The Union Gold-Mining Company of Colorado, Plaintiff in Error, vs. The Rocky Mountain National Bank of Central City, Colorado. 1877: Vol 157

Supreme Court of the United States · 1877 · Historical

The Union Gold-Mining Company of Colorado, Plaintiff in Error, vs. The Rocky Mountain National Bank of Central City, Colorado. 1877: Volume 157 .

This 1877 document, The Union Gold-Mining Company of Colorado, Plaintiff in Error, vs. The Rocky Mountain National Bank of Central City, Colorado. 1877: Vol 157, is preserved in the Mountain Man Mining Library for research and reference. Original source: archive.org.

{ f em 4 5 a f « < A Z vA ae f Ps Se ae OF ' or.

Transcript Of Record,

SUPREME COURT OF THE UNITED STATES No. 157.

THe UNION GOLD-MINING COMPANY OF

Colorado, Plaintife In Error,

\ Vn. The Rocky Mountain National

Bank Of Central City, Colorado.

IN ERROR-TO THE SUPREME COURT OF THE TRERREPORY OF COLORADO, fm

-

Piled October 6, E875.

SUPREME COURTP OF THE UNITED STATES. No. 157.

The Union Gold-Mining Company Of Cololado, Plaintiff In Error,

Vn.

The Rocky Mountain National Bank Of Central City, Colorado.

In Error To The Supreme Court Of The Territory Of Colorado.

Index,

Original. Print Proceedings in Jeierson County court...... eccces cence. peace 6uee caue oe 3 ] ik ar keneee betwen kedoad alee eee i+ sonia eee lt 4" OE, oe sks CHK ROO HKD SECO 6 ee eee bee ee eee beeen woe il Detendant's DIONE cantcsde saeded 060004400 Uein s 6es Oden enneertel omen a 17 16 Demurrer to pleas......... OTe Teer TTT Ce ee pba meae 7 1g Lp PO eer TTT ee eT eT Tere TET TTS TT TT TT eee 'enamels ccieuiienitn OH) 3:2 WES sei can ends Soneaes eee ee eee eaueua on a3 BE re ee ee ee se 7 J ROR DONG 60.0 css ni oene a1. 6ss eRe ees 154008 RENE ence ene polietiaheines Gg 35 eee GE ONO 6s «cocker cdcdgans tts ebeenkaeweees re eee 105 37

Act authorizing the formation of corporations for manufacturing, mining,

mechanical, or chemical PUPPOSOES 2.22 ce ewes ence cone cee cces coccce cree ° ol weed A ee ee bets onan ene a= 240 I iii) ste haa idee tiehéenkebeet ae adda wee bmi adnetetie 67 Zo PRRRIIONE CE CUDTOEND COMUNE ..o.c.cc cnedunsntes deve bien acai eit talk asda =~oY 260 ae SY ok sce sendee +s oden taceee beeen PP rs ee "71 260 Citation and service...... $0006. 000s000d beeen eee "7 261 ate a a as aa dams an eee eae a "aty 202 ae ee eee O cnet ee cans seunedeeeeeeseeeknneeeneeeeaeeneeeel He4 8 6264 Clerk's certificate ........ ceee.; ee eee ee aati a pe eee O03 270

? 34 } , ' Bond additional... ; ee ene ee. OE ee ee : ' GOOG 7]

—_

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 1 j In the supreme court of the Territory of Colorado.

Pleas before the judges of the supreme court of the Territory of Colorado, at the city of Denver, in the county of Arapahoe, at the February term of said court, held in said city on the second Tuesday of February, one thousand eight hundred and seventy-tive.

Witness the honorable Moses Hallett, che/f-justice of said court.

JNO. W. WEBSTER, Clerk.

2 THE UNION GOLD-MINING COMPANY OF ) Colorado, plaintiff in error, | Error to supreme vs. 'court, Colorado Terri-

THE Rocky MOUNTAIN NATIONAL BANK OF | tory. Central City, Colorado, defendant in error. — |

3 Transcript of record,

And now, on this eleventh day of February, A. D. 1874, the same being one of the regular days of the February term, A. D. 1874, of the supreme court of the Territory of Colorado, there was filed in the office ot the clerk of said court a transeript of record in the above-entitled cause, on appeal from the district court of the second judicial district within and for the county of Jetlerson ; which said transcript is in words and figures as follows, to wit: : TERRITORY OF COLORADO,

County of Jetherson, SS:

Pleas in the district court of the second judicial district of the Territory

of Colorado, sitting in and tor the county of Jefferson, at the November term, A. 1). 1575, began & holden on the third Tuesday

4 of November, A, 1)., 1575, at the ecourt-house in Golden, on this "6th day of November, A. D. 1873. |

Present the honorable Moses Hallett, cheif-justice of the Territory of Colorado, assigned by law to hold the courts of the third judicial district, sitting in lieu of the honorable James bh. Belford. Dresent also, Johu R. Cleaveland, clerk, by Henry Bell, deputy, for said county of Jefferson ; and William Smith, sheriff of said Jefferson County.

The court met pursuant to adjournment.

At this day it is ordered by the court that the following letter of request, in virtue of which the Hlon. Moses Hallett is now here in this court presiding, be filed in this court and entered of record, with said letter of request contains, among other things, the following in words and figures as follows, to wit:

CENTRAL City, Nor. 18, 1873. Hon. Moses HALLETT, Cheif-Justice ~ ae. ¢ DEAR SIR: Being unwell and unable to hold court, I will esteem it a great favor if you will go to Golden and hold my court long

iy enough to try the case of the Rocky Mountain Nat'l Bank against

the Union Gold-Mining Company, And oblige yours, very resp'tly,

JAMES B. BELFORD. Rec. 157—1

2 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

IN THE MATTER OF Rocky MOUNTAIN NATION- }

al Bank of Central City | ; ; ; : - . ' Attachment. Venue we i ~ : . : ; 'from Galpin County. Thnk Unton GoLp-MINING COMPANY OF COL. | 7 orado., 5

Be it remembered that heretofore, to wit, on the loth day of April, A D. 1869, as appears from transcript of record certified to our said dis trict court by the clerk of the district court of Gilpin County in said Territory, a certain affidavit was sworn to & filed in said cause: which said affidavit is in words and figures as follows, to wit:

Territory Of Colorado,

Grilpin County, SB: le ois the tral City.

Joseph I. Croodspeed, being first duly S\N teatt mashier and agent of the Rocky Mountain National iooik ot Colorado ; that the Union Gold-Mining Company of 6 foreign corporation, doing business under its corporate ame, and that the said Union Gold-Mining Company of Colorado is justls indebted to said Rocky Mountain National Bank of Central City, Col orado, in a sum exceeding twenty dollars, to wit, in the sum of twenty-two thousand pine hundred and fourteen ¢*° dollars, (S22 014.7732) that said indebtedness is for money paid out and expended by said) bank tor said Union Gold-Mining Company at request of said company, and tot money loaned to said company by said) bank, and for interest on said monies so loaned,

Joseph Th. Goodspeed.

Subseribed and sworn to before me this Toth day of April, A. 1). 1860. H. HW. ATKINS, Clerk of the District Court, Gilpin County. Miled April 15, 1869. H. H. ATHRINS.

And afterwards, on the said 15th day of April, A. DD. 1860. a certain bond was tiled im said cause, which is in words and figures as follows, to wit d Know all men by these presents that we, The hoeky Mountain National Bank of Central City, Colorado, as principal, and as sur/ties, are held and firmiv bound unte Union Gold-Mininge Com pur of Colorado in the penal sum of fort, five thousand eight hundred snd twenty-eight dollars and fifty-four eents, OS $5,828.54.) lawful money of the United States, for the payment of which sum well and truly to be made we bind ourselves, our heirs, executors, and administrators, orntls and severally, firmly by these presents, sealed with our seals, and dated this 12th ality at April, A.D). Tse9 The condition of the above obligation is such, that whereas the above. bounden Koeky Mountain National Bank of Central City, Colorado, has on the day of the date thereot praved anattachment out of the district court of the second judicial district of the Territory of Colorado, within and for the county of Gilpin, at the suit of said bank against the estate ot the above-named Union Gold-Mining Company of Colorado, tor the sunbof twenty-two thousand nine baundred and tourteen dollars

be and seventy-seven cents; and the same berng about to be sued = . ee ; } as. +. : Tuy '

out of said court, returnable on the tirst Tuesday of Mav. A. 7)

Iso. to the term ot said court then to be holden: Now, if the said

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 3

Rocky Mountain National Bank ot Central City, Colorado, shall prosecute its said suit with effect, or in case of failure therein sball well and tidy pay and satisfy the said Union Gold-Mining Company of Colorado as such costs in said suit and sach damages as shall be awarded against the sald Rocky Mountain National Bank of Central City, Colorado, its executors or administrators, ii any suit or suits which may hereatter be brought tor wronetully suing out the said attachment, and all damages that may acerue to the said Union Gold-Mining Company ot Colorado, by Peasoli of ally eXCeSSIVe levy made under any writ of attachment in said suit, then the above obligation to be void; otherwise to remain in fuil ftoree and effect. Wicness our hands and seals the day and year above written. RockY MOUNTAIN NATL BANK,

4) by J. WH. GOODSPEED. SEAL. | LL... POR. [SEAL, | WM M. ROWORTH. (SEAL. |

liled and approved in the district court by me, this loth day of April, 1st.

H. HW. ATKINS, Clerk.

Be it also remembered that heretofore, to wit, on the 15th day of April, A.D. 1869, as appears from transeript of record certified to our sald district court by the clerk of the district court of Gilpin County in said Territory, a writ of attachment issued in said cause out of the office of the said clerk of the district court of said Gilpin County, which said writ of attachment is in words and figures as follows, to wit:

The people of the Territory of Colorado to the sheriff of Crilpin County, greeting:

Whereas Joseph H. Goodspeed, cashier & avent of the Rocky Mountain National Bank of Central Citv, Colorado, hath complained on oath to Horace TH. Atkins, clerk of the district court of the second 10) hidicial district.im and for the county of Gilpin, that the Union Crold-Mining Company of Colorado is justly indebted to the said Rocky Mountam National Bank of Central City, Colorado, to the amount of twenty-two thousand nine hundred & fourteen dollars and seventy-seven cents, and oath having also been made that the said Union Gold Mining Company of Colorado is a foreign corporation, and the said Rocky Mountain National Bank of Central City, Colorado, having given bond and security according to the direction of the aet in such cases made and provided:

We therefore Command you that vou attach so much of the estate, real and personal, onion Gold-Mining Company of Colorado, to be found in vour county, as shall be of value sufficient to satisfy the said debt and costs, aceording tothe complamt, and sach estate so attached in your hands to secure, so as to provide that the same may be hable to further proceeding thereupou according to law, at a court to be holden at the city of Central, tor the county of Gilpin, upon the first Tuesday of May

next. soe as to compel the said Union Gold-Mining Company of 1] Colorado to appear and answer the complaint of the said Rocks Mountain National Dank of Central City, Colorado, and that you also summons toe be and appear at the said court on the said lay of

} j » | 4 « . ' " } } } ' . next. then and there to answer what may be olnected ALAINST ;

4 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

when and where you shall make known to said court how you have executed this writ, and have you then and there this writ.

Witness Horace Hl. Atkins, clerk of our said court, and the seal thereof, this 15th day of April, A. D, 1869.

[SEAL. | HORACK HH. ATKINS, Clerk.

And afterwards, on the 16th day of April, 1869, the sheriff made his return of levy, which is in words and figures as follows:

TERRITORY OF COLORADO, County of Gilpin, ss:

f have duly levied-the within writ on the following-described property, to wit, the follovwing-described property:

Mill-site, with the appurtenances, situated on Gregory Gulch, in 12 Mountain City, Gilpin County, and described in the year 1560 as follows, to wit:

Commeneing at the westerly side of a lot of ground in Mountain City on Which stands a house owned by McLean A. Smith; thence running on California street one hundred and twenty feet, more or less, to a lot occupied by William Norwood as a ten-pin alley, and extending back two hundred and fifty feet, including a lot claimed by John Tlarris, situated on the back of said lot, and being the same property conveyed by J. UL. Kehler to M.C. Fisher, by sheriff to Ashen DB. Mahand, by Ashen B. Mahand to TH. A. Woods, by Hl. A. Woods to Morton C. Fisher, by Morton ©. Fisher to Lawrenee M. Pratt, by Lawrence M. Pratt and wite to Horace Hl. Atkins, by Hlorace Hl. Atkins to Lawrence M. Pratt, by said Lawrence M. Pratt & wife to Il N. M. ©. of Col., together with the mill-building on described mill-site, with the engine & boiler in said mill, and all fixtures and appurtenances thereto belonging,

Also the following-described parcel of land in Gregory Guleh, in said Gilpin County, described in June, A. D. 1864, as follows, to wit:

The undivided one-half part of a certain piece and parcel of land

13 situated in Gregory Guleh, Mountain City, (formerly so called, ) being one hundred feet square, one-half of said being situated

on each side of said guleh and adjoining a lot formerly owned by Andrew Lyon on the west, and running back on the north to the mountain, and bounded on the east by a lot, with a house thereon erected by G. B. Beals, and since claimed by J. Hl. KWebler, said property being the sume claimed by Cook and Stones in 18909, and recorded by them as a mill-site May 2s, 1860, in book C, page 144 of Gregory record.

Also, three guich-mining claims, in said Gilpin County, one hundred feet each, beginning at a point in Mountain City, twenty-five feet above where the Bates Lode crosses Gregory Guleh, and thence running down said Gregory Guleh three hundred teet, by width extending from bank to bank of said gulch. including the buildings and building-lot thereon.

Also, the following parcel of land, mill-site, water privileges, and building-lots on Gregory Gulch, said county, and described as follows, to wit:

Commencing twenty-tive fect east of the point where the Bates Lode

erosses sald Gregory Guleh, and running thence down said Greg- Ls or, Gulch, being two hundred teet square from anc below the point began at atoresaid.

Al-o, a certain houre and Jot in Central City, said county., and descrivect. Aine Oth. S64, as follows. to wit:

A certain honse and fot in Central Citv. the same being the one next east of and adjoming the Verandah Hotel, and said lot being twenty

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 3°

feet front by one hundred feet deep, and more particularly described and bounded as follows, to wit:

On the north by High street; on the east by a lot owned by James I. Mallary: on the south by Laurence street; on the west by the lot on Which stands the Verandah Hotel.

Also, the following-described mining property, situated in Gregory Inining district, in Gilpin County, and described as toilows:

Three claims, each of one hundred feet.on the Bates Extension Lode, and numbered 5, 6, 7, N. east from Discovery Claim.

Also, two claims, each of one hundred feet and two hundred feet on the Bates Lode, and numbered 1, 2, west from Discovery.

Also, Nos. 1 & 2.38 & 4, N. E.. on the Steinberger Lode; 1, 2, 5, 4,5,

S. Wooon the Hunter Lode; Nos. 1, 5, 12, 14, W., M: immoth 1 Lode; Diseovery, 1 E., & 1 W., Otes Lode; Nos. o). 31, 22, Wea Briggs Lode, all in Gregory district.

Also, one building-lot., situated in Central City, and described as be ing the lot bought by J.S.& EK. S. MeGlashan of John Dudley, and sold by ILS. ES. McGlashan to Fisher H. Buekman, and being twenty five front and one hundred deep, and bounded on the by house formerly known as the City Bakery, and on the east by house owned by Dailey.

Also, all buildings, machineries, and ores in said building on said Bates Lode, belonging to said Union Mining Company of Colorado.

All of the above property situated, Ilving, and being in Gilpin County, Colorado Territory, and taken as the property of the Union Mining (' ompeey of Colorado.

Central City, April l4th, 1869.

No president or agent found in the county.

Ret., oe, CHELTON M. GRIMES,

Sheriff of Gilpin County.

Sheritt's fees: Service, 1.50; levy, 2.00; certifficate, 2.00; milage, return, .40—S6.00. Piled May 30, 1869. H. H. ATKINS, Clerk.

lt And afterwards, on this 27th day of May, A. D. 1869, the said

plaintiff, by his attorneys, Teller & Johnson, tiled his declaration in said cause in the office of the said clerk of the district court In and tor the county of Gilpin, as appears from transcript of record certified to by said clerk, which said declaration is in words and figures as follows, to wit:

In the district court of the second judicial district of Colorado Territory, within and for the county of Gilpin, of the May term, A. D. 1369,

Territory Of Colorado,

County of Gilpin, NN: Rocky MOUNTAIN NATIONAL BANK OF CEN- | tral City, Colorado, plaintiff, | 'eg. F , UNION GOLD-MINING COMPANY OF COLORADO, | defendant. : Rocky Mountain National Bank of Central City, Colorado, plaintiff in this suit, by Johnson & Teller, attorneys, complain of Union Gold-

ANE ARF Qe on a aentige £

tio aces,

a Raa SN a ee ee te.

aOR a

OE LE 8 IOS AP oe SR SR Pica th

6 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Mining Company of Colorado, which is a' incorporation company, 17 defendant, who is summoned, &c., ina plea of trespass on the case on promises: For that whereas the said defendant, heretofore, to wit, on the 18th day of December, in the year of our Lord one thousand eight hundred & sixty eight, at Gilpin County, to wit, at Central City, in said county of Gilpin, became and were indebted to this plaintiff in the sum of twenty-one thousand two hundred and seventeen dollars and six cents, for money before that time loaned & adwanced to sald defendant by said plaintiil at request of defendant, & for interest then due & payable from delendan » pualatii Upon the forbearance and use of divers large sums of money betore then due and owing from said defendant to the plaintiff, & by plaintifforebourne with said detendant for divers long space' of time before then elapsed, at request of defendant, and being so indebted, said defendant, 1a cousideration thereot, undertook & then and there promised this plaintiff to pay it said) sum when thereunto requested ; yet, though often requested, said de- 18 fendant has not paid the same, or any part thereof, to plaintiff's damage thirty-five thousand dollars, (335,000°)

And whereas also the said detendant afterwards, to wit, on the Ist day of April, A. D. 1869, at, to wit, af said county of Gilpin, became indebted to said plaintiffin the further sum of thirty-five thousand dollars for goods sold and delivered by the plaintiff to the detendant at its request, and in the further sum of thirty-five thousand dollars tor work done and materials for the same provided by the plaintiff tor the defendant at its request; and in the further sum of thirty-five thousand dollars for money lent by the plaintiff to the defendant at its request; and in the further sum of thirty-five thousand dollars tor money paid by the plaintiff for the use of the defendant at its request; and in the further sum ot thirty-five thousand dollars for money received by defendant for the use of the plaintiff; and in the further sum of thirty-five

thousand dollars for interest for the forbearance by the 19 plaintiffs at defendant's request of money due and owing trom the

defendant to the plaintiff; and in the further sum of thirty-tive thousand dollars for money found to be due from the detendant to the plaintiff? on an account stated between them. And the defendant atter-wards, on the day aud year last aforesaid, in the county atoresaid, in consideration of the last-mentioned promises respeetively, then and there promised the plaintiff to pay the said last-mentioned several monies respectively to the plaintiff on request.

BREACH.—aAnd yet said defendant, not regarding its said several promises and undertakings, has not as yet paid the said several sams of money, or any or either of them, or any part thereot, to the said plaintitl, though often requested so to do, but the said defendant to pay the plaintiff the same has hitherto wholly neglected and refused, and still does neglect and refuse, to the damage ot said plaintiff of thirty-live thousand dollars; and therefore it sues, Xe.

JOHNSON & TELLER, Plaintift's Attorneys.

20 Declaration filed in my ofi-ee this 17th day of April, 1869. H. H. ATKINS, Clerk.

t. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 7

Union Gold- Mining Co., G. K. Sabin, agent, in account with Rocky Mountain Nation'l Bank of Central City, ¢ ol, Dr. C'R.

1=67 ; Mar 0 a eee arent ere 975 Mar. 3 i..... ihe) inti teeta anata 443 75 2 ere 168 75 Apr. 30 Gold 2 ..... ' 500 . ee A eee iit nihneeennees ") May 31 "Seer ere ciabe eds SiO 13 oa er P 12 TPinne " 17 20-100 oz. gold ...... = 621 20 ' 5 een — oe eeanewe oo) 1 Crold 5 ieee ee eee eee ' a 61 25 lf "ainli Oe. tats web a Cale alee . Lj- 7 Us eee 50) oe . IT5 \I Liv a a Ail eal ee *) ; ; So. eee ee 4336) 3 1 stK). Oe mi) ©) 6- B75, 200 175 ay eae "4 = _} eee issih 12 Fe rere ae er aE Tee rae Fe O25 OE Ee ein a a ne See wel at 421 Oe 1 Oe Oe GO, occeukoeeen canuen 416 50 21 20° 50, 275 ee 325 1~67. Rage eee 21) 24.50, 36, 30 Soe 09 50 | June l® | 65.65 ozs. gold.............. 1, 378 65 2 eee cae sbltcw rere ee eee eee 35 00 25 37¢ we se ae P TR7 50

a - S

Bat init ead citi acatd ule — 44 00 Pt Se Gis oc ccd-ceeeos Sas ; Dm j O75 OO July ] 26 20-100 oz. geld ...... oat 550 20

BS .eeaesnesesnerevease® @eceeeveereveeees am i) a Tune 1 cat Perea enr ae ee eerie" 52 00 7 ae" ~ gesssennsaae 477 75 } Pe eA Shale el ee aoe Lud awa — wbesdseuen 1, 044 75 116, 14.65, 272.50, S61, 219 1, 423 15 eT eT 672 9 171, 50, 6,000 coin gold fi, 22 Dt tiwedcke nasheed taseendaebenaee 16 60 ty 1d Ps | wien aia eteniebiliiet cL anita P vieieen 1,410 15

i | Ford . 14, 60s 2¢ June 3 «8, 2. ae Oe ee "4. 50 @f © ae err en epee $15 eo Bf eae 1, 0-6 50 Zo) Qe, 200, 150 cMéhidiycaduwe {7~ = 26 | 70, 90..... a Ene 160 3 ee eee A) we Be Ce PRE es ee ee PM) Tuly 1 | 7, 1069, 1102, 175, 20 er $ 3 2; 400, 58, 13, 142, 75, 90, 32, 1000, 1, 946 44 165, 0, 21, 40, 122.75. 3 04.00, 92.85, 183.80, 116.55 ..... $0 0 V > | 5.50. 50 296 190.95 ..ccce 160 7 a a SreaeeeGeaersenvseosecse mis yt ' ee eee ' O49 5 -- 10 7 350 a ee aa 225 L=07 Juiy 1 naiciieiet ceeds ne 212 50 lt . 2, ee Bae) ae i~ 17 Ps . 14.60. B= 50. 642 =O 60 ww! _. da ee 5m Ot 22} 50 by all 117 2.3 Le ae 615 '< » ott ee 7) 20 lac , 22 DW ge SO eee Pee Ae EUR epee tes ae re ne aE" RRUeE ane ee ee aaa La i 0. saidandeen wuaende ; ~ Aug. ] mV 10 F i "e 150. 175, 95.0 2.40, 24 i as 404 13 3] Bs TO 3 | 59, 278, 14.11 jaiceneaes wF it : CR I i ae ~ f OR Wesinkticensnds weweseees 4 ; POPWOIG . ccccccscsces. | O62 @ FE re ag. © |.se on senkeedooewenences l RUG. BD { cmccacccasetcssew aacee seawes m2 sO) lt nasi a in die Aliekd ian dl er araeeat ri if 3 19-100 G6. OIG ..cccecceces 279 32

» it P er a - tre of ' ema 953

| ge ee ee | si ee ee 5e5 90 2 vrehn se ee oue | 17 'aceon ad bateee 7 122 4; t 8 eee v2 , | nee Te eensear 493 WR Sa i hy See ee 249 Q rh et, meee een G00 &G

2.3 < e 2 | e ¥ so wy: i , Ff | ~" "| @@@'e ee geee ed e 3 16 hi Oi j 7. Jie. ta Beaka Oo) oo (pet 2 st die cake anak ioeamas (45 735 4 a Ge ee jebhic denne ehee ae 3

4 : $ ' 8 U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. Ia ina siin icc es iecacieidnth tal nee ee a ae Te ee ne ; Sept. 2 ' 49.70, 75, 700, 12.25, 275, 91...! 1,202 95 $3 90, 23, 303, 12.25, 50.25, 398.50, | 1, 302 95 | | - 122.50, 29.50, 656, 162. See eee LPT enn ae 49 5 34.35, 52.70, 87.50, 138.35 .....) 313 27 D tc nce beh ease eee ee es thine as hi) Ox } i ' 1 + GOR FOR BS ocncccccn bi Cea | 413 ' | RCE Oe ER TRCN rt 12 ' ie Vinee xe ae 200 OO f eres nei alae sree 70 ' 1 LhOhDESEEwE ES aoe Sewer w bn ot) 2 Pare ee le le he alae a 12 ' a 2 ee. eee 1,275 7 Bi ER eee eer 512 50 Se Si SaheICIA aie 19 Ne ane ee eran WW | 7 et Gee Ee vxvéucwcdeeceas O37 50 ae | tee 1, 076 2 = . e Oe 403 90 4 , -B , . : 3, ee -- | 35, 483 64 PIS oi oe ctcdobdewe 36,451 35 * 3 4.45, 10.00, 444, 20.50, 80,25 a6 10) Oct. DF PE are parched Bie cee eee 10) 3S . > 36, 1d. 10), Lo oe 1 30 ; ~ oe a es Se ee 1, 33 41 I RM 354 50 Oo) 6 pS ili che ea 9 335 10 : j -- Ea ee ere 278 50 30 | A to oe ae 0 ene es © 167 2 i 1 0 7D. 20 a ee nar re 10 Nov 5 Te Oe ee 5 ae we 1,607 =5 i 24 SO | Gey WO. ccs sucess eeu st B50 SI i $ Jab 15 5 DS ey oe ee nee i 208 50 } Ft 21 e@ecece He eceees weer] i ya) 4 ee | cae, SOG AO . . dacececes cee 160 ° Us} a a a ee 1,291 5 ¢ es ne a ie a 340 a Br ee eae ee ee ee 120 50 j i ae 40 : _ Sr re rr ot LLL ; 2 ae TE LR ome 22 50 Nov. 2 | 93, 303.35, 193, 145.10, 102, 6,6[ 778 45 | ! : 1 44.96, 34, 102.50, 807.62, 636.75, ;) 1,636 <3 ; 11. | ' S| SS, S606, 065.35, O1.........1 228 65 3, errr 44, "74 41 E "ee. ae ee AS a ee wa 70 Dee, 4 8 SE ere re | @ waao Bo _) Oe | 21 Wie." . * -aaidereawten i 63. 164 20 . fe eS ee | 37 10 > § PE cen nich iced ein emibiann wan 60 | Balance. ' e.- ° & aac oye 252 20 fe eS & ) . Sees , L058 75 enn ae Sn ee Oe LOO a a el li ; | re iitpendwus re 8 ee ere =4 50 | 2 eee aa cae eae alee ce aaa 152 f £ ; ' j ! i Se Pree 147, 437 31

F Dee.

to

a7. | : |

: ' | 9.09, 24.25, 7, 6.10, 100 .....-. 140 44

+ } ; $ Qn 3 | 116, 8.75, 10.50 162, 117.49 ....] 414 74 I ..1 54.403 =6 ' 4 55.20, 30, 121.35, 50, 20.75.....) 9 28h sO Y a a a a rN a as I2 25 j E 4 we aay er dee 100 i Fy u NE I ic hie as i ata) i ei ie 165 } p iii is sbhaeeighnimeiiakewe wats 100 ' ; Fs 8 Re een 208 O95 § Tae a . .o & - aoe Peseta ok 7 30 eo ae ¢" _—_eaes ; | QI4 | ON a A a 1, 900 ' ——h eee silat eden 200) > 5 ee ee Oe Oe. . cn ac:scbenenes $4 Y- pe eee ere renee ti) ER EE ae ce ey ee aa 2 i i a 93 a eee rel ' 31 ey aera ree av 30 Aree 41.687 T= | alia sees seiidiieiditiiadintias ci ued « 56, OO1 64 1 AG, O01 #4 acinererenes ' a - imG-. , 126. b. Januarvl | Balance........... , oz 4.087 7s vam. 2 1593 41.00 OF. GON ..c-ccccc-- | 32.6068 90 ; £4 5 5 eee = ocean H5 20 2 | 2h — 4,340 ; i} eee s amano 503 3 Feb 3 73.65 pa eee ry ee 1,473 10 . | 6 | 175, 26L.50, 2512.50, 431.80, 896 4, 276 SO Tiare oeeeew eee 461 7 OL, O85, 1, 12.50, 65, 87, 10.20 NOD > eee 8 8=—«Css ews ws 'caine G08 40 | 111.45 ~ SS Ri ae 30.3 ] 4 ' ee 4-0) aed 9 40, Tk, 64.95, 4.380, 32.50 190 75 32: 3.< ih ee ee 734

~

Apr.

June

1. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

NE I oie ge ok da os areas 147 50 '* + 99 ' Te" «ee be

Mittttidvbetetsubénmatees 73 Ix , 29.18 = » > enademaele ' 1s65. | 4 = Re eee 142 0 | Feb. 19 | 149 oz. gold ...............-. Pe er ee Pe Lo OEE eR eR eee 156 ekdark ocak aan Son 207 er ra H3 T5 iam _ =a ae To ¢ Re ey ee ey eee LOWS i; ES 60s we seue 2, M43 Sd 220, 39.9%, 16.25, 1,021. 42t 1 =i) 13 76.90 $50.50, 14.25. TST, le 129 9. 42. $4.~5. 1 ».2> — 1: B44 af Higa. 30 2 adie aia 66 FS oS #.) ee 144 70 a sie ste a - Dod LO Xk er Ie 140, 245 B=) Feb. 25 149 oz. gold ...... Ee ee ee 7 Jt jx =4 peneneacotens er =f a" "6)—CUCU" CC eaieeae sees eile a ny ee ne 2~2 70 ¥ 21 'nin eth eis aaa eee ee 130 eee. Ds Te iicdcccacdssaaeene iil ial a a H04 a0 " ee peers _ " t ££ .¢ aaa saa sas 1, S17 95 Bt? 8 edn Ecliieadl ci tint ak oka eaeaeeae 40) It = 106.35 °' suisaiiniitaindar watinarsaraicetead 173, 136, 269.26. 93.90 ...... 677 =O | eR * a ee ee . > °¢ aera ee 1,677 50 eee S'1 eee" 0 Commwtteeenconees Te ne errs 25 O00 Sth DW Mine eo 186.26, 268, 817.50, 2,902.87...) 4,265 07 | et ee a eee 2353.60, 19.25, 71, 100, 380.26... HM) SS April 30 SSF Gh Miccivassacdcnes ae, S, Ge, Gae. b. BE Be ooccest Gol 12 oe Be 8 BF SS C Se 303 10 ee a 1S J oo | 256 55

aide tal Sais local 49 53 ths de kes Ha bees eee as IS Ov ORS Be > eee 4=-2 Wh rere ee eee ' fo 1 ie inh brine iadeblibacia alla ae rile. | tO 10 seh ecdeebeobasee. Bend =5 coeeeecvoeneeeeseeereeseeeeces | ind sebad benseonenee 'cain 251 192 132.39, 22.62, 13.25, 5.40 ...... 17Y fit

|} eee ror 65 May 1% | 110.65 oz. gold..... sivswegon

1,003.70, 100, 2,279.25, 15.30 4,03= 95 - @1L.h""-.—Ct OFpmeeeaveweaeds 140.70.

Se er ee ee ee 432 16 June 9 °° 104.90 * silent a ate

- a

Dh Ut acitbniebhaneawabdwnans 115 > § ae meneame Fk BF Pewee re ee ee 1H 36 _ © |: ae is eicak alg haan 120 35 8 8 ae ee ee In2 50 ee re 70 l4e, 136.50 .... Tr 224 50 ' er ee ee er ee eT 2) Pe a ee a eg ee Cn are 100 (s | , & 2 eee ne I=4 &0) * 5 ae , 34 3 995.50, 60, 15.50, 60.65, 26.67, 3, 39R 32 2 9AD, - F § Seer eeegnes 493 50 . ee & 2 ©. 2 eee 312 30 >» BY .% Fae es latices 19" U5 emecedenennes bebtduedcrbncaas 6 ('is AACR e do deeheeton wa 100 & SF Sere eer = QJ er re ; 274 00 a ene eS eee Te ee me mee $= OF er Eee eee Pe Qf ee 24 SbVeeSseeiseercewseeue 5 eee ee hc cali eal aaa: red petals BQH 2075, $1.25, 40.20. 167.33 2 782 43 , GS ee ee 3. 389.90. 2.~=4.24 10, 27.65, 6.38, 1#4 1,176 27 July 3 165 oz. a e ae ee er 22:3 OU + a sce cases te caine accep eerancedet aa te he ee 176.58, 44.30, 10, 20, 3, 4.25. wim Oo 31 eH ree 40, 66, 62, 22...... 1 - 2 eer deceeeasoneubnen) & ) ae ' gy TD 19 11.90 " eeedéusoesdaaewes 16.35, 10, 24.05 1=.45 fim #5 'i. | _

9

| —_ ' ra ~ ' — —_ Pe ~ -e om < ao ¢ ~ i « ad "> _ . a ~ — d Bg) ts : ] 7 o - , > emt gum > « < ' —— : r = ' ' ' * ' — : '

Al. '

Centr

) ' ; ) r aD } } ' } ' i ) ' J ; ' ' } ' .

;

,

:

nod

;

"

;

é

,

'

i

Rocky Mt

. > I ; 7 " ~ =~ J - " a »_ = ry =) , q = wy r one 1 ; ~ : L~ — > f : . ' a : ~ ote RF z - : - , ~ ~pep * Ne — m ° ee - S Sa — FF « = ~ ; - ' ce ee. ) = 3 ~_ ' : ' —_ - _ ' P - = . ee a = a « J i- & aa " ; o . a ~) we - - _ - —— . ) —) - ~ ~ = os = - = = . mas oe. ~ - . = - ' 4 , — -- a = > ~ Zz oa " _ . _ ' ~ io —_ _ —"?) « -~ - oo - e a ~— ~ ~—- - aon ~ " le = Be « —m 1 oe >, ae - ~ ~ = a " : ~ Poe " - - . A bee: - -—— | - _ _— . — ~~ - - " - c. -) - " ~ t- t o yas = on ~ 2 | - — =e i : ; _ aa a = - = ~ > - " o ad : = - "— + " e i ——_— ™~ —~ i] , ' - > ' . = 4 » - i - j ben — ~? ae S - - -~ - ; = "~) i mg ~ ~= ~ — i~ e - ~ - - ~ - = ae = i t i I Y a . — .° oa I > - o f - "Sis 3 oo ; "> = 2 & — — —. —« — ; } - — = — - -~ } a — eo =m <a ao) | ~ ' a — —_ _ -" . ; - _ —— "3 om al = 7 as po f. = ~ a" ' me

ae "Rm « er ed

U. G. M. Cu. Vs. Rocky Mt. Nat. Bk. Of Central City. 11

: { - ' ij 7 J 3.3 O O68 AS i D> a ry 3u ~ i- «< i 4 wo Tr ft id

» > * = D as i . ha é hee kU OOD,

HH. . APRINS, Clerk.

Lod afterwards, to wit. on the Seth dav of June, A. D. 1869. an alias Writ of attachment was issued, aud the satd alias writ of attachment is In words and figures as follows, to wit:

The people of the Territory of Colorado to the sheriff of Gilpin County,

oV'Lhae ', 4 greeting :

Whereas Joseph EH. Goodspeed, cashier & agent of the Rocky Mountain Nat. Bank of Central City, Colorado, hath complained on oath to Horace Hl. Atkins, clerk of the district court of the second judicial district, in and for the county of Gilpin, that the Union Gold- Mining Company of Colorado is justly indebted to the said Rocky Mountain National Bank of Central City, Colorado, to the amount of twenty-two thousand nine hundred & tourteen dollars and seventy-seven cents, and oath having also been made that the said Union Gold-Mining Company of Colorado is a foreign corporation, and the said Rocky Mountain National Bank of Central City, Colorado, having given bond and SeCULITS according to the direction of the act li such case made and provided:

We therefore command Vou, as We have before commanded you, that you attach so much of the estate, real and personal, of the said Union Grold-Mining Company of Colorado to be found in your county as shall be of value suilicient to satisfy the said debts and costs, according to the complaint, and such estate so attached in your hand to secure so as to provide that the same Tha be lable to farther proceedings thereupon according to law ata court to be holden at the city of Central fov the county of Gilpin, upon the tirst Tuesday of November next, so as to compel the said Union Gold-Mining Company of Colorado to appear and answer the complaint of the said Rocky Mountain National Bank

otf Central Citv, Colorado, and that you also summons asa carnishee, to be and appear at the said court on the said day ot

next, then and there to answer what may be objected against ; where and when vou shall make known to said court how you have ex: ecuted this writ.

yd Witness Horace Hf. Atkins, clerk of our said court, and the seal thereof, this 50th day of June, A. DD. IS6o. (SEAL. HORACKHE HL. ATKINS, Clerk.

And afterwards, on 6th dav of July, A. D. 1869, the sheriff made his freturnmn of service of summon on Theodore HH. Beeker, iT | Llhe-. Tso, as appears Troms frauscript record, and

returns of levy ayn president, the sort

said return is in words and figures as follows:

| U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

TERRITORY OF COLORADO, County of Gilpin, ss:

| have duly levied the within writ on the following-described property, to wit:

The following-described property, mill-site, with the appurtenances, situated in Gregory Guleh, in Mountain Gilpin County, and described in the year 1860 as follows, to wit:

Commencing at the westerly side of a lot of ground in) Mountain City, on which stands a house owned by MeLean and Smith; thence

running on California street one hundred and twenty feet, more 35 or less, to a lot occupied by William Norwood as a ten-pin alley,

and extending back two hundred and fifty feet, Including a lot Claimed by John Harris, situated on the back of said lot, and being the same property conveyed by J. TH. Kehler to M. C. Fisher; by sheritt to Ashen B. Mahard; by Ashen BB. Mahard to Tf. A. Woods; by EH. A. Woods to Morton C. Fisher; by Morton C. Fisher to Lawrence M. Platt; by Lawrence M. Platt & wite to Horace Hf. Atkins; by Horace Hl. Atkins to Lawrence M. Platt: by said Platt & wife to U.N. M. C, of Col., together with the mill building on deseritbed mill-site, with the engine and boiler in said mill, and all fixtures and appurtenances thereto belonging.

Also the following described pareel of land in Gregory Gulch, in said Gilpin County, described in June, A. D. 1864, as follows, to wit:

The undivided one-half part of a certain piece and parcel of land. situated in Gregory Gulch, (Mountain City, formerly so called.) being one hundred teet square, one-half of same being situated on each side of said

gulch, and adjoining a lot formerly owned by Andrew Lyon 30 onthe west, and running back on the north to the mountain, and

bounded on the east by a lot with a house thereon, erected by G. B. Beals, and since claimed by J. H. Kehler, said property being the same claimed by Cook and Stones in 1869, and recorded by them as a mill-site May 28th, 1860, in book C, page 144, of Gregory records,

Also three gulech-mining claims in said Gilpin County, one hundred feet each, beginning at a point in Mountain City twenty-five feet above where the Bates Lode crosses Gregory Guleh, and thenee running down said Gregory Gulch three hundred feet, by width extending from bank to bank of said guleh, including the building and building-lot thereon.

Also the following parcel ot land, mill-site, water-privileges, and build- Ings-lots, iu Gregory Guleh, said county, and described as follows, to Wit:

Commencing twenty-five feet east of the point where the Bates Lode crosses said Gregory Guleh, and running thenee down said Gregory

Gulch, being two hundred teet square trom and below the point 37 began at atoresaid. Also a certain house and lot in Central City, said county, and described June 6th, 1s64, as follows, to wit:

A certain house and lot in Central City, the same being the one next east of and adjoining the Verandah Hotel, and said lot being twenty five feet front by one hundred teet deep, and more particularly described and bounded as follows, to wit:

On the north by High street, on the east by a lot owned by James It. Mallory, on the south by Lawrence street, on the west by the lot on Which stands the Verandah Hotel.

Also the following-described mining property, situated in Gregory mining district, in Gilpin County, and described as follows:

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 13

Three claims, each of one hundred feet,on the Bates Extension Lode, and numbered 5, 6, 7, N. east from discovery claim; also two claims, each of one hundred feet, and being two hundred feet on the Bates Lode, and numbered 1 & 2, west from discovery; alsol & 2,5 & 4, .N.

k., on the Steinberger's Lode: 1, 2,5, 4,5, 5. W., on the Hunter os Lode; 1, 5, 12. 14. W., Mam/'oth Lode: discovery, one east, one

west, Otes Lode; Nos, 20, 21,22, W., Briggs Lode; all in Gregory district.

Also one building-lot, situated in Central City, and described as being the lot bought by J. S. & E. 8. MeGlashan of John Dudley, and sold by JL. E.S. McGlashan to Fisher H. Buckmont, and being twenty-five feet front and one hundred teet deep, and bounded on the west by house formerly known as the Caty Bakery and on the east by house owned by Dailey.

Also all buildings, machinerys, and ores in said buildings on said Bates Lode belonging to said Union Mining Campany of Colorado ; all of the above property situated, ving, and being in Gilpin County, Colorado Territory, and taken as the property of the Union Mining Company of Colorado.

Central City, this 50th day of June, A.D. 1869,

CHELTON M. GRIMES, Sherif? of Gilpin County.

And I have also further levied the within writ on twenty-tive 30 cords of first quality of Bates ore taken out of the said claims, levied on said lode and in shaft and shed situated on said lode, this 6th day of July, A. D. 1869, CHELTON M. GRIMES, Sheriff of Giupin County.

[, Chelton M. Grimes, sheriff of Gilpin County, do hereby certify that I served the within writ by reading and delivering a true copy of the same and leaving it with Theodore H. Bicker, president or agent of said company in Gilpin County, Colorado, on the 50th day of June, A. D. 1869. CHELTON M. GRIMES, Nhe rift of Gilpin County.

Sheriff's fees: Service, 1.50; levying, 4.00; certificate, 2.00; milage, 20; return, 40—S.40., Filed Sept. 27th, 1560. H. WH. ATKINS, Clerk.

40) And afterwards, to wit, the defendant, by his attorneys, Hugh

Butler & E. Wakely, esq's, filed, on the Sth day of November, A.D. 1869, with the clerk of the district court in and for Gilpin County, Territory aforesaid, as appears trom transeript of record certified to our said district court of Gilpin County, affidavit of Theodore H. Bicker ; and also tiled, as aforesaid, motion to dismiss the aforesaid suit.

And afterwards, on the 11th day of November, A. D. 1869, the defendant filed, as aforesaid, motion to quash the writ of attachmeut ; which said attidavit & motious are in words and figures as follows, to Wit:

14 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

And afterwards, to wit, on the lIth day of November, 1869, the plaitifl, by attorneys, Johnson & Teller, filed im said court, as aforesaid, an amended bond, which said amended bond is in words and fivures as follows, to wit:

1] In district court of Gilpin County aforesaid.

TERRITORY OF COLORADO, County of Gilpin, ss:

Rocky MOUNTAIN NATIONAL BANK OF CEN: } ral City, Colorado, tw - - _ ine "3 > Nov. Term, 1869.

8. : UNION GOLD-MINING COMPANY ' Theodore H. Beeker, being first duly sworn, deposes and says, that

he is the president of the above named detendant; that the above-named plaintiff! claims to be a corporation that is not incorporated under any laws of the Territory of Colorado, and that it was not created under any act of the legislature of the Territory of Colorado, and that if the said plaintiff is an incorporated body it Was incorporated as created by some law or authority other than the Territory of Colorado. THEODORE TH. BECKER. Subseribed and sworn to before me this Sth day of Nov., 1869, H. H. ATKINS, Clerk of District Court. Atfadavit filed Nov. 8, 1860. Hl. HH. ATIRINS, Clerk.

i The district court of Gilpin County aforesaid.

TERRITORY OF COLORADO. County of Grilpin, SN -

Rocky MOUNTAIN NATIONAL BANK OF CEN tral City, Colorado Ea irPai \ ( lorade, \ Now

Ps,

. Term, bseo

Union Gold-Mining Company Of Colorado.

And now comes the said defendant by E. Wakely and Hugh Butler, Its Attorneys, tor the PUPpOSse of this motion ony ,and moves the court to dismiss this suit, tor the following reasons, to wit:

Because it appears trom the afttadavit of Theodore Hl. Beeker, tiled herewith, that the said plaintiff is a foreign corporation and is not a resident of the Territory ot Colorado, and no bonds tor costs was tiled before the commencement of said suit as required by statutes.

bh. WAKELY, HUGH BUTLER,

EY i i Je | ft Us,

Motion filed Nov. Sth, 1869.

H. UH. ATIRINS, Clerh

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 15

AS The district court of Gilpin County aforesaid.

TERRITORY OF COLORADO, County of frilpin, 88°

Rocky MOUNTAIN NATIONAL BANK OF CEN- | 'al City, Colorado tas : 7 eke ici >» Nov. term, A. D. 1869, "yy

Union Gold-Mining Company Of Colorado, $

And now comes the said defendant, by Hugh Butler and Kk. Wakely, its attorneys, for the purpose of this motion only, and moves the court to quash the writ of attachment herein, for the following reasons, to Wit:

Ist. Because there is no sufficient attachment-bond, as required by Statute, |

Ynd. Because the penalty of said bond is insuflicient.

bod. Because the recitals is said bond are incorrect.

ith. Because said bond is not properly executed.

oth. Because the names of the sureties are not mentioned in said bond.

HUGH BUTLER «& 44 kK. WAKELY, Det t's Attys.

Motion tiled Nov. TL, Ps6u.

H. H. ATKINS, Clerk.

hniow all ried by these presents, that We, Joseph ll. Goodspeed, eashier & agent of the Rocky Mountain National Bank of Central City, Colorado, as principal, and Timothy M. Roworth, Henry M. Teller, as sur/ties, are held and firmly bound into the Union Gold Company of Colorado, in the penal sum of forty-five thousand elrght hundred and twenty-nine dollars & fifty-four cents, lawful money of the United States, for the payment of which said sum well and truly to be made we bind ourselves, our heirs, executors, administrators, jointhy and severally, firmly by these presents. Witness our hands and seals this llth day of Nov., A. DD. 1869.

The condition of the above obligation is such, that whereas the above

bounden Joseph Tl. Goodspeed, cashier and agent of the said 1 Rocky Mountain National Bank of Central City, Colorado, did

on the 15th day of April, 1869, prav an attachment out of the district court of the second judicial district of the Territory of Colorado, within and for the county of Gilpin, at the snit of the said Roeky Mountain National Bank of Central City, Colorado, against the estate of the above-named Union Gold-Mining Company of Colorado, (an incorpo rated company,) for the sum of twenty-two thousand nine hundred and fourteen dollars & seventy-seven cents, (S22 914.77.) & the same having been sued out of said court on the loth day of Apml, A. PD. 1869, returnable on the first Tuesday of May, 186%, to a term of said court then to have been held :

Now, if the said Rock Mountain National Bank of Central City, Col orado, shall prosecute their said suit with fleet, or in case of failure therein, shall well and truly pay and satisfy the said Union Gold-Mining Company of Colorado all such costs in said suit, and such damages as shall be awarded against the said Rocky Mountain National

46 Bank ot Central Cityv. Colorado, its snecessors, executors, adinin

16 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

istrators, in any snit or suits which may hereafter be brought for unlawfully sueing out said attachment, and all damages that may accrue, or that may have accrued, to the said Union Gold-Mining Company of Colorado by reason of any excessive levy under any writ of attachinent in said suit, then the above obligation to be void; otherwise to remain in full foree and effect. Witness our hands and seals the day & year above written.

Cashier & Agent of the Rocky Mountain National Bank, (SEAL. |

Crontral City, Colorado,

Henry M. Teller. Iseal. |

Approved and tiled Nov. Tith. 1869. H. H. ATRINS, Clerk.

Ly And afterwards, to wit, defendant?' by their said attorneys

filed their pleas in said court on the loth November, A. D. 1869, in Said district: court, as appears from transcript of record certified as aforesaid, and is as follows, in words and heures, to wit:

In district court of 2 judieial district in and for said county, of the November term, A. DD. Ts6o,

TERRITORY OF COLORADO, County of Gilpin, SN - hocky MOUNTAIN NATIONAL BANK OF CEN- | tral City. Colorado, py tt. : : " | lhassumpsit. Plea: general issue.

PA. [NION GiOLD-MINING COMPANY, OF COLO-

And the said detendant, The Union Gold-Mining Company ot Colorado, by Hugh Butler & EE. Wakely, its attorneys, comes and detends its wrongs and injury done it, and says that it did not undertake and promise in manner and torm as the said Roeky Mountain National Bank of Centra!

City, Colorado, its said: plaintiff. hath above thereof complained Is against it, & of this it puts itself upon its country. H. BUTLER & FE. WAKELY, Det ts Atty'.

And, fora further plea in this behalf, the said defendant, by leave of the court here for that purpose first had and obtained, according to the form of the statutes in such case made and provided, says that the said plaintiff ought not to have or maintain its aforesaid action thereof against it. this said detendant, because it, the said detendant, says that the said plaintiff! was not, at the commencement of this action. & is not now, a eorporation, as by the said writ & declaration is above supposed, and of this the said detendant puts itself upon its country, Xe,

I. Butler &amp; E. Wakely,

Det ts Attys.

And, fora further plea in this behalf. the said detendant. by leave ot ad and obtained, according to tl

iit:

the court here for this purpose iirst ha form of the statutes im such case made and provided, says that

ie

'4

I. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 17

9 the said plaintiff ought not to have or maintain its aforesaid

action thereot against it, the said defendant, because it, the said defendant, says that the said plaintiff is a body-corporate, formed, organized, and existing with a nominal capital of fifty thousand (550,000) dollars, and with but only thirty thousand ($30,000) dollars actually paid In capital stock, & under and by virtue of the banking-laws of the United States, entitled An act to provide a national currency, secured by a pledge of United States bonds, and to provide tor the circulation and redemption thereoty" approved June 5d, 1864; and it, the said plaintiff, had no authority, right, or power to loan and advance to this said defendant this said sum of tmoney, as in said plaintiff's declaration mentioned, and of this the said defendant puts itself upon the country.

H. BUTLER & E. WAKELY, Det ts Attys.

And, tor a further plea in this behalf. the said defendant, by leave of the court here tor this purpose first and had obtained, according oO) to the form of the statutes in such case made and provided, says that the said plaintiff ought not to have or maintain its aforesaid action thereof against the said detendant, because it, the said defendant, says that the said plaintiff is a body-corporate, formed, organized, and existing with a capital stock of fifty thousand (50,000) dollars, and under and by virtue of the laws of the United States, entitled "An act to provide a national CUPrrenes secured by a pledge of United States bonds, and to provide tor the circulation and redemption thereot," approved June dd, 1864, and it has no right, power, or authority to loan and advance to said defendant the said sum of money in said plaintiffs deelaration mentioned, and this the said defendant is ready to certify ; Whereupon it prays judgment. HW. BUTLER & E. WAKELY, Detts Attys.

And, tora farther plea in this behalf, the said defendant, by leave of the court here tor that purpose first had and obtained, accord- 5] ing to the form of the statute in such case made and provided, savs that the said plaintiff? ought not to have or maintain its aforesaid action thereot against this said defendant, because it says that the said plaintiff is a body corporate, formed, organized, and existing under and by virtue of the law of the United States, entitled "An act to provide a national curreney secured by a pledge of United States bonds, and to provide for the circulation & redemption thereof," approved June Sd, S64.

Whereby, as by which said law of Congress it was among other things provided that associations tor carrying on the business of banking might be formed by any number of persons not less than five, (9,) who should enter into articles of association, specitving in general terms the object for which the association was formed, and might contain any other provisions not inconsistent with the provisions of said law, and that said association so atoresaid formed and organized might see fit to

adopt for the regulation of the business of said association, and 52 the conduct of its officers under said articles of association, rules,

and regulations by the persons uniting to torm such association, and a copy thereot forwarded to the Comptrollers of the Currency, to be filed & preserved in this office.

And the detendant further says that it was in and by said law further provided that the persons so uniting to form such association should,

REc, 13¢—2

os

18 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

under their hands, should make an organization-certificate, which should specify the name claimed by such association, which said name should be subject to the approval of the Comptroller, and said certificate should also specify the place where its operations of accounts & deposits were to be carried on, designating the State, Territory, or district, and also the particular county, city, town, or village, and also the amount of its capital stock, and the number of shares into which the same has been divided, and the names and place of residence of the stockholders, and the number of shares held by each of them; also a declaration that the

said certificate was made to enable such persons to avail them- a5: selves of the advantage of the said laws of Congress.

And the said defendant further saith that it was in and by said law further provided that there should be no association formed or organized under and by virtue of said law with a capital of less than one hundred thousand ($100,000) dollars. Nor ina city, the population of which exceeds fifty thousand (50,000) persons, with a capital of less than two hundred thousand ($200,000) dollars; provided, however, that banks with a capital of not less than fifty thousand (90,000) dollars might, with the approval of the Secretary of the Treasury, be organized in any place, the population of which should not exceed six thousand (6,000) inhabitants.

And the said defendant further says that heretofore, to wit, at the time and place aforesaid, William M. Rowarth, Charles b. Kkountze, Augustus Kountze, Xet., did enter into articles of association, and under their hands form an organization and become a body corporate tor the

purpose of banking at the place aforesaid, to wit, at the city of D4 Central, a place containing Jess than six thousand inhabitants, and in the county of Gilpin and Territory of Colorado, and under the name and style & description of the Rocky Mountain National Bank of Central, Colorado, with the approval of said Comptrollers, and In said organization-certificate specified the place aforesaid as the place where its operations of discount and deposits were to be earried on, & the amount of its capital stock to be fifty thousand (50,000) dollars, and the number of shares into which the same was to be divided, the names and place of residence of its shareholders, & the number of shares held by each, and also a deelaration that the said certificate was made to enable such persons to avail themselves of the advantages of the afore said law of Congress, and they did therefore obtain therefor the ap proval of the Secretary of the Treasury as the said law required, whereby the said Rocky Mountain National Bank of Central City, Col orado, became a body corporate, and has no power, authority, or right to loan and advance to said defendant the said sum of money DO In said declaration mentioned. And this the said detendant is ready to certify; wherefore prays

jyudement,

H. BUTLER & E. WAKELY, Derts Attys.

This suit is brought for moneys loaned and advanced by plaintiff to defendant, and tor no other cause of action whatever.

And the said defendant, for a further plea in this behalf, by like leave of the court here for this purpose tirst had and obtained says actio non, because it says & that the said plaintiff is a corporate body organized, existing, and doing business under an aet of the Congress of the United Stefes,entitled "An aet to provide a national currency. secured by a

pledee of Uaited States bonds. and to provide for the circulation and

y

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 19

redemption thereof," approved Jane 3, 1364, and that it had and bas a capital stock of fifty thousand dollars and ne more; and the said defendant avers that the said plaintiff has no right, power, or authority to loan or advance to said detendant, a greater sum than five thousand doliars, and this it isready to certify ; wherefore it pravs judgment, Xe. H. BUTLER & E. WAKELY, Def'ts Attys. Db And the said defendant for a further plea in this behalf, by like leave of the court here for this Purpose, first had and obtained, according to the form of the statute in such case made and pro. vided, says actio non, because it says that the said plaintiff was a body corporate at the time it loaned and advanced the said sum of money, in sald declaration mentioned to the said defendant, organized, existing, and doing business under and by virtue of aun act of the, Congress of the United States} entitled "An aet to provide a national currency, se cured by a pledge of United States bonds, and to provide tor the cirenulation and redemption thereot," with a capital of fifty thousand dollars and no more, and that only thirty thousand of said capital stock had been paid in at the time said sums of money were so advanced and loaned to detendant, as in said declaration alleged, and this the said defendant is ready to verify ; whereupon it prays judgment, &e.. H. BUTLER & hk. WAKELY, Def't's Attys. ay} This suit is brought for money loaned and advanced by plaint iff to detendant, and tor no other cause of action. Filed Nov. 16th, 1869, H. Hf. ATKINS, Clerk. And afterwards, to wit, plaintiff, by their attorneys as aforesaid, filed their demurrer 6th day of December, A. D. 1869, together with motion to strike the said second plea of the said defendant trom the files of the court; which said demurrer appears from transcript of record certified as aforesaid, and are in words and figures as follows, to wit:

In the district court, 2d judicial district, to the November term, 1869.

TERRITORY OF COLORADO, County of Gilpin, SS 2

THk Rocky MOUNTAIN NATIONAL BANK )

of Central City, Colorado,

rs, |

The Union Gold-Mining Company Of _ |

And the said plaintiff, by Johnson & Teller, its attorneys, says

5S that the said pleas thirdly, fourthly, tifthly, sixthly, and sev

enthly, come in manner & form as pleaded, and the matters

therein contained and set forth are not sufficient in law to bar the said

plaintiff of its aforesaid action, and that the plaintiff is not bound by

law to answer the same, and that the said detendant is ready ourly; Whereupon the plaintitft prays judgment as aforesaid.

JOHNSON & TELLER, Attorneys for Plaintiff

And for cause of special demurrer to the third plea of the defendant, the plaintiff shows to the court the following reasons:

Kirst. Said plea is an attempt on the part of tle defendant to plead a forfeiture, when none is given by stipulation.

eee

20 U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. second. The plea is to the whole of the declaration & to the whole sum claimed by the plaintiff. Third. The plea attempts to put in issue the bona tides of the a" acts of Incorporation and is not a plea of nuilie tena Computation, and no where alledges that the corporation has been dissolved by competent authority: that said plea coneludes to the country when it ought to have coneluded a verification. Because it does not show how or why said plaintiff was not authorized to make said loan, and because if is not in answer to the declaration,

And as tothe 4th plea of the defendants, as special cause of demurrer the plaintiff shows to the court the following reasons, to wit: The plea concludes with the county, when it ought to conclude with a veritica tion; that if isa plea of portion of a plea in all, and is not sutlicienthy explicit in its allegations.

Because it purports to bea plea to the whole cause of action, and if a plea at all, itis only a plea to a part of the eause of action.

because it is not in answer to the allegations of the declaration.

Because it does not show that such loan was without authority of

law. 60) And for the special cause of demur. to the titth plea of defend- WN ant the plaintiff shows the following causes :

First. Because said plea is detective in not alledging and pointing out how or why the plaintiff! has no authority to make said loan.

Because it is not in answer to the whole declaration,

Because it leaves a part of the declaration unanswered,

Because said plea is ambiguous, uncertain, and does not point out a defence or any part of the cause of action original and about in the declaration,

And tor special cause of demur. to the 6 & ¢ pleas of the defendant the plaintiff shows the following cause of demur.:

Because both the 6.4 7 pleas professes to answer the whole declaration, While in such plea admits that there is a cause of action in favor of plaintith and against the detendant.

Because the said 6 & 7 plea does not answer the whole deelaration

. 61 Because it does not appear why the plaintiff had no authority to loan money to the detendant.

JOHNSON & TELLER, Attys for Pet pt. Demur. tiled Dee'r 6th. 1S60. | H. HW. ATKINS, Clerk. [

in the district court, 2d judicial district,. November term, 1869.

TERRITORY OF COLORADO, yl @ County of Gilpin, ss:

Rocky MOUNTAIN NATIONAL BANK OF CEN: ; tral City. Colorado, rs, '

Union Gold-Mining Company Of Colorado. !

And now comes the plaintitt, by Jolson & Teller, its attorneys, and moves the court to strike out the record of the plea ot the detendant

'

trom the tiles of this court, ter the tolle Ine reasons :

a ee

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 2]

First. Because there is a plea of general issue on file and the plea of nul tiel seal cannot be pleaded with the plea of general issue & other pleas on file.

Because said plea is no authority to put in issue the name of HL the corporation, and Is not sworn to. Because the said plea is a plea in abatement, and not sworn to. because no issue ean be formed in the plea as it is.

Because it ought to conclude with a verification.

JOLNSON & TELLER, Attorneys for Plaintiff.

Motion tiled Decor Oth, Tsoo.

And afterwards, to wit, on the Yith day of February, A. D. ISO, a pluries writ of attachment issued ont of the office of the clerk of the district court of said county, at Gilpin, in said cause, which said plaries writ of attachment is in word and figures as follows, and upon which said pluries writ of attachment appears the following return:

And also appears precipe for issuing the above.

And also subpeona, service, & return. And also * tee-bill from said county. 633 The people of the Territory of Colorado to the sheriff of Gilpin

County, greeting :

Whereas Joseph TL. Goodspeed hath complained, on oath, to Horace Hf. Atkins, clerk of the district court of the second judicial district in and tor the county of Gilpin, that the Unmion Gold Mining Company of Colorado is justly indebted to the Roeky Mountain National Bank of Central City, Colorado, to the amount of twenty-two thousand nine hundred and tourteen dollars and seventy seven cents; and oath having also been made that the said Union Gold-Mining Company of Colorado is a foreign corporation, and the said Rocky Mountain National Bank of Central City, Colorado, having given bonds and security according to the directions of the act in such cases made and-provided :

We, therefore, command you that vou attach so much of the estate, real and personal, of the said Union Gold-Mining Company of Colorado, to be toned in your county, as shall be of value sufficient to satisfy the

said debts and costs, according to the complaint, and = such 4 estate so attached in your hands to secure so as to provide that

the same may be liable to further proceeding thereupon, aeccord- Ing to law, at a court to be holden at the city of Central, for the county of Gilpin, upon the first Tuesday of May next, so as to compel the said Union Gold-Mining Company of Colorado to appear and answer the complaint of the said Rocky Mountain National Bank of Central City, Colorado: and that you also summon, as a garnishee, to be and appear at the said court on the said day of hext, then and there to answer What may be objected against.

Where and when you shall make known to said court how you have executed this writ, and have vou then and there this writ.

Witness Horaee H. Atkins, clerk of our said court, and the seal thereof. this 24th day of February, A. 1D. 1864.

SEAL. HORACE H. ATKINS, Clerk.

Pluries writ of attachment. F.led April Sth. 1870

H. Tl. ATININS, Clerk.

Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

OD TERRITORY OF COLORADO, County of Gilpin, ss:

The sheritft will take notice that the previous writs of attachment in this cause were levied on the following described property of said defendant, viz: The certain mill-site & appurtenances, situated in (rregory Gulch, said county, being the same deeded by Lawrence ST. Platt & wite to the Union Gola Aiming Company of Colorado, with all the building, machinery, & fixtures therein; also all the real sug ile oi

ee

the Union Gold-Miscug Company of Ool., in Gilpin Cour ; fISO twenty-five cords oF i Cap Qheddits of bates ore, it ie oer Ol sal lode.

HW. GL. ATKINS, Clerk.

TERRITORY OF UOLORADO, County O} Gilpin, SS e

Ihave duly levied the within wrt on the following described prop erty, to wit: Two portable engines, one being inside Union Gold-Min ing Company's shatt-house, & the other on outside of said 66 shatt-house, on Bates Lode, Gregory mining district; levied upon as the property of the Union Gold-Mining Company of Colorado,

this Sth day of April, 1570.

ALEXANDER K. BROWN, Sheriff.

Sherift's fees: Levy, 2.00; e'st of levy, 2.00; mileage, 1.00; return,

40a. 20.

TERRITORY OF COLORADO, County of Gilpin: Rocky MOUNTAIN NATIONAL BANK OF CEN: | tral City, Colorado, "Ss,

Union Gold-Mining Company.

To the clerk of said court :

You will issue :.1 alias writ of attachment against the estate of the detendant, and make said writ returnable at the next term of this court.

JOHNSON AND TELLER, Atty's for Plaintiff.

Precipe for alias writ of attachment. Filed Peb. 24, 1870. H. TH. ATKINS, Clerk.

O7 TERRITORY OF COLORADO. County of Gilpin, ss:

The people of the Territory of Colorado to the sheriff of Gilpin County, ereeting :

We command you to summon Joseph TH. Goodspeed, Thomas N. Potter, & G. K. Sabin to appear betore*the district court ot the 2d judicial district within and for the county ot Gilpin, at the court-house in the city of Central, in said county, on the 23d day of November, 1870. to testify and the truth to speak In behalf of Roeky Mountain National Bank, in a eause now pendtuig in said court wherein the said Rocky Mountain National Bank is phuntiti. and Unien Gold-Mining Company

Ul" G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 23

of Colorado defendant, and this von shall in no wise omit under the penalty of the law, and make due return of this writ. Witness (. G, Hathaway, clerk of our said district court, and the seal thereot, at the city of Centrai, thrs 17today of November, A. D. 1870. |SEAL. ] Cc. G. HATHAWAY, Clerk, By R.H. SALISBURY, Deputy.

< bs TERRITORY OF COLORADO, Cov nly of Gilpin, NS. 4 Nov, 21, A. D. 1870. Phave duly served the within by reading the same to the within. named witnesses as Lam therein coigtmanded. A. WK. BROWN, Sherif. liled in said court this 21st day of November, 1870. (.G. HATHAWAY, Clerk, By W. ER SALISBURY, Deputy. ees: Service, 82.25; mileage, 40; return, .75—S3.40. In the district court of the 2d judicial district. TERRITORY OF COLORADO, Gilpin County, 8s: IN THE MATTER OF THE ROCKY MOUNTAIN } National Bank of Central City, Colorado, =| yy. re adil : ( i: ee-bill. THE UNION GOLD-MINING COMPANY. \ Plaintitt®' costs: hil. aff., j0e.; fil. & ate. bond, 1.66; tile declaration, .15; att'y's ae ee ane ak a ae (thi he nena 2.40 G.&s. kts, 1.00; go. & filing writ att... 2.15; alias writ, .75..... 3.90 Ord. to fil. alias writ of att., 2.16; fil & app. bond, L45........ 3.80 Ord. to plead, (5c.; fil. item. bill, 1l5e, ; fil. dec., .13............ 1.05 Ril. ser., loc.; so. & fil. pl writ, 2.15; en. on clry doe't, .75¢..... 5.05 14.20 0) es i SE, IGE in ok eed Sew ewes nee cee O70 " > Cee © Ott... occa betaneeeweceiseiiek seen S.45 A. K. Brown, sheriff, on att. writ .......- pie atetndie +c es 9.79 Nov. term, IS70. PItt's costs: Wkt'g. 1.25; Eve. Dem., .¢5; dedm. to Bowen, 2.00............ 4.00 Se: ie Te. re CU. CO Ee OEE 6 kinins se ce ccmcdse ceed doe 1.90 Bi, Tx. SO, Ss GE I on 6. 6 heared eases eee 3.40 Deten. costs: Atty's app., .20; office, 59; filg plas, .15o; ent. & fil. bond, .90; % cote & Be GONE, Det Bi Mis Be bax wawax iwdscndes ieee 2.43 S47.05

I, Curtis G. Hathaway, clerk of the district court of the second judi. elal district in and for Gilpin County, do hereby certify that the fore.

. - — — PO Sr AAAS ies Td FS A a pds Sa

24 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

going is a true copy from my fee-book of pitts and def't's costs in the above-entithed suit. Given under my hand and the seal of said court this 2?d day of December, A. I. TS70. CURTIS G. HATHAWAY, Clerk.

GO TERRITORY OF COLORADO, County of Gilpin: G. 1D. ees. Received and tiled this 24th day of December, A. ID. Is7e. CURTIS G. HATHAWAY, Clerk, by A.J. MACKEY, Deputy. hiled Mareh 4, IS71. C. G. HATHAWAY, Clerk,

By C. CL CARPENTER, Deputy.

And afterwards, to wit, on the 7th day of November, A.D. 1870, when a change of venue Was had in said cause to Boulder County trom said Gilpin County, which said transeript of record of the proceedings had in this case at Central City, Gilpin County, in said 2d judicial district, as appears in the annexed hereto attached, which appears tn words and fivures as follows, to wit:

Pleas in the district court of the second judicial district of the Territory ot

Colorado, within and tor the county of Gilpin in said Territory, began

and beld at the court-house im Central City, in the county of

v1 Gilpin and Territory of Colorado, on the first Tuesday of May,

1869, before the Tlon. William It. Gorsline, associate justice of

thesupreme court of the Territory of Colorado, and assigned as judge of the second judicial district thereof.

Rocky MOUNTAIN NATIONAL BANK OF CEN- } tral City. Colorado, a® UNION GoLp-MINING COMPANY OF CoL orado.

Attachment.

eel eam —

be it remembered that, on the 2nd day of June, 1869, 1t being one of the regular judieial days of said term of said court, the following pro ceedings were had in this cause, to wit :

Rock yY MOUNTAIN NATIONAL BANK OF CEN. tral Citv, Colorado, "s, » Attachment. UNION GoLp-MINING COMPANY OF COLorado.

OO cenemnts lly, ff

ee ee

At this day comes the sad plaintiff, by its attorneys, and on motion if is ordered that an alias writ issue in this cause, and that the said stand continued to the next term of this court.

Y fe And afterwards, to wit.on the loth dav ot November, T3600, the same berg one of the regular judicial days of the November term of said court, begun and hel at the court-louse in said city, in said

a

@ tar

Nd

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 25

county and Territory, on the first Tuesday of November, 1869, the following further proceedings were had in this cause, to wit:

RockY MOUNTAIN NATIONAL BANK OF CEN: }

tral City. Colorado, |

rs, \ Attachment. UNION GOLD-MINING COMPANY OF COL- | orade. \

At this day comes said plaintiff, by Johnson & Teller, its attorneys, and the said defendant, by Ilugh Butler, esq., its attorney, alse comes, and the motion of said defendants to dismiss this Cause for want of security for costs being argued by counsel, and the court being tullw ad

vised in the matter, is of the opinion that said motion be denied.

And afterwards, to wit, on the 11th day of November, 1869, it being still one of the regular judicial days of said term of said court. the tol lowing further proceedings were bad in this cause, to wit:

73 RockY MounNrAIN NATIONAL DANK } of Central City, Colorado, |

rs. » Attachment. UNION GOLD-MINING COMPANY OF COL. | \

orado.,

This day comes the said parties, by their attorneys, and the motion of said detendant to quash the writ in this cause coming on to be heard was argued by counsel, and the court, being fully advised in the matter, is of the opinion that said motion be sustained.

Thereupon, on motion of plaintiff. leave is granted it to amend attachment-bond, and on the same day, to wit, the 11th day of November, 1369, it being one of the regular judicial days of said November term of said court, the following further proceedings were had in this cause, to wit:

Rocky MOUNTAIN NATIONAL BANK OF CEN: | tral City, Colorado, rs. > Attachment. UNION GOLD-MINING COMPANY OF COL- | orado. \ This day come again the said parties, by their attorneys, and on motion of plaintiff it is ordered that defendant plead in this cause fe by the incoming of court on Tuesday morning next.

And afterwards, to wit, on the 7th day of November, IS70, it being the 6th judicial day ot the November term, 150, of said court, began and held in the court-house in said city,in said county and Territory, before the Hon. James B. Belford, one of the associate judges of the supreme court of said Territory, and assigned as judge of the 2d judicial district thereof, the following further proceedings were had in this cause, to Wit:

THE Rocky MOUNTAIN NATION. BANK ) a > UNION GOLD MINING COMPANY. \

This day come the parties, by counsel, and the detendant having asked leave to withdraw his second plea as to the non-existence of the corpo ration heretofore filed therein, which is granted, and said plea. withdrawn.

26 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

And afterwards, to wit, on the 8th day of November, 1570, it being the 7th judicial day of said term of said court, the following further proceedings were had in this cause, to wit:

io THE Rocky MOUNTAIN NATION. DANK ) es, > THe UNION GOLD-MINING COMPANY. \

This day come the parties, by their attorneys, and after hearing the argurnreuts ol lyoty parties, the court sustalus the demurrer of the plaint-ifs, heretofore filed in this cause, to which ruling of the court the defendant, by counsel, except.

And afterwards, to wit, on the 23d day of November, 1870, it being the 20th judicial day of said term of said court, the following further proceedings were had in this cause, to wit:

THe Rocky MOUNTAIN NATIONAL BANK OF Central City "s, Tur UNION GOLD-MINING COMPANY.

ip Oe

This day come the said parties, by their attorneys, and the said defendants file' herein his application tor a change of venue in this cause And afterwards, to wit, on the 26th day of November, 1870, it being the 22d judicial day of said term of said court, the following far-

76 ther proceedings were had in this cause, to wit:

THe Rocky MOUNTAIN NATIONAL BANK OF )

Central City, Colorado, L Us, ' Tuk UNION GOLD-MINING COMPANY. §

At this day this cause comes on to be heard, on the motion for change of venue, and the court being fully advised in the premises, sustains the said motien.

It is therefore ordered by the court the venue in this cause be changed to Boulder County, and that the defendants pay the costs of said change of venue by the LlOth day of Deceniber, A. D. 1870.

Copy of petition and affidavit for change of venue.

In the district court, 2d judicial district, of the November term, A. D. . L870,

TERRITORY OF COLORADO, County of Gilpin, 8s :

Thr Rocky MOUNTAIN NATIONAL BANK OF } Central City, Colorado, pltt, rs. » Assumpsit. THE UNION GOLD-MINING COMPANY OF COLO- | rado, det't. \ ia The Urion Gold-Mining Company of Colorado, the defendant In the above-entitled cause, which is a foreign corporation, organized and existing under the laws of the State of New York, by Theo-

— ot

Wm;

a a

We

:

anf

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 27

dore H. Becker, its president and agent, for this purpose duly authorized, represents to the court that the inhabitants of Gilpin County are preju diced against the petitioner, the said) Union Gold-Mining Company

-of Colorado, so that fears are by said petitioner, and the officers having

control thereof, eutertained that it Cannot reeeive a fair and Impartial trial tai Said cause Where said Cause is now pending, and that said defendant, said petitioners, did not, nor did the president and agent and Offieers having control thereof, ascertain the existence of such prejudice until Saturday, the lth of the present month, and that upon Monday,

} 7 } t >. »* ¢ 3} ; ' > gee . cy , . the Zist of the present month, the petitioner caused to be served upon » ee cs : 4h 1} : .* * . - i! ' ' , + } _ : *% Mess rs Johnson & Teller. the attornevs of the pratt tb LEIS Cause, a notice that, oh the Bod Gay of tiie present imonti, of as soon there

after as the cause could be heard, it Would appiv for a change of is venue in this cause. Petition therefore prays for a change Of venue in this cause, pursuant to the statutes in sach cases made and provided. UNION GOLD-MINING COMPANY OF COLORADO, by THERODORE H. BECKER, President and Ageit.

TERRITORY OF COLORADO, County of Gilpin, 83

Theodore H. Beeker, being duly sworn, on oath savs that he is the president and acting agent ot the said Union Gold-Mining Company ot Colorado, the detendant in the 'foresaid petition named, and, as) such officer, has full power and authority to make the above application tor change of venue. Tle further states, on oath, that the matters and things set forth in the foregoing petition are true, in substance and in fact.

Theodore H. Becker.

Subsenbed and sworn to before me this 22d day of November, A. D. LSicu. C. G. HATHAWAY, Clk, By Wo. H. SALISBURY, Ll yty. a TERRITORY OF COLORADO, Cominly ot Grilpin, SS °° I, Curtis G. Hathaway, clerk of the district court of the second judicial district of the Territory of Colorado, within and tor the county of Gilpin. do hereby certify that the above and foregoing is a true and complete transcript of the record of proceedings had in said court in the above-entitled cause, together with the petition and affidavit for change of venue of said cause, and the papers hereto attached and marked, respectively, A, B, C, D, E; F, G, H, I,J, L, M, N, O, P, are all the papers filed in said court except the petition and affidavit for change ot Venue. In testimony whereot T have hereunto set my hand and affixed the seal of said court this 22d day of December, 1500. DISTRICT COURT SEAL. CURTIS G. HATHAWAY, . Clerk of District Court. Piled this 24th day of December, A.D. 1870. CURTIS G. HATHAWAY, Clerk, By A. J. MACKEY, . Deputy, Boulde r Co,

. } } + + 4'¢ . , _- } - "i And be If remembered AaISO, that afterwards, to wif. on the oth

lay of January, A. D. Ise. the following proceedings were had

28 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

In the district court, second judicial district, in and for the county of

Boulder, which will appear in the annexed transcript of record in said case by stipulation to change of venue to Jefferson County, which said proceedings and stipulation appears in words and figures as follows, to Wit:

At aterm of the district court of the second judicial district of the Territory of Colorado, within and tor the county of Boulder and Terr tory of Colorado, began and held at the court-house in Boulder, in and for the county of Boulder, Territory of Colorado, on the first Tuesday of January term, A.D. Is71, betore the honorable James b. Belford, associate justice of the supreme court of Colorado Territory, and as signed to the second judicial district as the judge thereof, the following, among other proceedings, were had, to wit :

SI RockY MOUNTAIN NATIONAL BANK OF | Central City

che C

Union Gold-Mining Company Of Colorado. 4

Be it remembered that on this 5th day of January, A. DD. 1871, the same being one of the regular days of said term of sald court, the fol. lowing proceedings were had in the above-entitled cause, to wit:

Rocky MOUNTAIN NATIONAL BANK rs, Attachment. Union GoLD-MINING Company oF CoLorapo. S

And now on this day comes the parties, by their attorneys, and tiles there a stipulation for change of venue, which is as follows, to wit:

In the district court of Boulder County, January term, A. D. 1s71. TERRITORY OF COLORADO,

County of Boulder, ss: It is hereby stipulated that the venue in the above-entitled cause shall be changed trom the county of Boulder to the district court 82 of Jefferson for trial; and that no objeetion shall be taken by

either party to the form or manner of the certificate of the clerk of

the district court of Boulder County in certifying to the records or transcript to the district of Jeflerson County; and it is further stipulated that said cause shall be tried in the district court of Jefferson County the same as if the venue had been changed originally trom the district court of Gilpin County to the district court of Jetterson County instead of the district court of Boulder County.

Dated December 50th, A. D. IS70.

JOHNSON & TELLER. Attys for Plaintiths. E. T. WELLS, Dete ndants Atty,

[It is thereupon ordered by the court that the venue in this eause be changed to the county of Jetlerson, and that this ease. together with all the papers herein, be transmitted to Jefferson County for further proceedings according to law.

S3 TERRITORY OF COLORADO, County of Poulde rs Ope I, Curtis G. Hathaway, clerk of the district court of the second judicial district ot the Territory of Colorado, do hereby certity that the above is a true and correct franseript of all the proceedings had i said

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 23

court in the above-entitled canse as the same appears of record; and that the papers hereto attached and marked "A," and one package of depositions taken by Charles Nettleton, commissioner, the same being attached to the paper of the entitled cause, are all the papers filed in said cause, except the stipulation for change of venue, of which a copy is hereunto attached. |

Iu testimony whereof I have hereunto subseribed my name and aflixed the seal of said court this 2sth day of January, A. D. 1871.

(DISTRICT COURT SEAL. CURTIS G. HATHAWAY, Clerh,

By A. d. MACK Y, Deputy.

ker hil aT thre following CCldne,

Rocky MOUNTAIN NATIONAL BANK OF CENTRAL

City

rea, :

[UNION GOLD-MINING COMPANY, \ Sd Docketing case, 1.25: tiling papers and stipulation, 4o... 0 1l.¢o Court venues, +3; mak'g record, 1.00 ...... cccccceeseces liao , ~. 40 penne sunt. G0 Cee Ge. 65s 6s ond 6 dias Seas Sawee eer wo 120 Taxing costs, 1.00; attorney. appear'g, 20... 2... 2.262000. junads 1.20 =O. 40

I, Curtis G. Hathaway, clerk of the district court in and for the county of Boulder, do hereby certity that the foregoing is a true copy from my fee-book of costs in the above entitled suit.

Given under my hand and seal of the said court this 28th day of January, 1Sel.

|SEAL. | CURTIS G. HATHAWAY, Clerk,

By A. J. MACKEY, Deputy.

Filed Mareh 4th, 1571.

C.G. HATHAWAY, Clerk. By C. CC. CARPENTER, Deputy.

And be it also further remembered that afterwards, to wit. on the

26th day of November, A. 1). 1875, present, honorable Moses Hallett,

chiet-justice of the Territory of Colorado, judge presiding; John

85 R. Cleveland, clerk. by Henry Bell, deputy, for said county ot

| Jefferson; and William L. Smith, sheriff of said county of Jefter-son

, it being one of the judicial days of the regular term of said court, ot the November term, A. D. Isi5—

IN THE MATTER OF RocKY MOUNTAIN NA- } tional Bank ot Central City, Colorado, ee a rea, > ee ' 7. - . . : : m Tue Uxion Goip-Mrstnc Company or Cor. | 'om Gilpin County |

orado.

Be it remembered, that heretofore, to wit, on the 23d day of Octo ver, A. D. 15735, it being in vaeation preceeding the said November term ot

30 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

said court, came said plaintitt', by their attorneys Teller, Gorsline & Charles, esq's, and filed in the office of said clerk notice to said detendants to take the deposition of George K. Sabin, which hereto annexed and is in words and figures as follows, to wit:

In district court, 2d judicial district.

TERRITORY OF COLORADO, Jefferson County, ss:

THk Rocky MOUNTAIN NATIONAL BANK OF } Colorado, (Central City,) vs. > THk UNION GOLD-MINING COMPANY OF COL. | orado, \

St The above-named detendant is hereby notified that on the 5ist

day of October, A.D. 1873, between the hours of 9 o'clock a. m., and 4 o'clock p.m., of said day, at the office of John KR. Cleaveland, in Central City, Gilpin County, Colorado Territory, we shall proceed to take the deposition of George Ik. Sabin, a resident of Gilpin County, Colorado Territory, before John KR. Cleaveland, esq., clerk of the district court of the second judicial of Colorado, or some other officer authorized by law to take depositions in such cases, to be had in evidence on the trial of the above-entitled cause on the part and in behalf of said plaintiff, at Which time and place you can appear and cross-examine said Witness, if you choose and see tit to do so.

Central City, Oct. 20, 1875. HW. M. TELLER & A. R. GORSLINE, ya florneys for Plaintiff.

Received copy of within notice this 20th day of October, A. 1D. 18735. Ht Gil BUTLER, Def'ts Atty. Miled Oct. 25, 1505. , J. OR. CLEAVELAND, CVhk. Si Filed Nov. 26, US735. J. KR. CLEAVELAND, CTh, By HEN Y BELL, Dep'y.

And afterwards, to wit, on the 5ist day of October, A. D. 1875, the said plaintiff by their attorneys filed in the offiee of said clerk a certain stipulation, which said stipulation is hereto annexed and appears iu words and figures as follows, to wit:

In district court fr November term. 1S73.

TERRITORY OF COLORADO, County of Sethersony ss :

RockY MOUNTAIN NATIONAL BANK OF CEN. | tral Citv, Colorado, THE UNION GOLD-MINING COMPANY, OF Col oranda It is hereby stipulated that no objection shall be taken to the form of

he stions asked the witness Sabin in taking bh ition. and wit} Line (y le SLIOTIS ASHE iV cat 'YY baude a ACVae UP : oan eemaLtiee £3 SiC POs roiOll, ailu Witi

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. ol

to be such objection to the question and answer as he may see fit, except as betore stated to the torm of the question. HUGH BUTLER, G. Bb. RAND, Atty for Def ts. H. M. TELLER, J. Q. CHARLES, SS W. R. GORSLINE, Attorneys for PUSH,

Miled Oct. Sist, 1873.

J. R. CLEAVELAND, Clerk, By HENRY BELL, Deputy.

And afterwards, to wit, on the said 26th day of November, A. D. 1875, it being one of the judicial days of the regular term of said court, begun and holden on the sth dav of November, A. D. 1875, and officers the same as on the day of the 26th November, A. DD. 1875, the tol-lowing proceedings were had and entered of record in said court, in said cause, to Wil:

Rocky MOUNTAIN NATIONAL BANK OF CEN: j ots ee rasa, | Attachment. Venue THE UNION GOLD-MINING COMPANY, OF COL- | from GHpen Commty: orado,

a cere.

And now comes the plaintiff, by attorneys, Hf. M. Tellar, J. Q. Charles, W. R. Gorsline, esq'r's, and come said defendant, by attorneys, G. B, Reed, Hugh Butler, & EK. Wakely, esq's . ) And this case coming on for trial, comes FE. 8. Book, Richard So Il. Harris, W.C. Hendricks, Peter Deiht, 11. W. Gayton, Stephen L. Higley, Wim. Strong, Elmes Smith, H. Crippin, Frank <A. Hartzell, Alexander Rooney, & H, H. Stebbins, who were sworn to answer such questions as would be put to them by the court and counsel touching their competency to serve as jurors in this case.

TERRITORY OF COLORADO, County of Setierson, 8s At said term of said court begun and holden as aforesaid, present as aforesaid, on this 25th day of November, A. D. 1875, met pursuant to adjournment, the following proceedings were had :

Rocky MOUNTAIN NATIONAL BANK OF CEN.-

ne is ees, | | Attachment. Venue

THk UNION GOLD MINING COMPANY, OF COLO | from Gilpin County. rado. \

And now comes this day said plaintiff by attorneys aforesaid, & comes the said defendant by attorneys aforesaid, and the jurors heretofore

called in this cause also come, save and except one Elmus Smith, tN) who, upon inquiry made, is found to be ill and unable to attend,

and the said Elmins Smith is by the court excused from sitting as a juror in this cause.

Then came BE. S. Book, Richard H. Harris, W. C. Hendricks, Peter Deihl W. W. Gayton, Wim Strong, H. Crippin, Alexander Rooney, Spencer Fooshee, W. Perrin, George W. Haniman, aud H. T. Benson, iand lawtul men of said Jetterson County, who, being duly selected.

Frayer fr ee

32? U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

empanneled, tried, and sworn to well and truly try the issues joined in this cause, and a true verdict render according to the evidence, and after hearing evidence of witnesses until the hour of adjournment, when the further trial of this cause was adjourned until the court shall convene again.

TERRITORY OF COLORADO, County of Jefferson, 88: At said term of said court begun and holden as aforesaid, present as aforesaid, on this 20th day of November, A. D. 1875, met pursuant to adjournment, the following proceedings were had: Rocky MOUNTAIN NATIONAL BANK OF CEN- | tral City, Colorado, )] rs, THE UNION GOLD-MINING COMPANY, O1 Colorado.

| Attachment. Venue : from Gilpin County. \

And now comes the said plaintiff, by attorneys aforesaid, and comes the said defendants, by attorneys aforesaid, and also come all of said jurors who have been selected & sworn to try said issues joined in this cause, and a true verdict render according to the evidence, and after hearing the evidence of witnesses until the hour of adjournment, when the further trial of this cause was adjourned until the court shall convene again. 3

TERRITORY OF COLORADO, County of Jefferson, 8s:

At said term of said court begun and holden as aforesaid, present as aforesaid, on this first day of December, A. D. 1873, met pursuant to adjournment, the following proceedings were had :

ROCKY MOUNTAIN NATIONAL BANK OF CEN: } tral City, Colorado, { Attachment. Venue

Us. { from Gilpin County. UNION GOLD-MINING COMPANY, OF COLORADO. \ 2 Aml now commas this day the sud plaintiff, by att orneys aforesaid

, and comes the said defendant by attornevs atoresaid, and also comes all of said jurors who have been selected & sworn to try said issues joined in this cause, and a true verdict render according to the evidence, and after hearing evidence of witnesses until the hour of adjournment, when the further trial of this cause was adjourned until the court shall convene again.

TERRITORY OF COLORADO, County of Jefferson, SS?

At said term of said court begun and holden as aforesaid, present as aforesaid, on this 2nd day of December, A. D. 1875, met pursuant to adjournment.

Rocky MOUNTAIN NATIONAL BANK OF CEN: ] tral City, Colorado, { Attachment. Venue rs, ' from Gilpin County.

UNION GOLD-MINING COMPANY, OF COLORADO, § And now comes on this day the said plaintiff by said attorneys, and comes said detendant by said attorneys as atoresaid, and also 93 comes said jurors asatoresaid, who are duly selected, empannelled,

a

aes te

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 33

tried, and sworn to well and truly try the issnes joined in said cause, and true verdict render aceording to the evidence, and after hearing all the evidence of the witnesses in this cause, the court adjourned to meet to-morrow morning. Dee. dd. 1875, at 9 o'clock a.m.

TERRITORY OF COLORADO, County of Setherson, ss: At said term of said court, begun and holden as aforesaid, present as aforesaid, Inet pursuant to adjournment on this dd day of December, A. I). S57.

Rocky MAUNTAIN NATIONAL BANK OF CEN- | waslinees 4 oes rie, Attachment. Venue iinet: inane dn a oe Coz. {| trom Gilpin County. Puk UNtON GOLD-MINING COMPANY, OF COL- | : orado. \ And now comes on this day the said plaintiff by said attorneys, and comes said detendant by said attorneys, and also comes said jurors, good and lawtul men of said Jefferson County, who were daly G4 selected, empannelled, tried and sworn to well and truly try the issues joined in said cause, and a true verdict render according to the evidence, and the arguments of counsel in said case being now submitted to the jurors, the said jurors are charged by the court and taken in charge by a sworn bailiff.

