Page:Federal Reporter, 1st Series, Volume 5.djvu/247

 HOBTHWESTBRN MT3T. LIFE INS. 00. ». BLLIOTT. 235 �plainly that he lost his in early life. It may be possible to find two men in the world thns similarly marked, but barely Bo; and the fact is sufficient, in the absence of any well-es- tablished and controlling circamstance to the contrary, to establish identity. If, nctwithstanding the similar loss of the fingers, it satisfactorily appeared that Frank had coal-black hair and eyes, wMle Moses had bright red hair and blue eyes, then the evidence of identity from this fact would be over- come, for it is even more probable that two men should be so similarly wounded in the hand, than that the same person should have red hair and blue eyes in 1870, and black hair and eyes in 1875 or 1879. But there is no such contradictory and controlling circumstance in this case. On the contrary, every particle of the evidence entitled to crecTence points with more or less directness and certainty to the conclusion that Moses Elliott and Frank Williams are one and the same per- son. �Again, there is the direct and positive testimony of John Dunn. He is a disinterested witness, and his position and employment indicate that he is reliable. He worked in the Eagle Clifl cannery in 1870, when Moses Elliott was there, and bas been foreman of the establishment for the past four years. He says he worked in the same cannery vrith Moses for a month or more, and during that time ate at the samo table and slept in the same bouse -with him. In October, 1879, at the rpqnest of the agent of the plaintiff, he went with Mr. Neill, the prosecuting attorney of Jackson county, to the cabin of the sheep ranch where Frank Williams was staying ; saw him, and heard Neill talk with him, and he swears un- qnalifiedly that he is the Moses Elliott whom he knew at the cannery. �But the failure of Jeremiah to produce the best evidence upon this point, or to account for not doing so, is a circum- stance that warrants the inference that such evidence would have been in favor of the identity. W. H. Deardoff is the half-brother of Arty Mesy, and is the only witness of the alleged drowning of Moses. He came to Oregon two years before the EUiotts, and lived with them in Columbia county ����