discovered that he had been correct — Martha had made no particularly special preparations for supper. She had set their places at the kitchen table and, although the pot pie she served up was delicious, it was patently not a company dish.

“Well, how did it go today?” she asked when they had all taken their seats.

“I must admit, I don't really know,” Thaddeus said. “There seemed to be a great deal of back and forth, and I think Ashby scored some points with the jury, but whether or not any of it will have a lasting impact on them remains to be seen.” He stopped in mid-bite and eyed Martha. “He's coming around later, you know.”

“I expected as much,” she said. She appeared to be completely unconcerned by this news. Thaddeus noted that Caroline was following their conversation closely, so he launched into a description of the disgusted looks he had been subjected to when he'd claimed a seat in the front row, and actually managed to elicit a small smile from the girl.

It was after nine-thirty when Ashby finally arrived. Martha had long since finished the dishes and shooed Caroline off to bed. Thaddeus was yawning in the parlour chair and thinking of retiring himself when the knock came at the front door.

“I'd nearly given you up,” Thaddeus said.

“I was stood a couple of rounds of drinks,” Ashby said. “Apparently, everyone feels that I'm affording them a great deal of entertainment. It would have been impolite to refuse.”

“I hope you gathered some intelligence along the way.”

“I did indeed. But not from my companions. Had I looked at my mail sooner, I'd have been here earlier.”

He handed a letter to Thaddeus, then sank down in the opposite chair and closed his eyes. Martha came in and leaned on the back of her grandfather's chair, reading over his shoulder. The letter was from a colleague of Ashby's and concerned a case that had been filed in the Court of Chancery, the judicial body that dealt with contracts.

My dear Towns,

When you first asked me to investigate this title, I assumed that it would be one of those typical messes that accompany early land settlements. However, it turns out to be far more interesting than that. As you indicated, a suit has been filed by a Mr. John Plews, but it is not against a Mr. Howell, as you seemed to think it might be, but rather against two brothers, Paul and Daniel Sherman. The origins of the dispute go back to the original survey of the Rice Lake area.

“Is that Plews as in Jack Plews?” Martha asked. “And are those the same Shermans?”

“That's correct,” Ashby said without opening his eyes. “Read on. It gets even more interesting.”

As was the custom at the time, the surveyor was expected to provision himself and his assistants, and was paid, not in cash but with title to a certain number of the lots that had been laid out. The surveyor in question, Benjamin Sherman, had in turn subcontracted the provisioning to a Mr. Josiah Palmer, who only partially fulfilled the terms of the contract: the provisions were substandard or absent, and Sherman was forced to feed the crew out of his own pocket. When the work was completed, Sherman's legal counsel advised him to deliver up the deeds as per the original agreement and then try to sue for
non-performance
of contract. Unfortunately, Sherman did not have a copy of the original agreement. In order to hedge his bets, so to speak, he gave the deeds to a third party — a barrister in Kingston — with instructions that they were to be delivered to Palmer only when a copy of the agreement was produced. Palmer couldn't come up with the document either, and the dispute was further complicated when the barrister's office burned down, destroying the original deeds. When replacement deeds were drawn up, they were issued in Sherman's name, and he must have reasoned that the matter was closed, because he subsequently disposed of the properties without any further reference to Palmer.

There has been a cloud over the titles ever since
.
Heirs and
Devisees has by and large allowed possession to pass unmolested, but there have been difficulties with respect to mortgages, as the usual demand for clear title is difficult to meet. And now Mr. Plews, who is a descendant of the negligent provisioner, has, he claims, produced a copy of the original agreement and is asking Chancery to uphold the terms of the contract and award the deeds to his family.

It will be interesting to see what the courts eventually decide, but in any case, it promises to be a long and expensive suit, and in my opinion, probably not worth the effort, even when one factors in the recent increase in value of the lands in question.

Hoping this is helpful in illuminating your current case.

Yours respectfully,

Charles Treverton

“I don't understand,” Thaddeus said. “Why didn't the courts settle this at the time?”