Afterwards, and on same day, the jurors aforesaid return into court, and upon their oaths do say that they tind the issues joined in this cause for the said plaintiff, and that they assess the said plaintiff? damages at thirty thousand three hundred and fifty-eight dollars and = thirty-two cents, (S50.308.02. )

And thereupon the said defendant, by Hugh Butler, esq., its counsel, demand that the jurors aforesaid be polled, and the jurors aforesaid being severally called, answers, each for himself, that the verdict aforesaid was and is his verdict; and thereupon the said jurors are by the court discharged from further attendance in this cause, and the said defendant gave notice of a motion for a new trial in this cause.

Qyy TERRITORY OF COLORADO, County of JSeflerson, S*®:

At said term of said court. begun and holden as aforesaid, the court convened at Y o'clock Dee. 4, 1873, on said day, pursuant to adjourn. ment; there were officers present the same as on yesterday. Tlie fol lowing proceedings were had and done and entered of record :

Rocky MouNTAIN NATIONAL BANK OF CEN-

tral City, Colorado, Attachment. Venue

is 4 . T T . ' '. f trom Gilpin Couuty. THE UNION GoLp-MINING COMPANY. OF COL-rid} uly

orado. 5

Now, again, comes said plaintiff by said attorney, also said defendant by said attorney also comes, and the motion of the said defendant to set aside the verdict of the jury rendered in this cause, and to grant a new trial herein, eame on to be heard, and it 1s submitted to the court

Rec. 101-3

o4 U. G. M. CC, Ve. ROCKY MT. NAT. BK. OF CENTRAL CITY.

without argument, and after consideration thereof it is ordered by the court that the said motion be deed. And thereupon said plaintit! moved the court for judgment 96 upon the verdict of the jury herein. And it is considered by the court that the said plaintitt do have and recover of and from the said defendant the said sum of thirty thousand three hundred and fifty-eight dollars and thirty-two cents (450,598.52,) for its damages so us atoresaid by the jury aforesaid assessed and awarded to said) plaintiff, and also its costs and charges by it about its suitin this behalf expended, to be taxed by the clerk of this court, and that it have execution therefor. And thereupon the said detendant prayed an appeal from the judg: ment aforesaid to the supreme "court of sail Territory. And the said

appeal is by the court allowed, upon the condition that the said detendant

give bond to the said plaintiff in the sum of thirty-five thousand

dollars, with the security to be approved by the clerk of this court, and

conditioned according to law, such bond to be given, approved, and filed in this cause by or betore the 2Oth day of January next.

OF And upon motion of the said detendant, day is given it to file its Dill of exceptions herein until the 20th day of January next, and

such bill of exceptions may be tiled in this cause by or before the day

last named with the same effect as if tiled in term time.

And it is further ordered that either party to this cause be at liberty to withdraw trom the tiles of this court letters and papers by them respectively given in evidence upon the trial of this cause, upon leaving with the clerk certified copies of such letters and papers,

Beit remembered also, that on the same day detendants tiled a motion for a new trial with said clerk of said court, Which said motion appears below in words and figures as rollows, to wit:

In district court of Jefferson County atoresaid. November Term, 1505. TERRITORY OF COLORADO, County of Jepherson, ss:

RockY MOUNTAIN NATL BANK OF CENTRAL j City s

Us, c

Union Gold-Mining Company. Of Colorado. §

9S And now comes the said defendant, by its attorneys, and moves the court to set aside the verdict of the jury herein and to grant a new trial of this cause, tor the following reasons, to wit:

First. Because the court erred in admitting irrelevant, Imimaterial, & improper testimony offered by the plaintiff and against the objection of defendant.

Second. Because the court erred in excluding relevant, material, and proper testimony offered by detendant.

Thind. Because the court erred in giving erroneous instructions to the jury offered and requested by plaintiff.

Fourth. Because the court erred in refusing to give to the jury proper and correct Instructions asked by defendant.

Ritth. Because the court erred in giving improper and erroneous Instructions to the jury on its own motion.

Sixth. Because the verdict of the jury is contrary to the law of the ease.

Seventh. Because the verdict ot the jury Is coutrary to the evidence.

4

U. G. M. CO. Vs. ROCKY MT. NAT. Bk. OF CENIRAL CITY. 35

Kighth. Because the court erred in overruling defendant chal-ay lenge to the juror Perrin and in allowing him to be empannelled as a juror to try the cause. Ninth. Because the damage' assessed by the jury are excessive. Tenth. Because the proceedings are otherwise informal, uncertain, erroneous, and tsutticient. HUGH BUTLER, G. B. REED, TD tendant's Attorneys.

Filed December 4th. Tsc5. JOHN R. CLEAVELAND, Clerk, by HENRY BELL, Deputy Clerk,

And afterwards, to wit, on the 19th day of January, A. 1). 1Sc4, the detendant tiled with the clerk of this court an appeal-bond, which appeal-bond was approved by said clerk at same date, and appears below in words and figures as follows:

Know all men by these presents that we, The Union Gold-Mining Company, of Colorado, (a corporation organized and existing 14) under the laws of the State of New York,) as principal, and Theodore H. Becker. ot the county of Gilpin, Robert B. Bradtord, of Jefferson County, Orpheus IT. Barnes, of Clear Creek County, and John Hughes, of Denver City. Arapahoe County, Territory of Colorado, as sureties, are held and firmly bound unto the Rocky Mountain National Bank of Central City, Colorado, in the penal sum of thirty-five thousand dollars, (835,000,) lawful money ot the United States, tor the payinent of which, well and truly to be made, we hereby bind ourselves, our heirs, executors, and administrators, jointly, severally, and firmly by these presents. Witness our hands and seals this nineteenth day of January, A.D. S74, (19th Januay, A. DD. 1874.)

The conditions of this obligation is such that, whereas The Rocky Mountain National Bank of Central City, Colorado, did, at the Novem. ber term, A. D. 1875, of the district court of the second judicial district

in and for the county of Jefferson, in the Territory of Colorado, 10] recover a judgment against the above bounden Union Gold-

Mining Company, of Colorado, tor the sum of thirty thousand three hundred and tiftyv-eight dollars and thirty-two cents (S50,c08 4% ) besides costs of said suit, from which said judgment of the said district court of Jetferson County, the said Union Gold-Mining Company, of Colorado, has praved tor and obtained an appeal to the supreme court of said Territory:

Now, therefor', if the said Union Gold-Mining Company, of Colorado, shall duly proseeute its said appeal with effect, and moreover, pay the amount of the judgment, costs, interest, and damage rendered and to be rendered against it in case the said judgment shall be affirmed in said supreme court. then this obligation to be void, otherwise to remain in full toree and ettfect. , UNION GOLD-MINING COMPANY

| NI N GH LD MIN: | OF COLORADO, y Be com as*) ¢ By THEODORE H. BECKER, SEAL. | jy COLORADY, Its President. SEAL. |

36 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Witness to signature of Theodore H. Becker, Pres't of Union Gold Mining Company. Kr. A. POTTS,

Treasurer & See. of Union Gold- Mining Company of Colorado,

1020 } \ UNION GOLD-MIN- { ection | ee oo neve. ( ROBERY B. BRADFORD, [SEAL , apans fo. BARNES. (SEAL. |

4 4 (>, r . ' Tc. 4 | : S JOHN HUGHES. |SEAL.

Approved and filed January 19th, 1574. JOHN R. CLEAVELAND, Clerk, By HENRY BELL, Deputy Clerk.

And afterwards, to wit, the defendant, by said attorneys, filed) with the clerk of the said court two (2) stipulations, which said stipulations are in words aud figures as follows, to wit:

TERRITORY OF COLORADO, County of Jetherson, oP

Rocky MOUNTAIN NATIONAL BANK OF CEN. j tral City, Colorado,

rs, c

Union Gold-Mining Company Of Colorado,

It is hereby agreed by its attorneys of and in the case that. if they can agree upon the bill of exceptions, the same may be tiled 103° with the clerk and signed by Judge Hallett at any time before the record is sent into the supreme court, and if they cannot agree by the 20th, that the defendant may have five days more in which to file the bill of exceptions, & were it signed by the judge, and that it shell then be tiled as if the 20th. Hk. M. TELLER, G. R. GORSLINE, Attorneys for Plaintiff. Miled January 24th, 1574. J. RR. CLEAVELAND, Clerk, Sy HENRY BELL, Deputy.

In district court, 2d judieial district, in & for said county

TERRITORY OF COLORADO, County of Se the rSOUN. BR:

THE Rocky MOUNTAIN NATIONAL BANK OF | Central City \ eS.

Union Gold-Mining Company Of Colorado. \

[t is hereby stipulated and agreed by the parties in) the above -men tioned cause that the bill of exceptions therein may be tiled on 104. or betore January 25th, Iss4, and tiled of the date of the Oth January, IS74. January 2Oth, IST 4. H. M. TELLAR, W. OR. GORSTINE,

Attorneys for Plaintinf

Ss — a woe st ~ os

biled January 2 J. R. CLEAVELAND, Clerk,

By PEENRY BELL, Jlepaty.

ee

Ul. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 3ST

And on the same day defendant, by said attorneys, filed in the office of the said clerk their bill of exceptions, which said bill of exceptions appears as follows, in words and figures, to wit:

In district court, second judicial district, in and for Jefferson County.

November term, 135.

RocKY MOUNTAIN NATIONAL BANK OF CENtral City, Colorado, plaintiff,

ee eee Yi 4

iia rs. Assumpsit. THe UNiIon GOLD-MINING COMPANY OF COLO-rade, deteudant. LW Be it remembered, that on the Sth day of November, 1570, it

being one of the judicial days of the November term, A. D. 1870, of the district court cf said second judicial district, in and for the ae county of Gilpin, this cause came on to be heard on the demurrer of

said plaintiff to the 2d, od, 4th, oth, & 6th pleas of said defendant, and said demurrer was sustained by the court, to which ruling of the court the defendant, by its attorney, then & there excepted.

And afterwards, to wit, on the 26th day of November, A. 1D. 1873, it being one of the judicial days of the November term, A. DD. 1805, of the district court of the said district, in and for the county of Jefferson, this Cause Came on for tral,

Before the jury were empanvelled in said cause the defendant moved the court to suppress certain parts of the deposition of George Kk. Sabin, taken to be used in the trial of this cause.

The tirst objection was to the L7th direct interrogatory, because 1060 it is irrelevant and immaterial, it assumes something not proved, © ithas net been proved that any one succeeded. The objection was overruled by the court, & the defendant then and there excepted

to the ruling.

The detendant objected to the answer to the 25th direct interrogatory, because it is fot responsive to the interrogatory. Objection overruled by the court, and the defendant then aud there excepted to the ruling of the court.

The defendant objeeted to the 26th direct interrogatory, because it 1s substantially the same question as asked betore, and the witness has answered the question as asked in his own way. Because it is irrelevant and improper, and because what is a superintendent is a question of fact; and because it is the duty of the witness to state what position was occupied and not what witness called that position. | The objections

Were overruled by the court, and the defendant |jthen and there Loy) excepted to the ruling of the court.

The defendant objected to the 27th direct interrogatory for the same reasons as last above, and, further, because it assumes that witness Was employed in some particular capacity. The objection was over

ruled by the court, and the detendant then and there excepted.

The detendant objected to the 33d direct interrogatory, because it 1s imuiaterial and irrelevent; and the defendant also objected to the an-

~ swer to said 33d interrogatory, because it Is not responsive, and is improper, from the faet that it had not been shown by any proof that the

ek

08 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

defendant had rented an engine of the witness. The court overruled the objection to the interrogatory and to the answer, and the detendant then and there excepted to each of said rulings.

The defendant objected to the answer of the 50th direct interrogatory, because it is stated on information.

The defendant objected to the olst direct interrogatory and to the

answer thereto, because they Inquire into Witness source of infor 108 mation.

The defendants objected to the 65d direct interrogatory, bemause the testimony sought to be elicited was not the best evidence of the fact to be proved.

The detendants objected to the 67th direct interrogatory, because it is Immaterial, irrelevant, and was part of the res gesta. The court over ruled the objection, and the detendant excepted to the ruling ot the court,

The defendant objected to each of the Gsth, 69th, 70th, Fist, & Fld direct interrogatories for the same reasons as just above stated, and the court overruled said several objections, and the defendant then and there excepted to each and every of said ruling'.

The detendant objected to the 75d, 76th, 77th, & sth direct interrog atories, because they are & each of them is immaterial, irrelevant. and

not the best evidence ; but the court overruled the several objec 1090) tions, and the detendant then and there excepted to each and every of said rulings.

The defendant objected to the 83d direct interrogdtory as follows :

Yd. Tt is not part of the res gesta.

od. There has been no foundation laid tor that kind of testimony. There is no foundation laid for testimony showing that, if witness was agent, lis principalever knew of those contracts, or assumed their debts, or paid any of them.

Fourth. That it was not the same kind of dealings as are charged to have taken place between plaintiffs & defendants by the agent.

oth, There has been no foundation laid showing that the plaintiff even knew any such business had been done in the name of the detendant at the time the account was opened; but the court overruled said ob jJections, and the defendant then and there excepted to the ruling of the court.

The defendant objeeted to each of the Soth & s6th direct interrog atories for the same reasons as given last above: but the court over

ruled the several objections to each of said interrogatories, and 110°) the detendant then and there excepted io the racing of the court.

The detendant objected to the 90th direct interrogatory, because it assumes that it was the indebtedness of the detendant without showing the taets in regard to its being contracted. Whether it was the debt of the detendant or not is, part of it, a question of law and part of ita question of fact.

The defendant objeeted to the Olst direct interrogatory and to the answer fhereto, because the answer states that debt was created by overdraft, & drawing checks in the name of the detendant ; 2d, that there is no power shown, no appointment of Sabin as agent, nor power to draw checks or drafts, nor power to do any business in the name of defendant, and no authority in the plaintit? trom the detendant to pay checks shown, The objections were overruled by the court, and the detendant then and there excepted to the racing of the court.

The defendant objected to the 92d direct interrogatory and to the

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. oo

answer thereto, because it is not in proof that Sabin was ever an- 1it = thorized to carry on any business tor the detendant, either milling

or mining: but the court overruled the objection, and the defendant then and there excepted to the ruling of the court.

The defendant objected to each of the 95d, 94th, & 95th direct interrogatories, because the evidence sought to be elicited is not the best evidence > 2d, because they assume the debt to be the debt of the defend - ant. The court overruled the several objections, and the defendant then and there excepted to the ruling of the court upon each of said Interrogatories,

The defendant objected to the 07th and Osth direct interrogatories, & each of them, because it is partly a question of law and partly a ques. tion of fact, and instead of eheiting the facts from the witness, they seek to elreit his opinion. The court overruled the objections and each of them, and the detendant then and there excepted to the ruling of the

court upon each of said interrogatories, LIZ The defendant objected to the 99th direct interrogatory, because it is not the best evidence. The objections was overruled by the court, and the detendants then and there excepted to the ruling of the court,

The defendant objected to the 100th direct interrogatory, because IMproper.

The detendant objeeted to the 101st direct interrogatory, because it is not the best evidence; 2d. because it assumes that it was a debt of detendant to plaintiff, The court overruled the objection, and detendant then and there excepted to the ruling of the court.

Defendant objected to lO2d direct interrogatory—lIst, if is immaterial and irrelevant: 2d, it is not proper testimony to show an authority. The court overruled the objections, and the defendant then and there excepted,

The defendant objected to the 105d direct interrogatory, because it 1s

invelevant and immaterial whether he had or not; 2d, it asks tor 113) 0 6a communieation from Beeker as an individual, & not in his

Official capacity ; but the court overruled the objection, and the defendant then and there excepted.

The defendant objected to the 104th direct interrogatory, because it is immaterial, but the court overruled the objection, and the defendant then and there excepted.

The defendant objected to the 106th direct interrogatory, because it assumes that the checks drawn by Sabin were the checks of the defend ant, and there has been no authority shown from the defendant to Sabin to draw checks, but the court overruled the objection, and the defendants then and there excepted to the ruling of the court.

The defendant objected to the 107th direct interrogatory, because it is no part of the res gesta; 2d, it is immaterial; if there had been auy number of receipts taken without the knowledge of the defendant it

would be no evidence against the defendant: but the court over- 114 ruled the objection, & the defendants then and there excepted to the ruling of the court.

Defendant objected to LOSth direct interrogatory, because there is no reason shown why they should introduce a copy.

The detendants objected to the 110th direct interrogatory, beeanse it isnot the best evidence; it Is not proper to prove the contents of a written paper by parol.

Defendant objected to the 111th, 112th, 115th, 116th, & 117th direct interrogatories, because each' of them are immaterial and they assume

10 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

that defendant was then in business employing men, which has not been proven; but the court overruled the objeciions to the several interrogatories, and the defendant then and there excepted to each of the several rulings.

The defendant objected to the 118th, 119th, 120th, Pith, bezth, & 125d direct interrogatories & to each of them, because tmimaterial The court overruled the several objections, and the defendant then aud there

excepted to each and the several rulings of the court. ) 115 Defendant oljected to the 125th direct interrogatory, becatse

not the best evidence; the court overruled the objections, and the defendant then and there excepted to the rulings of the court,

Defendant tay ected to T27th & TZsth direct interrovatories, Decuiise Immaterial; Yd, it is in regard to matters that occurred in relation to the alleged debt, atter the contracting ot the debt; and the court overruled the objection, and the defendant then and there excepted to the ruling of the court.

Defendant objected to 129th direct interrogatory ; Ist, because imma. terial; 2d. it having been shown that the president was present at the time the witness acted without special powers to do the business inquired about; but the court overruled the objection, and defendant then and there excepted to the ruling,

Defendant objected to the 150th, 1oist & 152d direct: interrogatories,

because limaterial; bat the court overruled the objection, and 116) =o tthe defendant then and there excepted to the ruling,

The detendant objected to the 155d direct interrogatory tor the same reason as last above, and to the answer, because it states a sup. position instead of a tact.

Defendant objected to 134th direct interrogatory, because it is not the best evidence.

Defendant objected to 140th direct inferrogatory in regard to letters, because there are no envelopes, nothing to show to whom they were directed, no evidence that they ever were directed or sent to anybody or received by anybody; but the court overruled the objections, and the defendant then and there excepted.

Detendant objected to the 44th direct Interrogatory forthe following PeaSOuUs :

Ist. To the letter marked A," because it is not part of the res gesta,

Vd. It is written ina subject entirely foreign to the one in controversy, and noteon that relates to any transaction between plaintiff and defendant

. Lia od. [tis not a tull letter, and has no signature, and is only part of a letter,

Ith. Because it was written prior to any dealings by the witness with the plamntitf in the name of detendant.

Objections to the letter marked * B"

Ist. It is not a tull letter, only a part of a letter, has no signature, is ho part ot the res gesta, and does not relate to the matter im econtroversy.

Objections to letter marked "CC" same as the olneections to letter marked * A." except it is signed,

Objections to letter marked bo" That is no part of the res gesta; does not relate to any dealings with plaintiff, It was written ona subject entirely foreign to the matter in controversy. [It was written betore there were any dealings between the witness in the name of defendant and plamtith

Ul. G. M. CO. VS. ROCKY Mr. NAT. BK. OF CENTRAL CITY. 41

Objections to the letter marked *G," the same as to letter marked Objections to the letter marked "IL." Itis only a fragment of a letter, has no signature, is no part of the res gesta, and does not relate 11s to the matter in controversy as to any dealings with plaintiff. Objections to the letter marked 'J:"

It was written pearly a year betore there was any dealing between the pialutit? and witness in the name of detendant, is no part of the res gesta, IS ol private matters ; tid to all of then letters, except that one marked "CO that they are not oficial but private letters; to all of them, that they were not written to the plamtith [tus net shown that plarntii knew of their existence until long atter tis transactions with the witness Sabin; but all and each of said objections were overruled by the court, and the detendant then and there excepted to the ruling of the court.

Detendant objects to direct interrogatory L4ioth, because the envelopes mentioned were not shown to ever have contained any letters. The ruling was not read to jury.

Defendant objected to direct interrogatory 150th. First, there is no

evidence that they ever contained any letters. 2nd, no evidence 119) = tto Show in what year or years they were adduced or received.

od, no evidence that plaintiff knew of their existence until after his transactious with Sabin were closed. 4th, no evidence that they were not adduced and received while Sabin was the superintendant of detendant, prior to April, 1866. oth, they are not competent evidence for any purpose Whatever.

Detendant objected to the lost direct interrogatory, because it assumes that defendant was mining and had ¢nx foreman, and there is no evidence of either tact: also, because it is immaterial; but the court overruled said objections, and the defendant then and there excepted to the ruling.

Detendant objected to the Llold direct interrogatory because it is immaterial; 2d.it is not the best evidence; and also objects to part of the answer to lold direct interrogatory because there was no authority shown to sigh any paper in the name of the defendant, or to the plaint-it from the detendant, to take checks drawn in its name from the witness Sabin. The court overruled the said objection, and the defendant

then and there excepted. 10) Defendant objected to the lood direct interrogatory because it assumes that defendant was carrying on business, which is a conclusion both of facet and law, and to which the witness could not tes tify, but only state the facts. The court overruled the objections, and the defendant then and there excepted,

Defendant objected to the lodth direct interrogatory because there is no authority shown for Sabin to sign checks in name of defendants ; Yd, no authority shown from defendant to plaintiff to pay checks so drawn by Sabin. The court overruled the objections, and the defend. ant then and there excepted to the ruling?

Defendant objected to the Lo6th direct interrogatory because inmate-rial. The court overruled the objection, and the detendant then and there excepted,

Defendant objected to Losth direct interrogatory tor the same reasons as assigned in objection to lo4thinterrogatory. The court overruled the

objection, and detendaut excepted. es | Defendant objected to 160th direct iInterrogatory because im. material Court overruled the objection, and detendant then and

there excepted.

42 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Defendant objected to 161st direct interrogatory because it seeks to get conclusions of law from witness instead of fact. 2d. Whether the defendant was indebted to plaintiff is a question of law under the circumstances asked of witness. The court overruled the objections, and defendant then and there excepted.

Defendant objected to the 162d direct interrogatory for same reasons as assigned in objection to 154th direct interrogatory. The court overruled the objeetions, and defendant then and there excepted.

Defendant objected to the 2nd redirect interrogatory for same reason as last above, and further, because it is not the best evidence. The court overruled the objection, and defendant then and there excepted to the ruling of the court.

Defendant objected to the 4th redireet interrogatory because immaterialand

not proper redirect examination; is pot in regard to any 22 thing drawn out by defendant on cross-exanmination, The court

overruled the objection, and detendant then and there excepted to the ruling of the court.

Defendant objected to part of the answer to the sth redirect interrogatory, because not responsive to the question, and also that it is not proper on redirect examination; the defendant had not on eross-examination asked the witness in regard to anything about what he had sworn to before; but the court overruled the objections, and the detendant then and there excepted to the ruling of the court.

Defendant objected to Sth redirect interrogator, tor same reasons as last above assigned, and the court overruled the objections, and the defendant then and there excepted to the ruling of the court.

Defendant objected to l0th redirect interrogatory because not proper redirect examination. It asks the witness how he understood a matter

instead of inregard tothe facet of the transaction; 1t calls tor the i500 opinion of the witness; and objects to the answer to said 10th

redirect interrogatory because witness answers what his impression was. 2d. Because not responsive to the interrogatory. The court overruled the objections, each and all, and defendant then and there excepted to the racing.

Defendant objected to 13th, l4th, loth, l6th, t7th, ith, 19th, 20th, Pist, 22d, & 2oth redirect interrogatories, & each of them, because immaterial and not proper redirect: examination. The court overruled the objections to each of said several interrogatories, and the defendant then and there excepted to each of said rulings. |

Detendant objected to 29th redirect interrogatory, because, Ist, it Is Immaterial; 2nd, not proper re-examination; 5d, it was examined of by the plaintiff on direct examination and not drawn out on cross-ex amination; 4th, not the best evidence. |

The defendant objected to the answer to 50th redirect interrogatory,

because not responsive. 134 Detendantobjected Sist redireet interrogatory, because it calls for an impression instead of a tact; and also objects to the answer, because, instead of a fact, it is merely what the witness thought. The court overruled the objections, and the defendant then and there excepted to the ruling.

Detendant objected to 52d redirect interrogatory, because it Is in regard to matters not drawn out on cross-examination, it is) plaintitl cross-examining its own witness. The court overruled the objections, and defendant then and there excepted.

Defendant objected to S4th redirect imterrogatory, because it is not proper redireet: examination; also, the same objections as assigned to

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 43

o2nd redirect interrogatory. The court overruled the objection, and defendant then and there excepted to the ruling of the court. The plaintiff objected to 12th X int., because it calls for a paper 125) which never was in possession of plaintiff and of which plaintiff never had any knowledge. It is not the paper that he savs was delivered to defendant, but a copy; says he has an original paper, refuses to deliver the original, & is asked to append copy. The court sustained the objection, and defendant then and there excepted to the ruling of the court.

The plaintiff objeeted to the 124 cross-int. because immaterial ; if defendant produces any paper it must be the original, or they must show its loss, and the witness says he has the original. The court sustained the objection, and detendant then and there excepted.

The plaintiff objected to X int. No. 12%, because not competent evidence; even if the original was competent, there has been no toundation laid tor the introduction of a copy. The court sustained the objections, and detendant then and there excepted.

The plaintiff to the X int's 4th to 105th, inclusive, because 126) not proper XN examination. The court sustained the objections, and the detendant then and there excepted.

The plaintit® objected 'to each of the 126th, 127th, & 151st X int's, be- 'ause Immaterial and irrelevant and not proper X examination. The court sustained the objections, and the defendant then and there excepted to the ruling of the court.

The court here stated that all the objections to the deposition of Sabin which has been sustained were noted on the margin of the deposition, and should so appear in the record.

The defendant here excepted to the ruling of the court at striking out any part of the cross-examination and in overruling further exceptions on the part of the detendant.

The detendant also especially exeepted to the ruling of the court in sustaining plaintitit' objections to 104th and 105th cross-interrogatories. 4 And afterwards, and on the same day, the parties proceeded to

empannel a jury to try said cause, and that, needing others, one Henry Nutt was sworn to answer truly all questions put to bim touching his competency to sit as a juror on the trial of said cause, and was examined by M'r Teller on part of vlaintiff, and made answers as ftollows, to wit:

Question. M'r Nutt, what do you say about it ? Answer, I have heard the case talked of frequently. I don't know as I have formed an opinion. QJuestion. Was vou present at the trial ? Answer. No, sir: | was not. (Juestion. Was you present at either of the trials ? Answer. No, sir; not that I am aware of. (Juestion. You don't know anything about the facts in the case? Answer. No. Question. From what vou have heard, have you formed an opinion? Answer. I dowt know as I have. Question, Can't you say whether you really have an opinion? Answer. I can't say I have; don't know that I heard the tacts. 12s (Juestion. If what you have heard ? Answer. | would have an opinion. Question. If that was true? Answer. Yes, sir.

44 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

(Juestion. You learned these facts from parties who protessed to know ?

Answer. [ heard it talked outside around town; not present in the room when the case was tried.

Question. From what you have understood, you have an opinion one way or the other?

Auswer. Yes, sir.

(dnestion, Who did you talk with? Ans of the parties connected with the suit?

Answer. No, sir.

(Juestion. Any of the witnesses ?

Answer. No, sir. | don't know that IT have. I have heard it talked among the citizens here a number of times.

(Juestion. You say if the tacts should turn out as you have heard they will, then vou have an opinion ?

Answer. Yes, sir.

Mr TELLER. We submit to the court the question whether he is com, petent or not.

by the Court. [ think he is competent. 129 Examination by M'r Reed, on part of defendant: Question, M'r Nutt, you said that you had an opinion in the matter?

Question. From what you have heard, have you a conviction or im. pression in regard to what ought to be the verdict in this case?

(Juestion. Can you state that you have no opinion in regard to the merits ?

Answer. [ have on such reports as I have heard, outside statements, formed an opinion,

(Juestion. [s that impression left on your mind from what you have heard? |

Answer. Of course IT would like to hear the evidence on both sides.

Question, Would it require any evidence to remove whatever impresslon or conviction you now have?

Answer, I think it would require evidence.

Question. It would require some evidence to allow vou to start even With the case, would it?

Answer. Certainly. 130 flere the defendant challenged the juror Nutt for cause. The challenge was denied by the court, and defendant then and there excepted to the ruling of the court.

Among others were W. Perrin, «was also sworn to true answers make fo such questions as should be put to him touching his competency to sits a juror on the trial of this ease; and on being examined by Mt Teller tor the plaintiff, answered as follows :

QJuestion. You have heard the statement of this ease ?

Answer. Yes, sir,

(Question. Where do you reside ?

Answer. Nine miles east of here.

Question. On the ereek ? 3

Answer, About 2 miles south of the ereek.

(Juestion. What is your business ?

Answer. A tarmer. Qnestion. Do vou know anvthing about the facts of this case ?

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 45

Answer. I have heard about it. Question. Have you formed and expressed an opinion ? Answer. I did both. (Juestion. How did you hear these facts ? 13] Answer. [ heard jurors talking of them before | came here betore this term of court. (Juestion. From that did you form an opinion ? Answer. Yes, sir. (Juestion. Is it such an opinion as would intluenee you in making up

your verdict?) Could you try the case on the evidence ?

Answer. | would endeavor to try it. Plaintiffs counsel stated he had no challenge for cause.

Examination by M'r Reed, on part of defendant :

Question. You say that you talked with jurors that tried the case formerly ?

Answer. Yes, sir.

Question. Did they give to you what they claimed to be a statement of the facts in the case ?

Answer. Yes.

Question. Did they tell you what the result of the case was—the verdict ?

Answer. I believe not.

Question. Do vou know what the verdict was?

Answer. IT have heard since; yes, sir.

QJuestion. Did you hear it trom the jurors?

Answer, No, sir. 152 Question. Then you have talked with other parties, have you not? , 9

Answer. No, sir.

Question. You say you have both formed and expressed an opinion in regard to the merits of this controversy °

Answer. Yes, sir.

(Juestion. You have an opinion now ?

Question. With your present opinion and convictions that you now have, would it require testimony to remove them ? Answer. I think it would. M'r Reed submitted to the court that he was not qualified.

by the court : (Juestion. Do you remember who you talked with about it? Answer. One was M'r Evans, one of the jurors, with some tine ago. Question. "How long ago was that? Answer. He was a juror on last trial. (Juestion. When did you bave conversation with him ? Auswer. It was some three weeks ago, I think. Question. Did you and he have a pretty warm discussion upon the subject ? 133 Answer. No, sir. (Juestion. Did vou teel any considerable interest in the matter ? He told me just about the case; what he had found out here. ever talk with any of the officers of either of these

him

Answer. Question. Did you corporations ?

46 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. No, sir; [ domwt know anything about them—don't know either of them.

Question. How long did you and Evans talk about it?

Answer, It must have been about an hour he was telling me about it.

Question. Did you ever talk with any oue else? Answer. Yes, sir: with—no, [ listened to some conversation. Question. Did Mr Evans comment upon the testimony to you? Auswer. No, SIP.

Question. Did he express any opinion to vou as to the credibility of

the withesses ?

Answer. No, Sir.

Question. Would what) M'r Evans stated to vou have any influence upon you if vou are called to sit here as a juror?

Answer. Well, | think it would. 1354 (duestion, You think you would be governed to some extent by What he said?

Answer, He related to me the facet as he considered.

Question. If called here as a juror, would you accept Evans' statement, or endeavor to give a verdict upon the evidence, as stated here ?

Answer. Well, TE would endeavor to do justice to all parties.

(duestion, What is vour understanding in respect to the daty of a yuror called to sit Ina ease ?

Answer, Heads to try it impartially.

Question, Is he to go by the evidence, or by what he heard some one else say outside ?

Answer. By the evidence, certainly.

Question. Do you think that Mr Evans' statement would) balance anything against the evidence in your mind if you came to sit here as aojuror? °

Answer, TE don't know that it would. I. Question. Do you know whether it would or not?

Answer, It has given me some prejudice in the case, of course, hearing lis statement of it.

Question, Some prepadice ?

Answer. Yes, sir.

Question. What do vou mean by that, M'r Perrin ?

Answer, Well, that Twas biased to one side.

(Question. You mean that vou have formed something of an opinion upon that?

Answer. Yes, sir.

Question, Could vou recount the facts as Mr Evans gave them to you now ?

Answer, IT believe T could.

Question. Could you state about what he said to you?

Answer, No: Teould not, the very words, but the substance of it.

Question, The substance of it?

By the court:

Well, P think he is competent,

Here the detendant challenwed the juror, W. Perrin, tor cause. 13 The court denied the challenge, and the detendant then and there excepted to the ruling of the court,

On the trial of this ecause the plaintiff, to maintain the issues on its part, gave in evidence to the jury as t

liist, the deposition Ol George IK. Sabin, which is as follows :

4

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL ClTy. 47 In distr'e: court, 2d judicial district.

TERRITORY OF COLORADO, Coun ty of Jetherson, SS: THE Rocky MOUNTAIN NATIONAL BANK OF Central City, Colorado, sS. THE UNION GoLp- MINING COMPANY, OF COLorade. \

Henry M. Teller, being first duly sworn, deposes and says that he is

one of the attorneys of the above-named Rocky Mountain National Bank

of Central City, Colorado, plaintiff, and that George Kk. Sabin is a miaterial

witness for the said plaintiff on the trial of the above-entitled

137) cause: that George K. Sabin is a resident of the county of Gil-pin

, and that the above-entitled cause is now pending in the county

of Jetterson, and atiiant believes said cause will be tried at the next

November termn of the district court of Jetterson County, and that the

said plaintiff is desirous of taking the deposition of the said George kh.

Sabin, to be read in evidence on the trial of the said cause on the part

of the plaintiff. HENRY M. TELLER.

~ Subscribed and sworn to before me this 20th day of October, A.D. IS73. -

[Notary Seal. Harper M. Orahood,

| Notary Piuhlic.

Filed Oct. 20, 1875.

J. RR. CLEAVELAND, Cleri. TERRITORY OF COLORADO, County of Crilpin, NS:

Whereas The Rocky Mountain National Bank -of Central City, Colorado, has tiled the aftidavit of Henry M. Teller of the pending of a certain stilt in the district court of Jetferson County, Colorado, wherein the

said Rocky Mountain National Bank of Central City, Colorado, 13S are plaintith. and The Union Gold-Mining Company, of Colorado,

is defendant. and by which atlidavit it appears that George hk. Sabin is a material Witness for said plaintiff on the trial of said cause:

Now, therefore, the people of the Territory of Colorado to George kh. Sabin, greeting:

You are hereby commanded that, all business & excuses being laid aside, vou be and appear in your own proper person before the undersigned, clerk of the second judicial district of said Colorado Territory, on the Sist day of October, A. D. 1875, at 9 o'clock a. in., at ny office, in Central Citv, in said Territory, to testify and give evidence in said matter in controversy in said suit now pending and undetermined in said Jetterson County, wherein said Rocky Mountain National Bank of

Central City, Colorado, is plaintiff, and The Uniou Gold-Mining 139 Company, of Colorado, is defendant, according to the best of vour

knowledge, ou the part and behalf of the said plaintiff, and hereof tall not under the penalty of what the law directs.

Given uuderiay band & the seal of the said court of said second ju dietal district this Lerh dia of October. A. DD). 1805.

IBEAL OF THE COURT JOUN R. CLEAVELAND, Clerk.

e°*s >. , ¢ |.» Filed Oct. 20th. IS73.

J. R. CLEAVELAND, Clerk.

48 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

TERRITORY OF COLORADO, Gilpin County, ss: IT have daly served the above writ by reading the same to George Kk. Sabin this 20th day of October, A. D. 1875. | CHARLES STINLE, Sheriff:

Kees: Serwe, 75; milage, 20; return, 75—S81.70.

140° TERRITORY OF COLORADO, Gilpin County, ss:

The deposition of George K. Sabin, of the county of Gilpin, and Territory of Colorado, a witness of lawful age, produced, sworn, and examined upon his corporal oath, on the Sist day of October, A. D. 1873, by Ine. fohin R. Cleaveland, clerk of the district court of the second judiclal district of Colorado, at my office, in Central City, in said county, In Compliance with the subparna hereto attached, to be used in a certain suit and matter in controversy now pending and undetermined in the district court within and for Jefferson County, in the Territory aforesaid, in behalf of the said) plaintiff, in the case of The Rocky Mountain National Bank of Central City, plaintiff, vs. The Union Gold- Mining Company, of Colorado, defendant,

The said GEORGE Kk. SABIN, being first duly sworn by me as a witness In the said cause previous to the commencement of this examina- 141 tion, to testify the truth in relation to the matters in controversy so faras he should be interrogated, testified and deposed as follows: lnterrogatory first. What is your name, age, residence, and oceupation? Answer. George K. Sabin; age, forty-three years; residence, Central

City, and occupation, a miner.

Int. second. How long have you been engaged in mining ?

Answer, Ever since the summer of 1860,

Int. third. Do you know the plaintiff and defendant ?

Answer. I do.

Int. fourth. Tlow long have you known them ?

Answer. [T have known the plaintiff since the organization of the

bank, and the defendant IT have known since April, 1865,

Int. fifth. What business was the defendant engaged in, if any, and where, In S60?

142 Answer, It was engaged in mining, in Gilpin County.

Int. sixth. What time did it commence mining ? Auswer. They commented mining some time in IS64. Int. seventh. Who had charge of the company in the Territory

When they first commented mining ?"

Answer. Col. Mallery.

Int. eighth. How long did he continue in charge of defendant ?

Answer, Till some time in April, 1865,

Int. ninth. In what eapacity did Col. Mallery aet for the detendant ?

Answer, He acted as the agent or superintendant of said company.

Int. tenth. Were you ever in the employ of the detendant ? If so. when did you commence ?

Answer. Twas in the employ of the defendant; commenced in Apri,

S60; am not positive whether April or May; think it was April. 14.5 Int. eleventh. In what capacity were you employed ? Answer, As supermtendent.

7

U. G. M. Go. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 49

Int. twelfth. How long did you continue in the employ of the company as its superintendent ?

Answer. L continued in the employ of the company first until April, Is66; worked the property trom the time of commencing until the fall of 1865; stopped work during winter of 1865, went to New York in March, 1866, and settled with company for salary in April, 1866; remained east until fall of 1866, then returned to Colorado, commenced work last in 1866,and continued until last of December, 1868, or the early part of 1S69.

Int. thirteenth. Who, if any one, did you leave in charge of defend. ant's property when vou went east?

Answer, Johu I. Topping.

Int. tourteenth. How and by whom was John I paid anything, for his services for defendant ?

(Objected to by defendant, because it is irrelevant & Improper, 144 & because it doesn't appear that he knows of the payment of

his own knowledge; that any payment was made.)

Answer, John F. Topping was paid a certified certificate of deposit, placed to his credit by F. A. Potts, treasurer of defendant.

Int. fitteenth. To whom was that certificate delivered ?

(Objected to by defendant, same reasons as before given.)

Answer. It was delivered by M'r Potts to me in New York, and left by mein Chieago with my brother for M'r Topping.

lint. sixteenth. Under whose direction, if any one's, did you leave detendant's property in the charge of John F. Topping when you went east?

Answer. IT was directed by the defendant previous to leaving for the east to leave the property in charge of any one I thought proper.

Int. seventeenth. Who succeeded you in the management of the property of the defendant when you quit in the latter part of 1565 or

first part of 1569? 145 (Objected to by defendant because it is irrelevant.)

Answer. T remained with the property so long as it was being worked. M'r Beeker, president of defendant, was here at the time, but went east the next day after my final release from the company's property. I do not know who he left in charge, if any one.

Int. eighteenth. When was your final release from the company, spoken of in your last answer ?

Answer. I think it was some time in March, 1869; can't fix the date.

Int. nineteenth. In what business was the defendant engaged in from April, 1865, to the fall of 1865?

Answer. Mining,

Int. twentieth. On what lode was the defendant mining?

Answer. Bates lode, Central City, Gilpin County, Colorado Territory.

Int. twenty-first. What business was the defendant engaged in after you commenced work in 1866?

Answer, Mining.

Int. twenty-second. On what lode?

146 Answer Bates lode. Int. twenty-third. How long did the defendant continue to

mine on the Bates lode? Answer. Until December, 1868, or previous to March, 1869. I dont

.

', Topping paid, if

remember the exact time. Int. twenty-fourth. What was the character of the work done by detendant during that time? hkEc. low—4

50 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. Taking ore from the mine and milling the same.

Int. twenty-fifth. In what capacity were you employed by the defend ant during that time ?

Answer. IT have always claimed to have been acting as its superintendant, taking charge of its mine and its mill.

(Answer objected to by defendant, because it Is not responsive to the question.)

Int. twenty-sixth. Who was superintendent in Colorado of the detend ant in-the years 1867 & 15687

(Objected to by defendant, because the same question substantially

has just been asked, & the witness has answered the question as 147) asked in his own way, & because it is irrelevant and improper.)

Answer. As I stated above,in substanec, I claimed to have been and acted in that capacity of superintendent.

lit. twenty-seventh. What were your duties while employed by defendant ?

(Objected to by defendant, because it answers that he was employed ina particular capacity ; the evidence does not show that he was em.- ployed imnany particular capacity, and because it Is irrelevant.)

Answer, Totake charge of their mine and work under their directions

Int. twenty-eighth. What salary, if any, was paid vou by defendant ?

(Objected to by defendant because it Is irrelevant.)

Answer. [| was paid thirty-five hundred dollars a year when actually working.

Int. twenty-ninth. Up to what time was that salary paid you ?

(Objected to by defendant because it is irrelevant.)

Answer, From the time of commencing work in the spring of

148) 1865, during the active working of the mine, until the work was

stopped in the fall of 1865, and trom that time to April, 1866, at

the rateot one hundred dollars per month: received nothing during 1866,

While absent. When I resumed work in November or December, 1866,

and during the active working of 1867 and S68, I charged the same Salary as at first stated.

Int. thirtieth. Who was president of defendant in 1867, 1868, & 1860?

Answer. Theodore Hl. Beeker.

Int. thirty-first. Did you have any settlement with the defendant through Theodore H. Becker, as president, in Mareh, 1860?

Answer, | did.

Int. thirty-second. Was anything paid you at that time on account ot Salary ?

(Objected to by defendant because it is irrelevant and improper. ) Li Answer, Twas paid balance due at the time of settlement, in

March, 186093 part was on account of salary and part on some thing else.

Int. thirty third. What other account was included in that settlement besides the salary ?

Answer. Rent of an engine used tor hoisting on the mine.

Int. thirty-tourth. Where did the settlement take place, and who Was present?

(Objected to by defendant as betore.

Answer. In the Rocky Mountain National Bank. and IT think M'r Porter and Mr Goodspeed were present.

Int. thirty fifth. Did the defendant have an oflice in Central City in Sod, while Matlery was supermtendent 2?) Tiso, where?

} an . é ie ' eer Pendant obeets, ayer aise Irrelevant

a.

4

ae.

4

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 5

Answer. He did; lis office was on Lawrence street.

Int. thirty-sixth. Did Col. Matlery oecupy that otlice ?

(Detendants objects because irrelevant, and because it is a leading

(QuesTION. } }50 Answer. He did. Int. thirtv-seventh. Who oecupied the office in 1565, after you

took charge of the property of detendant ?

Answer. TI did.

Int. thirtyv-eighth. Who occupied the office in 1s66, after you resumed work on the property of the defendant?

Answer, | occupied it.

Int. thirtv-ninth. Up to what time did you occupy it?

Answer. During the vears 1864 & 186s.

fut. tortieth. Was there anything on or about the building to indicate Whose office it was?

Answer. A sign was on the building, * Oltice of the Union Gold-Min. Ing Company."

Int. forty-tirst. Whereabouts on the building was the sign ?

Answer. On the tront of the building, on the left hand of the door.

Int. fortyv-second. Who occupied the building in the summer of 1864

and up to the spring of 1860?

Auswer. Col. Mallery occupied the building in the spring of 1865, 15] Int. forty-third. In what name was the business of this defendant carried on in Gilpin County while you were in the employ of the detendant ? Answer, In the name of the Union Gold-Mining Company. Int. fortyv-fourth. How long did this sign belonging to the office of the

company remain there ! Answer. | don't know. ' Int. forty-tifth. Was it there while you occupied the office ? Answer, It was. Int. forty-sixth. Were any books of account Kept by the defendant In Central Citv while you were in the employ of the defendant ? Answer. There was. Int. tortyv-seventh. Who had these books in charge ? Answer. [ had them in charge a portion of the tine. They were kept In the Roeky Mountain National Bank a portion of the time, but they were ln omy charge all the time. fut. tortv-eighth. Who made the entries in these books ? 152 Answer. Col. Joshua H. Gest made them in 1865. Frank Mes singer kept them awhile, the exact date I cannot state; I think

if was in Lsee. Mer Goodspeed kept them a portion of the year 1867 &

LS6s. lut. fortyv-ninth. Whe was president of the defendant in the fall of 1S66?

Answer. Samuel Bonell.

Jnt. tittierh. Who was president in 1867?

Auswer. | was informed that M'r Becker was elected president in April, 186%.

Int. fitty-tirst. How did you derive vour information ?

Defendants objects, because it was hearsay evidence, and had no kpowledge of the tacts. Exeeptions sustaiedt,

Answer, Evia letter received from Fr. A. Potts. While you were in the employ of the defendant,

o2 U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

were you in correspondence with any of the officers of the defendant? It so, state who. | Answer. In 1865 | corresponded with M'r Croswell, president, 153 M'r Potts, treasurer. In 1867 & 1868 was in correspondence with T. Hl. Becker, president; but have had no correspondence with any other officer or member of the company since about the time of the election of M'r Becker as president in S67.

Int. fifty-third. Why did you correspond with Mr Becker after he was elected president of the company ?

Answer. Since iy first acquaintance with M'r Becker IT have corresponded with him, During his absence from here, having had charge ot a portion of his property, it devolved upon me to keep him informed in relation to the property left in my care.

int. titty-fourth. Why did you correspond with Mr Beeker and not with any of the other officers of the Company after his election as president in 1S67?

Answer. Inomy letter from Mr Potts informing me ot Mr Becker's

election he stated in the future M'r Beeker would conduct the 154 correspondence.

Int. fitty-fifth. Did you receive any letters concerning the property of the defendant and the mining being carried on by the defendant from Mr Becker after he was elected president ?

Auswer. | did.

Int. fittyv-sixth. How frequently did vou receive such letters ?

Auswer. Sometimes three or tour in a month, and sometimes would not get any for two or three months.

Int. fifty-seventh. Was Mr Becker here at any time after he was elected president during the year 1367 & 1865?

Auswer, Tle was.

[nt. fittv-eighth. How often was he here during that time, and how long did he remain each time ?

Answer. He was here in May, 1867, and remained until June. He was back here again in December, same year; went Kast in January.

1865; came back in October, LS68 5 and went East in March, 1860, Loo Int. fifty-ninth. During the time when he was here was he ever present at the mine worked by the defendant; if so, how often ?

Answer. He was at the mine frequently.

Int. sixtieth. While Mr Beeker was here, during the vears 1867 & 1S6s, did he visit the office of the defendant in Central City ; if so, how often?

Answer. He did quite frequently.

Int. sixty-first. For what purpose did you oeeupy this office of defendant?

Auswer. IT occupied it fora business office. I did the business for the company there; also my own business.

Int. sixty-second, What business did you transact there for the defendant ?

Answer, All of the company's office business, such as paying workmen and taking their receipts.

Int. sixty-third. In what names were the accounts of the workman kept?

(Detendant objected because it is not the best evidence. Exception sustained. )

Answer, [nthe name of the Union Gold-Mining Company,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 53

156 Int. sixtv-fourth. On whose account were these workman paid and by whom were they employed?

Answer. They were paid on the account of the Union Gold-Mining Company, and were employed by the same company.

Int. sixty fifth. What business were they employed in?

Answer. Some of the men were employed at the mine and others at the mill.

Jit. sixty-sixth. What was done with the ore mined from the mine?

Answer. The first class or smelting ore was sold to Mr. Hayes for a few weeks atter first starting up, afterwards it was piled up in the shaft-house at the mine; the second-class, or mill ore, was crushed in the Stamp-mills,

lit. sixty seventh. What amount of first-class ore was piled up in the shaft-house at the mine January Ist, 1860?

Answer. T think our estimate was four hundred tons. los Int. sixty-eighth. What was the value of that first-class ore per ton?

(Detendant objects because it is irrelevant, and there is no foundation laid to show that he knew the value of it.)

Answer. My estimate ot the value was based upon assays made, ranging trom *40.00 to 600.00 per ton; said assays were made trom samples selected trom the pile at random. The average value I will eall =100.00 per ton.

Int. sixty-ninth. Are you familiar with that kind of ore and its value ?

Auswer, [am more or less familiar with this class ot ore, but its value can only be ascertained by assay trom samples regularly taken.

nt. seventieth. When you quit work in December, 1868, from the mine of the detendant, was there any ore broken and left in the mine ? If so. how much ?

Answer. There was—our estimate of amount was about seventy-five

cords, to my best recollection. 15s Int. seventy-first. About how many tons would there be? (Detendant objects.)

Answer. Four hundred and fifty (450) tons.

Int. seventy-second, What was done with the proceeds of the ore sold to Haves and mill-ore ?

Answer. The proceeds of the ore sold to Haves was applied tothe general mining expenses. Gold trom mill-ore was sold to Rocky Mountain National Bank, plaintiff, and proceeds trom the sale of said gold was used in paying the general expenses of mining, hauling, and milling said ore.

Int. seventy-third. After vou resumed work for the defendant, did you do any business with the plaintiff in the name and on account of the defendant ?

Answer, I did.

Int. seventy-tourth. When did you commence doing such business with the plamtitt?

Answer. March 6, 1367. 150 [nt. seventy-fifth. What was the nature of that business and how was it commenced ? Answer. Opened an account by a deposit of four hundred and forty-

54. U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. three & (79, doilars with the plaintiff: the nature of the biasiness was in selling gold and checking against the proceeds.

Int. seventy-sixth. fn whose name was the proceeds of gold so placed ?

Answer. Inthe name of the Union Gold-Mining Company, the defendant,

Int. seventy-seventh. [mn whose name were these cli: s drawn!

Answer. Inthe name of the Union Gold-Mining Company; they srgned 'inion Gold-Mitnmye Company," hy Creo. Ky. Sabin, agent Int. seventy-elrghth. Tow done did you continue to do business in that

way in the name of the delendaut with the plarmtin

Answer. Until the end of December, 156s,

Int. seventy-ninth. How did you pay the nen employed on the defend.

ant's mine ? 160 I paid them through the foreman; gave him cheek on bank tor the amount due the men and took his receipt theretor.

Int. eightieth. Did you have any hauling ore down om account of defendant ?

Int. eighty first. Where was the ore hauled from ?

Answer. From the mine.

fut. eighty-second. Llow did you pay for said hauling ?

Auswer. In the same manneras [ paid all other bills, by giving cheeks on the bank of plaintiff, signed in the name of defendant, by myself, agent. |

Int. eighty-third. Did you while in the employ of the defendant pai chase any supplies to be used in the carrying on the business of the defendani? It so, state what kind of supplies, how they were bought and paid for.

Answer. I purchased wood, timber, lumber, powder, fuse, steel,

16] candles, oil for lamps in the mill and machinery, quiekstiver, &c.

I paid all bills at the end of each month in the same Inanter as above stated, with checks.

Int. eighty-fourth. In whose name were those bills made ?

Answer. Inthe name of the Union Gold Mining Company.

Int. eighty-fifth. OF whom were these supplies purchased ?

Auswer. Rowarth & Co., Treas. Tappan, Hanchett & Sehram, Clapp, Rkaynolds, Newell, and others.

— Int. eighty-sixth. How long did you continue to buy supplies in that way?

Answer. As long as T remained in tull charge of the property.

Int. eighty-seventh. How was the hoisting done at the mine?

Answer. The ore was raised trom the mine with an engine.

Int. eightyv-eighth. Whose engine was it?

(Detendant oljeets.) 162 Answer. A portion of the time with an engine belonging to the Union Gold- Mining Company, and a portion of the time with an engine belonging to mvself. Int. eighty-ninth. When was vour engine put in the mine? (Defendants objects.)

4e>

U. G. M. Co. VS. KOCKY Mf. NAT. BK. OF CENTRAL CITY. 55

Answer. October 15th, 1867. '

Lut. niuetieth. Did you kuow of any indebtedness from the defendant to the plaintiff during the year 1867 or 1868?

Answer. I did, during Ls6s.

fut. ninety-first. State how such debt was created ?

Answer. By my drawing cheeks on the plaintiffin the name of the detendant, when detendant had no money there and plaintiff paying the same.

lint. ninety-second. For what purpose were these checks drawn ?

'Detendant otyects

Answer, Por earrying on a general business of mining and milling of

the defendant. 165 lit. ninety-third. When was this indebtedness commenced ? ,

Answer. After April Ist, LS6s.

Int. ninety-fourth. Had there been any indebtedness from the defend. ant to plaintiff previous to April, L868; if so, state when and how it was made ?

Answer. I think there was a small indebtedness some time in 1867, and was made in the same manner as above described.

Int. ninety-fifth. For what purpose was that indebtedness made ?

Answer. For the same purpose as described above, for carrying on the works of the company.

Int. ninety-sixth. Was that indebtedness paid; if so, how was it paid?

Answer. It was paid from the proceeds of the mine.

Int. ninetyv-seventh. Was there anv indebtedness of the defendant to

the plaintiff in September, 18682?) [If so, state what amount. lot (Detendant objects.)

Auswer. There was an indebtedness ; don't remember the exact amount,

Int. ninety-eighth. Was there any indebtedness of the defendant to the plaintiff at the first of October? If so, state the amount.

Ans. There was; bat T domwt remember the amount.

fut. ninety-ninth. Was this indebtedness increased or decreased in November or December, 15608, & if so, which?

Answer. It was both inereased and deereased during that time.

Int. one hundredth. Explain what you mean by stating it was both increased and decreased during that time ?

Answer. Inereased by greater overdraughts and decreased by payments. .

Int. one hundred & first. What was the total indebtedness of the detendant to the plaintiffin December, 1563 °

Lin Auswer. A little over twenty-three thousand dollars.

Int. one hundred and second. Did you ever notify M'r Becker, the president of the defendant, that the defendant was in debt, incurred in Carrying on its business of mining and milling; if so, when?

56 (. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. I told Mjr Becker, on his return about the first of October, we were overdrawn at the bank.

Int. one hundred and third. Had you received) any communications from M'r Becker concerning the indebtedness of the defendant previous to the first of October, 1568?

Answer. | had received some letters concerning the defendant' affairs and pertaining to its indebtedness.

Int. one hundred and fourth. What disposition was made of 166 these cheeks spoken of by you as made by the defendant on the plaimtifl?

Auswer. A portion was) returned to me, and a portion was kept D4 the bank; some of the last ones were kept.

Int. one hundred and fifth. Did you ever examine these checks after they were paid by the plaintiff?

Answer, | did.

Int. one hundred and sixth. When you gave checks on the plaintiti on account of defendant, did you take any receipt from the parties to Whom the checks were given ?

Answer. | did.

Int. one hundred and seventh. Have you any of these receipts now If so, produce one or more,

Answer. | have them in my possession; but [am unwilling to part

with them, as they are my yvoachers. 16% jut. one hundred and eighth. Will you produce a copy of one of those receipts ?

Answer. | have no objection to giving a copy.

Int. one hundred and ninth. Produce a copy.

Defendant objects to introducing of copy: First, there has been neo proper toundation laid for the introduction of a copy ; second, the original is not competent testimony.

Answer. A copy was produced as follows:

No. 56.

;

OFFICE OF UNION GOLD-MINING COMPANY, Central City, December 24, 156s. Received of Union Gold-Mining Company two hundred fifty dollars. S?OOLO0, J. M. RANK, (Exeeption sustained.) Int. one hundred and nine and one-half. Is that a copy of a receipt how 1h Vour possession ? Answer, It Is. (exception sustained. ) Int. one hundred and nine and three-torths. Will you produce the original of which this is a copy ? Answer, [ decline to do it. (Exeeption sustained.) 16s Qne hundred and tenth. In whose name was these receipts taken?

&&

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 57

(Detendant objects. Exeeption sustained.)

Answer. Union Gold-Mining Company, detendant.

Int. one hundred and eleventh. When M'r Beeker came here in October, 1868, what was defendant doing?

Answer. Mining and milling ore taken from the mine.

Int. one hundred and tweltth. How long did the defendant continue

,

to mine and mill ore:

Answer. Through the balance of the vear.

Int. one hundred and thirteenth. How much ore was milled after Becker came here in October, 1s00?

Answer. I dont know.

Int. one hundred and tourteenth. Did you continue to mill ore all the time after Becker came here in October, 186s, until the end of the year?

Answer. Did not run mill all the time.

Int. one hundred and fifteenth. Did you run all the mill-ore 169 = broken in the mine after Becker came here in October 1568 ? (Defendant objects. )

Answer. I did not.

Int. one hundred and sixteenth. What was the character of the seventy-five cords of ore you have testified was broken and left in the mine?

Answer. The ore was hot sorted; it so contained both smelting and mill-ore.

Int. one hundred and seventeenth. Hlow many men was the defendant working October, 1563?

Answer. Probably trom fifteen to twenty at the mine.

Int. one hundred and eighteenth. How many in all?

Answer. Probably from twenty-five to twenty-eight; the positive number I cannot state.

Int. one hundred and nineteenth. Was this force inereased or decreased

after Mr. Becker came here in 1868; if so, which ? 1c0 (Defendant objects. ) Answer. [| don't remember whether it was increased or decreased, or either.

Int. one hundred twentieth. Was Mr. Becker about the mine after he came here in October, 1868, and betore the middle of December, 1863; if so, how frequently ?

Answer. Mr. Becker spent most of his time at the mill; cannot tell Whether he was at the mine or not, but presume he was.

Int. one hundred and twenty-first. How far is the mill spoken of from the mine?

Answer. From a quarter to one half of a mile.

Int. one hundred and twenty-second. Ilow far was the office of the defendant trom the mine?

Answer, About one-half a mile.

5X U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

fni. one hundred and twenty third. Tiave you the books of thedefenudant, kept while you were in its employ, in vour possession ? 17) Answer. [ have not. Int. one hundred and twenty-fourth. Who has, then ? Auswer, [ dowt know. Int. one hundred and twenty-tifth \Woll vou state what was the

method of making entries in the books of the defendant while im the employ of the defendant, or having then made ?

Answer, I rave the amount tor entre oli the books from the youchers

Pint. one buandred and twenty-sixth .t0er-tn uthies were made on the books, who took coarge of the vouchers /

Answer, -T did.

Int. one hundred and twenty seventh. Were these books and vouchers ever examined by any officer of defendant; it so, by whom and where ?

Answer. | do not think any officer or member of the defendant ever examined the books after Goodspeed kept them; think my vouchers

were examined by Mr Beeker some time between the first) of Lye November, 186s, and first of March, [PS600. Int. one hundred and twenty-eighth. Did any one assist Mr Becker in the examination of the vouchers ?

Answer. | think there was a man with hint; T never was present.

Int. one hundred and twenty-ninth. At any time after the middle of December, Ts0s, was there any arrangement made by vou with the plaintiff to open a new account on the part of the detendant 2? Lf so, state What such arrangement was.

Answer. In Deeember, 1868, [ made an arrangement with Mr CC. B. hountze, on the part of the plaintiff, to open a new account > Was to cheek against de new account for current expenses of mining and mull ingeat theend of each month, after paving the current expenses; wilrat ever surplus was rematning | agreed to pelea eto the credit ot the old

account, im accordance with this new arrangement. DT opened a La new account the next dav, after having made the arrangement

by depositing some money; drew three cheeks against the same ; two of these were rejected, and one was paid,

Int. one handred and thirtieth. Where was this arrangement niade ?

Answer, [nthe room adjoining the bank of plarutift,

Int. one hundred and thirty-iirst. Who was present at the time of making that arrangement

Auswer, Mr Beeker.,

Int. one hundred and thirty second. In whose mame was this new account made ? 7

Answer, In the name of the detendant.

Int. one hundred and thirty-third. What disposition was made ot the balance of the deposit after paving the cheek you say was paid?

Defendant objects. exception sustatned,

Answer, T suppose it was plaeed to the credit of the old aeeount.

(Exception sustained, ) Int. one hundred and thirty-toeurth. What was the amount of that

credit ?

U. G. M. COU. Vs. ROCKY MI. NAT. BK. OF CENTRAL CITY. 5

o>

: (Defendant objects. Exeeption sustained.) It was about twenty-two hundred dollars. (exception sustained. | Int. one handred aud thirty-fifth. Do you Know the handwriting of Mr Becker?

Answer. | do.

Int. one hundred and thirtyv-sixth. Tlave you seen im write?

Auswer. | have

lit. one hundred and thirtyv-seventh. [lave vou received letters fram Letina 2

Answer. T have.

Int. one hundred and thirty-eighth. Loak at these several letters now handed vou, aud state tu Wirose handwriting they are.

Defendant objects, first, it is uot a proper manner of identifying. )

Answer. They are in the handwriting of M'r Beeker.

Int. one hundred and thirty muth. In whose handwriting is the signature to these several letters?

Answer. M'r Becker.

Int. one hundred and tortieth. To whom are these letters directed

? 175 (Defendants objects, because there are no envelopes and nothing to show to whom they are directed. )

Answer. Addressed to me.

Int. one hundred and forty-first. Have vou ever seen those letters before: if so. when ?

Answer. T have seen them several times; [have seen them in court,

Int. one hundred and forty-second. Were they received by you; If Sf, bays ,

Defendant Ob eets. |

Answer, They were, either through the mail or by express.

Int. one hundred and tortw-third. Are there any marks on these letters by which vou can describe them? [If so, state what they are.

AsSwer. There ATC marks: one marked letter icy." dated April Moth. IS6S: one marked letter «BO dated May 17, 1868; one marked letter

OS dated April T5th. 68; one marked letter "FL" dated April 1760 Sth. TS6S: one marked letter *"*G." dated Mar. 29, 1868; one

marked letter "EO dated February 9 1868: one letter marked letter 1." dated May 2th, seg. There are seven letters in all referred to.

Int. one hundred and forty-fourth. Hand the several letters last mentioned by you to the clerk, M'r Cleaveland, now engaged in taking this deposition, to be attached to vour deposition,

(Detendant objects: Ist, object to letter marked "A" because it Is no part of the res gesta; Jnd, it is written on a subject entirely foreign to the one in controversy, and in no manner relates to any transactions between plaintiff and defendant: 3d, it is nota full letter, and no sig nature, but only a part ot a letter; 4th, because it was written before there was any debt contracted with the plaimtiff.

Object to letter marked °° B.° Ist, because tt is not a full letter, lis but only a part: 2nd, no part of the res gesta; does not relate to the matter in COnTPOVeTSY.,

Object to letter marked = € the same objections as to letter A, with

the exception of the want of a signature. Objections to letter marked

60 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

"r" that it is no part of the res gesta; that it does not relate to the dealings of plaintiff, and is written upon a subject entirely foreign to the matter in controversy ; It Was written before there was any debt contracted with plaintiff,

Objects to letter marked " G;" same special objections as to letter & FL"

Objects to letter marked "1H," that is it only a tragment of a letter; it bears no signature, is no part of the res gesta, and does not relate to the matter in controversy nor to any dealings with the plamtuf.

Object to letter marked ".J.° that it was written nearly a year betore there was any debt due the plaintiff; that it is no part of the res gesta, but written on private matters entirely disconnected with the matter in

controversy. las To all of them except letter C, that they are not olieral but private letters. Toallot them, that they were not written to plamitit, and it has not been shown that plaintiff knew of their existence until long after its transactions with the witness Sabin. To all of them, that they are not competent evidence for any purpose in this suit.)

A.— A, R. Cleaveland, clerk.

ASTOR Housk, NEW YorRK, April 15, 186s.

Kremd SABIN: The tinance committee of our board decided to-day to authorize you to employ att'ys and defend ovr company in the suit began by the Rocky Mountain Company; so please see Messrs Royle & Butler, and ask them what their fees will be and retain them. Tell them that I have suggested that in answer we should deny that they, plaintiff, own any property whatever on the Bates lode.

You will see trom the abstraet that M'r Sayr will make for you

179 what kind of title they have. Tell Mess'rs Roy] & Butler that

you are and will be a witness in the case, & that you do not wish

to give bonds or go security, so that you will be compromised as a

Witness, State to them all the facts; that IT ean claim and hold all of

claim No. 5 on the Bates; that [have owned, held, claimed, and worked

it ever since July & December, L860, & pertected my last title to the last

40 feet only last tall; that IT worked it in) 1560, IS61, 1862, 1505, 1564,

IS65, 1866, 1867, & Ts6s. TL have bills, receipts, & will produce witnesses to prove all I say.

Tell them, while you are the authorized agent of the U. G. M. Co., you do not nor have not worked No.3 for said company, but, as George K. Sabin, you have worked the property tor T. H. Beeker, the only owner and Jegal claimant; that 1, T. HW. Becker, employed you to work said No. 3; that the Union Company does not now own it nor never did, and further, that I, T. Hl. Beeker, does hereby authorize and employ you to hold and claim and work the same for him, and if anybody is dissatisfied

, or has better claims, all they have to do is to get out an Is) injunetion and stop the work. But if this is done be sure to have

them give good approved security, as [T propose to test this matter with my bottom dollar. Have Mr Hal. Sayr survey the 500 feet on the surface, and if the 500 teet comes up the shaft that was tilled with teilings, don't let anybody work on any part of the 500 feet: remember, 300 teet, horizontal measure.

[am glad that this suit was brought: hope thev won't withdraw it. It's high time we all know how much we all bad. All T want is my own; and if any one ean show a better title than Lean, I assure vou T will give it up without a word and pay all costs. * Render unto Cesar that

I. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 61

which is Cesar's," and 'Do unto others as vou would have others do unto you," TI adopt as my will. These rules were good centuries ago, are good to-day, and will be ad 'finitum.

Follow all the instructions of vour attorneys, Mess'rs Royle & Butler, It may be best that | should join the U. G. M. Co. in defence, but

any way retain Rovle & Butler for the detence of all our rights Is] to that 300 feet. horizontal measure; that willcoveritall Retain

them to detend the title to the whole 500 feet. I see that M'r Willard Teller swears to the suit; that was done to keep Col. Lannont as a Witness. Let Rovle & Butler swear to the answer, so you can act as a witness. Tell them you domt own one dollar ot the U.G. M. Co. stock, and that vou have not a dollar of interest in the with me. So you see Vou are a Witness,

Besides this, the Union Company does not elevate the ore; its vour engine & elevators; explain it all just as it is. | would come out at once, but you know Tam to' busy about that Albany matter. Continue to work No.5 and report progress, I LSUeSS Col. L. cant prove the U. Gr. M. Co. ever paid tor or worked or removed anything out of No.5. I wonder that he ever permitted himself to be induced to commence so fatal a suit. | thought him too sharp tor that.

Explain all to the lawyers. Mr. Butler is aM. M. Make a tirm bargain with the lawvers about the fees. It may be best for them to answer

aud get it continued until bean come out. [simply suggest this; Is? they will know the best and will use their judgment about it.

Keep the Rocky Mountain Co. abstract to show Mess' Rovle & Butler what title they have. J will send our abstract from here: [ had one made before [ lett.

Se

Bb.—J. R. Cleaveland, clerk.

ASTOR Housk, NEW YorRK, May 17, 1568.

FRIEND SABIN: IT wrote vou a tew days ago, saving that the legisla. ture had adjourned & all was right in that quarters. This week I clear my matters here, & then Twill be in tor a week or so, getting my matters arranged there. Then I will go by my old K'y home & come out to Colorado.

[ hope vou have the big stamp up by this time and the pans (). I do hope you will give Elliot a job: ask bim what he ean do, what he wants to do, what he will do, and give him what he wants, so as to have him at something. I can hardly describe how I felt when you wrote me you were getting behindhand. I honestly & candidly believe on our

success depends the success of Colorado. 1s35 It we go behindhand, then there is no use of trying. If the best

superintendant, with the best mill & men & the best mine in Colorado, can't pay expenses, then truly Colorado is a humbug. There must be an end of this, and the sooner we see it and prepare for it the better. Let's look this matter square in the face. Is there no way to curtail?) Is the priee of hauling to the low-water mark? Is the price of powder at the lowest figures? Is the price of men at the lowest figures? Is there no way of running the mill faster, or at less expense ?

If you have tried. and there is no way to render expenses below the

62 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

vield, then stop at once. Why ran in debt?) This is serious. It must come. Why wait? It's plain enough. Do think of this seriously, and make up your mind and write me fully what your views are & let's be prompt with each other. Probably, if we shut down, oar men tmnay look around for a better place, and probably they will find it; and when pro. Vision gets cheaper, and powder vets cheaper, & all gets cheaper, & more gold grows in the mine, then we can start up again, 1S4 Figure this all ap and write me what you think, and discharge afew menu every week, so as to Come down easy, if you cant make it pay.

Friend Sabin, it must come to this, and we must do it in self-defence. Remember our characters as business men prefer this course. Tf we fall Colorado goes up, dead sure. Because anybody will say, if the best manager, best mill, and best men won't pay, who will trust Colorado ? Leeho says, who ?

Hoping you will begin at once to curtail, get out of debt, T close as ever yours,

O'b't s'v't. T. H. BECKER.

Dont fail to ask Mr. Elliot to tell you what he wants to do, what he ean do; and give hima job & pay lim every week. We need him & John for future operations,

J. R. Cleaveland, clerk.

OFFICE OF THE UNION GoLD-MINING Co.,, Vo. 100 Broadway, Neve york. Apra 13th. OS.

GEORGE K. SABLIN, Esq.,

Superintendent of Union Gold Mining Company

of Colorado, at Central City, Colorado :

Ls) DEAR Str: You are hereby authorized to retain the services ot

some good attorney to answer and detend in the cause wherein the Rocky Mountain Gold-Mining Company appear as plamtiff, and the Union Company as detendant. If Messrs Bovle & Butler are not already retained it is suggested that you give them the preterenee.

Very respectt., your ob't svt,

T. H. BECKER, President UU. G. AM. Co.

i al I. Cleave land, clerk

ALBANY, NEW YORK, Wednesday, Apra Sth. "OS. PRIEND SABIN: Our election came off on the 6th, and resulted in the unanimous election of the old board on the 7th, (yesterday.) The old board met and re-eleeted the same officers—T. Hl. Beeker, pres. ; Ja's M. Mann, v. pres.; F. A. Potts, treasurer; J. Tl. Motser, see't'yv.

Iam here to-day to deteat WLW. Wright's bill. Heseeing this Is6— tinally consented to withdraw it, and we have just had a meeting,

the judienry committee, and ordered its withdrawal; sod 7 hope vou will put the stamps up as soon as possible so as TO sdVe as many hands as possible, Be sure and save all the tarthings, & try the pans,

and vive Elliot a job & pay Elhot every week. Tle is dead broke and |

need hum,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 6¢

1 will come ont as soon as I ean, but you know I must fix my matters (at Washington, you understand) before Lecome. But don't mention my trip there. To will send you the belt next week by express. [I will call a meeting of the board on Monday next and give you full instructions about the suit. Glad they begun it as they did. Will see how they will take the joke betore they get done.

Sorry such a gentleman as Col. Lannant did not look before he leaped. I guess he will tind out his mistake when he investigates the matter thoroughly. But tine will tell. We propose to defend. IT will write

vou the tall determination and decision of the board. Please yo Isi-otto Hal Sayr and have him send me an abstract of the Rocky

Mountain Co, title to their claims on the Bates, also a copy of any leases or mortgages on the records against the Roeky Mountain Co., as Tunderstand their property is all mortgaged. Hurry itup; we want to fo get oin an answer betore the May term.

Remember me kindly to all the men at the mill, mine, and M'r Daws, Thompson, Rank, Graham, and [ wish you would write me promptly how much you can save per week over and above all expenses, if any. Is it possible to save up enough to open the co. claims on the Hunter or Bates?) Caleulate closely, and use every economy, and try and see What vou can do towards saving up, so We can open another mine.

Wiite often, and except my Kindest regards for yourself.

Yours, truly, T. HW. BECKER.

Direct T. PH. Beeker, care of Astor House, New York.

]ss J. RR. Cleveland, clerk. NEW Yor«K, Jareh 20, 1568,

PRIEND SABIN: T lave just heard that our friend W.W. Wright have had introduced a bill in the New York legislature to allow the Union G Mining ('o. to so amend their charter so as to allow the manority stock holders a voice in their board of trustees, and that he has sent a force of Ins to Colorado to take possession of the Union co, property in case he gets this bill passed.

Now, by g——, this isretreshingly cool. Twillsee this jalorky danrd first; so hold vour grip. [ propose to fight it out on this or any ine. I don't hnow this word tail; so defy any one, all, and hold) your grip. I hope vou will first of all not go into debt, and that vou will put up our big stamps at onee, and bay two (Bartoles) and set them up up stairs In the mill, and try our Blanklings—give them a fair trial—and give

KMihiot a place and a salary and pay himevery week. Put him on Iso) oo any light work that he can stand easy; so give Elliot a job and

pay him every week. Thave just received your two letters in are about the one ton a day. M'r Kip came yesterday and says he has a letter for me trom you; he will get it for me to-morrow.

yours,

ASTOR HLOUSE, NEW YorRK. July Wh, 1s.

FRIEND SABIN: Ono omy arrival here | tound and paid the (Kountze

—

Ml OUSITNGSS, pain now back avaln, and found —— p nt $ } ] . a , ieee en 17

b th Vour notes anid bib Piphade. L alo neve VOu next Willi Say ali Clie

64 U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY.

debts are paid; that is of the first importance. I found all our people well posted in our proceedings through M'r Hays and others. One of the consolidating Gregory men called to see me yesterday, and made particular enquiry about Colorado matters.

Colorado matters stand d—d low here, and the Coloradians don't

stand much better. Grasshoppers flints and State-gas Is) too 190) transparent. Stockholders want gold; that's what they © went

for,' not grasshopper tlints nor States. Throw on afew cardsout of the old "deck" of Coloradians left here. but they all seem to be engaged in *shewing" some other " matter." M'r Lyon seems to be the * livest man" of all the party. Tle has two "big things" on hand—Nevada Rose River County." and the other in ** Carolina."

There is plenty of money here for city movements, but none for grasshoppers and flood countries. Our plan is the only true, strart-forward mining plan, and will pay all around honestly and squarely. So do cet out of debt. You know it is a terible sacrifice to hire outside mills and loose all the tailings and blanketing, inthe dead of winter, to pay a debt for the hire of men who domwt care a dan' for you only for the money they vet. We will loose tilly $50,000 worth of ore to pay this debt. But pay it: and then, if our mill won't pay expenses, shut down and

discharge each and all: ves, every man. But pay the debt first, 19] and then make up your mind to make our mill keep you out of debt; and ifat don't, be firm: and close up.

Although we have the best mine in Colorado, we can't afford to saerifice every cent to retain them. Remember we have trom 2O to 50 men, who receive trom S100 to S200 per month, and that | have worked body and mind for vears to accomplish this, and that [ have uot vet received one dollar tor myself. True, the mine is opened, looks well, and prom: ises well, but if my energies or health should tail, or if LT should die, Where would all my labors be ?

lam greived and perplexed to think such is the case, but it is too trae to be hid; but it is never too late to alter, amend, and improve. So let's you and | begin to look matters squarely in the face, and begin to work a little half by for ourselves. So, firstly, let's get out of debt, and then add just such improvements to ourown mill as will enable it to pay all expenses within itself and a little for us. I believe you collected all that was colleeted from Mess'rs Melntire and Conley, and used it paying

debts contracted for fixing mill. After all was done I got 192 eight (8) dollars from MelIntire; that is all [ ever had from Col

orado, except the sale, and lave paid thousands for my own expenses,

[ simply mention these facts for fear, in case T was indicated for lunacy, you might appear and give evidence that IT was sane on this point, and to show | had honestly and willingly put in years of time and labor and thousands of dollars, and so tar had only got 8 dollars in real money.

Now tor the moral: let's get out of debt, and if we can't make our own mill pay allexpenses and a little for us, me two, let's shut her down. Then it might oeceur that by certain curtailments of expenses and certain economical improvements in labor-saving machines, we might keep out of debt, pay owners as well as hands, and keep a treasury ahead.

[ tind it will take several weeks to accomplish the object of my visit here, as both of men are hard up and eant get away just now.

I never saw New York so dead: [ never saw or heard of so many people out of employment; [ never saw money so search; 1 never saw Colorado and mining enterprises so dead.

Ul. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL clTy. 65

So now, friend Sabin, the storm is almost onus; furl vour sails;

193 =) ottell your sailors to stand firm; discharge all unnecessary men,

and read the law to the remainder, and we will stand any storm

that comes. The captain is here at his post and will see her threngh.

I do hope your next will say Lam out of debt. Then curtail, retrench, retrain.

I will send you the plan tor the big stamps ina few days. It is the thing: has worked well: ran for 10 years without repairs. Tell Mr Dans IT will see Mr G. and get lis papers just so soon as M'r S, returns to the city.

Remember me kindly to allour men, and ercept tor vourself the kindest regards of your ob t svt.

T. Hi. BECKER,

I am now here on the soil, and will forward matters to Denver at once, See Tenry Clements and tell him to work upthat Hall matter for he. you, and I.) Keep me posted, so Lean get prepared to advance the money,

J—J. lt. Cleaveland, clerk. P ST Lots, May 12th, 1S6s,

hRIEND SABIN: IT wrote vou two most important letters in February, last week. one in regard to my taxes, urging you to pay them at once, and the other requesting vou to quit all business and buy some 14 stock Ima certain concern, As | never had a reply, I concluded some busvbody had interrupted both letters and that vou did not either; and so concluding, I teard to write again, for fear of a sim- Hariishap. This is the reason of my long silence. how expeet to be in Central City within 10 days; but before | get there | wish you Immediately on receipt of this to go up and see Rt. DD. Darlington and offer him just tive handred (s500) dollars tor his claim against me and Douglas. Ile holds our conditional note for $1,000: but in his mistakes, he mismanaged matters by advice of misguided men, and has tailed to get one cent vet, and may fail altogether if I choose.

But | do not wish to wrong him out of one cent. But if he will sell you the claim for 500 you buy it, and T will hand you the money on my arrival, and then with the remaining £900 Tean buy him to do right, which will only be justice with us both, thereby setthng a long dispute and putting you to little or no trouble.

Please do as IT ask, and buy it all in your own name tor 500,

195 and have it regularly transferred to vou by taking the note in

yourown bands. — It is signed by myself, T. H. Becker, and S. 3S. Donglas.

Donut make any other promises. Take it clean for #500. He got M'r Merse to sign on it onee, but it was mismanaged—tlashed in the pan ; so maby Merse his the note. Make him (Doylton) get it, if he takes the S500, and please don't tell anybody Iam coming so soon, as I may be delayed a little longer here.

| hope vou have paid my taxes, if you haven't bo't the stock. But buy this note from Doviton anvhow at s5001f he will sell. IT understand he is desperately in need of funds. He has offered it to others at S5OOLU0,

I wrote vou from New York last week, but fearing this may be nabbed, I sendit through Mr Elliott. and he will hand it to vou opened. If not detained here IT will be along in a few days after you get this; so be sprv and clear this matter at once with Doyiton. You ean tell him we are on a trade and you can put the claimin. Mr Potts wrote you

RE » loim—o

c oolionl

66 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

before [left N. York. Please don't fail to try to mention the shipments. Never go backward, and if M'r Lyons buys any more ore would 196 they rather give you drafts on N. York. This will save them ex change to get money to Colorado, and save us exchange to send to New York. Let's manage them all we can. Hoping to see you very soon, I close, as ever, your ob't s'v't, T. H. BECKER. The several letters above referred to are handed to me by the witness and hereto attached to this deposition, and that [ have written my name on each of them,

Int. one hundred and forty-fifth. Examine the several letters-envelopes handed you and state to whom they are addressed and whose handwriting the address ts.

(Defendant objects. Exception sustained.

Answer. They are addressed to me, and in Mr Becker's handwrit. ng.

Int. one hundred and forty-sixth. Were these cnvclopes ever received by you; if so, how ?

(Detendant objects. Exception sustained. ) 197 Answer. They were received by me by mail or express. (Exception sustained. )

Int. one hundred and forty-seventh. Where did you receive these en. velopes ? .

(Defendant objects. Exception sustained.)

Answer. Do not know the date that T received any one of them.

fnt. one hundred and forty-eighth. Were they received before or after January Ist, 1869?

(Defendant objects. Exeeption sustained. )

Answer. IT cannot identify any marks by which [ can tell when they were received.

Int. one hundred and. forty-ninth. How many of these letter-envel opes are there handed to you?

(Deft objects. Exception sustained.)

Answer. Nine,

Int. one hundred and fiftieth. Hand them to the clerk, Mr. Cleave land, how engaged in taking this deposition.

(Detendant objects. First, that there is no evidence that they ever

contained any letters. Second, that there is no evidence to show YS in what vear or years they were addressed or received. Third,

that there is no evidence that plaintiff knew of their existence until after its transaction with Sabin were closed. Fourth, there is no evidence that they were not addressed and received while Sabin was the superintendent of defendant, prior to April, 1866.) Fitth, that they are not competent evidence for any purpose whatever. Exception sus tained.)

Nine letter-envelopes, addressed :

Via G. K. SABIN, Chicago i, < a Sk and CENTRAL CITY, Omaha. Mountain City BP. O.,

Colorado Territe Yj, J. R. CLYAVELAND.

U. G. M. Co. Vs. Rccky Mt. Nat. Bk. Of Central City. 67

The several letter-envelopes above referred to are handed to me by the witness, and hereto attached to this deposition, and that I have Written my name on each of them. |

Int. ove hundred and fifty-first. Who was foreman of the detendant

at the mine in October, 1865 ° 10% (Defendant objects.) Auswer. George Mellor.

Int. one hundred and fifty-second. Look at the cheek handed you. State who signed it, and for what purpose, if you kuow.

Answer, I signed the check; the money was to pay the men at the mine.

Int. one hundred and tifty-third. Was the payee of the check at the time of making the check in the employee of the defendant; if so, in what capacity ?

Answer. He was the mining foreman of the defendant.

Int. one hundred and fifty-fourth. Hand that check to the clerk, Mr. Cleave'and, and to attach to the deposition,

(Detendant objects. That there has been no authority shown for Sabins to sign checks in the name of the defendant. 2nd. No 'authority sown from defendant to plaintiff to pay checks drawn by Sabin, the

Witness. ) 200) The check above referred to is handed to me by the witness and hereto attached to this deposition, and that I have written

my name on it. J. R. CLEAVELAND, Clerk.

CENTRAL CITY, COL., Nor. 3, 1868. Roeky Mountain Nation. Bank. Pay to George Muller, or bearer, twenty-seven hundred seventy-nine 50 dollars. $2,779.90. UNION G. M. Co., GEO. K. SABIN, Agt.

No. 33. |

j J

Int. one handred and fifty-fifth. Look at the check handed you; state in Whose handwriting it Is.

Answer. In my handwriting.

Int. one hundred and fifty-sixth. State for what purpose the check Was given.

Answer. To pay labor at mine.

Int. one hundred and ftifty-seventh. Was the payee named in 201s the check previous to the time of making the check in the employ of the defendant ?

Answer, He was.

Int. one hundred and tiftyv-eighth. Hand the cheek to the clerk, M'r Cleveland, to attach to the deposition.

Defendant objects. Ist. That there has been no authority shown In Sabin to sign checks in the name of the defendant. 2nd. Nor any an thorty shown trom detendant to plaintiff? to pay checks drawn in its

name by the wittess, Sabin.

58 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

No. 100.) CENTRAL City, CoL., June 1, 1568. Rocky Mountain National Bank. Pay to Thomas Thomson, or bearer, one hundred ninety-eight dollars, #193. UNION G. M. Co., GEO. K. SABIN, Agt. The check above referred to is handed to me by the witness and hereto attached to the deposition, and that [I have written my name on it. Kh. CLEAVELAND.

Int. one hundred and fifty-ninth. Look at the check handed 202 you and state in whose handwriting the cheek is made. (Defendant objects.)

Answer. In my handwriting.

Int. one hundred and SIXty. State tor what purpose it was made.

Answer. On account of hauling ore.

Int. one hundred and sixty-first. At the time of the making of the check was the defendant indebted to the pavee therein named: and if so, for what ?

Answer. It was indebted tor hauling ore.

Int. one hundred and sixty-second, Tland the check to the clerk, M'r Cleaveland, to attach to the deposition.

(Defendant objects. Same reasons as to check last above offered.

No. 14.) CENTRAL City, CoL., Dec. o, 186s, Rocky Mountain National Bank. Pay to John Rank, or bearer, tour hundred eighteen 2o dollars. S415.25. UNION G. M. Co., GhO. Wk. SADIN, Agt. (Across the faee:) Paid.

203 The check above referred to is handed to me by the witness, and hereto attached to the deposition, and that | have written my hame on it.

J. RR. CLEAVELAND, Clerk.

Int. one hundred and sixty-third. While doing business with the plaintiff on account of the defendant GQuring the year 1867 & 1s6s, did you have or keep any pass-books or bank-books tor the entry of checks as they were returned by the bank ?

Answer. I did.

Int. one hundred and sixty-ftourth. How many such books did you have?

Answer. Two.

Int. one hundred and. sixty-fifth. Since the first of January, 186, have those books been in the possession of the plaiutitf at any time?

Answer. [have only seen them in the hands of the plaintiff or its attorneys. Since that date until now thes are in my possession.

Int.one hundred and sixty sixth. When did they last come into

204 Your possession ! Answer. To-day. [ut. one hundred and sixty-seventh. Poom whom did you obtain tiem ?

Answer, From Llenry M. Teller.

he

lif

Ir

ur

At

(&quot;. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 69

Int. one hundred and sixty-eighth. Will you produce those pass-books, or bank. books, and make them a part of your deposition ?

Answer. I decline to do it. I want them for my own reference.

Int. one hundred and sixty-ninth. What was the total amount of the dealings between the plaintiff and defendant during the years 1867 and 1868?

Answer. Something over one hundred thousand dollars; have not had access to the books to ascertain the exact amount.

Cross int. first. In answer to 10th and 11th direct interrogatories you

state that vou were employed by the defendant as superintendant,

"00 In 1s6o; state how or by whom vou were appointed superintendant at the time.

Answer. [ was intormed by a letter from honorable Edwin Croswell, president, that L had been appointed by a vote ot the board of directors, and directed me to take charge of their property and work the same under their direetions.

(Plaintiff objects to the answer because it states the contents of a letter and the letter was not produced.)

Cross int. second. Is that letter in your possession ?

Answer, It is not.

Cross-int. third. State if you know what became of the letter, and in Whose possession it Is now,

Answer. T can only state that I hare gave it to Henry M. Teller, attorney of the plaintiff, and bave not seen it since.

Cross-int. fourth. What property of the defendant did you work 06 from April or May, 1865, until the fall of that vear?

Auswer. | worked numbers one and two west from discovery claim on the Bates lode.

Cross-int. fifth. Why did you stop work during the winter of 1865 & 1866 ?

Answer. [ stopped work by the directions of M'r Croswell, the president of the defendant.

Cross-int. sixth. How were you supplied with hands by the defendant during the time you were at work on the property of the defendant in 1865?

(PlaintitY objects, because it is immaterial.)

Answer. The first money furnished me was a certificate of deposit sent me by the treasurer, after which I drew drafts on treasurer and

sent him the gold in return. 207 Cross-int. seventh. State what, if any, instruetions vou had from the defendant in the year 1865 in regard to the contracting of debts against the defendant.

(Plaintit? objects, because the instructions should be produced, and because the plaintiff is not bound by any instructions of the defendant by its agent.)

Auswer. I do not remember any particular instructions; they directed me to send them the amount of the liabilities against the company when ! took possession of their property, and to work the mine by contract and report progress from week to week.

Cross-int. eighth. When you went East in the spring of 1866 and received your salary, did you not resign your position of superintendent ot defendant ?

Answer. I have stated twice in the former trials of this case that I

did not. Since that time I have seen a copy of detendant's books 2 OS in which my resignation was tendered by M'r Croswell, its presi

79 C. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY.

dent; have now sent tor certified copy of the same; antil that comes al not prepared Co state or answer. (Plaintiff objects to the answer. He cannot state the contents trom a copy of defendant? books, and is not resporsive to the question. ) Cross-int. ninth. Did you not, om or about the first of April, 1366, deliver to the officers oft the defendant, tu them office ino New York. a written resignation, Or instrument in writthie to that effect ? Pleapnatitt Objects. We Object to at s disclosing the contents of a

written mstraument, and the worn s PRESTR reee prochieed, Luswer. | delivered merit; f did mot consider It a resign tidote: do not rememuiber ail its comternmts. 2G Cross-iat. tenth. Pave vou that ge oort or instrument mp writiie

in VOUP possession Answer. [ have not. Cross-int. eleventh, Have vou a copy of that report made by you at

,

that time:

Answer. [T have the original, or, in other words, the first one written from which the report referred to above was written,

Cross-int. tweltth. Will you produce it tor the purpose of making it apart of your deposition im this case ? 3

Plaintit® objects, because it calls for a private paper and was neve In the possession of plaintiff, and plaintiff never had any notice of it or its contents, [tis not the paper produced to the detendants officers in New York. [It does not appear that the paper is of the same import as the one called a report & made to the defendant in New York. It is not

the best evidence. Exception sustained.) ~10 Auswer. [T will not produce the original, bat [ will produce a COPY.

