The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-12-11
CAR ASSAY PERCEN TAGES,
AfidavitS and Legal Tits in the
Hale and NorcroSS
Case.
Judge Hebbard Makes a Ruling Con.
trary to One Made by Judge
Seawell.

The great Hale & Norcross case. or rather
that part OF it sent back by the Supreme
Court for further trial, was on again yes
terday before Judge Hebbard, and most of
the day was taken up in legal tits between
the attorneys as to the admissibility of
evidence of the plaintiffs.
The only question before Judge Hebbard
now is as to how much were the plaintiffs
defrauded of in the returns of ore milled.
The Supreme Court sustained the decision
awarding $4,000 mill profits and finding
that fraud had been committed but that
part of the lower courts decision award
ing $789. 900 to the plaintiffs as the differ
ence between the amount of bullion re-
turned on the ore milled by the defendants
and the amount they should have returned
on basis of "a per cent on the car ASSAYS
was returned for further trial, as the evil
dence was not satisfactory.
The plaintiffs depend for their evidence
largely upon proof OF what was
| the percentage of returns of bull
| lion on car assays in other mines
on the Comstock, and most of the
| depositions read were in this direction
| YIN the admission of this sort of eviden &c
| in the Consolidated Virginia case Judge
| SeaweH ruled adversely, and yesterday
morning Judge Hebbard, in reply t. 8
motion to strike out the evidence of cn-
Gals of other mines as to percentages OBJ
tanned, said:
AS to introduction of records of other min
ing companies, as / said yesterday, am not so
| entirely satisfied as to the competency of that
| kind OF evidence, and in making a form al
ruling have not done 1t to preclude you from
raising the question before the is finally
| submitted, and shall permit you TO do that
very thoroughly. But at this time it seems 20
me that these books would be evidence N
some cases: Now then, am very free to say
now that if there shall be no evidence in the
| case to prove that this ruling was not
! properly done, except the fact that the books
| OF those corporations show higher percentage
| than was return ed from the mine, there never
could be a Judgment against the defendant.
! That standing alone as independent direct
evidence it would not be sufficient and fur
| Their say that 1t will be of little value anyway
| unless the conditions are the same, sub
| stantially the same-that is to say, the charac-
| ter of the ore and the manner of assays. But
ft-seems to me at this time, in view of the tes-
| timony already in the case, the objections to
which have not been sustained by the Supreme
| Court so far, that it would be valuable, not
| only to this court, but to the Supreme Court.
! as circumstances taken In connection with
/ othe-. testimony, which may be direct or cir
| cumstantial of another character against the
defendants, IT there is any such, and it is Cor
| that purpose that am allowing it in at this
| time, and with the understanding that before
| the case is submitted counsel may Thoroughly
argue the point, and if | am satisfied that this
| evidence is incompetent then will cast it en-
| tirely out of my mind and strike it out of the
record. will permit you to renew this obec-
ton at the close of plaintiffs case, and We can
| have 1t thoroughly argued.
| In the afternoon the point was again ar
gued by Mr.. Wood and ex-Judge Nc
Kisick, and Judge Hebbard finally denied
| the motion to strike out the evidence.
The deposition of Albert Lackay super
| intendent of the Overman mine, was read,
showing that the bullion returns from the
milling of that mines ore were II per cent
of the car samples. The Hale & Norcross
returns, upon which the fight is being
made, were 50 per cent.
| The afhdavits of w. H. Lowell, a clerk
at the Con. California and Virginia, and
of u. B. Lyman, the superintendent,
| showed that the average returns of bullion
were SO per cent of the car assays from Oc-
| tober l, 1894, to September 80. 1885,
The plaintiffs rested their case after call
! jng A. W. Ravens To confirm the reports
| from the Con. California and Virginia, and
Mr.. Deal began reading affidavIts for the
| defense.
Affidavits of James Barclay and Adam
| Gillespie were read to show that certain
samples taken from the tailings of the
| Hale 81 Norcross were not tempered with
on their way to the assay Office. Then the
affidavit of Orrin +. Peck, for whom the
| samples had been taken, was read. Peck
! had the samples taken and assayed with
the object of buying the tailings to work
by the centrifugal process, but testified
that they were of very little value and he
| had offered only 81 ton for them.
The court adjourned until this morning,
when the reading of defendants affidavits
will be continued. They expect to con-
sumo two days with them and the case
will be argued with briefs.