The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1903-07-29
Plaintiffs Begin Putting in
Rebuttal Evidence in
Famous Suit.
MANY ARGUMENTS
Numerous Documents Are
Offered and Objections
Made to Several.

At the Nipper trial today the defend
ants rested and the plaintiffs began putting
in their rebuttal evidence.
Judge Mediation stated that the rebut-
tai evidence be brief, but a good deal Of
the day was absorbed by arguments over
offers Of evidence and objections to the
offers.
The forenoon was exhausted with offers
of documentary evidence and objections
to the same. However, toward noon, the
first witness in rebuttal for the plaintiffs,
James MacFarlane, took the stand.
John GilIie's Testimony.
Before he went on the stand Judge
Mediation offered in evidence all the tes-
timony of John Gillie at the suit between
the Washoe Copper company and Edward
Hickey and others at an injunction hear
ing three years ago.
Before this offer was made Judge Nc
Hatton had tried to get excerpts from this
evidence in, but had failed, Judge Clancy
ruling the offer out.
Judge Clancy took the offer of all the
evidence under advisement.
Then Judge Mediation offered all the
evidence given at the same hearing by w.
II. Wiley and r. Z. Chase, and this was
objected to. The noon recess took place
before there had been ruling
Withdraws the Objection.
When the court opened in the afternoon
Governor Thomas, for the defendants,
withdrew the objection, saying that he had
consulted the authorities specifically at
noon, and had found them conflicting and
uncertain, so he would accept Judge Nc
Hatton's position, and not object to the
introduction of the documents.
The examination of Mr.. MacFarlane
was taken up. He had been asked a ques-
tion about the surface Of the ground where
the Little Nina and Nipper adjoin at the
north as to whether there was an outcrop
there or not, and it had been objected to
by Governor Thomas.
Mr.. Thomas took the ground that the
witness and other witnesses for the plaint-
if had exhausted the subject while giving
their testimony in chief, both in direct
and cross-examination, and therefore that
it was not properly rebuttal testimony.
Excerpts Are Read.
Governor Thomas read number of cx-
cerpts from Mr.. MacFarlane's testimony
in chief to uphold his position, but Judge
Mediation contended that the matter was
new.
When the argument was finished the
court said:
well, as you gentlemen know, rebuttal
covers new matters called out by the de-
fense. My recollection is that Mr.. Finch
did deny that there is any outcrop there.
I'll allow you to so into that matter. The
objection is ovcrruled."
The defendants took an exception and
the witness testified that there is an out
crop of quartz in the locality referred to,
and at which spot Mr.. Finch, one of the
defendants witnesses, testified there is
no outcrop.
He also testified that plan map pre-
sentcd by the plaintiffs when cross-ques-
tioning Mr.. Finch, which showed the To-
cality mentioned, correctly represented the
formations OH the surface Of the ground
there, although Mr. Finch had denied the
same.
Offer Of Affidavits.
When the proceedings opened this MORN
ing Governor Thomas addressed the court
with the statement that the defendants
were satisfied with the title they had put
in, answering the plaintiffs pleadings, and
would close the defendants side of the
case with the offer of certain affdavits
filed in the court upon the defendants
motion for continuance Of the trial on
July 7, the day it opened.
The affidavits stated that Geologist Hor-
ace V. Winchel, L. T.. Chase and w. II.
Wiley, witnesses for the defendants,
would testify to certain things were they
present at the trial, but that they were
absent and their presence could not be Sc
cured.
"The counsel for the plaintiffs at that
time your honor admitted that the wit
nesses named would testify to the things
set forth in the afiidavits were they pres
emit said Governor Thomas.
I'VE wish to offer both the alfidavits
mentioned, stating what the witnesses
named would testify to if here, and also
the admissions of the plaintiffs that they
would SO testify the governor concluded
Offer Is Opposed.
The offer was opposed by Attorney
Denny for the plaintiffs. He stated that
the view he entertained was that the court
under its ruling would take judicial notice
of affidavits filed in the court, and would
therefore take notice of the affidavits in
question, and give the matters therein con-
tanned whatever weight it should see fit to
give.
He said he would call the courts at
tention to the fact that the affidavits said
the witnesses would testify that the vein
in the Nipper ran northwest and southeast
and crossed the side lines, and that It
did not cross the end lines.
He was willing to admit that matter,
but not any other
But the statute regulates that" said
the court, referring to the law on how
such admissions as referred to cbou1d ba