The San Francisco call., 1896-05-13
FOX AGAIN GETS
HEAVY JUDGMENT,
Latest Decision in the Hale
and Norcross
Case.
TWO SUMS IN ONE.
Judge Hebbard's Opinion on the
Charge of Fraudulent
Milling.
RETURNS WERE PLAINLY FALSE
Together the Two Amounts Aggre.
gate Far Over Six Hundred
Thousand.
RETURNS WERE PLAINLY FALSE

Oue more decision IN tDe Hale & Nor
cross case has been entered in the records
this time by Judge Hebbard of the Supe-
rior Court.
The decision was rendered in that phase
of the case which relates to the fraudulent
milling of the ore. 1t bad been tried be-
fore Judge Hebbard and his Judgment was
for $7s9,6ls. The Supreme Court reversed
this as being excessive, however, and it
was tried again before Judge Hibbard.
His decision yesterday scales down the
former judgment to $417,6S3. With this
judgment he rendered an opinion yester-
day.
In the first part OF his opinion Judge
H9bbard quotes from the decisions of the
Supreme Court reversing his former judg-
ment. Then he says:
The Supreme Court has directed this court
10 find: The value of the ores of the Hale &,
Noreross Mining Company delivered TO the
1887, TO DULY 1, 1890; the amount OF this
value necessarily lost in working or which
would not under fair milling be separated
from the baser matter; the amount of money,
II any, received by the mills from the working
or sale OF the tAilings or residue of said ores /;
the amount and value OF the bullion that
should have been returned by the mill.
From these premises this court is directed to
find what amount of damage if any, has been
sustained by the Hale d Norcross Mining Com
pany.
From the conclusion that the Hale & Nor
cross Mining Company has sustained loss by
reason OF the imperfect and fraudulent mill
ing OF It's ores there is no possible escape.
Taking the great mass OF seemingly conflict
ing evidence in the case and calculating from
premises strained and enlarged TO the utmost
in the defendants favor the result is still thai
the Nevada and Mexican mills. controlled by
Hayward, Hobart and Levy, did not return to
the Hale d Norcross Company the amount of
bullion which in common honesty and fair
business dealing ought TO have been returned.
Many witnesses called for defendants testi-
ned that 20 or 20 per cent of the battery
sample assays would be fair return, but this
conclusion is arbitrarily given, without re-
gard for car or railroad car sample assays and
independent OF the actual value of the ore be-
tore 1t went through the mill.
The court cannot rely upon this class of evil
dence founded entirely and absolutely upon
battery assays for it is beyond question that
the battery sample assays of these ores taken
IN these mills are incorrect and false, and can
not De properly employed as a basis upon
which to figure such percentages OF returns.
From January I, 1887, TO January 1, 1890,
these assay returns of over $4,000 tons of ore
showed in single month a percentage over
or equal 10 the car sample assays of the same; /;
they were invariably much lower. Consider
Ing that all assays are somewhat speculative
and never g absolutely exact, the fact that in all
this mass OF ore there was scarcely single
battery assay that, even by chance, went
hlgher than the car assay, Is startling in its
evidence OF deliberate, habitual design.
The witness D. B. Lyman testified that the
Nevada mill was we'll adapted for the proper
reduction OF ores, yet its percentage of returns
does not compare favorably with those OF other
mills working Comstock ores, particularly the
Brunswick MILL at which Hale 6 Norcross
ores have tbeen worked since this action was
commenced, with res ults so much more favor
able TO the mining company as to absolutely
disprove the theory and the evidence that car
sample assays must necessarily and always be
TOO high.
The Brunswick mill worked these ores,
made large returns and in some instances the
battery assays were il excess OF the car sam
pie assays.
The following facts and figures are ad-
mltted 10 be correctly shown by the record in
me case: Number OF tons of ore from Hale d
Norcross mine milled at the Nevada and Mexi-
can mills from January 1, 1887, to July L,
1890 S4 O6S. 100; value Of same as shown by
car sample assay, Sc, ,224 ,2S6 50; average value
OF same per ton, car sample assay, S3S So.
assay 81 225 2Se "a; value s f' of bullion Pse Pee
turned by. mills to mining company, 81, ,675,-
92l l6. Of which $71S,345 was gold and
$96O,oI6 II silver; percentage of gold in bull
hon, 426S; percentage of silver in bullion,
.5122; average discount on silver, during
period with standard at 1929, running from
For the purpose of simplifying calculations
fractions OF tons OF ore and fractions of the
value thereof will be ignored. The value of
these ores delivered TO these mills during the
period mentioned is $2,551, ,742, of which
81 l46O, JOY is silver and 81, ,091 ,635 gold.
This value is ascertained by deducting SS
per ton from the sample assay value
Example,: Car sample value, $3, ,224, ,286; S4,-
O6S tons at So. 1872, ,544; balance, So, ,551 ,742
sample assay value will give the true value of
the ore delivered to the mills, as nearly as
practicable and as nearly as possible, is proved
by the testimony of witnesses on both Sides
And 1t is also proven by the working of ores
and the returns thereof at the Con- Va q Cal
Overman and Hale & Norcross Mining com
This deduction of 50 per ton is a most liberal
allowance. Plaintiff contends that q deduc-
t1on OF 20 WonId be ample, and the evidence
above referred to would perhaps warrant an
average deduction of but $5
The amount OF the value of the ore delivered
to the mills, which necessarily lost in
working or would not under fair milling be
separated from the baser matter and therefore
which Is the amount to be deducted for loss, is
$381, ,769.
The loss is made up as follows: Shines.
$98, ,35S; moisture, $32, ,214; taiings, 1921, 1877
The evidence shows that the loss by shines
and moisture occasioned by the presen nee OF
clay in the ore, and that the amount of clay is
about 10 per cent OF the ore, and that the
amount OF moisture is about 10 per cent of the
clay.
Ten per cent of 84,o68 tons of ore is s4o6
tons, which is clay consisting OF shines and
moisture. OF this $40 tons is moisture and
1866 tons are shines. Total. 6406 tons of.clay.
The witnesses, Peck and Kinkead, say these
shines assay $13 per ton; 1856 tons Of shines
at $13 equals sos, ,358, which is the total loss
occesioned by shines.
Giving the $40 tons of moisture the average
value per ton Of the ore by car sample, which
is $3S 30, then $40 tons of moisture at S3S 80
equals $32,2 PA total loss oceasoned by
moisture.
The tailings are that portion of the orc which,
after passing through the amalgamating pans,
runs out OF the mill and is wasted.
Tne value OF these tailings per ton is shown
by the settler sample assays plaintif exhibit
~.
The average of these settler sample assays, as
claimed by plaintiff, is So oS per ton. and as
Claimed by defendants So 80 per ton, the
latter Is adopted for the calculation.
AS al the shines and moisture are above ac-
counted for, neither form part OF the tailings
for the purpose OF the calculations.
The total amount OF the shines and moisture
must be deducted from the amount of ore in
order to ascertain the amount of taili7gs:
Example shines 1866 tons, moisture $40
tons; total. S406 tons.
Deduct 8406 tons of shines and moisture
from 64,o68 tons OF ore equals rs ,662 tons of
tailings, without deducting the weight of the
bullion; 1862 tons multiplied by, So 32
equals $251, 1877, total loss occasioned by tail
1ngs, and making the total loss occasioned by
shines, moisture and tailings, as aforesaid, the
amount of $3S1,769
From the value of the ore delivered to the
mils--$2, ,551 ,742-deduct the total loss occa-
stoned by shines, moisture and tailngs, $751;
TX CO ~ r-TO