A Modern Instance

by William Dean Howells

“Yes, your honor, I move to set aside the default, and I shall offer in support of this motion my affidavit, setting forth the reasons for the non-appearance of the defendant at the calling of the cause.”

“Shall I note your motion as filed?” asked the Judge.

“Yes, your honor,” replied the old man. He made a futile attempt to prepare the paper; the pen flew out of his trembling hand. “I can't write,” he said in despair that made other hands quick to aid him. A young lawyer at the next desk rapidly drew up the paper, and the Squire duly offered it to the clerk of the Court. The clerk stamped it with the file-mark of the Court, and returned it to the Squire, who read aloud the motion and affidavit, setting forth the facts of the defendant's failure to receive the notice in time to prepare for her defence, and of the accident which had contributed to delay her appearance, declaring that she had a just defence to the plaintiff's bill, and asking to be heard upon the facts.

Bartley's attorney was prompt to interpose again. He protested that the printed advertisement was sufficient notice to the defendant, whenever it came to her knowledge, or even if it never came to her knowledge, and that her plea of failure to receive it in time was not a competent excuse. This might be alleged in any case, and any delay of travel might be brought forward to account for non-appearance as plausibly as this trumped-up accident in which nobody was hurt. He did his best, which was also his worst, and the judge once more addressed the Squire, who stood waiting for Bartley's counsel to close. “I was about to adjourn the Court,” said the judge, in that accent which is the gift of the South to some parts of the West; it is curiously soft and gentle, and expressive, when the speaker will, of a caressing deference. “But we have still some minutes before noon in which we can hear you in support of your motion, if you are ready.”

“I am m-ready, your honor!” The old man's nasals cut across the judge's rounded tones, almost before they had ceased. His lips compressed themselves to a waving line, and his high hawk-beak came down over them; the fierce light burned in his cavernous eyes, and his grizzled hair erected itself like a crest. He swayed slightly back and forth at the table, behind which he stood, and paused as if waiting for his hate to gather head.

In this interval it struck several of the spectators, who had appreciative friends outside, that it was a pity they should miss the coming music, and they risked the loss of some strains themselves that they might step out and inform these dilettanti. One of them was stopped by a man at the door. “What's up, now?” The other impatiently explained; but the inquirer, instead of hurrying in to enjoy the fun, turned quickly about, and ran down the stairs. He crossed the street, and, by a system of alleys and byways, modestly made his way to the outlying fields of Tecumseh, which he traversed at heightened speed, plunging at last into the belt of timber beyond. This excursion, which had so much the appearance of a chase, was an exigency of the witness who had corroborated on oath the testimony of Bartley in regard to his wife's desertion. Such an establishment of facts, purely imaginary with the witness, was simple enough in the absence of rebutting testimony; but confronted with this, it became another affair; it had its embarrassments, its risks.

“M-ready,” repeated Squire Gay lord, “m-ready with facts and witnesses!” The word, in which he exulted till it rang and echoed through the room, drew the eyes of all to the little group on the bench next the bar, where Marcia, heavily veiled in the black which she had worn ever since Bartley's disappearance, sat with Halleck and Olive. The little girl, spent with her long journey, rested her head on her mother's lap, and the mother's hand tremulously smoothed her hair, and tried to hush the grieving whisper in which she incessantly repeated, “Where is papa? I want to see papa!”

Olive looked straight before her, and Halleck's eyes were fixed upon the floor. After the first glance at them Bartley did not lift his head, but held it bent forward where he sat, and showed only a fold of fat red neck above his coat-collar. Marcia might have seen his face in that moment before it blanched and he sank into his chair; she did not look toward him again.

“Mr. Sheriff, keep silence in the Court!” ordered the judge, in reprimand of the stir that ensued upon the general effort to catch sight of the witnesses.

“Silence in the Court! Keep your seats, gentlemen!” cried the sheriff.