“Because at that point there was no court of equity in Canada, and no one was sure whether or not the criminal courts had any jurisdiction over contracts,” Ashby explained.

“When I heard that Jack Plews was going to court, I assumed he was suing Howell,” Thaddeus said. “That's what everybody else assumed, as well. Palmers and Plews and Dafoes. They'd all benefit from this, wouldn't they?”

“Only if the court ruled in their favour. Charlie thinks it's unlikely. That's what I think, too. The situation has gone on for so long that there's a real case to be made for adverse possession — ‘squatter's rights' in popular parlance. The question is, do the Palmer descendants know that?”

“And what about this agreement?” Martha said. “Lost for years and now it's found, just when the value of the land goes up? Convenient, isn't it?”

“Precisely,” Ashby said. “Incredibly convenient. Almost like magic, don't you think?”

“Yes, you'd almost think there was divine intervention, wouldn't you?” Thaddeus said. “Except the Lord doesn't normally work that way. But I can think of someone more mortal who is awfully good at making pieces of paper look like they're worth something, can't you?”

“Oh yes, I can see George Howell's counterfeiting fingers all over this,” Ashby said. “I don't know if Plews went to him in the first place, or if Howell somehow managed to persuade him that he had a case, but there's no doubt in my mind that Howell provided the missing document. He obviously has a tame printer — probably in Rochester — and there would be little risk to him in producing a bogus document for use in a foreign country.”

“So Howell took a cut from the sale of Plews's land when he bought it for Boulton, and now he'll take a further cut if the case is successful at Chancery and the land is returned to Plews?” Thaddeus asked.

“That would be my guess. If Howell was lucky, he could get them coming and going. And even if the case isn't successful, he'd still have the cut from Boulton. He had nothing to lose, really. He must have figured it was worth a shot.”

“But how would Paul Sherman know that Howell was behind it all?” Martha asked, her face knotted in thought. “Howell's name wouldn't be on the court papers, would it?” Then her expression cleared. “George Howell went to Burlington. It was in the passenger lists you gave me. But why would he do that?”

“The Palmer clan aren't business people,” Thaddeus pointed out. “They wouldn't know anything much about courts of chancery and contracts. They probably left it all to the Major to sort out — after all, he has a reputation as a gentleman and keeps some pretty influential company. But he must have known it was a gamble. You don't suppose he tried to blackmail Sherman?”

“And Sherman wasn't having it,” Ashby agreed. “That's why he came to Cobourg — to try to get the agreement away from Howell.”

“Even though he'd probably win in court anyway?” Martha asked.

“But only after spending a great deal of money to do it. Either way, it was going to cost him a bundle. He must have tried to get the agreement from Howell some other way.”

“That's who left the bruises on Ellen Howell's arm. Sherman must have gone to the Howell farm and threatened her,” Thaddeus said. In a way, he was relieved. As nasty as it was, it was a one-time thing and not a continued pattern of abuse from her husband.

“And then he followed Howell to Spook Island,” Martha said. “But who murdered him? Howell still has the best motive. Doesn't he?”

“Unless Plews and his family were afraid that Howell was double-crossing them,” Thaddeus said. “Considering everything else, it wouldn't be an ill-advised conclusion.”

“But if Plews was going to kill someone,” Martha persisted, “wouldn't it make more sense to shoot Howell?”

“You'd think so, wouldn't you?” Ashby said, “except for one small detail — Howell still had the agreement, and the important thing from Plews's point of view was to keep it out of Sherman's hands.”

“This is a wonderful theory,” Thaddeus said. “And it would certainly explain a great deal, but how does any of it help the case?”

Ashby sighed. “That, I don't really know. And I don't know if the prosecution knows any of this. Sherman's brother may have filled Garrett in. He may not have — after all, no one can find either Howell or the agreement, and Sherman is better off if no one knows about it.”

“Wouldn't Plews mention it?”

