The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-02-18
QUESTION OF APEX
More Testimony in the Butte & Bos-
tOn-LeXingtOn Case.
AS TO BURDEN OF PROOF
Judge Mediation Calls the Atten-
ton OF the Attorneys to Matters
Relating to the Issue as Pro-
vlGed by the Codes.

The trial Of the mining case of the
/ Butte 81 Boston against the Lexington
company was resumed in Judge McTIat-
toms court yesterday morning. The
witnesses who testified for the defense
during the day were James McFarlane.
/ Bernard Mcdonald. John Gillie and
Joe Laird. Mr.. Laird was on the stand
/ when court adjourned for the day and
will conclude his testimony to-day. He
/ is the last witness on the question of
/ apex. and all the testimony yesterday
was on that point. An important mat
/ ter relating to the question Of the bur
den of proof has been called to the at
tention Of the attorneys by Judge Nc
Hatton and may have an important
bearing on the determination of the
big case.
At the commencement Of the trial
Attorney John Forbis first brought up
the question as TO the rule Of introduce
ing testimony, indicating an uncer-
tainty as to which side had the burden
of proof. or how far the plaintiff was
. obliged to 60. Mr. Forbis claimed that
when the plaintiff made a priu.a facie
case by showing that the defendant ex-
tracted the ore within the vertical
planes downward, Il had made out it's
case in chief and the burden Of proof
would be on the defendant 10 show that
the ore belonged to il, and that the
apex was i'm the defendants ground
Mr. Forbis thought the plaintiff should
be permitted to Introduce its evidence
as to apexes in rebuttaI. and referred
TO several supreme court decisions as
supporting that rule of practice The
plaintiff conducted its case in accord
ance with that view and at the close of
the direct testimony the defense moved
for o non-suit on the ground that the
plaintiff had failed to establish facts to
show IL TO be entitled to the ore in dis
pute. The motion was overruled. hut
the court said. in passing on the ques-
ton, that he did not unhesitatinglv an
prove the position occupied by the
plaintiffs and that, while the courts
ruling was absolute so far as the case
on trial was concerned. the question
raised was still an open one so far as
future cases Of a like character were
concerned
In referring to the question yesterday
the court said he desired 10 call the
tcntiOn Of the attorneys to some pro-
visions Of the code bearing on the in
PRODUCTION Of evidence and which had
not been referred TO at the time thu
motion for q non-suit was presented.
He said he did not call attention to the
provision as in any way affecting the
Introduction OF evidence, as ruled on in
the motion for a non-suit. nor as indi-
eating that the court erred in sustain
ing the motion. Under the sections re-
ferred to the rulings OF the court might
be held TO be within the code as COM
ing within an exercise of the courts
discretion in the matter. Attention was
called To IL, he said. with particular
reference to the question as to which
had the burden OF proof and for the
reason that counsel for plaintiff. in
making the request OF the court TO in
dictate its opinion as 10 the manner OF
introducing evidence, said that h. would
claim the burden OF proof was with the
defendant Reference was not nod, 10
the provision as indicating a decision
or the court, but merely to advise conn
sci Of the existence of such provisions
and 10 allow them. and when IL came
10 the proper time TO request instruc-
tons, 20 take the provisions into con-
sideration, and II there should be any
dispute between the attorneys on the
question of the burden OF proofs. they
might present their views 10 the court
at that time. Particular reference was
made TO section 1870 of the code Of civil
procedure which says: The order OF
proof must be regulated by the sound |
decision or the court Ordinarily the |
party beginning the case must exhaust |
this evidence before the other party be- |
gins Subdivision and Of section |
1850 say: The party on whom rests the |
burden OF the Issues may briefly state 1
his case and the evidence by which he ]
expects TO sustain IL. The parties will /
then be confined to rebutting evidence. |
unless the court, for good reason in |
furtherance of justice permits them 20 |
offer evidence in the original case"
Section 1920. says: THE party holding /
the affirmative of the issue must pro-
duce the evidence TO prove II. there l
fore the burden Of proof lies on the
party who would be defeated II no evil /
dence were given on either side
II f. probable that the trial OF the
case Will be concluded this week