Cross-int. twelfth & 3. Is the paper produced by you a true copy of a report or communication made by vou to detendant at its office in the aiiyvot New York about the first of April, 186067

(Plaintiff! objects to this question. Tt ois immaterial whether it is a true copy or not; If itis sought to introduce auy paper, It must intre duce the original Exception sustamed.)

Answer. It is.

Cross-int. twelve & ths. Will yeu hand it to the clerk to make it a part of your deposition tn this case ? Exception sustamed., )

The Pauper Was here handed tO Ihe to De Inade al part of this deposi thon.

(The phuntit objects to the attaching of the copy to the depo

'4 § Sition, as It Is not competent evidence; that the origtoal was in

existence, and no foundation was laid tor the introduetion of a

COPY that the original Is In POSSESSION OF the detendant is hot produced. |

NEW YORK CIry, Aprif > LS. llon. EDWIN CROSWELL, President Union G. Me. Co.: DEAR SIR: The only lodes belonging to your property on which there are any developments are the Bates, Bates' Extenfion, Hunter, Mam-

UL. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. Zl

moth, Nova Seotia, Dickenson, Clary County, and Starberger; all of the above are more ov less developed aud stand A No. 1.

Your Bates preperty is much more developed than the others, and although the ores from this lode do not vield as much by the stamp mill process as soine others, vet they show as rich by ASSaVy aS any ores Ih {colorado on the ave Pale.

lioimy opinion it the shafts on your property were securely timbered,

and vour eugine, boilers, and stain-rill placed immediately over

wte Coe mine, on cli No. 2, and a good Cornish pump so pliced as to keep thie tmiune dry the ores could be made to more then pray eXpoenses atonee. With the stamp-mill you have the tathngs could be

st eurels hept Oth Vall till-site for the most suecesstul of the Many new Pracesses TON building and in a torward state of coupletion.

It bas already been demonstrated beyond a doubt that most of the Colorado gold and silver-bearing ores are peculiarly well adapted for the smelting process of extraction. Messrs James EK. Lyon & Co, have been wondertully successtul in extracting large quantities of gold and silver by their process, Which process | have examined, but as I could not see their books [ cannot say positively as to the cost.

Mr Lyon is now in New York, and | refer you to him tor particulars, I tee] satistied, from the many processes now being introduced in Colo-rado

, that the day is not tar distant when all the gold and. silver 215 bearing ores can and will be worked profitably. On account of the scaly condition of the walls of your Bates mine, it will not be sate to work them without first timbering them securely. 6, O00

y stimate cost of timbering. .... mela ' " grading mill site. one la 41m No. 2 and building seals EIS DG CIMCOTNE..... . oo oe ics cides «52% Hever eee », OOO Removing Fisher mill-building to site when pre ferred. a 1, 000 Placing engine and boilers and stamp-midll all in running OV OE iis ed ee a ee ee sae an ae 2, OOO WE i eee nee Keene ean 14, 000

Then putina Cornish pump and yoar claims can be made to pay more then expenses at once.

Your company's taxes have all been paid. and T know of no liabilities of vour company in Colorado, save the account last rendered by me.

arranged VOUP COULP ATES 's nratters before leaving Colorado, so that one hundred dollars per month will pay all expenses for taking care of the property until or you appoint a new superintendent.

Hoping this report will meet with vour approval, | remain, your obe-.

dient servant, GEO. K. SABIN

214 Cross int. thirteenth. In answer to 12th direct interrogatory, you say. TL econtinued in the employ of the defendant in LS6.."

Were you ever employed by the defendant more than onee ¢

Auswer. | have never received any notice of my appointment as supermntendent bat once, and that was in April, 1560.

(Cross-int. fourteenth. Were you in the employ of the defendant and receiving a salary from April, 1s66, until the fall of that vear? Did not receive any salary daring that time; do not know

Auswer. claim to be in their employ, from the fact no compensation

that Tecan wis rendered or claimed.

72 U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Cross-int. fifteenth. Ou whose business were you engaged during that time from April, 1866, to the fall of that year? Answer. My own. 210 Cross-int. sixteenth. Were you re-appointed agent or superin tendent of the defendant in the fall of Ts66?

Answer. Was not to my knowledge.

Cross int. seventeenth. Tn answer to 12th direct interrogatory. vou say, * f commenced work late in 1866.7 By whose instructions or by What authority did vou commence work at that time?

Answer. Thad permission or authority to commence work aft any time [thought proper; the permission was from Mr Potts, treasurer of the. cCOMpany.

Cross-int. eighteenth. Was if permission or authority

Answer. |used both words, because L was not certain which,

Cross-int. nineteenth. Did you have either permission or authority from any other officer of the detendant ?

Answer. T did not at the time Twas last in New York. 216 Cross-int. twentieth. On what conditions, if any, did) Mr Potts, the treasurer, elve Vou permission to start work on the

,

mine S

Answer. During the summer of TS66 Twas in New York frequently, and always called at the office of defendant when there and talked with Mr Potts about their property. [owas of the opinion their properts could be worked and made to pay a profit, and always so represented to lim in these conversations.

l agreed to commence working the property without any aid from the company except for the expense of starting, and told M'r Potts [might need a little money for temporary use ino starting up the mine. Mr Potts said he wouid furnish such aid if T desired it. It was agreed the money so furnished should be furnished as a loan, and should be refunded atter the mine was open.

It was agreed and understood between us that if I found the mine

would not pay upon a tair trial Pshould shat it down and not run 217 0) the mine in debt. At our last interview Mr Potts said, with our

general understanding you ean start working any time vou see fit, and if you can demonstrate by actual working what you now think, you can bring some of yourown property here and Twill sell it for vou, taking stock in the company myself. T can sell a property for a reasonable sum at almost any time among my friends. The principal object of my visit east being to lay the foundation tor accomplishing something for myself, and seeing no better opportunity, EF conelnded to take hold of this property and make a suecess of it if possible. Returned to Colorado and commenced working the mine. Wrote Mr Potts T had commenced working, and should probably draw on him tor ten or tilteen hundred dollars. He replied he would honor my draft. [ found tre/nds here that consented to furnish me money for temporary use; so [ wrote Mr Potts T should not draw on him at all, and did not.

(Plaintif? objects to the answer.)

21S Cross-int. twenty-first. Who was president of the detendant at

the time you speak of im your last answer?

Answer, Samuel Bonell, pr.

Cress-int. twenty-second, Did) you have any of the conversation al Inded to in your answer in 2Oth cross-interrogatory in the presence of Mr Bonell or any other officer of the detendant

Answer, Mr Bonell was present at one of our conversations: do not remember that any other officer of defendant was present.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 13

Cross-int. twenty-third. Was M'r Bonell or any other officer of the defendant present at the final conversation and arrangement between vourself and M'r Potts, testified to by you in your answer to 20th cross:

interrogatory ? 4 bi Answer. Mor Bonell was not present: no other officer was present, tomy knowledge. Several other men were writing at different desks in the room ; if any of them were officers, I did not recognize them as such.

Cross-int. twenty-fourth. Did Mr Bonnell or any other officer of the defendant, to vour knowledge, know at that time of the arrangement made by you with Mr Potts?

Answer, No, not of my own Knowledge.

Cross-int. twenty-fifth. Did vou at any time between the conversation with Mr Potts in the fall of 1866 and the tirst of January, 1869, commu hieate to any officer of the detendant the arrangememt made by you with Mr Potts?

Answer, IT did not. 20) Cross-int. twenty-sixth. [n vour answer to 20th cross-interrogatory you sav von told Mr Potts vou might need a little money for temporary use in starting up the mine, and Mr Potts said he would furnish such aid if [ desired it; was he to furnish the aid individually or on behalf of the detendant ?

(Plaintiff objects. because it calls for the witness'¢s own inference of the conversation tstewd of the conversation itself.)

A. I do not know, for he did not state. Tonly know he stated that he would render such aid if I needed it.

Cross-int. twenty-seventh. In your answer to 20th cross-interrogatory you say it was agreed the money so furnished by Mr Potts should be furnished as a loan, and should be refunded after the mine was opened.

To whom was the money to be loaned, and by whom? oak (Plaintiff objects, because the question ansicers that money was loaned by Potts, when the evidence shows that none was loaned by lim.)

Answer. My understanding was the money was to be furnished by Potts to me.

Cross-int. twenty-eighth. In your answer to 20th cross-interrogatory you state that vou wrote two letters to M'r Potts. [lave you copies of the two letters to which you allude ?

Answer. Ido not know; have not looked over my list of letters to see.

Cross-int. twenty-ninth. You also state to 20th cross-interrogatory that vou received a letter from M'r Potts saying that he would honor your draft. Have you that letter in your possession ? And, if not, state

if you know where it is. hey Answer. Thave not got it; looked for it on a former trial: do not know where it is.

Cross-int. thirtieth. Have you, since the letters vou speak of in answer to 20th cross-interrogatory, had any communication with Mr Potts whatever?

Answer. T received one letter from him since the date of these two letters in question; it was just after the election of M'r Becker presi dent. in April, 1867, notifying me of his, Becker's, election ; none since that date.

Cross-int. thirty-tirst. Have von written M'r Potts any letters since the two spoken ot by you in answer to 20th cross-interrogators ;

(4 U. G. M. CO.. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. Auswer. Tthink not. Cross-int. thirty-second. You say in vour answer to 20th eross inter. rogatory that you found triends here that consented to furnish 2"5 you money for temporary use. Who were those friends,and what amounts of money did they vespeet//ly tarnish, and when ? (Plaintiff objects 5 irrele XQ tnmaterial. Answer. Mr Hense furnished ome one thousand dollars; Creo. T.

Point cl iif rempedpber the amouneé.

Clark and Compan:

(Cross inf 'if birad. door Pett mse did vououse the money borrower , ; » bk. Clark and THe

Vhs bch pops eal j Sener CX pense Of Startii hy) work on

tiles Tine,

Cross-int. thirty-fourth. Pu owhose name andoon whose credit did) you

borrow the money or lense and Geo. T. Clark and Company (Plaintith objects; immaterial & trrelevant. ) Answer. | borrowed tt ino my owno name and on my own credit. C'ross-int. thirty-tifth. Tnanswer to Zist. 22d, & 25d direct in ferrogatories, you say that defendant was engaged in mining on the Bates lode from 1866 until December, TS6s, What property did detend ant own on Bates lode at that time?

Auswer, Numbers one & two west.

Cross-int. thirty-sixth. What other property. i! anv. did yon work on the Bates between the fall of Ls66 and Deeember, IsS6s ? (Plaintitf objects, because Tnimaterial and irrelevant. lf worked number three west.

ed |

Answer,

('poss-int. thirtv-seventh. Didi you do any work on the discovery Clatm during the same time? 23 (Plaintiff objects, because tmmatertal & irrelevant.)

Answer. Started on number one west to draw a level through

to discovery claim. It was my intention to extend said level through

the west halt of discovery claim, which Thad purchased. Do not remember to what extent this level was completed, Cross-int. thirtyv-eighth. State whether that level entered the west

half of discovery clam. (Plaintitt objects, because imuritertal and irrelevant.) Answer. My impression is this level extends through west halt and connects with Cowen level claim, east halt of discovery. Cross int. thirty-ninth, Whatis the distance through the west halt ot the discovery ? (Plaimtitt objects, same as above.)

ae Answer. Filty teet, ('ross int. fortieth. When was this work done on west halt of discovery ? Plaimtitt objects, same reason. ) Nuswer. All the work T didi im that portion of the mine T done in LNON.

Cross-inf. forty first. What part of the year Tso.

Cross-lit. forty-second, What extentoifany, did vou mine and work or stop the west halt discovery in the year Lsos aside feom the level spoken Ta ia

Plaintiff obreets, because tminaterial and irrelevant. Answer. | dont know. co + forty-third.

the Wool OV VOU Was Gone

ross rut. Who owned west halt ot discovery when kK spoken of !

U. G. M. CoO. VS. ROCKY MT. NAT. BK. OF CENPRAL CITY. 75 Piaintut objects, because immaterial and irrelevant, \e.) Auswer. Tuever did any work on the west half of discovery, except during the time JT owned it myself,

Cross-int. forty-fourth. At what time was the mining done by you on Claim number three west on the Bites lode?

Answer. Commenced in January, Pes, and continued nearly through

flat veur.

('ross-int. forey-fittl. To what extent did vou work Chaim nucnvet three west during the Sts Plaiatitt objects, because itis tmmetermal and irrelevant 1 sabvout Hitec feet and stoped frouk SIXTY Lo

Answer. [ drove a tevel al elohty feet owe Cross int. forty sin! of discovery and clan number three west on Bates lode ? Plaintiff objects: uinmaterial and irrelevant. }

Auswer. My recollection is that level on three west is two hundred and eighty teet trom sartace; that the work on discovery is from three hundred to three hundred and twenty-five feet deep. | think about three hundred,

Cross-int. forty seventh. Wio owned claim number three west when vou were working it im Ls6s.

Plainti® objects; immaterial & irrelevant. )

Answer. Theodore H. Becker.

Cross-int. forty-eighth. To what extent was the property of defend-anton

the Bates lode worked daring the year L868 by you? cou Piaintit?! objects; immaterial & irrelevant.) Answer, T estimate the average stoping about forty feet; the

How deep was the working on west half

shaft Was sunk from SIXTY to ciehty leet,

(ross-int. forty ninth. Plow was the work on the west half of discoverv-claim and claim number three west prosecuted during the year LS6s ?

(Piainti® objects: immaterial & irrelevant.)

Auswer, The work was prosecuted from the hoisting shaft of defend. Ore raised through the same shatt with the same engine; all

alif. half of discovery & No. three west was done

work done on the west through the hoisting-shatt of defendant.

Cross-int. fittieth. How did the work done on the west half of dis covery and number three west, in the vear S68, compare as to the quantity with the work done on property of detendant during the same

time ?

OO) (Plaintiff objects; immaterial & irrelevant.)

Answer, The work done on number three west would cost just about one half as much as work done on the property of detendant, but cannot make estimate on work done on west balf of discovery.

Cross-int. fifth-one. How did = amount of ore taken out of west half of discovery and claim number three west, daring the) vear TS6s, compare In quantity with the ore taken out of the property of defendant during the same time ?

Plaintit? objects: immaterial & irrelevant. the ore trom No. three west, in quantity, would be

Answer. | think of defendant

about one-half as much as ore taken trom the property

during the same time. Cross-int. tiftv-secoud. By whose anth ity and whose account did Vou work the west balt of discovery on the Bates lode ?

» ] +42 : - " : "- : } ' 7 +] Plarititf obrects : Immaterial & trrelevant. )

(6 . G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer, All the work done by me on the west half of the discovery was done on my own responsibility.

Cross-int. fifty-third. By whose authority and under what) arrangement, and with whom made, did you work claita number three west, on the Bates lode?

(Plaintit?! objects: immaterial & irrelevant.)

Answer, Tworked number three by the authority and with the consent of Theodore TH. Beeker, under an arrangement made with him.

Cross-int. fifty fourth. When was that arrangement made, and what Was it?

(Plaintiff objects; tmmaterial & irrelevant.

Answer. It was made with him just before he left for the East in Jan-nary, P8683, and was about the same made with Potts, inj New York, in

the tall of 1S66. pe Cross-int. fitty-fifth. Did Becker at the time of making the arraineement with Vou, above spoken of, and during the time you were working number three west, to your knowledge, know of the arrangements you had made with Potts, and how you were working the property of defendant?

(Plaintiff! objects; immaterial & irrelevant.)

Answer. Talways supposed that he knew; do not think that IT ever told him.

Cross-int. fifty sixth. Did he, to your knowledge, know from = any source !

(Plaintiff! objects ; immaterial & irrelevant. )

Answer. Leannot say that he did trom my own positive Knowledge.

Cross int. tifttv-seventh, While vou were the superintendent of defend. ant, in TS865, were you furnished with a stampomill?) And if se. by

whom? | 250 (Plainti® objects: immaterial & irrelevant.) Answer. The defendant, in New York, rented the Bates and Baxter mill, located near the mine, and directed me to run the same. I did so until they directed me to stop all works, in the tall of the same year.

Cross-int. tiftv-eighth. During the time you were working the prop erty of defendant, from fall of Is866 to winter of TS68, were vou turnished with a stamp-mill by the defendant ?

(Plainti! objects; immaterial & irrelevant.)

Answer. Twas not.

Cross-int. fittv-ninth., In the former part of this deposition vou speak of running a mill & employing hands to run the same during the Vvears P8670 & TS868.)0 To what mill do vou allude ?

Answer, T allude to the Douglass mill, located at Chase Gulch, owned

by Becker. 2-4 Cross-int. sixtieth. State by whose authority and on whose account, and under what arrangement, and with whom made. von used and run the mill by vou above spoken of, when the arrangement was made, and what it was?

(Plaintit® objects ; Immaterial & irrelevant.)

Answer. Tmade the arrangements tor mill with Beeker. Thearrangce ment was that he was to put the millin good running condition. Twas to have the use of the mill without rent, except the developement of number three west on Bates, and to leave the mill in as good condition as When T took at. This arrangement was made in the summer of 1867. lL had no special authority trom any source save of that above described

UL. G. M. CO Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 77

] conducted all business in the name of the Union Gold-Miuing Company. Cross-int. sixty-first. Did) you have any authority from any 259 source Whatever to rent the mill?) Did you not do it entirely on your own responsibility ?

(Plaintitt objects: immatertal & irrelevant.)

Answer. TP did not have any authority to rent mill. | rented the mill On my OWn respoustibility.

Cross-int. sixty-second. Stafe whether you kept seperate accounts of the mining expenses on west half of discovery-claim, on No, three west of discovery, and the property of the defendant on the Bates lode, and a seperate account of expenses of running the millot Beeker, or whether the expenses of carrying on all these different works were charged in the same account,

Plaintit® objects : immaterial & irrelevant.) Answer. [did not keep separate accounts. The expenses of running the mall and running expenses from the different places designated were all kept in one general account. 236 (ross-int. sixty-third. To what account were all these different expenses charged ? Piaritith objects: immaterial & irrelevant.)

Answer All charged to account of defendant.

Cross-int. sixty-fourth. From tall of IS66 to Mareh, 1867, when vou commenced doing business with the pltth where, and in whose name, did vou keep a bank account, if you kept one ?

Plaintith objects; immaterial and irrelevant. )

Answer. My impression is that [did keep a bank account with George BR. Clark & Co.; sold them the gold trom the mine, and applied the sane to the expenses that accrued in starting the works; domt remetinberin

Whose name T kept the account. 23% Cross.int. sixty fifth. Did vou keep any bank account in the name of the defendant anvwhere in and after the fall of 1566

until vou commenced business with plaintitt?

Piaintit? objects; immaterial & irrelevant.) Answer, T dont remember whether the account with Geo. T. Clark &

Co. Was ininy own hame orin the name of detendant, nor can only tell by reterring to the books of the account with Clark & Co, Was kept in

my own hame there. The account was first opened in the pame ot defendant with the plaintiff.

Cross-int. sixty-sixth, At the time you commenced business with plaintitt.in March, 1S67, or at any time while you were doing business with it, did you represent to the plaintiff? that you had authority to draw cheeks and contract debts by borrowing money in the name of the detendant: and did plaintit? at any time winile you were doing business

With it eall for any written authority from the defendant to 255) vou or ask you in regard to your authority to draw checks in the

name ot the detendant and coutract debts by borrowing money in its name?

(Vlaintitt objects: immaterial & irrelevant.

Answer, At the time [commenced doitig business with the plaintiff, in Mareh, 1s67, 1 opened the account by a deposit in the name of detendanut, and checked against its same accounts in the name of de fendact. I continued the business in the same manner. My authority Was never questioned: | never represented TP had any authority tro. detendant to draw cheeks or borrow money In name of detendant ; neither was my authority questioned in any manner by plaintill.

(8 U. G. M. Co. Vs. Rocky Mt. Nat. Bk Of Central Culpy.

Plaintiff never asked aif Thad either written or verbal authority to bon row money, or even to do business of als KkKited am the mame of the defendant until about the time the two notes were given. (1 have reterence tothe notes that were cancelled by the court in the last trical JO Of this Cause. Sald notes were given about the first of October IS68. When Cashier Croodspecdd asked me to settle the account by drawing drafts on defendant, PE told him Thad no authority to draw drafts, neither had T authority to contract debts in its name. and we inst depend upon the mine for the money. and PE have full confidence in my ability to pay it from the mine; that [had a quantity of ore already broke in the mine. Tle then wanted me to give notes : that he was vo Ing east and wanted to close the account on the books betore he left. — I told him T had noauthority to bind the detendant by signing notes, and that Ithought T would be midividually responsible for them if [E signed them, but PT would consult an attorney and let him know what [ would do. After [consulted an attorney TL ostened the notes. We then con tinued business in the same manner as before until December, 1S6s, (Plaintiff! objects to answer, that it Is not responsive to the 240° question, is not propor eross examination, is immaterial & trrele vant. The testimonus about notes is especially objected to, because it is not cross-examination, as the plaintiff has not asked about these notes. )

Cross-int. sixty-seventh., Did) vou at any time, from the fall of 1866 until in December, 1868, inform any officer of detendant that vou were doing any business in Colorado whatever in its name ?

(Defendant objects > immatertal and irrelevant.

Answer, - dowt think TP did. fo think aim inv correspondence with Becker [always said [Tor we.

Cross int. sixtv-erghth. From the fallof TS66 until in Deeember, 186s, did any officer of defendant, to your knowledge, know that you were doing any business im its name?

(Plaintiff objects: immaterial & rrrelevant. 24] Answer. [T cannot sav of my own knowledge that any otheer knew mm whose name T conducted the business.

Cross-int. sixtyoninth. During the latter part of the year IS6¢ and the year Ts6s did plamtiff, or any officer of plaintitt, know that vou were engaged in working the west half of the discovery-claim and claim No. three west on the Bates lode, and running Beekers mill, and that that property did not belong to the detendant, and that money by vou ob tained trom it was being applied to the working of suel property and running such mill?

(Plaintiff objects: ifas immaterial and irrelevant, and is not prope cross-examination, and is not sufficrentiv definite.

Answer. [Edo not know that the plarmtiff or any of the officers knew that | worked aAnV property on the Bates lode: same that ot detendant.

The cashier, Goodspeed, Knew [Twas running Beekers mill; he 242 also knew that a portion of the money obtarmed from them was applied to the running expenses of the mill

Cross-int. seventieth. In the answer to 40th direct interrogatory vou say there was a sign on the building on Lawrence street. Did that sign remain there all the time from April, 1s05, to spring of TS6y ?

Answer. | dont know.

Cross-int. seventy first. When vou came baek in the tall of Ts66. was pot the sign down, and did vou not get it trom Conrad Elhot and place itton the building after vour return

Answer. Deo not remember

U. G M. Co. Vs. Rocky Mip. Nat. Be. Of Central City. 73

Cross-int. seventy-second. At the time you received the letter from Becker testified by vou in the latter part of IS67 and the vear LS68, did he, to your knowledge, know you were doing business in the name

of defendant. and did he Know vou were working west halt of 245 discovery icas oeorking & claim number three west, and running bis mill under the arrangement made by vou with him ?

(Plamtit® objects > immaterial and irrelevant.

Answer, Dont know positively that he knew in whose name | con dueted the business. He knew [| was working number three west from the time T commenced working the same. Ile also knew | was running the mill, and must have known | was working the same under the ar rangement made with him. [dont know that he knew whether IT did or did not work west half of discovery at all.

Cross-int. seventy third. Did vou not immediately, or soon after buy- Ing the west half of discovery, introm Becker by letter that vou were running a level i it

(Pitt objects, because the letter is the best evidence.)

Auswer. T presume I did: it was my intention So to do. 44 Cross seventy-fourth. Did you pay the workmen by you employed at the mines and at the mill at the office on Lawrence street, or did vou receive the time from the foreman and give te the foreman ot mill and mine, respeetfudly, at the mine and mill, a check for amount due each set of men ?

(Plaintitt objects: immaterial & irrelevant.)

Answer. T did not pay workmen employed at the mine and mill at the office on Lawrence street. The time of the men employed at the mill 1 always received at mill from the foreman, wrote the check at my office on Lawrence street, and gave the same to foreman at mill, taking lits receipt for the same. The time of the men employed at the mine I received from the forenian, sometimes in the office on Lawrence street and sometimes at the mine. IT wrote the check in my office, and sometimes gave it to the foreman in the office and sometimes at the mine, taking

his receipt theretor., 240 C'ross-int. seventy-fifth. ITow often did vou pay workmen em ploved by you at the mine and mill?

Answer. Once a month, with one or two exceptions.

Cross int. seventy sixth. Usually how many cheeks did you draw each month to pay men at milland mine, and how many receipts did vou take each month tor payimnent of same:

Answer, At the mill asuallvy drew one cheek, payable to the order of the foreman, (the amount of said check included the wages of all men employed at the mill.) and took the foreman's receipt for the same. At the mine my recollection is [drew two checks, one payable to the order of the foreman, Which wages included the wages of all men employed at the mine except one, taking his receipt tor the same, The one exception alluded to above T paid direct with check, taken his receipt.

Cross-int. seventy-seventh. When Beeker was at the office oeeu

2460 pied by vou in the vears 1S867 & ls6s, did he, to your knowledge, ever see a check drawn by Or recelpt taken Ir you, OF know, to your knowledge, in whose name the checks were drawn or receipts taken ?

Answer. Tam quite sare Becker has been in the office when T wrote eheeks and took receipts tor the same. Decker wrote at his own desk and IT at mine Dont know of my own knowledge whether he saw the cheeks on receipts until atter the trouble with the bank.

t vent hth. Where were the books in which you kept

C'ross-int. seventy ebolith.

51) U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY.

your accounts kept during the time that Becker was at your oflice in IS67 & 1568?

Answer, At the banking house of plaintiff.

Cross-int. seventy-ninth, In answer to the 64th direct interrogatory, you say the workmen were employed by the Union Gold-Mining Company.

Did the defendant, between the fall of 1566 and January Ist, 1s6o, 247 employ any workmen to carry on work on the west half ot dis.

covery Claim and claim number three west on the Bates lode and the mill of Becker's?

(Plaintiff objects; immaterial and irrelevant. )

Answer, | employed all the men oat the mine on all the different Claims worked, also at the mill, in the naine of the Union Gold-Mining Company, and paid them inits name,

Cross-int. elghtieth. Did the defendant, between the fall of 1S66 and January, Soo, employ any laborers excep through Vou as assttiiing to be ifs agent?

(Plaintiff objects as to the assuming.

Answer, Not tomy knowledge.

Cross int. eighty-first. In answer to 67 direct: interrogatory you say the amount of first-class ore piled upat cde mine was four hundred tons

on the tirstot January, S60. What amount of first-class ore was 245) piled up at the mine on the first of April, PS6s 2 (Plaintiff objects: immaterial and irrelevant.)

Answer. The ore piled up in the large building erected espectally tor that purpose on the first of April, PS6s, contained about the same amount as it did in January first, 869; the ore that was saved after April Ist, 1868, was piled up outside of the main building and a shed built over It.

Cross-int. eighty-second, At what amount did) vou estimate the ore piled up in the large building ¢n April Ist, PS6s?

Answer. Three hundred and fifty tons.

Cross-int. eighty-third. What proportion of that three hundred and fifty toms came from property of defendant; what from claim No. three west, and what from west halt of discovery ?

(Plaintiff objects: immaterial and irrelevant.) Mag Answer, Inmy opinion, ninety one-hundredths ((°")) came from property of defendants; teu one-handredths (){°.) trom No, three west, and none from west halt of discovery.

Cross-int. eighty-ftourth. Of the titty tons piled up outside after April Ist, ISOs, & sheded over, what proportion came tron: property of defendant & what from No. three west?

Answer, All from number three west.

Cross-int. eighty-tifth. In yvour answer to the 70th direct interrogatory you say that when you quit work in December, Lsos, there were seventy-five cords of ore broken in the mine. What proportion was in the mine of detendant and what in three west ?

(Plaintiff objects: immaterial & irrelevant.)

Answer. In may opinion it would be seventy-tive hundredths in 200 mine ot defendant, and twenty-five hundredths in number three West,

Cross-int. erghty-sixth. [no answer to 77th direct interrogatory you say you drew cheeks on plaintitt and signed them Union Gold-Mining Company, Geo. IW. Sabin, agent. Dy what authority did vou sign the name ot defendant, and trom what source was that authority derived ?

(Piatutitt objects: Ist. That the witness cannot row be heard to dis-le

TTL eee

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. S81

pute the authority he performed by his signature. 2nd. Because it is a question of law and not of fact whether he had authority to sign a check.)

Answer. I never had any direct authority from any source upon the point in question.

Cross-int. eighty-seventh. Who took charge of the mine of defendant after the 16th of December, 1868?

Auswer. Theodore H. Becker.

I] Cross-int. eighty-eighth. State whether you were employed by T. H. Beeker after December 16th, 1868; and, if so, how long.

Answer. [ was, and, ny recollection is, remained until the 19th of March, when final settlement took place in bank of plaintiff.

Cross-int. eighty-ninth, State whether your engine remained on the mine of detendant trom December 16th until work closed, and whether it was used by Beeker.

Answer. My engine remained on the mine until work closed, and was used by Becker.

Cross-int. ninetieth. In answer to 31st direct interrogatory, vou say in March, 1869, you received $400.00 trom Mr Becker. Is that amount any wore than was due you from Becker for services and use of engine after

he took control of defendant's mine at that time? 252 Auswer. It was not.

Cross-int. ninety-first. In answer to 91st direct interrogatory you say the debt was created with plaintiff? by your drawing checks on the plaintit! in the name of the detendant, when it, the defendant, had no money there, and plaintiff! paying checks. State by what authority vou assuined to contract debts by borrowing money in detendant's name.

Answer. I had no authority trom any source.

(Plaintiff? objects, because it is a question of law whether he has authority or not.)

('ross-int. ninety-second. In answer to 92nd direct interrogatory you say the checks were drawn by you on plaintiff and debt contracted for

carrying on the general business of mining and milling of defend- 253 ant. Was not the debt also contracted and the money used to

carry on mining on west half of discovery-claim and on claim number three west, and to run the mill of Becker, and to pay vourself a salary and for the rental of your engine ?

(Plaintiff objects: immaterial & irrelevant.)

Answer. It was.

Cross-int. ninety-third. In answer to 98th direct interrogatory you say that there was an indebtedness created by you by overdraft with plaintiff on Ist of October, 1868, and that you do not know the amount. State, if you know, what the amount was on the third day of October, 1S,

Auswer. On the third day of October the overdraft was a little over ten thousand dollars.

Cross-int. ninety-fourth. From and after that date did that indebted.

hess remain and stand as overdraft ? 24 (Plaintitt objects, because immaterial and irrelevant,and not the best evidence, and should be proved by the books. }

Answer. Ten thousand dollars of it did not remain and stand as overdratt.

Cross-int. ninety-titth. How, if any way, was that ten thousand dollars arranged :

(Plaintiff olyjeets: immaterial and irrelevant, and does not appear it Was arranged at all. Exeeption sustained.)

BE. 1di1-—G

82 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. By my giving two notes of five thousand dollars each.

Cross-int. ninety-sixth. Have you those notes ip your possession ?

Answer. I have not.

Cross-int. ninety-seventh. Do you know in whose possession 250 ~=those notes are?

Answer, I do not. They were handed to the court just before the trial commenced at the last termina of this cause by M'r Teller, attorney for plaintiff, with the request that the court cancel them. The court did cancel the notes. The last time I saw them they were handed to the clerk with instructions that they be put on file.

('ross-int. ninety-eighth. State what date those notes bore, to whom and when they were made payable, and how ang by whom signed.

(Plaintiff objects, because immaterial and irrelevant, and not a proper cross-examination., [exception sustained.)

Auswer, The notes bore date the 5d day of October, 1868, payable on demand to plaintiff, signed Union G. M. Co., Geo. IK. Sabin, agent. I wrote the signature.

P56 Cross-int. ninety-ninth. State under what circumstances they were made and delivered, and to whom delivered.

(Plaintiff objects; immaterial and irrelevant. [Exception sustained. )

Answer, | gave notes at the request of M'r Goodspeed. Tle was going east and did not want to leave it on books as an overdraft. <At first ] refused to sign them, stating I had no authority to sign them, and I thought it would not bind the company if I did sign them; that I would be individually liable for them. Goodspeed urged the matter. I consulted an attorney, and afterwards signed and delivered them to M'r Goodspeed.

Cross int. one hundredth. State whether the attorney whom you consulted was the attorney of the plaintitt.

(Plaintiff objects; immaterial and irrelevant, and not a proper cross-examination

, lxeeption sustained. ) 254 Answer. | don't know that he was at that time.

Cross-int. one hundred and first. What officer or officers of defendant were present in Gilpin County at the date those notes were made ?

(Plaintiff objects ; immaterial and irrelevant. Exception sustained.)

Answer. Theodore H. Becker, president of defendant, was present.

Cross int. one hundred and second, State whether you consulted Becker, the president, in regard to giving the notes to plaintiff.

(Plaintiff objects; immaterial and irrelevant. Notes are not sued on or in controversy. Exception sustained.)

Answer. I did not.

Cross-int. one hundred and third. State whether you informed Beeker of the indebtedness or of the tact of your liaving given the notes at that time.

-Exeeption sustained.

JOS Answer. | did not inform Beeker of the indebtedness at that time, nor did Lever inform: him of the existence ot the notes previous to the last trial of this cause.

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY, 83

Cross-int. one hundred and fourth. State if any agreement was made by vou with any officer of the plaintiff by which the having given the notes and their existence was to be kept from the knowledge of defendant; and, if so, with whom the agreement was made, and what it was, and tor what purpose it was made.

(Plaintit?! objects, because immaterial & irrelevant and not a proper cross-examination ; calls tor the opinion of the witness as to the object of the agreement. Exception sustained.)

Answer. There was an agreement made to keep the existence of the note trom the knowledge of Becker, president of defendant. The agree-

Inent was made with M'r Goodspeed. The arrangement to keep 259 = the existence of the uotes from Becker was at my request. I still

doubted my authority to sign them and bind the detendant by signing them. I expected to soon pay them trom the proceeds of the mine and never let Becker know of their existence.

Cross int. one hundred and fifth. Did you at the time of making this agreement communicate to Goodspeed the reasons by you above given?

(Plaintiff objects; immaterial & irrelevant. Exception sustained.)

Answer. I did, and further agreed the first monies I had should be applied to cancel the notes.

Cross-int. one hundred and sixth. In answer to 99th and 100th direct interrogatories, vou state that the debt that was increased by overdratt made by vou in the name of defendant between the first of October, Lsos,and middle of December, 1568, to the amount of over twenty-three thousand dollars during that time, did you inform Becker that

you Was creating indebtedness with plaintiff, and did plaintiff, to 260 your knowledge, so inform him?

Answer. I do not think I informed Beeker during that time that I was creating a debt; have no knowledge of officer of plaintiff informing Beeker during that time.

Cross-int. one hundred and seventh. Was there any arrangement or agreement or understanding between vourself and any officer of plaintiff by which the existence of the debt in the name of defendant, or amount of the indebtedness to be kept from the knowledge of the defendant or Becker?

Auswer. There was no understanding in relation to it, save the existence of the notes alluded to.

Cross-int. one hundred and eighth. In answer to 102d direct interrogatory, you say, "I told M'r Becker on his return, about the first of

October, we were overdrawn at the bank." Who did you tell M'r 26] becker was overdrawn at the bank? State what language you used.

Answer. [told him that we were overdrawn at the bank. I have no doubt [ said we, as I almost invariably use that term.

Cross-int. one hundred and ninth. Did Becker, to your knowledge, until the 16th day of December, 1868, ever know that any business was being done by you with the plaintiff in the name of the Union Gold. Mining Company ?

(Plaintiff objects: immaterial and irrelevant.)

Answer, Of my own positive knowledge I cannot say that he did.

Cross-int. one hundred and tenth. About the tirst of October, 1868, on Becker's return, What amount did you inform him that you were overdrawn with plaintit®?

Answer, About five thousand dollars,

Cross-int. one hundred and eleventh. How did you ascertain

"62 = that amount, and tor what purpose °

84 U.G.M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. I stepped into the bank the day IT was expecting Becker to arrive, and asked Goodspeed how our account stood; he turned to their bank-book and told me we were overdrawn "bout five thousand dollars.

Cross-int. one hundred and twelfth. Did Goodspeed know the purpose for which you asked the statement of account ?

Answer. I told Goodspeed [was expecting Becker ap that night, and wanted to inform him how we stood.

Cross int. ove hundred and thirteenth. Was the amount given you and by you reported to Becker the true amount of vour overdratt at that date, or was your overdratt greater; and, if greater, what Was

the amount ? 263 (Plaintiff objects ; immaterial and irrelevant, and not a proper Way to prove it.)

Answer. It was not, and the amount was greater on the 26th of Sep tember, twelve thousand and sixty-one & |°°,, dollars; on the titth of Oc. tober it was thirteen thousand tive hundred and seventy-six dollars, (as shown from the pass-book.)

Cross-int. one hundred and fourteenth. On or after the third day ot October, (when you gave notes for S10,000) and lett the balance unsettled,) did you inform Becker of the mistake made or misunderstanding In regard to the amount of overdraft on the first ?

(Plaintiff objects; immaterial and irrelevant.)

Answer I did not.

Cross-int. one hundred and fifteenth. Did) you at any time atter October tirst and betore the l6th of December, IS68, ever report to Becker any indebtedness with plaintiff except the statement in regard

to the five thousand dollars ? 26-4 Answer. I did not. , Cross-int. one hundred and sixteenth. Did vou at any time prior to October first, 1568, report to Becker, or to any officer of defendant, that you were creating a debt by overdratt with plaintiff. and in the name of detendant ?

(Plaintitt# objects ; immaterial and irrelevant.)

Answer. | did not.

Cross-int. one hundred and seventeenth. In answer to 125th direct interrogatory you say, * TI gave the amount forentries on the books trom the vouchers ;" to whom do you swear you gave the amounts for entries on the books ?

Answer. To the person employed at the time to keep the books.

Cross-int. one hundred and eighteenth. Who kept your books trom the tall of IS66 until spring, IS867, and at what time did he com

mence ? 260 Answer. Frank Messinger commenced in January, 1867, and

continued three months.

Cross-int. one hundred and nineteenth. Were all your transactions in regard to the mine entered in those books from the time of commence ment up to April, 1S67 ?

(Plaintitt objects, because immaterial and irrelevant.)

Answer. They were not.

Cross-int. one hundred and twentieth. Was there any entry ot money obtained from Hlense, or money obtained trom for the purpose of starting the mine made in the books, or any entrs of the payment of these amounts or either of these ? (Plaintit objects : immaterial and irrelevant.

Clark «& Co.

- a

ee

i~- ao

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 8&5

Auswer. No entries on books for money obtained from Hense &

George T. Clark & Co.; no entries of the payment of the same.

man One hundred and twenty-first. Was the money paid that you borrowed from Hense; and, if so, in what manner was it paid?

Answer. It was paid; don't remember whether by currency or by check,

One hundred and twenty-second. If it was paid by check on what bank was the cheek drawn, and in whose name was the check signed ?

Auswer. [ don't remember on what bank check was drawn, if payment Was made by check ; if check was given, was signed by me individually.

Cross-int. one hundred and twenty-third. In answer to 127th direct Interrogatory, you say you do not think any officer or member of the defendant examined your books after Goodspeed kept them ; did any officer or member of defendant examine those books at any time be

tween the fall of 1866 and January, 1869 ?

P05 Answer. I did not see Becker or any other officer of defendant-examine the books ; they did not to my knowledge.

Cross-int. one hundred and twenty-fourth. In answer to 127th direct Interrogatory vou say, "T think my vouchers were examined by Becker some time between the first of November, 1868, and March, 1869." At What time between those dates was that examination made ?

Answer. I do not remember positively.

Cross-int. one hundred and twenty-titth. Was it previous to the 16th of December, 1868?

Auswer. It was after that date.

Cross-int. one hundred and twenty-sixth. Do you know from any officer of plaintiff that the defendant in New York repudiated and

denied the debt with plaintiffin January, 1869? If so, state from POS What officer of plaintiff, and what he said in regard to it. (Plaintiff objects, because it is not proper cross-examination ; cannot be proved in this way.) (exception sustained. )

Answe r. In January or Febru: ry, 1869, Mr. Goodspeed came to me and stated Mr. Becker had received a letter trom the defendant in New York stating that they utterly repudiated and would have nothing to do with the debt; also that Becker said he would have to spread the matter before the meeting of the stockholders and state the matter of their Claims to them. Goodspeed wanted me to use all my influence with Becker to go on and have the matter attended to; that it placed him in avery bad position. I told Goodspeed [| would do all I could to influence Becker to have the debt settled, but at that time I thought I had but little if any influence with him.

(Cross int. one hundred and twenty-seventh. Have you at any "OO time had any conversation with president of plaintiff in regard to who was liable for this debt?) If so, state when it was and

What president of plaintiff said on that occasion.

(Plaintit® objects as not cross examination.)

Answer. Some time before the first trial of this cause, the president of plaintif?! was here and wanted to know from me the whole history of the

ease. [ gave hima history of the case tully, when he said, ** Sabine, you are individu: illy liable for the debt, and that if the vy faile d to collect the debt trom the Union Gold-Mining Company they should collect it of me."

He then cited a case ot Colonel/ Tonnatt, where they had sued the agent

86 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

direct and got judgment. This conversation occur'ed in the back room of the bank of plaintiff in Central City.

Cross-int. one hundred and twenty-eighth. Did you not swear on the last trial of this cause at Golden City that vou had a bank account with

Clark & Co. from fall of 1866 to spring of 1867 in your own name, 270) and that you borrowed money in your own nate to start the mine of detendant, and was that statement correct ?

(Plaintiff objects; immaterial & irrelevant.)

Answer. I did so state; I still think it was correct.

Cross-int. one hundred and twenty-ninth. Did you not at the last trial of this cause swear that you had made arrangements with Goodspeed for overdrafts in 1868, and paying it as soon as you could; that you was the only person plaintiff knew, and that it looked to you for the overdrafts; and, if so, was that statement correct ?

Auswer. I testified 1 made arrangement tor overdraft in spring, 186s, and to pay the same as soon as I could. I testified, supposed that 1 Was the only person they knew, and that he held me, and it was correct.

Cross-int. one hundred and thirtieth. Who, if any one, were present In the back room of bank at the conversation between yourself and

president of plaintiff testified to by you? 271 Answer. Herman Kountze, president of the bank, Charles Kountze, and myself.

Cross-int. one hundred and thirty-first. Did you not, prior to commencing work in the fall of 1866, inform E. A. Smith, John Maller, Thomas Thompson, John H. Hense, George T. Clark, and Conrad Elliott, and each and all of them, or either of them, that you had got to start up and work the millon your own account ?

(Plaintiff objects; immaterial & irrelevant. Exception sustained.)

Answer. John Miller was my first mining foreman. My recollection is, | told him, in substance, that if I started up the mine I must run it on its own merits, and without the aid of the treasurer. I asked Miller if he would take hold of the mine with me and depend upon taking the money out of the mine for his pay. We tirst examined the mine,

and then he said he would. He went to work with me with that 272 ~—ounderstanding, and worked until his wages amounted to about

$1,050.00 betore he drew any money. The conversation and arrangement with Thompson was substantially the same as with Miller. E. A. Smith lived next door to me, and we were often together and talking over mining matters, both being engaged in mining. I doubt not | told him that [ was running the mine on my own hook, or language to that effect, for I never denied the arrangement made with Potts and myself in New York. George T. Clark's statement in last trial, have no doubt it is correct. [ knew I borrowed money of him, and conversed with him in New York and here. Mr. Elliott, I don't know what I did sayto him. Mr. Hense, I told something about the mine; in substance, I told him I was going to make it pay, if possible, its own expenses. I was satistied I could make it pay after getting under way. He loaned me one thousand dollars.

Cross-int. one hundred and thirty-second. Did you, prior to 275 March, 1807, inform any one, or claim that you were to start up and work the mine on account of defendant; and if so, who did you inform ? (Plaintitf objects; immaterial & irrelevant. Exeeption sustained.) Answer. [ don't remember that I told any one.

a>

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 87

Cross-int. one hundred and thirty-third. Did you not, at the last trial of this cause, testify that you did not know that Becker was ever present when men were paid at the office, and that Becker was never present, to your knowledge, when you drew checks; and if so, was it not correct ?

Answer. I did so testify, and it was correct.

Redirect examination :

First interrogatory. Was the letter you say you received from Croswell

the first information you had that you were appointed superintendent?

2754 (Defendant objects ; immaterial and irrelevant. Further, that it does not show trom whom the information was received.)

Answer. The letter alluded to is the first inforination of my appointment.

Second redirect interrogatory. Had you any communication with defendant, or any of its officers, about your appointment as superintendent of defendant before you received Croswell's letter? If so, state who and what was the character of the communication.

(Defendant objects, because it is irrelevant, immaterial, and not the best evidence.)

Answer. Received a dispatch by telegraph from Becker or Potts, asking if | would accept the office of superintendent.

Third redirect interrogatory. Did you have more than one 2754 letter from Croswell, while he was president, concerning the business of defendant; if so, how many ?

(Defendant objects: same as above.)

Answer. I did; several of them.

Fourth redirect interrogatory. Did you ever hand more than one letter of Crosswell's to Henry M. Teller ?

(Defendant objects; immaterial and irrelevant, and is not in regard to anything drawn out ou cross-examination. )

Answer. I don't remember.

Fitth redirect interrogatory. You said in answer to 7th cross-interrogatory that you were directed by the defendant to send the amount of the defendant's liabilities at the time you were appointed superintendent to the defendant. State the amount of such liabilities, and who contracted

the same. | 274 (Defendant objects; irrelevant and immaterial, and not in regard

to new matter drawn out on cross-examination, and not the best evidence. )

Answer. The liabilities were contracted by Col. Mallery, former agent. The amount I do not recollect.

Sixth redirect interrogatory. Do you know for what these liabilities were incurred? If so, state.

(Defendant objects; same as above.)

Answer. I know a portion of the liabilities were for mining.

Seventh redirect interrogatory. You say, in reply to the 8 cross-interrogatory, that you have stated twice on former trials if this cause that you did not resign your position as superintendent while East in the spring of 1866. Do you mean that you have stated so on oath that you

did not so resign ? 275 (Defendant objects. Whether he did so swear or not it is a matter of record, and this is not the best evidence; and further, that that part of the answer is not responsive to the question, and that

88 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

he was not asked by the defendant anything he had swore to on ator mer trial.)

Answer. My understanding at the former trial and since that time, until T rec'd a copy of the company books, was that [I did not resign. I now state that until I see a certified copy of the books of defendant [ 'annot give a positive answer,

Kighth redirect interrogatory. You say, in reply to the Sth cross interrogatory, that you have stated twice on former trials of this cause that you did not resign your position as superintendent while tn the Kast, in the spring of 1366. Was sach statements made while you were

being examined in the cause as a witness, or at some other time? 206 (Defendant objects; same objections as last redirect" inter: rozatory.)

Answer. I think they were made on the stand, while [ was a witness.

Ninth redirect interrogatory. In answer to the Sth cross-interrogatory, you say that since you had stated on the former trial that you did not resign your position as superintendent you had seen a copy of defendant's books, in which your resignation was tendered by Crosswell. State in whose handwriting such copy was and who showed it to you.

(Defendant objects. Immaterial & irrelevant.)

Answer. It was in the handwriting of Becker and was handed to me by him.

Tenth redirect interrogatory. In answer to the 27th cross-interrogatory

, you say that Potts was to furnish the money to you to start 277 =o the mine. Did you not understand it was to be furnished from the money of defendant, and to be repaid out of the mine?

(Defendant objects—-special objection—because it calls tor the opinion of witness and not the fact.) °

Answer. My impression was that he would farnish the money from the treasury. IL was to repay the money atter opening mine out of the proceeds of the mine.

(Defendant objects, because witness gives impressions and not tacts ; 2nd, because it is not responsive to the interrogatory, as the iInterrogatory calls for an understanding. )

Mleventh redireet interrogatory. For what purpose was the money borrowed of Hense and Geo. T. Clark & Co. ?

(Defendant objects, because the witness has already stated.) 248 Answer. Lapphed the money in paying expenses incurred in starting up the mine.

Twelfth redireet interrogatory. From what source was the money borrowed trom Hense and Geo, T. Clark & Co. paid?

Answer. From the proceeds of the mine.

Thirteenth redirect interrogatory. In whose name was the Douglass mill run from the time you commenced in L867 until it closed down, and in Whose names was the account kept?

(Defendant objects; immaterial & irrelevant.)

Answer. I have repeatedly stated that all the works carried on at the mine, also the mill, was carried on in the name ot defendant, and expenses ot working the same was paid trom one general fund, the proceeds

of the mine. 269 fourteenth redirect interrogatory. At what time did you close the mill, and for what purpose ?

(Defendant objects; first, immaterial, and 2nd, not a proper re-examination.)

Answer. The mill was closed tor repairs in October or November, I think, without reference to books, a portion of each month.

"i

a,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 89

itteenth redirect interrogatory. Ho + long did the mill run between the first of October, 1868, and 16 of December, 1868 ?

(Det't objects ; immaterial.)

Answer. I don't remember.

Sixteenth redirect interrogatory. How long was the mill shut down while it was being repaired in the fall of 1868 ?

(Defendant objects; immaterial and irrelevant, and vot proper re-examination

. ) ?S0 Answer. | think from four to six weeks.

Seventeenth redirect interrogatory. Was the mill run after December, 1868; if so, how long ?

(Defendant objects; same as last above.)

Answer, It was run some; | dou't remember when it was shut down.

Kighteenth redirect interrogatory. Did you pay any of the men e:nploved about the mill while it was being repaired ; if so, how were they paid ?

(Defendant objects; same as last above.)

Aus*¥er. J did pay all ot the men; were paid with checks on the bank of plaintiff.

Nineteenth redirect interrogatory. On what ore was this mill run?

(Defendant objects; immaterial and not proper redirect examination

, } 281 Auswer. On ore from the Bates lode.

Twentieth redirect interrogatory. What was done with the gold taken from the mill during the years 1867 & 15868 and before December 16, 1868 ?

(Defendant objects; same as last above.)

Auswer. Sold to the plaintiff.

Twenty-first' cruss-interrogatory. What was done with the proceeds of such gold ?

(Detendant objects ; same as last above.)

Auswer. Used in payment of mining and milling expenses.

Twenty-second cross-interrogatory. Who was to have the proceeds of the ore taken from No. three west on the Bates lode, under your arrangement with Becker for running the mill and de'loping said Claim?

(Defendant objects; immaterial and not proper re-examination.) 282 Answer. Becker was to have the smelting ore.

Twenty-third redirect interrogatory. How long after you made the arrangement with Beeker about the use of mill and the working ot No. three west on the Bates lode, before you began to work on = said claim?

(Defendant objects ; immaterial and not proper re-examination.)

Auswer. My recollection is that | commenced working the claim in January, 1868, and the mill in August, L867.

Twenty-tourth redirect interrogatory. Did you state on a former trial vou commenced running the level west on No, three west before Becker went east In LS67 7

(Detendant objects; immaterial and not a proper re-examination

.) 2583 Answer. I don't remember what I stated, or that I stated anything with reference to it.

Twenty-titth redirect interrogatory. Was any of the ore taken froin claim No. three west milled with the ore taken from No. one & two west on the Bates lode?

(Detendant objects: same as last above.)

90) U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer. It was.

Twenty-sixth redirect interrogatory. At whose suggestion did you buy the west half of discovery on the Bates lode, if anybody's ?

(Defendant objects; immaterial and was @ proper re-examination.)

Answer. I bought it on my own suggestion, because I heard Becker say he would give a certain sum for it, and afterwards sold it to Becker in 1569,

Twenty-seventh redirect interrogatory. Who owns it now ? 254 (Detendant objects; immaterial and irrelevant, and not a

Answer. I don't know, but think Becker owns if.

Twenty-eighth redirect interrogatory. To whom and when did you sell it?

(Defendant objects; same as last above.)

Answer. I think in February, 1569,

Twenty-ninth redirect interrogatory. You say, on cross-examination, of yourown knowledge you cai't say that Becker knew you were working property of defendant under the arrangement with Potts. During the time you were so working the property of defendant did he not address letters to you as superintendent of Union Gold-Mining Company, or letters addressed to you with the name of the company defendant

or its initials on the envelope of such letters ? 255 (Defendant objects; Ist, irrelevant and immaterial; 2d, not a proper re-examination; dd, it has already been examined of an direct examination, and not on the cross; 4th, letters and envelopes are the best evidence.)

Answer. He addressed one as superintendent of Union G. M. Co., (and I think some of the envelopes had the initials of the company on them.)

(Exception sustained in parenthesis.)

Thirtieth redirect interrogatory. In answer to the sixty-sixth crossinterrogatory you stated that at the time of the making of the notes mentioned by you, you told Goodspeed you had no authority to contract debts in the name of defendant. Did you not, on the Ist and 2nd trials of this cause, swear that you did not remember that you told him you had no authority to contract debts in the company's name ?

(Detendant objects; immaterial and not proper re-examination. )

Answer. I told Goodspeed that I had no authority to draw 286 = drafts. [I see by the former testimony that I told Clark I had no

authority to contract debts in name of defendant; it was probably Clark instead of Goodspeed.

(Defendant objects, because not responsive. Exceptions sustained to the answer.)

Thirty-tirst redirect interrogatory. Are you confident that vou told Goodspeed, at the time of the making of the notes, that you had no authority to contract debts in the name ot detendant ?

(Detendant objects; call for impression instead of recollections.)

Answer. I think I told him so about that time.

Thirty-second redirect interrogatory. Didn't you testify on the last trial of this cause as follows: I told Goodspeed that I could net draw

on the company. I don't remember that I told him that I had no "Sis authority to contract debts in the company's name.

(Defendant objects; Ist, it is Immaterial; 2nd, it is the same question asked and answered three times; 5d, not a proper re-examination: 4th, on cross-examining his own witness on a matter drawn out by himself.)

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 91

Answer. I have but little doubt the testimony as taken before was taken as given. I still think I told Goodspeed I had no authority to contract debts; that my understanding was to shut down the mine when it wouldn't pay its own expenses; that I had full confidence in the mine paving; that I had quite a quantity of ore already broken in the mine, and that when crashed would yield a good amount of gold.

Thirty-third redirect interrogatory. When vou consulted the attorney about your personal liability in giving the notes, did you tell him to

Whom the notes were to be given, and on what account? 285 Answer. I don't think I did. Thirty-fourth redirect interrogatory. How many men did you work at the mill after October Ist, 18638, and until December 16th, 1568?

Answer. I don't remember the exact number; but tor one week ten or twelve; the balance of the time not as many.

Thirty-tifth redirect interrogatory. Where did you keep your receipt and check books ?

(Detendant objects ; immaterial and not proper re-examination.)

Answer. In the office on Lawrence street.

Thirty-sixth redirect interrogatory. Did your books kept by Messinger and Goodspeed show the proceeds of gold taken out of the property worked by defendant, and all money paid out on account of defendant

? 2s9 (Defendant objects. ) Answer. They did.

Thirty-seventh redirect interrogatory. Did your books so kept by Messinger and (Groodspeed show the expenditures of the money used in opening the mine?

(Defendant objects; immaterial and not a proper re-examination.)

Answer. I think they do.

Thirty-eighth redirect interrogatory. In answer to 126th cross-interregatory you say that Goodspeed told you that Becker had received a letter, and that the defendant repudiated this debt. Did you swear to this on the former trials ?

Answer. I don't think I did; I was not asked anything in relation to it.

Thirty-ninth redirect interrogatory. In your conversation with the

president of the bank, was not his statement to you that in case 290 =the defendant was not liable to the plaintiff you were liable to the bank or plaintiff?

Answer. No; after giving him the history of the case he stated you are liable to the bank, and if we fail to collect from the company shall collect from you.

Fortieth redirect interrogatory. After December 16, 1868, in what capacity were vou employed about the mine and mill ?

Answer. I took general charge about the same as before, except rendered accounts and gave gold to Becker.

Forty-first redirect interrogatory. When was the mine shut down ?

Auswer. I don't remember.

First. In your re-examination you state that it was your impression that Potts was to loan to you the money of the defendant; state what was said, and how you got that impression.

(Plaintiff objects. It is not a proper recross-examination.)

92° =U. G. M. Co. Vs. Rocky Mt, Nat. Bk. Of Central City.

Answer. Potts said when [ told him IT should require some money to start up the mine with, that he would let me have it; there was nothing said at that time to give me the impression, but I have understood in some former conversations. I understood that they bad some money in the treasury, and, from the fact that he was treasurer, I inforced he would furnish from that fand.

The conversation testified to by me in this deposition with Hermon

Kountze, president, of plaintiff? Charles Iountze was out and in 292 during the conversation. Do not know whether he heard any partofotornot. [so testified in deposition, but it Was pot put in.

(iixplanation tend. In parenthesis. }

I also wish to say, in explanation, should any part of this deposition differ from the testimony given by me in former trials, | had no access to my vouchers, letters, or books, and testified from memory. Now, while giving this deposition, [ had full and free access to all vouchers, pass-books, letters, &c., other books of the defendant as well as of the plaintiff, together with the original report made by me to defendant on

I, John R. Cleaveland, clerk of the district court of the 2nd judicial district of Colorado, within and for Gilpin County, Colorado Territory, of Central City, in compliance with said suwpoena, being duly ap- 293 pointed to take the deposition of George K. Sabin, a witness Whose name is subseribed to the foregoing deposition, do hereby certify that previous to the examination of the said George K. Sabin as a witness in the suit between the said Rocky Mountain National Bank of Central City, plaintiff, and the said Union Gold-Mining Company of Colorado, defendant, he was duly sworn by me, as such commissioner or clerk of said court, to testify the truth in relation to the matters in con troversy between the said Rocky Mountain National Bank of Cen rl City, plaintiffY and the said Union Gold-Mining Company of Colorado, defendant, so tar as he should be interrogated concerning the same. That the said deposition was taken at my office in the city of Central, county of Gilpin, and Territory of Colorade, commencing on the 3Slst day of October, A. D. 1875, and continuing on the first, third, and fourth, and ending on the loth day of November, A. D. 1873, and that after said deposition was taken by me as aforesaid, the interrogatories and answers thereto as written down were read over to the said YOL owitness, and that thereupon the same was signed and sworn to by the said deponent, George K. Sabin, before me, the oath being administered by me as such commissioner, or clerk of said court, at the place and on the day and year last aforesaid.

SEAL OF THE COURT, ) JOHN KR. CLEAVELAND, . GILPIN COUNTY, ~ Clerk 2nd Judicial District of ¢ 'olorado i COL. TER RY. \ Territory, as Commissioner.

(Endorsed:) 51,100. Roeky Mountain National Bank of Central City vs. Union Gold-Mining Company. {Gilpin County district court, Colorado.| Deposition of George K. Sabin. Opened 17 November. Filed same day, Nov. 17th, 1875.) John R. Cleaveland, clerk. Henry

Bell, deputy. 205 The plaintiff then called JoserpH H. GoopsrEED, who was aWworl as a witness, and testified as follows, to wit:

1 am acquainted with the parties to this suit. Am aequainted with

U. G. M. Co. Vs. Rocky Mt Nat Bk. Of Central City. 93

the defendant as well as I coulil be in this country. I have known the plaintiff since the summer of 1566, and have known the detendant since IS67. I was in the employ of the plaintiff from November, 1866, until January, 1870. The detendant was running on Bates' lode. Defendant had an office on Lawrence street, in Central City; there was a sign on the left-hand side of the door as you goin. The sign had on it, * Office of Union Gold-Mining Company." George K. Sabin occupied the office. M'r Sabin was in charge ot detendant's business in fall of 1866.

When [ went there he was mining. Sabin did business with plaintiff; commenced in March, 1567. He eame into the and deposited money. In 1867, atter L came here, M'r Sabin came into the bank, and, as super intendent of the Union Gold-Mining Company, deposited four hundred

and forty-three dollars, or 440 dollars anyway, and continued 296 «doing so till December, 1868, depositing and drawing checks

againstit. M'rSabin brought in currency the first time; he afterwards brought in gold and sold it. The proceeds of the gold were placed to the credit of the detendant.

M'r Sabin came to me one time in the spring, or along in the summer, of 1867, and told me that Frank Messinger, the man who had generally kept his books, had gone East, and asked me to write them up for him: he brought on bis vouchers and read them off to me, aud | entered them on the books as he read them. He said he was going East, or had been East. I wrote up his books after that till Ist October, 186s.

From time to time after that he brought in his vouchers or receipts ; they were the receipts taken for money paid out by him. T entered them on the book as he read them off to me.

The plaintiff here asked the witness this question, "In whose name were those receipts ?" to the witness answering which the defendant ob

jected, because not the best evidence; the court overruled the objection,

and the defendant then & there exeepted. The witness then answered. The receipts read, ** Received of the Union Gold-Mining Cotn- 297 =pany, at the hand of George K. Sabin, agent," so many dollars, signed by different parties. The receipts acknowledged that they received money from the Union Gold-Mining Company. This method of doing business continued trom March, 1867, to December 16th, 186s, On December 16, 1868, the indebtedness, or amount due from defendant to plaintiff, was twenty-one thousand and odd dollars. The books are here somewhere. |

(Witness was shown the copy of account attached to declaration in this case. ) .

I] examined this account after it was made out. The balance is twenty-one thousand two hundred and seventeen dollars and six cents; that Is, to the term of finally closing the account, January Ist, 1860,

(A check shown to witness.) This is a check made by Sabin—Geveorge K. Sabin.

(Several checks shown to witness.) These were all made by George K. Sabin. <All the cheeks included in the account were made this way. I eould tell how many checks he made by counting them. <All these on the account were made by him, Sabin, in the same way, and

he made others in the same way. POS ('The cheeks shown to witness were handed to the court to be Inarked., )

These cheeks were paid by the bank and charged to the account of the Union Gold-Mining Company, and entered up in Sabin's pass-book and returned to him. This passbook was kept in name ot Union Gold

G4 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Mining Company. The total amount of the dealings between plaintiff

and defendant during the time I have mentioned was, in round uumbers, one hundred thousand dollars; about that.

Mr. Sabin looked over this account every time his pass-book was written up. On the first day of January, 1869, the last statement was made.

I knew Theodore H. Becker. IL forget whether [ met him in 1867 or not. fle was here that summer. [ met him when I got back trom the Kast in January, 1869. He was here the summer before, and in the summer of 1867.) | remember seeing him in the street. Don't know Whether | was introduced to him or not. [le was bere either just betore or just after | went East in sos. He went away on morning of March

'Oth, 1Ss69. T returned here during the first week in January, 209 i869; wasin Chicagoon New Year's day, and came right through,

stopping one day in Omaha. [ had a number of conversations with Mr Becker about this indebtedness, after [ returned. [I was acting in the capacity of cashier of the bank of plaintiff.

Hlere the plaintiff asked the witness this question: " Did) vou have any conversation after you returned in January, 1869, with Theodore Hh. Becker concerning this indebtedness, or with reterenee to this ae-count? It so, state what it was." To the witness auswering which the defendant objected, because there is no foundation laid to show that Mr Becker had any authority trom the detendant to act in this matter on its behalf.

The court overruled the objection, and defendant then and there excepted to the ruling of the court.

Witness then answered: * Yes; from the time [ came baek until the 20th March, 1869, Mr Beeker was in the bank, sometimes in the daytime and sometimes in the evening, at least once a week, and often two

or three times a week. At each of those times I had conversa- 300° tion with him in regard to the indebtedness of the company to the bank.

'Tle said that the accounts would be paid; that he would go East and eall a meeting of the directors, and that assessments should be made. He would have assessments made and the claim paid. He also told me that before he left the country he would himself pay, or see paid, every debt the company owed, except this debt to the bank."

Here the defendant moved to strike out part of this answer, beginning at * He also told me." &e., to the end; but the court overruled the motion, and defendant excepted then and there to the ruling.

"TT told M'r Becker there were a good many small debts around the country." ;

Plaintiff here asked witness to "state what you told him and what he replied ;" to the witness answering which the defendant objeeted—objected to witness stating anything he told Becker; but the court overruled

objection, and detendant then & there excepted to the ruling of

the court. 301 The witness then auswered as follows: © The time Beeker was talking about making an assessment to pay the claim up, I told him that there were a good many small claims on the company due at the time Sabin shut down. and if he went East they would be suing them in justice' court, and that | thought he ought to see that everything was cleared up as well as he could before he lett the country and went East. Thenhe gave me the auswerthat Mr Reed has down there." Piaintift here asked the witness, Do you kKuow ot his paying any of those debts?" The detendant objected to witness answering. because immaterial and

"a

"7

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. Q5

not connected with the subject-matter of this suit; but the court overruled

the objection, and defendant then and there excepted to the ruling.

Witness then answered: * He got money from the bank to pay them

on dratt drawn on the East: that is, to pay these sinall debts. He obtained

the money by his draft drawn on the treasurer of the

302. company. These drafts were drawn between the time of my return

from East and the time M'r Becker went away; between

some tine in January and the 20th Mareh, 13869. He drew a draft the

hight before he went away.) Mr Becker had a settlement with Sabin on

the evening of 19th March, 1869, in the office of the bank. Becker, Sabin. Mr J. LH. Potter, & myself were present."

Plaimtit® here asked the witness: State what took place there at that time."

To witness answering, the defendant objected, because immaterial ; What took place there between them is not connected with the issue. The court overruled the objection, and detendant then and there excepted,

Witness then answered: " Becker asked me to look at the company's books and see what was due M'r Sabin on them at the time he quit work. I looked and told him the amount, and he paid Sabin for that, and tor

the time he had worked trom that time until 19 Mareh. Beeker 305 asked me what was the amount due Sabin on the books. (Books

of detendant banded to witness.) These are the books. The amount | told him was one hundred and forty-five dollars and forty-one cepts. This was the balance to December 16th, 1868. It was for salary as supermtendent of the company and rent of his engine. The salary Was ftizured at the rate of thirty-five hundred dollars a year. Mr Potter had made the last entries in company's books.

* The books were then in the bank. There was no entries made in the books after the 16th December, 1868.) In addition to the $145.41, M'r becker paid M'r Sabin for his services up to Mareh 19th, 1569, in all three or four hundred dollars. I don't remember just how much. After Becker had paid Sabin be discharged him in presence of myself & Potter—discharged him as superintendent of the company.

* Mr Becker went away the next morning, and returned some time the following summer. M'r Becker came and examined these books in

the back room of the bank—perhaps he never did so but once. 304 Mr Becker stated that he would call a meeting of the directors,

and have the assessment made in February. Then afterwards he said the assessment would have to made by the stockholders. This last statement was made some time after the first, and after February, I think. When I asked him why he did not have the assessment made in Febraary, he said that under the New York law it had to be made by the stockholders.

"On the 19th Mareh, 1869, Mr Becker spoke about making the assessinent: said he owned a majority of the stock in the company, and as soon as he could go East be would have the assessment made in April."

The detendant here objected to all statements made by M'r Becker: court overruled the objections, and detendant then and there excepted.

Witness here auswered: * Mr Beeker Knew the amount of this in debtedness." Here the plaintiff asked the witness this question: Did you know of Mr Sabin's making any accounts at other places with other

parties during this time 2?" 305 The detendant objected to the witness answering, because, Ist.

96 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

That the dealings sought to be proved is of a different kind from that sought to be proved, and of a different kind from that ip controversy. 2d. While anagent, it he was an agent for the purpose of mining, might have authority to contract debts for supplies, he could not have bad au thority for the purpose of drawing checks or giving notes. 3d. If Sabin was doing business with plaintif? and there was a wrong showing traudvient conduct on Sabin's part in dealing with other parties In using defendant's name, would not justify it in this instance. It 1s not shown that witness knows what Becker did in regard to these other aceounts, and is not the best evidence.

The court overruled the objection, and defendant then and there excepted to the ruling of the court.

The witness then answered: ** Yes, [ do; I know of steel from Tappan XW Co, and powder."

Plaintiff then asked, " Were they charged to defendant ?" to the wit

ness answering which defendant objected on account of form, and, O06 2nd, not the best evidence; but the court overruled the objection, and defendant then and there excepted to the ruling,

Witness answered: * T want to explain that the only way I do know is by seeing bills made out by these parties. IT don't know how [ would know who is president of defendant in the year 1867 & 15868, but to the best of my knowledge M'r Becker was. Hewas introduced to me as president. Mr Si thin was about the bank doing business very often; I might say once a week during the whole time."

Plaintiff then asked: " Did M'r Sabin ever at any time notify you that he had no authority to make debt in the name ot defendant?" to the Witness answering which the defendant objected, because the agency 1s not shown to have existed, no statement of Sabin ever declaring he was anagent. It is attempting to get a negative statement from the witness When there is no affirmation, and an attempt to contradict their

own witness. The court overruled the objections, and the de- O07 ftendant then and there excepted to the ruling of the court.

The witness then answered: ** No, sir; he never notified me of anything of the kind. | have stated the substance of these conversa tions with Becker about this time."

Plaintitf then asked: * In what conversation did) you state to whom these small debts were due?" The detendant objected to witness an swering, because leading and prompting; objections overruled, and defendant then and there excepted.

Witness answered, * | domt think PP told him."

(Here books of detendant were handed to witness. )

* Tecan tell when T commenced to make entries here."

Plaintiff then asked: * When wasit?" The detendant objeeted to the Witness answering. The objection was overruled by the court, and de fendant then and there excepted.

Witness answered: * Ll commenced making them tor the month of April. That would be in the month ot May that [T commenced, 1567.

The first accounts | entered were those tor April. It seems from OOS this book that | commenced making entries tor the month ot April, and afterwards the month of May seems to have been written up by George Mabee. IT know his handwriting, and Sabin told me.

* The account TL referred to when Becker asked me to look at Sabin's account is on page 40. It is the account Becker settled tor. My writ- Ing in this account extends trom June, IS67, to Oetober Yth, Tsos. There is one entry by Potter, December loth, There is an account with J. O. Revnolds here. Thad nothing todo with writing that up. There

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 97

is a cash account in the books. The expense account seems to have been kept under the name of *the Bates lode." On page 45 that ae-count commenced, August 3ist, 1865, and runs along to Deeember 16th, ls6s. There is nothing here atter Deeember 16th, 1868. The first entry | made was June 7, i867, and the last October sth, 1868."

The plaintiff here asked the witness to "state the method of keeping that account of the Bates lode."

The defendant objected because not the best evidence; objection over:

ruled by the court, and the defendant then and there excepted. 309 Witness answered: = Everything paid out for the mine, for mining

, milling ore, \e., the expenses of the mill & mine, hauling ore, &c., put on one side of the account, and the proceeds of the gold or sale of ore put on the other side, placed to the credit of the mine. The left-hand side is the debit side & the other the credit side."

Plaintit® here asked: " What was the account of J. Me. Rank? What was the entry made on the 6th June under head of sundries, an item of quite an amount ?" |

The detendant objected to the witness answering, because irrelevant and immaterial and has nothing to do with the subject-matters of this suit; they claim overdrafts made by Sabin amounting to 21,000, due December, 186s. They claim, Ist, that Sabin was agent of defendant and authorized to carry on that business. and as agent he had the authority to contract this debt, or, that if he was not agent, the defendant

has since that time ratified his acts, and all evidence that does 310° not tend to show one or other of these propositions Is irrelevant

and immaterial; and again the witness has said he knew nothing except trom papers handed him. Plaintiff attorney stated that he desired to show that all these entries, made like the one included as ** sundries," were for labor on the mine, The court overruled the objections, and the defendant then and there excepted to the ruling. Witness then answered: " Page 96 of the day-book is an itemized account of labor and bills paid during the month of June and part of May, labor and hauling quartz. These are the books that were lett, and are the books ot the Union Gold-Mining Company." On cross-examination witness Goodspeed testified as follows: First knew plaintiff at time of organization of bank. I know defend. ant was working the Bates mine, because | have been there while men were at work on the Bates lode, men employed by Sabin. O11 l cant give any other reason for knowing the defendant worked

the Bates lode than the one I just gave—because Sabin was there and employed men. I don't know any other way a man could be superintendent up there in the mountains. Sabin told me he was superintendent. He brought an account to the bank and opened it in name of Cnion Gold-Mining Company. He never told me in so many words, I knew it from the fact that he signed his name as superintendent. I think he signed as agent. The words agenc and superintendent are synonyvinous up there in the mountains. If aman signed his name as agent, | consider it the same as telling me so. I knew he put "ag't" atter his name, and others told me he was agent.

I think I was introduced to Mr Sabin by M'r Weleh, when I went to the mountains as agent of Union Gold-Mining Company, in November, lso6o. Mr Sabin has told me either that he was agent or superintendent

, hundreds of times. I don't know how he told me so, but O12 le has told meso. T cant remember when the first time was. He sonedcheeks that wav. Tcan't sav whether he signed cheeks that way the same dav he made the deposit or not. He opened an

BEC. Logos

98 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

account in name of Union Gold-Mining Company, made a deposit, and had it placed to the company's credit on its pass-book.

He had kept his account at Clark & Co's previous to that; don't know in whose name he kept it there; never took any pains to ascer-. tain. T asked M'r Sabin what his powers was at the time he commenced the overdraft. He told me he had authority to draw drafts. He did not give me any drafts; gave me good reasons for not giving them.

When I commenced doing business with him I did not make any in. quiries as to Whether he was doing business on his own account or for the defendant. [ think IT never made such inquiries. I never commu nicated with any of the officers of the defendant to ascertain what authority, ifany, he had.

! was cashier of bank. I mean that Sabin was mining in defendant's

mine. When [ say he had charge of its business, he was doing 313 business in the name of defendant. Sabin commenced doing business with me when I first eame to the country.

Between November Ist, 1566, and the time he commenced doing business with me, | did not know ot his doing any business in the name ot defendant, except from hearsay; that was all. IT had no personal know] edge of it. I heard say on the street that Sabin was agent of the com pany.

I dowt remember exactly the time Sabin brought his accounts to me to keep; the first entry is in April, and it must have been in May le brought the books; they may have been a month or two behind when he brought them to me. George Maber and Sabin made entries in the books after IT commenced writing them up. There are no charges in the books in favor or against the detendant. The name of defendant does not appear there any more than the bank's name in the books of the bank. Mallony opened the accounts "the Bates Lede ;" it is what I

would opened " Expense accounts." [t has on one side all the expenses of the business, and on the other all the credits. old The tirst I knew about Mr. Sabin mining other property than

that of defendant was along in the latter part of the summer of 186s. I dom't remember the date. !

Defendant here asked the question, ** What property did you know of

his mining then: Plaintit® objected to witness answering. The court sustained the objeetion, and the detendant then and there excepted to the ruling of the court.

The account as it stood on the books against the defendant about January Ist, IS68, was S&21,217.06; it had been more than that in December, but they brought in some gold; that was the balance. This was created by overdraft. I never had notice from anybody, nor from Sabin himself, that he had authority to sign checks in the name of defendant, except if a man put money in a bank [ think he has a right to draw it out.

l never asked Sabin in regard to his authority to sign cheeks. IT never made any inquiries of any officer of the corporation detendant in regard

to the authority or right of Sabin to draw checks in its name. lo These checks were paid and charged to account of detendant

and returned to Sabin up to the time I went away, and afterwards as far as my knowledge went.

Sabin kept a pass-book ; it shows all of the transactions between him and the bank in name of detendant. Beeker was in bank frequently, and Teonversed frequently with him about indebtedness after [ returned trom the East. leant tell the date now when | tirst conversed with

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 99

him. It was the time he was going to lay the matter before the directors, in February. After he tailed to fulfil his promise to do this he promised to lay it before the stockholders. He first promised to call a meeting of directors & have an assessment made. [ don't know of my own knowledge whether it was laid before the directors & an assessment made or not. I think his words were that he would lay the matter before the directors and have the assessment made at the time he told me he would call a directors' meeting. Afterwards he explained to me that the directors could not make an assessment; that had to be done by the stock holders. O16 Mr Beeker did not promise me to see the debt paid only in the way I have stated. He distinetly told me that the only way the assessment could) be made was by a vote of the stockholders. [ think he said he would bring the matter before the stockholders; have a vote passed onait; that he owned a majority of the stock and would vote the assessment. Afterwards he said it required a two-thirds vote instead of a majority, and that he could not vote it on his own stock.

M'r Becker informed ime by letter, after the meeting in April, that the balance of the stockholders retused to vote the assessment. I don't know what time in April it was. Mr Becker said before he went East that he would see all the other debts of the company paid. I was speaking to him about the little debts outside that they might get a judgment on and sell the property.

I have testified in this case before, twice. I don't know that I

O17 = gave the reason tor wanting these small debts paid before. Becker

said, in effect, that all the debts Sabin had contracted in running

the mine—the debts contracted the same as ours—should be paid before he went east, and ours should be paid by an assessment.

Tappan & Roworth' accounts were not for borrowed money. I don't see any difference between getting money & getting powder. <All these debts stood on the same footing. I don't know that I told Becker my reason for wanting these small debts paid; don't know that I gave any reason. [T may have. I don't know the exact amount Beeker pad Sabin when he settled with him. I know the one item he asked me to tell him; that was S140 and some cents; that was balance of salary at 5.0008 per vear, and rent of engine from the time Sabin commenced on the lode up to that time. I think the last payment before that was for the month of September. Made the entry on the first of October before

| went East. ols Mr Sabin kept a running account: he did not settle every mouth tor his salary & engine. I don't know how much M'r Becker allowed Sabin after the loth December and until 19th Mareh, except from what Mr Sabin told me or in his testimony.

| had nothing todo with their settlement; that was M'r Becker' and Mr Sabin's private attairs.

I think | testified on a former trial that Beeker paid Sabin in the neighborhood of four hundred dollars. I don't know that I saw the money counted out, but M'r Sabin said something of that kind. The rent of the engine was one hundred dollars per month. These books remained in the possession of the bank till last term of court, from December, 186s, till November, 1872, about 4 vears. The books were in the bank during this time There were no credits there after the balance of one hundred and forty-five dollars to M'r Sabin; no entries after the

loth dav of December, 186s, 51% [ only mace entries from the receipts M'r Sabin turned in. There is no entry in these books to show that that amount was

100 U. G. M. Co. Vs Rocky Mt. Nat. Bk. Of Central City.

ever paid M'r Sabin. J don't know what you would call proceeding to pay the debt. I stated to you just what Becker said tome. Becker told me he could do nothing until the directors' meeting; that is what he always said, directors' or stockholders' meeting. T can't swear whether he said directors' or stockholders' meeting at the first conversation [ had with him in January, 1569.

On redirect examination witness Goodspeed testified as follows :

Plaintiff asked witness the question, "In reply to a question of M'r teed, you stated that you knew in 1868 that M'r Sabin was working other property. State what property you referred to." Defendant objected to this question because it was stoppea by the court from inguirie® in regard to it; but the court overruled the 320) objection, and the defendant then and there excepted to the ruling of the court. Witness then answered: "T think it was a lode up in Nevada or Russell somewhere; I think a lode called the Continental lode; think Mr Sabin owned it in' the summer of 1868, and sold part of it to a party in Chicago aud worked some on it afterwards." Here the plaintiff offered in evidence the books of the defendant.

Defendant objected because, Ist. It is not shown that they are books of

the defendant and kept by an officer of defendant. 2nd. No authority shown on the part of Sabin to do business or keep books in the name of defendant. 3d. Not having that authority shown, no items in the books could be competent evidence in the case. And the court: overruled the objections, and detendant then and there excepted to the ruling of the court. ;

Plaintitt then called THomMas Tl. Porter, who was sworn as a witness and testified as follows: 321 '* 7] know the parties to this sit; have known the plaintiff since the early part of 1867, T have been in the employ of plaintiff since July or August, 1567, as book-keeper and other business connected with the office."

The plaintiff? here asked the witness this question: ** Do vou know What business the detendant was engaged in in the summer of Ls607 2?" to the witness answering which the detendant objected, because there has been no foundation laid nor shown that defendant was doing anything. The court overruled the objection, and detendant then and there excepted to the ruling of the court.

Witness then answered: ** They were engaged in mining on the Bates lode, running the ore through a stamp-mill and selling it, carry ing on the business generally of mining & milling."

Plaintit?! here asked the witness this question: ** Who was the agent or superintendent of defendant in the summer of 1867, when you first knew it, in charge of its work, if you know 2?" to the witness answering

Which the defendant objected, because not the proper mode of 322 proving agency. The court overruled the objection, and the de-tendant then and there excepted to the ruling of the court.

The witness then answered: * George K. Sabin was agent; carried on or superintended the business during er & Ls6s,) Detendant was

nining on What ts called the Bates tode, between Central City and Black Hawk. in Gilpin County." Plaintitt here asked this question: « What was Sabin doing at that

time that vou speak of 7" The deteudaut objeeted to the witness answer-

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 101

ing for the reasons last above given. Objections overruled by the court and defendant then and there excepted to the ruling.

Witness answered: " le was superintending the works of the company. I know what the duties of a mining superintendent are generally, and there are a good many duties that I do not Know about. To have general charge of all the workinan at the mine and general supervision

of the business connected with mining outside of his 325 ainilling, and buying supplies. The superintendent usually takes

charge of the gold when it is delivered to him by the mill-men ; sometimes he takes charge of it in amalgum, has it retorted himself. The superintendent disposes ot it; sells it or ships it East."

Plaintit® here asked this question: " Did the defendant do any busi ness with the plaintiff after your acquaintance with the parties? If so, state the nature of the business, how it was transacted." To the witness answering this question the defendant objected, because it has not been shown that the defendant was dol.c any business in Colorado at all. The court overruled the objections, and the defendant then and there excepted to the ruling.

Witness answered: * They did business with the plaintiff; sold all the vold produced, | think, and on selling the gold it was put to the credit of the defendant and cheeked out by George K. Sabin, the agent and superintendent, for the payment of his men at the mine and at the mill,

and for the purpose of paying bills for the purchases made from O24 different parties in Central City and other places, mining supplies

, such as iron, steel, handles, candles, picks, drills, and things of that class, powder-fuse, and other things I can't think of now. The business at the bank was transacted in name of defendant.

"Sabin continued to do business at the bank in that way from the

I went there in July or August, 1867, until December, 1868. The account was opened before [T went there. This account was closed on the pass-book on Sist December, 1868,

'Mir Sabin brought in a pass-book which had been written up to the 16th December, 1868, T think, and asked me to write it. up, which I did, with all the cheeks or vouchers. A balance was struck; it showed the defendant owing plaintiff? $21,217.06; that was made up of what we eall overdraft. The debit amounted to so much more than the credits.

It was all overdraft so far as the bank was concerned. There is 325 one item of interest of four hundred and fifty-nine dollars and

fittv-five cents. This was figured at two per cent. a month, I think, from Ist October: [am not positive about the time. This was included in the balance. I spoke to M'r Beckerabout the interest. He said, 'All right; charge it up.'

'*T called upon Mr Beckeron December 16th, 1868, at M'r Elliott's house, in Chase Gulch, in the evening, in company with Mr Sabin. After the ordinary salatations we proceeded to talk business. Tasked M'r Beeker if he was ready to pay up the indebtedness due the bank. I have forgotten just his reply to that; it was not favorable, and I urged on him the necessity of paying the debt as we had waited some time; it had not been settled, as we were led to believe it would be by Sabin: we were nneasy, and did not think it was in good shape. [T asked him to pay it or give some kind of security. T urged it pretty strongly, & Mr Becker

gota little aggravated and said, * Your damm bank think' you have o20 divine right. After a tew minutes Mr Beeker got in a_ better

humor, and we talked the thing over in a friendly kind of a way and he said we need not be at all alarmed: that it was all right and he would see that if was fixed up.

102 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

"We may have had other conversations, I think that is the substance of what was said about the business. | think | told him the amount at that time."

Plaintiff here asked this question: © Did vou ever have any subse quent couversation with Mr Becker concerning this uidebtedness ; if so, when, and what was it?"

The defendant objected to any and all statemeuts made by Mr Becker without showing has authority from the defendant! There has been no authority shown Mr Becker to make statements binding the defendant. The court overruled the objections, and defendant then and there ex cepted to the ruling of the court.

Witness then answered: "To think several times after that I met

Mer Beeker and asked lim when he was going to settle up the 327 claim. He would always put it off in a kiad of joking way, and

say he would fix it up atter a while. Once or twice he said he was going East to have a meeting of the directors of the Company, and that he would lay the matter before them and would have an assessment made to pay off the debt.

'" Hlad these conversations every few days for a mouth. [ was present ata conversation between C. B. Kountze and M'r Beeker about Ist January, 1869. I know of a letter written about that time by M'r Becker to president of plaintiff. [ was present at the time." :

(Here plaintiff offered in evidence a copy of a letter.)

'This is a true copy of the letter [refer to. IT made this copy from the original; this was written on Ist January, 1869. 1 did not have anything to say at that time. IT heard the conversation; 1t Was in the forenoon, in the front office of the bank. The bank was closed New Year's." |

(Here defendant objected to anything said by M'r Becker at that O25 time, because it Is not shown that he had any authority trom defendant. The court overruled the objection, and defendant then

and there excepted to the ruling of the court.) Witness answered :

"Mr Kountze asked M'r Becker todo something; either to pay up the claim or give some security or some acknowledgement of the indebted. ness. Mr Beeker retused to give any security, either trust-deed oi Government bonds, or some other securities that might be asked, but said we need have no alarm about the payment of the claim; that he would go east in a short time from that—lI don't know whether he stated the time—and would have the shareholders assessed and pay it up.

"Mr Wountze then wanted lim to sign some paper that would definitely state the amount of the claim, and the only paper that he would give was this letter. |

"T think one or two of my conversations with Beeker was later than

this. [just asked him about the claim and that would be the 329 end of it. | was present at a settlement between Mr Becker and Mr Sabin."

(Here detendant objected to any evidence in regard to the settlement between Mor Beeker and M'r Sabin, because no part of the res gesta and Immaterial. Lhe court overruled the objeetion, and detendant then and there excepted to the ruling ot the court.

Taintil here asked : ** Were you ever present at any settlement M'r Beeker, as president of defendant, and M'r George IX. Sabin ?"

The detendant objected to the witness answering. The court overruled the objection, and detendant then and there excepted to the ruling of the court. Witness answered, "To was." Plaintitt then asked the Witness to "state What was said at that time." Defendant objected to

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 103

witness answering. The court overruled the objection, and detendant then and there excepted to the ruling of the court. Witness answered: "It was in the evening, I think between 5S and o'clock, ora 330 little earher, M'r Sabin and M'r Becker came into the office of the bank. M'r Becker asked M'r Goodspeed to figure up M'r Sabin's account to same date, | think, in December. Mr Goodspeed did so, and told him the amount; it was one hundred and forty-five dollars and some cents. M'r Becker paid Mr. Sabin the amount and gave him a receipt to sign, then he turned around and told M'r Goodspeed and me that he discharged M'r Sabin as superintendent ot Union Gold-Mining ('ompans trom that date. LT domt remember whether there was anything said at that time about the debt to the bank, but M'r becker seldom called without speaking of it. M'r Becker took charge of the property of detendant some time in December, 1868, or beginning of January, 1869."

Plaintitf here asked: " Do you know whether there was any debts

against this defendant made by Sabin except the debt to the bank at that time?" to the witness answering which the defendant

331 objeeted. The objection was overruled by the court, and defendant then and there excepted.

Witness then answered: "TIT kuew there were other debts from the statements made by Becker at the time he drew a draft on the treasurer of the company; he said he drew it for the purpose of paying up back indebtedness which had occurred under Sabin's administration."

Plaintit! here asked: " Did be draw more than one draft ?" to witness answering which the defendant objected, and also moved to strike out of last answer all testimony in regard to a draft, but the court overruled the objection and motion, and defendant then and there excepted to the ruling.

Witness answered: "1 think this indebtedness was between two and three thousand dollars. I] made some entries in the books of defendant when M'r Goodspeed was absent. (Book of defendant handed to witness.) Yes. sir; these entmes in Sabin's account were made by me. M'r Sabin brought the books to me and said he would like to have me

write themup. | did so. Mr Becker came to the bank once and 332 asked to see the books, and I think IT heard him speak afterwards

as it he had looked them over. They took them away from the bank and afterwards returned them."

(on eross-examination witness Potter testitied as follows:

"] think it was in August, 1867, that I went into employ of plaintiff, When I speak of detendant mining on Bates lode, ] mean what a person does in speaking of another mining, that they have a lot of men em. ploved in taking out ore, sinking a shatt, and drifting. I have been at the mine frequently ; know the defendant was mining it, by George K. Sabin.

"TT saw the Union Gold Mining Company mining as far as one could see a corporation at work. It is my impression that the Union Gold- Mining Company was mining. M'r Sabin had charge of the work; he was agent. | know he was from general reputation, and because M'r

Becker, as president, discharged him as agent. I know that now. $30 ITknew he was agentin the summer of 1567 trom general reputation ; Theard it all around. He made purchases of Hindon Bro's, Laugford & Co., Rowarth & Co. I know because the bills were paid by checks drawn on the bank. I knew what the checks were for. because

104 wv. G. M. CO. VS. RCCKY MT NAT. BK. OF CENTRAL CITY.

checks of that nature are daily in deposit from different customers of the bank; are supposed to be for goods sold.