“For starters, I don't think he's even been questioned. And why would he say anything? It would make him a suspect, since he theoretically stands to gain a great deal of money if his lawsuit succeeds.” Ashby stopped for a moment while he thought this through, then he looked up at Thaddeus. “You, sir, are brilliant.” But he didn't elaborate any further. “I need all three of you to be in court tomorrow. We'll see if Caroline's presence rattles any of the witnesses, and then I'll take it from there.”

Thaddeus and Martha, with Caroline in tow, arrived at the courthouse early the next morning and discovered that Ashby had spread his coat and his briefcase over the bench just behind his table, effectively reserving their seats. He was vigilant in shooing away anyone who had the temerity to try to move the items, and although many tried, his authority as the defence lawyer and a gruff word or two were enough to stop them.

“Put Caroline down at the end,” he said to Martha in a low voice. “I want to be sure the jury can see her.”

The first person to notice her was her mother, who glared at Ashby. He shook his head at her. Thaddeus hoped she realized from this that Caroline would not be called to the stand; otherwise, the whole case would fall apart as soon as Ellen stood up and changed her plea.

The second person to notice the girl was Donald Dafoe, the man who had found the body.

Witnesses were not allowed into the courtroom prior to their testimony, but were detained in a side room. Dafoe was led in by the bailiff, but it was only as he placed his hand on the Bible that he happened to glance around the room. His gaze came to rest on Caroline Howell. He was quite visibly disturbed by her presence. He had to ask the clerk to repeat the oath before he gathered his wits enough to focus on the matter at hand.

“Mr. Dafoe, could you please describe for the court the events of September fourteenth as you remember them?” the prosecutor asked.

Dafoe cleared his throat and looked at Caroline again before he began. “I was out fishing in my boat,” he said.

“This was on Rice Lake?” Garrett prompted.

“Objection.” Thaddeus was startled when Ashby rose from his seat. “My most esteemed counsel for the prosecution is putting words in the witness's mouth.”

“Mr. Justice Stephens, the victim was found on an island in the middle of Rice Lake,” Garrett returned. “I trust everyone agrees that is the particular lake Mr. Dafoe was fishing in.”

“Nevertheless, Mr. Ashby has a point, Mr. Garrett. Please allow the witness to tell the story in his own words.”

The crowd murmured approvingly. They hoped that the exchange was the first salvo in a battle to come.

“Please continue, Mr. Dafoe.”

“I was out fishing” — here Dafoe hesitated and looked at the judge — “on Rice Lake. I landed a lovely pickerel, and being as I was hungry, I decided to put in to shore at Spook Island with the intention of cooking it up for my supper.”

“And could you tell the court, please, what you discovered on Spook Island?”

“I found a dead man. He had a big hole in his chest.”

“And what did you do then?”

“I got back in my boat and rowed for home.”

“I see.” Garrett paused for a moment and pursed his lips. “Did you then report your find to the local constable?”

“No.”

“Or to anyone else?”

“Just my father.” Dafoe looked a little sheepish as he said this.

“And why was he the only person you spoke to about the matter?”

“I was afraid I'd be blamed for it. I didn't have anybody with me, you see, to act as witness. I was scared. I didn't really know what to do.”

The prosecutor looked pleased. He had put one sticking point right out there in the open. The defence would not be able to make a great fuss about it now.

“And what did you do then?”

“My father said I had to report it. So I did.”

“Thank you, Mr. Dafoe. No further questions.”

Ashby rose and smiled at Dafoe.

“Was it a nice day out there on the lake?” he asked. “Was the weather fine?”

Dafoe looked a little confused, but then he answered. “It was beautiful. You couldn't have asked for nicer on a fall day.”

“And were you the only fisherman taking advantage of the fair weather?”

“Well, I don't know.” Dafoe shuffled a little in his seat. “I wasn't the only boat out there, but I don't know as to whether or not any of the others were fishing. A lot of people were out to have a look at the railway bridge. And the steamer went by, but it goes back and forth all the time.”

