The San Francisco call., 1897-08-11
Justices Hear Oral and Closing
Arguments in the Big
Law Suit.
Judge CARRIER Defends the Comstock
Mill Owners and Attorney
Baggett Replies.

forces were presented to the Justices of
the Supreme Court in bank yesterday
afternoon. Judge John CARRIER repre-
sented the interests of the mining COM
pany and Attorney Baggett was present
for NJ. w. Fox, who brought the action
against the corporation on behalf of
mum ber of dissatisfied stockholders.
The case is now historical. In the be-
ginning it was a dispute as to the bullion
returns of Hale & Norcross ore from the
Mexican and Nevada mills. These mills
were owned by Alsinza Hayward and II.
M. Levy, who are in reality the two prin-
cipaI defendants in the litigation. When
the action was originally brought it was
sought to recover damages from the mill
| owners for excessive charges for milling
the ores of the mining company, and an
additional claim was put forward on the
charge that vast sums of money had been
diverted from the pockets of the stock
holders by reason Of imperfect treatment
! of the ores. In all a sum exceeding mil
! lion dollars was asked for.
There were insinuations that the process
| of treating the ores was such that an I'M
| necessary amount of the bullion was lost
| in the tailings which were su bsequentIy
| worked over again at profit to the mill
owners The court records OF the big case
now fill over 5000 printed pages, and half
| a score OF the most famous lawyers in the
State have been engaged on one side or
| the other.
At the first trial the millionaire mill
owners were worsted, and judgment of
| $210, 1877 was entered against them on the
issue of excessive charges Tor milling the
ores. In the matter of imperfect milling
the Supreme Court on appeal referred
h1. lr>ra nrt for
with the result that Judge Hebbard de-
cided against the millmen to the amount
of SAT- 900 in round mum bers. 1t is worthy
of note that this decision on the part of
Judge He ebbard occasioned no little criti-
cism at the time, and out OF IL grew his
celebrated but futile attempt to vindicate
his character by bringing suit for libel
to invoke gag law on his merits as polit-
ical candidate at the expense of the City.
In this last judgment the estate of the late
w. S. Hobart was included.
In reply to the charges of fraud in con-
nection with the treatment of the ores of
the mining company, it has always been
the contention of the owners of the mills
that the milling was honest and that the
bullion returns were all that were secured.
There were numerous witnesses called
upon this point on both sides. The mat
ter of car samples and their relia bility as
q test OF the true value OF the ore was
matter OF much discussion. The COM
planning stockholders OF the mining COM
pany insisted that this estimate should be
taken as the output of the mine The
millowners, on the other hand intro
duced evidence to prove that the proper
tests of the value of a car of ore was by
means of battery test at the mill when
the ore had been crushed and submitted
TO thorough assaying.
The matter of the loss in the tailings
gants split. The stockholders declared
that not less than IA per centof the origi-
ma! estimate OF the car sampling should
be the basis of the expense OF waste in the
lailings. The mill returns were but 81
per cent in many instances of the car esti-
mate, and 1t was upon this condition Of
affairs that the charge was made that the
treatment of the ole was so arranged that
much of the bullion went into the tail
ings, which were subsequently worked
over again at big profit 10 the owners of
the reduction mills. There were other
matters to be ad djusted which are familiar
to all mining men. Among them were
the escape in slime, the loss due to mois-
ture and the subject of the discount to be
allowed for the silver portion of the bull
lion returns.
The briefs in an app al from Judge Heb
bard's decision have been filed in the Su.
preme Court and the Justices listened 10
the closing arguments pending the consid-
Grafton OF the voluminous history of the
case. There are some nice poln is of law to be
d. cided. 1t happened that at the time
Fox brought the action he was not a bona
fide stockholder In the company, but was
acting in the interest of mum ber OF the
dissa tisfed. bsequently he purchased
about 200 shares with the idea OF bridging
this technicality, and the court will be
called upon to pass upon his standing as
a bona-fide litigant. Then there are miles
of the opinions of many witnesses on the
subject of the treatment of ores and the
elemental character and ingredien of
those peculiar to the Comstock. One of
the principal witnesses In the case in the
lower courts was John w. Mackay. the
bonanza king.
In his argument yesterday Judge Gar.
ber contended that it was unfair to Hay-
ward Hobart and Levy that they should
be held guilty of fraud in the face of all
the evidence to the contrary gwen at the
trial of the case. 1t was charged. said
Judge CARRIER, that the defendants had
conspired to bring about unusual waste In
the tailings, which was equivalent to n
direct accusation, it might be said. of
theft The matter OF the value of car
samples as sure test OF the value of the
ore was not reliable. Even Judge Heb
bard admitted this and had deducted S8
from the estimated value of S36 on each
ton. Mackay had said that $40 would be
better and more impartial deduction
after an experience of many years on the
Comstock. The decree of Judge He bbari
practically i'm posed upon the mlli-owners
the obligation TO return Sc per cent of the
car sample, "hich was unfair aad unjust
considering the wide divergence of opinion
among mining men on this subject and
the ever changing character of ores in
general on the Comstock.
Witnesses have testified" continued
Judge CARRIER, THAT these mills were
equipped with the best machinery to be
obtained in the market and that these
ores were worked TO the best possible ad-
vantage. There is no conflict of evidence
on this point. Even the finding OF The
lower court declares that these ores were
well handled and treated in the most an
proved manner and that there was no nm
nee ssary waste in the tailings, yet the
defendants, Mr.. Hayward and his com.
Dani0ns are mt in the pOsition of har;u