Year: 1868

ReqiSter and ReceiUer Z. s. Land Office


Helena, Montana Territory:


GENTLEMEN In answer to the first
question IN your letter of the Both ulti-
mo, you are informed that the law pro-
vides no compulsory process to secure
the attendance of witnesses before Reg
listers and Receivers, neither as to pro-
ceedings under the mining, the pre-
emption. nor the Homestead Acts no
instance being remembered of any par
ticular difficulty arising from this want
of power.


Parties serve their own subpGnas, and
it can seldom happen that bona tide
claimant will experience any trouble in
obtaining the necessary testimony.


In reply TO the second question, you
are advised that ex-parte affidavits may
be received generally in applications
under the Mining Act, reasonable care
being required on the part of the Reg
lister and Receiver not to suffer them
selves to be imposed upon by pretended
affidavits, or reckless OF dishonest wit
nesses.


The officer before whom the affidavit
is made, should usually be able to certify
TO the credibility of the witness; yet,
where such is not the case, and the de-
ponent is a stranger TO you, it will be
proper for you to require his character
for truth TO be established to your salts
faction, before giving credit to his affida-
Wit, in all cases where the question de-
posed to is not merely technical, but
goes TO the merit of the claim.


The law requires that you should be
SATISFIED of the truth of the testimony
offered, in whatever form it may be
presented, and in arriving at this result
10,
nical rules, but are left to the exercise Of
sound judgment and an honest, upright
purpose to perform your duties faithful
ly, doing equal and exact justice alike to
the Government employing and reposing
confidence in you, and 10 the parties
who are obliged TO submit claims TO your
preliminary examination.


Where these qualities are properly
exercised they will frequently be more
successful in accomplishing the desired
end than all the technicalities found in
books.


In applications under the Mining Act
there will not, as a general thing, be any
adverse parties to notify of the time and
place of taking testimony, for the law
has not charged the local Land Officers
with the duty of adjusting the adverse
claims of opposing parties. Its remedies
are limited 10 miners Gin regard 20
whose possession there is no controversy
or opposing claim" The very fact OF
there being adverse parties shows the
claim to be one for adjustment in the
| local courts, before it is in condition to
be presented under the Mining Act.


Your third question is answered by
the Act of July 2d, 1868, Sd section, vol.
ID, page 351, statutes at large, in which
Congress mas prescribed the policy of not
excluding any witness in the Courts OF
the United States on account of not be
ing party TO or Interested in, the issue
tried. Ut is altogether proper that the
same rule should be observed in pro-
ceedings before the Executive Departs
ment, and you are instructed to- be gov
e-ned by that principle.


The weight of the evidence is, OF
course, still a matter for your judgment
as in all other cases where a witness
may be supposed TO be laboring under
a bias, or To have a stronger motive to
incline TO one side than the other n his
testimony. Very respectfully,
Your obdt. serv't,
J. $. WILSON. Com'r.