'Am not very familiar with general duties of a mining superintendent; may have not mentioned all. The account was already running at the bank when I went there; I do not know the circumstances under which it was commenced. The dealing was closed before 31st December, 1868, but no final account was rendered before that time. The transaction was closed about the 20th or a little later.

'¢We paid several checks atter the 16th. They were drawn after that and may have been dated before. The balance was struck, #21,217.06, on 3lst December; it was all for overdraft except the one item of interest

. The account was near fifteen thousand dollars, overdrawn 334 about 15th October, 1868. There was a credit made on the ae-count

on the 3d day of October of ten thousand dollars; it was withdrawn from the account, however. The balance outside of the ten thousand dollars was five thousand dollars about Ist October. The ten thousand dollars' credit consisted of one or two notes made by Sabin at the request of Goodspeed.

'T was present when those notes were made, and the amount of those notes, $10,000, was passed to the credit of defendant. The account was eleven thousand & odd dollars on Ist January, 1869, with these notes out. The notes were in the possession of the bank on 31st December. We considered the whole amount of $21,217.06 as overdraft on 51st December; did not consider the notes good.

'* We did not consider the notes very good when we took them. I did not insist on having them. M'r Goodspeed asked for them and M'r Sabin made them. At the time the notes were made M'r Sabin said

he had no authority to sign notes. M'r Goodspeed asked him 335 ~=to make a draft on the company. M'r Sabin had told him there

was about seventeen thousand dollars in the treasury, and he wanted him tomakeadraft. Sabin said he was not authorized to draw, and had no authority to sign notes, but that he would, to make the account appear in better shape on the books. Sabin requested that the notes be destroyed at the time and not appear in the account.

"Mr Sabin did not want the company to know about them, as they had not authorized them him to sign notes. I think M'r Becker was in Central or Chase Guileh at that time. Neither 1 or M'r Goodspeed or any officer of plaintiff notified M'r Beeker of that transaction. I did not ask M'r Becker to make notes until December. I knew M'r Becker was in town; did not ask him to sign notes then; did not tell him of the transaction.

'| have not seen those notes since last term of court. No member of

the bank corporation ever informed Becker of the existence of 336 those notes that | am aware of. These notes were passed to defendant

's credit on our books, and yet there was $21,217.06 due in December, because we did not consider the notes good.

'"Wedid not deliver the notes up; I think they were taken up by Kountze Brothers. We left the books as they were. If the 10,0008 credit was left standing, there would be only eleven thousand two hundred and seventeen dollars and six cents due. The books were not changed before that time. The £10,000 may have been erased; I don't know. It was erased in the pass-books of Sabin. I don't know whether I erased it or M'r Collins did. Our balance-book showed a balance of &21,217.06. The notes were taken off the account shortly after by Kountze Bro's. When it bad to go into suit the notes had been taken off the accounts. We rejected the notes.

104° =U. G. M. Co. Vs. Rccky Mt Nat. Bk. Of Central City.

cheeks of that nature are daily in deposit from different customer' of

the bank; are supposed to be for goods sold.

"Am not very familiar with general duties of a mining superintendent; may have not mentioned all. The account was already running at the bank when I went there; [do not know the circumstances under Which it was commenced. The dealing was closed before 31st December, Is68, but no final account was rendered before that time. The trans action Was closed about the 20th or a little later.

* We paid several checks after the 16th. They were drawn atter that and may have been dated betore. The balance was struck, =21,217.06, on ist December; it was all tor overdratt except the one item of interest

. The account was near fifteen thousand dollars, overdrawn qe about Toth Oetober, 186s. There was a credit made on the ae

eonnt on the 3d day of Oetober of ten thousand dollars; it was withdrawn from the account, however. The balance outside of the ten thousand dollars was tive thousand dollars about Ist October. The ten thousand dollars' credit consisted of one or two notes nade by Sabin at he request of Goodspeed, |

bwas present when those notes were made, and the amount of those hotes, 10,000, was passed to the credit of defendant. The account was eleven thousand & odd dollars on Ist January, 1869, with these notes ont. The notes were in the possession of the bank on 31st December, We considered the whole amount of 821,217.06 as overdratt on 3ist Decermbers; did not consider the notes good,

*We did not consider the notes very good when we took them. | did Hofinsiston having them. Ir Goodspeed asked for them and Mr Subin made them. At the time the notes were made Mr Sabin said

he had no authority to sign notes. Mr Goodspeed asked hit > tomakea draft on the company. Mr sSabin had told him there

Was about seventeen thousand dollars in the treasury, and he wanted him tomakeadratt. Sabin said he was not authorized to draw, and had no authority to sign notes, but that he would, to make the account appear in better shape on the books. Sabin requested that the notes be destroyed at the time and not appear in the account.

"Mr Sabin did not want the company to Know about them, as they had not authorized them him to sign notes. [think Mer Beeker was in Central or Chase Guleh at that time. Neither Lor Mr Goodspeed or any officer of plaintiff notitied M'r Beeker of that transaction. 1 did not ask M'r Becker to make notes until December. TIT knew Mr Becker was in town; did not ask him to sign notes then; did not tell him of the transaction.

*] have not seen those notes since last term of court. No member of

the bank corporation ever intormed Becker of the existence of 33060 those notes that lam aware of. These notes were passed to deftendant

's credit on our books, and yet there was $21,217.06 due in December, because we did not consider the notes good.

* We did not deliver the notes up; [ think they were taken up by Kountze Brothers. We left the books as they were. If the 10.000 credit Was lett standing, there would) be only eleven thousand two hun dred and seventeen dollars and six cents due. The books were not changed betore that time. The =10,000 may have been erased: | don't know. It was erased in the pass-books of Sabin. T don't know whether Ierased it or M'r Collins did. Our balance-book showed a balance of S21 217.06. The notes were taken off the account shortly atter by Kountze bro's. When it bad to go into suit the notes bad been taken off the accounts. We rejected the notes.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 105

* Sabin did not want the notes to appear on his pass-book, and so M'r

Collins and | took them ott. IT think it was about the 20th De-

dod cember that I spoke to Mr Becker about the interest. I first

asked M'r Beeker for this indebtedness December 16th, 1868. 4

think that was the tirst [ said to lim about the debt. I don't know

that any officer of plaintiff had notified him of the debt before. AVr

Becker had been in Central from some time in September until Decem

ber 16th. The first time | spoke to him about it | asked him to pay it.

He appeared to know about the indebtedness: M'r Sabin frequently told him. |

*T don't know what time in September Mr Becker arrived there; it Was some tine In September, & was there from that tine afterwards. I could not tell What was the state of the account when becker arrived In Central: it was about §15,.000 about Ist Oetober, or a little later. I believe Mr Becker was here about Ist October. | think the overdratt at one time was between 23.0008 and 24.0008 + it was about the 16th December that it was the highest. | think it was over 25,0008 when I reported it to M'r Becker in Chase Gulch. The overdratt went up that

wavy, after Mr Becker was here and M'r Sabin had told us he oS had no authority to make drafts or sign notes.

"Mr Sabin represented to us that Beeker would be up and make drafts. I] did not ask M'r Sabin to draw dratt: asked M'r Becker to do so. When I saw him in Chase Guich that was the first time I said anvthing to him about it. IT thought the notes were not good. We re tained them until the last term otf court.

*T never told Mr Becker of the notes or Indebtedness until 16th December, 1868. T would not be positive about the words IT used in Chase Gulch. T asked him to pay it, substantially; think IT proposed to him to make drafts on the treaserer of the company, or to draw on his private funds, which M'r Sabin had represented would be done, or put up Government bonds. [think M'r Sabin had represented that Becket would put up Government bonds, or draw on the company, or on his

private hands. That Becker had said he would do so. If the 550 notes were of no account it was of no use to tell anybody about them.

"Mer Sabin was the agent still, and said they were repairing the mill in Chase Guleh, and that it wonld be necessary for them to shut down for a certain length of time until the mill was put in condition: that Mr Becker objeeted to running ore through other mills, and on that ae-count he wanted a temporary accommodation, and just as soon as the Inill was repaired they would pay. They did not start as soon as Was expected, and M'r Sabin said he had tried to have him lease mills outside to keep the account down, and Becker did not like to do that.

"All that time they were paying their men. We always supposed they were a good, safe company, had: always treated as fairly, and on these aceounts we allowed them to continue to overdraw until the amount reached the highest point named. And about a week before that was

the time M'r Sabin had tixed tor bringing M'r Becker's draft on of the treasurer of the company or some kind security tor the

debt, and as he had not done that, | went to M'r Beeker on 16th December; called tirst at Sabin's and he went down with me. Don't know whether mill was running October Ist or not.

* Becker was putting up a big stamp: think it was not completed even In October or November. -T did not think it was just the right thing to give the notes and keep them secret. | did not consider the agent saperior to the president when the latter was present. M'r Becker

106 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

said once or twice in Conversation that he would go East and lay the matter before the company.

"Was present at conversation bet ween Becker and Charles Bb. Kountze on Ist January, 1869. J had one or two conversations with Becker myself before this, and one or two atter. | believe Becker always told me he would lay the matter before the directors. In conversation with

Kountze, Becker may have said directors or shareholders; I don't Al know which. M'r Kountze tried iard to get security and [ think

he presented papers for him fo sigs Becker refused to give any security; said he would go Hast in a short time and have the sharcholdcrs assessed.

"J think M'r Kountze had but one paper he wanted him to sign, al though he asked him to make out a paper in his own way if he would not sign the one he had drawn up. Wanted to have recognition of the debt. L dowt know whether there had been a meeting of attorneys or not. I think there was a conversation with an attcrney; think M'r Kountze had M'r Teller draw a paper from what these said. He wanted to get a recognition of it because from the action of M'r Becker he did not want to make a statement of the account any way except in words. That was better than the notes we took, We were anxious about when we notified Becker; we had been a little anxious before that time; Sabin had said that Becker would put in bonds or make

drafts on the company. He kept putting us off with excuses. 3420 «We went down for the purpose of asking Beeker. It had_ frequently

occurred to me to do so from Ist October to 16° Deceinber, but Sabin said he would do it in a day or-two—had fixed the time once or twice, and he did net do it, and I thought it necessary to see Becker in person.

"Sabin had promised for three or four weeks before I went to see Becker. Sabin rather requested us not to say anything to Becker about it. | think he tixed about the 10th December that Becker would fix itup. What I meant to say is that Sabin had represented to us, as agent of the company, that Becker, as president, as soon as the repairs on the mill were completed, would settle the entire amount of the indebtedness. It was Beeker's mill, I believe, and ran at the expense of the company. LT think Sabin satd he was to work No. 2 or No.3 on Bates Lode as rent for the mill. Elo told me so; he frequently said. so, Think he first said so along in the summer of LS65, some time.

* Dont know who owned No. 3 on Bates Lode. Sabin spoke 343 about some claim he was to work, No. 2or3. Hlesaid AUr Beeker owned it."

Ilere detendant here asked the witness: * Then you knew, from some time in the summer—yvyour bank knew from some time in the summer—that the claim number two or three, whatever it was. that belonged to becker & that mill, were being worked and run with funds got by the Union Grold-Mining Company?" To the witness answering which the plaintiff objected, because not cross-eXamination. Attorney tor defendant said: "Ttis certainly competent torus to show that this money was not used for the purposes assigned by witness."

Witness said, © | did not intend my testimony to earry any such idea as that."

The court sustained the objeetion, and the defendant then and there excepted to the ruling ot the court.

"Mr Beeker had always admitted the claim in his eonversation, & we wanted something in writing to show it in case he should change his mind, or anything should happen to him. That is about the im-

U. G. M. CO. Vs. ROCKY MI. NAT. BK. OF CENIRAL CITY. 107

Odd pression | get from the conversation, January Ist, 1569. I

don't remember it exactiyv; that is about the tenororit. 1 think Mr Beeker was asked to sign this letter in his official capacity ; he did not do it: he refused to do it: said he would rather not do that, or something ot that kind. I donot think he said he would do nothing to bind the company to the payment of the debt. Ido not know what his reasons were: he objected to it.

* Tt must have been some time in December that IT wrote up the accounts in defendant's boo ws. To wrote them up from October till Deceniber, over 2 tiontiis. I think af was about the loth December that I wrote them up. to think it was Sabin who came and said Becker wished to see the books. They were in the vault. The doer was open.

"JT gave them to Sabin. They did not examine them in the back rool; they took them away: kept them a month or six weeks and

brought them back. I think be took them away from the bank. 345 I don't know that Becker examined them except what Sabin told ine when he brought the books back, or afterwards.

* He brought them back probably in January or February, and he took them away in the early part of January. Long after these transactions were all closed Sabin brought the books back to me, and they were put in the vault.

"This was afterrcards Goodspeed' return from the East; don't know Whether he was in the bank at the time or not; Goodspeed was cashier.

* 7 have testified in this case before. Tsay now that the balance due the bank about Ist or 3d October, 1868. was somewhere about *10,000, Perhaps | testified on a former trial that the balance on 5d October Was 12,0018; [To must have said it was on the first; it had changed by the third. I testified trom the books betore. I think the balance was more than 2LOs on the 16th December. When [ said on the last trialthat Lhad = remarked conversation with Becker except 16th Decem

ber, LP mean that | bad no other remarkable conversation, This 3465 was so much longer: he did not appear to be ignorant of the In. debteduess at all.

"TP have detained the conversation at Elliott's house substantially ; there may have been other remarks made that were tomaterial,

" T testified on the former trial that, | asked Becker every time I saw him; itis true. I testified on former trial that L wrote to Mr Kountze to come up & he did so. T did not hear that conversation between him and Becker; it was the Isth or 19th of December. That is not the same conversation | have detailed. IT domt remember whether I testi-tied to more than one Conversation between Becker and Kountze or not. I testified on former trial that Kountze was urging on Becker the neces sity of settling up the claim, and wanted Becker to give him some kind of acknowledgement of the debt. Beeker said, Oh, no; he would not give that to anybody. [ testity to that now."

ode On redirect examination witness, Potter, testified as follows :

* The notes | have mentioned were never paid."

Piaintitf here asked witness this question: ** low was the account treated in all the dealings with Becker and conversations with Becker?" to the witness answering which the defendant objected, because it is not redirect examination of any new matters brought out on eross-exam, ination. The court overruled the objection, and the detendant then and there excepted to the ruling of the court.

Witness then answered: " It was treated as an overdraft."

Plaintitt asked the witness to State what the arrangement with

108 vu. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Sabin was; whether it was the fact to keep from Becker that there was an overdraft, or simply not to call on him tor these drafts until the LOth December."

The defendant objeeted to the form of the question, the objection was overruled by the court, and the detendant then and there excepted

to the ruling of the court. 4S Witness then answered : * There was no arrangement whatever

with Sabin tokeep the knowledge of the overdraft from Becker, and we supposed (here defendant objected to witness stating what he supposed, and court overruled objections, and detendant then and there excepted to the ruling) from the conversations Beeker knew all about it. These notes remained at the bank until last term of court, when they were handed in and cancelled by Judge Belford."

Here the plaintit offered in evidence the letter of Beeker to president of bank, dated January Ist, 1569, to which the detendant objected, Ist, because it is immaterial; 2nd, because it is unofficial; Sd, no part of the res gesta; dth, if it was official, there is no power or authority shown

In the president to make deelarations that would be obligatory OA upon the company. The court overruled the objections, and detendant then and there excepted to the ruling of the court.

Plaintiff then read the letter to the jury as follows :

Rocky MOUNTAIN NATIONAL BANK, (Successors to Kountze Brothers, Bankers,) Central City, Fannary Ls? TS6o, To the president of the Rocky Mountain National Bank ;

Sir: In regard tothe overdratts of our company in your bank, permit me to say that although Tam the president of the Union Gold-Mining Company, & the owner of a majority of all the stock, Mr. Sabin will do me the justice to state that [T had no knowledge of any overdrafts until on or about the middle of December last. IT hope vou will not fee} uneasy about the payment. We have an abundance of ore already

broken in the mine to pay all indebtedness of the company.

DD In faet, this is the only indebtedness [ have any knowledge of the company's owing; and if it is not paid off out of the mine, I

propose to call a meeting of our directors and submit your claims and make an assessment at our February meeting in New York City to pay off your claim and any others that the company may owe.

[f will also state to you clearly and plainly that there shall be no sales, transfers, mortgages, assignments, deeds of trust, or any other incumbranees put on the property of the company in Colorado or elsewhere by myself or by the company until all of the Habilities of the said company are fully paid.

Very resptly, vr ob't sert, THEODORE Hl. BECKER.

Plaintif®? then called Witrtiaw H. TAPPAN, who was sworn as a wit ness, and testitied as follows : * T resided in Central City in Ts66, Ds6y, 4 Ts6os.) Was in hardware business. er] *T know the plaintif? and the defendant. Known defendant since TS67 or T8685 1f was engaged in maiming and milling in T8607 at Central City. George IW. Sabin was agent of defendant in Tso X& Is68; was buying goods in their name—in name of Union Gold- Mining

Company. Tle was running the mine er mill of the company ; the mine was between a half & three-quarters of a mile from my place of business. 'Defendant had an office on Lawrence streetoin Central City, a tew

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 109

dovurs below my store. Sabin cecupied the office in 1867 & 1868. There Was a Sign on the side of the door of the Union Gold-Mining Company. Sabin had the management of the mining and milling operations, as I understood it; [mean the mining operations of the Union Company. I had transactions during these vears with this company."

Plaintitt here asked the witness to "State what they were, & how the

Diisiness Was transacted 2" Sow Defendant objected to the witness answering, and the court overruled

the objection. and defendant then and there excepted to the rolling of the court. Detendant objected, because, Ist. It is not shown Whether it was previous to the time of contracting the debt or during the time. 2nd. TPhatitisnot of the same kind asthe transaction in controversy between the parties to this suit. 3-4th. There is no evidence that the detendant knew of the trausaction.

Witness then answered: ** With JVr Sabin, in the name of the Union Gold-Mining Company. He bought mining supphes, such as steel, rope, and tools trom time to time, and those bills were paid generally by checks upon the banks. These bills were settled about once a month. I think latterly they were longer than that towards the closing up of the operations. LT think the last payment was in June, 1860. M'r Becker made that payment. T think some of the earher cheeks were on Clarks bank, and atter that on the Rocky Mountain National Bank; that is my impression; am not positive. DT was not in Central previous

to ISOs. 53 llere witness was handed a check.) "This is a check given to

our house, | should judge. That was the style of giving checks. leant tell liow many cheeks were given to our house during the time I have mentioned. To have no doubt that check is in handwriting of Greorge IKK. Sabin. LT have seen him write. That appears to be his signature. Tlemight bave given mea dozen checks or more; the accounts were running over 2 vears."

Plaintit® here asked: ** Were all the checks signed in this way?" To the witness answering Which the defendant objected, because the checks themselves are the best evidence. The objection was overruled by the court. The defendant then and there excepted to the ruling.

Witness answered: 'They were all given by Mr Sabin. | don't remember what time Mr Sabin quit dealing with ne in this way. The last item on the book was May 2ith, 1869. T suppose that was the time he quit. IT had dealings with him in December, 186s.) I know he had

a billthere that month; eant tell theamount. [ don't know when oot that was paid, they were all paid by Sabin except the last, and

that was paid by Beeker. M'r Sabin purchased the goods last paid tor in the name of the Union Gold Mining Company. Some of these goods were used inthe changes and repairs that were being made In the mill, and as the other were supplies tor mining purposes, 1 supposed they were used there."

Plaintit? here asked the witness To state what these supplies were, as Dear as you can, itemizing them, giving particulars." The defendant objected to the witness answering. The objeetion was overruled by the court. and defendant then and there excepted,

Witness answered: 'According to iy recollection, they were parts of

: oe . 1 , ] a | Sa ] ' , ¢ ' . ' machinery that was used mi the mill: they were putting ina large stamp al the time, Phere were steal eConneetions, there Vere bolts and Popes, probably other things used about mills of that kind. The supplies that

went to the mine were steel. picks, liandles, tools. When these cheeks Were 2ivell | think thev bad a bonud receipt-book & they were sicned

by me.

110 wv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

BOO Plaintiff here asked the witness: '* To whom were these receipts

made?" To the witness answering this the defendant objected, because the receipts were the best evidence; the objection was overruled by the court, and the defendant then and there excepted to the ruling of the court.

Witness answered: 'To the Union Gold-Mining Company, (witness was Shown receipt-book;) To should think that is the Kind of a receipt-book—something like that; the receipt-book something like that. The receipts are generally given in duplicate, but not always. [ don't remem. ber whether theirs were or not by dupheate: Tmean two bound on one page, and both were signed. That is the custom in giving receipts to mining companies, but it is not invariably the case; [ don't remember whether [ signed theirs in duplicate or not."

On cross examination witness, Tappan, testified as follows :

"When dl say detendant was mining and milling in 1s67 & Ls6s, TD mean

the Union Grold-Mining Company. Sob "* Tomerely knew them through Mr Beeker, as president, and

Mr Sabin, the superintendent: [ mean Sabin and the company were both mining ; Sabin was the active man for the company. LT knew this because he occupied an office and transacted business for the company in their name; he gave cheeks so in their name. [have no other evidence. Sabin occupted part of the office as a sleeptng-room. There was a sign on one side of the door; [should regard that as some evidence. Thereare buildings in Central with mining-signs on them with out any business having been done in them tor vears.

"The checks for supphes bought of me were all signed in the same manner—all signed by George Kk. Sabin in hismame. |] think they were signed George K. Sabin, agent, as T remember the signature, [Lam not positive how the earlier cheeks were signed on Clark & Co.; [ think some of them were signed Union Gold- Mining Company, by George Kk.

Sabin, agent, and some of them just George K. Sabin, agent. SOG "Tam not positive about these cheeks on Clark & Co.; it is a

long time ago. LT think T had some cheeks on Clark & Co. Sabin was running ore in mill PT always supposed it to belong to the same company. | dont know anything about it. TP don't know whether they run any other than the company's mines or not. | don't remember when the change took place in the management of the work. | [P remember selling goods to Sabin and Becker. | remember that a change did take place, PT domt remember when the change took place. IT merely Know that the last purchase made so. X if was previous to that purchase, but who was agent [dont know. T have no recollection of the time of the change. The change must have been prior to the payment for the last bill of goods. The Jast bill was paid by Becker in June, Ps6o.

"fT have no recollection what part of those bills bought by Sabin was

tor machinery, bolts, Xe. They were putting up a ig stamp Sos somewhere between Ts6o7 & 1860. LT have no reeolleetion as to what part of these goods were for the mill and what tor the mine."

Defendant then asked the witness: * Do vou not Know that in May & June, 1869, at the time you testitied to, Mr. Sabin was running a mine at Nevada ?~

(Plaintit® objeeted, because Immaterial and not proper cross-examina

tion, Court sustained objection, and defendant then and there excepted to the ruling of the court Plaintitt then called POouNn OF Rey NotDs, who was sworn as a witness.

and testitied as follows:

*T have resided in Central City simee Psoo: aim Le pawader, Steel,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 111

and rope business; am now in powder & fuse business: know plaintiff & defendant; have known detendant since 1864 or 1865."

Plaintit? here asked the witness: * What was this company doing

in 1865?" Defendant objected to witness answering, because this was long prior to the transactions with detendant. The court over-

399 ruled the objection, and the defendant then and there exeepted to the ruling.

Witness answered, _ Mining on the Bates Lode: cant tell when they commenced mining there; Mér Mallory was in charge when they eommenced. - had dealines with detendant while Mallory was in charge. M'r Sabin was in charge of their property in 18660 & 1867. Mr Sabin commenced to take the water out In LS66, in November, but the first bill he made was December sth, 1566. In November, 1866, he was getting ready to go to work. fixing lis engine up on the lode. | believe he changed engines. In ls660& 1567, detendant was mining and milling; mining ou Bates Lode & milling in Beeker Mill, Chase Guich."

Plaintitt here asked, * Who was superintendent or agent of defendant during that time?" Defendant objected to witness answering. The court overruled the olneetion, and detendant then and there excepted to the ruling of the court.

Witness answered, * George Kk. Sabin was agent of the company, O60 orat least he signed his nameas agent. The company had an office just below my house on Lawrence street: George Kk. Sabin occupied the office, and Becker when he was out here, and | think Baker was in there. There was a sign on the building, on the lower side orright-hand side; it was the Union Gold- Mining Company. Sabin had charge of the mine, he settled bills at the office, made contracts tor timber & wood, \e., with people there. Thad dealings with defendant during that time."

Plaintith asked witness to "State when the dealings commenced & how the business was transacted." The defendant objected to witness answering, and the court overruled the objeeticn, and defendant then and there excepted,

Witness answered, * They commenced by his buying powder, steel, Xe. on the Sth December, 1866, and then he bought powder, fuse, steel, SN iron right along till he quit, in December, IS68.) The account was kept in the name of Union Gold-Mining Company.

'These bills were paid Imonthilv except the tirsttwo months' bills 36] were pald in Febraary. He paid his bills in tull up to the vsth February, 1867, and after that monthly he took receipts thus read: 'Received of the Union Gold-Mining Company, (here receipt-book was shown witness.) These are the same from copy. He never took any dupheate of me. He took a receipt every time he paid. Payments were made by checks on Roeky Mountain Natl Bank, generally. (Checks shown witness.) These are checks received by me; they are in George KK. Sabin' handwriting: the checks were signed same as those.

"The last payment was made to me on Sabin' advice Mareh 16th, 1869. Mr. Becker paid the bill. Mr. Sabin purchased some of the goods in the last bill, & Mr. Becker went to mining right after Sabin quit, and his nil was charged right along in same account. [ could not swear there Was 24 balance Jett of Sabin's account when Becker went to mining. Come to think of it, fam pretty sure it was the balance Becker paid me.

I cannot swear exaetiv. Thaveatew memorandums of payments HO? mnade, On Oetobher 7th, TS60s8, there seems to be some powder returned by Union Gold-Mimning Company, or something they pad that dav. These are cheeks received by me from Sabin in pay

112 Uv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

ment for the bills | have mentioned. The last payment made by Sabin to me was about the Ist December, 1868; bat | can't say certain till I see the books. (Here a check was handed to witness.) This is the November bill; probably the lett of it. Sabin kept purchasing goods of us right along till he quit, in December some time, 1563."

On cross-examination witness, Reynolds, testified as follows:

"Sabin commenced taken out water in November, 1866; he was running. Tt domt know about his being milling as early as that—not till December or January. T can't tell he started Mr. Beeker's mill in Chase' Guleh, called Douglas mill. ALT know about Sabin's being agent Was he signed his name as agent. Sabin used the office. Beeker

did not stopthere. Tused to see him in there some times writing. 063 Topping oecupied that office a while. T believe Topping occupied

theoffice asasleeping-room some time after Sabin returned trom the Bast. There was a sign up there—had Union Gold-Mining Co. on it. }don't remember of other buildings having signs on them where no business was done,

"The first account Sabin contracted with me was 7x December Sth, 1566, There was no contract; he just came there and bought goods. Sabin said something about time; that he did not want to draw on the cotnpany; had a delicacy about it; was bound to put it through; should not pay fora couple of months; there was something of that kind said lam very sure; still PE domwt remember. [le told me he did not want to draw on the company; was bound to make the mine pay: knew he could makeit pay. I think TP omade the remark that the mine was good fort:; he paid me part on the 19th February, and paid the whole of it February 28th.

"Tean't tell whether he paid a cheek or money on the 19th February. I cant swear how be paid on the 28th February; could not swear with:

out TL saw the check ; he gave checks. 1 domwt remember his ever 364 paying mea dollar in greenbacks; still be may have done so. If he gave me a check, [can't swear what bank it was on.

'Tle did most of his business with the Rocky Mountain Nat'l Bank. f don't remember whether the first check, he gave me were on Clark & Co. or not, or how they were signed. [ would not swear that the cheeks were all signed alike; the receipts were all the same. The cheeks on the Rocky Mountain National Bank were all signed alike; don't know about the others. LT think the last cheek Sabin gave me himself was on the Sd Deeember, 1868; it did not pay the full amount, lam satisfied ; after that M'r Beeker took charge of the mine."

On further direct examination witness, Reynolds, testified as follows:

* Tam satistied the check of December 3d, 1868, did not pay the full amount."

Hlere the plaintiff offered in evidence the several checks identitied by

witness Reynolds and by witness Goodspeed as being in hand. S60 writing of Sabin and marked by court. Defendant objected to

their introduction for same reasons as given in regard to other checks, but the court overruled the objection, and defendant then and there exeepted to the ruling ot the court.

Ist cheek dated—

SEPT. lo, LS68. Rocky Meuntamn National Bank pay to Reynolds 8525.75. Sigued) VNION GoLp MINING Co., GEORGE WK. SABIN, Agent.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 113

Yd. Central City, Col, June Ist, 1868. No. 88. Roeky Mountain National Bank pay to J.O. Reynolds, or bearer, $339.60. Signed same Wav.

od, dated July Oth, S68, for S175, signed as before.

ith. No. 48: date, August 3d, 1868; amount, S517.

Sth. Dated Nov. Sd. 13868, tor S262 50.

Oth, date Dee. Sd, Ls68, for $150.00,

All payable and signed as the first.

Plaintitt then called WitttaAM M. RowortTH, who was sworn as a Witness and testified as follows :

"T reside in Central City ; have resided there nearly fourteen years, and in grocery & hardware business as merchant have been for thirteen and one-half vears; know the defendant; have known them = six or

eight years, only through their agent. Detendant carried on 366 mining in Gilpin County. [ believe; don't Know when it commenced

. Mallory was first agent. Defeudant was engaged in mining on Bates Lode in 1866, 1867, & 186s. George K. Sabin was agent of detendant in those years; was mining ou Bates Lode, Union Company proprietor. Detendant had an office in Central City there ; on Lawrence street. [believe Sabin and Beeker occupied the office ; there Was sign onthe side of the door. I think the office was bought by the company in T865. T understood so. Tt believe Col. Mallory occupied It While he was agent."

Plaintiff? then asked witness this question. © During the time you say Sabin was agent of this company, did you have any dealings with detendant?) It so, state when if commenced, and the nature of the dealings."

The defendant olbected to the witness answering, because, Ist. It is not shown whether it was during the time or previous to the time this debt was being eontraeted. 2d. Thatit is net of the same kind as

the transaction in controversy between the parties to. this SHG suit. od. There is ne evidence that defendant knew of the transaction

. 4th. No evidence that the plaintiff knew of the deal ings. The court overruled the objection, and the detendant then and there excepted to the ruling of the court.

Witness answered : It commenced in| December, 1866. He bought candles, iron, shovels, picks, handles, various mining-tools. The ae-count Was kept inthe nameot the Union Gold Mining Company. These accounts were paid; paid by checks usually: I don't reeolleet of his paving any currency: usually paid monthly. There were bills made out monthiv and given to Sabin. There were receipts taken by Sabin at the tine he paid in the name of the Union Gold-Mining Company."

(Reeeipt-book handed to witness. )

*T think that is the form of the receipt. Think Sabin was in the habit of taking receipts when he paid. We rendered bills with all items pur chased during the month. This dealing continued from one to two years,"

OOS "| think that is George K. Sabin's handwriting. IT have seen him write. J don't know whether these same cheeks were re

eelved by usin payment of bills, but [ presume some of them were, Hlave taken a good inany checks from them. The ones we took were signed Union Gold-Mining Company, George K. Sabin, agent. I can't tell when the last account against the company was paid. M'r Becker paniat. P think. Deo not know the amount of it. I think T. H. Becker t having some conversation with bum,"

BE. LibianS

114. U. G. M. Go. Vs. Rocky Mt. Nat. Bk. Of Central City.

On cross-exalnination witness Roworth testified as follows :

'7 testified in this case ona former trial. [ don't recollect what my testimony was now. All [ know in regard to Sabin's agency is general reputation and what M'r Sabin said at the time he commenced this account with us. Tle said he was authorized by the company to start up

their property on the Bates lode. Those were the words he stated. 369 No particular agreement was made in regard to the account. He

sald that he did not know that he would be able to pay the first month's bill; he had to refit the mine and probably would not be able to pay on Ist January; that he did not wish to draw on the company for funds ; wished to make the mine pay its own way.

"He said he did not wish to draw on the company. From that I inferred that he had authority. There was no particular arrangement, except that he said he would not be able to pay the first month's: bill. He paid it in February. Can't say how he paid it. [ have no recollection /f any cheeks except on the Rocky Mountain National Bank. The account was paid the 4th February. Whether a Rocky Mountain check or not Leould not say. T ecould not say whether we got any Rocky Mountain cheeks before April or not. The next account was paid the Ist or 2d March, 1867; cant say how; think by check ; don't know what bank."

Plaintitt here offered in evidence the cheeks spoken ot by the wit- Ness.

Defendant objected to them for same reasons as other checks, Imma

terial & irrelevant. The court overruled the objection, and the 370 defendant then and there excepted to the ruling. Checks payable to Roworth & Co. on Rocky Mountar Nat'l Bank, dated Dee. 6th, 1868, for 8133.00, signed Union Gold-Mining Com. pany, by Geo. K. Sabin, ag't. Also, cheek No. 83, dated Central City. June Ist, 1868, tor $167.83, signed as betore and to same order, Also, No. 07, date Sept. Oth, 768, for $148.25, Also, No. d4, July oth, "6s, for S162. Also, No. 5, dated Deer Sd, 63, for 8516.08, Also, No. 44, dated Nov. Sd, "68, for $175.80; all to same order & signed the same.

Plaintit® here called CHARLES CC. WELCH, who was sworn as a witness and testified as follows: © In 1866, 1867, & 15638 T resided part of the time in Gilpin County a portion of each season, up to about January and February. Twas therein spring and summer of 1868; know detendant; it was engaged In mining on the Bates mine in summer of 1868. George Kk. Sabin was agent of defendant in 1867 or 186s.) Defendant

had an office in Central City, on Lawrence street. Oflice was occu. S71 pled by George Kk. Sabin. T. Hl. Becker was there at times, and

some portion of the time Judge Baker was there: think he occupled it as sleeping and writing room. The business of settling the accounts of the company was transacted there, | was there frequently. The sign of the Umon Gold-Mining Company was on the building. Don't know who occupied the ottice betore Sabin did. Sabin settled the accounts in the office. T have seen men come in there frequently, and the Union Gold-Mining Company's books were opened. The books were kept there. The books were a regular set of books, such as would be kept by a mining company. IT have seen reeceipt-books & cheek-books both there. They were kept inja desk. Can't sav how often I have seen becker there; quite a number of times in and out. [T dont remember now whether [ever saw Becker about there when business was being transacted there by Sabin,

"Tdont know the exact time when Sabin commented working the

I&quot;. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 115

property. [was here in the tall of 1866. IT remember the time 372 0h When Sabin came back and was to start up; don't remember the

month, LT remember the fall when be started, and the conuversation when he started up the mine."

On cross-examination, witness Welch testified as follows:

Iwas in Gilpin County part of each year 1866 & 1867 and 156s. I Was there in 1866 & 1867 and the fore part of 1868, till February; am not quite sure | was there then. | know Sabin was the defendant's agent by his talking tome. IT knew he occupied the office of the company, and have seen men in there doing business, the books of the company opened, and he taking receipts and giving checks. I could not tell what particular books of the company | have seen open. The books I consider would be called account-books. I domt remember whether those large books were in the name of the defendant. |

"Sabin has often told me he was agent of the company. IT saw him using those books, keeping accounts; saw him writing in them at

different times. IT saw him writing in them during the year 1867 373 certain. IT ecould not tell you how much I saw him writing in them at different times. I have seen him have them open keeping accounts. The books were kept in the desk; that is the only place I saw them. The books were in the office. I saw him writing in them. Can't tell what book IT saw him write in or what he wrote in them. I saw him write checks. I could not tell vou what he wrote. It was none of my business what he was writing. It is my recollection that I did see him write in them in 1867 & 186s. He said they were the books of the detendant. We talked it over time & time again. I did not ask him about them. I knew he was acting as agent of the Union Gold- Mining Company. He had often told me, and he was writing In the books that he had, and men came in and out. [ could not mention any one in particular. I have seen men come in at different times. I frequently sat there evenings, and sometimes day-times. * When Sabin came back to commence work on the mine he 374.) talked it over with me. He said he wanted to open the mine, and that he had a pride in doing it without drawing on the company. tHe said the mine could be made to pay without drawing on the company atall, & he had a pride in doing so. He told me at different times that he could draw on the company—there was money he could draw. His remark to me was, that he had a pride in opening the mine and making it pay; that the former agent had made a failure of it, and he told the company he could make it pay; that was about the amount of his conversation,

* Teould not set any particular time that I saw the books in the office. Iwas in and out. I did not see them every time I was in. I saw him write in them several times, I was in the office frequently; used to sit in there when I had leisure time. I just saw Sabin write as I would see you write. It is not ny business what you write. Of course I listened

to what was said. I saw him frequently write in other books 375 than the check-book or receipt-book in 1867. I saw him trequently

; don't know how many times, and I supposed they were company books; that is the best of my recollection."

Here the plaintiff offered in evidence the receipt-book shown to the Witness before, and the defendant objeeted, and the court sustained the objection,

e 116 U.G.M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

CHARLES B. KoUNTZE was then called by plaintiff, sworn asa wit ness, and testified as follows: |

" Tknow plaintiff. Know defendant; have known it some years ; think since 1865. Defendant had transactions with Rocky Mountain Na tional Bank. {[t had an account there in 1867 & Is6s.) 1 know M1 Becker."

Plaintiff here asked the witness: "Did you have any conversation with M'r Becker about this indebtedness? If so, state when it was."

Defendant objected because it bas not been shown there was any in debtedness. The court overruled the objection, and defendant then and

there excepted to the ruling of the court. SYED The witness then answered: '1 don't know that I can fix the

exact time of the first conversation. It was in tall of Is65; | I think in Deeember. In my testimony before T did not fix any time. | think | said it was in Novetiber or December, but [ believe it was In December | went to Central; sent for Beeker to come to the bank; he came. IT talked with him about the indebtedness. He knew of it at that time."

Plaintiff here asked this question: 'State what was said."

Defendant objected because no authority has been shown ino M'r Becker to make any statement binding the defendant, but the court overruled the objection, and defendant then and there excepted to the ruling.

Witness then answered: " f asked JI'r Becker to pay the debt, to settle it up. He seemed to be willing to settle it up & pay it up; made no objections toit. Wanted to know what the account was. | stated

the amount to him at thattime. [ domwt now remember just what oid it was: between 20.0008 & 22 0008, ora little over §21.000. When Psaw him, that was the first time saw him. He said the company would pay it: it was allright; that the money was used on the property of the company. He was sorry that the debt had been made by M'r Sabin, but they had plenty of ore, which was taken out with the moneys they got from the bank; that the property was ineumbered, and we need feel no alarm about the debt. T think he at that time also pro ceeded to see if he could not tind a purchaser for some of the ore to pay up this debt. The conversation was something of that character all! through. TT cannot repeat the conversation word tor word. PT hada subsequent conversation, a few days after the first one. At this second one we talked over the debt again, and he assured me that we Should have our money. That Mr Sabin had used the money on thei

property in milling & mining; said we should have no alarm; that the debt was all right and would be paid. This was betore the letter was

Written, On the Ist of January, 1869, 1 had got tired of his o¢S promising and saving the debt was all right and he intended to

pay, and told him IT wanted something to show for it; T wanted something to send my brother, to satisfy him also that the debt was all right, and he seemed to be perfectly willing and satistied to do anything we wanted him to do about it. | had a paper then which had been drawn up which | handed him to sign ; don't remember what it was. I think it was something that would have given us a lien on the ore—on the property.

"T presented it to Mr Becker to have him sign it and he became quite protane, and therefore [insisted that he would have to do something about it, and he went tothe desk and wrote that letter. Lbave detailed that conversation as nearas T ean, substantially.

*T talked with Mr Becker very often. Beekeralwaysassured us that

U. G. M. Co. VS. ROCKY MI. NAT. BK. OF CENTRAL CITY. 117

it was all right and would oe paid; he would see that it was paid. In the previous eonversations he also spoke of having the shareholders pav it; wanted to have an assessment levied after the first 379 of January. He said he would goeast very soon, and when he got east would have au assessment and have the debt paid. Never said anything about the debt uot being right. He knew the account at the time of these conversations. [have figured the interest on this ae-count sworn to by Good. peed. The amount when the suit was brought Was S?1.217.06; Inthat was an item of $450.55 trom the $21,217.06, and computing interest on S2O747.51, at ten per cent. per annum, from Jan. nary Ist, 1860, to the present time is ten thousand one hundred and eighty-three dollars and twenty-three cents, all together 830,940.74. If the item of $450.55 1s lett in, the amount would be $31,400.28; that 1s, adding the item of interest without adding any interest to that item. "| think | knew of Becker going east in spring of 1509. | saw M'r Becker quite often before he went east; probably within a few weeks of thattime. Lamadireetorin the bank. Herman Kountze was president. It was him I wanted to satisfy that it was all right."

sd On a cross-examination witness Kountze testified as follows: "My tirst conversation with Becker was in the fall of 1865. } think in December—in the winter. | think it was after the 16th December. I don't think there was any one present at that conversation except Mr Becker & |. IT think M'r Sabin was present at the second conversation; this was a few days after the first, and prior to Ist January. | believe the next was on the Ist January, or about that time, M'r Potter was present at that conversation and Mr Becker & [, This Was same conversation testified to by M'r Potter; he was present ; dont know whether he heard all of it. _* T heard Mr Potter's testimony. In that conversation M'r Beeker did not object to the amount. I don't know the exact words he used, but he gave me to understand that the debt was all right; he talked as it he was willing to do anything we asked. I presented something that would be called a deed of trust for him to sign; he did not sign it; he became profane and said he would not doit. I would liked to OS] have him sign it: he would not. He said he would give us something, and T requested him to do so, and he stepped to the desk and wrote that letter. [asked him to sign it as president, and he said he did not like to sign it that way; that was another thing he would not do.

* 7] testified on the former trial of this case. I think I then said that Beeker said the debt was all right, or something to that effect. T don't think I then said that Beeker told me Sabin had no authority to contract the debt. LT don't know whether I testified on last trial of this case that I could not remember the 2d conversation. IT don't remember whether J did or did not. on the former trial of this ease, testify that 'T did know that the overdraft was increased after my first conversation with Becker ; that 1] thought no one else was present at my first conversation with Becker: Potter may have been.

'"? don't remember iy next conversation with Beeker. TI should think my recollection then would be as good as it is now. M'r Becker always

said we need not be alarmed about the debt; he said he wanted 382 the shareholders to help pay it. [le proposed to see it he could not sell the ore and pay it in that way: if he conld not do that,

t ij | 7 , » , 7) then have the sharehoiders help pay.

118 Uv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Plaintiff here called HERMAN KOUNTZE, who was sworn as a Witness, and testitied as follows:

"Tam president of plaintiff; have been since 1867 or 1868, I know Theodore H{[. Beeker. [first met him in spring of 1569, some time in March or April; can't tix the date exactly: saw lim at First National Bank, Omaha. IT then knew that plaintit? had a demand against defend. ant.

'Thad no conversation there with Becker. T overheard one between hin and my brother Augustus. I dont know that [ean give the whole of the conversation. My brother and T occupied an office back of the bank office. Beeker came to bank aud asked for one of us. Brother was

nearer door than IT was and wo Ot ceneraily meet and entertaiu O85 people when they come to enquire. Ties were sitting at the desk,

and a gentleman came in and they entered Into conversation. | paid no particular attention at first, but soon learned they were talking about this indebtedness to the Roeky Mountain National Bank, [then gave some attention,

"Mr. Becker remarked that he was then ou his way east with a view of calling a stockholders' meeting to have the claim paid; that the claim was a just one, the company had the use of the funds, had the benefit of the funds, and it should be paid. Those were about the main features of the conversation. My brother, of course, urged the payment of the Claim. [never heard any other conversation with Beeker. T did not see Beeker atter that till about lo months since, when he came into the oflice at Omaha again. I did not see him in spring of 1s69in New York."

On cross-examination witness, Herman Kountze, testified as follows :

'* None ot these conversations were held with me; all with my brother.

[It was inspring of 1869; think in Mareh or April; would not be OSA positive; think it was prior to bringing this suit; think the suit

was brought in April; don't know the day. I think the conversation was betore the suit was brought. I domt remember whether I heard the first part of the conversation or not; [T think [ did—think I heard all the main features of it; Was sitting within three or four feet of them when they were talking. I think Beeker at that time told my brother he was going east and was going to make an assessment to pay this debt, and that at was all right. I did not understand that he had been east, and was there on his return. He did not tell us that the stock holders retused to do anything about it, and advised you to bring suit, and you said suit had been brought. T mnever heard any such conversa, tion. Am contident Becker said he was then going east."

Plaintiff! here offered in evidence interrogatories 9, 10, & 11, and the answers thereto, of the deposition of Luther Kountze.

Defendant objected, because the conversation purporting to be

oso. detailed occured in 1869, without fixing any time; it is not shown

that they occured prior to bringing this suit. The court over.

ruled the objection, and detendant then and there excepted to the ruling, and said interrogatories and answers were read to the jury,

Here the plaintit¥otlered in evidence interrogatories 7, 4.9. TO, TI & 12, and the answers thereto, and cross-interrogatory 3 and answer, and the defendant objected to their being read in evidence. The objeetion was overruled, and the detendant then and there excepted to the ruling of the court; and the said interrogatories and answers were read to the jury.

Plaintith also read in evidence interrogatories 7 & 8 and answers of

. G. M. Co. Vs. Rocky &#x27;Mt. Nat. Bk. Of Central City. 119

the deposition of Luther Kountze,and the answers to cross-interrogatory 3, ** Such conversation occurred at mv ottice, No. 62 Wall street, in this city, during the early part of the year 1869. I cannot state the exact date of each. M'r Augustus Kountze was present at several of the conversations." The plaintit® also read in evidence (Teller) from the deposition 336 oof Augustus Kountze, interrogatories 7, 5,9, 10, FL, & 12, and the several answers thereto; also cross-interrogatory the 7th, same deposition, and answer thereto, showing the time of conversation referred to. Defendant made the same objections as to the ruling of the deposition of Luther Kountze.

1Oo36.

TERRITORY OF COLORADO, County of Jeflerson, ss;

The people of the Territory of Colorado to Thomas I. Carpenter, CSt., of No. 4¢ Wall street, in the city of New York. in the State of New york, greeting:

Whereas it has been represented to us that Augustus NKountze, of said city and State, is a material witness ina certain cause now depending In our district court tor the second judicial district of Colorado Territory, within and for the county of Jefferson, where the Rocky Mountain National Bank of Central City is plaintiff. and the Union Gold-Minin g

Company of Colorado is defendant; and that the said witness Os¢ resides at New York City and State of New York aforesaic, without

the said Territory of Colorado, and that his personal attend. anee cannot be procured at the trial of said cause :

Now, therefore, know ve that we, in confidence of your prudence and fidelity, re appoint, and by these presents do appoint, you commissioner to examine the said witness, and do therefore authorize and require you to cause the said witness to come before you at suck time and place as vou may therefore designate and appoint, and diligently to examine the said witness on the oath or affirmation of the said witness by you first duly in that behalf administered, and faithfully to take the deposition of the said witness upon the interrogatories and cross interrogatories tncluded with or attached to these presents, both on the part of the said plaintiff and the said defendant, and none others; and the same, when thus taken, together with this commission and the said interrogatories, to certify into our said district court with the least possible delay.

Witness John R. Cleaveland,. clerk of said district court, and jS8 the seal thereof, at Golden City, in said Jefferson County, this thirtieth day of September, A. D. 1872. (SEAL. ] JOHN Ro CLEAVELAND, Clerk, | By CHESTER ©. CARPENTER, Dep'ty.

Jn district court, 2nd judicial district, in & tor Jefferson County, to the November term, A, 1D). Ise2.

TERRIT« RY OF COLORADO. County of Te the rson, SS?

RockY MOUNTAIN NATIONAL BANK OF CEN- | tral City : i . it ? In aSsunipsit. E Be UNION GOLD-MINING COMPANY OF COLORADO. § The above-named defendant is hereby notified that on the 50th day of September, A. D. 1s7z, we will sue out of the clerk's office of the dis-

120 U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. trict court a dedimus potestatwm, or commission, to be directed to Thomas L. Carpenter, esq., of No. 47 Wail street, in the city of S80 New York and the State of New York, as Couimissioner, to take the deposition of Augustus Kountze, of said city and State, to be used in evidence on the trial of the above-entitled cause now depending and undetermined in the district court of setd county, on the common, law side thereof; and that a copy of the interrogatories hereto attached will be appended to dedimus potestatum, or commission, to be pre pounded to said witness on the part and in behalf of the plaintitt, and vou can tile ¢ross-iInterrogatories and jon in said commission if you see lif. : H. M. & W. TELLER, W. kh. GORSLINE, Att ys fut / Ti,

i. WAKELY, G. BL REED, HUGH BUTLER,

Attys for Derts.

Interrogatories to be propounded to Augustus Kountze, a witness to be produced and sworn onthe part of the plaintiff, in a certain action now pending in the district court of Jetferson County, Colorado, wherein

the Rocky Mountain National Bank, of Central City, Colorado,

OOO and the Union Gold-Mining Company of Colorado is defendant

.

Interrogatory first. What is your name, age, occupation, and place of residence ?

Interrogatory second. Are you acquainted with the plaintiff and defendant in this suit; if so, how long have you known them respectively ?

Interrogatory third. What relation, if any, did you bear to the plaintiff in the year 1869? :

Interrogatory fourth. Were you in any way connected with the plaintiff in the spring of 1869; if vea, in what eapacity ?

Interrogatory fifth. Were you, or were vou not, ian officer of the plaintittat

any time during the year 169? oul Interrogatory sixth. Were you, or were you not, at any time dur. ing the year 1869 notified by the defendant through its officers, or otherwise, that the defendant refused to recoguize an indebtedness from the defendant to the plaintit??

Interrogatory seventh. Did you, or did you not, know in 1860 that the plaintiff! claimed that the defendant was indebted to the plaintith tor money loaned to defendant by platntit?) If vou answer that vou knew in 1S69 that the plaintit! was making such claim on the detendant, state fully all you know about it and your means of information, when you first knew ot such claim, and from whom,

Interrogatory eighth. Do you know who was president of defendant inthe tallof S68 and during the year of 18690? It so, state who was president and vour means of information.

Interrogatory ninth. Were vou aequainted with any of the oth oo cers of defendant in 1869; if so, which ones ?

Interrogatory tenth. Have vou ever had any conversation with any of the officers of detendant concerning the claim of plaintiff against the defendant; if so, where was it and what was said by such officer of detendant about the claim of plaintiff against defendant ?

Interrogatory eleventh. Did vou ever have any conversation with Theodore HT. Beeker cgneerning the claim of the plaintiffagainst the de-

U. G. M. Co. VS. RUCKY MYT. NAT. BK: OF CENTRAL CITY. 12]

fendant; if so, When was it, and what was said hy said Becker concern. ing sald Clann of plaintil?

lnterrogatory twelith. Do vou kuow any other matters or thing tending

to the advantage of the plaintit! touching the matter in controversy ?

If so, state the same as tnily as if you had been especially interrogated coneerning the same.

35 We do hereby acknowledge service on us of a copy of the annexed

notice and urterrovatories, and do consent that the dedimus

potestatwin issue on the S0th day of September. [Si2, but reserve all

Other obypections. Central City, Sept. 28th, Pse2 EK. WAKELY & G. B. REBD, Deft s Aftlorneys.

Cross interrogatories to be propounded on part of the defendants to Augustus Kountze, a witness to be produced and sworn on part of the plaintiff in a certain action now pending in the district court of Jefferson County, Colorado, wherein the Rocky Mountain National Bank of Central City, Colorado, is the plaintiff, and the Union Gold-Mining Company of Colorado is defendant.

Cross-interrogatory tirst. If in answer to fifth direct interrogatory you state that you was an officer of plaintiff at any time during the vear

S69, state what office you held in plaintit® corporation and who

394 were the other officers of plaintiff at that time.

Cross-interrogatory second. Do you know Herman Kountze?

State if von know what, if any, official position he held in plaintiff corporation

during the vear 1569.

Cross-interrogatory third. Tf in answer to tenth direct interrogatory vou state that vou ever had any conversation with any otticer of the defendant concerning the claim of the plaintiff against the defendant, state particularly when such conversation or conversations occur'ed, the date of each, and who were present at each of the same.

Cross-interrogatory fourth. If in answer to sixth direct interrogatory you answer that vou were at no time during the year 1869 notified by the detendant that the detendant retused to recognize the indebtedness

trom the defendant to plaintiff, state whether or not, at any

395 time in said year, Herman Kountze was not so notified by the

defendant in vour presence; and, if yea, by whom he was so notl ied, and how notitied,

Cross-lnterrogatory titth. If in answer to eleventh direct interroga tory vou state that you have had conversation with Theodore Hl. Becker concerning the claim of plamtil against the defendant, state when those conversations took place, where they took place, and who was present at each of such conversations, If im answer1 you state that you never had any conversation or conversations with Theodore H. Becker con cerning the claim of the plaintiff against the defendant, state whether you Were present at any conversation or conversations between Theodore H. Beeker & Herman Kkountze in regard to said claim, on or about the first of April, 1869, at your office in the city of New York, in which conversation Theodore H. Becker informed said Herman Kountze

that a meeting of the stockholders of the defendant corporation

396 would be held on the first Monday of April, 1569, at which the

claim of the plaintiff against the defendant would be considered, and the said Herman Nhountze was invited by the said Becker to attend

such Ineetluig.

122 =U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Cross-interrogatory sixth. If in answer to the sixth direct interrogatory vou answer that you were not at any time during the year 1869 uotified by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebtedness from the defendant to the plaintiff, state whether you were not present at vour office in the city ot New York, on or about the first Tuesday of April, 1569, and heard a conversation between Theodore H. Becker and Herman Kountze, in which conversation Beeker tnformed Kountze that the stockholders of defendant had had a meeting, at which the claim of the plaintit® had

been considered, and that the stockholders refused to recognize oUF such claim or have anything to do with if.

Cross-interrogatory seventh. State the substanee of any and all conversations had in| presence between Theodore H. Becker & Herman Kountze relative to the claim ot the plaintith against the defendant, and the refusal of the defendant to recognize the validity ot such claim and the time when such conversations occurred, where they occurred, and who was present at each of said conversations.

KM. WAKELY, HUGH BUTLER, G. Bb. REED,

Attys for Def ts.

The deposition of Augustus Kountze, of the city of New York, in the county and State of New York, and witness of lawful age, produced, sworn, and examined upon his corporal oath on the LOth day of October, A. D. 1872, at No. 19 West Zist street in the city of New York,

in the county and State of New York aforesaid, by me, Thomas

598 L.. Carpenter, a commissioner duly appointed by a dedimus

potestatum Issued out of the eclerk's office of the district court of Jetterson County, in the Territory of Colorado, bearing teste in the name of John R. Cleaveland, esq., clerk of the said district court, and the seal of said court attixed thereto, and to me directed as such commissioner for the examination of the said Augustus Kountze, a witness In a certain sult and matter in controversy now pending and undetermined in the said district court, where the Rocky Mountain National Bank of Central City is plaintiff and the Union Gold-Mining

Company of Colorado is detendant, in behalf of the said plaintiff, as

well upon the cross-interrogatories ot the defendant as upon the interrogatories

of the plaintiff, which were attached to or included with the said commission, and upon none others. The said AUGUSTUS KOUNTZE, being first duly sworn as a wit-

399 ness Inthe said cause previous to the commencement of his examination

to testify the truth as well upon the part of the plaintiff as the detendant in relation to the matters in controversy between the said plaintiff and defendant, so far as he should be interrogated, testitied and deposed as follows :

Interrogatory first. Whatis vour name, age, occupation, and piace ot residence ?

Answer to inferrogatory first. Augustus Nountze; temporary resi dence, New York City : permanent residenee, Omaha, Nebraska: ave, forty-six years; occupation, banker.

Interrogatory second. Ave you acquainted with the plaintit® and de fendant in this suit; if se, how long have you known them respect ively?

Answer to interrogatory second. T have known the plaintiff ever since its organization, and have Known the defendant since TSad,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 123

400 Interrogatory third. What relation, if any, did you bear to the plaintitfin the year 1869? :

Answer to interrogatory third. [ was stockholder of the plaintiff in 1869.

Interrogatory fourth. Were you in any way connected with the plaintiff in the spring of L869?) If vea, in what eapacity ?

Answer to interrogatory fourth. In the ecapreity of stockholder.

Interrogatory fifth. Were vou or were you not an officer of the plaintiff at anv time during the yvear 1560?

Answer to interrogatory fifth. | think I was not an officer of the plaintiff any time during the vear 1860.

lnterrogatory sixth. Were you or were you not at any time 10] during the year 1869 notitied by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebted

ness from the detendant to the plaintiff?

Answer to interrogatory sixth. | was never so notified, but through the then president of the defendant, Theodore H. Becker, [ was informed of the correctness of plaintiffs claim against the detendant, and the desire on his part of making an early discharge of the said plaintiffs claim by providing funds to pay the same in full, and to that end he would call the stoekholders of the defendant together with the view of making an assessment on the stockholders tor the purpose of liquidating said indebtedness: that the claim was just and right and ought to be speedily paid.

Interrogatory seventh. Did you or did you not know in 1869 that the

plaintiff claimed that the defendant was indebted to the plaintiff 4020) for money loaned to the defendant by plaintiff?) If you answer that

you knew in 1869 that the plaintiff was making such claim on the defendant, state fully all you know about it, and your means of information when you first knew of sneh claim, and from whom.

- Answer to interrogatory seventh. [ knew in 1869 of such claim. f[ knew about it from statements that were furnished me from time to time by Joseph EL. Goodspeed, cashier of plaintiff, and also by direct infor. mation trom him conveyed personally, and also knew of it through my brothers, Charles and Herman Kountze, and also from admissions ot Theodore H. Becker, the then president of the defendant.

Interrogatory eighth. Do you know who was president of the defendant in the fall of 186s, and during the year 1869? If so, state whe

was president and your means of information. 403 Auswer to interrogatory eighth. Theodore IH. Becker was pres. ident during that time. He intormed me himself he was president.

Interrogatory ninth. Were you acquainted with any of the officers of detendant in 1869; 1f so, which ones ?

Auswer to interrogatory ninth. | was acquainted with Theodore If. Becker, president of defendant, only.

Interrogatory tenth. Have vou ever had any conversation with any of the officers of defendant concerning claim of plaintiff against defendant: if so, When was it, and what officer was it, and what was said by such officer of defendant about the claim of plaintiff against de fendant?

Answer to interrogatory tenth. IT have had eonversations on several

different occasions with Theodore H. Beeker, the then president

Ht 0 060of the defendant, at the office of Luther Kountze,. then located

at o2 Wall street, New York. In all my interviews with said Becker, he always stated that the claim of the plaintiff against the defendant was right, just, and correet, and should be paid in tull, never intimating anything in the least to the contrary.

124 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Interrogatory eleventh. Did you ever have any conversation with Theodore Hf. Becker concerning the claim of the plaintiff against the defendant; if so, when was it, and what was said by said Becker concerning said claim of plaintiff?

Answer to interrogatory eleventh. I did have conversation with Theodore Hl. Becker concerning the claim in question, when he expressed vreat regrets of his inability to immediately discharge the said claim

by paying the money for the same to said plaintiff, but that the (05 oplaimtuk should have his best endeavors to see the stockholders

of the defendant and making early provisions for the liquidation of plaintiffs claim against the defendant,

Interrogatory twelfth. Do vou know of any matter or thing tending to the advantage of the plaintiff!, touching the matter in controversy? If so state the same as fully as it especially interrogated concerning the same.

Answer to interrogatory twelfth. [asked said Beeker to advance the money to pay said claim of plaintif! against the defendant. He replied that in the event that he did so, he might be delayed in getting it back from the defendant, but he assured and re-assured me that he would use his utmost endeavors to place the plaintiff in possession of all the funds advanced to the defendant by plaintiff,

Cross-interrogatory first. If in answer to fifth direct interroga- 106 = tory you state that you was an officer of plaintiff at any time during the year 1869, state what office you held in. plaintiff corporation

and who were the officers of plaintiff at that time.

Answer to cross-interrogatory first. My brother, Herman Kountze, was president, Joseph H. Goodspeed was cashier, and F. H, Potter was assistant cashier.

Cross-interrogatory second. Do you know Herman Kountze? If yea, state, if you , What if any official position he held in plaintiff cor poration during the year 1869?

Answer to cross-interrogatory second. IT do. He was president of the plaintiff in 1869.

Cross-interrogatory third. If in answer to the tenth direct interrogatory you state that you ever had any conversation with any officer of

the defendant concerning the claim of the plaintiff against the LOG detendant, state particularly when such conversation or couver

sations occurred, the date of each, and who were present at each of them.

Answer to cross-interrogatory third. Said conversations were had early in the vear 1860, at different times, at the office of Luther Kountze, No. o2 Wall street, New York. To ecannot give the exact date ot such conversations. At such conversations were present Theodore H. Becker, Luther Kountze, and myself.

Cross-interrogatory fourth. If in answer to the sixth direct interrogafory you answer that you were at no time during the vear 1569 notified by the defendant that the detendant retused to recognize the indebted. hess trom the defendant to the plaintiff, state whether or not at any time in said vear Tlerman Kountze was not so notified by the detendant

I Vour presence; and, if yea, by whom notitied. 10s Answer to cross-interrogatory fourth. 1 never met Theodore H. becker simultaneously with Herman Kountze, and said Herman hhountze was never so notified at any time in my presence, nor did | ever have any knowledge of anv such notification.

Cross-interrogatory ftitth. [finanswer toeleventh direct interrogatory you state that you have had conversatious with Theodore H. Becker, concerning the claim of the plaintiff against the detendant, state when

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 125

those conversations took place, where they took place, and who was present at each of such conversation'. If in answer you state that you never had any such conconversation or conversations with Theodore H. decker concerning the claim of the plaintiff against the defendant, State whether you ever were present at any conversation or conversations between Theodore H. Becker & Herman Kountze in regard to the said claim on or about the first of April, 1869, at your office in the city

of New York, in which conversation Becker informed said Her- 409 man Kountze that a meeting of the stockholders of the defendant

corporation would be held on the first Tuesday of April, 1569, at Which the claim of the plaintiff against the detendant would be considered, and the said Herman Kountze was invited by the said Becker to attend such meeting.

Answer to cross-interrogatory fifth. Such conversations took place in the early part of the year 1869, at the office of Luther Kountze, No. 52 Wall street. Theodore H. Becker, and [| think Luther Kountze, was present at all of such conversations. Herman Kountze was not present at any of the conversations alluded to.

Cross-interrogatory sixth. If in answer to the sixth direct interrogatory you answer that you were not at any time during the year 13869 notified by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebtedness from the defendant to the

plaintiff, state whether you were not present at your office in the 410) cityot New York on or about the first Tuesday in April, 1569, and

heard a conversation between Theodore H. Becker & Herman KLountze, in which conversation Becker informed Kountze that the stock. holders of the defendant had a meeting at which the claim of the plaint. iff had been considered, and that the stockholders refused to recognize such claim or have anything to do with it.

Answer to cross interrogatory sixth. Twas not present on the ocea sion of any conversation between Theodore H. Becker and Herman Kountze at the date referred to or at any other time.

Cross-interrogatory seventh. State the substance of any and all con versations had in your presence between Theodore H. Becker & lierman Kountze relative to the claim of plaintiff against the defendant, and the refusal of the defendant to recognize the validity of such claim, and the time when such conversations occurred, and who was present at each of

said conversations. : 41] Answer to cross-interrogatory seventh. T was never present at any conversation claimed to be had between Theodore H. Becker and Herman Kountze. AUGUSTUS KOUNTZE.

Subseribed and sworn to before me this 10th day of October, A. D. 1s72.

Thomas L. Carpenter,

Commissioner.

I, Thomas L. Carpenter, of the city of New York, in the county and State of New York, a commissioner duly appointed to take the deposi tion of the said Augustus Kountze, a witness, Whose name is subseribed to the foregoing deposition, do hereby certity that, previous to the com mencement ot the examination of the said Augustus Kountze as a witness in the said suit between the said The Rocky Mountain National Bank of Central City as plaintitl and the Union Gaold-Mining Company ot

Colorade as detendant, he was duly sworn by me to testily the 412s truth in relation to the matters in controversy between the said parties so far as he should be interrogated concerning the

126 WU. G. M. CO. VS.eROCKY MT. NAT. BK. OF CENTRAL CITY.

same; that the said deposition and reduced to writing, by me, at No. 19 West 2Ist street, New York City, in the county and State of New York, aforesaid, on the 10th day of October, A. D. 1872, and that after said deposition was taken by me, as aforesaid, the interrogatories and answers thereto as written down were read over to the said witness, and that thereupon the same was signed and sworn to by the said deponent at the place and on the day and year last aforesaid.

New York, October 1LOth, 1572.

{ Thomas L. Carpenter, | Thomas L. Carpenter,

Fees, 12.00, paid by plaintiff.

115 TERRITORY OF COLORADO, County of Jefferson, ss:

The people of the Territory of Colorado to Thomas L. Carpenter, esq., of No. 47 Wall street, in the city of New York, in the State of New York, greeting:

Whereas it has been represented to us that Luther Kountze, of sud city and State, is a material witness in a certain cause now pending In our district court for the second judicial district of Colorado Territory, in and for the county of Jefferson, wherein the Rocky Mountain National Bank of Central City is plaintiff! and the Union Gold-Mining Company of Colorado defendant, and that the said witness resides at the said city and State of New York, without the said Territory of Colorado, and that his personal attendance cannot be procured at the trial of said cause:

Now know ye that we, in confidence of your prudence and tide

114 9 ity, have appointed, and by these presents do appoint, you commissioner to examine the said witness, and do therefore authorize

and require you to cause the said witness to come before you, at such time and place as you may therefore designate and appoint, and dill-gently to examine the said witness, on the oath or atlirmation of the said witness by you first duly in that behalf administered, and faithfully to take the deposition of the said witness upon all interrogatories & cross-interrogatories inclosed with and attached to these presents, both on part of the said plaintiff! and the said detendant, and none others, and the same when thus taken, together with this commission and the said interrogatories, to certify into our said district court with the least possible delay.

Witness John R. Cleaveland, clerk of our said district court, and the seal thereot, at Golden City, im said county of Jefferson and Territory aforesaid, this thirtieth day of September, A. D. 1872.

[SEAL. JOHN KR. CLEAVELAND, Clerk, by CHESTER C. CARPENTER, Deputy.

{15 In the district court, 2d judicial district in & tor said county, to the November term, A. 1). 1872. TERRITORY OF COLORADO, County of Jefferson, 8s :

Rocky MOUNTAIN NATIONAL BANK OF CEN: j

¥

#3 THe UNION GOoOLpD-MINING COMPANY OF Colorado. The above-named detendants are hereby notified that, on the 50th day

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 127

of September, A. D. 1872, we will sue out of the clerk's office of the district court of said county a dedimus potestatwm, or commission, to be directed to Thomas L. Carpenter, esq., of No. 47 Wall street, in the city of New York, in the State of New York, as commissioner, to take the deposition of Luther Kountze of said city and State, to be used in evidence on the trial of the above-entitled cause now depending and undetermined in the district court of said county, on the common-law

side thereof, and that a copy of the interrogatories hereto at. 4160 tached will be appended to said dedimus potestatum, or commission

. to be propounded to said witness on the part and in behalf of the plaintiff, and you ca" tile cross-interrogatories and join in said commission if Jou see fit.

H. M. & W. TELLER, W. R. GORSLINE, Attys for Plaintiff. To—

kK. WAKELY,

Gr. bb. REED,

HtGi BUTLER,

Detendant's Attorneys.

Interrogatories to be propounded to Luther Kountze, a witness to be produced and sworn on the part of the plaintiff in a certain action now pending in the district court ot Jefferson County, Colorado, wherein the Rocky Mountain National Bank of Central City, Colorado, is the plamtiff, and the Union Gold-Mining Company of Colorado is defendant.

Interrogatory first. What is vour name, age, occupation, and place of

residence ?

414 Interrogatory second. Are you acquainted with the plaintiff

and defendant in this suit? If so, how long have you known them respectively :

Interrogatory third. What relation, if any, did you bear to the plaintiff in the vear 1869?

Interrogatory fourth. Were you, in any way, connected with the plaintiff in the spring of 1869? If yea, in what capacity ?

Interrogatory fifth. Were you, or were you not, an officer of the plaint iff at any time during the year 1869?

Interrogatory sixth. Were you, or were you not, at any time during the vear 1869, notified by the defendant, through its officers or otherwise, that the defendant refused to reeoguize an indebtedness from the

defendant to the plaintiff?

118 [nterrogatory seventh. Did vou, or did you not, know, in 1869,

that the plaintiff claimed that the defendant was indebted to the plaintiff tor money loaned to the defen't by plaintiff? If you answer that you knew, in 1869, that the plaintiff was making such claim on the defendant, state fully all you know about = , and your means of intorma tion; when you first knew of such claim, and from whom.

Interrogatory elghth. Do you know who was president of defendant in the fall of 1868 and during the year 1860? If so, state who was president, and vour means of information.

Interrogatory muth. Were you acquainted with any of the officers of defendant in 1869?) If so, which ones ?

Interrogatory tenth. Have you ever had any conversation with

119 anv of the officers of defendant concerning the claim of plaintiff

128 w.G.M. CO. VS."ROCKY MT. NAT. BK. OF CENTRAL CITY.

against defendant? If so, where was it, and what officer was it, & what was Said by such officer of defendant about the claim of plaintiff against defendant ?

Interrogatory eleventh. Did you ever have any conversation with Theodore Hl. Becker concerning the claim of the plaintiff against the defendant? Ifse, when was it, and what was said by said Becker con cerning said claim of plaintiff?

Intervogatory twelfth. Do you know of any other matter or thing tending to the advantage of the plaintiff touching the matter in controversy 2? If so, state the same as fully as if especially interrogated concerning the same.

We do hereby acknowledge service on us of a copy of the annexed notice and interrogatories, and do consent that the dedimus potestativm Nay issue on Sept. Sist, Pez, but reserve all other objections. Po Central City, Sept. 28th, US872. Kk. WAKELY & G. B. REED,

Defents Attorneys.

('ross-interrogatories to be propounded, on the part of defendant, to Luther Kountze, a witness to be produced and sworn on the plain tiff in a certain action now pending im the district court of Jetterson County, Colorado, wherein the Rocky Mountain National Bank of Central City, Colorado, is the plaintith, and the Union Gold-Mining Company of Colorado is defendant.

Cross-interrogatory first. If in answer to fifth direct interrogatory you state that vou was an officer of plhantitfat any time during the year 1869, state what office you held in plaintu® corporation, and who were the other officers of plaintiff at that time.

Cross-interrogatory second. Do you know Herman Kountze ? If Ved,

state if you What, if any, official position he held in) plaintiff

121 corporation during the vear LSoo.

Cross interrogatory third. If in answer to tenth direct interrogatories you state that vou ever had any conversation with any oth cer of the defendant coneerning the claim of the plaintiff against the defendant, state particularly where such conversation or conversations occurred, the date of each, and who were present at each of same.

Cross-interrogatory tourth. Tfin answer to the sixth direct interroga tory you answer that you Were at ho time during the vear 1869 noti fied by the defendant that the detendant refused to recognize the indebtedness from: the defendant to the plaintiff, state whether or not at any time in said) year Herman WKountze was not so notified by the defendant im VOUr presence , and, it yea, bry whom he was so notitied,

and how notitied.

io Cross-interrogatory fifth. [fin answer to eleventh direct interrogatory

you state that you have had conversation with Theodore Il. Beeker concerning the claim of the plaintit! against the defend ant, state When those conversations occurred, where they took place, and who was present at each of such couversations., If in answer vou

State thatyvou never had AuV CONVEPsaTion OF CONVETSATIONS W ith Theodore

H. Becker econeerning the claim of the plamtit? against the detendant,

state whether you were present at any conversation of couversations

between Theodore Tl. Beeker and Herman Ikwenntze im regard to said claim on or about the first dain vf April. istoofh. at Vonil ottice im the CIty of New York, in which conversation Beeket Informed said Herman

,

Kountze that a necting of the stockholders of thi delenadant COLpPora-

U G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City 129

tion would be held on the first Monday of April, 1869, at which the claim of the plaintiff against the defendant would be considered, and the said Herman Kountze was invited by the said Becker to attend such meeting. 425 Cross-interrogatory sixth. If in answer to sixth direct interrogatorey you answer that you were not at any time during the year 1869 notitied by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebtedness from the defendant to the plaintiff, state whether vou were not present at your office in the city of New York, ou or about the tirst Tuesday of April, 1869, and heard a conversation between Theodore H. Becker & Herman NKountze, in which conversation Becker informed Kountze that the stockholders of the detendant had had a meeting, at which the claim of the plaintiff had been considered, and that the stockholders retused to recognize such Claim or have anything to do with it. Cross-interrogatory seventh, State the substance of any and all conversations had in your presence between Theodore H. Beeker and Herman Kountze relative to the claim of the plaintiff against the #400 6 detendant and the refusal of the defendant to reeognize the validity of such claim, and the time when such conversation occurred, where they occurred, and who were present at each of said conversations. Kk. WAKELY, HUGH BUTLER, G. B. REED, Attys for Detents.

The deposition of Luther Kountze, of the city of New York, in the county and State of New York, as witness of lawtul age, produced, sworn, and examined upon his corporal oath, on the 10th day of Oce-tober, A. D. 1872, at No. 12 Wall street, in the city of New York, in the county and State of New York aforesaid, by one Thomas L. Car. penter, a commissioner duly appointed by a dedimus potestatwm issued outof the clerk's office of the district court of Jefferson County,

in the Territory of Colorado, bearing teste in the name of Jolin R. #500 Cleaveland, esq., clerk of the said district court, and the seal of sald court attixed thereto, and to me directed as such commissioner, for the examination of the said Luther Kountze, a witness in a certain suit and matter in controversy now pending and undetermined in the said district court, Wherein the Rocky Mountain National Bank of Central City is plaintiff and the Union Gold-Mining Company of Colorado is defendant, in behalf of the said plaintiff, as well upon the cross-interrogatories of the defendant as upon the interrogatories of the plaintiff®, which were attached to or included with the said commission, and upon none others.

The said Luther Kountze, being first duly sworn as a witness in the said cause previous to the commencement of his examination to testify the truth, as well on the part of the plaintiff as the defendant, in rela. tion to the matters in controversy between the said plaintit? and defend: }

ant, so far us he should be interrogated, testified and deposed as tol-lows

: 16 Interrogatory first. What is your name, age, and occupation, and place of residence ? Answer to interrogatory first. Luther Nountze; thirty vears; banker; New York City. Rec. 157—9

130 =U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Interrogatory second. Are you acquainted with the plaintiff and de fendant in this suit? Ifso, howlong have you known them respectively ?

Answer to interrogatory second. I have been acquainted with the plaintiff ever since its organization, for about six years. I have known the defendant for four or five years.

Interrogatory third. What relation, if any, did you bear to the plaintiff in the year 1869?

Answer to interrogatory third. In the year 1869 [ was a stockholder

of the plaintiff. 427 Interrogatory fourth. Were you in any way connected with the plaintiff in the vear 1869?) [f yea, in what capacity ?

Answer to interrogatory fourth. Inthe spring of 1869 1 was a stock holder of the plaintiff.

Interrogatory fifth. Were you or were you not an officer of the plait iffat any time during the year 1869?

Answer to interrogatory fifth. I was not.

Interrogatory sixth. Were you or were you not at any time during the year 1869 notified by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebtedness from the de fendant to the plaintitt ? |

Answer to interrogatory sixth. I was not so notified.

425 lnterrogatory seventh. Did you or did vou not know in 186%

that the plaintiff claimed that the defendant was indebted to the plaintiff for money loaned to defendant by plaintiff?) If you answer that you Knew in 1869 that the plaintiff was making such claim on the de fendant, state fully all you Know about it, and your means of informa tion: when you first knew of such claim, and trom whom.

Answer to interrogatory seventh. I did Know that 1869 the plaintiff claimed that the defendant was indebted to plaintiff for money loaned to defendant. My means of information was from statements rendered by the plaintiff from time to time, and also from personal conversation had with Joseph H. Goodspeed, the then cashier of the plaintiff.

Interrogatory eighth. Do you know who was president of defendant

in the fall of 1868 and during the year 1869? If so, state who 429 was president, and your means of information.

Answer to interrogatory eighth. Theodore If. Beeker was presi dent of the defendant during that time. M'r Beeker informed me himself he was president.

Interrogatory ninth. Were you acquainted with any of the officers ot defendant in 18697? If so, which ones?

Answer to interrogatory ninth. I was acquainted with Theodore H. Becker, the president.

Interrogatory tenth. Have you ever had any conversation with any of the officers of defendant concerning the claim of plaintiff against defendant ?) If so, when was it, and what was said by such officer of de. fendant about the claim of plaintiff against the defendant ?

Answer to interrogatory tenth. I had conversation with Theo 0 =dore HH. Becker, the president of the defendant, concerning the

claim of plaintiff against the defendant in 1869. M'r Beeker called at my oflice, No. 52 Wall, New York, to see me concerning the claim. and to explain that he could not immediately pay it; that he would see it was paid as soon as possible, and with a view to that end he would see the stockholders of the defendant to obtain money from them for the purpose of Iiquidating said claim of plaintiff against the defendant.

Interregatory eleventh. Did you ever have any conversation with Theodore HL. Becker concerning the claim of the plaintiff against the

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 131

defendant? If so, when was it, and what was said by said Becker concerning said claim of plaintiff ?

Auswer to interrogatory eleventh. I did have conversation with Theodore H. Becker, the president of the defendant, concerning the claim of the plaintiff against the defendant in 1869. M'r Becker called at my

office, No. 52 Wall street, New York, to see me concerning the 451 claim, and he then and there explained to me that he could not

immediately pay it; that he would see it was paid as soon as possible, and with a vie. to that end he would see the stockholders of the defendant and obtain money from them for the purpose of paying said claim. )

Interrogatory twelfth. Do vou know any other matter or thing tending to theadvantage of the plaintiff touching the matter in controversy ? If so, state the same as tully as if especially interrogated concerning the Same,

Answer to interrogatory twelfth. Ido not now recollect of anything further that would tend to the benefit or advantage of the plaintiff.

Cross-interrogatory first. If in answer to fifth direct interrogatory you state that you was an officer of plaintiffat any time during the year 1869, state what office vou held in plaintiff! corporation, and who

were the other oflicers of plaintiff at that time. $32 Answer to cross-interrogatory first. | was stockholder of plaintiff in 1S69. Herman Kountze was president, Joseph H. Goodspeed cashier, and T. H. Potter was assistant cashier.

Cross-interrogatory second. Do you know Herman Kountze? If yea, state if vou know what, if any, official position he held in plaintiff cor poration during the year 1869.

Answer to cross-interrogatory second. Ido. In 1369 Herman Kountze was president of plaintiff corporation.

Cross interrogatory third. If in answer to tenth direct interrogatory you state that you ever had any conversations with any officer of the defendant concerning the claim of the plaintiff against the defendant, state particularly when such conversation or conversations occurred, the date of each, and who was present at each of same.

Answer to cross-interrogatory third. Such conversations oce-

433 curred at my office, No.52 Wall street, New York City, during

the early part of the year 1869. [ cannot state the exact date of

each. Mr Augustus Kountze was present at several of such conversations.

Cross-interrogatory fourth. If in answer to the sixth direct interrog atory you answer that vou were at no time during the year 1869 notified by the defendant that the defendant refused to recognize the indebtedness from the defendant to plaintiff, state whether or not at any time in said year Herman Kountze was not so notified by the defendant in your presence, and, it vea, by whom he was so notified, and how notified.

Answer to cross-interrogatory fourth. He was never so notified in my presence, as | never was present at any conversation had between Her. man Kountze and Theodore IH. Becker, or any person representing the defendant.

('ross-interrogatory fifth. If in answer eleventh direct inter-

4°10 rogatory youstate that you have had conversations with Theodore H. Beeker concerning the claim of the plaintiff against the defendant. state when those conversations took place and who was pre sent at each of snely conversations. [f In answer vou state that vou never had any convers ition or conversations with Theodore HL. Becker

132 =U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

concerning the claim ofthe plaintiff against the defendant, state whether you were present at any conversation or conversations between Theodore H. Becker and Herman Kountze in regard to said claim, on or about the first of April, 1869, at your office in the city of New York, in which conversation Becker informed said Herman Kountze that a meeting of the stockholders of the defendant corporation would be held on the first Tuesday of April, 1869, at which the claim of the plaintiff against the defendant would be considered, and the said Herman Kountze was invited by the said Becker to attend such meeting. 135 Answer to cross-interrogatory fifth. The conversations took place in the early part of the year 1369, at my office, No. 52 Wall street, New York. Augustus Kountze Was present. Cross-interrogatory sixth. If in answer to the sixth direct interrogatory you answer that you were not at any time during the vear 1869 notified by the defendant, through its officers or otherwise, that the defendant refused to recognize an indebtedness from the defendant to the plaintiff, state whether you were not present at your office in the city of New York, on or about the first Tuesday of April, 1869, and heard a conversation between Theodore H. Becker & Herman Kountze, in which conversation Becker informed Kountze that the stockholders of detendant had had a meeting, at which the claim of the plaintiff had been considered, and that the stockholders refused to recognize such claim, or have anything to do with it. 136 Answer to cross-interrogatory sixth. [was not present at any conversation between Theodore H. Beeker and Herman hKountze, on or about the first Tuesday of April, 1869, or at any other time. Cross-interrogatory seventh. State the substance of any and all conversations had in your presence between Theodore H. Becker & Herman Kountze relative to the claim of the plaintiff against the defendant, and the refusal of the defendant to recognize the validity of such claim, and the time when such conversations occurred, where they occurred, and who were present at each of said conversations. Answer to cross-interrogatory seventh. [ never was present at any conversation between Theodore H. Becker & Herman Kountze. LUTHER KOUNTZE. 437 Subscribed and sworn to before me this 10th day of October, 1872. THOMAS L. CARPENTER,

I, Thomas L. Carpenter, of the city of New York, and the county and State of New York, a commissioner duly appointed to take the deposition of the said Luther Kountze, a witness whose name is subseribed to the foregoing deposition, do hereby certify that, previous to the ecommencement of the examination of the said Luther Kountze as a witness in the said suit between the said The Rocky Mountain National Bank of Central City as plaintiff! and the Union Gold-Mining Company ot Colorado as defendant, he was duly sworn by me to testify the truth in relation to the matters In controversy between the said parties, so tar as he should be interrogated concerning the same; that the said deposition

was taken by me and reduced to writing by me, at No. 12 Wall 38 street, New York City in the county and State ot New York aforesaid, on the l0th day of October, A. D. 1s72, and that atter said deposition was taken by ie as aforesaid, the interrogatories and answers thereto, as written down, were read over to the said witness, and that

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 133

thereupon the same was signed and sworn to by the said deponent at the place and on the day and year last aforesaid. New York, October 10, 1872.

{ THOMAS L. CARPENTER, | THOMAS L, CARPENTER, } COMMISSIONER. f Commissioner.

Fees, S12; paid by pl'ft. T. L. C.

Here the plaintiff rested its case.

And the defendant, to maintain the issues on its part, gave in evidence to the jury as follows:

459 First, the several depositions of Frederick A. Potts, Samuel Bonell, & Henry Provost, as follows :

TERRITORY OF COLORADO, County of Boulder, ss:

The people of the Territory of Colorado to Charles E. Nettleton, New York City, New York, greeting.

Whereas it has been represented to us that Frederick A. Potts, of New York City, New York, is a material witness in a certain cause now depending in our district court for the second judicial district of Colorado Territory, in and tor the county of Boulder, wherein the Rocky Mountain National Bank of Central City is plaintiff and the Union Gold-Mining Company is defendant, and that the said witness resides at New York City, New York, aforesaid, without the said Territory of Colorado, and that his personal attendance cannot be procured at

the trial of the said cause: Now know ye, that we, in contidence 140 «of your prudence and fidelity, have appointed, and by these

presents do appoint, you commissioner to examine the said witness and do therefore authorize and require you to cause the said witness to come before you at such time and place as vou may therefor designate & appoint, and diligently to examine the said witness on the oath or affirmation by you first duly in that behalf administered, and faithfully to take the deposition of the said witness upon all interrogatories and cross-interrogatories inclosed with or attached to these presents, both on the part of the said plaintiff ang the said defendant, and none others; and the same when thus taken, together with this commission and the said interrogatories, to certify into our said district court with the least possible delay.

Witness Curtis G. Hathaway, clerk of said district court, and the seal thereof, at Central City, in said county and Territory, this twentieth day of December, A. D. 1570.

'SEAL. | CURTIS G. HATHAWAY, Clerk.

441 In district court of Boulder County, aforesaid. TERRITORY OF COLORADO,

County of Boulder, ss:

tral City rs. UNION GOLD-MINING COMPANY. \

Rocky MOUNTAIN NATIONAL BANK OF CEN- } _To Jannary term, A. é DD. 1871. To Mess. Johnson & Teller, plaintiff's attorneys: You will please take notice that, on 20th day of December, A. D. 1870, we will appear at the clerk's office of the district of said county

134 =U. G. M. Go. Vs. Rocky Mt. Nat. Bk. Of Central City.

of Boulder, at the hour of nine o'clock a. m. of said day, for the purpose of suing out a commission or dedimus potestatum directed to Charlies Nettleton, esq., of New York City, aS commissioner, autborizing and requiring him to take the deposition of Frederick A. Potts, a witness upon the part of the defendant, upon the interrogatories hereto annexed, said deposition to be used upon the trial of the above-entitled cause, 442 when and where you may appear and file cross-interrogatories it you so desire, Central City, Dee., 1870. HUGH BUTLER, kk. WAKELY, Attys for Deft.

{nterrogatories to be propounded to Frederick A. Potts, a witness to be produced, sworn, and examined under and by virtue of the annexed commission or dedimus potestatum.

Int. Ist. What is your name, age, occupation, and place of residence ?

Int. 2nd. Do you know the parties to this suit, or either of them; if so, how long have you known them, or either of them, respectively ?

Int. 3d. Did you ever hold any office or position in the defendant ?

If so, please state fully. 445 Int. 4th. Do you know George K. Sabin? If so, please state when and where you knew him.

Int. 5th. Do you know whether George K. Sabin was appointed agent or superintendent of the defendant? If you state vou do know, please state when he was appointed, for how long, how long he acted under said appointment, and whether he was appointed more than once.

Int. 6th. If in answer to the preceeding interrogatory you state that said Sabin was appointed such agent or superintendent, state if you know what were his powers and duties.

Int. 7th. Do you know whether Sabin was in New York City in the fall of the year 1866, and whether an arrangement was then made between him and the defendant by which he was to take charge of 444° and work detendant's property ? If you answer that you do, please state fully all you know about it, and what were the terms and conditions of the same.

Int. Sth. What position or office, if any, did you hold in the defendant at that time?

Int. th. If in answer tothe 7th interrogatory you state that some arrangement was then made, state if you know who made said arrangement on behalf of the defendant. |

Int. 10th. Do you know whether Sabin was authorized or allowed to draw drafts against the defendant, or to contract debts against the defend. ant, or to borrow money in its name, or to carry on its business? If so,

state fully whether he was so authorized or not. 115 Int. llth. State if you know whether Sabin was to send any pay-rolls or to make any remittance of profits to the defendant in New York, State if you know what was to be done with the profits caused by working detendant's mine, if any were made.

Int. 12th. Do you Know what salary or compensation Sabin was to receive for his services? If so, please state what it was, and whether or not the same was contingent upon the defendant's mine yielding a profit.

Int. 15th. State if you know whether Sabin was instructed by the defendant as to whether or not he was to continue or discontinue miu ing it the mine failed to pay expenses; if so, please state fully.

U. G. M. Co. Vs. Rocky Mt Nat. Bk. Of Central City. 135

Int. 14th. Do you know whether John F. Topping was employed by

the defendant? If so, please state when he was employed, for what

purpose, at what salary, how long he continued in said employ,

4406 whether he was paid for his services, and who paid him, if he Was paid.

Int. loth. Do you know of any other matter or thing in addition to what you have already stated that would tend to the-benefit or advantage of the defendant? It so, please state the same fully and at large.

HUGH BUTLER, EK. WAKELY, Def'ts Attys.

We hereby accept service of a copy of the within this 10th day of December, IS70, & consent that the comms, sit of the clerk at Boulder, JOHNSON & TELLER, Att'ys for PU ffs.

(Endorsed :) G. M. Co. vs. R. M. N. Bank. Interrogatories. Hugh sutler & KE. Wakely, deft's att'ys.

147 In district court, 2d judicial dist. To the Jan'y term, 1870.

TERRITORY OF COLORADO, County of Boulder, ss:

RockY MOUNTAIN NATIONAL BANK OF CEN. tral City MS, UNION GOLD-MINING COMPANY OF COLORADO. 4

—e— 4

Cross-interrogatories propounded to Frederick A. Potts, a witness to be examined on the part of defendant, to be attached to the dedimus potestatum. | If in answer to the fifth interrogatory of the defendant you say you

th' George K. Sabin was appointed ag't or superintendent of the defend.

ant, state how he was appointed, & if appointed more than once, how was he appointed each time.

if in answer to the 6th interfogatory you state that you knew what

his powers were as such agent, state fully all you know about it.