Ashby shrugged. “Fair enough. Those all would have been good reasons to be on the lake, wouldn't you say?”

“Is there a point to counsel's questions?” Garrett asked.

“There is indeed,” Ashby replied. “I beg the court to allow me to continue.”

The justice nodded.

“So there were other boats on the lake that day. What time do you normally eat your dinner, Mr. Dafoe?”

“About five o'clock, I reckon. Like most folks do.”

“Don't you think that most folks would have wanted, as the afternoon wore on, to get home for their dinners?”

“Objection. Mr. Dafoe has no way of knowing what anyone else intended.” Thaddeus could see that Garrett had spotted the trap.

Justice Stephens agreed.

Ashby changed his approach. “What time did you arrive at the island, Mr. Dafoe?”

“I don't rightly know. I don't own a watch, but I was hungry, so I guess it must have been getting on for dinnertime. That's why I decided to stop and cook my fish instead of rowing home.”

“Wouldn't you have noticed that the other boats had left the lake by then and realized that it was suppertime?”

Dafoe shrugged.

“I've never cooked a fish on an open fire,” Ashby said. “Tell me, Mr. Dafoe, how long does it take?”

Dafoe shifted uncomfortably in his seat, and again his gaze returned to Caroline. “Not long. If you cover it with mud and put it right down in the coals it cooks pretty fast.”

“And you, of course, had firewood in the boat with you.”

“Objection!” Garrett glared at Ashby.

“Do I even need to tell you, Mr. Ashby?” Justice Stephens said.

“Let me rephrase. Were you carrying a handy supply of firewood in the boat with you that day?”

“No, there's usually plenty of wood around. Driftwood and such. Or dead branches.”

“So you caught your fish and rowed to Spook Island with the intention of gathering some driftwood, letting it burn down to coals, eating your fish, and then rowing home.”

Dafoe thought he was clear. “Yes.”

“And did you have a lantern in the boat with you?”

“No.”

Ashby assumed a look of surprise and consternation. “But wouldn't it have been getting dark by the time you'd gathered driftwood, started a fire, let it burn down to coals, cooked the fish, and eaten it, Mr. Dafoe? If that was your intention, weren't you worried about rowing home in the dark?”

Dafoe finally realized where Ashby was leading him and tried to backtrack.

“Well, maybe it wasn't that late, after all. Maybe I just got hungry a little early. And besides, I didn't cook it after all. I saw the body and rowed home right away.”

“But if you had, you would have been rowing home in the dark. Isn't that dangerous?”

“Well, like I said, maybe it was earlier than I thought.”

“Just one further question, Mr. Dafoe.” Ashby turned to the jury, a slight smile on his lips. “What happened to the fish?”

Dafoe looked a little shamefaced. “I took it home and my father and I ate it later.”

“Even though you were distraught over finding a dead body on the island?”

Dafoe shifted uncomfortably. “Well, I can be upset and hungry at the same time.”

The crowd tittered. This would be one of the exchanges that would be repeated many times to those not fortunate enough to attend in person.

“No further questions.”

The next string of witnesses were those who had testified to seeing the Howells on the afternoon of the murder. Ashby spent a great deal of time questioning each of them. Some of them were quite firm in their answers and definite in their stories, while others grew flustered and backtracked, changing small details and elaborating on others. But with each of them, the crucial question he asked was “Did you see the woman's face clearly?”

And one by one, each witness had to admit that he or she hadn't. The woman's bonnet had been pulled too low. And each time one of them admitted this, everyone's eyes slid over to Caroline, sitting at the end of the front row.

By the time he finished, it was nearly one o'clock, and there was a rustle of approval when Justice Stephens called for a recess. Thaddeus stood and stretched, stiff from the long hours of sitting on the hard bench.

“I brought food,” Martha said. She passed it to Thaddeus. “Should I take Caroline home now? I'm worn out with sitting.”

“Let's all go outside for a few minutes,” Ashby said. “I could use some fresh air. But if you don't mind, I'd like Caroline to stay. I don't like the idea of the two of you alone at the manse just now.”

