Southwest-sentinel. [volume] (Silver City, N.M.) 1883-189?, 1895-07-09

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(2l That said testimony was nos
signed bg either of said witnesses
after being given.
(3l 1ha, it does not appear that
either 81 sad Witnesses before giving
bis testimony was sworn To- tell The
truth tbe Whole truih and nothing but
tho truth.
tD That neither OF SAID witnesses
MAS sworn 20 thu truth 81 the iesti-
mony given by him after he had given
The same.
90 That the order appointing The
special examiner herein was not
made IN open court aud not under the
seal Of The court.
90 That said special examiner taxi
ing the testimony was NOS qualified 70
take the So me By reason or not having
been sworn TO perform his duties as
such special examiner.
(0l) That the report p%urporting 10
be n transcript OF the testimony OF
each of said witnesses - only a copy Of
such alleged transcript.
(D That IL does not appear that the
interpreter who interpreted the testi-
mony Of each Of said Witnesses was
qualified by taking an oath according
TO law so 10 interpret said testimony.
tS) That the report Of said special
examiner Of tie testimony Of the Wit.
nesses named, does not purport 90 DO
"a report of the testimony oil either of
said witnesses. but simply an unsigr-
ed aud uu-swOrn to transcript Of said
testimony.
(9) That said testimony Of each of
the above named Witnesses taken by
the special examiner herein, was not
taken upon written interrogatories
filed in the Clerks Office after notice.
MS provided by law.
On the 10Th day OF June 1896, the
same parties filed certain exceptions
% The special ex iminer's report Of a. O
te stimony which set out substantially
the same grounds, and on the 14th day
Of June, the parties filed a motion 10
re.take the testimony Of the witness
es 20 whom exception was made In tho
motion 10 suppress and In exceptions
to the special examiners report.
In this motion they aver that petit
TONERS are Informed and believe that
the witnesses had been talked to in
reference to their testimony and tam
pered with end influenced by the par
ties on the other side, their agents and
attorneys, and that since the 9th day
Of May, 1895, petitioners had secured
newly discovered evidence, showing
that their Information rs to the tam.
pering with and iufuence Of SAID wit
nesses by the other side was we'll
founded.
On the Goth day Of June, the afida
Wit of one John Ryan was fled in mp
port Of this last motion.
These motions were set down for ar
gument before me at Silver City gu
last Saturday, but owing to the alb
seuce OF Judge Newcomb the argu.
ment was not completed. To-day the
argument was resumed and the ques-
lions have been worry l|oarnedly aud
el abOrately presented.
Since the argument was commen-
ced at Silver City, 1 haYe gwen the
questions considerable attention and
some investigation aud while / should
much prefer to take time for the
preparation Of the opinion, / have
reached a conclusion which seems TO
me to be sound, aud l shall not della
the cause by taking time TO prepare a
a more elaborate opinion.
The Special Examiner, II. B Holt,
was appointed on the nth day of Dec
ember, 1894, under an order of court
made pursuant to a written stipula-
ton for his appointment as Special
Examiner 20 take the testimony IN
these contest cases. The stipula.
ton among other things, provided that
the contest cases should be cOnsoli-
dated for the purpose Of taking the
testimony.
On the LIST day of the hearing the
parties appeared before the special
examiner and entered iuto an agree.
ment which was written down By the
examiner and in their presence and
by their direction, in the following
words;-
That the testimony IN this canse
might be taken in shorthand by the
special examiner above mentioned
aud by him transcribed and certified
to as a rue and correct transcript OF
said testimony, and that the parties
giving such testimony should not be
required TO sign the same
II this stipulation has any effect al
all it is manifest that in express terms
il valves the signing of the testimony
Of the witnesses. The same may be
said OF the objection tha' the witness.
es were not examined on written in.
terrogalories filed ia the clerks Office.
This stipulation is not n bare verbal
agreement for the performance OF
something in the future; but it is an
agreement actually executed by the
actual takingof the testimony in the
presence and by the-active participa.
ton of both parties. The examiner
was directed by this court to take The
testimony in these causes, and these
statements Of the Witnesses were vol
untarily submitted to the special OK
aminer as testimony under aud pur.
suant to the order, aud In accordance
With the verbal agreement OF tho par
ties entered into and minuted by thc
special examiner In their presence and
Nv their direction. Whether the par
ties would be bound by verbal agree.
ments made IN the presence OF ar
examiner in all cases ths same al
they would be bound by verbal agree
menis made ia tue presence of the
court Oh "a master Ia chancery It is un.
necessary Co decide; but whom an
agreement before ma examiner APP
pointed TO take testimony Is actually
executed by submitting the testimony
before him, / do not believe such testi'
mony should be suppressed merely be
cause there is a failure TO comply will
some fOrmality which bat for the
agreement must have been observed
While II is true that a litigant has
the night TO those securities against
false testimony which arise from the
criminal law ia regard 10 perjury, Il
IS en- lreiy competent for him e
waive any and all of those
securities; he may, If he pleases
dispense with the attendance Of the
witnesses altogether and consent upOr
the record before the Special Examin-
er that certain things are the estab
lished facts without any proof what
ever and in such case he could MOI