145 It in answer to the 7th interrogatory you state that an arrang't

was made between Sabin and the detendant, state all you know about your means of knowledge, and whether the arrangement was in writing or by parole.

If in answer to the 15th interrogatory you state you knew what Sabin's instructions were, state fully all you knew about it, whether such instructions were in writing or by parole, and how they were communiecated to him.

If you say vou knew Sabin was appointed ag't or superintendent of the defendant at any time, state fully how & by whom was he appointed.

JOHNSON & TELLER, Attys for PUP.

(Indorsed:) Interrogatories & cross interrogatories to be propounded to F. A. Potts, New York.

Se Oy er

Sag Se ee tet

136 U.G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 419 EXHIBIT A.

Rrhibit A.—C. N., Commissioner. OFFICE OF THE UNION GOLD-MINING CO, OF COLORADO, No. 110 BROADWAY, Room No. 5, New York, April Usth, 1865, Col. GEO. K. SABIN:

DEAR Sir: Mr Becker has submitted to our board your telegram, stating that you will accept the superintendency of the Union Gold-Mining Company of Colorado, so, without further preliminaries, they instruct : Ist, on delivering of the enclosed letter to Col. Mallery, he will place you in full possession of the books, papers, office, and properties of the Union Company, with a copy of all accounts and liabilities against the com pany. 2d. Stop all work except sinking one shatt on the Bates Lode, but sink that shaft continuously & as speedily as possible, through ev'y cap

until further advised. We expect you will soon find, if that 450 has not been done already, at least 50 feet of paving ore, 3d.

We advise that all work, sinking shatt, &e., \e., shall be done by contract, at so much per foot, if possible, for our entire board are opposed to all check and pay rolls, and the contract-system is far more satisfactory. 4th. We desire a letter or report from you each week, stating what progress has been made in sinking said shaft, and what kind of ore it is passing through, width of crevice and width of iron, (if any ;) also weekly expenses. oth. Send us full monthly reports of all our business operations at the end of each mouth. and trom time to time Write us any suggestions you may deem necessary for the company to know in relation to their affairs.

Our M'r Beeker contemplates being in Colorado in June, and will be authorized to make satisfactory arrangements with you as regards compensation, &c. He recommends you very highly to the company and

says you will cheerfully obey all instructions of the company here, 451 conduct its affairs with the utmost economy, and see to our interests

in Colorado promptly. In short, we are lead to expect. that you will soon, if anybody can, make our mines pay.

Let us have your views of the character and prospects of these mines at the earliest day.

Hloping all may go satisfactory, I am, very truly, your ob't serv't,

EDWIN CROSWELL, /'res't.

EXHIBIT B. Evhibit B.—C.N., Commr.

OFFICE OF THE UNION GOLD-MINING Co. OF COLORADO, No. 110 BROADWAY, Room No. 5, New York, September 29, 1565.

Col. GEO. K. SABIN: DEAR Sik: We telegraph you to-day "if you ean sell the ore to Lyon go on, if not stop everything immediately." This conclusion is based on the suggestions in your letter of 6th by Mr Wright. The improvements vou consider essential, (timbering the Shaft, pump, and addition to the house or mill,) vou estimate at dol a total eost of $19,000, If vou can get from M'r Lyon 220,000 for the 100 tons, at a cost of $5,000 for getting out the ore trom the

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 137

upper shaft, as we learn you have exhausted all the ore heretofore taken out, you will realize $15,000, but if you can sell to Lyon and can get sufficient from the shaft in addition to the sale to Lyon, go on and put the mine in order if it can be done with economy and with the certainty that we do not make further inroads in the treasury.

We teel compelled to limit our operations to this extent, as we must not tread on the treasury beyond the expenditures of the month of Sept'r, especially if they exceed the remittances of gold.

It isnot thought worth while to do anything with the Lyons process until it is fully demonstri.ted by the operations of his new furnaces and it proves to be a suecess.

When this shall be certain, and the cost not to' great it will be time to determine our actions on that subject. You gave the B. & B. Com-pany

the required notice of discontinuing the contract for their 155 mill the latter part of August, and M'r Wright informs that the

Porter mill broke down, so that before this you are standing still. This certainly is better than to go forward with the prospect of running in debt.

Your remittance of the gold received 20th inst., 72 0z., vielded "1,696.86 currency. Yesterday 47 oz. were sold.

Very truly yours, EDWIN CROSWELL.

The deposition of Frederick A. Potts, of the city, county, and State of New York, a witness of lawful age, produced, sworn, and examined on his corporal oath on the 28th day of December, 1870, at the office of Charles Nettleton, at 117 Broadway, in said city of New York, by me, Charles Nettleton, a commissioner duly appointed by a dedimus protestatum issued out of the clerk's office of the district court for the second judicial district of Colorado Territory, in and for the county of

Boulder, bearing teste in the name of Curtis G. Hathaway, esq., 454 clerk of the said district court, and the seal of said court aftixed | | thereto, and to me directed as such commissioner for the exami. nation of the said Frederick A. Potts, witness in a certain suit and Inatter in controversy now pending and undetermined in the said dtstrict court, Where the Rocky Mountain National Bank, of Central City, is plaintiff, and the Union Gold-Mining Company is detendant, in behalf of the said defendant, as well upon the cross-interrogatories of the plaintiff as upon the interrogatories of the defendant, which were attached to or inclosed with the commission, and upon none others.

The said FREDERICK A. PoTTs, being first duly sworn by me as a Witness in the said cause previous to the commencement of his examination to testify the truth, as well on the part of the plaintiff as the defendant, so far as he should be interrogated, testified and deposed as follows:

Interrogatory first. What is your name, age, occupation, and place of

residence ? 455 Answer. My name is Frederick A. Potts; thirty five years of age; wholesale coal merchant: my place of business is No. 110 Broadway, in the city of New York. My family reside at VDittsto'n, Huntestron County, New Jersey.

Interrogatory second. Do you know the parties of this suit or either of them; if so, how long have you known them, or either of them, respectively ?

138 Uu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Answer 2. I kuow the defendant. | have no acquaintance with the plaintiff, and only know of the plaintiff? by hearsay.

lnterrogatory third. Did you ever hold any office or position in the defendant? It so, state fully.

Answer 3. I] now hold the position of treasurer of the Union Gold. Mining Company, and have held that position ever since the organization

of that company in 1865, 1 think it was. 456 Interrogatory fourth. Do you know George K. Sabin? If so, please state when and where you knew him.

ith answer. | do know George ik. Sabin. I first met him in the early part of 1866, at the city otf New York, on his coming to this city at that time; prior to his coming to New York City at the time he had held the position of superintendant of the company, and [, as treasurer, had held correspondence with him as such superintendent, and bad not known him personally until he came to New York, as stated in this answer.

Interrogatory tifth. Do you know whether George K. Sabin was appointed agent or superintendent of the defendant? If you state you do know, please state when he was appointed, for how long, how long he acted under said appointment, and whether he was appointed more than

onee. 407 Sth answer. He was appointed superintendent of the defendant

company in April, 1565, for no detinite of tixed time. He acted as such superintendent under the appointment until the 3d day of April, 1866, at which time he was at the office of the defendant in the city of New York, and then and there resigned his position of superintendent, and was paid in full for his services as superintendent of the defendant by me as treasurer of the company. He was not appointed superintendent of the detendant more than once or at any other time than that I have before stated.

Interrogatory sixth. If in answer to the preceeding interrogatory you state that said Sabin was appointed such agent or superintendent, state if you know what were his powers and duties.

Answer. As soon as convenient atter Mr Sabin was appointed

455 superintendent, the president of the defendant wrote him a letter

of instructions, a true and correct copy of which is hereto annexed,

marked * Exhibit A." The original letter of which Exhibit A is a true

copy Was sent to M'r Sabin, at Central City, Colorado, at or about the

day of its date; that letter gives the powers and duties of Mr Sabin as Superintendent.

[nterrogatory seventh. Do you know whether Sabin was in' New York City in the fall of the year 1866, and whether an arrangement was then made between him and the defendant by which he was to take charge ot and work detendant's property?) If vou answer that you do, please state fully all you know about it, and what were the terms and conditions of the same.

Answer 7th, Mr Sabin took charge of the defendant's property in

Colorado the tirst of May, 1865, in pursuance of the instructions foo contained in the letter to him, of which Exhibit A is a true copy.

Mr Sabin continued in charge of the defendant's property in Colorado trom the time he so took charge, carrying out the instructions given himin Exhibit A, until the latter part of the month of Septeniber next following, when the defendant found from his reports that they were steadily loosing money and making large encroachments upon the capital of the company.

On the 26th day of September, 1865, the president of the defendant's company, after consultation with the directors of the company, wrote

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 139

Mr Sabin a letter, a true and correct copy of which is hereto annexed, marked * Exhibit BB." The original letter of which Exhibit B is a true copy was sent to M'r Sabin by mail at or about the time of its date, directed to him at Central City, Colorado.

In accordance with the instructions contained in Exhibit B, all mining

expenses of the defendant were then immediately stopped, and 460 all expenses of every kind were then stopped, except such as were

absolutely necessary to preserve the property of the company. M'r Sabin staid in charge of the company until about the first of Janu. ary, 1866, when he lett for the Eastern States, and reported himself at the office of the company, in the city of New York, on the 3d of April following, when the defendant settled with him and paid hii in full all his demands, aud he then and there ceased all conneetion with the defendant as superintendent or in any eapacity whatever.

M'r Sabin remained East during the following summer, and occasioually called at the detendant's office in this city as a friend simply.

During this summer M'r Sabin visited the gold fields of North Caro. lina with the intention of taking charge of some mines there, and invited me to join him in making an investment there, which I declined.

He also told me that he had spent. .some time in Troy and Ver- 161 mont, which was his native State. M'r Sabin failed to find any

business which suited him during the summer of 1866, and some time in the latter part of the month of September of that vear came unto the defendants, and while there stated to M'r Theodore H. Becker, who was at that time a director in the company, that he was satisfied that he could make the detendant's mine pay expenses by the sale or the manipulation of the second and third quality of the ores which might be extracted theretrom, and that the first quality ores which would be extracted might be accumulated tor the benefit and profit of the detendaut's company.

M'r Becker as a director of the company then made an arrangement with M'r Sabin on that basis. and upon the express condition that M'r Sabin was to pay all expenses from the manipulation of the second and third qualities of the ores then on hand and which he might cause to be

extracted trom the mine of the defendants after that time, and the 162 first quality was to be accumulated tor the benefit of the defend.

ant, and that the work on the mine was to be immediately stopped whenever Mr Sabin found he could not pay the expenses under this arrangement.

Mr Sabin's pay for his own services was included as a part of the expense to be paid trom the second and third quality ores under the above arrangement, and the detendant was to have the first quality ore free of charge or expense.

After this arrangement was made M''r Sabin never called upon the defendant for any assistance by way of money or otherwise to aid him in carrying out the above-mentioned arrangement, ueither did the de-tendant ever aid him to carry it out by making advances to him, directly or indirectly, on his draft or otherwise. This arrangement between Mr Becker & Sabin was made in ny presence.

lnterrogatory eighth. What position or office, if any, did you $03 hold in the detendant at that time?

Answer. Treasurer; I am still the treasurer of the defendant, and have held that position ever since the organization of the company.

Interrogatory ninth. If, in answer to the seventh interrogatory, vou state that some arrangement Was then made, state, if you know, who made said arrangement on behalf of the defendant.

140 U.G. M. CO. Vg. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Answer. That arrangement was made by Theodore If. Becker, on behalfof the defendant. Hewasat that time a director of the company. M'r Becker was on the 4th of the next April elected president of the defendant.

Interrogatory tenth. Do you know whether Sabin was author- 464 izedorallowed to draw drafts against the defendant, or to contract

debts against the defendant, or to borrow money in its hame, or to carry on its business? If so, state fully whether he was so authorized or not.

Answer. M'r Sabin was only authorized to realize fund from the manipulation and sale of the second and third quality ores then on hand, or which he might extract from the mine of the defendant; and whenever he could not pay all his expenses those ores, so as to leave the first quality ore to the defendant free of charge or expenses, he was to stop all the work or business in the defendant' ores or property, so far as he, Sabin, was concerned. Under the arrangement which was made with M'r Sabin by M'r Beeker on behalf of the detendant, M'r Sabin was not authorized to draw drafts against the defendant, nor allowed to do so;

neither was he authorized to contract debts against the defendant, 1659 orto borrow money in its name, nor was he authorized to carry

on any business in the name of the defendant. The business contemplated by this arrangement was to be done by M'r Sabin in his own name, as | understand it.

Interrogatory eleventh. State, if vou know, whether Sabin was to send any pay-rolls, or to make any remittance of profits to the detendant in New York. State, if you know, what was to be done with the profits caused by working detendant's mine, if any were made.

Answer. There was no arrangement or promise made between M'r Becker & Sabin for Sabin's sending any pay-rolls to the defendant under the arrangement ; there was no occasion for any such to be sent, neither Was there any promise made or occasion for M'r Sabin to make any remittance to the defendant. All the profit of the defendant, so far as

M'r Sabin had to do with it, was to be accumulated at the mine 166 in first-quality ore.

[Interrogatory twelfth. Do you know what salary or compensation Sabin was to receive for his services? If so, please state what it was, and whether or not the same was contingent upon the defendant's mine yielding a profit.

Answer. M'r Sabin was not to have any salary. His compensation was whatever he could make or realize from the sale or manipulation of the second and third quality ores, as I] have stated in my answer to the seventh interrogatory ; nothing else.

Interrogatory thirteenth. State, if you know, whether Sabin was instructed by the defendant as to whether or not he was to continue or discontinue mining if the mine failed to pay expenses. If so, please

state fully. 167 Answer. He was not instrueted by the detendant to continue or discontinue mining, but it was a part of the agreement between Mr Becker and M'r Sabin, that he, Sabin, was to stop all work at the mine whenever the second and third quality ores would not pay all the expenses, as | have betore stated.

Fourteenth interrogatory. Do you whether John F. Topping was employed by the defendant?) If so, please state if you know when he was employed; for what purpose; at what salary: how long he continued in said employ; whether he was paid for his services, and who paid him, if he was paid.

Answer. When MrSabineame East and resigned his superintendeney,

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL ClITy. 141

on or about the lst of April, 1866, M'r John F. Topping was employed

by the defendant to take charge of and preserve the property at 165 the mine. His salary commenced on the Ist of April, 1866, at

the rate of one hundred dollars curreney per month. M'r Topping ec Dtinued in that position in the employ of the defendant until the first ot Uctober, 1566, when he was paid six hundred dollars by the defend. antin full for his services above stated. i made the check to him for that amount and sent it to hin.

Fifteenth interrogatory. Doyou know of any other matter or thing, in addition to what vou have already stated, that would tend to the benefit or advantage of the detendant? If so, please state the same fally and at large.

Answer. Tdo not think of anything further which T think would tend to the benefit or advantage of the detendant in this cause. |

To the several cross-interrogatories on the part of the plaintiff, 469 = hereto attached, the witness, Frederick A. Potts, answered as follows, V1Z:

First cross-interro zatory. If, in answer to the fifth interrogatory of the defendant, vou say that George Ik. Sabin was appointed agent or superintendent of the detendant, aud state low he was appointed, and if ap pointed more than once, how was he appointed each time ?

Answer. Mr Sabin was appointed superintendent of the defendant in the month of April, 1865, by a vote or resolution passed at a meeting of the board of directors of the defendant. He was never appointed but Onee.

Second cross-interrogatory. If, in answer to the sixth interrogatory, you state that vou know what his powers were as such agent, state fully all you know about it.

Answer to 2d XN-int. The eopy letter hereto attached, marked 470 Exhibit A." gives all the knowledge I have on the subject inquired about in the 2d cross-interrogatory.

Third cross interrogatory. If, in answer to the 7th interrogatory, you state that an arrangement was inade between Sabin and the defendant, state all you know about your means of knowledge, aud whether the arrangement Was In writing or by parol,

Auswer. I have given fully, in my answer to the seventh interroga. tory, all inv knowledge of the arrangements made between M'r Becker, on behalf of the defendant, and Mr Sabin. My means of knowledge as to what that arrangement Was one that'l was present when the arrange. ment was made between them, and heard what was said by each of

them; the arrangement was not in writing but was verbal. 471 ('ross-int. If, in answer to the thirteenth interrogatory, you state vou knew what Sabin's instructions were, state fully all you knew about it, whether such instructions were in writing or by parol, and how they were communicated to him.

Answer. | answered the 13th interrogatory that M'r Sabin was not instructed by the defendant; the agreement mentioned in my answer to the 13th interrogatory was not in writing. but was verbal and was made between Mr Becker and M'r Sabin in my presence and hearing.

Cross-interrogatory. If vou say you knew Sabin was appointed agent or superintendent at any time, state fully how and by whom he was ap pointed,

Answer. He was appointed superintendent of the defendant in 72006 hUApril, Is66.) Lhave stated tully.in my answer to the first cross-luterrogatory, how and by whom he was so appointed.

| Frederic A. Potts.

142 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

I, Charles Nettleton, of the city & county of New York, in the State of New York, a commissioner duly appointed to take the deposition of the said Frederic A. Potts, a witness whose name is subscribed to the foregoing deposition, do hereby certify that previous to the commencement of the examination of the said Frederic A. Potts as a witness in the said suit between the said Rocky Mountain National Bank of Central City, as plaintiff, and the Union Gold-Mining Company a' defend. ant, he was duly sworn by me to testify the truth in relation to the inatter in controversy between the said parties so far as he should be interrogated concerning the same; that the said deposition was taken

by myself and reduced to writing by myself at my office at No. 173 117 Broadway in said city of New York, in the State of New

York, on the 28th day of December, A. D. 1870, and that after said deposition was taken by me as aforesaid the interrogatories and answers thereto and the cross-interrogatories and answers thereto as written down were read over to the said witness, and that therefore the same was signed and sworn to by the said deponant, Frederic A. Potts, before me, at the place and on the day and year last aforesaid.

Witness my hand and seal.

Commissioner, &e.

Commissioner's fees for taking the foregoing deposition, $20.50; paid by det't. CHARLES NETTLETON,

Commissioner, &e. 1740 TERRITORY OF COLORADO, County of Gilpin, ss: The people of the Territory to Charles Nettleton, No. 117 Broadway, New York, New York, greeting:

Whereas it has been represented to us that Samuel Bonnel, Henry Brevort, George H. Potts, Samuel B. Hord, and John H. Keeler, are material witnesses in a certain cause now depending in our district court for the second judicial district of Colorado Territory, in and for the county of Jefferson, wherein the Rocky Mountain National Bank of Central City, Colorado, is plaintiff, and the Umion Gold-Mining Com. pany of Colorado is defendant, and that the said witnesses at New York City, State of New York, aforesaid, without the said Territory of Colorado, and that personal attendance cannot be procured at the trial of the said cause:

Now know ye that we, in confidence of your prudence and fidelity, 475 have appointed, and by these presents do appoint, you commis. sioner to examine the said witnesses, and therefore authorize and require you to cause the said witnesses to come before you at such time and place as you may therefore designate and appoint, and diligently to examine the said witnesses on the oath or aftirmation of the said witnesses by you first duly in that behalf administered, and faithfully to take the deposition of the said witnesses upon all interrogatories and eross-interrogatories, inclosed with or attached to these presents, both on part of the said plaintiff and the said detendant, and none others, and the same when thus taken, together with this commission and the said interrogatories, to certify into our said district court with the least possible delay.

Witness Curtis G. Hathaway, clerk of said district court. and the seal thereof, at Central City, in said county and Territory, this twenty third day of August, A. D. Is71.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 143

476 In the district court in and for the second judicial district, county of Jefferson, to the October term, 1571.

TERRITORY OF COLORADO. County of Jefferson, ss:

Rocky MOUNTAIN NATIONAL BANK OF CEN- } tral City, Colorado, pt,

vs,

UNION GOLD-MINING COMPANY OF COLORADO, ! det't. \

The above-named plaintiff is hereby notified that on August 3lIst, ISt1, the Union Goid-Mining Company of Colorado, the defendant in the above-entitled cause, will sne out of the ottice of the clerk of the district court of Said county a dedimus potestatum or commission to be directed to Charles Nettleton, of No. 117 Broadway, city of New York, and State of New York, as commissioner to take the deposition of Samuel Bonnel, Henry Brevort, George H. Petts, Samuel bh. Hord,

and John H. Keeler, of said city and State, to be used in evi 477 dence on the trial of the above-entitled cause now depending and

undetermined in the district court of said county on the common-law side thereof, and that a copy of the interrogatories hereto attached will be appended to said dedimus potestatum or commission, to be propounded to said witnesses on the part of and in behalf of the defend. ant, and you can tile cross interrogatories and join in said commission

if you see fit. H. BUTLER & kK. WAKELY, Defrts Attys. To JOHNSON & TELLER, Attlys for PUP.

In the district court in and for the second judicial district, county of Jetlerson, to the October term, 1871.

TERRITORY OF COLORADO, County of Jefferson, ss : Interrogatories to be propounded to Samuel Bonnel, Henry Brevort,

George H. Potts, Samuel B. Hord, and John H. Keeler, respectively,

witnesses to be produced, sworn, and examined under & by 478 virtue of the dedimus potestatum or commission to be issued in pursuance of the annexed notice.

Interrogatory Ist. What is your name, age, occupation, and place of residence ?

Int. 2nd. Do you know the parties to this snit or either of them, and which of them, and how long have you known them respectively ?

Int. 3d. Did you ever hold any office or position in the defendant ? If so, state fully.

Int. 4th. Do you know George K. Sabin? If so, please state when and where you knew him.

Int. 6th. Do you know whether George K. Sabin was appointed agent or superintendent of the defendant? If so, please state when he was appointed, for how long, how long he acted under such appointment,

and whether he was appointed more than once. 479 Int. 6th. If in answer to the preceeding interrogatory you state

144 .G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. |

that Sabin was appointed such agent or superintendent, state, if vou know, what were his powers and duties.

Int. 7th. Do you know whether Sabin was in New York City in the fall of the year 1866, and whether an arrangement was made between him and the defendant by which he was to take charge of and work the defendant's property? If you answer that you do, please state fully all you know about it, and what were the terms and conditions of the same.

Int. Sth. What position or office, if any, did you hold in the defendant at that time.

Int. 9th. If, in answer to the 7th interrogatory, you state that some arrangements were then made, state, if you know, who made such

arrangements on behalf of the defendant. 480 Int. 10th. Do you know whether Sabin was authorized or allowed to draw drafts against the defendant, or to borrow money in its name, or to carry on its business? If so, state fully if he was so authorized or not.

Int. llth. State, if you , Whether Sabin was to send any pav-rolls or to make any remittance of profits to the defendant in New York; state, if you , What was to be done with the profits caused

by working the mine, if any were made.

Int. 12th. Do you know what salary or compensation Sabin was to receive for his services? If so, please state what it was, and whether or not it was contingent on the defendant's mine wielding a profit.

Int. 15th. State, if you , Whether Sabin was instrueted by defendant

as to whether or not he was to continue or discontinue mining 4581 if the mine failed to pay expenses. If so, state fully.

Int. 14th. Doyou know whether John F. Topping was employed by the defendant? If so, please state, if you know, when he was employed, for What purpose, at what salary, how long he continued in said employ, whether he was paid for his services, and how paid, if he was paid.

Int. loth. Do you know of any other matter or thing' in addition to What you have already stated that would tend to the benefit or advan. tage of the defend't?) If so, please state the same fully and at large.

HUGH BUTLER & EK. WAKELY, Attys for Def ts. ('ross-interrogatories : Ist. If in answer to the fifth interrogatory you say you know of the appointment of Geo. K. Sabin, state how you know it,and whether $2 oaany record of such appointment was kept, and, if so, annex a copy thereof to your answer.

Ynd. It you state anything about his powers and duties, state how you know what his powers and duties were, and whether he was or was not furnished with specific instructions, whether such instruction', if any, were in writing or verbal, and, if in writing, state, if you know, who has such instructions, and whether you can or cannot procure a copy thereof, and, if so, annex such copy to your answer to this crossinterrogatory.

od. If in answer to any interrogatories you say you know of any ar. rangement between defendant & Sabin as to the charge of defendant's property, state fully and specially when, where, and by whom made, Whether the same was or was not reduced to writing, and who were

present When it was made. State also whether it was or was not i$ made by direction of detendant, and whether it was done by resolution ot such directors, and whether record thereof was kept ly

| A

U. G. M. Co. Vs. Kocky Mt. Nat. Bk. Of Central City. 145

the said directors, and, if so, annex a copy of such record to your answer to this cross-interrogatory.

4th. State who have been the president, secretary, and treasurer, also the directors or trustees of the said detendant since the year 1864 ; state fully the ottices held and the length of time held by each.

oth. It, in answer to 9th interrogatory, you say any arrangement was made by any one in behalf of defendant, state how you know it was on detendant's behalf, your means of knowing, from whom derived, and when you first learned of such arrangements.

Oth. It, in answer to the 10th interrogatory, you know whether said Sabin was authorized to draw drafts, &c., state tully how vou know it, your means of knowing, and from whom such knowledge was derived ;

and state specially whether he did or did not draw drafts, and if 454. so, on Whom, when and for what amount drawn; and if you do

not know exactly, state in the aggregate the amount, the amount of the drafts, tor how long a time did he continue to draw drafts, the time when the tirst and last drafts were drawn, and whether such drafts were or were not paid.

ith. It, in answer to the 12th interrogatory, you say you know what his salary was to be, state how you know when the salary was fixed upon, by whom and how long it was continued, and whether it has or has not been paid.

Sth. It you say John F. Topping was employed by defendant, state how you know and from whom you derived your information,

Vth. State how long Sabin was employed in attending to the mine

and mill of the detendant, & Low if any gold or money was remit- 485 ted by him to the company or any of its officers, and when such gold or money Was remitted, & how often, if ever, did Sabin make reports to or correspond with the company or any of its officers. JOHNSON & TELLER, PUP Attys.

Notice of a copy of above interrogatories is hereby admitted, & time

only passed & consent to issue of dedimus at once hereby given, saving

'all other objeetions.

JOHNSON & TELLER, PUf Attys.

Erhibit A.A—C. N., Com.

OFFICE OF THE UNION GOLD-MINING COMPANY OF COLORADO, No. 110 BROADWAY, ROOM No. 5, New York, April 18th, 1865. Col. GEO. K. SABIN: | DEAR Sir: M'r Becker has submitted to our board your telegram stating that you will accept the superintendeney of the Union 486 Gold-Mining Company of Colorado; so, without further preliminaries, they instruct: 3 Ist. On delivery of the enclosed letter to Col. Mallary he will place you in full possession of the books, papers, office, and property of the Union Company, with a copy of all accounts and liabilities against the company. 2d. Stop all work except sinking one shaft on the Bates Lode, but sink that shaft continuously and as speedily as possible through every cap until further advised. We expect you will soon find, if that has not been done already, at least 50 feet of paying ore. 3d. We desire that all work, sinking shaft, &c., &c., shall be done by

Rec. 1oy—10

146 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

contract, at so much per foot, if possible, for our entire board are opposed to all checks and pay-rolls, and the contract-system is far more satisfactory. 4th. We desire a letter or report from you each week, stating what progress has been made in sinking such shaft, and what kind ot

487 ore it is passing through, width of crevice, and width of iron, (if

Sth. Send us full monthly reports of all our business operations at the end of each month, and from time to time write us any suggestions you may deem necessary for the company to know in relation to their affairs. Our M'r Beeker contemplates being in Colorado in June, and will be authorized to make satisfactory arrangements with you as regards compensation, &c.

Hie recommends you very highly to the company, and says you will cheerfully obey all instructions of the company here, conduct its affairs with the utmost economy, and see to our interest in Colorado promptly. In short, we are led to expect that you will scon, if anybody can, make our mines pay. Let us have your views and the character and prospect of our mine at the earliest day.

Hoping all will go satisfactory, I am, very truly, your ob't serv't,

EDWIN CROSSW ELL, President. 485 Exhibit B.—C.-N., Comm'r.

OFFICE OF THE UNION GOLD-MINING Co. OF COLORADO, No. 110 BROADWAY, ROOM No. 3, New York, September 29, 165. Col. GEO. K. SABIN:

DEAR SIR: We telegraphed you to-day,' If you can sell the ore to Lyon, roon; if not, stop everything immediately." This conclusion is based on the suggestions in your letter of the 6th by Mr Wright. The improvements you consider essential (timbering the shaft, pump, and addition to the house or mill) you estimate at a total cost of 319,000. [f you get from Mr Lyon $20,000 for the 100 tons, at a cost of %5,000 for getting out the ore from the upper shaft, as we learn you have exhausted all the ore heretofore taken out, you will realize $15,000; but if vou can sell to

Lyon, and can get sufficient from the shaft, in addition to the sale 489 to L., go on and put the mine in order if it can be done

economy and with the certainty that we do not make further in roads in the treasury.

We teel compelled to limit our operations to this extent, as we must not tread on the treasury beyond the expenditure of month of Sept., espicially if they exceed the remittance of gold.

It is not thought worth while to do anything with the Lyon process until it is fully demonstrated by the operation of his new furnaces, and if proves to be a success; when this shall be certain, and the cost not too great, it will be time to determine our action on that subject. You vive the B. and B. company the required notice of discontinuing the contract tor the mill the latter part of August, and M'r Wright informs

that the Porte mill broke down, so that before this yon are stand ing still. This certainly is better than to go forward with the prospect of running in debt.

Your remittance of the gold ree'd 20th inst., 72 0z., vielded 21,696.86 currency. Yesterday 47 0z. were sold.

Very truly yours, E DAVIN CROSSWELL.

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 147 190 EXHIBIT C, Evhibit C.—C. N.. Comm'r.

The trustees elected Feb'y 26, 1564, of the Union Gold-Mining Co. of Colorado, were Edwin Crosswell, Leverett E. Rice, Thomas M. Wheeler, John E. Keeler, George H. Potts, Sam'l b. Hord, Edw'd A. Quintord, Edward S. Santord, and Theodore H. Becker.

And on Fel'y 29th, 1564, the trustees elected the following officers of the Union Gold-Mining Co. of Colorado, to serve tor one year, or until successors were duly elected :

Edwin Crosswell, president; John KE. Keeler, vice-president; Fred-erie A. Potts, Treasurer.

On April 35d the following were elected trustees of the Union Gold- Mining Co. of Colorado:

Kdwin Crosswell, Theodore Hl. Beeker, John E. Keeler, Thomas M. Wheeler, George W. Baker, George H. Potts, Edw'd 8S. Sanford, John Dore, Samuel 1b. Hord.

On the same day, at a meeting of the board of directors of the 1491 Union Gold-Mining Co. of Colorado, the following officers were duly elected : .

Edwin Crosswell, president; Geo. W. Baker, vice-president ; Frederic A. Potts, treasurer; Henry Brevorst, j'r, ass't secretary.

On April 2d, 1866, the following were elected trustees of the Union Gold-Mining Co. of Colorado:

Geo. H. Potts, Sam'l Bb. Hord, Theo. H. Becker, E. S. Sanford, Edwin Croswell, J. b. Baker, Sam') Bonnell, jr, E. A. Quintord, S. 8S. Crosby.

On April Sth, 1866, at a meeting of the board of directors of the Union Gold-Mining Co. of Colorado, the following officers were duly elected :

Samuel Bonnell, jr, president; Theo. H. Becker, vice-president ; Frederic A. Potts, treasurer.

On April Ist, 1867, the following were elected trustees of the Union Gold-Mining Co. of Colorado :

Frederic A. Potts, James Brady, Joseph E. Baker, G. H. Danforth, Joseph M. Werner, Parker Jones, John H. Watson, Henry B. Griffith,

and Theodore H. Becker. | 12 And on April 2d, 1867, at a meeting of the trustees of the Union Gold-Mining Co. of Colorade, the following officers were duly elected :

Theodore Hl. Becker, president; Joseph M. Werner, vice-president ; Frederic A. Potts, treasurer.

On April 6th, 1868, the directors of the Union Gold-Mining Co. of Colorado, of 13867, were re-elected by the stockholders, & they chose the same officers. On April oth, 1860, the following were elected trustees of the Union Gold-Mining Co. of Colorado :

Theodore H. Becker, G. H. Danforth, John H. Watson, Henry B. (rriffith, Ja's I. Baker, Ja's M. Werner, James Brady, Fred'e A. Potts, Channing G. Fruner.

And, April 7th, 1869, the trustees of the Union Gold-Mining Co. of Colorado elected the following officers :

Theodore Hl. Becker, president; Joseph M. Werner, vice-president ; Frederic A. Potts. treasurer.

There has been no change in the directors or officers of the company ance the date; the directors & officers at present are the same as those elected April 5, LS6¥. :

148 . G. M. Co. Vs. Rocky My. Nat. 1K. Of Central City.

493 The deposition of Samuel Bonnel, jr, of Elizabeth, Union County, New Jersey, and Ilenry Brevort, of the city, county, and State of

New York, witnesses of lawful age, produced, sworn, and examined,

each upon his corporal oath, on the 27th day of September, A. D.

1S71, at the office of Charles Nettleton, number 117 Broadway, New

York City, in the State of New York aforesaid, by the said Charles

Nettleton, a commissioner duly appomted by a dedimus potestatwm

issued out of the clerk's office of the district of court of Gilpin County,

in the Territory of Colorado, bearing teste in the name ot Curtis G.

Hathaway, clerk of the said district court, and the seal of said court

affixed thereto, and to me directed as such commissioner, for the examination

of the said Samuel Bonnell, jr. & Henry Brevort, witnesses in a

certain suit and matter in controversy now pending and undetermined

in the said district court, wherein the Rocky Mountain National Bank

of Central City, Colorado, is plaintitt, and the Union Gold- Mining

44 Company of Colorado is defendant, in behalfot the said detendaut

, as well upon the cross-interrogations of the plaintiff as upon

the interrogations of the defendant, which were attached to or included with the commission hereto annexed, and upon none others.

The said Samuel Bonnel, |r, being first by me duly sworn as a witness in the said cause, previous to the commencement of his examination, to testify the truth, as well on the part of plaintiff as on the part of the detendant, in relation to the matters in controversy between the sard plaintiff? and defendant, so far as he should be interrogated, testified and deposed as follows :

Interrogatory first. What is your name, age, occupation, and place ot residence?

Ans. My name is Samuel Bonnel, jr; my age is forty-seven years ; my

occupation, a Wholesale Coal-dealer:; | reside at Elizabeth, Union

495 County, New Jersey ; my place of business is at New York City.

Interrogatory second. Do you know the parties to this suit, or

either of them, and which of them, and how long have you known them, respectively ?

Ans. Lknow the defendant, and have known it from its or ganization. I do not know the plaintiff.

Interrogatory third. Did you ever hold any office or position in the de fendant? If so, state fully.

Answer. | was president and trustee of the Union Gold-Mining Com. pany of Colorado, the detendant, tor one year, from April 5, 1866, to April 2, 1567.

[nterrogatory fourth. Do you know Geo. K. Sabin? If so, please state when and where you knew him.

Ans. I do know Geo. K. Sabin. | became acquainted with him 496 at the office of the Union Gold-Mining Company of Colorado, the defendant, in New York City, on or about the month of April,

L866,

Interrogatory fifth. Doyou know whether Geo, hk. Sabin was appointed agent or superintendent of the defendant? Iftso, please state when he Was appointed, for how long, how long he acted under said appointment, and whether he was appointed more than once.

Ans. Tdo know Geo, K. Sabin was appointed superintendent of the detendant. Tle was appointed about April is, Ps6o. and held his position until he resigned, which was in the month ot April, bsoo. Tle was not appointed but onee.

Interropatory sixth. [fin answer to the preceeding interrogatory you

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 149

state that said Sabin was appointed such agent or superintendent, state, if you know, what were his powers and duties.

197 Ans. His duty was to take charge of the mine & company property, but on no account was he to run the defendant into debt.

Interrogatory seventh. Do you know whether Sabin was in New York City inthe fallof the year 1s06, and whether an arrangement was made between him and the detendant by which he was to take charge of aud work the defendant's property? If you answer that you did, please state fully all you know about it, and what were the terms aud conditions of the same.

Ans. Ldo know that thesaid Geo. K. Sabin was in New York City inthe fall of the vear Iso: the defendant accepted his) proposition to work their mines on Bates lode on tribute—he agreeing to give all the first-quality ore he should take out tor the use of the mines of the defendant

ou said Bates lode: the rentortribute was to be paid by his (Sabin's) 19S leaving all the first-quality ore at the) Bates mine. This was in the fall of the year lSs66. |

Interrogatory eighth. What position or office, if any, did you hold in the defendant at that time?

Ans, I was president, and a member. of the executive committee, of the defendant.

Interrogatory ninth. If in answer to the 7th interrogatory you state that some arrangements were then made, state if you Know who made such arrangement on behalf of the defendant.

Aus, I stated, in answer to the seventh interrogatory, that the defendant accepted a proposition made by Geo. K. Sabin to work their mines on the Bates lode on tribute, he agreeing to give the defen't all the firstclass ore he should take out for the use of their mines on said Bates

lode. His (Sabin's) proposition was accepted on behalf of the 199 defendant by T. H. Becker, the vice-president, and F. A, Potts,

treasurer, in the presence of Henry bBrevoort, acting secretary of the Union Gold-Mining Co, of Colorado.

Interrogatory tenth. Do you know whether Sabin was allowed to draw drafts against the detendant, or to borrow money in its name, or to carry on its business? If so, state fully whether he was so authorized or not.

Ans. I know the the said Geo. K. Sabin was not authorized or allowed to draw drafts against the detendant, or to borrow money in its name to carry on the detendant's business or for any other purpose. I hereby refer to the papers marked Exhibit "A" & "B", for the instructions and authority given to Geo. K. Sabin by the detendant.

Interrogatory eleventh. State, if you know, whether Sabin was to send

any pav-rolls, orto make any remittance of profits, to the defend. 0 antin New York; state if you know what was to be done with the profits caused by working the mine, if any were made.

Ans. [fle was not to send any pay-rolls or to make any remittance of profits to the detendaut in New York, the rent or tribute was to be paid by his (Sabin) leaving the tirst-quality ore atthe Bates mine, as stated in Inv answer to the seventh interrogatory.

Interrogatory twelfth. Do you know what salary or compensation Sabin Was te receive tor his services?) If so, please state what it was, and whether or not it was contingent upon the defendant's mine yielding a Prone.

Ans. Ife was to receive a salary at the rate of thirty-five hundred $5,900) dollars per annum trom his appointment, about April 18, 1865, to January 1, ls66, and at the rate of one hundred (#100) dollars

150 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

501 permonth from January 1, 1866, to April, 1866, when he resigned ; at which time he was paid in full. Tfis salary was not contingent upon the defendant's mine yielding a profit.

Interrogatory thirteenth. State, if you know, whether Sabin was instructed by defendant as to whether or not le was to continue or dis continue mining if the mine failed to pay expenses; if so, please state fully.

Ans, Full instructions were sent him by the defendant through then president, my predecessor in office, M'r Edwin Creswell; they are set forth in Exhibit A & B herewith attached.

[Interrogatory fourteenth. Do vou know whether John EF. Popping was employed by detent? [f so, please state, if you know, when he was employed

, for what purpose, at Whatsalary, how long heeontinued in 502 said employ, whether le was paid tor his services, and how paid, it he was paid.

Ans. John F. Topping was employed by defendant to take charge of the property, as watchman, at a salary of one hundred (3100) dollars per month; he continued in the employ of the defendant from April 1, 1866, to October 1, 1866; he was paid by the defendant for his services by a certified draft sent him by F. A. Potts, treasurer of the defendant.

Interrogatory fifteenth. Do you know of any other matter or thing in addition to what you have already stated that would tend to the benefit or advantage of the defendant? If so, please state the same fully and at large.

Ans. Shortly after Mr Geo. K. Sabin's appointment as agent or superintendent by the defendant, as shown in Exhibit A herewith attached,

he commenced making remittances of money, gold, or retort, to 503 the treasurer of the detendant, Wr EF. A. Potts; this was about

the latter part of April or first of May, 1865; but his expenditures so tar exceeded his remittances that the president, under the direction of the trustees of the detendant, sent him a telegraph dispateh in words as follows: "If von ean sell the ores to Lyon, go on; if not, stop every thing immediately ;" and also sent lim instructions on the same date, as Shown in Exhibit B, which is herewith attached.

The remittances made by Geo. K. Sabin during his) superintendency for the defendant amounted to between sixteen and seventeen thousand dollars. The outlay or expenditure made by M'r Sabin amounted to be tween twenty-two and twenty-three thousand dollars. All the remittances were made to the treasurer of the defendant, Mr. F. A. Potts,

the months of April and November 2d, 1865.

After Geo. IK. Sabin's resignation, on or about the first of April, 1S06, he did not correspond with me, or with any of the officers of the com pany, tomy knowledge. I, as the president of the detendant, consid.

ered M'r Sabin a renter or lessee of the defendant after he re- 504 turned to Colorado in the fall of the year 1866. [I think he told Ine he was engaged to go to North Carolina on business.

To the several cross-interrogatories propounded to him, the witness, Samuel Bonnel, 'r, answers as follows :

Cross-interrogatory first. If in answer to the tifth interrogatory vou say you know of the appointment of Geo. K. Sabin, state how vou Know it, and whether any record of such appointment was kept: and, if so, unnuex a copy thereof to vourcanswer.

Ans. | know of lis appointment through the officers of the company, and by Exhibit A herewith attached, which is a true copy ot the minutes kept by the company.

l. G. M. Co. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 151

Cross-interrogatory second. If you state anything about his powers

aud duties, state how you know what bis powers and duties were, and

whether he was or was not turnished with specific instructions,

505 whether such instruetions, if any, were verbal or in writing; and,

if in writing, state, if you know, who has such instructions, and

Whether you can or cannot procure a Copy thereot, and, if SO, ANNEX a copy to your answer to this cross-interrogatory.

Ans. Mr Sabin was instrueted as to his specific duties and powers as superintendent. These instructions were given by Mr Edwin Cross-well, my predecessor in office, under direction of the trustees of the detendant, as are shown by Exhibit A & B,. a copy ot which is hereto attached.

('ross-interrogatory third. [fin answer to any interrogatories you say you know of any arrangement between detendaut & Sabin as to the charge of defendant's property, state fully and specially when, where, and by whom made; whether the same was or was not reduced to writing, and who were present when it was made. State, also, whether it was or Was not made by directors of detendant, and whether it was done

by resolution of such directors, and whether record thereof was 506 kept by the said directors; and, if so, annex a copy of such record to your answer to this cross-interrogatory.

Ans. In my answer to the seventh direct interrogatoy [ said that M'r Sabin was in New York City in the fall of the year 1866; that the defendant accepted lis (Sabin's) proposition to work their Bates Mine on tribute, he agreeing to give the defendant all the first-quality ore he should take out for the use of their Bates Mine. The proposition alluded to was made by M'r Sabin at the office of the Union Gold-Mining Company of Colorado, number 110 Broadway, in New York City, some time in October or November of the year 1866. It was not reduced to writing. The parties present were T. H. Becker, F. A. Potts, Henry Brevoort, Geo. K. Sabin, and myself. There was no arrangement made In Writing hor any resolution passed in regard to this proposition by the detendant.

I stated in my answer to the ninth direct interrogatory that the proposal

of Mr Sabin to work the defendant's Bates Mine on tribute 507 owas accepted on behalf of the company by T. H. Becker, vicepresident

, and FF. A. Potts, treasurer of the defendant, in presence of Henry Brevoort, acting secretary of the defendant. I aiso stated in my answer to the eleventh direét interrogatory that the rent or tribute was to be paid by his (Sabin's) leaving the first-quality ore at the Bates Mine.

Cross-interrogatory tourth. State who have been the president, secretarv, and treasurer, also the directors or trustees, of said defendant since the year 1966. State fully the offices held, and the length of time held by each.

Anus. The names of the officers and trustees of the defendant, together with the length of time held by each, are fully shown by Exhibit C, hereto attached.

Cross-interrogatory titth. If in answer to the ninth interroga-

50S tery you say any arrangement was made by any one in behalf of

defendant, state how you know it was on defendant's behalf, your

means of knowing, from whom derived, and when you first learned of such arrangements.

Ans. I know that the arrangement was made in defendant's behalf, because | was present when it was so inade. The particulars are more fhily given in my answer to the third cross-interrogatory.

152 VU. G.M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CiTY.

'ross-interrogatory sixth. Ifin answer to the 10th interrogatory you know whether said Sabin was authorized to draw drafts, Xc., state fully how you know it, your means of knowing, and from whom such know!l- edge was derived, and state specially whether he did or did draw drafts, and, if so, on whom, when, and tor what amount drawn; and, if you do not know exactly, state in the aggregate the amount of the

drafts, for how long a time did he continue to draw drafts, the 509 time when the first & the last drafts were drawn, and whether such drafts were or were not paid. :

Ans. As | have already stated in my answer to the tenth direct interrogatory, Sabin was not allowed or authorized to draw drafts against the defendant, or borrow money in its name; he, Sabin, never drew any drafts on the defendant, to my knowledge.

Cross-interrogatory seventh. If ino answer to the l2th interrogatory you say you know what his salary was to be, state how you know, when the salary was fixed upon, by whom, and how long if was continued, and whether it has or has not been paid.

Ans. My information was derived trom the officers of the detendant and from M'r Sabin's bill; his salary continued and was paid in full from the date of his appointment, in April, 1865, to the date of bis resign nation, in April, 1866, as set forth in my answer the 12th direct inter

rogatory. O10 Cross-interrogatory eighth. If vou say John EF. Topping was employed by defendant, state how you know, by whom, and trom where you derived your information.

Ans. My information respecting the employment of John F. Topping by defendant was derived trom I. A. Potts, treasurer of detendant.

Cross-interrogatory ninth. State how long Sabin was employed in attending to the mine & mill of the defendant, & how much, if any, gold or money was remitted by him to the company, or any of its oth-cers, and when such gold or money was remitted, and how otten, if ever, did Sabin make reports to or correspond with the company, or any of its officers,

Ans. Sabin was employed in attending to the mine of defendant from

April 18, 1865, to about the first day of April, 1866.) Between six- 511 teen and seventeen thousand dollars in money, gold and retort, was

remitted by him to the defendant, which IT have already explained and stated in my answer to the last direct interrogatory, therein giving the amount of the remittances and expenditures, and the time the remittances were made. I do not know how often, if ever, Mor Sabin made reports to or corresponded with my predecessor in office, M'r Edwin Croswell. He, Sabin, never made any reports to or corresponded with me atter | beeame president of the defendant, or with any other officer of the detendant, to my knowledge. I, as president of the detendant, (as stated in my answer to the last direct interrogatory,) consider ing M'r Sabin as a renter or lessee of the defendant after he returned to Colorado in the fall of 1866 & some six or eight months atter his resignation in April of that vear.

Sam. Bonnel, Jr.

The said Henry Brevoort, being tirst by me duly sworn as ai witness

in the said ease, previous to the commencement of lus

vl2 examination, to testify the truth,as well on the part of plaintitt

as on the part of detendant, in relation to the matters in controversy

between the said plaintit® and defendant, so far as he should be interrogated, testitied and deposed as follows:

a

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 153

Interrogatory first. What is your name, age, occupation, and place o1 residence ?

Aus. My name is Henry Brevoort: my age is twenty-nine vears; my occupation, a coal-agent, and | reside at New York City, in the county and State of New York.

Interrogatory secoud. Do you know the parties to this suit, or either and which of them, and how long have you known them respectively ?

Ans. | know the detendant, and have Known it since December, 1864:

Ido not know the plamtit. aS Interrogatory third. Did you ever hold any ottice or position in the detendant? If so, state fully.

Ans. | held the office of assistant secretary of the defendant. lL was appointed assistant seeretary by a resolution of the board of trustees about the first of April, 1860.

lnterrogatory fourth. Do you know Geo. K. Sabin? It so, please state when and where you knew him.

Ans. | do know Geo. K. Sabin. lt became acquainted with him at the oflice of the defendant, at No. 110 Broadway, New York City, on or about the last of Mareh or the tirst of April, 1566.

Interrogatory fifth. Do vou know whether Geo. K. Sabin was appointed

agent or superintendent of the defendant? If so, please

514. state when he was appointed, for how long, how long he acted

under said appointinent, and whether he was appointed more than once ?

Ans. I do know that Geo. K. Sabin was appointed superintendent of the defendant on the ISth day ot April, 1865, as per Exhibit A, hereto attached. Ie was not appointed but once. He resigned some time in the month ot April, 1866.

Interrogatory sixth. If in answer to the preceding interrogatory you state that said Sabin was appointed such agent or superintendent, state, if you know, what were his powers and duties.

Ans. His powers and duties are all set forth in Exhibit A, hereto attached.

Interrogatory seventh. Do you know whether Sabin was in New York

City in the fall of the year 1866, and whether an arrangement 515 was made between him and the defendant by which he was to

take charge of and work the detendant's property?) If vou an swer that you do, please state fully all you Know about it, and what were the terms and conditions of the same.

Ans. I do know that Geo. K. Sabin was in New York City in the fall of the year 1566. He called several times at the new office of the defendant during the latter part of the summer and in the fall of that vear. The detendant accepted his (Sabin's) proposition to work their Bates mine on tribute, he agreeing to give the defendant all the first-quality ore he should take out, for the use of their Bates mine, which first. quality ore he agreed to leave on the surface at the mine for the defend ant. He was to have all the other ores for his share. This was in the fall of the vear 1866.

Interrogatory eighth. What position or ottice, if any, did you hold

in the defendant at that time ? Olt Ans. I was assistant secretary of the defendant, as stated in my answer to the third interrogatory.

Interrogatory ninth. If, in answer to the 7th interrogatory, vou state that some arrangements were then made, state, if you know, who made such arrangements on behalf of the defendant.

Ans. I stated. in answer to the 7th interrogatory, that the defendant accepted Mr. Sabin's proposition to work their Bates mine on tribute, Le

154 Ou. G. M®Co. Vs. Rocky My. Nat. Bk. Of Central City.

agrecing to give the defendant ail the first-class ores he should take out, for the use of their Bates mine, which said tirst-quality ore he agreed to leave on the suriace at the mine tor the defendant. This proposition of Mr. Sabin's was accepted on behalf of the defendant by T. H. Beeker, vice-president, and I. A. Potts, treasurer ot the defendant. O17 Interrogatory tenth. Do you know whether Sabin was authorized or allowed to draw drafts against the detendant, or to borrow money im its mame, or to Carry Of 1S Dusiness ? lt so, state fully Whether he was so authorized or not.

Ans. Ido know that Creo. IW. Sabin had neo authority to draw drafts on the detendaut or to borrow int its names the instructions and authority sent to M'r Sabin by the trustees of the detendant, through Mr Kdwin Croswell, are fully set forth im Exhiint) A & Bb, herewith attached.

Interrogatory eleventh. State, if you know, whether Sabin was to send any pay-rolls or to make any remittance of profits to the defendant iu New York. State, if you know, what was to be done with the profits caused by working the mine, if any were made.

Ans. Ile was not to send any pay-rolls or to make any remittances of

profits to the defendant in New York; the rent, or tribute, was to 518 be paid by his (Sabin's) leaving the first-quality ore on the surtuce

of the Bates mine, as stated in my answer to the seventh interrogatory. Before his resignation in April, 1866, he was to work the detendant's property, as directed in Exhibits A & Bb, herewith attached,

Interrogatory twelfth. Do you know what salary or compensation Sabin was to receive for his services?) If so, please state what it was, and whether or not it was contingent upon the detendant's mine yield- Ing a protit.

Ans. He was to receive a salary or compensation at the rate of thirty-five hundred dollars (85,500) per annum trom the date of his appointment, on or about April 18, 1565, to January 1, 1866, and one hundred dollars ($100) per month from January 1, 1866, until about April 1, 1866, when he resigned, and John FF. Topping was appointed to take

possession of detendant's property. Sabin's salary was not con- 519 tingent upon the defendant's mine wielding a protit. lnterrogatory thirteenth. State, if you know, whether Sabin Was instructed by defendant as to whether or not he was to continue or discontinue mining if the mine failed to pay expenses. If so, please state tully.

Ans. The trustees of the detendant sent Mr Sabin tall instructions, through their president, Mr Edwin Croswell; they are set forth in Exhibits A & B, herewith attached.

Interrogatory fourteenth. Do you know whether John F. Topping was employed by the defendant? [ft so, please state, if you know, when he Was so employed, tor what purpose, at what salary, how long he continued in said employ, whether he was paid for his serviees, and how paid, if he was paid.

Ans. John F. Topping was employed by the defendant on or

O20 about the Ist of April, 1866, to look atter the company's property.

His salary was to be one hundred dollars per month. He econtinued

in the employ of the defendant until October 1, 1866.0 He was

paid for his services. The defendant sent him a dratt through M'r F. A. Potts, treasurer of the detendant; said dratt was eertitied.

lnterrogatory tifteenth. Do vou know of any other matter or thing, in

U. G. M. Co. Vs. Rocky Mp. Nat. Bk. Of Central City. 155

addition to what you have already stated, that would tend to the benefit or advantage of the defendant? If so, please state the same fully and at large.

Ans. I know that shortly atter M'r Geo. K. Sabin took hold of the deftendant's mine, under their appointment and instructions as set forth In Exhibit A, herewith attached, he commenced sending the defendant money, gold or rerort, but his expenditures, by contracts, so far exceeded

his shipments of tmoney to the defendant. that the trustees 921 oof the defendant ordered their president, M'r Edwin Croswell, to

stop all work at tie mines. M'r Croswell telegraphed M'r Sabin in Words as follows: = It vou can sell the ores to Lyon, go on; if not, stop everything unmediately >" and also wrote him full instruetions What to do, on the same day he sent the telegraph dispateh. Said instructions are fully set forth, and also a copy of the dispatch sent, in paper marked * Exhibit Bb." herewith attached.

Very soou thereatter M'r Sabin shut down the works or mines of the company. During the winter or spring following, he, Sabin, came on to New York City and rendered bis bill in full. His bill for salary was at the rate of thirty-five hundred dollars (35,500) per annum, from the Isth day of April, 1865, (the date of his appointment) to January 1, 1866, and at the rate of one hundred dollars (S100) per month from January Ist, L866, to the Ist day of April, 1866, at which time he resigned his agency, or superintendeney, and quit the defendant's employ

and was paid in full. He, Sabin, called at the company's office 522 several times during the sammer and fall of 1866, and had sev

eral conversations with me. He said he was engaged in some mining enterprise in North Carolina.

It was during one ot these visits that he made the proposition that | stated in my answer to the seventh interrogatory. M'r Sabin's remit tances of money, gold, and retort from the time of his appointment until he resigned, amounted to between sixteen and seventeen thousand dollars. His expenditures tor contracts, Xc., were between twenty and twenty-two thousand dollars. I] never had any interest or owned any stock in the detendant.

To the several cross-lnterrogatories propounded to him the witness, Henry Brevoort, answered as follows :

Cross-interrogatory first. If, in answer to the titth interrogatory, you

say vou know of the appointment of Geo. K. Sabin, state how 525 vou know it, and whether any record of such appointment Was kept, and if so, annex a copy thereot to your answer.

Ans. | know of his (Sabim's) appointment as superintendent, because I was the assistant secretary, and copied the papers at the time. Ex. hibit A, hereto attached, is a copy of the record showing his appoint nent.

Cross-interrogatory second. If you state anything about his powers and duties, state how you know what his powers and duties were, and whether he was or was not furnished with specific instructions; whether such instructions, if any, were verbal or in writing; and if in writing, state, If you know, who las such instructions, and whether you can or cannot procure a copy thereot, and, if so, annex such copy to your an swer to this cross-interrogatory.

Ans. The instructions to Geo. K. Sabin as to his powers and duties

are all contained ip Eshibits A & B, herewith attached, which O24 Instructions were authorized by the trustees of the defendant, and sent by the president, Mr Edwin Crosswell, to Mr Sabin.

156 =U. G. M. Go. Vs. Rocky Mt. Nat. Bk. Of Central City.

Cross-int@rrogatory third. If, in answer to any interrogatory, you say you know of any arrangement between defendant and Sabin as to the charge of defendant's property, state fully and specially when, where, and by whom made, whether the same was or was not reduced to writing, and who were present when it was made, state also whether it was or was not made by directors of defendant, and whether it was done by regolution of such directors, and whether record thereof was kept by the said directors; and if so, annex a copy of such record to this cross-interrogatory.

Aus. In my answer to the seventh direct interrogatory, [ said) that

M'r Sabin was in New York City in the fall of the year 1566; that 925 = ~=~—orhe called several times at the new office of the defendant during

the latter part of the summer and fall of that year; that the defendant accepted Sabin's proposition to work their Bates mine on trib. ute, he (Sabin) agreeing to give the defendant all the first-quality ere he shouid take out, for the use of their Bates mine, which said first-quality ore he agreed to leave on the surface at the mine for the defendant, and that he was to have the other ores tor his share. This proposition was made by Geo. K. Sabin to the detendant at their otiice, number 110 Broadway, New York City, in the fall of the year 1866. It was not reduced to writing. M'r T. Hl. Beeker, vice-president, Mr F. A. Potts, treasurer, and M'r Samuel Bonnel, j'r, president, of detendant, and myself, were present. [t was not accepted by a resolution ; no ree-ord was kept of it.

Cross interrogatory fourth. State who have been the president, secretary

, and treasurer, also the directors or trustees, of the said 526 detendant since the year 1564. State fully the offices held, and the length of time beld by each.

Ans. The names of the officers and trustees of the defendant, together with the length of time held by each, are fully shown by Exhibit ©, hereto attached, except as to secretary. By resolution of the board of trustees, made about the first of April, 1865, | was appointed assistant secretary of the defendant.

Cross-interrogatory tiftth. If, in answer to the ninth interrogatory, you Say any arrangement was made by any one in behalf of detendant, state how vou know it was on defendant's behalf, your means of knowing, from whom derived, and when you first learned of such arrangements.

Ans. | was present when the proposition was made by Sabin and aecepted by the defendant, as stated in my answer to the second aud ninth

direct Interrogatory. O27 Cross-interrogatory sixth. [fin answer to the 10th interrogatory

you know whether Sabin was authorized to draw drafts, \c., state fully how you know it, vour meansof knowing, and from whom such knowledge was derived; and state specially whether he did or did not draw drafts, and, if so, on whom, when, and tor what amount drawn: and if you do not know exactly, state in the ageregate the amount of the drafts, tor how long a time did he continue to draw drafts, the time when the first and last drafts were drawn, aud whether such drafts were or were not paid.

Ans. As I have stated in my answer to the tenth direct interrogatory, I do know that Geo. Kk. Sabin had no authority to draw drafts on the defendant, or to borrow money in its name. The instraetions and authority sent to Mr Sabin by the trustees of the detendanf, through M'r Edwin Croswell, president, are fully set forth in Exhibit A & B, herewith attached. Sabin never drew any drafts on the defendant to my knowledge.

a>

o>

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 157

328 Cross-interrogatory seventh. If in answer to the twelfth interrogutory

you say you know what his salary was to be, state how vou know When the salary was tixed upon, by whom, and how long it was continued, and whether it has or has not been paid.

Ans. I know what M'r Sabin's salary was to be, because M'r Sabin told me. When he came to New York in March or April, 1866, he rendered his bill and resigned his position as superintendent, and was paid in full by the detendant from the tine of his appointment (about April Is, 1865) to January 1, 1866, at the rate of thirty-five hundred dollars ($3,500) per annum, and at the rate of one hundred dollars per month from January 1, 1866, until April 1, 1866, the date of his resignation.

Cross-interrogatory eighth. If vou say John F. Topping was employed by defendant state how vou know, by whom, and from where you derived

your Information. O29 Ans. M'r Sabin told me that when he left Colorado John F. Topping Wasin possession and had the supervision ot the defendant's property, and M'r Fy. A. Potts, treasurer of the defendant, said he had engaged lim to take charge of the property of the detendant.

Cross-interrogatry ninth. State how long Sabin was employed in attending to the mine and mill of the defendant, & how much, if any, gold or money was remitted by him to the company or any of its officers, and When such gold or money was remitted, and how often, if ever, did Sabin make reports to or correspond with the company or any of its officers.

Ans. Mr Sabin was employed in attending to the mine and property of the defendant trom about April 15. 1865, until he resigned, and John F. Topping was employed, which was about April 1, 1866. I have stated the amount of his (Sabin's) remittances in my answer to the last direct

interrogatory. My answer to the said interrogatory also gives 930° the amount of his remittance and expenditures in the aggregate

from the time of his appointment on the 18 day of April, 1565, to the date of his resignation, about April 1, 15866.) I do not know how often he made any reports, (if he made any.) His letters were directed to Edwin Croswell, esq. [do not know of his corresponding with any Other officer of the detendant.

Henry Brevoort.

STATE OF NEW YORK, City and County of Nev York:

I, Charles Nettleton, of the city aud county of New York, in the State of New York, a commissidner, duly appoint ed to take the deposition of the said Samuel Bonnell. jr, and Henry Brevoort, witnesses, whose hames are subscribed to the foregoing depositions, do hereby certify

that previous to the commencement of the examination of the said 551 Samuel Bonnel, jr, and Henry Brevoort, as witnesses in the said

suit between the said Rocky Mountain National Bank of Central City, Colorado, as plaintiff, and Union Gold-Mining Company, of Colorado, as detendant, they were duly sworn by me to testify the truth in relation to the matters in controversy between the said parties, so far as they should be interrogated concerning the same; that the said depositious were taken by me and reduced to writing by William C. Lusk, a clerk in my office, in my presence and under my direction, at my office, No. 117 Broadway, in the city of New York, in the county of New York and State of New York, on the 27th day of September, A. D. 1871, and atter stich depositions were taken by me, as aforesaid, the interrogatories and answers thereto as written down were read over to the said

158 =v. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

witnesses, and that thereupon the same was signed and sworn to by

the said deponents, Samuel Bonnel, j'r, and Heury Brevoort, before me, at the place and on the day and year last aforesaid.

And I further certify that the said William ©. Lusk is not

532 in any way, directly or indirectly, interested in this suit er in the

event thereof. In witness whereof I have hereunto set my hand

and aflixed my official seal.

[SEAL. | CHARLES NETTLETON, Commissioner for Colorado in New York,

Commissioner' fees for taking the foregoing depositions were $30.50. Paid by defendants. CHARLES NETTLETON,

Commissioner.

George H. Potts, Samuel B. tiord, and John H. Keeler not appearing before me, as [am informed by reason of their absence from the city of New York, lL return this commission without their testimony.

Charles Nettleton,

Commissioner,

Defendant then called JOHN MELLER, who was sworn as a witness, and testified as follows: 533 "fT amaminer; have been for 50 years; know the Bates mine in Gilpin County. I know where Rocky Mountain National Bank is; know the bank; know George K. Sabin; he came back from the east some time in the fall, November or December, 1866, and I met him in November or December, 1866.) | had conversations with him in regard to the Bates mine. Mr. Sabin came down to our house one evening at dark and asked if I would go to work with him = or for him on the Bates as foreman, and he says to me, * You and [ will have to wait till we get our pay out of the mine, and asked if | was willing to do so, I studied over the thing a few minutes and said [T would. I went to work in the morning and worked a month or so and wished to quit ; told M'r Sabin I did not think T eould make anything; he was anxious ] should keep on; said it would all come out right. "1 worked along tor him till May or June; don't know just 53 when, and he then paid me one thousand and sixty-nine dollars for wages, and after that he paid me right along, as long as I worked for him. This was the first payment I got; that was in 1869. I have stated all the conversation [ reeolleet."

Detendant here asked witness this question: ** From your contract with M'r Sabin, for whom were you working at that time 2?"

(The plaintiff objected to the witness answering, the court sustained the objections, and detendanut then and there excepted to the ruling of the court.)

Defendant then asked witness: * For whom did he employ you to work ?"

(Plaintiff objected to the witness answering, court sustained the objeetion, and detendant then and there exeepted to the ruling of the (court.

On cross-examination Witness Meller, testified as follows: ' IT worked

there 1S months." Plaintit? asked witness this question: " What time did you quit 7"

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 159

(The defendant objected to the witness answering, the court 530 overruled the objection, and defendant then and there excepted to the ruling of the court.)

Witness then answered, "I believe I worked there 18 months, and began December loth. I don't know just what day I quit."

Plaintiff then asked the witness, " How was that $1,069 paid you?"

(Defendant objected to witness answering, because nothing was asked about it on direct examination. The court overruled the objection, and defendant then and there excepted to the ruling of the court.)

Witness then ans were, * Mr. Sabin drew a check, carried it to the bank, got the money, and handed money to me. He used to draw a check in my favor, and go & get the money and hand it to me, and I pay the men. IT have no doubt there were checks drawn to me and delivered to me sometimes.

"My salary was seven dollars a day. (Check shown witness.) 1 don't think that was for my pay alone; it was for all the men at the mine. These were generally for labor for all of us. He gave me the money for

myself and the balance of the boys. I gave him my time-list; he 956 made it up, and gave me the money to pay all. I always took my pay out, after the first time—after the $1,069,

"Sabin never missed payving,as I recollect, after the first pay was given. Sabin generally handed me the money at the office on Lawrence street. There was a man by the name of George Meller and one by the name of Sam Meller worked there."

Plaintiff here asked, ** What did you give Sabin when you got this money or check, whatever it might be?"

(Detendant objected to witness answering, because not cross-examina. tion. Court overruled the objection, and defendant then and there ex cepted to the ruling of the court.)

Witness answered, " [ always signed a receipt for 1t."

Plaintitf here asked the witness, * Do you know to whom the receipt run—in whose name was it taken?"

(The defendant objected to the witness answering. The court over. ruled the objeetion, and defendant then and there excepted to the ruling

of the court.) D7 Witness then answered, ©" [don't know who it was drawn to; 1t

wasinaregular book. [suppose read them atthe time. I could not be positive as to who the receipts were to, the Union Gold-Mining Com. pany or to Sabin. | think it was to the company; am not positive. Receipts were given once a month; pay never failed; as foreman I did anything I eould to keep the work along; saw that everybody else worked as hard as they could, and did so myself. I was mining, of course."

On redirect examination, witness Meller testified as follows :

"T think M'r Sabin got the money on the checks. They were payable to myself or bearer. Sabin always brought the money to the office on the Ist day of the month. Sometimes the bank wanted to make up their account and put it of a day or two from the first of the month. He brought if to me in ecurreney. There may be one-half or more of the checks that I never saw. I[ don't know that there is a single check

that I could identity."

53S JOHN RANK was called by defendant, sworn as a witness, &

testified as follows : +] resided in Central in 1866.) T was engaged in hauling ore. Knew the Bates mine. Know George Wo Sabin. Did know him in fall of 1566,

160 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

& long before that. I had dealings with him in fall or winter of 1566. Commenced carting ore in January or February, 1567, from Bates mine. J had a conversation with M'r Sabin, early in 1867, in regard to the manner of working that mine. Sabin wanted me to cart the ore as low as I could; that he had to make the mine pay its own expenses, & could not run the mine in debt. That was about all of it. I hauled ore to Kip & Buel's mill, Lyon's furnace, to New York Mill, to Black Hawk Mill, & Douglass Mill. N. B. Hayes was in charge of Lyon's furnace when | hauled there. Sabin said to me that he could not ran the mine in debt at all; had to make it pay expenses. He told me so before | hauled to Hayes, & afterwards. When | hauled to Lyon's he said Lyons furnace realized more than the stamp-mill, & had helped him out."

~

559 On across-examination, witness Rank testified as follows :

"T commenced hauling ore in January or February; it may have been before or after. | hauled timbers as well as ore. Think I hauled ore till November or December, 1868; was paid for hauling in cheeks. L hauled this ore for George WK. Sabin, on his account. He paid me."

Defendant here called CONRAD ELLIOTT, who was sworn as a witness, & testified as follows:

"In 1865 & 1866 T resided in Chase Guleh. Know the Union Gold- Mining Company's mine on Bates lode. Know George K. Sabin. I knew Sabin connected with the mine in 1565; could not tell exactly the date; some time after Mallory left. Can't tell positively what time in 1865 the work was closed on that mine; think it was in the winter. Think there was no work done in winter of 1865; none done in 1866. I know of Sabin's going east in the spring of 1866.) Don't think there was any mining done from fall or early winter of 1565 up to the spring

of 1866. None done when he when east. Sabin was acting as O40 agent in the winter of 1865 & 166,

"Sabin went east in the spring of 1866. Don't know what time of the spring. I believe as M'r Topping looked after the interests of the company while Sabin was gone, & until October, 1866. When Topping quit | took charge of the property until Sabin returned. [ had orders to take charge of it. I took charge & went over & told M'r Topping so. Took charge of everything. Moved everything out of the office & over to Chase Gulch. Took the sign down; took the books out; took papers, everything else, & rented out the office. Took the hings over to Chase Guleh & locked them up in a cabin.

"Sabin returned, I think, in the latter part of November, 1866. I had charge of the office & property of the company. I had rented it all out, & it was rented out when Sabin returned; the oflice up-stairs, the old mill—all rented, & were rented a month after Sabin returned. The ofttice was rented. [I put the sign over in the cabin in Chase Gulch

with the books & papers. D41 * When Sabin came back he came to my house & asked me tor the key; said there was a shutter off the engine-house; if I would give him the key he would go &\ put it on. IT said very well, & asked him it he was going to run the mine. He said he did not know ; that if he did he would net run it tor the company, but would run it on his own hook.

* He took the kKevs & promised to return them, & never did return

them. Sabin commenced work on the company's mine. IT went over a

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITy. 161

week afterwards; maybe longer. | asked him if he was starting up; he sald * Yes, T think; 'lam starting It upon my own hook or responsibility.' Hie generally made that remark. Soon after that Sabin came over to Chase Guleh with a wagon & team; I believe I was in Central at the tine. He went to my wife; she gave him the key of the cabin; he took the things out & took them away.

"JT think this was a month or six weeks after he had started up. It

was about three months trom the time I took the sign off the door 42 & locked it up till Sabin was back there in that manner; maybe

a little over 3 months. I was employed by Sabin during the time he was earring on that mine in 1866. Becker returned here in the fall of 1868; [| think the first of September—I think so. I never went to Sabin after the keys."

On cross examination witness Elliott testified as follows:

*] have testified twice on this case before. I can't say positively Whether IL testitied on a former trial of this case that Sabin said he would not work the mine on account of the company, & that he would work it on his own hook. IT might have testified before that Sabin said he would start it under the new arrangement. IT considered that the same thing.

*T now say that he said he would not work it on account of the com. pany. He always told me so—told me so before he went east. | don't

remember whether [ ever testified to those words betore; I meant 245 the same thing. I would not be positive whether I testified just

so betore. He said positively that he would not work it for the damned company; he seemed to be mad at the company.

"Sabin did not get the office for five or six weeks after he commenced work, for I had rented it to Col. Marshall. When he moved out, Sabin took possession ; then he went and got the things & took them back. He did not go into the office until he had moved everything out of the cabin. Can't tell how long he lived in the office before he put up the sign. [ took the desk, chairs, table, bed, bedstead, & sheeting, & pillow-cases over to Chase Gulch—no safe there; only one desk, sign, spittoons, &c. T don't know how long I worked there. Nearly all sui-mer—the summer of 1867."

Detendant here called THOMAS THOMPSON, Who Was sworn as a witness, testified as follows :

~T know Union Gold-Mining Company—Bates mine. Know George KK. Sabin. | tirst knew him in conneetion with the mine in 1866 or 13867; he superceeded Col. Mallory. I was employed there during the year

Is6o running the engine & brakesman. Work closed on the mine DAA some time in the fall, I think. I think there was no work done

on the mine in the winter of 1865-66. Sabin said he had been east in summer of 1866; 1 was not east to see. I know of his being away from here. Cant say what time he went; he returned in 1867, | think, or in 1S868; [T won't be positive.

"On his return, | had conversations with him in regard to starting up the Bates mine. He came to me & wanted me to go & look at the mine with him. We went down as far as wethough' safe to go. I went down to the water. He wanted to know what | thought about water coming into the mine; whether there was any coming water or not. I sald To did not think there was. I asked him if he intended to start If up. or it the company was going to start it up: he said if he started it be should do so on his own hook.

162. Uv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

"Then he wanted to know of me if [ was willing to take my chances with him & wait for my pay till he could take it out. He said he was going to work on his own responsibility, & he warned mé that I 544 must not look to the company for my money, provided he did not take it out of the mine. Then he went on to state what he was going to do: that he was going to work the mine on his own hook, as he termed it; that he was to pile up the first-class ore for the use of the mine. [told him [ would take my chances and wait on him till he took it out. Taen he told me to go to work & get the machinery ready for working, and [I did so & worked there as long as he worked—till he quit." On cross examination, witness Thompson testified as follows :

"Teant tell how long Sabin worked nor when he quit. I worked there during the time Sabin was there, & [To think a few days afterwards. | suppose it was Becker working it after Sabin quit. I think this was in the fall of IS6S8. First-class ore is what we now call lll. ore, smelting ore; ore that is clean enough te smelt."

Plaintiff here asked witness,

"Who paid you?"

(The detendant objected to witness answering, because not proper

eross-examination; bat the court overruled the objection, & D444 defendant then & there excepted to the ruling.)

Witness answered, ** Mr Sabin paid in ebecks mostly ; sometimes at the oflice & sometimes he brought them down to the mine. Cheeks were drawn mostly on the Rocky Mountain National Bank."

Plaintitt here asked witness, * Tlow were those checks drawn, (witness shown cheeks;) like those ?"

(The defendant objected to the witness answering: the court overruled the objection, & defendant then & there excepted to the ruling of the court.)

Witness then answered, * Yes, sir; [presume they were. It would be pretty hard to tell whether the checks [ received were of that kind. [ sometimes told Sabin to get the money & bring it to me, & sometimes | took the cheeks, when checks were delivered to me. I presume they were madein this way. | was paid onee a month generally, except the first, some four or five hundred dollars. He was owing me betore he paid."

Plaintiff here asked the witness, * When you received any pay, did

you give any receipt?" to the answering ot which by witness D445 detendant objected : the objection was overruled by the court, & defendant excepted then & there to the ruling of the court.

Witness answered, * Lused to sign a reeeipt-book. [ do not remem ber to whom the receipts were drawn: can't state. I presume the receipts were drawn to the Union Gold-Mining Company. The checks were drawn in that wav. T presume [ worked 8 or 10 days atter Beeker took charge of the property. | was blacksmithing when not attending to the engine; blacksmith—sharpening tools, Xe. I could not swear to Mr Sabin''s handwriting.

When | received cheeks, it was sometimes at the office & sometimes Sabin brought them to meat the mine. | testitied in this case before. 1 do not remember testifying that Sabin said he had made arrangements with the company to start the mine, but was not to draw on the eom pany. dle said he was gvoine te work, & was not te draw on the company.

eS AN OD

»

U. GM. CO. VS. ROCKY MYT. NAT. BK. OF CENTRAL CITY. 163 t On redirect examination witness Thompson testified as follows : | *T received the 400 or 500 dollars after I had worked there 546 three or four or tive months. I worked there four months betore lf drew my money at all. | eawt say certain how I received that . tirst pay. | think, though, it was in money; I am pretty certain that it was. My wages varied trom six to seven dollars per day. | The defendant here called GEORGE T. CLARK, who was sworn asa ' Witness & test. ied as follows: | 'Tam treasurer of the Territory, & secretary of the board of immigration. Up to Ist October, 1506, 1 resided in Denver; after that in Central Citw, & staved there till first of October, 1869.) Wasin banking * business in Central City. | know the property on Bates Lode called the Union Gold-Mining Company's property. [ was acquainted with Greorge IX. Sabin in LS66; he did business with me that year at the bank. *]} went to Central City Ist October, 1866. Sabin came into the bank some time In October or November, can't say exactly, & said he wanted to geta thousand dollars: that he was going to start up the Union DAF property, as we had talked in New York, & we let him have the money; took his check for it. Ile said he wanted it to opeu the (hion Company's mine; had to buy some supplies, or something of that kind. | don't recolleet the exact conversation; it Was a general conversation. in which he wanted a thousand dollars to buy some supplies, &c., \ LT think that he owed Mr. Heuse some money that he had got of him to start up with. Before [came up there he wanted to pay bim some, e: & Wanted to byiny SOTLe Huning-supplies—steel or powder. Was going to

work on the property: he had been down in the mine & it looked all right. That is about the general character of the conversation.

'TL took his check on George T. Clark & Co. I had two other transactions of that kind with Sabin: he sold me some gold, but he did not do a regular business with George T. Clark & Co. He paid back the amount, | think, in the course of 560 days—the #1,000.

* The transactions at our bank were with George K. Sabin. My im.

pression now Is that the check was signed, 'George K. Sabin. He ods continued to do business with us in that way; it might have been

for sixty days. We oftentimes let him have money, and he would sometimes bring in gold when he cleaned up: maybe a dozen transactions after these transactions with our bank. He did business at the Rocky Mountain National. J. H. Goodspeed was cashier of that bank then, | after Sabin commenced doing business with plaintiff.

"To had general conversations with Goodspeed in regard to how Sabin was dotng, how the mine was looking, what kind of ore he was getting out, how big arun, how big a retort. cc. The statement' made by Goodspeed were generally that 'Sabin got out a retort this week, going to do | well, Wished more of them would start up, that Sabin would make a good thing ont of the company's property, & if eastern companies would let more men take their property in that way it would be better tor the country.

é; * We had that kind of conversations perhaps a dozen times. In the spring & part of the summer of 1866, 1 was in New York City.

S49 Timet Sabin therein the spring of 1866.) [T had conversations with

him in New York in the spring or summer of 1566 in regard to

Starting: up Cefenudant s property,

Here the detendant asked the w witness to * State what thev were.'

»

164 .G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Plaintiff object' to witness answering, and the court sustained the objection.

Defendant excepts then & there to the ruling of the court.

Defendant then asked witness to " state if Sabin made a statement to you in the city of New York in regard to his resignation of the position he had held formerly."

Plaintiff objected to witness answering, the court sustained the ob jection, & defendant excepted then & there to the ruling. IT saw Sabi: once or twice a day for two or more weeks in New York.

On cross-examination, witness Clark testified as follows:

"In my conversation with Goodspeed we did not compare the management of Sabin with that of Mallory. Our conversations were gen eral in regard to the management of the mine, making It pay, &c.; there

was something said in reference to Mallory, in which I said Mal 550° Jory had the ore all in shape, & all Sabin had to do was to take it

out. The conversation was that he was a good manager to man age the mine."

KBENEZER SMITH Was then called by defendant, sworn as a witness & testified as follows: |

"T resided in Central City in 1865 & 1866. I was mining, & I was engaged in banking to some extent with M'r Clark ; the firm was George T. Clark & Co. Know defendant's property on Bates lode. Know Sabin; know of his having been away In 1S66'; he returned some time during the summer or fall. I had conversations with lim after his return in regard to his starting up the company mine. My recollection is that he told me he had made an arrangement to work the mine with the com. pany.

*T cannot remember the exact language, but he said he had made an arrangement to start the mine, & would have to have some money in order to do so; that he needed some; & asked me if Clark & I could

accommodate him; that if he had money he thought he could 551 «make some money out of it. He stated to me that he was to start

the mine on his own account. We loaned him the money to aid him in starting the mine. I think Sabin did business with our bank for two or three months; that is my recollection ; he had an accommodation. I dowt know what shape it was in, whether overdratt or note ; the business Was done in his own name, George Kk. Sabin; don't know where he did business after he left us. He first got money of us & then sold us gold. Can't state just the time he commenced. I should think about the Ist of September or first of fall; it might have been later or a little earlier ; think it was as late as that.

*T had subsequent conversations with Sabin after the mine was started. Welived right side by side, & frequently met, sometimes in the street in front of my house & sometimes in the stable; were intimate; together a great deal, and I presume sometimes in the bank. We

had conversations in regard to what he was doing, his product of DOP gold, first-class ore, &c., & the general business of the mine. 1

don't remember any particular conversation ; [Thad a great many with him in regard to the vield of lis mine, how much he was making or thought he was making.

"In some ot those conversations he made statemeut' to inform me as to who was doing the business. Tle said that he wanted to get money to start the mine on: as | understood it. Sabin, tor himself, & on his ewn account. The OnLy particular conversation as to What le said he was

ne ae

aw

I. G. M. Co. Vs. Rocky Myt. Nat. Bk. Of Central City. 165

soilng to do or was doing was at the time he asked for this money, that he had made an arrangement to start the mine with the company, to work their mine, & that he wanted some money to assist him in starting the property up. That is the only particular conversation I can remember, [have been about the mine; have seen ore piled up there frequently. To lad conversations with Sabin in regard to that ore; he said the ore belonged to the company, not to him. <At the time I talked with him about sending it to Hill he said that that was what he 553 had to pa. tor tribute to the mine, first-class ore. That is my recollection."

On cross-examination, witness Smith testifies:

'Tam pretty distinet that he said that was what he had to pay for tribute: it was after some first-class ore had accumulated. Lb was only here to hear a part of the other trial. T won't say he used the word tribute; he said it was what he had to pay the company. I think it was in the summer of 1867, from the quantity of ore accumulated ; this conversation was in the ore-house. fT was there afterwards up to the time he quit; these other conversations took place usually near our houses. I dont think I was ever in the company's office but onee ; think we never had any conversation there. [ have had no conversation with Becker about it since the last trial, except he made two or three remarks this morning since coming in court.

"] never was in the mine that I remember of. I may have said at last trial that IT never visited the mine with Sabin. [don't remember

that weever went down from our places in company. IT went to 554 the mine frequently when he was there. I do not remember whether I] so testified."

On redirect examination, witness Smith testified as follows:

"71 donot remember that | was questioned on this tribute ore on the former trial."

THEODORE H. BECKER was then called by defendant, sworn as a witness, & testified as follows, (paper shown witness:) " That is a certi-tied copy of the certified copy of the certificate of Incorporation of the Union Gold-Mining Company of Colorado & the act for the formation of corporations in the State of New York. | obtained them at the clerk & recorder's office in Gilpin County. It is the certified copy of original certificate filed there under the statute."

Here the defendant offered in evidence the certiticate of incorporation, \ law of the State of New York under which it was formed, spoken of by witness Becker. The plaintiff objected, and the court sustained the objection, & defendant then & there excepted to the ruling of the court.

The detendant offered in evidence a copy of the general incor-

DOOD poration act otf the State of New York, certified by the secretary

of state as an authenticated & verified copy of the general incorporation act & laws.

The plaintif objected, the court overruled the objection, & defendant then & there read the same to the jury; which is hereto attached & marked * Exhibit A.

THEODORE H. BECKER then testified as follows:

\*] know defendant: have known it since its organization, some time Im 1863, in New York City, State of New York. It was incorporated under the general aet of the State of New York. I was director in defendant corporation from its organization till April, 1867: then |

i -_

a _ ON AEE Ae RIN ly eG et

9 RAIN aM ae

:

166 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

was elected president. Prior to my being eleeted president IT was a member of finance committee. [was vice-president in L360; was member of finance committee in L866.

"The duties of the finance committee of our company Was to pay all bills, or rather see that all bill' are correct betore they were ordered paid, & to make any arrangements about expenses. Dills for rent, &

everything that pertained to the COMpPany, would come before the Dob finance committee, & | yee reported >t) by it betore the treasirel

Was permitted to pay any claims against them, This finance committee has been In power since the organization of the company.

"T know M'r Sabine; some time in the spring of LS650, P thinkin Apri, M'r Sabin was appointed special agent or superintendent; he remained in that position till about the Ist week im April, 1s66.°

Detendant here asked the witness to state What were his duties under that appointment.

The plaintiff objected to witness answering: the court sustaiued the Objection, & defendant excepted then aud there to the ruling of the court,

* The COM pany Was eneagved In actual mining operations from: Some time in April, 1865, tul the following September. No work was done on the company's property from that time til April, 1866. M'r Sabin's connection with the company terminated by lis making a written report. I was then, at the time, in New York. He came on to New York, made

a written report, & resigned; his resignation was accepted. DoF * This resignation was in writing. (Paper handed witness.) I

do know the handwriting of Mr Sabin. This is M'r Sabin's sigpature. Lo have seen bim write. This paper is a report & resignation. I think [| first saw it the 2d day of April; it is dated the dd. [t was prepared in my room a day or two before it was delivered to the company. It was prepared by Mr Sabin; the body of itis in Sabin's handwriting. MrSabin gave it to Mr Croswell, the president of the company, in the office of the company, No. L110) Broadway, New York. Lam not sure, but [ think it was the 5d day of April, the date it bears, [ obtained it from the office of the company; think it was before the first trial, some time in IS71.) [saw that identical paper delivered by Sabin in the office of the company about the time it bears date. [ft is in the same condition now that It was in when delivered to the company: there may be more blots on it now.

'* This erasure at the bottom of the page was there at the time of its

delivery to the company. (The document was here handed to the ooS court to be marked.) | was in New York in tall of 1866. Sabin

was there occasionally during the summer & fall: he came to Colorado in the latter part of Oetober or November. During the summer | received a letter trom him at Trov, New York. He was in Vermont a part of the time \ in North Carolina.

* He was not in the employ of the defendant after April, Is66. He has never been employed as agent or superintendent of detendant since about April od, ls66. There was an arrangement made between Sabin & the officers of the company in regard to working the company's mine There were a great many conversations & talks; there was a verbal ar rangement.

Sabin represented that he eould run the mine without company anything, and would run condition as when he lett it. There was nethin did not bind himself to do auvthing at all: simply a verbal arrangement

" . . , , He agreed to come to Colorado and examine the mine. see what

It costingg the | 7 , ? Qe foutrd the mine luoas good

" | ' : | Be ; ' alee, a a reauv ODIUGaTOTV > De

ene mE

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 167

DOU condition it was in, & if it Was in as cood condition as when he

lett it that he would go to work & lay the company up the first-quality ores tor the use of the mine, that is, for the rental or use, & run the mine on the second & third quality ores,

«They were, of course, very cautious. The company did not want to spend any money on the mine. The arrangement was that he was not to contract anv debts or draw on the company. At that time we under. stood that there was a len Jaw, & we were particular about that. Stated he Was to run the mine on his own account; not incur any responsibility to the company at all; he would ran the inine on his own merits— on his own hook; something of that kind. This was a verbal agreement. All of us were there. It was made principally with Potts. I was there, M'r Bonnel, & M'r Brevoort. Mr Potts, M'r Potts' father and brother, was there occasionally. I have enumerated all the officers of the Company that were present.

* There was no binding agreement by which he was to commence work.

Sabin left New York. These conversations occurred at several S60) times When he was in New York. I dont know the exact time he lett New York. He lett shortly after the arrangement was made.

* Tle commenced work. I first learned of his being at work, I think, in January, through Mr Elliott. The next time was by a letter from Sabin himself. It was some time in January, or tirst of February, be-tore I gota letter from Sabin about it at all. | have the letter, but don't know where itis. Lreturned to Colorado in May or June, 1867. IT know how Sabin was turnished with funds in 1865. The first money sent him Was a certiticate of deposit, with instruetions what to do. After that they ordered him to send the gold on & they wonld send him the money In return for it."

Detendant here asked the witness to state whether, during the time he was superintendent, in 1865, he was authorized by defendant to keep any bank-account in its name.

Plaintiit objected to the witness answering. The court sustained the objection, & defendant then & there excepted to the ruling.

Detendant then asked the witness to state whether during the ool time that Sabin was superintendent, during the year 1865, the defendant kept a bank-account in Colorado. |

Plaintit objected to witness answering. The court sustained the objection, & detendant excepted to the ruling of the court.

Here the detendant oftered to prove by witness Becker that during the time that Sabin was agent of the company, in 1865, no bank-account was kept by either defendant or Sabin in Colorado in the name of the defendant. The objected to the proof, the court sustained the objection, & defendant then & there excepted to the ruling of the court.

'All except the tirst-class ores was to belong to M'r Sabin under that arrangement. Lhave testified fo Mr Sabin was not to receive any compensation from the company for his services—not a cent. No compensation Was talked of ever. If he worked the mine at all, the second & third class or mill ores he was to use in any way he pleased, and put by the first-class or smelting ore.

* | returned bere the latter part of May or first of June. I was here

atew Wweeks—not long—at that time. Sabin was working Nos. 1 2 SX Pon the Bates: had laid up some first-class ore, & was milling

the mill-ores. A little first elass had accumulated there in a corner of the engine-room, | suppose about six teet bhigh—higher than my head standing up. | have no idea of how many tons. I suppose 30 or 40; a little bunch of it.

168 U. G. M. Co. Vs. Rocky Mt. Nal. Bk. Of Central City.

"There was no other arrangement made between October or November, 1866, & 16th December, 1869, between Sabin & the company, or any officers of the company, in regard to working the mine. I was around Central two or three weeks that time, & in Denver awhile.

