25 App. D.C. 359 | D.C. Cir. | 1905
delivered the opinion of the Court:
1. The appellant contends that the appellee’s claim was not made until July 1, 1903, and that it was too late, as the articles levied on had then been sold. But the testimony is that the appellee’s claim was made to the marshal on June 27, 1903; and that the goods were sold on the same day. There is nothing in the record to show whether the sale was before or after the receipt of notice by the marshal; but as the law recognizes no fractions of a day, unless the circumstances demand it and there is testimony to the point, we must assume that the notice and the sale were simultaneous, and therefore that the notice was in due time. The marshal’s notice to the justice of the peace that the claim had been made, and the auctioneer’s retention of the articles sought to be sold, must be regarded -as corroborative evidence that the claimant’s notice was received in due time to stop the sale.
2. The appellant’s next contention is that the appellee did
3. In the third place, the appellant contends that the jury might not have believed Petersen’s testimony; that they were the sole judges of the facts, and that therefore the cause should have been submitted to them for their determination; and it is argued that there were several suspicious facts about the case which the jury should have heen allpwed to consider, and which might have had weight with them. Undoubtedly the case was not above suspicion as to some understanding between Petersen and Hood; but that understanding may have been entirely proper and legitimate, and it has long since been well established in our law that suspicion is not proof and cannot be allowed to take the place of proof. The appellant’s contention would require that every case of uncontradicted and unimpeached testimony-should be submitted to a jury, when there is no countervailing testimony. But this is not the law. The law is that positive testimony uncontradicted, and not inherently improbable, is prima facie evidence of the fact which it seeks to establish it, and the jury is not at liberty to disregard it. Crane v. Morris, 6 Pet. 598, 8 L. ed. 514; Kelly v. Jack
We find no error in tbe record, and tbe judgment appealed from must therefore be affirmed, with costs. And it is so-ordered. Affirmed.
A motion for a rebearing was overruled May 5, 1905.