Page:Federal Reporter, 1st Series, Volume 5.djvu/248

 286 FEDEBAIi BEFOBTEB. �at least until 1872. He was present when Gibson was appHed to for the insurance on Moses' life, and seems to bave taken some interest in the transaction. He knows, if any one does, whether Moses was drowned, or not, and whether Erank Williams is his alias or not. Frank Williams lived with and about the defendant for years before the commencement of tbis suit. His testimony upon the subject of bis identity, and particularly an iaspection of bis person, wonld be very mate- rial in tbis case. �Wby are not these persons examined as -witnesses, or the failure to do so accounted for? Tbey are the relatives and friends of the defendant, and may reasonably be supposed to be witbin bis control or knowledge, and willing to assist bim if tbey could. The reasonable inference is that the defendant dared not call tbem, and that in the case of Williams be sent the witness out of the oountryas soon as hewas aware of the commencement of the suit. Neither is Madison Elliott called. He ig the son of the defendant and lives near bim, and ought to be able to state whether Frank Williams is Moses Elliott or not, and the inference is that the defendant knew or tbought be would not testify against tbeir identity, and therefore did not examine bim. So with the motber, Arty Mesy Elliott ; sbe knows whether Frank Williams is the child sbe bore and "called bis name Moses" or not; and although sbe bas, in the joint answer of herself and busband, affirmed ineffeot that tbey are not identical, I cannot but tbink that if sucb was the fact sbe would bave been examined as a witness upon that point, and given an opportunity to say so explicitly, subject to cross-ex- amination. �By way of preventing the real property mentioned in the bill from being taken to satisfy any decree which the plaintiff may obtain in tbis case, the defendant Jeremiah bas set up and testified to a story to the effect that tbis property was bought with the separate funds of his wife. In brief, it is tbis : That Jeremiah and Arty Mesy were married in Obio in 1843, and in 1857 the latter received from her f ather's estate $1,500, which in 1858 they converted into gold and carried with them to lowa, where tbey kept it until the advent of greenbacks. ����