'*T again returned in December, 1867. Some time during my first visit out In 1867 I wanted Sabin to work my claim number three on the Bates lode, & I made an arrangement with lim. T was to furnish him the use of mine & mill for developing No. three on sates. I had a good long talk about his condition. Tle was to develop No.3, fix up my mill,

[ put it in good order, pay all expouses. lle went to work, fixed O63 my millup, or had it done vider his directions, & paid tort. I

paid for it. Ile was to go to work on my number three & develop it & give me the first-class ore and use the millores himself. That arrangement was made when [ first came out in ls6e. Under the arrangement, Claim number three west was developed.

'Sabin run a drift in it between 90 & 95 teet, & stoped out the ores above, & then run in a second drift & made a second stope. The stopes did not run the whole distance of the levels. The stope was less thau 80 feet in length in one place & less than 60 in another. I don't remember the height; I think at least 40 feet. I think Sabin commenced to work on No. 3 west in January, 1563,

" Defendant did not own a mill in Colorado; it had some mill-machinery, but no mill. Sabin commenced to run my mill some time in summer of 1867. M'r Sabin then owned the west half of Discovery Bates lode. I dowt know when he became the owner. He told me, when I 'ame out in 1868, that he had bought it.

"After Sabin's purchase of that claim he worked through it' 564 whole length, so we could walk through from one claim to the other, that is fifty feet. That work must have been done in 186s,

'"Teame back to Colorado in December, 1867, & stayed about four weeks. Claim No. 3 west & west half of Discovery were worked from the property of the company. You went down the company's shatt, & then worked east and west, from the workings of the company eastward, through west half of Discovery, & westward through my claim No. 3, The hoisting was done through the property of detendant.

"When T returned, in December, 1567, Sabin was working on Bates lode. Atthat time he estimated there was 200 tons tirst-eclass ore piled up there. There was in the neighborhood of twenty cords of ore: it is variously estimated at from 6 to 8 tons to the cord, sometimes 10 tons,

'| next returned to Colorado in latter part of September; think I got up to Central about tirst of October, 156s, Sabin was still working on

number three, & think he was stoping on west end of No.2. At 69 that time the pile of first-class ore had increased fifty per cent.

There was in the neighborhood of thirty-two cords at that time. A portion of it was entirely separate; 1t belonged to me as tribute from number 5 west, & then the balance was mixed. There was probably ~ cords, separated trom the balance, that belonged to me; the balance was mixed. IT could not say anything about that.

'T tirst Knew that Sabin was doing business in Colorado in name ot defendant on the loth of December, 15658. 1 notitied company on the 16th, the day I heard of it. It took letters in those days about ten days to go. I got an answer upwards of three weeks afterwards.

* | notitied the company through the vice-president, M'r Werner. I first had knowledge that plaintitt claimed an indebtedness from defendant on loth Deeember, ses.) Mr Sabin told me at supper-time that he was behindhand at the bank. A little while after that M'r

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL city. 169

Potter camein. M'r Sabin had left my boarding-house & started 966 towards town & met Potter; they got together some way. Potter

told me of it; told me the debt was contracted in the company's name. Tam not sure what he said the amount was. He wanted ine to deposit ten thousand dollars 5.20 bonds. I think Potter told me the amount was fifteen or sixteen thousand dollars. [ am not sure it was not as large as it turned out afterwards. I notified the company that night; I teid Potter | would write them. I wrote to M'r Werner. Here witness was handed a letter.) This is my signature; I wrote this letter; the body of it is in my handwriting; I got it at the office of the company, 110 Broadway, when | got the report & other papers & letters, di think it was in IS70.

"Tam not sure [ received a reply from M'r Werner, (Here witness was shown another letter.) This is M'r Werner's signature; I know his handwriting; | have seen him write. This letter was received by me

some time in January, 1569; I think the first or second week. OOF * | wrote on 16th December, 1868. This came about three weeks

after. (Letter handed court to be marked.) I wrote to the com. pany again some time in January, through M'r Werner. It was after I received this answer. (Another letter shown witness.) That is my signature. 1 wrote this letter to M'r Werner. I got it from the office of the company in New York the same time I got the other papers. I received an answer to this letter. (Another letter shown witness.) This is Mr Werner's handwriting.

'"T received that letter in March some time—the first or second week in Mareh. Ll read part of both of those letters received from Werner to M'r Goodspeed, & told him what they contained. I told M'r Potter | would write to the company, & of course when [ got an answer I told them what the answer was. I promised Potter | would write when he first told me about it, the 16th December. I told them the contents of these letters within a day or two atter I received them—lI told M'r Good-speed

." OOS Here the defendant offered in evidence the four letters last mentioned, & read them to the jury, as follows:

CENTRAL CITY, COLORADO, Dee. 16, 1868. J. M. WERNER, Esq., PL. Union G. M. Co., New York City:

DR SIR: Please see Mr Potts and our board and ascertain if any new arrangements have been made with M'r Sabin, giving him authority to draw drafts or contract debt or in the name of the company, &e. One of the clerks of the Rocky Mountain National Bank has just noti-tied me that M'r Sabin has made overdrafts at their bank for some sixteen or twenty thousand dollars in the company's name. las anything new been done since I left N. Y.oin Ajoril last ?

Please answer immediately, & oblige,

Your ob't se't, T. H. BECKER.

DOU OFFICE OF THE UNION GOoLD-MINING Co. OF COLORADO, 110 Broadicay, New York City, Dee. 26, 'BS, T. H. BECKER, Esq., Pre Sithe nt of the [rion fold Mining Co. of Calorado, Central City: DEAR Str: Your favorof the 16th inst. came by to-day's mail. We have had no communieation whatever from M'r Geo. K. Sabin.

170 =U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

In fact, we have had no meeting of the company since the election in April last. The contents of your letter astonished all of the directors lL have spoken to. M'r Sabin has no authority whatever to draw any drafts on, or in the name of, the Union Gold-Mining Company ot Colo rado, or to contract any debts in their behalf.

When are you coming on? Very resp'y, yours, X¢., JAS. M. WERNER. Vice-Pres. U. G. M. Co. of Col.

aad CENTRAL CITy, COLORADO, Jan Mel VY Moth, LSobs. J. M. WERNER, Esq., Vice-President U. WM. G. Co., New York:

Dre Sir: Please call a meeting of our board of directors, & tell them that I have agreed to spread the overdratt of M'r Sabit's before them. |

The bank elaims that Mr S. overdrew his account in the name of the Union Gold-Mining Company, & used the money d& in ther mill. They certainly look to the company tor payment, & say the co. got all the benefit, Mc. Tread your note to the cashier, Mr Goodspeed: he says he thinks the company should pay it. L told him M'r Sabin had transcended his authority, & I ordered them not to let him have a dollar on the companie's account. | herewith enclose you the amount of their claim, &e. T assure you that no one was more astonished than I

was when I first heard of this overdratt. | did not know 571) one word of it until 16th Deeember, the day [last wrote. Have

the board directors say & direct what I shall do, & write me the result as soon as possible after the meeting, & oblige,

Your ob't s'v't, T. H. BECKER. Witness Becker testified : " This letter was written a tew weeks atter IT received the first reply from Werner, in January, 1869, & is in answer to that one."

OFFICE OF UNION GOLD-MINING Co. OF COLORADO, 110 Badice., New York City, Febvy 25, 7°69. T. HE. BeckKER, Esq., President Union Gold-Wy Co., Central City, Col.

DEAR Sir: The directors say that M'r Sabin's actions are so contrary to the arrangements & agreements made with him in the fall of 1866, that they cannot recognize his acts, & that the matter must be pre-

| sented to the stockholders at the annual meeting of the company oi? in April. They decline to do anything whatever.

Piease notify M'r Sabims creditors at once of this. Y'rs, resptt ly, Xe., JOS. M. WERNER, loce-Pres. . G. MM. Co. of Col,

Witness Becker then testified :

*Tecould not say what portions of these letters | read to M'r Good. speed. Tle was constantly called out. They were constantly mentioning the ftaet about the debt in short conversations. I told Potter I had notified the company. Goodspeed asked me it Thad heard from the company. [told them.* Yes, they had repudiated the debt: it was

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 171

a matter that would have to be spread before the stoekholders.' The directors would not reeognize anything or have anything to do with it all, hence the agreement was that [ should go on & have the stoekhold.- ersmeet. It was generally understood. [| promised M'r Goodspeed &

M'r Kountze IT would goon. 1 think they all understood that I would ' go on, call a meeting of the stockholders, & spread the matter oi before them,

* The representations to me were that Sabin had authority. 1 stated to Goodspeed that IT would go on & attend the regular stock hold. ers' meeting & spread tie matter before the stoekholders, & [ did so."

The court here ruled that the two letters from Beeker to Werner were not adimissable in evidence, & the defendant then and there excepted to the ruling of the court.

'| notified the company of this affair,as | had promised; did) so by these letters, & afterwards, then T notified the plaintit? that the diveetors would have nothing to do with the matter some time during the first part of January, directly after I got the reply from Werner. Had great many conversations with the plaintiff about this matter. I refused to do anything until [ heard from the company. After I notified them that the directors would have nothing to'do with it, 1 promised | would vo on & spread the matter before the stockholders; their annual meet,

ing Was some 8S or 10 weeks after that, the first week in April. ed f went on. There was a meeting of the stockholders: it was

Ist week in Apmil. T think the Ist or 2d day of April the matter was laid before them. (Here a book was handed to witness. } This is the book of minutes or records of the Union Gold-Mining Com. pany; it was kept at the company's office in New York. 1] know some of the signatures to those entries to be correct. [ knew M'r Werner & M'r Brevoort's. This is the only book of minutes of the company's meet- Ings that I know of, or that I ever saw there: there were stock-books and ledgers. I got this book from Mr Potts, the treasurer of the company, a week or ten days ago." Here defendant offered in evidence the report & resignation of Sabin, Whereupon plaintiff asks witness Beeker in regard to it. Becker testi ties as follows:

'This paper is in the same condition that it were when it was handed to the president. I have testified twice before in this ease. IT remem.

ber this paper was in this condition because it was; really I don't oi) Know what I stated on my former examination. That paper was

prepared in my room. The wording of it is the same as it was when it was received ; there may be more blots on it now. T was present when this was delivered to the company. We went down to the office together. (Witness attention called to some blotting or erasures on paper.) IT think that was done by some blotting we did on it in my room when it Was written. I think IT said on a former trial that [I did not know when it was done, but M'r Sabin called my attention to it. I am pot sure whether I said on my former examination that [ did not know when it was done. M'r Sabin called iny attention to the tact, & showed me the original. Something was said betore about the color of the ink In the blot, but it has not been touched to my knowledge. The color looks to me just the same, [dont know. This blottiig was done In my room before Sabin delivered it."

Here the plaintiff objected to the introduetion of paper in evi o660 denee. The court overruled the objection, & paper was read to

the jury, as follows:

1(2 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

New York City,

April jd, 1s66. Hon. EDWIN CROSWELL, President Union Ciold M. Co. DEAR StR: The only lodes belonging to vour property on which there are any developments are t res. Bates Extension, H[hunter, Mammoth,

[di Son. Ss! czer: all of the above are more or lass developer x2 s \ ) Your bates property is muc} TT's ileyve Preval ff :7) ° . S| pert) che OTres from this lode do not vield as ou ) [ . CPSs S some othe rs, Vet tues SEPOW as ret y asst ~ a ' mie ban average In my

ryt? - oa < re. erry ree se*cviile Cla!) reed, Tj ,OUT

. Tié ' , «abl 7 { i | ried ale ly Ad si iit? fipilie, — "ls ry f'ornish pump so placed as to keep the

rEg rE Caickidl vf =e U ' "43, i pridids) pie a ' L

mine dev, the ores could be made fo more than pay eXpelises at onee with the stamp-mill you have. The tailings eould be securely kept on vour mill-site for the most sueceessful of the many new processes now building and in a forward state of completion. .

[Ir has already been demonstrated beyond a doubt that most of the Colorado gold and silver bearing ores are peculiarly well adapted for the smelting process of extraction. Messrs Ja's E. Lyon & Co. have been wondertully successful in extracting large "nantities of gold & silver by their process, which Process [ have examined, but as I eould not see

T ?

° ; . Ty - > } ! . - "- > > . = = vr) '? leir books [cannot say positively as to the cost. M'r Lyon is now

rk. and [ reter vou to him for particulars.

' , - . . , S| e ° - y ; > - . . ' '{" ; ef ° , : r Py *s> Ba : ~+ ++ +. v, > by , : r\? 4) 1 ? ay] f od { i] | [te sh rstied, ivo t iit many PPLOCeESSEes Trey \y be ee Bae Lt! ) l t iif . " | , '. - ' > : } ~_<7o — . - +. a ee P ; + .393¢ ; 4 i +) > cy lil : _ >? orudo, that the dav is not fal distant when all the YOu WN SlLiVel . . 7 } | | : LF . a -} < ie os . -*% - si . '+ + ; 'q, . sd ' ' ? a : "eee res Ciblh XN W To worked pre LepurivVe () r 2CCOUNT OF TNe se Li \ - - ; ; , . ? 2 = . > - = ie we 4 oi +s # + t a ig — ++ *> . . . > * ae 2 4 al . r, 1 i ? ' a : ' 5 '> l TLALLY LOT [ le Witiis Of VOUT Bates Mine, 1 Wlil DOC De Sadie \ rh me , 7 ~ > 3 ' 4 ae . > "2 ' \ ~ . - tire ~ '} oT } rhe 1} SPCITeiV. } ~ Mate i*id~ i>] " - 1] n claim N r ' ? ' " { erin, OMNI, ese Te Cost Of Bradtng MIilt-sice On CialiM NO, . -™~ . , 7 & } se . » oo 4... . \ : Tsay? eielae Ts Ly? ' }- ~ eT T? ' t4 i {) >. = ' ' ee | . AN IL , Buy Y i am il A Ahaia aii = . ¢ - - - rT, > > ' vs ' 'i > + . ' a = . ~ 4 rr) MSU. Lert ia ; i ix a4 Ss «</ ht? t " Wd "iat i i i i . - ' -. ' . i. , , j rior mytgar > 4apided - yrs ~ . sees i T>IT i 4 rnish, ' t). Liil = ' -* - ' j sean be lat , re than expegses aft once. , : ra - ~ ' ~ ¢ . . ' \ {i} ; ~ ~ ' ' e*t ; Ls i i [ . i> '3 i ; ' } : . ; j = T - ' 347 on 4 rT : ee | ; lf r i= Te? ii¢ real ; ; | ," } ° } - . 7 sv 7 el i? cy 4 ger = + 7. t*.4 Uy ry ; », si? RR! i t i — ~ > - . , r ee > + Te r ies é \ ore i t> \ 7 de sts ) bin A, Efe YY ms > 4 * . > ¥ t 1 l ' 4 t 4 Se ' . es «& 4 = = -v) tl } : . _ — $4 , "=e m Pe ~ Ta } ; : GEO. K. SABIN : . . . + , 7 Ps >| a y ~ _ ad - tel i 4s . ' ' = " } > oy } +} > r a ¢ > > > ° + t 4 ' " * ' . ; r ee! oy ee em | reg & a | +4 > it eo GE, ti +} ' r¢ 4 > | > 7 > > . vr - -? ? > 6 7 ° ' } = "sj : ; a4 ' ee | ; i bi 4 es ~ ~ « -™ j 7 '™. f ~- ' * ' » & = { 7 ? 4 —— ~ =i N } } ke 2ms . ) 9 > '- * : | . — ~ oe > : *. - ' } pay T ' 4 ' = t's ? i (: i = - ; ~+ | | . . } f ; ~ ¢ i. i iy = ** * - 17 ' \f - , ? rT < ' ' ="! ~ ~ . lL _ ~ — * iPass Ts f i. . ' ; s ~ \ . = ™ ~ 3 4 _ ? , ,

U. G. M. Co Vs. Rocky Mt. Nat. Bk. Of Central City. 173

cessary to change the management of the company's affairs at the mines in Gilpin County, Colorado, & that they had secured the services of Col. George Kk. Sabin, of Central City, to aet as their special superintendent or manager to work their Bates Lodes in Central City. The executive committee thereupon submitted a paper or dratt of a letter inatructing Col. George K. Sabin what to do in the premises.

" Said instructions were then read, and on motion duly approved. 530 'On motion, Which was seconded & carried, the president, M'r

Croswell, was authorized to send a copy of said letter & instruetions to Col. George K. Sabin, at Central City, as follows:

'OFFICE OF THE UNION GOLD MINING COMPANY OF COLORADO, '* Vo. 110 Broadiray, Room No. 3, New York, April Sth, 1S605. "Col. GEORGE Kk. SABIN:

"TYR Srr: Mr Becker has submitted to our board your telegram stating that you will accept the superintendeney ot the Union Gold Mining Company of Colorado; so, without further preliminaries, they instruct:

"Ist. On delivery of the enclosed letter to Col. Mallory he will place you in full possession of the books, papers, office, & properties of the Union Company, with a copy of all accounts & habilities against the company.

"2nd. Stop all work except sinking one shaft on the Bates Lode,

O51 but sink that shatt continuously and as speedily as possible

through every cap until farther advised. We expect you will

soon find (if that has not been done already) at least 50 feet of paying ore,

"3d. We desire that all work. sinking shafts, &e., &e., shall be done by contract at so much per foot if possible, for our entire board are op posed to all check & pay rolls, and the contract system is far more satistactory.

"4th. We desire a letter or report from you each week stating what progress has been made in sinking said shaft, & what kind of ore is passing through, width of crevice & width of iron, if any; also weekly expenses.

* Oth. Send us tull monthly reports of all our business operations at the end of each month, and trom time to time write us any suggestions you may deem necessary for the company to know in relation to their affairs. Our M'r Beeker contemplates being in Colorado in June, and will be authorized to make satisfactory arrangements with you as regards compensation

, Xe. He recommends you very highly to the company, 982 and says you will cheerfully obey all instructions of the company

here, and conduct the affairs with the utmost economy, & see to our interests in Colorado promptly.

'In short, we are led to expect vou will soon, if anybody can, make our mines pay. Let us have your views of the character & prospect ot our mines at the earliest day. Hoping all may go satistactorily,

'Tam, very truly, vour obedient svt. "EDWIN CROSSWELL, ?P'res't. "On motion of executive committee, it Was ordered that the treasurer Settle and pay the aceounts of Col. 1. Hh. Mallory to date, or up to the time he delivers up the premises to Col. George K. Sabin.

'Motion earried unanimously.

"On motion, adjourned,

&quot;Henry Brevoort,

'Actg Seer y."

174 =. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Whereupon, witness Becker testified as follows:

"J was present at the meeting when those proceedings were had. My name js there. That is a correct record of the proceedings at that

time." D305 The plaintiff then objected to the admission of said minutes of proceedings, The objection was sustained by the court, & the defendant then and there excepted to the ruling of the court.

Witness's attention was then called to record commencing at the bottom of 26th page, & dated April oth, 1866, & he testified in regard toit, as follows:

"7 was present at that April meeting; the record shows it. The proceedings there recorded transpired at that meeting in my presence ; it is a proper record of the proceedings made by Brevoort, the acting secretary.

"This record & the one IT have testified to before were made by authority of the board."

Here defendant offered in evidence the record of proceedings last mentioned, dated April oth, L866, and Is as follows:

Pursuant to call,a special meeting of the directors of the Union Gold. Mining Company of Colorado was held at the office of the company on Thursday, April oth, 1866, commencing at lz m., Mr Croswell in the chair,

There were present Messrs Samuel Quintard, Crosley, Becker, ost Bonnel, Potts, & Croswell.

The chairman stated the object of the meeting was the eleetion of officers for the ensuing vear, which would be the first) business in order,

A motion having been made and seconded that the board proceed to the election of officers for the ensuing year, M'r Croswell said: ** [tis well understood, | presume, that Tam in no respect a candidate tor reelection as president, having been one of the twenty-six persons who originally contributed the money in equal sums for the purchase of the property & for the capital of the company, & having devoted to the concern for two years past more tine & attention than any of the contributors except the treasurer. [am glad to retire from the position. Both the treasurer & myself have performed our duties without reeceiving any Compensation, coneeeding that till dividends could be made

salaries must be deterred. Should the time come when stock- 985 holders ean receive dividends it may be a question of equity how far these services are entitled to compensation in some torm.

"Two causes have produced the present condition of the company, the early management at the mine and distrust and unpleasant feeling here, These causes, it is believed, are now at an end, & it is hoped united ettorts will be made to resuscitate & improve the condition of the company. Mr Beeker has stated repeatedly that he could make the concern pay ina few months, and I believe is prepared to submit a plan for that purpose, and one that is within the range of the balance in the treasury. If this be so, certainly we cannot devote it to a better purpose. It may be added, the late board avoided expenditures as far as possible consistently with the indispens/ble interests of the company, and that to this poliey we owe our present unexpended balance in the treasury."

It was, on motion of Mr Quintard, resolved that AUr Croswell's re- Inarks be placed on the minutes complete.

Mr Quintard moved, & seconded by M'r Crosly, that F. A. Potts

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITy. 175

536 ~—sobe_ re-elected secretary & treasurer, & Samuel Bonnell, jr, for president, & T. H. Beeker, vice-president; all of which were unanimously elected.

On motion, the following executive committee was appointed for the ensuing vear: Geo. H. Potts, pres.; T. H. Becker & Samuel Bonnell, jr.

The report from Geo. K. Sabin, esq., showing the present condition of our mine, & advising as to the future, together with his resignation, was read & received.

The treasurer was ordered to pay his bill for salary at the rate of =3,500 per annum to J: ay Ist, "66, & at the rate of S100: per month to April Ist. '66. It was also ordered to stop all expenses here, give up the present office on May Ist, & get some cheap place to store the effects till more prosperous times arrives.

The treasurer was ordered to loan the funds of the company on best possible terms, with undoubted security as collaterals.

A motion was earried of thanks to the retiring superintendent.

On motion, it was ordered that the executive committee be au- OST ~—s thorized to accept the offer of Mess'rs L. Anduerrid & Co. to store the effects of the Company at S100 per annum.

On motion, it Was also ordered that the treasurer of this company pay the watchman (Mr. Topping, 100 per month tor taking care of our property in Colorado.

Qn motion, adjourned until called by the president.

The plaintit? objected to the introduction of said minutes, because it Is the same as to introduce the letters of the president. It would be in their power to fix this book months after the occurrences in such a way that they could be introduced, & yet nobody would be responsible or hiablefor perjury. They should be proved by the secretary who kept the books; and also because it is not the best evidence. The court sustained the objection, and the defendant then & there excepted to the ruling of the court. |

Witness Becker's attention called to page 81, same book, to the minutes of a meeting dated April oth, 1569, whereupon he testified as

follows: | 588 | was present at this meeting; I went on to call it. This is a correet record of the proceedings at that meeting. This entry was made by order of the board."

Here detendant ottered said record of meeting board directors, on

page 31, dated April oth, 1569, in evidence. Said record is as follows:

NEW YorRK, April 5th, 1869.

T. H. Beeker stated to the stockholders present that the Roeky Mountain National Bank of Central City had presented a claim to him of S21,860 5 against the Union Gold-Mining Company, which they claim was nade by George K. Sabin.

Mr. Becker also stated that Mr. Kountze, of Omaha, was one of the principal owners of the bank, & was now in the city, & would either eall to-day or to-morrow & explain how said claim originated. The claim was then read, of which the following is a copy, to wit:

176 +U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

589 Rocky MOUNTAIN NATIONAL BANK, (Successors to Kountze Brothers, } CENTRAL City, COL., March 19th, 1369. This is to certify that we have received gold from the Union Gold- Mining Company & paid their checks to the following amounts:

1868. Jan'y 1. Am't due R. M. Nat. Bank ................. 3, 851 28 Jan'y. bought gold eases S7. 388 20 Paid cheeks ........ =7, S62. 35 keb'y. rina . 16,736 46 re eee 2,348 7s March. do a ee 9). ] 1 7s do ee elle oe S. 096 54 April. re 4,834 24 Dh aca owen 6,581 16 May. epee 5, 274 OG DP vccinenedheeee 5, 080 32 June. do ..... . 3, 984 B95 __ Seer ree 5, 812 30 Juniy. Sagas (6. 383 80 0 Se accwcen © 700 August. ne oer ae 6. 264 Or dO .......2.022. 9,952 60 September. do.......-.- 2 901 70 ee eaeeace 7,873 02 October. . 2 408 75 RR ... 7 288 OO November. do......... 9,356 62 OP dackae ican 6,173 26 ee ee ee ian... .., a 80

After discussion & remarks by the stockholders generally in regard to the matter, copies of the vice-president's letters of December 26, 186s, and February, 1869, in answer to president's letters from Colorado, were

read, and, on motion, duly approved. O00 Qn motion, it was agreed that the election of officers of this

company take place to-morrow, the 6th instant, and that the president, executive committee, or trustees be authorized to notify the otticers of the Rocky Mountain National Bank, and all the other ereditors of G. K. Sabin, that Mr. Sabin has had no authority from the stockholders, trustees, directors, or otlicers of this company to contract: any debts in their behalf, and that Mr. George K. Sabin resigned his position as special agent or superintendent of this company on the 5th dav of April, 1866.

Qn motion, this meeting then adjourned.

JOHN Il. WATSON, Secretary. by JOSEPH M. WERNER, Actg Secty.

The plaintiff objected to the admission of said minutes in evidence for the reason last before assigued, & the court sustained the objections, & the defendant then & there excepted to the ruling of the court.

Witness Beeker then testified as follows:

(Book shown to witness again.) 'Il was present at the meeting 591 of detendant's corporation, April ISth, 1865. There was a record kept of the proceedings of that meeting. That is the record. I

have just looked at it."

Detendant here offered the minutes of said meeting of 18th April, 1865, in evidence. Plaintiff objected. Court sustained the objection, & defendant then & there excepted to the ruling.

Witness Beeker then testified :

"This is the resignation of Sabin. [was present when it was handed In.

U. G. M. Co. Vs. Rocky Mt. Nat. Be. Of Central City. 177

Defendant here asked the witness, * State whether his resignation was accepted by the board of directors."

The plaintiff objected to witness answering, because not the best evidence, The objection was sustained by the court, & the defendant then & there excepted to the ruling of the court.

Detendant here hands same book to witness and asks * Look at that and see if that is a record of his resignation and the acceptance of it."

Plaintit?! object' to the witness answering. The court sustained the objection, & the detendant then & there excepted to the ruling of the court.

Detendant here asked the witness to «* State whether vou were

Yt opresent at a meeting of the detendant's corporation, held in New York the 5th ot April, 1860.° 0 Witness answered * IT was." Defendant then asked * State what action was had by that meeting In regard to this claim of plaintiff at that time." The plaintiff here asked witness ** Was there a record of that meeting at the time?" Wirt ness answered, * Yes." Plaintitl then objected to the witness answering defendant's question because not.the best evidence, & for the same reasons as before assigned, & because it is an attempt to prove what ocenurred at a stockholders meeting, & the stockholders have no busi-hess to act on subjects of that character. The court sustained the ob.

lection, & the detendant then & there excepted tothe ruling of the

court.

Here the defendant offered to prove by the witness on the stand, M'r becker, an officer of detendant, as follows: that he was an officer of defendant, & was present at meeting of the ofiicers of said corporation on the Tsth day of April, 1865, when George Kk. Sabin was appointed nt ot defendant; that he was appointed by resolution of the

8 yee aie

5450 Cchboard of directors. and that lis agency was special and limited agency, and also that he (witness; was present and an officer of the defendant at a meeting of its officers in New York on April 5th, Iso6. XX that on that occasion Sabin made a report in writing & re signed his position as special agent of defendant, & that his resignation Was aecepted by detendant, and the treasurer ordered to pay his salary to that date. Also, that witness was present at a meeting of stockholders of defendant, beld in the city of New York on the oth ot April, Iso, & as president of the defendant presented to the siockholders claim and aeeount of plaintiff, & that action was at that time taken by the stockholders & the whole atiair repudiated by the de fendant, & an order passed to notify the plaintiff of such repudiation on the part of the defendant. The court here stated that as taras anv notification to Mr. Kountze is cerned detendant was at liberty to prove that, and the court refused to allow the defendant to give said proof to the jury, and the de

the

' ,

hing of the court.

y

ot tendant then & there ¢ xeepted to the ru Witness then testified :

'* T heard the testimony ef Terman Ikountze. [| went east the 20th or 2ist Mareh, L869. T went by the way of Kansas City & St. Louis to New York, & Tarrived in' New York about the last of Mareh. 1 did not not co by Omaha. Lleft New York to return in the latter part of April. Tecame by Omaha on my return. TL was at Omaha subsequent to the stockholders' meeting In New York. I called at Kountze bank, in Omaha. Tonet Mer Augustus Kkountze there; the same person I had seen in New York, the person I had agreed to meet in New York. | went to see him, & we talked of this claim.

* T told hin the company repudiated the debt. [I did not notice that

: -* ' ' 4 ' 4? ~s 5

~ 417 17 tT? jr y Ly ,4a ') > miVTCN LT > - ' iN ' . 24 re a } t =¢ Ls . . ee 2 Sam) , i i ' } , 7 ' . L it BLita ' ar. ' . » . > oF <s ' i \ ~ ' ¢ L' "= " ~ ~ i ~ ~ ~ 3 ~ - . ~ ' ' ; nm ~ 4 ? ™ ' = : i ? ~ ; ' ' ' ' 2 | 4 4 i i i i ~ te ' ; ~ ree] 'er i} e+! ; 4) ; ra? T i i 7. ai a: — La > . ,- ¢- . Lidarki C GHIALLTCT 4. « le ow , , ? ' 1? " me on The SlOoCchQOiders Of , Ss ObPother as soo a i ceil Bed °> more Tlie) Aeta & a ' . = hii« ea = } ; — 'y) 6 i i iid A VOU UO sa, X& bch 3 4 ' > ; . ' \ re , ' i ' i ¢* isé ' AN a | it ii cdi Giitat re ? > " ' > ?» ' r , : (oi. Wile Pad LI rust is . | > . LVeal ag PaL De Was vil . |? T "= | ead ty Li prea) ila » t ee cha > , -~ * v7. . j ; eS iA ii). i Midd il . ~ > ; s > r > t iit us ik tei > i a Lat "> Be 7 7 ' ? Gii« LILECLUIS ib ease oh (Pid ie _ " | s " a | > ys nohes\ te Peis tint' «til LWee rs UIC : higa Ty ' ; ; 4 en . it * - . t . . | L ihe ~f Ci ctat > : LP yp gad sa Te reve' ii ' _ 5 rig on ' '. i ™ ~ -_ i . ' \ %. > ote ~ ~ ~ ' ~ 4 * " 7 - ' ' 4 i ' ~ 5 4 _ -

Pa . ~aPr ) I." Te tae | ; } > ' : nd : 'hd ' a pie i Jmaat BES is . . r ' ns 4 ; - . "8 Lf a? ezirxt ta «tt te Rise? « ait i . ul y > ¢-¢- i_ i- ° ; -_ hia ' Aa i 4 . 4 ' , stus ' me COoTDDpal PD bom US i i i, ol A > ne > ' ' + . ~— ? -_ ! . Li i . > - ; ~ ia ' ' _ ' aa coe +4 . ' af © » ti « a ' " "= ~ ;* . #4 ' :% i i~ i — — > > ~ . ' ' ™= 7 ; - x % ' . ' . ° nd ' ~ ; - Lae 4 ~> ~ . fg os ~ i =< » ' i \ ' : ~ j 1 ~~ 1 ' i L ihe ¢ ; ; ¢- i ' :- ' A m 4% } j s4 r , : s ' ' » a' {3 44 ' A i . > ' + '4 { ' ry r ' sa ead <4 a » ii ' aa a4 — +} . i ' pag? ) = = i | it t am | H i se }¢ , ; ' , t ? ry v.* s? 42 »T) Sil«lL t?cis i © s 4 if Piil tii a | ae ? . ' i} P a . ' s5-cm * iit'i ¢ A' cLiiedd iit bite | yr'? a } ' gt s ' ry Oviviel W eis Drotliel yer eereee venro ob There toa & ha a4 —_ 4 ' Sa aa + . ia ' > t,. - + : * : > , we" ' ei »% , : ve dint Lilt re aeG Ya , ' 3 are 1,442 ' + , bod Yd : ++ PT RSL ti sae , pcdiidtiili. A ' . +f) rir ' aivee ry? rt 4,7) LiL Liddell > &&, iif OUP aay tat i . my Tr) = bya Prigd gat? f i ant , *\ big &S it '4 Ltae t™@LUUS iit 4 i . » , a , ' > -y P ,» , ' ' { } s P' ; j CU da ii) | an iie? 4 ! i] ve t+) - > 5 > ry) aTT 9 _s Gili | at ' iit aac > > > . - t ; .< ' t a * 4 . . s - *¢ 4 > ] > ' ms ? t,t] Ne mee? ? » ' A 4 ' _— i ' i ' i ' i 4 = ? : rrvi¢ t i i ih' " ~ = pr Te — ' ' , 4a? ' -- y'? as _ ta . ~ '7 " ' Se ' ° 2 : Aad ' . ~ a ~ . ~ ; ; ' ° -= : r ~ ~~ ae 68 ' }? ? ~~ ; ome aa a44 * * ~% « . ~

". G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL cCiITy. 179

ovs Gulch, December 16th, 1568, at the last time Potter called there

to see me, & we talked a little while about various things; he mentioned this claim © wanted me to deposit some 5-20 bonds to se-eure it. L told lim | had no 5-20 bonds in Colorado. He then wanted me to pay the debt or give them security. He insisted pretty strongly ; began tomake demands. I told him [ did not think the bank had any devine rights. Tprobably swore a little on that occasion. IT told him Mir Sabin had neo a. thority to make any debts at all in the name of the company : told him | had been absent to New York during the summer, ®& down South, & did not know what had been done at the office: that I would write to the oftiee & see if Sabin liad had any instructions, & if | 'hanged In any way; would write at once and

bev? } sit } ee aVPeeinit aay have Lene dy { ve

| ascertain: would spread the thing before the company by the very next 'There was a good deal of that kind of talk. Potter was very oy iuxXlous to vet the money or some securitv. [had not been noti tied until a few minutes before that. He said he thought M'r Salin talked to me about it: betore, & I told lim he did not. I did not at that conversation state that the debt was just, & the money had been expended on the property of detendant [did not know anything about, of course | did not sav anything.

'The next conversation | had about the matter was with Charles b. hountze, a few days after the loth December; it was the last conversa. tion had with Kountze until he wanted to get the matter arranged—tixed up. Ll told him | had written to the company, informed them of it, and would get an answer; he talked a good deal, tried various ways to see it 1 would not accept it. IT told him I had no authority; the directors & stockholders must do that kind of business. I was an executive officer: only executed what they directed. I did not tell Mr. Kountze at that time that the money had been expended on the mine of defend. ant tor its benefit. He said it had; I did not know anything about it.

finade no promises on that occasion, because | had written to mu form the company.

*T think thenextconversation Wason orabout the tirst of January, with Charles hountze: he sent tor me to come to the bank. I went over. He said he wanted to vet it fixed up at the end of the vear, & thought Ll had tine to get a letter back. IT said [had not. I told him I could not do auvthing at all to assume it, any Way. lie wanted me to sign a deed oof trust or bom or mortgage. I retused to sign it: told him I

tf '

on

nit. Ile urged the matter, & urged very strongly, and |

eonted ' sig

COL a i e mitted at it, and started out: did not want to do anvehing, Vas tet going to do anvthing. It Was a large amount of money, & then [spoke ot a national bank loaning so much money to any one Party, Hie said he was sorry it had been loaned. andat he lad been

miidd mot iave been loaned to Mr. Satin. a (Lohhidmr MGT. SAVIN aad Trahscended ail aUTMOrLTY. f sald he had no thority te bo rrow anv money, or contract any dlebts, >] (do any OS TTGss i t lie Of Tile COMM lle then wanted me to write lette ') ] r rato Someta (ry QO] Orley tO Sartisityv lis Drother. as he Soild the owe nid: that LT would at least attempt to get an assessment

~He said Mir Sabin had told him he had authority to draw on the

company. & asked if M'r Sabin had not told me so. [ said that M1 Sabin liad told me that M'r Potts had told bim he rrsag: draw on him. ltold him I had written to ascertain just what rig hts Mr Sabin had: what had been done since Thad been absent. J] told him I had been in

180 Uv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Georgia & South Carolina all the latter part of the summer, & did not know what the company had ordered, but would hear from the company ina day or two in answer to my letter. The more [T did not want to sign the more he wanted me to sign something or do something. Believing Sabin's assertions that he had authority, | wrote the letter dated January Ist. M'r Kountze wanted me to sign it as president ; I refused, X he wanted me to strike ont the part that I did not know anything

about it before the loth Deeember. I told him [ would not 602 do that because I did not know anything about it.

"Tle asked me if there were any debts against the company. I told him I did not think there were any debts from the time [ heard of it. Sabin had paid allthe bills. I dechined tostznas president ; told him I would not doit if he would give me ten thousand dollars: that I would not do anything to bind the company. [told him [had no au thority ; told him he knew himself, as an officer of the bank, that Thad no authority to bind the company without spreading it before them. T told him | had no authority to make or contract any debts or sign anything officiaily: that is just what [told him. DT bad not any authority at all to even do anything to bind the company. | had no authority at all to contract debts."

Detendant here asked the witness to state in whom of the corporation defendant the power was vested to contract debts or make payment of debts. The plaintiffobjected to witness answering, because that 603 isa question of law, & that not the way to prove if, & it is not material, The court sustained the objection, & defendant then &

there excepted to the ruling of the court.

Witness then testified:

"When Mr. Goodspeed returned, the first week in JTannary. he asked me about the money; wanted if: said he & Sabin had been friends ; that he had assisted Sabin, & he thought the matter ought to be settled. He ureved me todoall Lf eould about the matter. TP told him IT had writ ten; had not got a repiv; that when | got a reply from the company I would report; tell him all about it. UA day or two afterwards a letter eame from Werner, vice-president of the company. Thad a conversa tion with Goodspeed atter that. Towent up oa very short time atter the letter came, & told him | had got the letter, & all the reports seemed to vary & differ. The directors refused to have anything to do with it.

I] were astonished at the debt. They hardly beheved saeh an amount

had been created unless there was some scheme Jaid to see them 04 out. IT think TF told him the contents of the letter & read him part of it. Hle was surprised & of course troubled about it. as

he was cashier of the bank, & he & Sabin were great triends.

'Tle said it Was an aceommodation to the company; he always thought it was an accommodation: thought the thing should be settled ; he urged the matter. [don't remember exactly all that was said. I told him [ certatuly would spread it betore the directors & let them see what was best to do about it ; would do all I eould tO Fek it reeoonized [fe said a great many things. [ teld him | did not Know anything ibout it: the debt was new to me. as it the balance of the eam pany, When [| first heard it.

. hs ~- ' ; ' } : , — > 2%, a } 4° ' > "We talked about it mavbe once or twice more before To wrote te

WoIs To

have this meeting of the directors called. - do not know jast wien l had the next conversation about . 20 "aT Potter or Go Esper dd test! tied, Was over il) Town occ sionally, X they would see me & speak ibout it. Before | got the second letter from Mr Werner M1

"=

"

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITy. 181 605 ixountze was up again, & he was urging the matter; wanted it tixed, & threatened to sue. |

"T told bim to sue if he thought that was the nearest way to get it; that calmed him down a little, & I told him atter 1 had received a letter from Vice-President Werner that the directors repudiated the whole thing. ILtold him the last resort would be to call upon the stockholders ; then he told me his brother had opened or was about to open a bank in New York City. & his brother from Omaha would be on about the first of April; I told him when the regular annual meeting of the stockholders would occur the first week in April. The directors would never have any thing to do with accepting it, & he thought I had better lay it before the stockholders; the arrangement was made that I should do so & should go on & meet his brother in New York.

*T heard the testimony of Charles B. Kountze, in which he said that I

said in these conversations that the debt was just, the money used 600 indefendant's mine, & IT would see it paid; I did not have any

such conversation; LT never made use of any such conversation: did not know any thing aboutit. I heard the testimony of Mr Good speed on the same subject: TL never said the debt was just; I did not know anything about it: the debt had been going on for 8 months."

(Letter dated April 15, 1868, trom Becker to Sabin, marked A," shown to witness, )

"This is my handwriting but [ do not see any signature to it; it seems to bea memorandum of something about a suit about some property adjoining mine on the Bates lode with the Rocky Mountain Mining Company; the company owned the mine that joined mine."

(Witness' attention called to letter dated May 12, 67, in evidence, & marked *J.°)

*The taxes mentioned are taxes on my mill & some property I had in Nevade. The transaction with Darlington was an individual trans action: the company had nothing todo with it. In same letter, when I

speak of taxes again, it has nothing at all to do with affairs of 607 defendant. Mr Sabin wrote me as my agent during my absence trom Colorado."

(Witness? attention called to letters dated Astor House, February 9th, 1S6s,)

* The bank-note spoken of is an individual affair; he drew on me at Kountze' bank on some private matters, & he sent two notes to me in connection with the same—two letters, | mean. I could tell what I referred to by advising him to get ont of debt if T could read the letter."

"Tt was about a debt that he owed Long on the Forks lode, & wanted ne to pay it."

(Witness' attention called to letter marked "G, dated Mareh 20, °68.)

* |] wrote the letter. [never wanted Sabin to get in debt at any time.' This had nothing to do with the business of the company. The big Staluyp put Into my own mill & some Bretola pralis. I also write to give Elliott a place, any job he can. This letter was written on the arrangement

to develope my property. He began on my property some time in January, 186s, & this was March, 1868."

(Witness attention called to letter marked * F." dated Albany, New York, Aprils, 7s.)

* [speak in that of the stamp in my mill & of a belt I sent to my mill. The suit spoken of is the one that wads progressing about the property joining mine on Bates' lode. I instructed him to go to Hal Savr & have an abstract made."

GOs

182. U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

(Witness' attention called to letter "C," dated April 15, '68.)

'"T would have to make a little explanation about addressing him as superintendent in thatletter. Sabin wrote about this suit of the Rocky Mountain Gold-Mining Company. They claimed my entire property and some over on the Union Company's property, & he wrote me about that matter. That was the suit. M'r Teller brought the suit, I believe. He wrote me he was powerless about the matter. [ had no authority to write him whatever. I wrote him on my own responsibility. It was

nothing at all concerning this litigation or the affairs of the com- 609 pany with the bank. It refers to nothing else than this suit. I[t tells him to retain attorneys."

(Witness' attention called to letter marked "DB." May 17th, 186s.)

'In this letter | referto Sabin's getting in debt. At the time of writing these letters I did not know of any business being done in Colorado except the suit with Rocky Mountain Mining Company in the name of defendant. When [I speak of the big stamp & employment of Elliott, I refer to the big stamp in my own mill & to giving M'r Elliott a place. i think these letters were written subsequently the time [ was making arrangements to run my mill & develope my property. All but one of them, I think one, is dated before. I heard the testimony of Sabin read; heard it when he says that on my return the Ist of October he stated to me we are behind tive thousand dollars. When I got back, of course I enquired how he was getting along. Tle had purchased this 50 feet of

west half of Discovery, & had been building in front of his resi- 610 denee, & it set him back. Ile had borrowed about five thousand

dollars, or he was tive thousand dollars behind. There was some talk of the amount, of course. | kept urging him about getting in debt. I told him he better not borrow it. 'Why. said he, 'von told me to buy it... I told him I would take it at certain figures.

'We had considerable conversation about that. IT had been gone about eight or nine months. Went away in January & eame back in latter part of September or first of October, & this conversation occurred then. We did not know, [I did not know, at that time that any business was being done in Colorado in defendant's name. [I heard the testimony of Sabin, Potter, & Goodspeed in regard to repairing the mine in tall of 1868.) Sabin agreed to develop number three tor the use of the mine & give me the first-quality ore; that is, only a few words of the proportion as we regarded it, being one in ten. He was to keep the mine in

vood repair as | put it in when T first tixed it. 611 "The mill was repaired at Mr Sabin's expense, that portion that was out of repair.

* | heard testimony of Potter & Goodspeed in regard to my paying debts pror to December T6th. There were some repairs that I furnished the money: some additions made that I furnished the money for; additions made to my mill, pulleys, belts, & such things. 7 did hot pay any debts contracted by Sabin for mining. | heard testimony In regard to drawing money from the East to pay debts. TI drew my own money trom Mr Potts, my private banker. TI had funds of my own on deposit with him. Sabin asked me to loan him some money, & [ loaned him some. I think about forty-five hundred dollars."

('Detendant here asked the witness to "state if you know what was the amount of the money that vou lent him." — Plaintiff objeeted to witness answering. Court sustained objection, & defendant then & there excepted to the ruling of the court.)

*T heard the testimony of Mr Goodspeed that the books of defendant never left the bank, but that I came & examined them in the

P A DEIN ses ag MT NO a RNR. EA Ro ede SS PWR OR

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 185

612. back room. I don't think I ever saw those books, or any of the

Union Company's books, out of the office any where till I took them off the table last year, last trial. Ineverecould getthem. Inever saw the books of the defendant at all till I took them from the table last vear. I said Goodspeed, he showed me the bank-account, made me i list I took east.

'"T heard Potte: testify in regard to two notes of five thousand dollars each. [ was in Gilpin County October 3d, 1868.) M'r Sabin Was In my employ trom & after the 16th December, 1868, until the 19th or 20th Mareh, 1869. IT paid him after the both December. I heard the testimony of Goodspeed & Potter in regard to my settlement with Sabin. In that settlement [ did not pay him for any indebtedness of the Union Gold-Mining Company. I settled for his services & for the use of bis engine, & for some little work he did on number three after the 16th Deeember, 1808. & until the 19th March, 1869.

*T heard Mr Topping's testimony in regard to the bill paid

615 by me alleged to have been centracted by Sabin. That was for

some machinery used at my mill. The bill I settled at Tappan &

Company's was not contracted for the Union Gold-Mining Company.

lf settled for no part of material furnished the Union Gold-Mining Company. M'r Sabin settled all that."

(Ilere witness was shown two copies of letters.)

* This letter isin M'r Sabin's handwriting. I received the letter a short time after it was written, by one course of mail or express, | don't know which; sometimes he sent by mail and sometimes by ex. press,"

(Court here marked the letters.)

* This other letter was written by Sabin & directed to me. | received it soon after it was written. These were recognized last term."

* This is one of the letters written by Sabin & received by me, & this is the same."

Plaintift's attorney here stated that he consented these copies should be treated as originals. )

+ The originals of which these are copies were written to me by Sabin

& received by me." O14 Another letter handed witness. 'This is my handwriting & my signature; it is directed to Sabin. I got from Sabin himself; it was sent to him by mail; it was Written the time it bears date & sent about same time."

Here the defendant offered in evidence the following letters hereto-tore identified ly witnesses & marked by the'court, & they were admitted & read to jury.

Marked " M H:"

CENTRAL Ciry, Jay dist, 156s,

FRIEND BECKER: Yours of the 20th came to-day. You say shut down all the works at Bates & mill, & quit at once if the mill-ore does not pay all expenses,

Now, do not be alarmed, | You will recollect that | have furnished all the money necessary to earry on the works thus far on mny own account,

& you must not think that I used any aid of yourself or the 615 company outside of the mill-ore in the mine. I know what I

am doing, and will guarantee success without risk to yourself or the company. IT have made all my arrangements with this view.

184 .G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Marked «= M H:" CENTRAL CITy, 16th March, Usb. T. H. BECKER, Esq.,

Prest Union G. WM. Co... New York:

The works of the U. G. M. Co. are progressing the same as usual; sinking shaft & running adits. and paying all expenses from milling the 29d & 3d quality ore, and laying up the first class about one ton per das as usual,

Respectfully, yours, GEO. K. SABIN.

O16 Marked "M II:° CENTRAL Ciry, 25th Way, 186s.

T. H. BECKER, Esq.:

Yours of the 15th & lvth are received,

Mer Elliott is feeding ; he showed no disposition to work until I told him you had requested me to give him work, then he preferred to feed. lam now working on the big stamp; con:menced last week; it is a great job to putitup: had rather put up a v0-stamp mill. Now, as to the nine paving, Lelaim lean make the best showing of any company in Col. That the second-class ore will not always pay expenses is no guide When Wwe have at least 600 tons of No. Ll ore on hand that is worth 200 per ton; do not say that we can now realize that sum for it, but it is worth that sum.

You will remember Melntyre erushed several cords ore tor me that

was Well selected trom the Bates, which yielded 40° per cord. bl; Now, as we worked the leads near the surface, it yielded less, so ! commented to put the shatt down down. It has opened a good

body of ore 60 teet below the lower level, & | shall commence other levels soon. [| have no fear that the result will be all right, & that it will pay a protit trom that level.

I know that I can carry the mine through on my own responsibilits unless the lawsuit interferes; that may bust us all up, tor [ expect to be beat, and our ore is all attachment by Rh. M. G. Co.

You may vet be here in time tor the suit. It is all Tecan do to keep men off vour Granite & Hunter, and if Thad a power of atty trom vou I would institute a suit at onee against some Dutchmen. I think Thad better put some men at work on it first June if vou are not here. The land-office Is now opened at Central. IT guess you will find the officers ready tor anything.

TS Marked *'M H:" CENTRAL Criry, April Ist, Ps6s. PRiEND BECKER: You can say to Jr Potts & Co. that the Bates PT have laid up 200 tons of smelting ore ter the com, Do not owe one dollar this date, & have several

Mine is a success. pany as per agreement. hundred dollars ahead to-day.

Your inost ovedient.

GEO. kK. SABIN.

D or

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 1

Marked * M H:" CENTRAL Ciry, April 20th, 186s. FRIEND BECKER:

DEAR Sir: | will follow your instructions and shut down all the works as soon as I tind the mill-ore will not pay all expenses. [am now getting ahead again. De not be discouraged. You ean hold a high head SOON.

Your most obedient, GEO. kK. SABIN.

O1% Marked **M f1:" CENPRAL Criry, May 1, 150s. T. WT. Beeker, Esq.:

DEAR Sirk: Don't feel uneasy about my success, all the backing I want, right here on the ground, & can & will make it run without any risk to you or the company. 1 propose to stand up to our understanding and make the millore from the Bates pay all ex penses or shut down, as vou order. Write otten.

Yours, truly,

i have arranged for

Geo. K. Sabin

Hlere the defendant offered in evidence the following letter which had been marked * M HL" by the court & identitied by witness Becker:

ASTOR HOUSE, NEW York. April th. Ison,

GEORGE NK. SABIN, Lesq., Central City, Colorado: 620 Dr Str: [read vour letter of the Ist to several of our largest stockbolders, & also to our finanee committee. They are very mInmuch pleased at the success you are making, but all say they do not wish to incur any expense Whatever. They preter, 'old fogy like," to let "well enough alone; so dont run in debt; dont incur any expense

whatever,

They are all willing that vou should have all vou ean make out of the ine over & above the Ist quality ore, which so far gives satistaction.

In short, they wish you to continue to run it on your own hook. I tried to get them to change tue programme. but did not succeed. Just

sO soon as *it don't pay," my advice is shut down shut dozen.

Col. Mallory's friend at Georgetown has an eveon vou. Your success

so tar is a damper on Col. M.'s friends, so go slow. I start south next month.

Your ob't s'v't.

T. He. BECKER.

Po s—Election over; same directors & same officers, & no change. To the admission of which the plaintiff objected, because it was

62] a private letter from Becker to Sabin. Letters of a man may be evidence against him but not for him. I[t was found in the pos. session of defendant's president & is no evidence here. The court sustained the objection, & defendant then & there excepted to the

ruling of the court.

Witness Decker then testified further as follows:

* Defendant first became informed that the money obtained by Sabin had been used on number three west discovery claim & in running the

mill at the April n

weting of the stockholders, when I told them about

ehada

Rr Gees a0,

186 U.G. M. Go. Vs. Rocky Mt. Nat. Bk. Of Central City.

it,in the year 1869. This was the first time I had talked to them about itat all."

"Tt isin Sabin's handwriting. It was received by me soon after its date, & has been in my possession since [ received it."

On eross-examination witness Becker testitied as follows:

* This is the third time [ have testified in this case. Tam still president

of detendant. There is no other otticer of defendant in this 622 Territory except myself; las not been since 1866. This arrangement

in regard to. first-class ore was made with Sabin himself. it was made in present of all; there were four of us present. The last conversation when he was starting away was, he talked to Mr Potts. [ can't say there was any contract: simply an agreement, He simply agreed to come out to Colorado & work the mines as [ have stated. He made the agreement with myself and Mr Potts. Bonnell was present on one occasion, & Mr Brevoort | think was. Sabin contended that it was made with Potts. As I have stated, it was made in the presence ot different ones. Sabin teld me it was with Potts.

"On the former trial | think LT swore it was made with Potts because he told meit was. Iletold me the last conversation he had was with Mr Potts. I do not swear exactly upon that. [ might lave said the con. traet was made with all of us. All of us were present. He went in When [was not there. [If | was not there [ did not hear the last conversation

. All LT know of that is what Sabin & Potts told me." 625 Plaintitt here asks witness this question: * Did you not swear,

for the purpose of making a continuance in this ease, that Mr Potts made this contract ?° |

To the witness answering the defendant objected, because statements In atlidavits for a continuance cannot be re-examined ina court. The court overruled the objection, & defendant then & there excepted to the ruling of the court.

(Hlere the witness was handed an affidavit.)

*Tomade an athdavit tora continuance of this case at the May term, sez. LT think the body of this is in M'r Reed's handwriting. That is my signature. Mr Reed readitto me. This appears to be the affidavit lL made.

Plaintit? here asks the witness: Did vou not swear, among other things, that you expected to prove by Potts, a material witness, that the arrangement made by defendant with George Ik. Sabin, bv whom the present debt was contracted, was made by Potts on part of detend ant with Sabin 2"

The detendant objected fo Witness answerne, beeanse ne part of the

attidavit Is proper testimony. Phe court overruled the objeetion,

Ov f X\ detendant then & there excepted to the ruling O. the court. Witness then answered: - Yes, thatis the statement made here.

Sabin informed me, T stated itas a taet because he told me so. I testified on first trial of this case substantially as inthis affidavit, that this arrangement Was nade with Potts. Lo might have done so. IT dot re member the exaet words, bat that was the information received trom both. Sabin & Potts both told me. We all talked together about the thing, and the arrangement & understanding was that he was to come to Colorado and run the mine. Potts & Sabin told me the arrangement was Inade with Potts. [owas not present. T have sworn three times that Potts made it. [I dont know apVvehing about the correetness ot

' ° . " . > ¢ bd sae : } ihe ae | — > + s Sabins deposition, Potts & Sabin agreed an their statements to me:

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL ClTy. 187

they were just the same. Teould not know what oeeurred at their last meeting, IT don't pretend to know anything about it except what

625 thev told me. I was vice-president at that time & a stockholder."

Plaintit? here asked the witness to * state whether you were a large stockholder at that time."

The detendant objected to witness answering, because not proper eross-examination. The court overruled the objeetion & defendant ex cepted then & there to the ruling of the court.

Witness then answered: " ] think that at the time of this contract in 1866 there was less than half the shares on the book in my name."

Plaintif? here asks: ** How much did you own: how much belonged ?" Defendant objeeted because not cross-examination; court overruled the objection & detendant excepted to the ruliag ot the court.

Witness answered: * | was interested at that time in about, | sup pose, it we had had a division, probably in about one tourth of the stock.

That agreement was made. IT would suppose a contract was something

written, something that would be firm & binding on both parties, It Was a contract or agreement. [tell you it was verbal. Ile said 2 that arrangement or contract, whatever it was—whatever the agreement—that the said arrangement was or contract was a contract. It seems that TI called it a contract in this affidavit. My attention was never called to the fact that it was important to make out that this was not a binding contract. | ean't tell when T learned there was a difference between a contract and an agreement; have known it a number of vears. [think I knew it when IT signed the affidavit.

"On 16th December I promised Potter to write, & T did that night. The company must have received the letter about the 26th. Sabin was to pile all the Ist-class ore. | don't think he did it, from what I heard since. It was left entirely to Sabin to sort the ore. One of our talks Was that Sabin was to pile up the Ist-elass ore for the use of the mine; he did not think there was much init; he did not think there was more than one cord in twenty or one in ten; he thought there was a little.

Ile was to have all he could make over & above that, as he had eae done before. He had notyrana great while. From April down to

September, he was not to have any compensation; no agreement made for any salary: nothing talked of.

* | swore on the former trial that * T always told lim to put in tor the same salary: that was in relation to the first salary [was arranging. — | corrected that at last trial by saving it referred to another matter, if referred to the first. To was the one selected to fix the salary, & that was the time T told lim the same salary that Mallory got before.

* This private talk between him and me was in my room; it did not refer to his first salary, it did refer to Mallory's salary after he sueceeded. From April until the first day of January, 1866, received &5,000, from that time then received §S5,500 to the first of January. We falked it over ourselves. T came herein 1865. After Sabin was appointed Twas in New York. Tdomt really remember when Leame here. I dont know

that T was here during the summer of 1565; don't think Twas bere HIS in Ises at all until after Sabin came from New York: I dot

recollect. One of the conversations in which IT told him I would putin tor the same salary was in New York before the meeting & be-tore his resignation at all. TI had the making of the salary. Hlecame to invroom. He told me had got $5,500 betore he came to the Union Company at all. I dont know trom what company. | know he was agent tor some company in Nevada, T really don't remember what. I wanted

NO cect BN Mia ty oD ert re

Ee ee ae

18S _ vu. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

him to put in tor that much. Thad power to fix it. | wanted him satistied.

"fT explained last term that it was a private talk. I don't. know as | said anything about Mallory's salary last trial. There was no question asked me about Mallory. | was not asked if Sabin had been an agent before. That is my recolleetion of the contract. We talked it over at the Astor Ilouse several times. [| ama personal friend of Sabin; he had

heen acting as my agent in the Territory, & does vet when Lam 24) eonue. This talk of ours had reference to the salary he was to get that Croswell had wrote.

* This was not the conversation that took place after Sabin had gone to work under the arrangement with Potts. Tomay have said at last trial that he was to use the other grades of ore; they were to belong to Sabin: he was to use them; mill them as he pleased. 1 always told him T would put in for the same salary. if [ did it was because TP had been asked; | thought what salary he was to have before this might have been right in connection with the matter we are talking about now; it might have been; cant say.

'T} think Lowas here in May or June after Sabin started. I stayed in Central, b think, three or tour weeks, then went to Denver, and pos sibly T went to the South Park; did not stay there very long. | think | then went back to Central; may have been there in July, possibly. 1 ain not sure What time I] lett the Territory; kept no memorandum. — f know Leame out again in December. | think I[ testified on a forme)

trial that I did not get out of this Territory till September. I 650 was at the minea few days before I left. | meant yesterday that

lL was only a few weeks in Central; [said so yesterday. | said I was here a few weeks, not very long. Twas up to Central three or four weeks. [To oam = pretty sure [ returned to Central that season. I swore on a former trial that [ was at the mine a few days betore I left. & that the Ist-elass ore was being piled up in small quantities.

*T returned to Colorado again in December, & stayed until some time In January; eant fix the date. [ think IT said IT was around Central two or three weeks, & afterwards said three or four weeks. [| cant say just how long T was in Central the second time that season: only a few days; | hardly ever stayed just one day; was here on short visit. Plett here the 2d or 5d week in January, 1568, for the Kast. Lo might have been in Denver on the 10th. [might have written a letter to Sabin on the LOth; don't reecolleet; could tell if T saw the letter. I

did not return here till the latter part of September or first Outo Hol ber, Is68; Lalways thought it was Ist week in Oetober.

"fT eanmt state whether Twas here in January, 1860. Mr Mal lory was here. IT dont think Twas here in January, 1866. lL was not here in January, ls67. TP was in the Territory part of January, Ds0s, & part of January, 1860. Lowas here on my private business."

Plaintiff here asks witness: * What business were you carrying on." Detendant objected to witness answering, because not cross-exXamination; the court overruled the objection, & defendant then & there excepted to the ruling of the court.

Witness answered: * | was just as IT always liave been, either buying or selling something: my own private business."

Plaintilf here asked witness: * Were vou mining anything at that time when vou were here?"

Tire detendant objected to witness answerlne, The court overruled the objection, & detendant excepted then & there to the ruling.

'

Witness answered: =P eant say that [was mining. IT had some Itt

&

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 189

done on two or three different lodes. I had some little work done on the suit you (Teller) helped defend me in Nevada, the 652 Hammond Tunnel."

Defendant here objected to the admission of this testimony, and the court overruled the objection, & detendant excepted then & there to the ruling.

* The men who worked there did it by contract; it is several lun-dred feet in. The contract was tor 500 teet. Part of it was done during this time, very little: some part of it done in 1867; I don't know Whether any in IS68 or not; it must have been done betore 186s. I was doing other business. [Twas buying some lands around the town. I had some work done on the Marviland road, over in Chase Guileh."

Defendant here objected to this testimony because not relevant. The court overruled the objection, & defendant then & there excepted = to the ruling of the court.

* All the work | had done was done by contract. When I came I staved at my house in Chase Gulch, about a mile from Bates' Mine, 160 or 2OO feet from Douglas' Mill. [T very seldom went to the mine; | went there occasionally: | was to the mill very frequently. T made an

arrangement with Sabin in IS6¢ to run myo mill; le was to run (33:3 ores thronel it, & to work No. three: he agreed that he would develop No. three forthe use of the mine & give me the first ");

bass OLE,

Sabin was not working No. 3 from the time he started. I was not here then. T first knew he was working No. 3 .when | returned in Sep tember or October, IS6s. We made the agreement some time in 186%, When Twas out. [| think he wrote me that he was working this. | tix the date of bringing the Roeky Moun!

knew from his letters. | eamt :; Ssilein

un Grold-Mining Company suit: think It Was in spring of [S6s.

wrote me le was working number three. T wrote him repeatedly. 1

bit » ,

le + . ? '7'? , ' . } . <> . _ - . —_ ~ ~ . cnew at by his information & Kuew it POsitIVery I forse mito No, vhen Teame out. This is the way T want to explain it. | gave Sabin 7} "2 ° } ' ' a , } Sa } 4 . om ii«ireetion what to do li case tunnel broke through on me.

"The first information TP had of Sabin's going to work there was in

unitary: TP think January, 1868.) [ was out here part of January, & he told me he would go to work at once on number three. lie had trod written ime before that he was at work on number three, but when the survey was mInade & the difference ascertained between the horizontal measure & measuring down the hill he did not believe he had been at work on Now} at all, but would go to work onee. Tle ran dritts in 90 or 100 teet, a few feet trom Leavett. {f told lim to leave a vall sO) the Water would hot cet Orit. "To had the mine measured & have a may of It: it directly after quit work. It was stoped in some places 40 feet, & some

OOM some SO, Et does not exceed 10 feet in some piaees:

was measured

In some places tis GO, some not 40; it is in notehes.

* PT wentin the mine once: could only see by the light of a handle; dark mine: camt SAV when I went in. I eould see a part ot the stoping hy the light. He was also working west half discovery claim by drifting :

int sav how far from top that drift is: was init after he quit work

We

. é } on | a . a i ] 1? ' t- ' Tr ' . Seppppee PPP im oPSNGS only know Sabin worked it from What he said, } % : ' | i re | | , . 3% > . e vhiat some Daddy Solldld WOrKING there, We walked clear through to ' >= ' } > } — ray} . fe . ' ' : ' " ' ; } ; , (oe C owernhovells Claitn. Phere Vas all mncline so that Vou eould St ¢

iy )6ofrom this west halt discovery.

. , >. , Dersons In Cowenhavens cial

? i 4 ' ¥ 7 this west half had been werked some, not

it!

190 vu. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

drifted through, because Sabin had told me so. There is a hole through there now. You can walk through it now if the water was out. This drift must be all of 50 feet long. There has been some work done, looks like old) work, in this west half. formerly owned Ilayes & Inurtland: sank a shaft & did some work above this dritt; if strikes below that work. The work now done is a drift 50 feet through it, & that is not all. This ineline comes down fifty feet from the west end of the west halt, & that would be as far as Sabin went. The ore is not stoped out. Sabin did some work on it; he did not drift clear through; other parties did some of it. IT domt know how much of it Sabin did. [was not there to see lim. '] testified as | did yesterday because he told me. Sabin told 656 ime since the last trial I donot exactly swear to anything Sabin tells me; it does not depend on which side it is on when it is cor roborated by the facts. [asked Sabin about that when IT went & saw this map there. Thad the measurement before my last testimony: did not have the map. T walked through there & saw the drift myself. "When Sabin quit in the fall of 1568 there was one level & then the stoping above. There might have been more levels & stoped out. On former trial | testified there was but one level | went in; it had been stoped some 50 or 40 teet high & 30 or 40 feet long, in some place' 40 or 60, and along shaft in one place S50; it is 60 in one place; it goes down like notches. The next time I returned after the contract Sabin was not running the mill at all. When | returned here in 1867 he was running my mill, We talked about the contract during that time I was out, & he began torun the mill; am not certain what time was not here; think it was In August, 1867.) Ile was running the mill when I came back next time in December. T had put it in repair & paid for it my- Hor self. When I came back here in September or Oetober, 1568, he was running same mill, & he run afew weeks after I returned:

then he shut down to make some repairs; was shut down a couple of

weeks; not six weeks; [ could not think it was six weeks. The repairs he made on the mill around the batteries & boilers & engine. I could not sav that he overhauled the mill generally. There were some little repairs on the engine & about the boilers X batteries. They were leaky. Mr Woodbury had tixed them all in good order. | paid him ss00. At that time they had been running over a vear,

*Atter | returned here in fail of TsS0s8, until the Ist December I did Various things—my own private matters; was at Denver, Golden, & various places; was in Central every little while. It would have averaged every other day in Central. To passed by the mill on my way to town, & tn sight of the mine: could see the buildings: passed by the office of the company, & went in there occasionally. M'r Sabin carried the ey s.& of course | was not there otten ; occasionally he would give

me the kev, when PT would goin & write there. | have been ther

3s Shen Sabin was there & when he was not there. ~The first hnotier [ hac irom the bysatik i>] any lit else of this iIndebteduess was Ll6th Deeember. That was the tipst intimation I lad

that Sabinowas running in debt in the company's name; he would ocea. slonally borrow money trom ime, tell me he was running behind. Sabu told meot indebtedness, & about lo minutes afterwards VPotter came there. Tt T testified that Sabin told me in the morning | want to cor rect it, because Potter told me as soomas | met him: it was the time he infermed me about the company. The first | knew of the companys being held tor that thing was on that evening.

Sabin was always in debt. Sabin and Thad been engaged in busi

Lu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 191

ness, There were some things we had mutual interest in. We were

running no mines together in 1867 & 1568, except that he was running

No. 3 & west half discovery for himself. I did not consider myself responsible for any debts of his, because I believed him an honor-

630 able man & would not make any debts. I know he wrote one about several things he was in debt.

In bringing that suit, lon my own responsibility took the responsibility of having him employ attorneys to detend that suit, because they claimed iny entire property—all the mine. [had no authority to write that letter: said nothing tothe board about it. [ might have talked to some of the otfieers about it. That of course was for the purpose of defending the suit, employing counsel, & for lim to hold himself out that he had authority from the Company for making the arrangements that he was going to do. [| wanted Sabin to hold himself out as having authority to defend my property at least: thatis what |lmean by saying I wanted him to hold himself out as having authority. I did that on my own responsibility, & it was never spread betore the directors in any was. Without any authority | might have recognized him in other wavs: fT domt know.

* The company never recognized him that I know of. I was O40 not in New York when he started in: was out here part of the

time. I won't say that IL never recognized him as superintendent ; [ might have on some other occasions: dont remember; it [did IT had no authority: never had any authority: it was all without the knowledge of the board. I have got every particular now how I do those things."

(Letter of February Oth, 156s, shown witness. )

This letter refers to Long's indebtedness & then all other things here besides Lone's. I stated yesterday that it referred to Long, & I Want to explain that. I said that referred partly to Long's—no, | say from the balance. I did not read all of it; did not have a chance to examine it; did not read it. In January | went on: he wrote me this in February: he had then gone to work on number three & was running the mine; he wrote me that le was in debt & wanted me to pay this Long debt, and would probably want more money; then it was I

wrote him: it must have been working No.3; he owed Long, & O41 wanted me to pay these debts.

"ft donmt know that he had commenced working when IT left Denver; he was writing me that he was in debt. | think he said there was two or three thousand dollars in addition to Long's; I don't know What the amount was: not against No. 5 exactly.

"Tt he wrote me to borrow money, this had no reference to the com. pany stmatters at all. Tt had reference to the companys matters so far as work done to get into No.3. The drift of course this place. IJ told vou the difference between horizontal and inclined measure. Ie wrote Ine that he liad meant work on number 56. At this time all the Information P lad was trom lim. The letter I wrote from New York.in Which TP speak of the Iwountze note & two notes, Xe. He told me he

he debt he was earring all the time. I refer to the

' , 4 : ' = a nad Lor mm deve ¢

debts he had. severaldebts, several indebtednessess that le wrote to me

about. Another partis in reference to the consolidated Gregory. ae They wanted money, of course; they have always wanted it. I say our plan tomakeashow todo something. We talked of

conselid itine the whole IySITLeSS,

* Tt Sabin got behind, he always called on me for money. & We will lose all tallings, Ae.: this referred to the other debts. ' We will lose ,

al! sthdes to pay this debt. &c.: ves, every debt he had. I had to

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

run outside mills till my mill was fixed, so that we could save the tail ings. [ mean to say we will lose fully $50,000 worth of ore in this debt, Sabin's debt. | proposed to pay it by taking ore out of the mine. Sabin & T were running No.3 & my mill. Lf hada contract with him. Ife was to develop No. 5 for me, and he asked me. frequently, * Becker. if | vet behind will vou see me out? TP said, I don't want vou to get behind, & f rather promised. T wanted No.5 developed. ' Ilave debt paid, & then if our mill won't pay expenses, &e. LT referred to mine on No. 3. that was all. Sabin did not write me that lhe was working on the company's property at that time. L think he was working detendants

property when | left Colorado. No. 5 1s all he referred to. Hb) Ife aust have referred to No. 3. the lone debt, & to the other indebtedness

he had. 'Remember we have 20 to 80 men, Xe. Prue, the mine is opened, ec. He said he had opened into dritts. We had work done on No. 5 before.

"Twas net asked the question last trial how much work was done on Nooo. * When Tsay the mine is opened, looks well, promises welly &e., it refers to the whole general thing. Tle wrote me, probably, about all the work he was done: it refers to Now 5, partly. 'The mine is Open refers to No.5 & the company's property both, & * Which looks well XN promises well" refers to both. Sabin wrote me No. 5 looked well. fi say the mine is opened, &Xe., because that is just the representation nade fo me,

"PT knew when - dett that Sabin was in debt: he owed the Lone debt some time before. Ele had not told me the company was in debt. * bam erieved, perplexed? slet us look matters squarely in the face, 'so tirst

letous vet ont of debte &e. LT certainly was not bound with Sabin. If

ment the debt he was Writing me abouts it was not bri \ delet. I fil rreant Sabin & me to vet out of debt afi le wanted me to assist byiane.

When Po say * We might keep ai treasury ahead? [To mean our own treasnary. dP don't think To referred to the company at all in this letter lL had ne authority todo so it is entirely ao private letter. I did) net want him te get in debt for anybody or anything. Twas president of the company, president & captain of that company. * f do hope vou will

"at \ 11 Vou! next, d&e.3 * keep rie posted so Lean be prepared to ad vance the money. Plis refers to some speculation [was in, buying the Claim that Tannatt was trving to vet, to pay an outstanding claim against the hocks Mountain Company > that liad no reference to the COMPAS either, it Was ny private matters,

* This letter was written simply for the protection of ny own property,

? \ for lim to defend it, & to appear with fall authority to detend and t

employ attorneys. Taddressed it to liim as superintendent, because I would have given hima power of attorney, which Thad no power 72 todo. so If you tust simply addressed him as superintendent, thirst Was given to show Messrs Bovle & Butler that he had authority

fo cmnployv attorneys. ~Atter his letters had been taken, Sabin asked ine to write to the ofitee of the Union Gold-Mining Compa'y. There was another Sabin

there: Pnever knew the man. Charles Sabin received bis mail at Central City. There were none of the letters directed inside that TP know

of Ldent know whether [T ever addressed jiim in anv otner letter as

. .e 30a ¢ : > : Ba . : Rie ba . 7 . . 7 Supebmmcencent Or not, ln poh have addressed titm as supermtendent 7 . ,. . . . for that very purpose of carrying ont the same business that [was In- ' A ' . . , é rn > ] ie i , Ra e f > i = > > ferested inh. l eertam evep lad anv anunthoritv trom the directors to

Ul. G. M. Co. Vs. Rocky Mt Nat Bk. Of Central City. 193

* | suppose he employed counsel the Ist of May. I might have addressed him so for some other purpose; he was superintendent before, & Timay have addressed bim then. If he resigned in April, it was a month & 17 days since he had been superintendent; if it was 1868, it would be longer; if it was 17th May, 1566, it would have been a month & 17 days."

(\Witness' attention called to letter of May 17, '63.)

"| had i een blowing that he was a success; had been trying 646 tosellin New York: & then he wrote his letter that he was getting

behind. This was in May. If we could by any means show one successtal mine in Colorado the thing would go up again & there would bea good chance to sell some property. Lreferred to the * best superintendent' just as [ would. Ile wassuperintendent of my mine. I referred to all the work he was doing on both—anything he was doing at all probably at that time.

*T dont know what time he purchased the west half of Discovery. He wrote me he was getting behind; that is a private letter. | mean by that *superintendent® just as I did about the mine; he had the best mine & men. Lmeantbyit just what I said there. He wassuperintendent of my affairs in Colorado. He was working that by that kind of an agreement, aid then he wrote me he was getting behind. He was superintendent tor all Thad. It was to shirk paying. I did not want to be everlastingly paving money. I called him * best superintendent" to show himup. I had given him a power of attorney to look after my

matters. I referred to all he was doing; not to get behind

* | say our men, because the men were working in my mill. [ wanted him to shut down mill-men—everything. I certainly bad an interest: | expected to furnisit monuey; he always wanted money, I somewmmes loaned it to him; Tdonmt doso now. IT mean no business man ought to goin debt. I mean that to-day & forever. I used the word manager there; man managing mine."

(Letter of May lzth, °67, shown witness.)

"This is a private letter that | wrote him from S't Louis. 1 suppose J wrote the latter part of it, saying, 'Mr Potts wrote you after [ left New York. Please don't fail to increase the shipments; never go back. wards. If Lyon buys any more ore would they rather give you drafts on New York? This will save exchange in getting money to Colo. & saves exchange to send it to New York: let us save all we ean. I think it refers to some private matters. I can't say the day I wrote trom St Louis; dont know now to what business I alluded; to some business between us; he must have been selling ore on his own account.

| wanted him to ship the money to New York. I think that let-

645 ter says, *l am coming right out, too, & I did come ont in

ten days. I think this letter is about Darlington's note. Morse brought suit on it & you (Teller) defended it. I dou't think this letter refers to any business of the company: it may.

'+ Please don't fail to try to Increase shipments. Yes, Sabin was occasionally drawing on me, individually. I don't think I was ever asked betore it he lad drew on me: that thing alludes to our exchanges. Il Wauted to get off from paying apy more drafts; this was not permission tosell more. IT don't know about bis selling ore to Lyon or aus body else.

* To was not in Colorado betore | got there in 1867; that was my first Visit, in lse7: ten days afterthat. It refers to some exchange: different exchanges tor money. At that time 1 think we had to pay 4, 4, & 0 per

hee. lov— 15.

- Ee oe eee eee

194 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

ent. You (Teller) brought the suit against the Rocky Mountain Com-pany

. I believe it was ejectment & trespass both.

"The defendant never had anything to do with working No. 5. It

never was in the possession of the defendant; | always owned it. 6149 They neverdid any work onit. Rovle & Butler were my attorneys

in that suit. I don't know what the representations were to them. I was away when the suit was brought. I may have written to them about it.

7] did not know who was in possession & working No. 3; T was not here. [ knew the Union Company never owned or claimed No. 3 in the world. [ only knew there was trouble here in the fall of 156s about No. 3 from what Sabin wrote; none that [ know.

'In the letter IL said, 'Tell them that while you are the authorized agent of the U. G. M. Co., you do not nor have not worked No. 3 tor said company.' I meant that he had worked number three for me. | knew at the time that if it was shown that the Union Gold-Mining Company had not been working So. 6, the plaintiff could not recover ; that was with a view of instructing my attorneys that the Union Com pany was not in possession. Sabin was working number three in Janu ary; that was in April. Sabin was not working number 3, & had not

worked Nos. 1 & 2 as agent under this contract—under the first 650 contract, two years. This date was April 17th, 1568. They wanted

to sue us; furthermore, you know, they wanted to claim that we had been taking ore out of their property, & it was Sabiuw's engine & elevator. It was not necessary to say, ' While the Union Company has not worked the mine since 1865; 1 wanted him to state the facts to the attorneys. This was toshow that Sabin alone was responsible. He was bringing the ore from number three, lifting it up through the Union Company's property.

'"Inease they brought the suit [ was going for damages in that very suit, Suing us, trying to get the property, damaging the whole property. All | wanted Sabin to state was the truth, the facts in the matter.

*] dont know whether M'r Sabin was in correspondence with any member of defendant except me at that time. Ile occasionally wrote me letters to be shown to the other members of the company."

Letter of April 3, 1868, handed witness & asked to explain this: '| wish you would write me privately how much you can save every

week over and above all expenses. Is it possible to save up 651 enough to open another claim ?"

'T wanted to see what he could save oeceasionally ; wanted to know privately what he could do. I wanted the company to open another mine. Sabin was bound to pile up the Ist-class ore or quit.

"* This is in regard to same suit; this one of them that I addressed him in as superintendent. I here read it."

The defendant here objected to the examination of the witness about this letter, as it is not cross-examipation & not contradicting the witness. The court overruled the objection, & detendant then & there excepted to the ruling of court.

(Here another letter was handed to witness & asked to read it, which he did.)

'"Itis my handwriting sent to Sabin; addressed friend Sabin; date, S't Louis, January 19, 1868. This is a private letter."

Here plaintiff! interrogated witness what the contents of the letter, & defendant objected to the examination of the witness about the letter because it is not official, nor directed to Sabin as superintendent. It

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 195

was not referred to in direct examination; it is offered at a 652 time when there is no opportunity to cross examine in regard to

it; is on private business entirely; is not part of the res gesta. There is no evidence that plaintiff ever knew of this letter before the present time; if is not obligatory on defendant; is not proper evidence

for plaintitt. The court overruled the objection & allowed the plaintiff

fo cross-examine the witness as to the letter, & defendant then & there excepted to the ruling, & the following is copy of the letter:

' Direct letters to me at Astor House, New York."

Sr Louis, Mo., Sunday, January 19th, 156s,

FRIEND SABIN: I arrived here all safe on Friday morning; only one connection, & will leave here to-morrow (Monday) for New York. I never saw money matters so tight im all my life. Iam glad I have a safe & something init. If | did not, [| would bein a fog. Now curtail,

curtail, curtail; get out of debt'as soon as possible; only employ 653 enough men to keep the mill rnnning; that is, to keep the quartz

pile barely on the increase, and prepare for every emergency. I must pay New York, Elliott, for the property $52,000, & that other project will cost *20,000 or more, so [ must not advance one cent more for fixing up.

Remember [ have never taken one cent out of Colorado, so I ought soon to be getting some instead of paying it out. Send me a statement how many ounces of retort you have sold since the Ist day of January, Is67. It may be necessary to show such a statement to Mess'rs H. & P.

| shall move things when I get there, & shall want all the backing I ean get to help me. IT can carry all my engagements, but don't want to be cramped, so do get out of debt as soon as possible. No news.

Yours, T. H. BECKER,

'* | don't know whether the first information I had about the

6o4 debt of Sabin was by a letter written by Sabin between LOth X 19th January ornot. He sometimes wrote me twice a day."

Plaintiff here asks witness, 'What do you mean in this letter, if you did not know he was getting in debt, by saying, 'Now curtail, curtail, vet out of debt?'"

The detendant objeeted to counsel reading a part of a letter in that way. The court overruled the objection, & defendant then & there excepted to the ruling of the court.

Witness then answered, * Yes, it was in regard to curtailing the ronning of the mill I wrote the letter. I never saw Sabin do, & never knew he was doing business in the defendant's name. I wrote him to send me a statement of the number of ounces of retort he had sold since January Ist, 1567, for the very purpose of getting some backing In New York to raise fifty thousand dollars. M'r Sabin did not agree to make any remittances to the company: he piled up the tribute ore, as he called it, in the building."

'Another letter handed witness.) aes) '" f wrote this letter; have read it."

Here plaintiff showed the letter & asked him to read letter from witness to Sabin, dated April 2, 1867. Detendant objected to the plaintiff examining witness about the letter, for the reasons last above given, & also there is no foundation laid. There is no evidence that it

S21 A PREY i 02%

196 Wu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

was ever sent to or received by the person to whom it is addressed. The court overruled the objection, & defendant then & there excepted to the ruling of the court; Witness whereupon the defendant's attorney de manded that the letters be offered in evidence before plaintiffs attorney should examine in regard to it, & the court ordered it read in evidence, & the detendant's attorney objected for the reasons last before given. The court overruled the objection, & the defendant then & there excepted to the ruling of the court.

142 OFFICE OF THE UNION GOLD- MINING COMPANY, New York City, April 2d, 1567. JK. SABIN, Esq., 656 Central City.

DEAR Str: I was elected and have this day aceepted the presideney of the Union Gold-Mining Company for the sole purpose of convineing the stockholders that the mines [ sold them are fully as good as IL represented them to be, and to show them that by good management they will pay handsome dividends on the original investments.

Our treasury is too much depleted to try any experiments Whatever ; therefore | would suggest that you take hold in real good earnest, and drive matters in the very best way possible to get the very largest yield

the least possible expenditure,so that you may first and foremost replenish our treasury. Do this. if no more, and the drooping and desponding spirits of our shareholders must and will revive.

Just here let me again reiterate what I told you last fall. The majority

of our company are A No. 1 business men, and many of them have 657 invested in other Colorado enterprises ; and just so soon as vou

make the Union Company's mine pay you will establish a character and reputation with them that no other superintendent has done, and then your future is made. So let me beg of you to take hold and put in your best efforts to have the remittances increase each week. This, | apprehend, can be done if you manage so as to extend the adits so that more ore can be reached.

Remember we are on trial now, and all we have to do is to show that we are masters of the situation, by the regular increasing remittances and no drafts. I want to establish the fact that we (vou and [) ean make the money tlow from the mines; not as heretotore, flow to the mines.

You know I always said any fool could sink money in mines, but that it took management & experience to make money tlow from the mines. If we ean make this apparent by adding to the treasury each week and taking nothing theretrom, our shareholders will see the point very

plainly, 'and the means of our success will spread around, and all 65S the mismanagers in Colorado will be superceeded by good and

true managers, and our suttering country re-instated in the good opinion of the capitalists of the East.

If the mines are not made to pay, then they are truly worthless, and deservedly so, and — vo down. Write regularly once a week, and direct all letters to I. A. Potts, esq... as heretofore, and remit regularly, if possible, to same chide Se if t sell the ores to the Consolidated (zregory, it Is more than poss vet they would preter to give you drafts on the company Gere ti sew York; if} so, this wouid save us ex change aud express charges, aid aiso save them express charges in vetthiz the ichaneniae OUT There. Lets show eood Mabaevement and economical managenicnt In every tidng

If we should ever have any successors, let's work so they can't beat

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 197

our management. Then shall we be truly appreciated. I will leave here in a few days for S't Louis, and then for the mountains, when we will have a conference as to the best mode of making it pay all parties concerned. Yours, truly, T. WH. BECKER. Hoo Witness Seeker then testified : "| was elected president of defendant in April, 1867."

Plaintitf here asked witness, * Did you vot write to Sabin on 2d day of April, LS67, in said letter, as follows: ©T was elected and have this day accepted the presideney of the Union Gold-Mining Company, &c., fo *that no other superintendent has done, & then your future is made ;' did you write that 2?"

Defendant objected because the letter is no evidence. The objection was overruled by the court: and defendant then & there excepted to the ruling of the court.

Answer, * Yes, sir; I wrote that. I meant if he would make the Inine pay, pile at the Ist class ore, so that wecould get something out of it; he was piling uponatthattime: had been when I was out; he was going to sell ore. [intended to get the company to order the ore to be sold; that was my object. He had been working from some time in December, 1566, till April 2d, 1867.

* 7T did not expect any remittances from him at that time, because he

had not sent any remittanees. | was elected that very day, and 660° omy object was to make the thing pay. I wrote to 'put in your

best efforts to have remittances increased each week ; this, I apprehend, Can be done if you manage so as to extend the adits so that more ore can be reached.' I did not expect remittances unless he got orders to sell What was on hand. Yes, all he would have to do would be to increase remittances and no drafts: they would have to do it.

*] had nothing to do with working defendant's mine then; we had commenced work on No. 5 then—almost a year after—not till January; this was in August, 1867, that he agreed; at that time I had not made permanent arrangements to work No. 3. In summer of 1867 the arrangement was made by which I let him have the mill. [ was in New York. These remittances not to come from number three; they were to come feom working the Union Gold-Mining Company's property and selling the tribute-ore that he and I piled up. He and I agreed to get

up a sale one of those letters; I was going on to get $90,000 for that very purpose, 651 "That is what I want now. I want Colorado re-instated in the

good opinion of eastern capitalists, by means of making the mine pay. I think L asked him to write regularly to F. A. Potts, as heretofore, and remit regularly, if possible, to same address. "T might have given him direetions about selling ore at that time. I did not read all the letter. I had no authority to direct the sale of the ore. IT spoke to him about selling ore, if he got orders, I did not expect him to sell ore at that time. IT expected to get orders. I said, 'If you sell to L., see what he would do. [ spoke of our successors, because I expected to have succession in the management of the mine. The first time I was elected I said, ' Let us work so they cannot beat our management:* that is the very idea. He had something to do with the com pany because he had agreed to work it upon the terms I told you; he Was then piling up ore. *T called him superintendent because he was looking after every. thing so tar as I was concerned—other property : he was not superinoo

ea =.

195 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

tendent of the company; he was Theodore H. Becker's superin- 662 tendent to all interests. I was writing about the plans we had

agreed upon. IT was writing about both the company's property and my own, as we had agreed upon; the company's and mine and his affatrs.

'"] proposed to sell the tribute ore to the Consolidated Grregory Com pany. Sabin was doing all the business | liadin the Permtory. [don't know in the way of mining whether be was or aot. By snecessors, | mean anybody at all who succeeded in the tanageinent. | eame out the following month—June. (Here the letter spoken of by witness and marked by court.) [ wrote Sabin to make a private report, so that I could get the company to put the mill up on the mine, and | was always anxious to know. If it was a good report, we could get a mill on the mine. We wanted to get it so that we could work the property, and No. 3, & Sabin. We were always after that.

"We wanted a mill on the mine to save hauling and transportation of all kinds and make it as profitable as we could. Sabine made one

report when he resigned, and afterwards private reports—as many 663 as two, any way; he wrote privately in letters. [think more than probably I sent him a sheet to make a report on in April, 13868.

'| think more than likely I sent him this. This is simply a memorandum. Yes, it says I made a report for him to send. I wanted a report made out for the year, s0 as to earry his plan out. He wanted to get full instructions; and they were holding him on his first contract at that time."

(Here witness was handed letter dated Feb'y 10th, 1868.)

'That is my handwriting."

(Defendant objects to any examination upon the letter. Court over. ruled the objection, and the defendant then and there excepted to the ruling of the court.)

'1 wrote this letter of Feb'y 10, 1868. I think that that is February th, 1s68.) The other was written in S't Louis, and could not have been written next day in New York. I wrote in this, 'Il do hope you have succeeded in reducing the debt...) | referred to this very same debt. Ile wrote about debts. The German | consulted in| New York, who

made assays, said the tailings were valuable. [ spoke of it as mis 661 debt because he always wanted money to pay his debts; does

to-day. [ did not know anything about the debt except when he wrofe me. T think at that particular time he was working my mill: think the letter of January LOth was written in 186s."

(Plaintif here handed witness his letter dated January 10th, 156s, Becker to Sabin, and defendant objects to the examination of witness about the letter for same reasons as given to other letters on across-ex amination, The court overruled the objection, and defendant then & there excepted to the ruling of the court.)

*T dont think IT said that all the knowledge I had of this indebted. ness was by a letter received from Sabin. He was continually me when [ was here that he was in debt, and he wanted me to pay the Long debt, and he wrote me at New York to pay it; and there was the other indebtedness. He was in debt all the time just like he is to-day.

I think T wrote him, your note and box of tailings received, &e., In 660 January, 1868.) Think the mill was not running in L867, Lreally think it was written in January, 186s,

"In that inclosed bill there was a difference of quite a number of feet. 30 or 40, where the lines were run, and Sabin told me be was working

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITy. 199

No.3 as early as August the vear before, and afterwards told me he had got struck it When the measurement was made. I did not think he was running No.3 in debt. * Tam aware that shutting down the mill would loose us the best run, &ec., means he & I. Sabin told me there was No. 1 ore on No. Sat that time: no one could tell whether he was workingon No. 3or not till it was measured; could not tell when vou crossed No.5 or lor2. TL did not know he had not commenced on No. 3 at that time; he had told me so,and afterwards said be had not been working it. LT referred entirely to the debt contracted he wanted me to pay Siile | was there. He wrote me while | was there. 'Once out of debt I will have new lites &c., reters to bis indebtedness that he wanted me to furnish money to pay; he clalined that it was for me that he made the debt. 666 "7 always told the plaintiff that I knew nothing about it, being the debt of the defendant; that I did not think Sabin had any authority.

