The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-03-23

garded the English rule as to declarations post
Iitem motGm. Washington's c. C Report.
The whole point in issue here was the existence
ries of Laguinillas. There controversy
about the boundary, and therefore the rule did not
apply TO this inquiry.
He reviewed the cases cited by Mr.. Carlisle, and
| There having been no controversy as to these
boundaries, there was no lis msotG in this case
/ There was no map Of Laguinillas in Mexico.
and this was the best evidence that could DC af-
forded.
/ Mr.. FENpALL and Mr.. BRADLEY followed, and
continued the argument till half-past three
| O'Clock.
The CouRr. 1t is proposed to ask the wit
Laguinilias in the fall of 1852, and did not
there learn from those living in the country what
were its boundaries
/ 1t is objected to because the declarations pro
posed to be sworn to are those of living persons
second, because tt ose declarations were made
post titan notem The title paper of the defendant,
given in evidence and FL. d, located the mines in
Laguinillas county. As genera principle,
| putation, as said before when this matter was
fret preached ; but that is not the question here.
But
LIST. Can declarations of living persons be proved?
2d Can declarations made post hten NOLAN be
proved?
This is a naked question OF law, and must be dc
cided according to settled and acknowledged prn :
ciples and rules
think the distinction between public and private
rights is we'll TAKEN and thst the boundaries of a
county or district may be established by reputa-
ton, as well as by the declarations Of deceased
persons.
But the question whether that reputation post
!item notdm may be proved, remains. think one
of the best rules judge observe is stare deciss;
his duty will be well performed by walking super
antiques vias. 1t is conceded that the English rule
| 49,
tam, but ii is said the American rule is different;
and cases in Maryland, Pennsylvania, and case
in South Carolina have been referred to, rejectine
the rule post Item motam, and decision by
Judge Washington, holding circuit court for
the district of Pennsylvania, at Philadelpbia,
| reported in 4th Washington's G.. c. Reports.
No man entertains higher respect for his
eminent judge and excellent mans memory
| than do; and If the highest court in the coun
try had not recognised the English rule, / might
pause but in l3 Peters, 22l, the Supreme Court of
the United States have fully acknowledged the
rule as laid down in the Berkeley Pecrage case, and
the view which that high tribunal has taken of this
rule will govern me- / therefore think that evil
dence of reput, alton, post Htem motam, cannot be
received. 1t IL said, however, that ii the rule
knowledged by the Supreme Court be adopted by
this court the evidence must relate to the point in
issue This is true; and the question is presented
whether the point in issue s, the mines claimed
by Dr.. Gardiner, and sworn by him to have been
his, situated in the county OF Laguinlllas? The
| indictment says the mine is in San Louis Potosi.
But the mining title filed and read in evidence
| locates the mine in Laguinillas county, depart
ment of Rio Verde; and the testimony offered is to
prove that that county has by reputation-the
evidence Of which was obtained post fifem NOLAN
certain boundaries, within which the United States
say they cannot find any mine. If this point is not
in issue, then we have wasted great deal Of valu
able time. 1t may not be the whole issue, but that
it is part of the inquiry that it lie deemed essen
tia to pursue, cannot doubt. The case in Peters
Rep, 337, was that OF contest about the validity
OF deed, and the Supreme Court said the question
| was, whether the deed passed the estate, not who
diverse as could well be- under the circumstances.
1t is said that the lis nnota could not be known at
Laguniilas. That is immaterial. 2 Starkie on
Ev., COS, 6, Z, 8, 8.
In my opinion, the question cannot be asked
Captain Barry, recalled.
By MIR. MAY. Do you know where the northern
boundary of the village of Laguinillas in the de-
partment of Rio Verde, is situated?
Mr.. BRADLEY Stop moment, don't say where
it is. | want to know first how you know any
thing about it?
Ans saw it myself.
Cues. Was it pointed out to you?
Ans. Yes they told me where it was.
BY Mr.. MAY. Was it an old stone?
Ans. 1t was pile of masonry.
Mr.. BRADLEY. think the court has ruled that
out
Mr.. MAY. | do not know that the court has
Cannot
witness state what he and ascertained?
The CoURT said it had decided that witness could
not give evidence derived from reputation
Mr. MAY. He says he saw stone. Is not that
admissible?
The CoURr. He may say he saw etone: and
you may make what you can out of it,
by Mr. MAY. Do you know the appearance of
boundary stones in Mexico?
Mr.. BnADLLr. How do you know their appear
ance?
Ans. have them in Mexico. They have
q peculiar appearance. have small piles of
stones in different parts of Mexico which the
owners of haciendas pointed out TO me as beng
boundaries.
The DIsrRIcr ATTORNEY. We propose to show
HOW by this witness his knowledge of boundary
stones, acquired by him before this suit was nst
tutcd. He had been in Mexico be tore and the
court has decided that he can give testimony de-
rived from hearsay before the indictment was
found -
Mr.. BRADLEY. He is not to make indirect state
ments in order to get at the same thing.
The CouRT. Certainly not.
The DISTRICT ATTORNEY. We propose to ask
him directly in regard to his knowled e of boun.
DIARIES in Mexico, obtained before this suit was
brought.
Mr. MAY. l ask now if this pile of stones which
you saw in Laguinillas of the same appear.
ance as the boundary stones you had seen in Mexico
before this suit was instituted?
Mr.. CARLISLE. submit what does that prove?
little pile, middiing pile, big pile of stones.
do not zee how that is to prove any thing
The Court. / do not how it proves any
thing. / suppose the counsel will show us
Mr.. Mar. We do not mean to show any such
thing. He said il was piece OF solid masonry
having the appearance of monumental stones built
up to mark boundaries.
The CouRT to the witness. in,ormution
which you obtained before July, 1851, you may
speak of.
Mr.. CARLISLE. Isuppose you can tell " neither
you were in the State of San Luis Potosi before
July, 1851?
Ans. was not.
Cues. You were never in any part of the State
of San Luis Potosi before you went out on this
business? 80
Ans. / was not. ...
By Mr.. FEHDALL. You were in the Republic Of
Mexico before that!
dns Yes.
Cues. When?
Ans In the year ls47.
Cues How long did you remain there?
Ans. / went to Mexico in August lS47: rs,nain.
ed there until the 2lst of December; came to Tho
States; returned to Mexico and renamed there
until the LIST of July, 1913.
BY Mr. MAY. Did you, while there, examine
piles OF masonry and acquire knowledge Of auch
az are used to mark boundaries in Mexico9
A1's saw these piles of stones in different ma rte
OF Mexico; they were pointed out TO me as marx.
ing boundaries. 80 - 'na' n
Ques. ask you whether this pile of stones in