“You don't think there's any danger, do you?” Thaddeus asked. Maybe he should rethink his plan to take the evening meetings that were nearby.

“No, I don't think so,” Ashby said, “but I don't want the girls pestered by the newspapers, for one thing. And I'm not sure, but there may be a visit from the chief constable, given the resemblance that the entire courtroom noted this morning. I want to be there if that happens.”

When court resumed at two o'clock, Garrett called the deceased's brother Daniel Sherman to the stand. Sherman repeated the story that his brother had travelled to Cobourg on business. “Something to do with a land transaction,” he said, but claimed to be ignorant of the details. When his brother failed to return to Burlington at the expected time, Paul Sherman's wife became alarmed, but it was only when the family read details of the Cobourg murder in the newspapers that they feared the worst. Daniel had travelled to Cobourg and identified the body.

“And was your brother carrying any amount of money?” Garrett asked.

“Yes. I do not know what money he had of his own, but he borrowed one hundred dollars from me before he left. He said he did not want to wait for the bank to open.”

“And did you get that money back?”

“No. When I asked about it, Chief Constable Spencer stated that there was nothing in Paul's pockets when his body was found.”

Ashby rose to cross-examine.

“Mr. Sherman, you state that your brother borrowed one hundred dollars from you. Is that correct?”

“I've already said so.”

“And in what form was this money?”

“Bank of Montreal banknotes.”

“Do you always have that much money readily available at a moment's notice?”

“No. I took the money from the bank for another purpose. I just happened to have it when Paul wanted it.”

“And what was that other purpose?”

“Objection.” Garrett rose. “The purpose is immaterial to this case.”

Justice Stephens nodded. “I'm inclined to agree unless you can show otherwise, Mr. Ashby.”

Ashby nodded in deference to the ruling and chose another tack. “Are you aware that Mr. Jack Plews has filed a lawsuit against you and your brother?”

The spectators, who had seemed quiet and sleepy after the dinner break, suddenly sat up and paid attention again. They all knew that Jack Plews was going to court over the loss of his land, but, like everybody else, they thought the suit was against George Howell.

Garrett was on his feet again. “Objection!”

Justice Stephens glared at him. “On what grounds?”

Garrett fumbled for an answer. “Mr. Ashby has produced no evidence of such a suit.”

“He doesn't have to. He's merely asking if Mr. Sherman is aware of it. Witness will answer the question please.”

Sherman squirmed in his seat a little before he answered. So he hadn't told his barrister after all, Thaddeus realized.

“Yes.”

“And is it not true that your brother hoped to dissuade Mr. Plews from the suit?”

“Yes.”

“And that was his reason for borrowing money from you and coming to Cobourg?”

“Yes.”

“And was he successful?”

“I don't know,” Sherman said. “He was murdered before he could tell me.”

“But the money is gone?”

“Yes.”

Garrett was red-faced. “If it pleases Mr. Justice Stephens, I would like to request a recess in light of this new evidence.”

“No, Mr. Garrett. This is your witness. You should have been aware of this testimony before you started. However, you may redirect if you wish, when Mr. Ashby is finished.”

“And what, exactly, does the suit allege?” Ashby asked.

“That Plews found some long-lost agreement that would throw a number of land titles into dispute. Including, conveniently enough, the land he recently sold.”

“Defence has no further questions.”

Garrett rose, but it was clear that he had been caught flat-footed. “Is the suit still pending?” he asked.

“I don't know,” Sherman replied. “I haven't been home to find out.”

Thaddeus could see that Garrett didn't know where to go from there. He had no idea what the answers to any of his questions might be, and he ran the risk of sinking his own case if he persisted. Any further mention of Jack Plews would only reinforce the notion that someone besides George Howell might have had something to do with the murder, and that there could be some motive besides simple robbery. In the end, the prosecutor did the only thing he could do.

“No further questions.”

And the jury was left with a thousand questions they wished someone would ask.