"If | said yesterday I told Goodspead that I did not know anything about the ore, | did not mean to. I always knew the ore was there. I meant I did not know anything about the indebtedness. After I received a letter from the vice-president stating so, L always disclaimed this being a debt of the defendant. I never admitted it to be a debt of the company, to my knowledge, except when told about it.

"| wrote the letter on Ist January. Sabin had told me at the same time that he had authority to draw on the company. My impression now is that thisis the only time. I never admitted it to be a debt of the company. Ll dowt remember that I ever said the debt ought to be paid. This may be a copy of the letter 1 wrote to president of plaintiff on the ist January, 1869. | can't say positively; T think it is.

"TI know there was an abundance of ore at that time. It is just

667 what Sabin represented, that there was an abundance of ore

already broken in the mine to pay the debt. This was the only

debt reported or that anybody claimed. Kountze wanted me to admit

that this was a debt of the company. IT won't say this letter is just as I

wrote it; It is if this isa true copy. Leant say that it is; if [ saw my own letter I ean tell."

Plaintit? here asks witness: "At this time you were the owner of a majority of the stock, was not you ?~

Defendant objected to witness answering. The court overruled the objection, and the defendant then & there excepted to the ruling of the court,

Witness then answered: "It was not a majority in my name. I did not own a majority. | said so in the letter. | could control a majority. I had itin my hands at the meeting in April. I did not own a majority of the stock not in my name; there was nota little more than half in my name. T suppose | would have owned one-half. I swore indirectly

ona former trial that 1 owned a little more than half. I don't 668 recolleet. When | wrote this January letter | had control of

more than halt, but it was not in my name; when I signed the letter | told Kountze something hke I would not admit it to be the indebtedness of the company.

*T had written to New York, and it is my impression that I told Kountze that | had tor the purpose of ascertaiping whether a new arrangement had been made withSabin. I think I told him so. I had written on the 16th December, and expected a letter soon. He wanted me to sign this, wanted an acknowledgement of the debt. I utterly

=

1964 TY 2 WA £m boa © TOSVLANTO UP Bere lw te OK -

200 Uu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

refused to sign any paper he had prepared. I' was the only indebted. ness I know of."

Plaintiff here asks this question: "In regard to the overdratt of the company in your' bank, did you not then treat them as overdrait of the defendant here?"

Defendant objected to witness answering because not cross-examination

. The witness admitted that he wrote it: there has not been 669 aclause in that paper denied. The construction of the paper is

forthe jury. The court overruled the objection, and the detendant then and there excepted to the ruling of the court.

Witness answered: "That is the only paper I signed. T refused to Sign the other papers as soon as I learned that vou (Teller) had written them; did not sign them at all. | only treated it as an overdratt by writing that. [ think I told him I had represented the company. I do remember [said T would not sign anything officially for ten thousand dollars. I told him IT had no authority to bind the company. | did not tell him if I signed it officially they would think it was a trick of mine to get hold of the property. I wrote, 'In fact this is the only debt 1 know of the company owing.' | think I wrote all of the original of that letter of January Ist, 1869.

' Next conversation | had with Iountze was before | went Fast: ein't fix the date of it. [le was up there occasionally. In the torepart of January

I told Goodspeed the contents of that letter; that the com 670 =pany refused to recognize the debt in any way, to have anything

to do with it. 1 told him [ had written to the vice-president, as I] promised him IT would write; can't remember the words. I received the letter from the vice president. | did not tell him there had been a meeting of the directors. I had no other knowledge of it except I had a letter from the vice-president. There had been no meeting of the board at that time that IT knew anything of.

'*] think it was the latter part of the first week or first of second week in January that Tread the letter from Werner to me to Goodspeed in the bank. M'r Arnold was about occasionally, probably in at the time. He is a man connected with the bank ; Is in the law office now.

"When Kountze came up I told him the same thing; some days after, might have been a week. I did not show him the letter. I told him the contents; that the directors would have nothing to do with it; that I would have to call a regular stockholders' meeting. I think [ said to him the company both refused and repudiated it; T think [ said both

yesterday. | told Kountze | would bring it before the stockhold- 671 resin April. I don't Know that there was aay formal meeting of directors at that time.

"Twas in the bank on the night of 19th or 20th Mareh, 1869. I settled with Sabin. IT paid him a salary for what he had been working for me and the rent of hisengine at rate of $3,500 per year tor part of the time—a little while. We kind gnessed at the whole bill & made it out. It was a settlement for work up at the mill. He and Elliott Cleaned at the table while Twas running; worked some little im number three before | shut down, some time in February. We run a part of February.

* Tonly paid him for a little time at $5,000 a vear- Hewas not there all the time. Hle was at the mill only occasionally, backwards and forwards. Engine rent at $100 per month. Thad run his engine only a little time he was working. I did not pay hima cent on the books; they are not balanced: they show it Lo never paid him agent. have his receipt. IT think Sabin asked Goodspeed what was due. 1 don't

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 201

remember that I did. I don't remember that I said I did at tirst 672 ~=trial otthisease. I might have asked him what was due. I don't remem ber. ;

* I did not pay him for anything prior to 16th Deeember; I think in the neighborhood of S400, He had got some money of me before ; had paid him a portion; he entered some credits made in memorandums on a piece of paper. [might have paid him by cheek ; my impression was I paid him in greenbacks. He owed me at that time. I swore yesterday I advanced him $4,000. [T advanced that during the month' ot December and January. Betore 19th Mareh he owed me &4,000, and has since paid me some of It.

* | paid him for his services at that very time, and at bis request dis charged him as superintendent. [ think I said he was no longer connected with the company. [think he asked me to. Tinight have said, 'This is the end of our connection." (roodspeed, Potter, Sabin, and I were all standing together close around the stove. IT may have called their attention that L would go EKast—see the stockholders. 1 don't remember

calling their attention particularly to the facet. | remem- O73 bermakingastatementoft that kind; don't remember the words.

I told him so tor fear they wanted him, as he told me privately they would try to get him to sign bonds, deeds of trust, mortgages, curious papers that you had tixed up. They wanted him to sign, and he refused; so he told me. That was not called out before, or I should have told if. .

*T domtremember telling Potter and Goodspeed, after | returned from the East in spring of 1860, that [did so, so that they could not get service. They said, first, report this thing to the stockholders, All hands wanted itdone. You (Teller) once told me that you thought I discharged him so that bank could not get service. C. B. Kountze asked me to call on his brother—that was the arrangement—the brother that was going trom Omaha to New York. [ thought he was president. I called on him in New York a day or two before the stockholders' meeting. I first saw the clerk; pretty soon after, Luther came in and went out, and said his

brother would be in directly; and his brother next morning called O64 atthe Astor House and left hiscard. I wasnotin. [ think it was

'hountze Bro's' on the ecard. He and his brother both called at the Astor House, and, I suppose, went on down to the bank.

"T went down; saw him that day; told him when the stockholders would meet. [saw him, 1 think, the day of the meeting, and the day after ineeting saw Augustus Kountze. I asked him why he did not come up. Ile was busy, & said he would just let the board act in the matter. Iie seemed to care; wanted them to act at onee, of course. IL told him I was sorry the board did not believe the money was loaned at all; they did not believe the bank would loan any such amount of money without authority—rather laughed at the idea—and adjourned the meeting till next day. [ told him the stockholders would not stand the debt, and repudiated itentirely. Ithink Ltold him. TLonly talked with Augustus. I went and told him next day after the meeting. The meeting was first

Tuesday in April, and continued two days. Afterwards we had an 679 election. IT have seen the aftidavit for continuance: read it since

last trial. In this I] swore that president ot defendant called a meeting ot directors of defendant. It was convened and had, and the matter of the indebtedness fully explained and laid before them, and directors of defendant fully ignored and denied the claims of plaintiff ; and that the president of plaintitt and his brother Luther or Augustus, then in New York, were fulky notified of the refusal of the directors to

202 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

pay or in any way recognize the claim of plaintiff; that I conld prove these facts by no other witness than Potts. I think I swore that Potts was the only witness by whom I could prove the repudiation.

''] swore to the whole of that affidavit. It did net all apply to Potts— the first portion—when he made the contract with Sabin; this the whole of the facts. Sabin came in after the general talk with allofus. [ was pot in New York when that directors meeting was held. If that affidavit

Says there was no formal meeting of dieectors at all, just a meeting of directors, and the matter laid Dbetore them, and they refused to pay O76 it, [swore to it. [ did write to Warren to call a meeting. [sap

pose T swore to it.

"Mr Potts is living; be is not here. If IT had Potts here he would corroborate it. I knew a portion of the faet. [| had notified Kountze of the repudiation. I knew when I made the athdavit that L had been to Omaha and notified Augustus Kountze. I did not know that I had seen Herman at all. Neither C. B. Kountze nor Goodspeed had been notified of anything but the directors repudiating. This was directly after the shareholders' meeting. [swore to the whole of that athdavit. If you would read the balance of it, [expected to prove the meeting and repudiation by Potts. [intended to cover the arrangement between Sabin and Potts; that is all in the affidavit together.

'Potts told me a great many things not in deposition. He told me he would come out here at the time and be at the trial; he has not

been here. There were other things | could prove in that aftidavit 677 ~=by Potts | did not know then even trom Kountze Brothers. —[ did

not see Herman Kountze. | notified Angustus both at New York and at Omaha of the repudiation, think the next day after the meeting. He asked me to see the directors again—we had elected a new director— and talk the matter over with the directors. I agreed todo so. I never wrote him a note in my life.

"T had business in S't Joseph; came by S't Louis; had business in Couneil Bluff; stayed over there and went over. The only time f was in Omaha that spring was on my return from the East. I telegraphed Butler at that time from Omaha. The Kansas Pacitie was not finished. | went down—I am not sure but we went down below Sheridan to geton. IT know [ did not stop at Omaha till the 4th May. I did not say to Augustus Kountze at Omaha that the debt ought to be paid. LT said the company utterly repudiated it. Tle said they had

already brought suit and enjoined the ore. I went and notified 675 Rovle & Butler todetend it; notified them by telegraph. T never

wasinOmaha, inthe bank, but once that spring: was not in Omaha but onee that spring.

"T think when - told Augustus Kountze in' New York of the repudiation, | think he asked ire when directors' meeting would be; told him I could call tinance committee together at any time. I asked itim to come up. Tle said he was very busy: said he was going away ina day ortwo. [domt remember whether I ever wrote any letters about the debt afterwards or not; could tell if | saw the letters. [think | wrote to Sabin about this matter. [ think T notified him that the company had repudiated it; [am not sure. I think Augustus Kountze told me when in New York that he was a large owner in plaintiff' bank, and | think Graodspeed told me had some interest."

* This is my writing In pencil; itis apencilletter. [ wrote it. [suppose if Was written at the time it was dated. IL see the date has been altered."

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 203

07Y Plaintiff here showed the letter to witness. Defendant objected

for same reasons as last betore assigned. The court allowed the plaintiff to ask the witness about the first ten clauses of the letter, and the defendant then and there excepted to the ruling of the court.

Witness Becker testified: "1 wrote that letter at the date it purports to be written. J] wrote to Sabin April loth, S69, 'Our election took place Thursday, resulting in election of same officers; on Wednesday, our finance committee. New York laws require = vote to issue bonds, levy assessments, Wc. TP control a little over 4, not quite §, 80 T have to pay or buy or vet enough so the assessment can be made. I[ have written tothe weaker holders to either buy them out or get proxies. This may detain me atew days longer; will write this week.

| wrote that the regular meeting of stockholders was on Monday. They adjourned over, as | told you. In this one the election took place

-ou Thursday. Our election took place on Monday. This letter 630 is written both Tuesday \& Monday; one is written over the other ;

and then it savs here the election of same officers on Wednesday. It must have been written after 1 notitied M'r Kkountze. It was my object to see if an assessment could be made at all, to satisfy Kountze about the matter. The board of directors would have nothing to do with the board of stock.

"Tsay if I paid any debts made by Sabin, it was for mill-machinery. I dowt remember now how much | paid that way. I remember paying fora pump. I douwt know whether I paid for anything else or not. I night have bought some picks or shovels for fixing our cistern. Mr Sabin paid all those other bills. I dont remember whether I paid Reynolds or not for powder got between time last bill was brought & léth December. |] gave Sabin the money; have his note for it now; he took receipts.

To might have testified on former trials that | paid some of those bills

mvself. Lean tellit ] can see receipt. T furnished ny own money. 6s] The company did not furnish any money atall. I don't remember

What I testified on this point before. | always paid greenbacks ; had no bank account in Central with anybody. I checked on my banker in New York, sometimes the St Nichel's Bank.

* Potts is my private banker; he is a coal-dealer in New York and banker for me. I sometimes drew-checks and drafts on him. I paid in sreenubacks. The drafts were drawn some ou the S't Nicholas bauk and some on bk. A. Potts, 110 Broadway: some marked treasurer in the marvin by direction. There is a little sign on his door—large building, great any otlices—that is the reason, so that the vounug mnan carrying it would know when to hand noticein. T have often done that. Treasurer was onit. There are two or three signs there-——Treasurer of Union Co., and of a coal co. | referred to my treasurer then. | dou't remember that I ever drew a dratt on him as treasurer of Union Company. I might have done it.

* | don't know how many drafts ITdrew on Potts as treasurer &

HS. had them cashed in Central. Itmight have been *3,000, or ¥4.000,

They were not all drawn on treasurer. IT think I always signed

them §T. H. Beckers [did not sign them 'president, that [am aware of,

8» that the tunds night be kept separate. I am doing that all the time.

it dont know how many drafts | have drawn on Potts in that way ; would not say whether they were all so or not.

"| had twofunds. [ kept 6.20 bounds, and as soon as it amounted to enough sella bond. IT would make overdraft until it absorbed a bond or suelb a matter, and order him to sell a bond. | know W'm Nichols ;

4

204 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

have seen him during this term of court; had a conversation with him at Bert's store about Bates' mine; I remember he called on me; never had but one talk with him that I remember; it was in 1569, 1 think, after suit commenced."

Plaintitt here asked the witness to "state whether you told him that the company never had leased or rented this mine and never would."

Defendant objected to witness answering. The objection was 683 overruled by the court, and defendant then and there excepted to the ruling of the court.

Witness then answered: "1 domt really remember what I did say to him. Lwasvery busy. Ithink IT said to him the company did not want to lease the mine; dowt know what | said; would not like to state. There Was Imany such couversations happening all the time that [T can't remember all of them. T really domwt recollect what I did swear om tormertrial. T invariably, when they came to me, told them I did not want to lease. LT understood all that time that Nichols was going to lease the mine from you and the bank. LT dort recolleet what the conversation was between me and Mr. Nichols; think IT told him T did not want to lease it."

Plaintiff here asked the witness: ' Did not you, before you went east, state to Charles BB. Ihouatze that you was going to try and sell this ore to Hill and try and settle up the debt ?"

Detendant objected to witness answering. The court overruled O54 the objection, and detendant then & there excepted to the ruling of the court.

Witness then answered: * 1 don't remember having any such conversation. I swore in the affidavit for continuance that from the time Sabin was appointed until the time he quit, trom the time he commenced during the time aforesaid, Potts, as treasurer of defendant, never authorized the said Sabin either to draw on him, the treasurer of the ecom-pany, for fifteen hundred dollars or any other sum, | expected to prove it by Potts."

Hlere the witness Becker made the following statement:

*] never knew whether Sabin began work in August or January, what time he commenced, I want to explain that. I don't know; he told me he began in August and afterwards said on account of measurements that had been made he did: not think he began till January. He always represented to me that a portion of the debt was incurred in working No. 3, my claim. Sabin told me he began in August. If I

said January yesterday [ want to correet it now. Sabin told me 685 afterwards. IT could not kuow when he began only trom his say

so. bt never was to the mine to see when the work was done. I did not want the Impression to go about that | made the statements."

Defendant here read in evidence to the jury the letter identified by Beeker and hereinbetore copied, and also the following letter identified by Becker and marked by the court :

Marked * M I."

CENTRAL Criry, 20° June. 1867. FRIEND BECKER:

Dear Sir: T have been quite busy; hence my silence. On my return | got the kevs of the shaftt-house from Elliott and examined the mine thoroughly with Miller & Thompson, and coneluded to give it a trial. Atter USIng My own pocket PrhOTIeY Ll borrowed some money from Mer Hlense and other triends and started Ups got the water out and have

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 205

had a tew runs; think I shall make it pay. If I don't, shall shut it down, You will please remember me kindly to Mr Potts & tell him I 656 thought I should aceept bis kind offer to loan me ten or fifteen hundred dollars, but [ have concluded to run it on my own responsibility and give it a fair tmal; but | cannot promise to lay up any of the first-class ore as tribute until T pay all outlays and refund the money | have borrowed here. Then shall begin to lay up ores for tribute as per understanding.

If | had the mill ard machinery on the mine, as I suggested, I eould make it pay me well besides laying up a pile of tribute ore. But T suppose froin what they talked they propose to wait and see what I can do first.

M'r Potts told me it IT made the Bates pay and had anything as good myself, he would place it tor me. 1 shall do as I proposed and give him the opportunity.

Your most ob't, GEORGE K. SABIN.

Defendant here called JOHN FF. TOrPing, who was sworn asa witness, and testitied as follows :

*T live in Central City; am aequainted with property of defend.

Ost ant on Bates Lode: know Geo. K. Sabin. M'r Sabin once eimploved

me to stop in the compa'y's office when he went east.

I was there J vcas there 7 months. TT went there in the spring of 1S66.

I believe it was in April, ls66. Sabin employed me, [ suppose, for hitmself

. Tle told me he wanted me to stop in the office until he returned or I was relieved by some one.

I received pay by a S600 certificate of deposit: he left it with his brother in Chicago. I dont know who signed the certificate or how it read at all now.

"To was east when Sabin returned here, in Indiana. We passed each other on the plains, but I did not see him. I returned about the Ist August, 1867. | went in December, 1866. I had letters from Sabin after [got home and he had returned to the mountains. I have not the letters now. LT suppose | destroyed them. | received comimunications in those letters in regard to starting up Bates Mine. I think it must have been in January, 1867—was about the time. I received his

letter may be in December, 1366. Ile said he was going to start 685) up the Bates Mine, and wanted some money—wanted me to loan

him a thousand dollars. He said he had returned and was going to start at the Bates Mine on his own account, and wanted some money until he could get the thing going. I[ replied to the first, & received a second Jetter trom him. { wrote him [| would return shortly and let him have the money.

"Tn the second letter he said he did not want the money of me; that he had got a thousand dollars of lense. I believe that is all the corre spondence we had.

* fT returned about the Ist Angust, 1867, and stopped with Sabin at the Union Company's office inost of the time; slept there. M'r Sabir Was there. [rer i till some titse in November, 1867. While I was

'

fhelllie*a] Tlik SOULC there TL bad several couversations with Sabin. He told me he was run ning the mine on his own hook. IT don't reeollect How many times he sald so: several times. [ went with him to the mine once or twice, |

have ore piled up at the mine. dle stated to me that that ore was

204 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

have seen him during this term of court; bad a conversation with him at Bert's store about Bates' mine; | remember he called on me; never had but one talk with him that I remember; it was in 1869, I think, after suit commenced."

Plaintiff here asked the witness to "state whether you told lim that the company never had leased or rented this mine and never would."

Defendant objected to witness answering. The objection was 63% overruled by the court, and defendant then and there excepted to the ruling of the court.

Witness then answered: "1 domt really remember what I did say to him. Lwasvery busy. [think IT said to him the company did not want to lease the mine; domwt know what T said; would not ike to state. There Was many such Conversations happening all the time that I can't remember all of them. TT really dont recollect what I did swear on tormertrial. LT invariably, when they came to me, told them I did not want to lease. | understood all that time that Nichols was going to lease the mine from you and the bank. LP domt recolleet what the conversation was between me and Mr. Nichols; think IT told him [ did) not want to lease it."

Plaintiff here asked the witness: * Did not you, before you went east, state to Charles B. Nhountze that you was going to try and sell this ore to Hill and try and settle up the debt ?"

Defendant objected to witness answering. The court overruled 654 =the objection, and defendant then & there excepted to the ruling of the court.

Witness then answered: " | domt remember having any such econversation. -[ swore in the atlidavit for continuance that from the time Sabin was appointed until the time he quit, trom the time he commenced during the time aforesaid, Potts, as treasurer of defendant, never authorized the said Sabin either to draw on him, the treasurer of the ecom-pany, for fifteen hundred dollars or any other sum. I expected to prove it by Potts."

Here the witness Beeker made the following statement:

*T never knew whether Sabin began work in August or January, what time he commenced. I want to explain that. I don't know; he told me he began in August and afterwards said on account of measurements that had been made he did not think he began till Jannary. He always represented to me that a portion of the debt was incurred in working No. 3, my claim. Sabin told me he began in August. If I

said January yesterday [ want to correct it now. Sabin told me 685 afterwards. I could not know when he began only from his say

so. b never was to the mine to see when the work was done. — I did not want the impression to go about that | made the statements."

Defendant here read in evidence to the jury the letter identified by Beeker and hereinbetore copied, and also the following letter identified by Becker and marked by the court :

Marked * M IL." CENTRAL Ciry, 20° June. 1867.

Friend Becker:

DeAR SUR: T have been quite busy; hence my silence. On my return I vot the Kevs of the shatt-house from Elliott and examined the mine thoroughly with Miller & Thompson, and econeluded to give it a trial. Atter using my own pocket imoney TL borrowed some money trom M'r Hense and other triends aud started up; got the water out and have

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 205

had a few runs; think I shall make it pay. If I don't, shall shut it down, You will please remember me kindly to M'r Potts & tell him I 636 thought I should aceept tis kind offer to loan me ten or fifteen hundred dollars, but [ have concluded to run it on my own responsibility and give it a fair trial: but | cannot promise to lay up any of the first-class ore as tribute until T pay all outlays and refund the money | have bor: owed here. Then shall begin to lay up ores for tribute as per understanding.

If] had the mill and machinery on the mine, as I suggested, I could make it pay me well besides laying up a pile of tribute ore. But I suppose from What they talked they propose to wait and see what I can do first.

M'r Potts told me it T made the Bates pay and had anything as good myself, he would place it forme. T shall do as I proposed and give him the opportunity.

Your most ob't, GEORGE K. SABIN.

Defendant here called JouHn FF. TorprinG, who was sworn as @ witness, and testitied as follows:

TL live in Central City; am aequainted with property of defend.

Ost ant on Bates Lode: know Geo. K. Sabin. M'r Sabin once employed

me to stop in the compa'y's office when he went east.

I was there J awas there 7 months. I went there in the spring of 1866.

I believe it was in April, 1566. Sabin employed me, [ suppose, for hitmself

. Tle told me he wanted me to stop in the ottice until he returned or I was relieved by some one.

] received pay by al =HOO eertificate of deposit ; he left it with his brother in Chicago. I don't kuow who signed the certificate or how it read at all now.

"Twas east when Sabin returned here, in Indiana. We passed each other on the plains, but | did not see him. I returned about the Ist August. 1867. | went in December, 1866.) 1 had letters from Sabin atter I got home and he had returned to the mountains. IT have not the letters now. | suppose | destroyed them. I received communicatious in those letters in regard to starting up Bates Mine. I think it must have been in January, 1I867—was about the time. I received his

letter may be in December, 1566. He said he was going to start 635 up the Bates Mine. and wanted some money—wanted me to loan

him a thousand dollars. He said he had returned and was going to start at the Bates Mine on his own account, and wanted some money until he could get the thing going. I rephed to the first, & received a secoud letter from him. [ wrote him | would return shortly and let him have the money.

"Tn the second letter he said he did not want the money of me; that he had got a thousand dollars of Hleuse. I believe that is all the eorrespondence we had.

'TT returned about the Ist Angust, 1867, and stopped with Sabin at the Union Company's office inost of the time: slept there. M'r Sabin was there. T remained till some time in November, 1867. While I was there IT had several conversations with Sabin. Ile told me he was run hing the mine on his own hook. I don't recollect Low many times he sald so; several times. [ went with him to the mine once or twice, — | have ore piled up at the mine, Ile stated to me that that ore was

206 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

689 the Hill ore, as he called it; that went to the company, & kept the mill ore for himself.

'"T can't tell how may times Sabin spoke to me of running the mine on his own hook ; it was a subject of conversation between us several times. I don't remember at what date [ went to the mine with him; it must have been in the fall, perhaps first of September, 1567, about the time they were building the new ore-house to put the Hill ore into. I domt remember seeing any account-books kept in the ottice while I was there.

On cross-examination witness Topping testified :

" | believe Sabin told me that Goodspeed kept his books or Messenger. I never saw any check or receipt-books there."

The detendant here called THoMAS Hl. POTTER as witness, who testified as follows:

" 7] have already stated what my business was in 1867 & 1868. [have not made an examination of our books to see how the aeceount stood

at Ist day of January, 1867. There may have been an account 690 at our bank January Ist, 1867. I was not there. The account was opened when I went there.

"T have not looked at the account since I was on the witness-stand. I presume [ swore on the last trial what the balance was on Ist October, 1868; it was Ist or 3d."

"This is the bank pass-book of the Union Gold-Mining Company with Rocky Mountain National Bank. I think I made the entries in it the last month or two myself; before that it is partly Goodspeed and partly Reynolds. Think Goodspeed was cashier then & Reynolds book-keeper. First date is March 6th, 1867; last date is October 31st, 1867."

(Witness banded another pass-book.)

"This is a continuation of the same account. These entries were made some by me, some by Goodspeed & Collins, officers & employees of plaintiff! This commences November Ist, 1867, and last January Ist, 1869; December 31st, 1868, is the last entry. These books contain the credits and debits of the Union Gold-Mining Company with Roeky Mountain National Bank; transactions with Sabin as the agent of the company is the way the accounts were kept. The Union Gold-Mining

Company and Roeky Mountain National Bank transacted the EB | business. M'r Sabin, as agent, transacted the business with us.

On first day of January, 1868, the balance was $4,687.78 ; Feb'y Ist, $4,461.93 due banks; March Ist, 1868, $1,191.27 due banks; April Ist, IS6S, $2,106.91 due bank; May Ist, $1,267.37 due bank.

I think | am not mistaken about balance April Ist. There is no erasure there. That is marked out. There was a credit for two notes you spoke of. I can't tell how long they remained on the books. Either Collins or | marked them out; can't tell when."

Detendant here asks, ** What was the capital stock of your bank in the years 1867 & 1868 ?"

The plaintitt! objected to witness answering. The objection was sustained, and the detendant then and there excepted to the ruling of the court.

Defendant here ottered to prove by the witness on the stand that the capital stock of plaintiffin the vears of 1807 & L868) was $50,000 & no more. The plaintiff objeeted and the court sustained the objeetion, and the defendant then and there excepted to the ruling of the court.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 207

On cross-examination witness Potter testified as follows : ! 'Those books are in the same condition that they were when used by Sabin in name of defendant. They are, Rocky Mountain National Bank in account with the Union Gold-Mining Company, orge K. Sabin, agent. That is just as they were when the books re started and the entries made. The two notes 10,000 are the ne 1 mentioned on cross-examination before. They were cancelled by scourt. They were never aid; no money paid on them." Phe defendant here offered in evidence two notes, of which the follow-gare copies:

5000.00, (CENTRAL City, COL., Oct. 3, 1868. eQn demand, after date, we promise to pay to the order of the Rocky ountain Nat'l] Bank five thousand °° dollars at their banking-house, th mterest at percent.a from until paid. Value received. No. 357 due. UNION G. M. Co., GEORGE K. SABIN, Ag't.

On the back of which appears the following : Surrendered open court for cancellation, & cancelled this 26th day of ov., 1S72.

S Ordered by the court. JAMES B. BELFORD, Judge, de. { Revenne-stamp, $2.50, cancelled. } e 5,000.00. | CENTRAL CIiTy, COL., Oct. 5d, 1868. On demand, after date, we promise to pay to the order of the Rocky fountain Nat'l Bank tive thousand dollars at. their banking-house, with interest at per cent. trom until paid. Value received. 306 due. UNION G. M. Co., GhO. K. SABINE, Ag't. On the back appears the following : Surrendered in open court for cancellation, which is accordingly orlered. Nov. 26, 1872. JAMES B. BELFORD, : Judge, de. . | Rev. U.S. stamp, $2.50, cancelled. ] The plaintiff objected to their introduction as evidence, and court justained the objection. Defendant then and there excepted to the rul-ng

of the court.

394 Defendant then called IftuGH BurLER, who was sworn asa Witness and testified as follows:

'"] was a practicing attorney in 1869; had an office in Central City; practice in this district. I have a dispatch which I received from Becker in the spring of that year. I have a dispateh received by M'r Royle & myself, about the 4th day of May, 1869, from M'r Becker. The telegram was dated Omaha, May 4th, 1869. M'r Becker arrived in Colorado about the time mentioned in the dispateh. I don't remember

208 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

the exact time. I would not trust myself to give the day of his arrivay. The dispatch refers to other business—to another case. The best of ny recollection would be that he arrived 4 or 5 days after I got the dispatch, more or less."

Defendant here called GILBERT L. REID, who was sworn as a witness and testified as follows:

'"T have been practicing law for something over 20 years. I have been in State of New York; never practised there; have been in the courts in the city of New York on business connected with the

695 profession and with corporations." "State if vou have looked at this book," (handed to witness.)

"This is considered authorative as the law of New York. Perhaps no edition is considered better authority there."

Defendant here ottered in evidence section 5d of title 3d, chapter 1s, Revised Statutes of New York; which said statute was admitted, and is as follows:

"6S. od. In addition to the powers enumerated in the first section of this title and to those expressly given in its charter, and the act under Which it is or Shall be incorporated, no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers ennumerated and given."

The detendant then offered in evidence the following ecertifieate of incorporation, to the admission of which the plaintiff objected. The objection Was sustained by the court, and the detendant then and there excepted to the ruling of the court.

696 STATE OF NEW YorkK, City & County of New York, ss: | Int. rev. stamp, five cents. ]

We, Edwin Crosswell, George II. Potts, Samuel B. Hare, Leverett E. Rice, Edward A. Quintard, John E. Keeler, Thomas M. Wheeler, Edward T, Sanford, and Theodore Hl. Becker, do hereby certify that we desire to form a company pursuant to the provisions of the act of the legislature of the State of New York passed February 17th, 1848, entitled "*An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," and the several acts amending or extending the same.

And we do hereby certify as follows, viz:

First. That the corporate name of the said company is to be the * Union Gold-Mining Company of Colorado.

Ynd. That the objects for which the said company is to be formed are the working and developing of gold-mines and gold-bearing veins and

slums situated in Gilpin County, in the Territory of Colorado: 697 the raising, extracting, and producing from said mines, veins,

and claims all gold and other metals, ores, and minerals found therein; the preparation of the products of such mines, veins, and claims for market, and generally the doing of any and all aets and things connected with or incidental to the Imanagement & prosecution of the said enterprise.

od. Phat the amount of the capital stock of the said company is to be twelve hundred thousand dollars.

4th. That the number of shares of which the said capital stock is to consist is twenty-four thousand shares of fifty dollars each.

- amr

es

a a

es

ew + eeewe sce

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. %09

Oth. That the term of the existance of the said company is to be fifty years from the date of its formation.

6th. That the number of trustees who shall manage the concerns of

the said company for the first year is nine. 695 ith. That the names of such trustees are Edwin Croswell, George H. Potts, Samuel b. Hare, Leverett E. Rice, Edward A. Quintard, John E. Keeler, Thomas M. Wheeler, Edward L. Sanford, and Theodore H. Becker.

Sth. That the operations of the said company are to be carried on in the city of New York, in the State of New York, and in Gilpin County, in the Territory of Colorado.

The principal part of the business of said company within the State of New York is to be transacted in the said city and county of New York. The active mining operations of the said company are to be ¢carried on in said Gilpin County, Territory of Colorado.

In witness whereof we have hereto subseribed our names this twenty-seventh day of February, A. D. 1564.

Edwin Croswell.

GEO. H. POTTS. JNO. E. KEELER. L. E. RICE. SAMUEL B. ifARE. Kk. L. SANFORD. 690 EK. A. QUINTARD.

T. H. Becker.

T. M. Wheeler. State Of New York,

City and County of New York, ss:

{ Int.-rev. stamp, five cents. ]

Be it remembered that on the 27th day of February, A. D. 1864, before me personally came Edwin Croswell, George H. Potts, John E. Keeler, Leverett E. Rice, & Samuel Bb. Hare, and on the 29th day of February, A. I). 1864, before me personally came Edward L. Sanford, Edward A. Quintard, Thomas M. Wheeler, and Theodore H. Becker, to me known to be the same persons diseribed in and who executed the foregoing certificate, and to me severally acknowledged the execution thereof.

HAMILTON ODELL, Notary Public, New York City.

700 =STATE OF NEW YORK, City and County of New York, ss:

I, Henry W. Ganet, clerk of the said city and county, do certify that I have compared the preceeding with the original cert. of incor. of the 'Union Gold-Mining Company of Colorado" in my office, and that the same is a correct transcript therefrom, and of the whole of sucb original.

In witness whereof [ have hereunto subscribed my name and affixed my official seal this Ist day of Mareh, Ls64.

[NEW YORK, SEAL. | H. W. GANET, Clerk. [Revenue stamp. 5 e. |

(Endorsed:) Filed June 6th, 1567. Harper M. Orahood, county clerk.

The defendant here offered to prove that the two notes in question were cancelled at the request and instigation of the plaintiff in this case, and before the trial commenced, one year ago.

Rec. 1los—l14

210 vU.G.M. CO. vs. ROCKY MT. NAT. BK, OF CENTRAL CITY.

TOL The plaintiff objected, and the court sustained the objection,

and defendant then and there excepted to the ruling of the

court. Here defendant rested.

Plaintiff, in rebuttal, offered to read in evidence part of the deposition of Augustus Kountze & Luther Kountze, as to the notice of repudiation Becker states he gave him. Defendant objected. The court over ruled the objection, and defendant then and there excepted to the ruling of the court.

Plaintiff recalled JoseErpH H. GOODSPEED, who testified as follows :

'"T was here nearly all the time M'r Becker was testifying, and heard his testimony. I heard it in relation to reading a letter to me stating the repudiation of the debt by defendant. [never had any such conversa tion with Becker. Tle never read to me any letter from Werner to my

knowledge. I heard him swear that he repeatedly told me of the 702 repudiation. He never did anything of the kind." On cross-examination, witness Goodspeed testified :

'" 7] said, in my examination the other day, that Becker promised to lay the matter before the board of directors. I never heard from the company at all after Becker went east. [ never told Sabin, in January or February, 1869, that Becker had received a letter from defendant in New York, stating that they utterly repudiated and would have nothing to do with the debt, & that Beeker said he would have to spread the matter before the meeting of the stockholders, and state the matter of the claim to them.

"1 did not tell Sabin that IT wanted him to use all his inthuenece with Beeker to have him go on & have the matter attended to; that it placed me in avery bad position. Never had any such conversation. IT never had any conversation with Sabin, in which [ told him that

Becker had told me that the company repudiated the debt. 703 "TT now live in S''t Joseph. [am a stockholder in the bank. 1 hold #8,000 stock in the bank. I have had it for a good many years. Ll have not stated within five days in Central that the bank held my stock to await the result of this suit."

Plaintiff then called T. Hl. Porrer, who testified :

* | heard Beeker's testimony about what he told me about writing to the directors, and that he would not recognize the claim, &e., & that Sabin had no authority. [heard him so testify, but he did not make any such statement to me in the conversation. I first heard it in court, on the former trial."

Plaintiff! then called CHARLES b. KOUNTZE. Plaintiff asks this question: * Did you hear becker testify that he notified vou that the directors of the company repudiated the debt, and refused to have any thing to do with it ?"

The detendant objected to witness answering, because it is not re buttal. The court overruled the objeetion, and the defendant then

and there excepted to the ruling of the court. 704 Witness answered: "I did, and I say he never notified me until the year betore the last trial. It must have been nearly two vears atter the suit was brought. J] heard him testify that he so notified me when he returned from the East. I say be did not so notify me. IT heard him testify that Ae T requested him to go and see my brother

é

é;

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 211

in New York, &c. In one of our conversations he at one time inquired whether any of my brothers were in New York. I told him some of them were. He wanted to know whether I would be pleased to have him call on them. I said I did not care, or | would be very glad ; something of that kind. That is all l remember of it. Beeker never told me that he could not recognize this debt as that of the company, nor that Sabin had no authority."

On cross-examin ition, witness Charles B. Kountze testified :

* Becker never notified me that the company repudiated till 105 =the year before last trial.

"Becker met me in the back room of the bank, in Denver, on his return trom New York. I don't remember what time that was. We then talked of this matter. He did not then tell me the stockholders would not make the assessment; he said he was unable to get sufficient

o¢k to make the assessment, but that he intended to have it made and that they intended to pay the debt. I did not say that my brother Augustus Was not authorized to represent us in Sew York."

Detendant here asked the witness this question, 'What do you say how: Were het the statements of account between the plaintiff? and defendant sent to your brother in New York, and Omaha, too ?"

The plaintit? objected to witness answering, the court sustained the objection, and detendant then and there excepted to the ruling of the court.

The defendant then offered to prove by this witness that 'not only

was Beeker authorized to eall upon his brother in New York, 706 but his brother in New York was furnished with a statement of this account and authorized to represent this plaintiff there."

The plaintitt objected, the court sustained the objection, and defendant then and there excepted to the ruling of the court.

Plaintit? then called WILLIAM NICHOLLS, who was sworn as a wit ness, and testified as follows:

*T know Becker; knew him by reputation in spring 1869. TIT called on him at drug-store of John Best in Central City, in spring of 1569, to try to lease of him the company Bates mine; I asked him if he would lease it."

Plaintilt then called JOUN O. REYNOLDs, who testified :

"| heard the testimony of Becker that he never paid any debts contracted by Sabin prior to December 16, 1868, and I am sure he paid me £290 \ over for powder & fuse at one time; $215 of it was of that date ;

it was paid in February following." 107 On cross-examination witness Reynolds testified :

[am very sure in regard to that matter. I know he paid me several bills. and good deal of it was for stuff he bought of me himself. The fuse amount of the bill, $189.25, was furnished Ist December, and one charge lsth December; have a memorandum of it.

'IT wish to correct my testimony of the other day. The 8150 did not pay the full account of the bill; it did pay in full for November."

"The main part of that is in T, H. Messinger's handwriting ; itis a receipt for %°/50.00; this balance' the account for November for 20 kegs powder. The powder was delivered in November. Becker took posses-sien of the mine about middle of December. Becker returned me some powder that was got on Ist December. On December Ist, 18658, he got

212 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

$218 worth of powder & fuse. M'r Sabin got it, & after that he returned, in powder, $16.75, which I gave him credit for; this was returned in January or the first part of February; it must have 'O08 been returned January Ist, 1869, for Becker account got 1 keg of powder & 100 ft fuse. AT] charged to Union Gold-Mining Company, same way; & they got some wire rope & more powder afterwards.

"In September, afterwards, they got some stuff. On first Febru ary, 1569, he paid me—somebody paid me—and ino my mind it was Becker paid $159.25; and that account Commenced the tirst day of December; the whole bill for December amounts to S251, paid s1s0.25 In cash, left S45; and he did not pay that till "way next September, When he paid me S19L.00; there are 2 or 5 different charges in December. Then January Ist, 1 keg powder; & in August, 1569, they got some Wire rope. InSeptemberthey got some more powder& stuf, s52.50; some of that was retarned and some discounts made on wire rope, this last when he was running the mine in August and September: he paid

me the balance himself down at his shanty. [ know one charge 709 of S215 is the first day of December; it is so on our books; I

don't know it any other way; [cant remember; [ just looked to the ledger; did not go to the day-book tor the items; [ turned to the ledger and found he had paid the November bill in full; got that 20 kegs of powder and returned part; did not get lis bill; had powder on hand and did not want any; that receipt just balanced the November bill xaetly : this is the check."

Here detendant offered in evidence cross-interrogatory 126, and the answer thereto, of Sabin deposition, to which the plaintiff? objeeted, because it has been stricken out by the court and suppressed. It is not relevant. The court sustained the objection, and defendant then and there excepted to the ruling of the court,

Which was all the evidence given in said cause.

The detendant then moved the court upon the evidence atoresaid, to instruct the jury as follows 710 If the jury believe trom the evidence that George WK. Sabin entered inte an arrangement or agreement with the detendant in the CIty of New York, whereby he was to come to this Territory, and if he so eleeted to do he could enter into possession and work the mine of the detendant at his own expense, and not at the expense and on account of the defendant, and pay to the defendant a certain portion of the ore taken from the mine tor the use of the mine, and pay himself and all the expenses of working the mine from the balance of the ore taken from the mine; and that under the arrangement or agreement so made with the defendant the said Sabin entered into and worked the mine of the detendant, then the relation existing between the said Sabin and the defendant was not of that principal and agent, but that of landlord and tenant, and is governed by the same Jaw as in '11 cases of working land for share of the CrOPS, and the said Sabin became the lessee of the deteudant, and the said defendant is in no was liable for anv sam of moneys borrowed by the said) Sabin, and

¢ } vas Vy 'ee 1 *) } > rc _ mats sc. ce ' a ts CAUTOT Oe mad ale ble | without a Spectai promise Th Wrilng Invade ane > . , i. Sloned Ov the tendan *? } ¢ } " } r i. , } , < ' > = hy . . owe. f he jury believe from the evidence that George Ik. Sabin made

7

an arrangement or agreement with the defendant whereby, he was to enter into the mines ot the defendant and work and mine the same, on his own account, and was to mine and deliver on the top of the ground

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 213

all the first-class or smelting ore as rental or tribute for the use of the mine of the defendant, and was to receive no salary trom the defendant tor his services, but was to pay hitself and all expenses of working the mine from the proceeds of the balance of the ore mined from said mine, and that the defendant was not to furnish any money tor the working

of said mines, and that Sabin was to contract no debts charg'able 712) tothe defendant, but Was to quit work on said mines whenever he

could not pay all the expenses and pav himself trom the lower grades of ore, then he jury must find tor the defendant, unless they further find from the evidence that the defendant in this suit after said debt was contracted by Sabin assumed it and promised the plaintiff in writing to pay the same.

od. If the jury find from the evidence that the defendant was and is a forelgen corporation, organized and existing under the laws of the State of New York, and that George K. Sabin was its agent in the Territory of Colorado, they must tind tor the detendant, unless they further find from the evidence that the agent Sabin, by virtue of his agency under the provisions of the charter of the defendant, was clothed with the power of contracting debts by borrowing money in the name of the defendant, or that a special authority was conferred by the detendant

corporation upon Sabin to borrow money in its name and on its W150 account, or that the plaintiff bank was authorized by the defendant corporation to loan money to Sabin on cheeks drawn by Sabin in its name,or that prior to Sabin' dealings with the plaintiff Sabin had, in the name and on the account of the defendant, borrowed money from other parties in the same manner, and that the defendant had, with full knowledge of the nature of the transaction, recognized debts so contracted by Sabin as its debt and paid the same, and that the plaintiff had knowledge of such transactions on the part of Sabin and the defendant prior to and at the time of its dealings with Sabin, or that the defendant after the dealings of Sabin with the plaintiff, with full knowledge of all the material fact', adopted the acts of Sabin in his dealings with the plaint-itf, & promised the plaintiff to pay it the debt contracted by Sabin. 4th. If the jury believe from the evidence that Geo. K. Sabin was the Inining agent or superintendent of the defendant in Colorado, then the court instructs you that as such agent or superintendent Sabin had no power or authority by virtue of such agency to borrow money in '14 the name of the defendant, and that the jury should find for the defencant, unless they further find from the evidence either that the defendant corporation invested Sabin with special authority to borrow money in its name and for its use, or that the defendant afterwards, with full knowledge of all the material facts, ratified and adopted the acts of Sabin in his dealings with the plaintiff in its name.

Sth. The court instructs the jury that a corporation is bound by the contract and act of its agent so far as the agent acts within the scope of the authority actually conferred upon him by the corporation, but no further.

Gth. If the jury finds from the evidence that George K. Sabin was the agent of the defendant, and was employed by the defendant to manage Its mines, and that he was instructed by the defendant to work the same

so long, and only so long, as he could work the same and pay all 15>) expenses from the 2d & 5d class ore, and put aside the Ist class ore, and to quit and abandon work when he could not do so, and that he was further instrneted to contract no debts, then that the said Sabin Was a special agent of the defendant, acting under limited and circumscribed authority, and that the defendant is not bound by any of his acts

214 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

exceeding the limits Gf the authority conferred upon him by the defendant. (7th. The 7th instruction to the jury is crossed out in original record

8th. The court instructs the jury that time can be no ratification of the unauthorized acts of another by silence puiescenec, unless the party sought to be charged had full knowledge of all tie material facts

necessary to a complete uuderstcuding of the transactions, and that the burden of proving such knowledge in the possession of the party sought

to be charged is in the party claiming such ratification, and, there 716 ~~ fore, if the jury believe, from the evidence, that the defendant

corporation had no knowledge prior to the 16th day of April, 1569, when this suit was brought, that the money obtained by Sabin from plaintiff was employed and used in working the west half of the Discovery claim, and claim numbered three west on the Bates lode, and running the Douglass mill, and in paying Sabin a pretended salary, and as hire for the use of his engine while doing his own work, then that silence on the part of the defendant, and a failure to disown or repudiate

the demand of plaintiff, cannot be considered as any evidence of

ratification on its part of the acts of Sabin in contracting the liability In question. 9th. The court instructs the jury that if they believe from the evidence that an arrangement was made between T. H. Becker, president of the defendant, and the officers of the plaintiff, whereby Becker was to submit the claim of plaintiff to the shareholders of the defendant at 7170s their annual meeting, and that the meeting was held in New York on the 5th day of April, 1869, and that this suit was commenced ii this Territory on the 16th day of April, 1569, then that the jury are to consider these facts in determining whether the plaintiff had notice of the result of the meeting of the shareholders, and then dise:eved or repudiation of the claim of the plaintiff at such meeting so held on the oth day of April. 10th. If the jury believe trom the evidence that on the 16th day of December, A.D. Ts6s, PT. TL. Beeker, the president of the defendant, com. mumeated to his company, in New York, by letter, the claims made by plaintiff against the defendant on that date to him, and received from the officers of the company, in' New York, letters disowning & repudiating the transaetion, and communicated such disavowal or repudia tion to the officers of plaintiff, then such communication of the disavowal or repudiation was notice to the plaintiff ¢f the fact of such disovowal or repudiation on the part of the detendant, and that in determining '1S whether or not such disavowal or repudiation was communicated to the officer or officers of plaintiff, the jury will take into econ sideration all the evidence im regard to conversations had between officers of the plaintiff and the president of the detendant, up to the 19th March, 1869, in regard to the president of defendant going to New York, calling a meeting ot shareholders of the defendant, and laying the matter betore them at the anunal meeting in April, 1869, and trying to get ¢

Lith. The court instructs the jury that silence ou the part of the defendant., after having been loformed of the claim of the plartith, ane failure to disown Or repudiate the claim when tntormed of its existence, do not of themselves constitute a ratification of the aets of Sabin, ner

se

*s

Cu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 215

render the defendant liable to pay the debt, and that such silence and failure to disown are at best but evidence to be considered by the jury, in connection with all the other evidence on that subject, in de "19 > termining whether or uot the defendant intended to adopt and ratify the acts of Sabin in contracting the debt in question. I2th. The court instructs the jury that where the duties and powers of a corporation are created or regulated by the aet of Incorporation or the by-laws of a company, persons dealing with such officers are charg. able with notice of all the limitations and restrictions upon his authority contained there, and the burden of proof is upon them to show that debts contracted by bim are debts of the corporation. loth. Phe court instructs the jury that the plaintiff, in dealing with the agent of the defendant, was bound to inquire into the nature and extent of bis agency, and if plaintiff tailed to make such inquiries and remained in ignorance of the real extent of the agent's authority, it is no excuse in law, and the want of such knowledge on the part of 720 the plaintiff cannot prejudice the defendant in this suit. lith. The court instructs the jury that if they find from the evidence that George K. Sabin was the agent of the defendant, duly appointed and empowered to conduct and manage the business of mining at their mine in Colorado, that that alone would not authorize the agent to borrow money on the credit of the defendant, and that they must find tor the defendant unless they further find from the evidence that the agent, Sabin, was specially authorized and empowered by the defendant to borrow money in its behalf, or that the defendant afterwards ratified and adopted the act. loth. The court instructs the jury that if they believe from the evtdence that George Kk. Sabin was the agent of the defendant, and, while acting as agent, borrowed the sum of money in coutroversy of the plaintiff and expended the same in the business of the defendant and 12] in paving its debts, that the money so advanced by the plaintiff, though so applied, created po debt against the defendant; but that the jury must farther tind from the evidence (before they can find for the plaintiff) in addition to the mere facts of the loan from the plaintiff to Sabin and the application of the money for the benefit of the defend.

ant, that the defendant had aythorized the plaintiff to loan the money

te Sabin, or Sabin to borrow the money in controversy from the plain-ttt, or had afterwards ratified and adopted the act. loth, The court further iustructs the jury that if they find from the evidence that George IK. Sabin was the agent of the defendant, daly appointed to work and manage its mine, and further find from the evidence that, as such agent, he had authority to contract debts in the name of the defendant tor goods, supplies, and labor necessary in prosecuting the work of mining, that these facts alone will not warrant them 722 oin finding for the plaintiff; that they must further find from the evidence that Sabin hada special authority from the defendant to borrow money in its behalf, or that the detendant has since ratified the act. 17th. The court instructs the jury that in case of a revocation of a special or limited agency, the law does not impose on the principal any duty of publishing or giving any general notice of such revocation or dissolution of sach agency, and any omission to give such general notice will not render the principal lable for any acts done in the name of such principal & with others than those with whom such principal had had dealings through such agent before such revocation or dissolution

, eveu if such subsequent dealings Ly the pretended agent were done

216 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

within the limit of such special power of the person who had before that time been such special agent, unless such special agency was constituted in writing and the person who had been so constituted agent had 723 been permitted to retain the writing so appointing him such agent, and by means of such written appointment had traudalently held himself out as still being such agent and by that means procured the money In controversy. sth. The court instructs the jury that to prove a ratification of a con tract made without authority from the defendant corporation, it must clearly appear fromthe evidence in the case that the defendant had tull knowledge of such contract, and that such acts of defendant, relied upon by the plaintiff as a ratification, were intended by said detendant to re late to the performance of such unauthorized act. 19th. The court instructs the jury that even if they do beheve trom the evidence that (george Ik. Sabin was the accent of the defendant and was also authorized to draw checks in its mame, and did in tact draw them in the name of the defendant and directed the sameto the plaintith, when the defendant had no funds in the possession of the plaintitt

724 against which said cheeks were drawn, the officers of the plaimtitt paid said cheeks out of the funds of the plaimtitf, said acts) of

Sabin, and also the act of the plaintiffs officers in paying the same out of said funds of plaintiff, were legal aets, and were tn violation of law, and the plaintiff is not entitled to recover against the defendant in this form of action.

20th. The court instructs the jury that even if they,do believe trom

the evidence inthis case that George IX. Sabin was the general agent of

the defendant and was duly authorized to draw cheeks in the name, and did in facet draw them in the name of the detendant and directed the same to the plaintiff when the defendant had no funds in the possession of the plaintiff out of which to pay the same, such drawing was an illegal act on the part of Sabin, tor he could draw on the plaintitt only when defendant had funds there against which to draw and out of which to pay the checks as drawn, & if Goodspeed, as the cashier of the plaintiff, paid the cheeks so drawn out of the funds of the plaintiff, 25 0 such payment was an unlawful appropriation of the funds of plaintiff by its officers and was not a legitimate aet of banking and not authorized, but was prohibited and made a crime by the laws of the United States under which the plaintiff was incorporated and cerived all its power and authority to do a banking business: therefore the plaintiff cannot recover in this action, for there Is ne law authoriz ing the plaintiff to waive a crime and sue in an action of assumpsit tor money by its officer paid out in violation of a statute of the United States, but if it is entitled to recover at all in an action at law it must be a special action on the case and not in assumpsit, for when property or money is obtained by committing a crime there can be no assumpesit, either express or implied by law. "ist. The court instruets the jury that if they believe from the evi dence that Sabin, while acting as agent of the detendant, or claiming to act as agent of defendant, by some arrangement with the plaintitl 726 or some of its officers, and without the knowledge or authority or consent of the detendant, draw checks, in the name of the defendant, upon the plaintiff when there were no funds or money in plaintitt" bank belonging to detendant out of which to pay said checks, and that some of plaintiff's officers paid such checks and charged the money so paid to the defendant without its knowledge or consent, and that this suit was brought for money so obtained by Sabin

cat |

*@a

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 217

from plaintiff by overdraft, then that such proceeding was a misapplication of the moneys of the bank by its own officers, for which they and their securities are liable to the bank, and a fraud upon the defendant, in which the officers of the bank participated, & that the plaintiff cannot recover in this action from the defendant, but must look for redress to its officers & their securities & those who participated in the transaction. Y?end. The court instructs the jury that whenanagencey is known 127)~—S oto: have existed for any one purpose or business and there is no evidence tending to show that it had not been terminated, the law never presumes that such agency existed for any other purpose or extended te any other business, &, therefore, even if you behevefrom

theevidenecein this case that Sabin was at any time the agentof the defendant for working or superintending the working of the mines of

the defendant and with the funds provided by the detendant, vou cannot from that agency either presume or inter that such agency either existed for. or extended to, or in any way authorized Sabin to borrow money on the credit of the detendant. even for the working of such mines. An agent appointed to work a mine or superintend the working of mines is

not thereby authorized to borrow money on the credit of the owner of

such mine to work the same. Before you can find for the plaintiff in this case, you must be satistied from the evidence: Ist, That the money in controversy was borrowed in its name: also, 2nd, That the act of borrowing was done by Sabin in the exercise and also within the 728s limits of the power conferred on him by the agency; or, 3d, That defendant corporation ratified the act. 25d. If the jury believe from the evidence that Theodore H. Becker wrote the letter of January Ist, 185%, directed to the president of plaint-itt in his private capacity & not as president of defendant, and refused to sign the same as president, then that the writing of the letter was his own private act and not official, and nothing in said letter contained would be any more binding or obligatory upon the defendant corporation than the letter of any other stockholder or the letter of a stranger. 24th. The court instructs the jury that although T. H. Becker was president of defendant, his private acts, declarations, and promises are uo more binding or obligatory upon the defendant than the acts, declarations, and promises of any other stockholder or stranger, and before the jury can tind the defendant bound by any acts, declarations, or prom. ises of Becker, they must find from the evidence— 429 Ist. That such acts were done & declarations and promises made by Becker as president of the defendant in his official eapacity with the intention of binding the defendant by such act, declaration, and promises. 2nd. That Becker, by virtne of his office of president of defendant, had, uncer the charter or by-laws of the corporation defendant, power to borrow money, and to bind the company by promising payment of money borrowed by others in its name by overdratt & without its knowledge; or, 3d. That the defendant corporation had specially empowered Becker to make the declaration and promises by him made, and that they were made tor and in its behalt. Yoth. The court instructs the jury that the paying out of the money of a bank by its officers upon overdratt 1s a misapplication of the funds 7f the bank by its officers, for which they & their seeurities are liable to tie bank. & a proceeding that cannot receive countenance in a 730° court of justice so as to charge the money so paid to third par.

218% U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

ties who had no knowledge of and not participate in the misapplication, nor receive the money so paid out.

26th. The court instructs the jury that if they tind from the evidence that Sabin was the agent of the defendant for the purpose of carrying on ifs mine, and taking the ore from same \ having it erushed & the gold taken out, then that Sabin had no wight or authority by virtue of such agency to borrow money in the name of the defendant, & the jury cannot find the defendant liable for money so borrowed by Sabin, even af was used in working the mine of the detendaut, unless they further find from theevidenee that Sabo tad speciml authority from the detend - ant to borrow ta Hie\Y bits tame, or tliat detendant had subsequently ratificd the act.

27th. The court instrnets the jury that af they believe from the 1 evidence that from and atter the loth December, A. D. 1868, the plamntiif in this case suffered no loss, and its status was not changed, and the defendant received no advantage by its fatlure to disavow the debt in question and repudiate it to the plaintiff; and that during the time from Deeember, 1868, to April, 1869, when this suit was brought, the only act attempted to be done by the plaintiff was to impose this debt upon the defendant and render it lable to pay it or get it to assume and promise to pay it, Which would only be injurious to the defendant. Then, even if there had been no disavowal and repudiation of the debt by the defendant, the jury cannot presume a ratification by acquiescence and the negleet of the detendant to disavow the debt between the 1l6th day of December, A.D. Is65, & the time of bringing this suit by the plaintiff.

Vsth. Uf the jury find from the evidence that the plaintiff paid the

cheeks of Sabin, drawn by him in the name of the defendant, 752 when there was no money in the plaintiff' bank to the credit of

the defendant, and that such course of dealing was continued tor along time, and the money in controversy Was obtained in that way, and that plaintiff not only did not notify the defendant, but kept the knowledge from the defendant, then that the plaintiff participated in the fraudulent act otf Sabin in creating the debt and cannot recover in this action unless they find that the corporation, with a full knowledge of all the facts, ratified the aets of Sabin.

POth. Phe court instructs the jury that if they believe, from = the evidence in this case, that the plamtiff was, at the time of the contracting the debt in controversy, a banking corporation under the laws of the United States, then it was limited by said laws to the business of bank- Hig and the exercise of such incidental powers as are necessary CoO carry on the business of banking, as by discounting or negociating promissory Totes, drafts., bills of exchanee, & other evidences ot debt, as limited by said laws of the United States, and the advancement of money to pay cheeks, drawn by Sabin as its agent, when de fendant had no funds in the possession of the plaintiffout which to pay the same, is not legitimate power or daty, and the plaintiff had no power or authority under said law to advance the money to pay the Cheeks so drawn, & therefore the plainti® is not entitled to recover im this action for the money so advanced to pay such cheeks.

oOth. If the Jury beheve trom the evidence that Sabin was not the agent of detendant, or that be was the agent but exceeded his authority in borrowing money in the name of the detendant and the detendant faiied to disavow the aet and repnadiate the debt, then that such silence X failure to disavow is not of itself a ratification on the part of the de fendant, but if is a question whether such silence Is a reasonable pre-

= j ~w ww

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 219

sumption of. ratification, which will depend upon the question whether the plaintiff, from its previous course of dealing with the defendant, had reason to suppose the defendant would notify them if he did not 734 intend to notify it, and whether the delay and silence of the defendant worked any injury and was a fraud npon the plaintiff. sist. The court instruets the jury that in case of a revoeation of a special or limited agency the law does not impose on the principal any datyv of pablishing or giving any general notice of such revocation or dissohition of such ag 'ney, and any omission to give such general notice Will not render the price:pal liable for any act done in the name of such principal has had deahugs through such agent before such revoeation or dissolution, even if such subsequent dealings by the pretended agent were done within the limits of such special power of the person who had before that time been such special agent, unless such special agency Was constituted in writing and the person who had been so constituted agent had been permitted to retain the writing so appointing him sach agent, and, by means of such written appointment, had #39 fraudulently held himself out as still being such agent, and by that means procured the money im controversy. 32nd. The court instructs the jury that even if they believe from the evidence in this case that Sabin has at any former time been the duly appointed superintendent of the detendant, and has had full power and authority to work the mines of the defendant, even then such agency Was not a general agency, but only a special or limited agency, & it did not authorize him to borrow money on the credit of the defendant. 35d. If the jury believe from the evidence that George K. Sabin was the agent of the defendant & exceeded the special and limited authority conferred upon him by the detendant in contracting the debt with the plaintiff, his act') so far as the defendant is concerned, are even nullities & in no way bind the defendant, and the plaintil cannot recover the money in controversy from the defendant unless the jury further 600 find from the evidence that plaintiff made due inquiries and used due diligence to aseertain trom the defendant the extent of Sabin's authority, and that the plaintiff? was misled by the defendant, and de tendant held Sabin out as having the powers & authority to contract debts and borrow the money in controversy for & on account of the de. tendant, or that the defendant has, since the contracting of the debt by Sabin, ratitied & adopted the act of Sabin in contracting the debt. O4th. If the jury believe from the evidence that Sabin was not author ized to eontraet in detendant's name the debt sued for in this case, & that about the sam of s7,000—part of debt sued) for—was used and applied by Sabin payinent to limself for salary as agent of detend ant, & that he was not agent and was not entitled to such salary, such amount so received by Sabin must be deducted from plaintiff" claim, even if you tind for plaintiff, unless vou further find that the de- 137) tendant, with knowledge of the tact that said Sabin received said seven thousand dollars tor salary, adopted and ratified the whole debt claimed by plaintitt 30th. If the jury believe from the evidence that one-half of the alleged overdratt tor which this suit was brought was expended & obtained for the purpose of mining Claim No. 5 west, on Bates lode, by the witness Sabin. under some arrangement between himself & Beeker. & that the defendant was not a party to the same, the amount he used must be dedneted trom plaintiff claim, even if vou should find for plaintiff. O6oth. Tf the jury beheve from the evidence in this case that George K. Sabin was the mining agent or superintendent of defendant, then as

220 U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. such superintendent or agent he had no authority to borrow money in its name & on its behalf, and the defendant can only be held liable upon proof that the board of trustees or directors of defendant had conferred upon Sabin a general authority to borrow money on its defend- 738 ant') credit or a particular authority to borrow money trom the plaintiff by cheeks & overdraits, or that upon such lending & advancing of the money in controversy the conduct of the defendant corporation or company was sach as to create a well-founded belief in the plaintiff that such general or special powers had been granted said agent or superintendent, & that knowledge of such acts of said defend ant had come to & were possessed by platnti® before lending & advance ing said money; & if the jury do not so tind, then they must tirst find from the evidence in this case that the acts of Sabin, the pretended agent, although unauthorized in the first place, were subsequently, & with full knowledyve of all the facts relating thereto, ratitied by the board of directors or stockholders of the defendant, & eating Im a meeting thereof duly in session. The acts of an officer of a corporation do not bind such corporation unless such acts. are within the scope of the au. thority & powers of such oflicers, 39 osth. The court instructs the jury that if they find from the evidence in this ease that the defendant is liable for the debt in controversy, or any part thereof, then they must deduct the amount of the two notes for tive thousand dollars each at the date thereot. and also the amount of the said debt in controversy that was paid Sabin for or as his salary as superintendent or agent of detendant, & also the amount of money advanced to Sabin by plaintit® & by Sabin expended in the development & working on claim number three west, & also on the east half of the Discovery claim on the Bates lode, as shown by the evidence in the case.

ovth. If the jury believe from the evidence that the witness Becker, on behalf of defendant, promised plaintuY to submit its claim to the defendant at its annual meeting in April, A. D. 1860, tor rati fication or repudiation, & that he did so submit it at such meeting of

defendant on the 5 or 6th day of April, and that the defendant 740) rejected said claim, & that the plaintiff commenced this suit before

the expiration of a reasonable time in which Becker could notify it of the alleged repudiation, then the question whether Beeker did or did not notify plaintiff of such fact is immaterial.

10th. If the evidence in this case is so conflicting that vou cannot determine what party has the right of the issue, you must find tor the defendant.

Which instruetions & each & every of them the court refused to give to the jury; & to the refusal of the court to give the same, & to the refusal to give each & every thereot, the detendant then and there excepted.

And the ecourt gave to the jury, at request of defendant, the toliowing Instructions : Ist. The plaintiff is bound to establish every material faet by a pre ponderance of evidence, & iit has tailed te do so you must tind i141 tor the defendant. ?nd. The deposition of the witness Sabin having been taken out at the instance of plarntill and read betore you by its attorney, the plainti? cannot be heard to say that he is uuworthy of credit or belief,

U. G. M. Co. V8. Rocky Mt. Nat. Bk. Of Central City. 221

And the court instructed the jury, at the instance of plaintill, as follows:

Ist. Whether Sabin was or was not the agent or superintendent of Cefendant isa question for the jary, to be determined by all the evidence Le ore them. |

2nd. If the jury believe from the evidence that defendant did know that Sabin was doing business in its name & claiming to be its superintendent. 0% allowed said Sabin to continue to do business in itS name, then the relation of Sabin to the detendant is the same as if he had been

In the first place authorized to do business in its name, 142 Sd. It the jury believe trom the evidence that Theodore H.

Decker was president of the defendant in the years 1567, 1S68, & 1869, and that while he was president he had the active charge or management of detendant's affairs, & while acting in that capacity he recognized George K. Sabin as superintendent or agent of defendant, then the jury may take such recognition ith consideration in determin Ing Whether Sabin was the agent of defendant, or defendant had allowed him to assume that he was agent.

4th. It the defendant did disavow the acts of Sabin in borrowing the money trom the plaintiff, it was incumbent on the defendant to notify the plaintiff of said disavowal, & it is necessary for the defendant the giving of such notice.

Sth. The court instructs the jury that if they believe from the evi dence that the defendant did notify \ugustus Kountze that it repudiated

the debt contracted by Sabin in its name, that such repu- 745° diation did not bind the plaintiff, unless they also find that said

Augustus Kountze was an officer of plaintiff, or its agent to re-delve such notification,

To the giving of which said instructions, at the request of plaintiff, and to the giving of each & every of them, the defendant then & there excepted.

And the court, on its own motion, instructed the jury as follows ;

Ist. If Sabin obtained money in the name of defendant from plaintiff & had authority to that end. the transaction amounts to a loan to defendant, tor which action may te maintained by plaintiff. Whether money Was obtained from plaintiff in name of defendant, & the amount of it, is the tirst question to be determined; & if you find that money was so obtained, the question then to be considered is whether Sabin had authority to pledge the credit of defendant in that manner.

Vid. Upon the testimony in this case you may assume that,

7440 prior to the 16th day of December, 15868, Sabin had no authority

trom defendant to borrow money in its name, for if he was agent

of defendant during the years 1867 & 1868, as claimed by plaintiff, the

borrowing oft money Was hot Within the powers conferred upon him; but

if he obtained money in defendant's name & apon its credit, it was competenpt

for the defendant to ratity the act & assume the indebtedness incurred in its name.

3d. The question of Sabin's agency in the years 1867 & 1868 is only important in connection with the question whether detendant ratified the dealings mentioned by witness as having occurred between Sabin & plaintiit: tor less evidence of ratification by the principal is required to establish the taet im the cause when an agency exist & the agent has exeeeded his authority than is Perey red in the case of an aet done DY One Who had no authority whatever from the person whom he assumes to

represent.

cF ~ f

222 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

4th. If you find from the evidence that Sabin was the agent of 745 detendant during the years 1867 & 1868 to operate its mines in Gilpin County, & that he obtained money from plaintiff which was expended by him in the business of defendant, & that such money was demanded by plaintiff or its officers from the defendant, then you should consider whether the defendant, with knowledge of the fact, assented to such demand & approved the act of Sabin in obtaining the money. Whenan act has been done by an agent in excess of his au thority, if the principal, upon being informed of all the facts, fail to disavow the agency within a reasonable time, his silence may be received as evidence of his assent to, and acquiessence in, the act done in his hame. 5th. Therefore, if Sabin borrowed money from plaintiff in defendant's name, and the defendant was intormed of such borrowing through its president, and of the manner in which the money was expended by him, and failed to disavow Sabin's agency within a reasonable 146 = time after such notice, it is for you to say as matter of fact whether, by such failure to disavow the alleged agency, the defendant assented to the act of borrowing. 6th. [fin your opinion the evidence discloses a promise by Mr Becker to pay any sum of money to plaintiff, the defendant is not bound by such promise. Evidence of interviews between officers of plaintit® & M'r Becker was received in order that you might determine whether a demand for money was made by plaintiff upon defendant, & whether M'r Becker was informed of the alleged dealings of Sabin with the plaintitl, & not for the purpose of showing any promise on the part of defendant. 7th. If you find for plaintiff you are at liberty to compute interest at the rate of ten per cent. per annum upon the amount due, from the Loth day of April, 1869, the date of the commencement of this sult, to the present time, To the giving of each & every of said instructions by the court, 447) On 1ts own motion, the detendant then and there excepted. And therefore the said jury gave their verdict against the defendant as follows, to wit: Rocky MOUNTAIN NAT'L BANK OF CENTRAL } City (

us. UNION GOLD-MINING COMPANY.

We, the jury, find for the plaintiff the amount here attached, $30,558.32, thirty thousand three hundred & fifty-eight dollars and thirty-two cents. We figured the interest on $20,707.51 at 10 per cent. per annum.

A. ROONEY, Foreman.

And thereupon the court said, with the consent of the jury, he named just the verdict, and no objection being made he did so.

Teller.

Whereupon the counsel tor the defendant tiled the following motion for a new trial: :

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 223

745 TERRITORY OF COLORADO, County of Jefferson, ss:

In district court of Jetterson County aforesaid, November term, A. D.

ISo3. Rocky MOUNTAIN NATIONAL BANK OF CEN- ) tral City 1 rs, {

Union Gold Mining Company Of Colorado. §

And now comes the said defendant, by its attorney. and moves the court to set aside the verdiet of the jury herein, & to grant a new trial of this cause tor the following reasons, to wit:

First. Because the court erred in admitting irrelevant, immaterial, & improper testimony offered by the plaintiff, and against the objection of defendant.

Second. lecause the court erred in excluding relevant, material, 749 XA proper testimony offered by defendant.

Third. Because the court erred in giving erroneous instructions to the jury offered and requested by plaintiff.

Fourth. Because the court erred in refusing to give to the jury proper & correct instructions asked tor by defendant.

Fifth. Because the court erred in giving improper & erroneous instructions to the Jury on its own motion.

Sixth. Because the verdict of the jury is contrary to the law of the ase.

Seventh. Because the verdict of the jury is contrary to the evidence.

Eighth. Because the court erred in overruling the defendant's challenge to the juror Perrin, and allowing him to be empannelled as a juror to try the cause.

Ninth. Because the damages assessed by the jury are excessive. 7) Tenth. Because the proceedings are otherwise informal, uncertain, eroueous, and insufticient. HUGH BUTLER, G. B. REED, Def't's Attorneys.

But the court overruled the said motion and gave judgment on the said verdiet of the said jury against the defendant, to which the defend ant then and there excepted ; and inasmuch as the matters aforesaid do hot appear of record, the counsel for the defendant presents this bill of exceptions, and prays that the same may be signed and sealed by the court and made part of the record in said cause, and it is accordingly done,

(Signed ) MOSES HALLETT, Judge, de. l have examined this bill of exceptions & I think it substantially cor. rect, aud I agree it may be signed & filed as correct. H. M. TELLER, Atty for Plaintiff.

iol An aet to authorize the formation ot corporations for manufac turing, mining, mechanical, or chemical purposes. Passed February 17. 1548.

The people of the State of New York represented in senate and as sernbly do enact as follows : SECTION 1, At any time hereatter any three or more persons wlio

224 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

may desire to form a company for the purpose of carrying on any kind of manufacturing, mining, mechanical, or chemical business, may make, sign, and acknowledge, before some otticer, competent to take the acknowledgement of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on and a duplicate thereof in the office of the secretary of state, a certificate In writing, in Which shall be stated the corporate name of the company and the objects for which the company shall be formed, the amount of the cap ital stock of the said company, the term of its existence not to exceed fifty years, the number of shares of which the said stock shall consist ;

the number of trustees and their names who shall manage the 792. concerns of said company the first vear, and the names of the

town and county in which the operations of said Company are to be carried on,

SECTION 2. When the certificate shall be tiled as aforesaid the person Who shall have signed and acknowledged the same and their successors shall be a body politic and vorporate, in fact and in name, by the name stated in such certificate; and by that name have successors, and shall be capable of suing and being sued in any court of law or equity in this State, and they and their successors may have a common Seal, and may make and alter the same at pleasure, and they shall by their corporate name be capable in law of purchasing, holding, and conveying any real and personal estate whatever which may necessary to enable the said company to carry on their operations named in such certificate, but shall not mortgage the same or give any lien thereon.

SECTION 3. The stock, property, and concerns of such company 7o5 shall be managed by not less than three nor more than nine trustees who shall respectively be stockholders in such company, and citizens of the United States, and a majority of whom shall be citizens of this State, who shall, except the first vear, be annually elected by the stockholders at such time ahd place as shall be directed by the by-laws of the company, and public notice of the time and place of holding such election shall be published not less than ten days previous thereto in the newspaper printed nearest to the place where the operations of the said company shall be carried on; and the election shall be made by such of the stoekholders as shall attend for that purpose, either in person or by proxy. <All eleetions shall be by ballot and each stockholder shall be entitled to as many votes as he owns shares of stock in the said company, and the persons receiving the greatest number of votes shall be the trustees, and when any vaeaney shall happen among the trustees by death, resignation, or otherwise, it shall be jot filled for the remainder of the year in such manner as shall be provided for by the by-laws of the said company.

SECTION 4. In case it shall happen at any time that an election o trustees shall not be made on the day designated by the by-laws of the said company when it ought to have been made, the company tor that reason shall not be dissolved, but it shall be lawtulon any other day to hold an election for trustees in such manner as shall be provided tor by the said by-laws, and all acts of trustees shall be valid and binding as agalust such company until their successors shall be eleeted.

SECTION oO. There shail be a president of the company, who shall be designated from the numbers of the trustees, and also such subordinate Officers as the COMP ATS by its by-laws may designate, who may be eleeted or appointed, and required to give such security tor the faithful pertormance of the duties of their office as the company by its by-laws may require,

%

SL. Mn aici, iy nll

eet as -

I

he Ree eee eee

a

RMIT cee we

ae reas -

ene

ee enc ene

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 225

TOO SECTION 6. It shall be lawful for the trustees to eall in and

demand trom the stockholders, respectively, all such sums of money by them subscribed, at such times and in suehsayments as installments as the trustees shall deem proper, under the penalty of torteiting the shares of stock subscribed tor and all previous payments made thereon, if payment shall not be made by the stockholders within sixty days after a personal demand, as notice requiring such payments shall have been pultished for six successive weeks in the newspaper nearest to the place where the business of the company shall be carried on as aforesaid.

SECTION 7. The trustees of such company shall have power to make such prudential by-laws as they shall deem proper for the management and disposition of the stock and business atlaurs of such company, not luconusistent with the laws of this State, and preseribing the duties of

Officers, artificers, and servants that may be employed, for the ap- (oO) pointment of all otfeers, and tor carrying on all kinds of busi hess Within the objects and Purposes of such COMPAany.

SECTION S. The stock of such company shall be deemed personal estate, and shall be transterrable in sach manner as shall be prescribed bv the by-lawson the company, but no shares shall be transterrable until all previous calls thereon shall have been tuliv paid in as shall have been declared forfeited tor the non-pavinents of calls thereon; and it) shall not be lawtal for such company to use any of their funds in the purchase Of any stock in any other corporation.

SECTION & The copy of any certitieate of incorporation filed in purstiainfot this aet, certified by the county clerk, or his deputy, to be a true conv and ot the whole of such certificate, shall be received in all courts ptivelegalevideneeot the facts therein stated.

i? Lp beue t m aS PT =?) Lid my) SECTION TO. AT) the stockholders of every company incorpo rated under this act shall be severallv individually Hable to the

creditors ot the COM any In Which thes are stockholders, to an amount equal to the amount of stock held bry them respectively, tor all debts and contracts made by such company, until the whole amount of capital stock fixed and Limited by such company shall lave been paid in and a certificate thereot shall have been made and recorded, as prescribed in the following section, and the capital stock so fixed and limited shall all be paid in, one-shalt thereot within one vear, and the other half thereof Within two vears trom the incorporation of said company, or such Corporiaitien shal] big ilissolved.,

SECTION 11. The president and oa majority of the trustees, within thirty davs atter the pavinent of the last dustallment of the capital stock so fixed and limited by the company, shall make a certificate stat-

Ing the amount of the capital stock so fixed and paid in, which 405 eertifieate still be sjoned and sWorhkn To DV the president and a

Inajority of the trustees, and they shall within the saica thirty days record the same om the ottice of the county clerk of the county Wherein the bustness of the said company is carried on.

SECTION 12. Every such company shall annually, within twenty days from the first day of Jannary, make a report, which shall be published In the town, city. or village, or, if there be no newspaper published in sald town, CIty, Ol Village. then In some hnewspaper published nearest the place where the business of said company is carried on, which shall state the amount of capital and of the proportion actually paid in, and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company. and filed in the office

226 U. G. M. Co. Vs. Rocky Mt Nat. Bk. Of Central City.

of the clerk of the county where the business of the companys 709 = shall be carried on, and if any of said companies shall fail so to

do all of the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made.

SECTION 15. If the trustees of any such company shall declare and pay ony dividend when the company is insolvent, or any dividend, the payment of which would retider it insolvent. or which would diminish the amount of its capital stock, they shall be jointly and severally 1i- able for all the debts of the company then existing, and tor all that shall be thereatter be contracted while they shail respectively remain in office : Provided, That if any of the trustees shall object to the declaring ot such dividend or to the payment of the same. and shall at any time before the time fixed tor the payment thereof, tile a certificate of their oo jection in writing with the clerk of the county, they shall be exemy)'

from such liability. 760 SECTION L4. Nothing but money shall be considered as pas

nent Of any part of the capital stock. and no oan of money shi: be made by any such Company to any stockholder therem: and it aus such loan shall be made to a stockhoider the otticer who shall make i such loam and miterest. tor all the debts of the debts of the company cou orassent thereto, shall be jomtiv and severally liable to the extent o1 tracted before the re-payment of the stm loaned,

SECTION 15. Tt any certificate or report made, or publie notice giver by the officers of any such company. in pursuance of this act. shail tv. false in any material representation, all the officers who shall have signed the same, knowing to be false, shall be jotutiv and severally ba-ble for all the debts of the company contracted while they are stock holders or officers thereot,

SECTION 16, No person Lolding stock in any such company as exe

tors, administrators, guardiin, or trustee, and no person holding VO] such stock as collateral security, shall be personally subject) to

any liability as stockholder of such company, but the person pledging such stock shall be considered as holding the same. and shal: be Hable as a stockholder accordingly: and the estates and tunds in the hands of such executors, administrators, guardian, or trustee, shall liable, in dike manner, and to the same extent, as the testate as ites tate as the werd of persons interested in such trust-tund would have been it he had been living and competent to act and held the sam stock in his own name.

SECTION Ia. every such executor, adiministrator, guardian, or trustee. Shall represent the share of stock tn his bands at all the niece mgs of the company, and may vote accordingly as a stockholder, and every such person Who shall pledge his stock as atoresaid. may nevertheless repre sent the same at all suchomeetings and may vote accordingly asa stocs holder,

SECTION Is. The stockholders of any company organized under

662 the provisions of this act, shall be jointhy and severally individ:

ally lable tor all the debts that may be due and owing to all thei

laborers, servants, and apprentices, for services performed tor such cer poration,

SECTION 19. The legislature may at any time, alter. amend, er repea! this act. or may amend or repeal any incorporation formed or create: t under this act, but such amendment or eppeal shall not nor shall the dissolution of apy such company take away or impair ans remedy given

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 227

against any such corporation, its stockholders or officers, for any liabiliy which may bave been previously incurred.

SECTION 20. Any company or corporation heretofore formed either by special act or under the general law, and now existing for any manufacturing, mining, mechanical, or chemical purpose, or any company

Which may be formed under this aet, may increase or diminish its 3 capital stock by complying with the provisions of this act, to any amount Which may be deemed sutiicient and proper for the par-pose of the corpor tion, and may also extend its business to any other Inauufacturing, mining, mechanical, or chemical busipess, subject to the provisions and abilities of this act. Bat before apy corporation shall be entitled to diminish the amount of its capital stock, if the amount of its debts and liabilities shall exceed the amount of capital to which it is proposed to be reduced, such amount of debts and labilities shail be satistied and reduced so as not to exceed such diminished amount of capital: and any existing company heretotore formed under the general law, or any special act, may come under and avail itself of the privileges and PrP ary iInlons Of this act by complying with the following provisions, and hereupon such company, its offers and stockholders, shall be sub-jeet to all the restrictions, duties, and habilities of this act. ait SECTION 2l. Whenever any company shall desire to call a meeting of the stockholders for the purpose of availing itselt of the privileges and provisions of this act, or increasing or diminish, Ine the amount of its capital stock, or for extending or changing its business, it shall be the duty of the trustees to publish a notice signed by at least a majority of them, in the newspaper in the county, if any Shall be published therein. at least three successive weeks, and to deposit a written er printed copy thereof in the post-otlice, addressed to each stockholder, at his usual place of residence, at least three weeks previous to the day tixed upon for holding such meeting : specifving the object of the meeting, the time and place. when and where such meet- Inge sliall be held. and the amount to which it shall be proposed to increase or diuinish the capital, and the business to which the company would be extended or changed, and a vote of at least two-thirds wo of all the shares of stock shall be necessary to increase or dimiinishimment of its eapltal stock, or the extension or change of its OUSINeESS as aforesaid, or tor a company to avail itself of the provisions of this act.

SECTION 22. Tf at any time and place specified in the notice provided for in the precerding section of this act stockholders shall appear in per sol or bY proxy in number representing not less than two-thirds of all the shares of stock of the corporation, they shall organize by choosing one of the trustees chairman ot the meeting and also a suitable person for secretary, and proceed to a vote of those present, in person or by proxy : and if, on canvassing the votes, it shall appear that a sufficient num ber of votes has been given in favor of increasing or diminishing the amount of Capital or of extending or changing its business as aforesaid, or for availing itself of the privileges and provisions of this act, a certiticate of the proceedings showing a compliance with the provisions of

this act, the amount of capital actually paid in, the business to 766 which it is extended or changed, the whole amount of debts and

liabilities of the company, and the amount to which the capita! stock shail be increased or diminished, shall be made out, signed, and verified by the affidavit of the chairman, and be countersigned by the secretary, and such certificate shall be acknowledged by the chairman and tiled as required by the tirst section of this act: and, when so filed.

22% U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

the capital stock of such corporation shall be increased or diminished to the amount specified in such certificate, and the business extended or Changed as aforesaid, and the company shall be entitled to the privileges and provisions and be subject to the Habilities of this act. as the case may be.

SECTION 25. If the indebtedness of any such company shall at any time exceed the amount of its capital stock, the trustees of such com pany assenting thereto shall be personally and individually Taole for

such excess to the creditors of such company. ivi SECTION 24. No stockholder shall be personally Hable tor the

payment of any debt contracted by any company formed under this act which isnot to be paid within one vear from the time the debt Is contracted nor unless a snit for the collection of such debt shail be brought against such company within one vear atter the debt shall be come due, and no swt shall be brought against anv stoekholder who shall cease to be a stockholder in any such company for any debt so contracted unless the same shall@be commenced within two vears trom the the he shall have ceased to be a stockholder in such company, nor until an exeention against the company shall have been returned unsat-

4

Isfied in Whole or im part. ad 9 es ' ] 1 4] ae 7 '7 F . . ® SECTION Bo. Tt shall tbe the duty of the trustees of every sired ¢ OPpo ' . ; ? 4 H } l : ,.

ration or company to cause a book to be kept by the treasurer or clerk

thereof containing the names of all persons, alphabetically arranged,

WHO are ol s}) i}] Within SIX V@ars have heen stockholders of such

iin eave leareeem ae tie shawnee therm place ot residence, the pump bed cy! Shares of stock held Dy them respectively. and the time when especlhive Iy beeame the owners of such shares, and the amount ot stoeek actually paid tn. wihielr book shall. during the usual business hours ( the dav. on every Lir\ except Suda and the toarth dav ot July, soon for the tuspection of stockholders and creditors of the Company

dined Tuer personal representatives at the othiee or principal place ot business of such COMM MANY Tn the county where its business Operallalis ocnted, and ath ald eve ry such stockholder, creditor, or rey) resentative shall have a right to make extracts from suel book 2 and no transfer of stock shill lye valid for) anv Purpose Whatever excep to render the person to whom ii shall be transferred liable for the debts of the company, according to the provisions of this aet. until it shal! have been entered therem, as required by this section, by an entry showing to and from whom transferred. Such book shall be presumptive 109 evidence of the facts thererm stated in tavor of the plaintitt in any suit or proceedings against such company or against anv one ormore stockholders, very officer or agent of any such Company who shall negleet to make any proper entry ino such book, or shall reiuse or neglect to exhibit the same or allow the same to be inspected and extracts Ta be taken theretpom ds Pro) idler bby this SeCTION. shall Lye deemed guilty of a misdemeanor and the company shall fortert and pay tothe party taured a penalty of titty dollars tor every such neglect ov refusal and all the damages resulting therefrom; and every company that shall neciect to keep such book open for Inspection iS atoresaid shall torteit to the people the sum of fitty dollars tor every day it shall so negleet, to be sued ter and recovered in the name of the people. ly the district attorney of the county in wlich the business of such corpo ration shall be located. and, when so recovered, the amount shall be paid into the treasury of such county for the use thereof. SECTION 26, Every corporation ereated under this act) shall a t| 'eral powers and privileges and be subject to the

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 229

liabilities and restrictions contained in title third of chapter eighteen of the first part of the Revised Statutes. SECTION 27. This act shall take effect immediately.

CHAP. 553.—An aet to amend an act to authorize the formation ot corporations for manufacturing, mining, mechanical, and chemical purposes, passed February seventeenth, eighteen hundred and fortyelvlit. Passed Juie th, 1595.

The people of the State of New York, represente| in' senate and assembiv, do enact as follows:

SECTION 1. Any certificate hereatter tiled under the provisions of the above-entitled act may designate one or more places where the company may carry on their business.

SECTION 2. The trustees of such company may purchase mines, esl omanutactories, and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor, and the stock so issued shall be declared and taken to be full stock, and not liable to any further calls, neither shall the holders thereot be liable for any further payments under the provisions of the tenth section of the sad act: but in all statements and reports of the company to be published, this stock shall not be stated or reported as being issued tor cash paid into the company, but shall be reported in this respect according to the fact. SECTION 3. This act shall take effect immediately.

CHAP. JIQ.—An act to amend an act entitled "An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," passed February seventeenth, eighteen hundred

and forty-eight. Passed April 14th, TS854.

tia The people of the State of New York, represented in senate

and assembly, do enact as follows :

SECTION 1. Section twenty-seven of chapter forty of the laws of eighteen hundred and forty-eight, entitled "An act to authorize the formation of corporations tor manufacturing, mining, mechanical, or chem Ileal purposes." shall read as follows: Whenever any person or persons, ownlng fifteen per cent. of the capital stock of any company formed under the provisions of this act, shall present a written request to the treasurer thereof that the' desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company under oath, embracing a particular account of all its assets and Nabilities in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer within twenty days after such presentation, and shall also at the same time place and Keep on file in his office tor six months there-utter

a copy of such statement, which shall at all times during qe) business hours be exhibited to any stockholder of said company

demanding an examination thereof. Such treasurer, however, shall not be required to deliver such statement in the manner aforesaid oftener than once in six months. It such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said written request the sum of fifty dollars, and the further sum of ten dollars tor every twenty-four hours thereafter until such statement shall be furnished, to be sued for and recovered in any court having cognizance thereof.

SECTION 2. This act shall take effect immediately.

; i ' : ; ;

290 Uu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Cuoapr. 29.—An act to amend an act entitled "An act to authorize the formation of COPpor itions for manufacturing, mining, mechanical, or chemical purposes," passed February seventeenth, eighteen hundred and forty-cight. Passed February 16th, 1557.

Tid The people of the State of New York, represented in senate an lassembly, do enact as follows:

SECTION 1. No incorporated company organized or hereafter to be organized tor the manufacturing of salt under the * act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," passed February seventeenth, one thousand eight hundred and forty-eight, shall be deemed dissolved or shall be dissolved on account of the capital stock of such company not betng paid in, the one half within ow year and the other half within two years from the incorporation of such company: Provided, That such stock shall be paid In Within four years from the organization of such company.

SECTION 2. Whenever any company formed under said act shall have tixed the menesucpnim of its corporate existence fora less period than it

was privileged to doby the first section of said act, it may by a vote fo Of the stor Kholde 'rs representing a majority of the stock and upon

executing and acknowledging a new or amended certificate under its COrporate seal, srened by the president and two-thirds of its directors, and tiling the same in the county where its business shall be earried on, and in the office of the secretary of state, extend the term of its cerpo rate existence toa period wl longer than it could lave ortginally fixed the same, and shall thereupon possess all the powers and privileges and be subject to all the liabilities mentioned in said act during such ex. tension of its existence,

SECTION }O. Tf any company shail be formed under said aet tor the purpose of carrying on any part of its business in any place out of this State, the said certificate shall so state, and shall also state the name of the town and county in which the principal part of the business of said company within this State is to be transaeted., and said town and county

shall be deemed the town, place. and county in which the operations 66 and business of the company are to be carried on and its principal

piace of business, within the meaning of the provisions of this act.

SECTION 4. This aet shall take effect immediately.

CuaAr. 2LoOW—An aet to amend the aet entitled *.An aet to authorize the formation of Corporations for manutaeturing, mining, mechanical, and chemical purposes, passed bebruary seventeenth, eghteen hundred and forty-eight. Passed April P2th, Tso.

The people of the State of New York, represented in the senate and assemnbly, do enact as tallow or SECTION 1. The act entitled "An act to authorize the formation of cor porationsformantwiactiuing, mining, mechanical, and chemical purposes," passed February units, erohteen hundred and forty eight. ishereby ommended soasto allow corporations to be hereatterorganized unde cee Said aet with not less than three nor more than thirteen trustees, Instead of being limited to nine in number, as provided in said act. SECTION 2. The number of trustees in any corporation heretotore or ganized under the said act may be increased to not more than thirteen, as follows: The existing trustees of any such corporation, or a majority thereof shall make and sign a certitieate declaring how many trustees the

U. G. M. CO. Vs. ROCKY MT. NAT. BK. OF CENTRAL CITY. 231

corporation shall have in the future management of its business, and stating the names of the new or additional trustees, which certificate shall be acknowledged or proved by asubseribing witness, and shall be filed in the office of the seeretary of state, and in the clerk's ofttice of the county where the original certificate of incorporation was filed, and trom and after the tiling of such certificate the trustees of such corporation shall be deemed increased to the number therein stated, and the persons so named shall be trustees until a new election of trustees shall

be had according to said aet and the by-laws or regulations 1409 ol such Corporations.

SECTION 3. Tits act shall take effect immediately.

CHaAp. 170—An aet to amend an act entitled "An act to authorize the formation of corporations for miatnutactauring, mining, mechanical, or chemical parposes." passed February seventeenth, eighteen hun dred and torts eieht. Passed April 12. PS6t.

The people of the State of New York, represented ino senate and as

sembly, clo enaet as follows:

SECTION 1. Section twenty-six of the act entitled "An aet to author ive the formation of Corporations for manuutacturing, mining, mechan eal. or chemical perl HOSES, Passed elriaary seventeenth, elzhteen hundred and forty eleht. Is hereby amended so as to read as follows : Every COPporation created ander this act shall POSSESS the general powers asd ahd privileges, and be subject to the labilities and restrictions

contained in title third. chapter eighteen, of the first part of the revised statutes, and the DTOVISIOIS Gf SPETIOM SIN, article first. title two, chapter thirteen of the tirst partot the revised statutes shall apply to

SECTION 2. No company oreanized under the provistous of said aet to authorize the formation ot COPrporatlors for tThanufactarmge. mining, mechanical, or chemical purposes shall be deemed oor taken to live a principal oflice or place tor transacting its financial concerns other than thatat Wiieh the operations ot the company isearried on, unless within the month of May in each vear the president and treasurer, or a majority of the trustees. shall make a daplicate certificate, stating the amount of the then capital of said company. and the portion of such capital not in vested in real estate, and stating that such company then has a prineteipal office for transacting its finanelal concerns ima county other than

that im which the operations of said company are carried on, stat-ast) Ing the town or city and county iu which such financial office is

located. and that the president and treasurer and a majority of the trustees of said company are then actually residents of the town or citvia Which such tinaneial office is located, which duplicate certificates shall be signed and sworn to by the persons making the same, and filed, the one in the clerk's office of the county where the operations of said COMpPAanyv ave carried on, and the other in the clerk's oftiee of the county in Which such financial office shall be. and in ease in any vear such duplicate certificate shall be made and filed as aforesaid, then, during the vear succeeding the first day of June next after tiling such certificates, the personal estate of such company shall be assessed only in the town or ward named in sald certificate as that in which such financial c fice is located.

SECTION 5. This act shall take effect immediately.

232 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

131 CWnap. 472.—An act to amend an act entitled *'An act to amend abactentitled *An act to authorize the formation of corporations for manufacturing, mining, mechanical, and chemical purposes," passed April thirteenth, eighteen hundred and. fifty-four. Passed

April 25, 1862.

The people of the State of New York, represented in senate and assembly, do cnact as follows :

SECTION 1. Section one of the act entitled "An act to amend an act entitled 'An act to anthorize the formation of Corporations for manittac turing, mining, mechanical, and chemical purposes," passed April thir teenth, eighteen hundred and fifty tour is hereby amended so as to read as follows:

Whenever any person or persons owning five per cent. of the capital stock of any company, exceeding one hundred thousand dollars, formed

under the provisions of this act, shall present a written request 782 oto the treasurer thereot that they desire a statement of the affairs

of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company, under oath, embracing a particular account of all its assets and labilities in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer within twenty days atter such presentation, and shall also, at the same time, place and keep on file in his office, for six mouths thereafter, a copy of such statement, which shall, at all times during business hours, be exhibited to any stockholder of said Company demanding an examination thereof. Such treasurer, however, shall not be required to deliver such statement in the manner atoresaid ottener than once im SIX months. If such treasurer shall neglect or retuse to comply with any of the provisions of this act be shall torfeit and pay to

the person presenting said written request the sum of fifty dollars, 3 aud the further sum oof ten dollars tor every twenty-tour hours

thereatter until such statement shall be furnished, to be sued tor and recovered im any court having cognizance thereof.

SECiION 2. Should: not any such written statement as is required by section one of this act be demanded during the year preceeding the annual meeting of the stockholders of any company formed under the provisions Of this act for the election of directors or trustees, it shall be the duty of the treasurer of es cry such Company To prepare and exhibit to the stockholders then and there assembled a general statement of the assets and Liabilities of such company.

SECTION 5. This act shall take ettect immediately.

CHAP. olg.—An act toamend an act entitled -An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes." passed Febroary seventeenth, erghteen buandred and forty-eight. Passed May 2, sed.

4 The people of the State of New York, represented in senate and assembly, do enaet as follows:

SECTION 1. Any company formed under the act entitled "An act to authorize the formation of corporations tor manufacturing, mining, mechanieal, or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, may change its place or places of business by a vote of the stockholders representing two-thirds of the stock, at any meeting of the stockholders regularly called, and executing an amended certificate speeitving the names of the towns or cities from and to which

U. G. M. Co. Vs. Rocky Mt. Nat. Bk Of Central City. 233

the business location of the company is to be changed, and in other re. spects conforming to the original certiticate, which amended certificate shall be signed by the president and two-thirds of the directors of the company, and shall be tiled in the office of the seeretary of state and in the office of the clerk of the county where the business operations oo of the company are to be carried on, and published weekly in two papers in the towus or cities from and to which the business operations have been iemoved and are to be carried on tor the term of three months. But the property of said company shall be lable to taxation in any county where such property may be, or in which its business inay be done, to the extent of its property in any such county. SECTION 2. Any corporation formed under the said act, passed February seventeen, eighteen hundred and forty-eight, or of the acts amending or extending the said act, may seeure the payment of any debt heretotore contracted or which may be contracted by it in the business for Which it was incorporated, by mortgaging all or any part of the real estate of such corporation, and every mortgage so made shall be as valid to all intents and purposes as if executed by an individual owning such realestate: Provided, That the written assent of the stockholders, owning at least two-thirds of the capital stock of such corporation, shall fill first be filed in the ofhcee ot the clerk of the county where the Inortgaved property is situated. SECTION 3. This act shall take effect immediately.

CHAP. 2of—An act to authorize the formation of corporations for agricultural purposes, Passed March 20, 1865.

The people of the State of New York. represented in senate and assembly, do enact as follows :

SECTION 1. Any three or more persons may organize and form themselves into a corporation in the manner specified and required in and by the act entitled "An act to authorize the formation of corporations foi manufacturing, mining, mechanical, or chemical purposes," passed Feb ruary seventeen, eighteen hundred forty-eight. for the purpose of prop agating, cultivating. and developing the different varieties of the grape,

and the manufacture of wines and brandies therefrom: and cul-iso tivating sugar-cane, cotton, rice, tobaeco, indigo, and other prod

ucts of the earth, for preparing the same for market, and for transporting and disposing of the same. Every corporation so formed shail be subject to all the provisions. and obligations contained In the aforesaid act, and the several acts amendatory of the same, so far as they are or may be applicable, and shall be entitled to all the benefits and privileges conterred by said act and amendatory acts, except that such corporation: shall not be confined in their operations to the counties In Which their certificate shall be filed.

SECTION 2. This act shall take effect immediately.

CHAP. 307.—An act to extend the operation and ettect of the act passed February seventeen, eighteen hundred and forty-eight, entitled "An act to authorize the formation of corporations for manufacturing, min- Ing, mechanical, or Chemical purposes." Passed April 6th. 1865,

is The people of the State of New York, represented in senate and assembly, do enact as follows :

SECTION 1. Any three or more persons may organize and form them-

234 Uu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

selves into a corporation in the manner specified and required by the act entitled "An aet to authorize the formation of corporations for Inanufacturing, mining, mechanical, or chemical purposes," passed February seventeen, eighteen hundred and forty-eight, for the purpose of buying and selling and transporting coal and peat of all kinds.

SECTION 2. Every corporation so formed shall be subject to all the provisions, duties, and obligations contained in the above-mentioned act and amen:Iments thereto, and shall be entitled to all the benetits and privileges thereby conferred, except that such corporation shall not be confined in their operations to the county in which their certificate shall be filed.

SECTION 5. This act shall take effect immediately.

89) Crap. 75,—An aet to amend an act entitled An act to anthorize

the formation of Corporations for mannfaeturing, mining, mechanical

, or chemical purposes," passed Febriary seventeen, eighteen hundred and forty-erght. Passed February 21, 1560.

The people of the State of New > York, represented im senate and assembly, do enact as follows:

SECTION IT.) Any company formed under the aet entitled «An act to authorize the formation of Corporations tor manufacturing, mining, mechanical, or chemical purposes." passed Pebruary seventeen, eighteen hundred and forty-eight, may tnerease the number of shares of which its capital stock consists: Provided the capital stock of such company shall not thereby be inereased or diminished,

SECTION 2. Such increase shall be made by a vote of the stockholders

In favor thereot, representing two-thirds of the capital stock. at Oc canny meeting of the stockholders called in the manner prescribed

in the act hereby amended, and by executing and acknowledging an amended certificate specifying the number of shares of which the said capital stock of said company shall thereafter consist, and the par Value of each share, and in other respects conforming to the original certificate, Which amended certificate shall be signed -by the president and two thirds of the directors of the company, and shall be tiled in the office of the seeretary of state, and in the clerk's office of the county where the original certificate was filed,

SECTION 5. Each stoekholder shall be entitled to a certificate for such a number of shares of said capital stock atter the whole number has been increased as aforesaid as shall at their par value be equal to the par value of the shares theretofore held) by him in sach company

on surrendering the eertiticate for said shares so held by him to SL be cancelled: Provided, That sach increase shall not so divide the shares as to give the fractional part of a share to any stockholder.

SECTION 4. This act shall take effect lmmediately.

CuaApr. ov i.—Anact to extend the operation and effect of the aet passed February seventeen, eighteen hundred and forty-eight, entitled *An act to authorize the formation of corporations for manufacturing, miming, mechanical, or echemieal purposes." Passed April 4th, 1506,

'he people of the State of New York, represented in senate and assembly, do enaet as follows :

SEcTion lL. Any three or more persons may organize and torm themselves into a corporation in the manner specified and required in and by the act entitled "An act to authorize the formation ot corporations

=

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 235

for manufacturing, mining, mechanical, or chemical purposes," 752 passed February seventeen, eighteen hundred and forty-eight, tor the purpose of accumulating, stating, conducting, furnishing, and supplying water for mining purposes, and may acquire, take, hold, lease, and convey lands and water-power suitable for those purposes. SECTION 2. Every corporation so formed and the stockholders thereot shall be subject to all the provisions, duties. and obligations contained in the above-m. ntioned act, and shall be entitled to all the benefits, privileges thereby conferred, except that such corporations shall not be confined in their operations to the county in which their certiticate shall be filed. SECTION 3. It shall and may be lawful for any corporation heretofore incorporated tor mining purposes, under the aet mentioned in the first section, to conduct the business for which the formation of corpo- 7350 vations is authorized by said first section: Provided the intention so to do shall be specified among the objects fer which such corporation is formed in its certificate of incorporation. SECTION 4. This act shall take effect immediately.

CHapr. 799.— An act to amend the act passed February seventeen, eighteen hundred and tortyv-eight, entitled An aet to authorize the forma. tionof corporations for manufacturing. mining, mechameabor chemical purposes," Passed April Yoth, Psat.

The people of the State of New York. represented in senate and assembly, do enact as follows: SECTION 1. The first section of the act toauthorize the formation of corporations for mImanufacturing., mining, imechanteal, or chemical pur-roses, passed February seventeenth, eighteen hundred and forty- 4b eight, is hereby amended by inserting after the words © any kind of manufacturing, mining, mechanical, or chemleal business." the words, *-or the business of building and keeping a hotel, or tor building and maintaining museums, or for curative purposes." SECTION 2. The tithe of said aet is hereby amended by inserting after the words "or chemical" the words "or other." SECTION 5. This act shall take effect mmmediately. CHAP. Sos.—An act to amend an act entitled "An act to authorize the formation of Corporations tor manufacturing, mining, mechanical, or chemical purposes." passed February seventeenth, eighteen hundred amd forty-eight. Passed April 2s, 1566.

The people of the State of New York, represented in senate and asselnbly, do enact as follows: soo SECTION 1. The title of the act entitled "An act to anthorize the formation of corporations for manufacturing, inining, mechan- Ileal, or Chemical purposes," passed February seventeenth, elouteen lun-dred and forty-eight, is hereby amended so as to read as follows: «An act to authorize the formation of Corporations tor manufacturing, Win Ing, mechanical, chemical, agricultural, horticultural, medical, ov cara-tive, mercantile, or Commercial purposes."

SECTION 2. At any time hereatter three or more persons may form a corporation for the purpose of carrying on any kind of manufacturing, mining, mechanical, chemical, agricultural. horticultural, medical, or cur. ative business: may make, sign, and acknowledge before some officer competent to take acknowledgments of deeds, and file the same in the

236 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

office of the clerk of the county in which the business of the company

shall be carried on, and a duplicate in the office of the seeretary 756) of state, a certificate in writing, in which shall be stated the cor

porate name of said company and the objects tor which it shall be formed, the amount of its Capital stock, the number of shares of which said stock shall consist, the term of its existence, not exceeding fifty years, the number of its trustees, and the namesoft those whoshall manage the concerns of the company tor the first year, and the names of the town or city and county in which the operations of said) company shall be carried on.

SECTION 3. Tt shall be lawtual tor any inanufacturing company heretofore or hereatter organized under the provisions of this act, or the aet hereby amended, to hoid stock in the capital of any corporation engaged in the business of mining, nabutacturing, or transporting such materials as are required in the prosecution of the business of such company, so

longas they shall furnish or transport such materials for the use ah of such company, and for two vears thereafter, and no longer, and

the trustees of such company shall have the same power with the respect to the purchase of such stock and issuing stock therefor as are now given by law with respect to the purchase of mines and manutacturers, and other property necessary to the business of manufacturing companies. But the capital stock of such company shall not be increased without the consent of the owners of two-thirds of the stock, to be obtained as provided by sections twenty-one and twenty-two of the act hereby amended.

SECTION 4. When any such manufacturing company shall be a stockholder in any other corporation, its president or other officer shall be eligible to the office of trustee of such corporation, the same as if they was individually stockholders therein.

SECTION +. This act shall take effect immediately.

oh CuaAr. 12.—An act to amend the act passed February sixteenth,

eighteen hundred and fifty-seven, entitled 'An act to amend an

act entitled 'An act to authorize the formation of corporations tor

manufacturing, mining, mechanical, or chemical purposes. ~ passed

February seventeenth, eighteen hundred and forty-erght, is hereby amended so as to read as follows:

fixed the duration of its Corporal existence for a less period than it was privileged to do by the first section of said act, it may, by a vote of the stockholders representing a majority of the stock, and upon executing and acknowledging a new or amended certificate under its corporate seal, signed by the president and two-thirds of the directors or trustees, and filing the same in the county where its business shall be carried on and in the office of the secretary of state, extend the term of its cor- iSO porate existence trom time to time to a period not longer in the aggregate than it could have originally tixed the same, and shall thereupon possess all the powers and privileges and be subject to all the liabilities mentioned in said act during such extension of its existence. SECTION 2. This aet shall take ettect immediately.

SECTION 2. Whenever any company formed under said act shall have

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 237

Ciap. 248.—An act to amend the aet passed April eleventh, eighteen hundred and sixty, chapter two hundred and sixty-nine, entitled "An act toamend the aet entitled 'An act to authorize the formation of corporations tor manufacturing, mining, mechanical, or chemical purposes, ~ passed February seveiteenth, erghteen hundred and = forty-eight. Passed April 3, 186%.

The people of the State of New York, represenied in senate and assembly, do enact as follows:

SECTION 1. The tirst section of the * act to authorize the form-

0% ation of corporations for manufacturing, wining, mechanical, or

chemical purposes." passed February seventeenth, eighteen hundred and forty-eight, is hereby amended by inserting after the words sauv kindof manufacturing, mining, mechanical and chemical purposes " the words * or the business of quaryving stone."

SECTION 2. The second section of said act is hereby amended so as to read as follows: The maniber of trustees In any corporation organized before or since the eleventh day of April, eighteen hundred and sixty, or Which shall hereatter be organized under the said act, may be increased to not more than thirteen, as follows: The existing trustees of any such corporation, or a majority of them, shall make and sign a certiticate declaring bow tmauy trustees the corporation shall have in the future management of its business, and stating the names of the new

additional trastees, which certificate shall be acknowledged by the al trustees signing the same or proved by a subsermbing witness, and Shall be filed in the ottice of the clerk of the COUTTS Where the 'ate ob inearporation was filed, and a duplicate or trans-

Original certiticat eript thereot, daly certified under the official seal of such clerk, tiled in the office of the seeretary of state, and trom and after the tiling of such certificate and diuplieate or transcript the trustees of said corporation shall be deemed increased tothe number therein stated. and the persons so named therein shall be trustees until a new election of trustees shall be had aeceording to the said aet and the bv-laws or regulations of such corporation, SECLION 5. This act shall take fleet immediately.

Car. $3o7.—An act to enable compames or corporations organized under any general law to extend the term of their existence. Passed Mav 17, 186%. étk2 The people of the State of New York. represented in senate and assembly, do enact as follows:

SECTION Ll. Any COMpaly Or corporation heretofore formed under any general law of this State, at any time within three vears of the expiration of its term of existence, may extend the term of existence ot such coiupany or corporation beyond the time mentioned in the original arti-cies of association or certificate of Ineorporation, by the consent of the stockholders owning two-thirds in amount of the capital-stock of such company or corporation in and by a certificate to be signed by such stockholders, and acknowledged or proved, so as to enable them to be recorded, which certificate shall be tiled in the office of the secretary of state. and in the offiee of the clerk of the county in which its original Certificate or articles of association, if any, are tiled or recorded, and the said secretary of state and the clerk of such county shall. upon

such tiling, record the same in the books kept in their respective 3) ollices for the record of articles of association in such book, and thereupon the time of existence of such company shall be ex-

. 238 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

tended, as designated in such certificate, for a term not exceeding the term for which said company or corporation was organized in the first instance,

Sec. 2. This act shall take effect immediately.

STATE OF NEW YoRK, Office of the Secretary of State.

[tis hereby certified that T bave compared the preceeding copies ot

laws, (Chap. 40, laws of IS48,) being an act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, chap, 555, laws of 1855; chap. 201, laws of 1854; chap. 29, laws of 1857; chap. 269, laws of 1560; chap. 170, laws of 1861; chap.

172, laws of LS62; chap. 517, laws of 1564: chap. 254 and 307, laws of

I8653 and chaps 75, 471, 799, & Sos, laws of 1866; and chaps Od 2 & ZS, Jaws of IS67, (being severally acts amendatory of chap. 40, laws of TS48.) and chap. G57, laws of 15607, with the original laws on file in this office, and do hereby certify that the same are correct transcripts therefrom, and of the whole of said original laws, Yitness my hand and the great sealof the State of New York, at the city of Albany, this Sth day of June. in the vear of our Lord one thousand eleht hundred & sixty-seven, }GREAT SEAL. | PRANCIS C. BARLOW,

Secretary of State,

Bill of f rceptions.,

RockKY MOUNTAIN NATIONAL BANK OF CEN- | tral City, .

ms, UNION GOLD-MINING COMPANY OF COLORADO. |

Piled January 20th, IST 4. JOHN RR. CLEAVELAND, Clerk, By HENRY BELL. Deputy.

(95 TERRITORY OF COLORADO, County of Senerson, 88:

I, John R. Cleaveland, clerk of the district court of the second judi cial district of Colorado Territory, in and for the county of Jetterson, by Henry Bell, deputy, do hereby certify that the foregoing ts a true and complete copies trom record of attidavit, bonds, attachment, deelaration, demur's, motions, and pleadings of both parties, respectively, ana proceedings that were had in the courts held at Gilpin and Boulder Counties, in said second judicial district, taken trom certified transeript of record now on file in my office, and all the proceedings that were had in the district court of the aforesaid second judicial district and county of Jefferson, held at Golden, at the last November term, A. D. 1875, in a case lately pending, wherein The Rocky Mountain National Bank ot Central City, Colorado, were plaintiff, and The Union Gold-Mining Company of Colorado were defendant.

In testimony whereot I have hereunto set my hand and aftixed the seal of said court this sixth day of February, A. D. 1874.

' JEFFERSON CO. + By HENRY BELL, Deputy.

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. 239 196 In district court, November, A. D. 1875.

TERRITORY OF COLORADO, Jetierson County, 88: IN THE MATTER OF Rocky MOUNTAIN National Bank of Central City, Colorado, rs,

UNION GOLbD-MINING COMPANY OF COLORAD®.

Attachment; venue from Gilpin County.

ee me Cl

Plaintift's EOS. Clerk's fees: Ent. app..'2o: ent. app. attorney, co; call, & swear.

[A Sr eee Se eer ee eer 1 50 2 copies jury, 60: filing SO papers, 4.00% iss. 9 subpenas,

a 6.6 Kae ts be kes 6, ME eee se ee ee eee S 8) Swear. 12 witnesses, LS0: swear. baifitt, 15; ent. sult

docket, 1.25...... + ieee saeco: A aa ae o> 80 lent. on ,ros ent. final ag "t, 13 OV. in emp. jury, 75:

OF Tg 6F 0c on iN tek ee eee eee .-- 3 O00

Special venue, so; doet judg t. 25; cert vd COPY letters, 1.00 2 00 PoVing jury, 5: 4 aif. wit., 140; ent. suit doc't, 58, 'poll.

Lg eer er er re ee ee 715 Certt ad copy | Ug. Xx C 'sts, 1.00; tee record, 1 ; fee record,

Se 0005 OF 6 <i'snccneeedasthiharn ree 8 00

Open deposition, 20 2... .esc ess«ss 6660 hetes ew ves coves 20

J. Ro. Cleaviand, clerk's fees taking deposition, G. K, Sabin ae ee ee ae ee a ae ee ee es ee er ef «e@erverereeuee eweetrteerees#ee#eet * # @e eee. DS 20

Dee ndants costs and fees, Clerk's fees: Ent. app., 20: ent. app. att''y, 75: 2 copies jury, 60.... 1 60 Filing 20 papers, 5.00; ent. verdict docket, 1.00; poll.

Pg A er eee er iveewenscnmeees 4 909 Order appeal, 75; issue 2 subpenas. 100; swear. 13 wit- WO, Bae on hoon ned es cee eekeee «3 4k0es Keene 4 20

Fee recor., 1.00; fee bill, 1.06; tiling appeal bond, 1.00.. 3 WO Sheriff' fees, serv'g 4 subpoonas.........-. (ecveceeeeeeawees S !

Witness' plaintitl fees: we 06C. GC. Welsh, 1 day, 2.90; C. B. hountze, 56 days

Ws SA sds th tokens ccckesieeeeee 18 40 . if. Tap - 6 hon is & mil, 17.50; J. O. Reynolds, 6 "a a" Ge Os BOO ia. 608s dawn +sieansecn een 39 OO Jno. Meller, 1 i & mil., 2.703 "Jno. M. Parker, 1 day & | | ee ea ee Swewnneeemnerd Oo 40 amen S SU Sheriff fees on part defendant : Serving subpenas on J. F. Topping & Hense..... ones 3 40 3 40

¥177 70 I hereby certify the foregoing to be a true copy from my fee-book of the above case and the items of costs herein. HENRY BELL, Deputy Clerk.

240 Uv. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY.

Transcript fees: 1553.51 folio' @ 20, 8510.66; appeal bond, 2.00: certificate, 1.00—8515.66; paid by T. H. Decker, esq.

(Endorsed:) G. DD. No. 154. Term No. 20.) Union Gold-Mining Com. pany, appellant, vs. Rocky Mountain National Bank, appellee. Filed February llth, ls74.) John W. Webster, clerk.

95 And afterwards, on, to wit, the same 11th day February, A. D. Isv4, there was filed in the office of the clerk of the supreme

court of the Territory of Colorado the assignment of errors in the

above-entitled cause, Which is in words and figures as follows, to wit:

fn the supreme court, February term, Is¢4.

Territory Of Colorado:

Ti UNION GOLD MINING COMPANY OF COLO. | rade, appellant, ra. hie Rocky MOUNTAIN NATIONAL BANK OF Central City, appeliee.

a ——— "ae

' 7 4 , e210 . cE SNA IME a fof ARALLE F

The court below, from which this cause was removed, erred in the proceedings, hearing, and trial of this cause, as hereiiatter set forth, to Wil:

Ist. Ino sustaining demurrer of plaintitts to defendants special pleas,

that is to sav. thre wd. cme. 4th, tin & Oth pleas pieaded Ly the detenel

iN) Yd. In denying the motion of detendant and retusing to sup Dress each and every of the Milestions ane answers ip the deposi tion of Greorwe W. Sabinw embraced in the motion of the detendant.

od. In sustaining the motion of plaimtiil's counsel and suppressing certain questions and ansivers of the witness Sabin in his deposition on the cross-examination of witness Sabin by detendant's counsel.

lth. In overraling the challenge toc cause of the detendanut's counsel to the juror Nutt, and deciding him to be a competent juror,

oth. In overruling the challenge tor cause of defendant's counsel to the juror W. Parrin, and holding him competent to try and allowing him to sif as a juror in the trial of this ease.

Oth. In overruling detendant's objection and allowing witness Good.

speed to testity to the contents of receipts taken by Sabin. SOO ith. In overruling the objeetions of defendant's counsel and allowing witnesses Goodspeed, Potter, & C.B. WKountze to testity as to conversations had by them respectively with T. Hi. Beeker, concerning the alleged indebtedness, and allowing the admissions, state. ments, & promises of Beeker, as testitied to by said witnesses, to go to the jury as evidence tor the plaintiftt and against the detendant.

Sth. In overruling detendant's motion to strike out certain statements of witness Goodspeed in regard to statements made by Beeker in regard to other debts contracted in name ot detendant.

Oth. In overruling the oljeetion ot detendant and allowing witness (;oodspeed to testify in regard to conversations had between himself & Becker relative to other debts than the one in controversy.

loth. Im overruling objection of Cetendant and allowing witness

ee

Ae let Se

— i Mi ti

ee ae ee

Ug. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 241

SOL Goodspeed to testify in regard to the payment by Becker of other and different debts contracted by Sabin. lith. In overruling the defendant's objection and allowing witness Goodspeed to testify to a communication or settlement had between Sabin & Becker on the 19th day of Mareh, 1569. 2th. In overruling objections of defendant's counsel and allowing the witnesses Goodspeed, Potter, Tappan, Raynolds, & Roworth to testify in regard to dealing in purchase of mining supplies, &e., by Sabin in the name of the defendant with other parties than plaintiff, 13th. In overruling defendant's objection and allowing witness Good. speed to testify. to whom goods sold Sabin by other parties were charged. ltth. In overruling detendant's objeetion and allowing witness Good. ~peed to answer the question asked by plaintiffs counsel, * Did M'r Sabin ever at any time notify vou that he had no authority to Si Inake debts in the name of defendant?" Poth. In overruling defendant's objection and allowing the wit- Wess Croousper 7 to testily from the books ot defendant how they had been kept by other clerks than himself; and contents of the books of "..

loth. In overruling the objeetion of the defendant & allowing the

a °? i Witness Goodspeed to testify trom the books their contents, and as to dealings between Sabin & one Rank thus appearing in the books of

account,

lvth. In sustaining plaintiff's objection and refusing to allow witness Croodspes don eross-examination to testify as to what property other than that of the defendant he knew Sabin to be mining in the summer of Iss, and the allowing plaitil's counsel on redirect examination to examine on same powrit,

Isth. In overrnuting objection of defendant and allowing books "O03 kept bv plaintiff's cashier for Sabin to go to the jury as evidence avainst the detendant.

19th. In overruling objection of defendant, and allowing witness Potter to answer the following question, asked by plaintiff's counsel : ** Do you know what business the defendant was engaged in in the summer of 18607"

VOth. In overruling the objection of the defendant and allowing the Witness Potter to answer the following question, asked by plaintiff's eounsel: " Who was the agent or superintendent of defendant in the sniimer of T8067, when vou tirst knew it, in charge of the works, 1f you knew?"

Vist. In overruling the objection of the defendant and allowing the Witness Potter to answer the following question, asked by plaintiff's counsel: "Did the defendant do any business with the plaintilt after your acquaintance with the parties? If so, state the nature of the bust-ness

W% how it was transaeted.

SO Yend. In overruling the objeetion of the defendant and allowing the witness Potter to testifv as to what Sabin was doing In

the summer of TS64 | Yod In overruling defendant's objections and allowing the witness

Potter to testify and answer the following question, asked by plaintiff's eounsel: * Did Vou ever have any subsequent conversation with M'r Beeker concerning this indebtedness: if so, when & what was it?"

V4ih. In overruling defendant's objection & allowing witness Potter to testify in regard to settlement had between Becker & Sabin.

Voth. Tn everrnling objection of defendant and allowing witness Potter to testify in regard to what was said in settlement between Becker & Sabin.

REC. LijmkG

242 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Yoth. In overruling objection of defendant and allowing witness Potter

to state what Becker said about other debts contracted by

S05 Sabin other than the one in controversy, & In regard to Becker's having drawn drafts, &c., to pay such debts.

27th. In sustaining the objection of plaintiff's counsel & refusing to

allow counsel of defendant to prove by witness Potter that plaintit®

knew, where furnishing the money in controversy to Sabin, that Sabin was not expending the same in the business of defendant but for his own use,

'Sth. In overruling defendant's objection & allowing witness Potter, on redirect examination, to answer the following question asked) by plaintiff's counsel: * How was this account treated, in all the dealings with Becker & conversations with Becker ?"

29th. Inoverraling defendant's objection and allowing witness Potter, on redirect examination, to answer the following question asked by plaintiff's counsel: "State what the arrangement with Sabin was;

Whether it was to keep the fact from Becker that there was an S06 overdraft, or simply not to eall on him for those drafts until the

l0th of December." Also, in overruling the objection of detendantand allowing the witness Potter, after he had fully answered the question propounded, to go on & state what * we supposed."

OUth. In overruling defendant's objections & allowing the letter ot Becker to president of plaintiff, dated January Ist, 1569, to be read to the jury as evidence against the defendants.

oist. In overruling detendant's objection and allowing witness Tap. pan to testify how cheeks were stoned that he received from Sabin in pavinent for eootls.

olnd. In overruling defendant's objection and allowing the witness Tappan to testify as to contents of receipts, &e., given by lim to Sabin.

ood. Tn sustaining plaintiffs objection and refusing to allow the

S07 Witness Pappan, on cross examination, to answer the following

question asked by defendant's counsel: * Do you not kuow that in

May or June, 1S69, at the time vou testified to, Mr Sabin was running a nine at Nevada?'

ofth. In overruling detendant's objection, and allowing the witness Ravnolds to testify what business defendant was doting in the vear Ps6o,

Soth. In overruling detendant's objection, and allowing the witness Ravnolds to testify as to who was superintendent or agent of defendant In Ish & ser.

ooth. In overruling defendant's objection, and allowing witness Ravnolds, on redirect: examination, to testify in regard to checks drawn by Sabin & received by him (witness) in their dealings.

orth. In overruling objeetions of detendant's counsel, and allowing

the witnesses Tappan, Raynolds, & Roworth to testify as to the Sus dealings of the witness Sabin with each of them in the purchase

W sale of mining supplies, in whose name bought. how paid for, Xe.

osth. in overruling detendant's objection, and allowing witness worth to testify in regard to cheeks made by Sabin to witness im paynent for mining stipplies.

ovth. In overruling detendant's objection, and allowing counsel for plaintif™ to read certain portions of depositions of Augustus Kountze.

Oth. In sustaining plaintif!'s objection, and refusing to allow the Witness John Mellor to testify tor whom he was working from Novelnber or December, 1866, under the coutract made with Sabin at that date: also in sustaining plaintiff's objeetion and retusing to allow the witness

, Ro

be

be

Uv. G. M. CO. VS. ROCKY MT NAT. BK. OF CENTRAL CITY. 243

Mellor to answer the fo'lowing question asked by defendant's counsel : 'For whom did he (Sabin) employ vou to work 2?" SOY dist. In overruling defendant's objection and allowing witness Mellor, on cross-examination,as to receipts given Sabin by him- Blt. 42nd. In overruling defendant's objection and = allowing witness Thomas Thompson to testify, on cross-examination, as to checks received by witness from Sabin's employ. Also in overruling detendant's objection and allowing witness Thompson on cross-examination to be examined & testify in regard to receipts given by witness to Sabin. bod. in sustaining objections of plaintiff X refusing to allow the defendant to read in evidence to the jury the certificate of incorporation of the detendant. | fith. In sustaining plaintiff's objeetion & refusing to allow witness Becker to testify to the duties of the finance committee in. defendant corporation, 45th. Ino sustaining plaintiffs objections & refusing to allow S10) the witness Becker to testify in answer to the following questions asked by detendant's counsel: "State whether, during the triad? he (Sabin) was superintendent im TS6o, he was authorized by the defendant to keep any bank account in its name." 2d. "State whether, during the time that Sabin was superintendent during the year 186) the defendant kept a bank-account in Colorado." foth. Tn retusing to allow the defendant to prove by the witness Becker that during the time that Sabin was the agent of the company in P865 no bank-account was kept by either defendant or Sabin in Colorade in the name of detendant. bith. Tn sustaining plaintiffs objection & refusing to allow the two letters of T. TE. Becker to Joseph TH. Werner of December loth, 186s, and danuary 2oth, bso, to be given in evidence to the jury. ST] Isth. In sustaining plaintiff's objections & refusing to allow the minute book. or record of corporate meetings & proceedings of the defendant corporation, or any part of it, to be given in evidence to the jury. 40th. Lisustaining plaintiff's objection & refusing to allow defendant To elve lM evidence to the Jus the minute' & records ot a corporate meeting held at the office of the COMPANY Tt New York on the Sth day of April. A.D. Dstt. as recorded in the minutes and book of records of defendant, oOth., Tnsustaining plaintiff's objections, and refusing to allow defendant to give in evidence to the jury the record of a meeting held by the defendant at its office in New York on the oth day of April, A. D. 1860, as recorded in the record of the minutes of the corporate proceed- Ines, Ol page Ol of book of minutes ottered. Oist. In sustaining plaintiffs objection & refusing to allow the deftendant to read in evidence to the jury, from the records and S120 minutes of corporate meetings of the defendant, the records of acorporate meeting held at the office of the company in New York on the Isth day of April, A.D. Ts65. oZnd. Im sustaining plaintith's objection & refusing to allow the witness Becker to testify In regard to the resignation of witness Sabin, on the oth day of April, A. D. ls60, and refusing to allow witness Becker to answer the failowing question asked by defendant's counsel: "State Whether his (Sabin''s; resignation was accepted by the board of direct-

244 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

50d. In sustaining plaintiid's objections and refusing to allow the witness Becker to testify as to whether the record-book of defendant showed a record of Sabiws resignation on the 5th day of April, A. D. 1566. and the acceptance of the resignation by defendant.

54th. In sustaining plaintiffs objection and refusing to allow the defendant

to prove by the witness Becker that he was present at S13 meeting of the stockholders of defendant, in the city of New

York, on the oth day of April, A. D. 1869, and what action was taken by the said stockholders at such meeting in regard to the claim of plaintiff.

both. In sustaining plaintif's objections, ruling out and refusing to allow the detendant to prove the followime, a written offer to make such proof having been made by the counsel tor the defendant :

"To prove by the witness Becker that he was an offieer of the defendant, and that he was present at a meeting of the officers of detendant corporation on the Tsth day of April, A.D. Ps65, where George hk. Sabin was appointed agent of defendant: that he was appointed by a resolution of the board of directors, and that his agency was a special and limited agency, & also that he (witness) was present and an ofiicer of defendant at a meeting of its officers in New York on April oth,

ISs66, and that on that occasion Sabin made a report in writing Sl4 and resigned his position as special agent of the defendant, and

that his resignation was accepted by the defendant, and the treasurer ordered to pay lis salary to date: also that the witness was present at a meeting of stockholders of defendant, held in the city of New York on the oth day of April, S69, and as president of defendant, presented to the stockholders the claim and aeecount of plammtith, and that action was at that time taken by the stockholders, and the Whole affair repudiated by the defendant."

oOth. Tn sustaining plamtiff's objection & retusing to allow the wit ness Becker to testify and answer the following question, asked by defendant's counsel: State in whom of the corporation defendant the power Was vested to contract debts or make payment of debts 2?"

oath. In overraling defendant's objection, & allowing plaintiff's eounsel, on cross eXaimination, to examine witness Becker in regard to an affidavit for continuance made by witness in this case at the May term.

A. D. 1802. Slo ooth. In overruling defendant's objeetion and allowing plaint. ifi's counsel to ask, and witness Becker to answer, on cross exam, nation, in regard to the contents of an affidavit tor conutinuanee made by the witness at May term, A.D. Is7e,

ovth. In overruling defendant's objection & allowing plaintiil's attorhey, in the cress-examination of the witness Becker, to ask, and the wit-hess to answer, the folowing questions: "State whether you were a large stockholder at that time ;" also in allowing counsel to ask & wit-hess to testify as to the amount of wittess'es interest in the defendant corporation,

GOth. In overruling detendant's objection and allowing plaimtift's counsel toask, and witness Becker to testify on cross-examination, ip regard to mining and work carried on by witness in Nevada, and as to * Tiamimond TPunnel" &e., X as to business carried on by witness in no

way connecicd with the Bates lode or property of the detendant.

S16 Gist. In overruling detendant's objection and allowing plaint-li seounsel, on eross-eXxamination, to examine the witness Beeker

in regard toa letter written by witness to Sabin, bearing date April Sth, [S6s.

a

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL ciTy. 245

62nd. In overraling defendant's objections and allowing plaintiff's counsel, on cross-examination, to examine witness Becker in regard to letter written by witness Becker to Sabin, bearing date January 19th, 1S68.

63d. In overraling objections of defendant and allowing letters of Becker to Sabin of Apri sth, 86s, & January 1th, 186s, to be given in evidence to the jury.

64th. In overraling defendant's objection and allowing counsel for plaintiff, on cross-examination of witness Becker, to examine the wit-hess In regard to a letter written by witness Sabin, bearing date April Mil, Ts6%.

Goth. In overruling defendant's objection and allowing letter ly) oof, Becker to Sabin of April 2d, 18G7, to be given in evidence to the jury.

Goth. In overruling defendant's objection and allowing counsel for plaintiff, on cross-examination of witness Becker, to examine witness In regard to a letter of witness to Sabin, of Febraary 1lOth, 186s,

Orth. Inoverruling defendant's objection and allowing letter of Becker to Sabin, of February 10th, S868, to be, given in evidence to the jury.

6Osth. In overrniing defendant's objection and allowing plaintiff's eounsel to ask, & the witness Becker to answer on cross examination, the following question: "At this time vou were the owner of a majority of the stock, are you not."

6OOth. In overruling detendant's objection and allowing counsel for plaintil, on cross-examination of witness Decker, to examine and witness to answer in regard to letter of witness to president of plaimtiff, dated

a'

January Ist, Is09, and as to witness¢s meaning in CXpressions In said letter by him used. Sis "Oth. In overruling defendant's objeetion and allowing plaint-

Ii's counsel, on cross-eXamination, to exhibit to witness and examine him in regard to a letter, written ino pencil, of which date had been altered, the letter purporting to have been written by witness to Sabin.

vist. In overruling detendant's objection and allowing counsel for plaintiff! to ask, & witness Becker to give testimony, in regard to a conversation said to have been had between witness Becker and one Nichols, and allowing counsel to ask & witness to answer the following question: * State whether you told him (Nichols) that the company never had leased or rented their mine & never would?"

sZnd. In overruling defendant's objection and allowing plaintiff's counsel to ask, & witness Beeker to answer, the following question: * Did not vou before you went east state to Charles B. Kountze that you were going to try and sell the ore to Hill, and try and settle their

debt 2?"

S10 sod. In sustaining the plaintiff's objection and refusing to allow defendant to prove by witness Potter that in 1S68, when the debt

in controversy Was contracted, that the capital stock of plaintiff bank

Was S00,000 and no more,

t4th. In sustaining plaintiff's objection and refusing to allow defend-tto

give in evidence to the jury the two promissory notes made by

t

an Sabin and given to plaintitl, each for the sum of 85,000, bearing date the od day of Oecetober. 16s, voth. Im sustaining plaintiff's objections and refusing to allow defendant to prove that the two notes of $5,060 each, made by Sabin and delivered to plaintiff. bearing date October 3 1, 1°63, were eancelled by

246 UU. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. the court at request of plaintiff's counsel prior to the commencement of the trial of this cause at the November term, A. D. 1872. 76th. In overruling defendant's objections and allowing the S820 = plaintiffs counsel to read a part of the deposition of Augustus Kountze in rebuttal as claimed by plaintiff's counsel.

7ith. In overruling defendant's objections and allowing counsel for plaintiff to ask, & the witness Charles b. Kountze to answer, the following question: 'Did vou hear M'r Becker testify that he notified you that the directors of the company repudiated the debt & refused to have anything to do with it?"

75th. In sustaining plaintiffs objection and refusing to allow counsel for defendant to ask, and the witness Charles Bb. Kountze to answer, the following question on cross-examination: What do you say now? Were not the statements of account between the plaintiff and detendant sent to your brothers in New York, & at Omaha, too?" And, also, in refusing to allow the defendant to prove by the witness ©. B. Kountze, as follows: '* That not only was Becker authorized be plaintit® to eall

upon his (witness's) brother in-New York, but that his brother in 821 New York was furnished with a statement of this account and authorized to represent the plaintiff there."

79th. In sustaining plaintiff's objeetion and refusing to allow the defendant to read in evidence to the jury the 126th cross-interrogatory and the answer thereto, in the deposition of George Kk. Sabin.

S0th. The court erred in refusing to instruct the jury as prayed by defendant in instruetion No. 1, which Is as follows:

"|i. Ifthe jury believe from the evidence that George K. Sabin entered into an arrangement or agreement with the defendant in the city of New York whereby he was to come to this Territory, & if he so elected to do, he could enter into possession & work the mines of the defendant at his own expense, & not at the expense & on account of the defendant, & pay to the defendant a certain portion of the ore taken from the mine for

the use of the mine, & pay himself & all the expenses of working S22. the mine from the balance of the ore taken from the mine; & that

under the arrangement oragreement so made with the defendant, the said Sabin entered into & worked the mines of the defendant, then the relation existing between the said Sabin and the defendant was not that of principal and agent, but that of landlord & tenant, and is governed by the same law as in cases of working land fora share of the crops, and the said Sabin beeame the lessee of the defendant, and the sald defendant is inno way Hable for any sum ot money borrowed by the said Sabin, & cannot be made liable without a special promise in writing made & signed by the defendant."

Sist. The court erred in refusing to instruet the jury as prayed by defendant in second instruction by it asked, which is as follows :

e?'d. If the jury believe from the evidence that George K.Sabin made

an agreement or arrangement with the defendant whereby he was Selb to enterinto the mines of the defendant & work & mine the same

on his own account, & was to mine & deliver on the top of the ground all the first class or smelting ore, as rental or tribute for the use of the mine of the defendant, & was to receive no salary from the defendant tor his services, but was to pay himself & all expenses of working the mine from the proceeds of the balance of the ore mined from said mines, & that the defendant was not to furnish any money for the working of said mines, & and that Sabin was to contract no debts charg'able to the defendant, but was to quit work on said mines Whenever he could not pay all expenses & pay himself from the low

U. G M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 247

grades of ore, then the jury must find for the defendant, unless they

further find from the evidence that the defendant, in this suit, after said

debt was contracted by Sabin, assumed it & promised the plaintiff in writing to pay the same."

See S2nd. The court erred in refusing to instruct the jury as prayed by defendant in its 5d instruction by itasked, which is as follows:

"Od. If the jury tind from the evidence that the defendant was & isa foreign eorporation, organized and existing under the laws of the State ot New York, & that George K. Sabin was its agent in the Territory of Colorado, they must find for the defendant, unless they further find, from the evidence, tuat the agent Sabin, by virtue of his agency under the provisions of the charter of the defendant, was clothed with the power of contracting debts by borrowing money in the name of the defendant, or, that a special authority was conferred by the defendant corporation upon Sabin to borrow money in its name & on its account, or that the plaintiff bank was authorized by the detendant corporation to loan money to Sabin on checks drawn by Sabin in its name, or that prior to Sabin's

dealings with the plaintiff, Sabin had, in the name & on the S25 account of the defendant, borrowed money from other parties in

the same manner, & that the defendant had, with full knowledge of the nature of the transaction, recognized debts so contracted by Sabin as its debts, & paid the same, & that the plaintiff? had knowledge of such transactions on the part of Sabin, & the defendant prior to & at the time of its dealings with Sabin, or that the defendant, after the dealings of Sabin with plaintiff, with fall knowledge of all the material facts, adopted the acts of Sabin in his dealings with the plaintiff! & promised the plaintiff to pay in the debt contracted by Sabin."

Sod. The court erred in refusing to give to the jury the 4th instruetion as prayed by the defendant, which is as follows:

"tth. If the jury believe, from the evidence, that George Kk. Sabin was the mining agent or superintendent of the defendant in Colorado,

then the court instructs vou that, as such agent or superintendent, S24. Sabin had no power or authority, by virtue of such agency, to

borrow money in the name of the defendant, & that the jury should find for the defendant, unless they further find from the evidence either that the defendant corporation invested Sabin with special authority to borrow money in its name and for its use, or that the defendant afterwards, with full Knowledge of all the material facts, ratified & adopted the acts of Sabin in lis dealings with the plaintiff in its hame."

Sith. The court erred in refusing to give to the jury the fifth instrucetion, as prayed by defendant, which is as follows :

"oth, The court iustruets the jury that a corporation is bound by the contract & acts of ifs agent. so far as the agent acts within the scope of the authority actually conterred upon him by the corporation, but Do further."

Soth. The court erred in refusing to instract the jury as prayed 9 by defendant in the 6th instruction by it asked, which is as follows: |

"Oth. Ifthe jury find from the evidence that George Kk. Sabin was the agent of the detendant,& was employed by the defendant to manage its mines, & that he was instructed by the defendant to work the same so long, & only so long, as he could work the same and pay all expenses from the 2d & Sd elass ores, & put aside the Ist-class ore, and to quitand abandon work when he could not do so, & that he was further instructed to contract no debts, then that the said Sabin was a special

248 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

agent of the defendant, acting under limited & cireamscribed authority, & that the defendant is not bound by any of his acts exceeding the limits of the authority conferred upon him by the defendant."

S6th. The court erred in refusing to give to the jury the 7th instrue tion, as asked by defendant, which is as follows :

"7th. Ifthe jury believe from the evidence that George kK. S.- S826 bin was the mining superintendent of the defendant, then that. as such superintendent or agent, he had no authority to borrow money in its name & on its behalf, & that the defendant can only be held liable upon proof that the board of trustees or directors of the defendant had conferred upon Sabin either a general authority to borrow money on the company's credit, or a particular authority to borrow from the plaintiff, by cheeks & overdrafts, or that the conduct of the Company was such as to crgate a well-founded belief in the plaintiff that such general or special power had been granted, or that the aets of Sabin, although unauthorized, were subsequently ratified by the board of ci-rectors of the defendant."

Sith. The court erred in refusing to give to the jury the Sth instruc tion, as asked by the defendant, which is as follows:

'sth. The court instructs the jury that there can be no ratification of

unauthorized acts of another by silence or acquiescence, unless tie S27 party sought to be charged had full Knowledge of all the niaterial facts necessary to a complete understanding of the transaction, & that the burden of proving such knowledge in the possession of the party sought to be charged is on the party claiming such ratified tion, and therefore, if the jury believe from the evidence that the defendant corporation had no knowledge prior to the 16th day of Apiol, P8690, when this suit was brought, that the money obtained by Sabin from plaintiff was employed & used in working the west halt of the discovery Claim, and claim number three west on the Bates lode, and in running the Douglas Mill, & in paving Sabin a pretended salary, and as hire tor the use of lis engine, while doing his own work, then that silence on the part of the defendant, & a failure to disavow or repudiate the demand of plaintiff, cannot be considered as any evidence of ratiiication on its part of the aets of Sabin in contracting the Nabilities tn question." $25 Sssth. The court erred in refusing to give to the jury the Oth instruction, as asked by the defendant, which is as follows :

"Oth. The court instructs the jury that if they believe from the evidence that an arrangement was made between T. If. Beeker, president of the defendant, & the officers of the plaintiff, whereby Becker was to submit the claim of plaintiff to the shareholders of the deteudant at their annual meeting, & that the meeting was held in New York on tlie oth day of April, 1869, & that this suit was commenced in this Terrttory on the 16th day of April, 1869, then that the jury are to consider these facts in determining whether the plaintiff had notice of the result of the meeting of the shareholders, & their disavowal or repudiation of the claim of the plaintithiat such meeting so held on the oth day of April."

Sth. The court erred in refusing to give to the jury the 10th instruetion. as asked by detendant, which is as follows:

© 10th. Ifthe jury believe from the evidence that on the 16th

Sac day of Deeember, A. D. sts, TP. HE. Becker, t! defendant, communieated to his company in New York by letter

the claim made by plaintiff against the defendant on that date to lim,

& received from the ofiicers of the conmpany in' New York letters dis-

; a em st ie presiacht Oi thie

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITy. 249

avowing & repudiating the transaction, & communicated such disavowal or repudiation to the officers of plaintiff, then that such eommunication of the disavowal or repudiation was notice to the plaintiff of the tact of such disavowal or repudiation on the part of the defendant, and that in determining whether or not sach disavowal or repudiation was communicated to the officer or officers of plaintiff the jarv will take into consideration all the evidence in regard to conversations had between oflicers of the plaintiff? & the president of the defendant up to the 19th day of March, 1869. in regard to the president of the detendant going to New York, calling a meeting of shareholders of the defendant and Jayving the matter before them at the annual meeting in April, 1869, & trying to get them to assume it & assess the stock for its) pay ment." SOO 90th. The court erred in refusing to give to the jary the 11th instruction, es asked by detendant, which Is as follows :

"1th. The court instructs the jury that silence on the part of the defendant after having been informed of the claim of the plaintiff, and failure to disavow or repudiate the claim when informed of its existence, do not of themselves constitute a ratification of the acts of Sabin, nor render the defendant liable to Day the debt: & that such silence & failure to disavow are at best but evidence to be considered by the jury in connection with all the other evidence on that subject in determining whether or not the defendant intended to adopt & ratify the aets of Sabin in contracting the debt in question."

Vist. The court erred in refusing to give to the jury the 12th instraetion. as asked by defendant, which is as follows ;

es d2th. Phe court instraets the jury that when the duties & powers of

acorporation are created or regulated by the act of meorpora Sol tion or the by-huws of a company, persons dealing with such off-cers

are chargable with notice of all the limitations and restrietions apon his authority contamed therein, & the burden of proof is upon them to show that debts contracted by him are debts of the cor. poration.

O2nd. The court erred in refusing to instruct the jury as prayed by defendant in the Doth instruction, by it asked, which is as follows:

"15th. The court instructs the jury that the plaintiffin dealing with the agent of the defendant was bound to inquire into the nature & extentothis agency; and it plaintitt failed to make sach inquiries, and remained in ignorance of the real extent of the agent's authority, it is no excuse In law, and the want of sach knowledge on the part of the plaintiff cannot preyudice the defendant im this suit."

Yd. The court erred in refusing to give to the jury the Lith instructhon, as asked tor by defendant, which is as follows:

* ith. The court instrauets the jury that if they find from the evidence that George K. Sabin was the agent of the defendant, daly appomtecd and empowered to conduct & Paha oe the business of nuning at thetr mines in Colorado, that that alone would not authorize

the agent to borrow monev on the credit of the defendant. & that

they must find for the defendant. unless thev further find from the evidence that the agent Sabin was spectallv authorized & empowered by the defendant to borrow money in its belall or that the defendant afterwards ratitied & adopt di the aet.

Yfrh. Lhe court erred in refusing to give to the jury the loth instrueion, as asked bv the defendant, which is as follows

Toth. The court instruets the Jury that, 1 they believe from the evi-

; ¢},. . Pay Pe * am } tt" +} ? 7 ' ' : | dence Chat (;eoree Kw. SOI Was The agent oF the defe nedant. XX while

250 U.G. M. CO. Vs. ROCKY MP. NAT. BK. OF CENTRAL CITY.

acting as agent borrowed the sum of money in controversy of the plaintiff, and expended the same in the business of the defendant, & in paying

its debts, that the money so advanced by the plaintiff, though S55 so applied, created no debt against the defendant, and that the

jury must farther find from the evidence, (before they can find for the plaintiff.) in addition to the mere fact of the loan from the plaintitt to Sabin, & the application of the money for the benefit of the defendant, that the defendant had authorized the plaintiff to loan the money to Sabin or Sabin to borrow the money in controversy from the plaintiff, or had afterwards ratified & adopted the act."

95th. The court erred in refusing to give to the jury the 16th instruetion, as asked by the defendant, which is as follows:

"16th. The court further instructs the jury that, if they tind from the evidence that George Kk. Sabin was the agent of the defendant, duly appointed to work & manage its mine, and further find from the evidence that, as such agent, he had authority to contract debts in the name of the defendant for goods, supplies, & labor necessary in prosecuting the work

of mining, that these facts alone will not warrant them in finding S34 for the plaintiff; that they must further find from the evidence that Sabin had a special authonty from the defendant to borrow money on its behalf, or that the detendant has since ratified the act." 96th. The court erred in retusing to give to the jury the 17th instruetion, asked by defendant, which is as follows

"7th. The court instructs the jury, that in case of a revocation of a special or limited agency the law does not impose on the principal any duty of publishing or giving any general notice of such revocation or dissolution of such agency, & any omission to give such general notice will not renderthe principal hable for any acts done in the name of such principal, & with others than those with whom such principal had had dealings through such agent betore such revocation or dissolution. even if such subsequent dealing by the pretended agent was done

Within the Tnaits of such special power of the person who had he-oo fore that time been such special agent, unless such special agency

Was constituted in writing, & the person who had been so constituted agent had been permitted to retain the writing so appointing him such agent, & by means of such written appointment had traudulently held himself out as still being such agent, & by that means procured the money in controversy."

O7th. The court erred in refusing to give to the jury the ISth instruetion by detendant asked, which is as follows:

"sth. Phe court instruets the Jury that, to prove a ratifieation of a contract made without authority from the defendant corporation, it must clearly appear trom the evidence in the case that the defendant had fall knowledge of such contract, & that such acts of defendant, relied upon by the plaintitfias a ratification, were intended by said detendatt to relate to the performance of such unauthorized act." ,

YSth. The court erred in refusing toinstruct the jury as praved S360 Uby 6odefendant in the 19th instruction by it asked, which is as follows:

"1th. Phe court instruets the jury that even if they do beHeve from the evidence that George K. Sabin was the agent of the defendant, & was also authorized to draw checks imitsname, & did intaet draw them in the name of the defendant & directed the same to the plaintiff when the defendant had no tunds in the possession of the plaintiff! against Which said cheeks were drawn, & the officers of the plaintiff paid said checks out of the funds of the plaintiff, said acts of Sabin & also the

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 251]

acts of plaintiff's officers in paying the same out of said funds of plaintiff were illegal aets, & were in violation of law, & the plaintiff is not entitled to recover against the defendant in this form of action."

Q0th. The court erred in refusing to give to the jury the 20th instruetion

asked by detendant, which ts as follows: SOG "e°Oth., The court instruets the jury that even if they do believe from the evidence im the case that George K. Sabin was the general agent of the defendant, duly authorized to draw checks in its name, & did in fact draw them in the name of the defendant & directed the same to the plaintiff when the defendant had no funds in the possession of the plaintiff out of v hich to pay the same, such drawing was an ille-cal act on the part of Sabin, for he could draw on the plaintiff only when defendant had funds there against which to draw & out of which to pay the checks so drawn: and if Goodspeed, as the cashier of the plaintiff, paid the cheeks so drawn out of the funds of the plaintiff, such payment was an unlawtal appropriation of the funds of plaintiff by its officer, & was not a legitimate act of banking & not authorized, but was prohibited and made a crime by the laws of the United States under Which the plaintiff was incorporated & derived all its power & authority to do a banking business. Therefore the plaintiff cannot recover in this action, for there is no law authorizing the plaintiffto waive ¢ S38 crime & sue in an action of assampsit for money by its officers paid out in Violation of a statute of the United States: but if itis entitled to recover at all in an action of law, it must be in a special ae tion on the ease & not tn ASSUTpSIE, for when property Or money is ob-turned by committing a crime there can be no assumpsit, either express orimplied, by law."

100th. The court erred in refusing to give to the jury the 21st instruc tion, as asked by defendant, which is as follows:

"e-lst. The court instructs the jury that if they believe from the evidence that Sabin, while acting as agent of the defendant or claiming to act as agent of defendant, by some arrangement with the plaintiff or some of its officers, & without the Knowledge or authority or consent of the defendant, drew checks in the name of the defendant upon the plaintit? when there was no funds or money in plaintiff? bank belonging to defendant out of which to pay said checks, & that some of platntiff

's officers paid such checks & charged the money so paid to the Su defendant without its Knowledge or consent, and that this suit

was brought for money so obtained by Sabin from plaintit® by overdratt, then that such proceeding was a misapplication of the mon-evs ot the bank by its own officers for which they & their sureties are hable to the bank, & a frand upon the defendant in which the officers of the bank partieipated, & that the plaintiff cannot recover in this action from the defendant, but must look for redress to its oflicers & their sureties & those who participated in the transaction.

list. Phe court erred in refusing to give to the jury the 22d instruetion, as asked by detendant, which ts as follows:

ltd. The court instructs the Jury that when an agency is shown to have existed for any one purpose or business, & there is no evidence tending to show that it had not been terminated, the law never presumes that such AQENEY existed for anny other purpose, OF extended to

any other business, & therefore, even if vou believe from tbe Si evidence in this case that Sabin was at any time the agent of the defendant for working or superintending the working of the mines of the defendant, & with the funds provided by the defend. ant, you cannot trom that agency either presume or infer that such

252 Uu. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

agency either existed for, or extended to, or in any way authorized Sabin to borrow money on the credit of the defendant even for the working of such mines. An agent appointed to work a mine, or superintend the working of mines, is not thereby authorized to borrow money on the credit of the owner of such mine to work the same. Before you can find forthe plaintiff in this case you must be satistied from the evidence—

"ist. That the money in coutroversy was borrowed imits name; also.

cOd. That the act of borrowing was done by Sabin in the exercise & also within the limits of the power conferred om him by the acency,

"od. That defendant corporation ratified the act." S41 lozd. The court erred in refusing to give to the jury the Pod Instruction asked by defendant, which is as follows :

ceed. Ifthe jury believe from the evidence that Theodore Tl. Becker wrote the letter of January Ist, i869, directed to the president of plaintiff in his private capacity, & not as president of detendant, & refused to sign the sameas president, then that the writing of the letter was his own private act, & not official, & nothing in said letter contained wold be any more binding or obligatory upon the defendant corporation than the letter of any other stockholder, or the letter of a stranger."

103d. The court erred in refusing to iustruet the jury as prayed by the defendant in the 24th instruction by it asked, which is as follows :

evlth. The court instructs the jury that although T. TL. Beeker was president of defendant, his private acts, declaration, & promise are Ho more binding or obligatory upon the defendant than the acts, S420 declarations, and promises of any other stocknolder or stranger. \ before the jury can find the defendant bound by any acts, declarations, or proniuses of Becker, they must tind from the evidence— ~ Ist. That such acts were done, & declarations & promises made by becker, as president of the defendant, in his official capacity, with the intention of binding the defendant by such aets, declarations, & prom- Ises,

eed. That Becker, by virtue of his otlice of president of defendant, had, under the charter or by-laws of the corporation detendant, power to borrow money, and to bind the company by promising payment of money borrowed by others in its name by overdraft, & without its knowledge; or,

'od. That the detendant corporation had specially empowered Becker to make the declarations and promises by him made, & that thes were made for & on its behalf."

lO4th. The court erred in refusing to give to the jury the 2oth instruetion

asked by defendant, which is as follows: SAS e2oth, The court instructs the Jury that the paving out of the

money of a bank by its officers upon overdratt is a misapplieation of the funds of bank by its officers, for which they & their sureties are hable to the bank, & a proceeding that cannot ree/eve countenance Ina court of Justice so as to charge the money so paid to third parties who had no Knowledge of, & did not participate in, the misapplieation, nor receive the money so paid out."

ldoth. The court erred in refusing to give to the jury the 2oth instruetion as asked by defendant. which is as follows:

Voth. Phe court instruets the jury that. if they find from the evtdenee that Sabin was the agent of the defendant for the purpose of carrying on its mine & taking the ore trom same & having it erushed and the gold taken out. then that Sabin had no right or authority, by virtue

e

U. G. M. Co. Vs. Rocky Mp. Nat. Bk. Of Central City. 253

of such agency, to borrow money in the name of the defendant, and the jury cannot find the defendant liable for money so borrowed by sii Sabiu, even if it was used in working the mine of the defendant, unless they further tind from the evidence that Sabin had special authority from the defendant to borrow money in its name, or that defendant had subsequently ratified the aet." l06th. The court erred in refusing to give to the jury the 27th instruetion, as asked by defendant, which is as follows : je orth. The court instructs the jury that. if thev believe from the evidence that from and: after the loth day of December, A. D. 186s, the plaintiff in this case suffered no loss, and its status was not changed, and the defendant received no advantage by its failure to disavow the debt in question & repudiate it to the plaintiff, and that during the time from December, 1868, to April, S69, when this suit was brought, the only act attempted to be done by the plaintiff was to impose this debt upon the defendant and render it able to pay it, or get it to assume and promise to pay it, Which can only be injurious to the detend- S45 ant. then, even if there had Leen no disavowal and repudiation of the debt by the defendant, the jury cannot presume a ratification by acquiescence and the neglect of the defendant to disavow the debt between the 16th of December, Sos, and the time of bringing this suit by the plamntith" 107th. The court erred in refusing to give to the jury the 25th instruction, as asked by defendant, which is as follows: eOsth. If the jury find from the evidence that the plaintiff paid the checks of Sabin drawn by him in the name of the detendant when there was no money in plaintiff bank to the credit of the defendant, and that such course of dealing was continued for along time, and the money In controversy was obtained in that way,and the plaintiff not only did not nouty the defendant but kept the Knowledge from the defendant, then that the plaintiff participated in the traudulent acts of Sabin in creating the debt, and cannot recover in this action unless they find that Si6 the corporation, witha full Knowledge of all the facts, ratified the act of Sabin. 108th. The court erred in refasing to give to the jury the 29th in. traction as asked by defendant, which is as follows: 2th. The court instructs the jary that. if they believe from the evidence In this ease that the plainti? was at the timeof the contracting of the debt in controversy a banking corporation under the laws of the Umited States, then it was limited by said laws to the business of banking, and the exercise of such incidental powers as are necessary to varry on the business of banking, as by discounting or negotiating re, & other evidences of debt, as

' =

promissory notes, drafts, bills of exchan

Hiited by said laws of the United States: and the advancing of money

fopay checks drawn by Sabinas its agent, When defendant had no hands

In the possession of the plaintiff out of which to pay the same, is not Haitiinate banking power or duty, and the plaintiff had no power

=

sha or authority under said daw to advance its money to pay the cheeks so drawn, & therefore the plaimtil is not entitled to recover tu this action for the money so advanced to pay such checks."

lOvth. The court erred in refusing to give to the jury the 50th instrucethon asked by defendant, which is es follows:

"0th. Tt the jury believe from the evidence that Sabin was not the agent of defendant, or that he was the agent, but exceeded his authority In borrowing money in the name of the defendant, and the defendant failed to disavow the act and repudiate the debt, then that such silence

204 U. G. M. CO. VS. ROCKY MT. NAT. BK, OF CENTRAL CITY. and failure to disavow is not of itself a ratification on the part of the defendant; but it is a question whether such silence is a reasonable presumption." 110th. The court erred in refusing to give to the jury the 51st instruetion, asked by defendant, which is as follows : lst. The court instructs the jury that, in case of a revocation S45 of a special or limited agency, the law does not impose on the principal any duty of publishing or giving any general notice of such revocation or dissolution of such agency, and any omission to give such general notice will not render the principal Jiable for any aet done in the name of such principal, and with others than those with whom such principal has had dealings through such agency before such revocation or dissolution, even if such subsequent dealing by the pretended agent was done within the limits of such special power of the person Who had before that time been such special agent, unless such special agency Was constituted in writing, and the person who had been so constituted agent had) been permitted to retain the writing so appointing him such agent, and by means of such written appointment had fraudulently held: himself out as still being such agent and by that means procured the money in controversy." S49 llith. The court erred in retusing to give to the jury the 52d instruction, asked by detendant, which is as follows: Pd. The court instructs the jury that even it they believe the evidence in this case that Sabin has at any former time been the duly-appointed superintendent of the defendant, and has had fall power and authority to work the mines of the defendant,even then such agency a veneral agency, but only a special or limited agency, and it

authorize him to borrow money on the credit of the defendant." friyetrom

Was hot did net bivth. The court erred in refusing to give to the jury the 35d ins tion asked by defendant, which is as follows: wood. Ef the jury believe trom the evidence that George Kk. Sabin was the agent of the defendant, & exeeeded the special and limited authority conterred upon time by the detendant inj contracting the deot With the plaintiff, his acts, so far as the defendant is concerned, are mere nullities and inne way bind the defendant, and the plarmtift SOO Cannot recover the money in controversy from the defendant, unless the Jury further find from the evidence that plaimtith made due inquiries and used due diligence to ascertain trom the defendant the extent of Sabin's authority, & that the plauntiff was misled by the defendant, & defendant held Sabin out as having the power and authority to contract debts and borrow the money in controversy tor and on ac, count of the defendant. or that the detendant las. since the contracting of the debt by Sabin, ratified & adopted the acts of Sabin in contracting the debt." lioth. The court erred in refusing to give to the jury the ofth instruc tion asked by detendant, which is as follows : eotth. Tt the jury beheve trom the evidence that thorized to contract in defendant's name the debt sued tor in this case, and that about the sum of seven thousand dollars, part of debt saed for, Was used and applied by Sabin in) payment to himself for Sol salary, asagent of defendant, & that he was not agent, & Was not entitled to such salary, such amount so received by said Sabin must be deducted trom plaintiff's claim.even if vou find for the plaintiff, unless vou further find that the defendant, with knowledge of the facet that Sabin received said seven thousand dollars for salary, adopted and

ratitied the whole debt claimed by plammtith:

Sabin was not au-

U. G. M. Co Vs. Rocky Mt. Nat. Bk. Of Central City. 2505

Lll4th. The court erred in retusing to give to the jury the 35th in. struction asked by defendant, which is as follows:

"Soth. If the jury believe trom the evidence that one-half of the alleged overdratt, for which this suit was brought, was expended & obtained for the purpose of mining claim No. 3 west, on Bates lode, by the witness Sabin, under some arrangement between himself & Beeker, X that the defendant was not a party to the same, the amount so used must be deducted from plaintiffs claim, even if you should find for

plaintiff" Sou lloth. The court erred in refusing to give to the jury the 56th Instruction asked by defendant, which is as follows:

eoeth. If the jury believe from the evidence in this case that George K. Sabin was the mining superintendent or agent of defendant, then, as such superintendent or agent, he had no authority to borrow money in its name & on its behalf, & the defendant can only be held Hable upon proof that the board of trustees or directors of the defendant had con ferred upon Sabin either a general authority to borrow money on the defendant's credit, or a particular authority to borrow money from the plaintiff by cheeks & overdratts, or that before such lending & ad- vVancing Of the money in controversy the conduct of defendant corporation or company was such as to create a well-founded belief in' the plaintitt that such general or special power had been granted said agent or superintencent, & that fall knowledge of such acts of said defendant had come tod was possessed by plaintith before lending and advaneing said money, and if the jury do not so find, then they must find from the evidence im the case that the act of Sabin, the pretended agent, although unatthorized in the first place, was subsequently, and with full Knowledge of all the facets relating thereto, ratified by the board of directors or stockholders of the defendant, &

J

acting in a meeting thereot duly in session. The acts of an officer of a corporation do not bind such corporation, unless such acts are within the scope of the authority and power of such officer."

li6th. Phe court erred in refusing to give tothe jury the 38th instruetron assed by defendant, which is as folios

vosth. The court instruets the jury that if they find, from all the

evidence In this case, that the detendant is lable tor the debt in eontro- Versy. or any part thereof, then they must dediet the amount of the two

hofes of tive thousand dollias each at the dates thereof, and also Sod the amount of the said debt in controversy that was paid Sabin for

or as his salary as stperintendent or agent of defendant, and also the amount of money advanced to Sabin by plarmtitf and by him (Sabin) expended in the development & working on claim number three west, and also on the west half of the Discovery claim on the Bates lode, as shown by the evidence in this ease."

listh. The court erred in refusing to give tothe jury the 59th instruc. tion asked by defendant, which is as follows :

+ OOth. It the jury believe, from the ey idenee, that the witness Becker, on behalf of defendant, promised plaintiff to submit its claim to the defendant at its annual meeting in April, A. D. 1860, for ratification or repudiation, and that he did so submit it at such a meeting of detendant, held on the 5d or oth day of April. & that the defendant rejected

said claim, & that the plaintiff commenced this suit before the Soo eXpIPation of a reasonable time in which Becker could notify it of

the alleged repudiation, then the question whether Beeker did or did not notity plaintiff of such fact is immaterial."

256 «=6€«U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. e

listh. The court erred in refusing to give to tue jury the 40th instruc. tion asked by defendant, which is as follows :

"40th. If the pry in this case is so conflicting that vou cannot determine Whic h party has the right of the issue, you must tind for the defendant.'

19th. The court erred in giving to the jury, at the request of the wiaintitt, the following instruction :

"Ist. Whether Sabin was or was not the agent or superintendent of defenda nt isa question for the jury, to be determined by all the evidence betore them,

Ivoth. The court crred in giving to the jury, at request of plaintiff, the following instruction :

"Vd. Tf the prry beheve from the evidence that the defendant did know that Sabin was doing business in its name and claiming to be its superintendent, wv allowed said Sabin to continue to do business imits name, then the relation of Sabin to the defendant is the

place authorized to do business in its

Sob

i¢ aca

same as di he had been in the first Hanie."

Ivist. The court erred in giving to the jury, at the request of the plaintitl, the following instruction :

"od. Tf the jury believe trom the evidence that Theodore TH. Deehker was president of the defendant inthe years E867, ISG5.& 1809, that while he was president he had the ae tive chareze or management of detendants athurs, & while acting in that capacity he recognized George Rh.

—

Sabin as superintendent or agent of defendant, then the jury jmiay take

such recognition into consideration da deternuning whether Sabin was

the agent of defendant or detendant had allowed him to arsume that he Was agent.'

SOG Ievd. The court erred in giving to the jury, at the Instance of the plaintil, the following Instruetion :

"4th. If the defendant did disavow the acts of Sabin in borrowing the money from the plamutl, it was Incumbent on the detendant to notify the plamtif of said disavowal, and it is neeessary for the defendant to prove the giving of such notice."

Peod. The court erred in giving to the jury vat the instance of the plaint-fl, the following instruction :

'oth. The court instructs the jury that, if they believe from the ev1-dence that the defendant did notiivy Augustus hKountze that it repudiated the debt contracted by Sabin in its name, that such notification did not bind the plaintiil, unless _— also find that said Augustus Keuntze was an otticer of the phamtil, or its agent, to reeeive such notification."

r;

math. Phe court ple In giving tothe jury, on its own motion,

soo. the following lustruction :

'Sat, i ae obtained money in the name of defendant from plait, and had authority to that end, the transaction amonuts toa loan to defendant, tor which an action may be maintained by polarntilt.

Whether money was obtained fron plaintiff im tame of defendant, X the amount of it. is the tiest question to be determined. And if vou find that money was so obt, lined, the question then to be considered ts Whether Sabin liad hans to pledge the credit of defendant in that manner.

lvoth. The court erred in instracting the jury, on its own motion, as follows:

eld. Upon the testimony in this ease vou mney assume that. prior to the loth day of December, Ts6s, Sabin had no authority from detendant to borrow money in its: name; for if he was agent of defendant during

eee eer

U. G. M. CO. VS. ROCKY MT. Nt. BK. OF CENTRAL CITY. 257

the vears 1867 & 18568, as claiined by plaintiff, the borrowing of S59) money was not within the powers conferred upon him; but if he

obtained money in detendant's name & upon its credit, it was competent tor defendant to ratify the act & assume the indebtedness incurred in its hame.

126th. The court erred in instructing the jury, upon its own motion, as follows:

"3d. The question of Sabin's agency in the years 1867 & 1868 is only Important in connection with the question whether defendant ratitied the dealings mentioned by witnesses as having occurred between Sabin & plaintiff; for less evidence of ratitication by the principal is required to establish the fact in the case where an agency exists & the agent has exceeded his authority, than is required in the case of an aet done by one who has no agency whatever from the person whom he assumes to represent."

7th. The court erred in instructing the jury, on its own motion, as follows:

"4th. If vou find trom the evidence that Sabin was the agent

S60) of defendant during the vears 1867 & 1868 to operate its mines

in Gilpin County, and that he obtained money from plaintiff which

Was expended by him in the busipess of defendant, and that sach money

Was demanded by plaintiff or its officers from the defendant, then you

should consider whether the detendant. with knuowledge of the fact,

assented to such demand and approved the act of Sabin in obtaining the money."

Iesth. The court erred in instrueting the jury, of its own motion, as follows:

~ Oth, When an aet has been done by an agent in excess of his authority. if the principal, upon being intormed of all the facts, fail to (isavow the agency within a reasonable time, his silence may be received as evidence of his assent to & acquiescence in the act done in his name,'

Ieorh. The court erred in instructing the jury, on its own motion, as follows:

"oth. Theretore, if Sabin borrowed money from plaintiff in defend.

ants name. and the defendant was informed of such borrowing Sel through its president, & of the manner in which the money was

expended by him, & failed to disavow Sabin's agency within a reusonable time after such notice, it is tor you to say, aS matter of fact, Whether by such failure to disavow the alleged ageuey, the defend. ant assented to the aet of borrowing." |

1o0th. The court erred in instructing the jury, on its own motion, as follows:

vath. [fin vour opinion, the evidence discloses a promise by- M'r Becker to pay any sum ot money to plaintiff, the detendant is not bound by such promise. Evidence of interviews between officers of plaintiff & Mr Becker was received in order that vou might determine whether a demand tor money was made by plaintiff upon defendant, and whether Mr Becker was informed of the alleged dealings of Sabin with plaintiff, and not tor the purpose of showing any promise on the part of defendant.

lSist. The court erred in instructing the jury, upon its own motion, as

follows: S62 "Sth. If vou tind for plaintiff. vou are at liberty to eompute interest at the rate of 10 per cent. per annum upon the amount due trom the loth April, 1569. the date of the commencement ot this suit, until the present time."

caer. Liicwels

258 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

132d. The court erred in overruling the motion for a new trial of the case.

133d. The court erred in rendering judginent upon the verdict of the jury.

G. B. REED, Atty for Appellant.

(Endorsed:) G. D. No. 154, term No. 20.) Union Gold-Mining Com. pany, appellant, vs. Rocky Mountain National Bank, appellee. Assignment of errors. Filed February 11th, 1574. Jobn W. Webster, clerk. G. B. Reed, att'y for app )'t.

And afterwards, ou, to wit, the 15th day of February, A. D. 1574. the sume being one of the regular days of the February term, A. D. 1574, of

the supreme court of the Territory of Colorado, the following pro- 863 ceedings were had in the above-entitled cause and entered of record, to wit :

THE UNION GOLD-MINING COMPANY, APPEL. lant, vs.

Rocky MOUNTAIN NATIONAL DANK, APPELLEE.

No. 154. Appeal trom > district court, Jef- { fersom County.

At this day comes the said appellant, by G. Bb. Reed and Hugh but ler, its attorneys, and the said appellee, by Tl. M. Teller, W. R. Gors line, and J. Q. Charles, its attornies, also comes, and the motion of said appellant to withdraw the assignment of errors filed herein comes on to be heard, and the said appellee, by its attornies, being present and assenting thereto, it is ordered by the court that the said appellant may Withdraw the assignment of errors herein.

And afterwards, on, to wit, the 16th day of February, A. D. 1s74, the

same being one of the regular days of the February term, A. D. 1574, of

the supreme court of the Territory of Colorado, the following

864 - proceedings were had in the above-entitled cause, and entered of record, to wit:

UNION GOLD-MINING COMPANY, APPELLANT, / No. 154. Appeal from rs. . district court, Jef- Rocky MOUNTAIN NATIONAL DANK, APPELLEE. \ terson County.

At this day comes the said parties, by their attorneys, G. B. Reed and Hugh Butler, for said appellant, and H. M. Teller, W. R. Gorsline, and J. @. Charles, tor said appellee, and this cause come on to be heard upon the motion of said appellant to retain the transeript of record herein for the purpose of making abstracts, and the said appellee, by its attorneys, assenting thereto, it is ordered by the court that the said appellant may retain the transeript of record for the purpose of making abstracts until the twenty-sixth day of February next ensuing this day.

SOD And afterwards, on, to wit, the 2nd day of Mareh, A. D. Is74,

the same being one of the regular days ot the February term, A. I). IST4, of the supremecourt of the Territory of Colorado, the foll wing proceedings were had in the above-entitled cause, and entered of record, to wit:

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 259

TNION GOLD-MINING COMPANY, APPELLANT, ) No. 154. Appeal from rs. - district court, Jefter- Rocky MOUNTAIN NATIONAL BANK, APPELLEE. \ son County.

At this day comes the said appellant, by G. b. Reed, Hugh Butler, \ EE. Wakely, esq's, its attorneys, and the said appellee, by H. M. Teller, W. R. Gorsline, and J. @. Charles, esqrs., its attorneys, also come, and this cause coming on to be heard, it is ordered by the court that said appellant file its argument by the incoming court on Monday, the ninth day of March next ensuing.

S66 And afterwards, on, to wit. the 9th day of Mareh, A. D. 1874,

the same being one of the regular days of the February term, A.D. IS74, of the supreme court of the Territory of Colorado, the following proceedings were had in the above-entitled cause, and entered of record, to wit:

UNION GOLD-MINING COMPANY, APPELLANTS, ) No. 134. Appeal from rs. -district court, Jeffer- RockY MOUNTAIN NATIONAL BANK, APPELLEE. \ son County.

At this dav comes the said appellant, by G. B. Reed and Hugh Butler, esqrs., its attorneys, and the said appellee, by H. M. Teller, W. R. Gorsline, and J. Q. Charles, esqrs., its attorneys, also comes, and this cause coming on to be heard, was submitted by appellants to the consideration and judgment of the court, and it is ordered by the court

that said appellees tile their arguments herein by Friday, the Sov) thirteenth day of March next ensuing, and that said appellants

tile their reply thereto by Tuesday, the seventeenth day of March thereatter.

And afterwards, on, to wit, the 2Ist day of March, A. D. 1874, there was tiled in the office of the clerk of the supreme court of the Territory of Colorado, by the detendant's attorneys in the above entitled cause, its joinder in error, Which is in words and figures as follows, to wit.

Territory Of Colorad®:

Supreme court of the Territory of Colorado, to the February term, Is7v4.

THE Rocky MoUNTAIN NATIONAL BANK OF Central City, Colorado, appellee, vS, Tnk UNION GOLD-MINING COMPANY OF COLorado, appellant,

And the said appellee. H. M.& W. Teller, J. Q. Charles, & William R. Gorsline, its attvs, comes & says there is no error either in the record & proceedings or in giving judgment aforesaid in manner S68) & form as is above assigned by said appellant. Wherefore the appellee prays that the said judgment may be affirmed and the

costs adjudged to it.

Fi a —

H. M. &amp; W. Teller,

J. Q. Charles,

W. R. Gorsline.

Attys for Appellee.

258 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City

132d. The court erred in overruling the motion for a pew trial of the

case. 133d. The court erred in rendering judgment upon the verdict of the jury.

G. b. REED, Atty for Appellant.

(Endorsed:) G. D. No. 154, term No. 20.0 Union Gold-Mining Com. pany, appellant, vs. Rocky Mountain National Bank, appellee. Assignment of errors. Filed February 11th, 1574. John W. Webster, clerk. G. B. Reed, att'y for app Tt.

And afterwards, on, to wit, the 15th day of February, A. D. 1874. the same being one of the regular days of the February term, A. D. 1s74, of

the supreme court of the Territory of Colorado, the following pro- 863 ceedings were had in the above-entitled cause and entered of record, to wit:

lant, district court, Jefes

, ' , j ferson County. Rocky MOUNTAIN NATIONAL BANK, APPELLEE. | ,

T 4 UN ( N G Ih -\ N NG COs ri N f 4 »PE Ps Y '> . Pitt [ON GOLD-MININ IPANY, APPEI 1 No. 134. Appeal from ( }

At this day comes the said appellant, by G. B. Reed and Ilugh But ler, its attorneys, and the said appellee, by Hl. M. Teller, W. R. Gors line, and J. Q. Charles, its attormies, also comes, and the motion of said appellant to withdraw the assignment of errors filed herein comes on to be heard, and the said appellee, by its attornies, being present and assenting thereto, it is ordered by the court that the said appellant may Withdraw the assigniment of errors herein.

And afterwards, on, to wit, the 16th day of February, A. D. 1574, the

same being one of the regular days of the February term, A. D. 1574, of

the supreme court of the Territory of Colorado, the following

864 = proceedings were had in the above-entitled cause, and entered of record, to wit:

UNION GoOLD-MINING COMPANY, APPELLANT, ) No. 154. Appeal from vs, . district court, Jef- Rocky MOUNTAIN NATIONAL BANK, APPELLEE. \ ferson County.

At this day comes the said parties, by their attorneys, G. B. Reed and Hugh Butler, for said appellant, and TH. M. Teller, W. Rh. Gorsline, and J. QQ. Charles, tor said appellee, and this cause come on to be heard upon the motion of said appellant to retain the transeript of record herein for the purpose of making abstracts, and the said appellee, by its attorneys, assenting thereto, it is ordered by the court that the said appellant may retain the transeript of record for the purpose of making abstracts until the twenty-sixth day of February next ensuing this day.

S65 And afterwards, on, to wit, the 2nd day of Mareh, A. D. Isa4,

the same being one of the regular days ot the February term, A. Id. ISv4, of the SUpremmecourt of the Perritorys ot Colorado, the fol! wing proceedings were had in the above-entitled cause, and entered of record, to wit:

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 259

UNION GOLD-MINING COMPANY, APPELLANT, ) No. 154. Appeal from rs. - district court, Jeffer- Rocky MOUNTAIN NATIONAL BANK, APPELLEE. \ son County.

At this day comes the said appellant, by G. B. Reed, Haugh Butler, \ KE. Wakely, esq's, its attorneys, and the said appellee, by H. M. Teller, W. R. Gorsline, and J. Q. Charles, esqrs,, its attorneys, also come, and this cause coming on to be heard, it is ordered by the court that said appellant tile its argument by the incoming court on Monday, the ninth day of March next ensuing.

S66 And afterwards, on, to wit. the 9th day of Mareh, A. D. 1874,

the same being one of the regular days of the February term, A.D. S74, of the supreme court of the Territory of Colorado, the following proceedings were had in the above-entitled cause, and entered of record, to wit:

UNION GOLD-MINING COMPANY, APPELLANTS, ) No. 134. Appeal from rs. -district court, Jetfer- Rocky MOUNTAIN NATIONAL BANK, APPELLEE. \ son County.

At this day comes the said appellant, by G. B. Reed and Hugh Butler, esqrs., its attorneys, and the said appellee, by H. M. Teller, W. R. Gorsline, and J. @Q. Charles, esqrs., its attorneys, also comes, and this cause coming on to be heard, was submitted by appellants to the consideration and judgment of the court, and it is ordered by the court

that said appellees tile their arguments herein by Friday, the S67 thirteenth day of March next ensuing, and that said appellants

tile their reply thereto by Tuesday, the seventeenth day of Mareh thereatter.

And afterwards, on, to wit, the 2Ist day of March, A. D. 1874, there was tiled in the office of the clerk of the supreme court of the Territory of Colorado, by the detendant's attorneys in the above entitled cause, its joinder in error, which is in words and figures as follows, to wit.

Territory Of Colorado:

Supreme court of the Territory of Colorado, to the February term, IS.

THE Rocky MOUNTAIN NATIONAL BANK OF | Central City, Colorado, appellee,

ge >

THE UNION GOLD-MINING COMPANY OF COL- | orado, appellant. A

And the said appellee, H. M. & W. Teller, J. Q. Charles, & William R. Gorsline, its att'vs, comes & says there is no error either in the record & proceedings or li giving judgment aforesaid in manner S68) & form as is above assigned by said appellant. Wherefore the appellee prays that the said judgment may be affirmed and the costs adjudged to it. H. M. & W. TELLER, J. Q. CHARLES, W. R. GORSLINE, Atfys for Appellee.

260 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

(Endorsed: G. D. No. 154; term No, 20. Rocky Mount. Nal Bank vs. U. Gold M. Co. Joinder in error. Filed) Mareh 21, 1874. Jno. W. Webster, clerk.

And afterwards, on, to wit, the Isth day of February, A. D. 1875, the same being one of the regular days of the February term, A.D. 1875, of the supreme court of the Territory of Colorado, the following proceedings were had in the above-entitled cause, and entered of record, to wit:

UNION GOLD- MINING COMPANY, APPELLANT, ( Appeal from. district rs, > court, Jefferson Rocky MOUNTAIN NATIONAL BANK, APPELLEE. § County.

At this day comes said appellant, by G. B. Reed, esq., and Hugh Butler, esq., its attorneys, and the said appellee, by IT. M. Teller, 869 ~ esq., W.R. Gorsline, esq., and J. Q. Charles, esq., its attorneys, also come, and this cause come on to be heard as well Upon the trans-script of judgment and other proceedings had in the said district court for the county of Jefferson, as also upon the matters herein assigned for error, and the same having been argued by counsel, upon due consideration thereot, it appears to the court that there is no error in the record and proceedings aforesaid nor in giving judgment aforesaid, And it is ordered by the court that the judgment aforesaid, in form aforesaid given, bein all things affirmed and stand in full force aud etfeet; that the opinion of the court when filed shall be recorded, and that the said appellee have and recover of and from the said appellant its costs and charges in this behalf expended to be taxed; and that it have execution theretor. Justice Wells dissenting.

And afterwards, on, to wit, the 27th day of February, A. D. 1575, there was tiled in the office of the clerk of the supreme court of S70, the Territory of Colorado the writ of error in the above-entitled cause, the original of which is hereto attached and made part of

this record, and is in words and figures as follows, to wit:

Sil UNITED STATES OF AMERICA, ss:

The President of the United States to the honorable the judges of the supreme court of the Territory of Colorado, of the United States, yreeting:

Because in the record and proceedings, as also in the rendition of the judgment of a plea, which is in the said supreme court of the Territory of Colorado betore vou, between the Union Gold-Mining Company of Colorado and the Rocky Mountain National Bank of Central City. Colorado, a manitest error hath happened, to the great damage of the said Union Gold- Mining Company of Colorado, as by its complaint appears: We, being willing that error. if any hath been, should be daly corrected and full and speedy justice done to the parties aforesaid i this behalf, do command you, if judgment be therein given, that then, ander your seal, distinetly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the second Monday of Ociober next, in the said Supreme Court to be then and there held, that. the record and proceedings afore-

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 261

said being inspected, the said Supreme Court may cause further to be done therein to correet that error what of right and according S72. to the lawsand custom of the United States should be done. Witness the honorable Morrison K. Waite, Chief-Justice of the said Supreme Court, the 27th day of February, in the year of our Lord one thousand eight hundred and seventy-five. SEAL. | JNO. W. WEBSTER, Clerk of the Supreme Court of the Territory of Colorado.

SG24 (Endorsed:) The Union Gold-Mining Company of Colorado,

plaintiff in error, vs. The Rocky Mountain National Bank of Central City, Colorado, defendantinerror. Writ of error. Filed February 'ith, Isv5. Jno. W. Webster, clerk.

S73 And afterwards, on, to wit, the 2d day of Mareh, A. D. 15875,

there was filed iu the office of the clerk of the supreme court of the Territory of Colorado the citation in the above entitled cause, the original of which is hereto attached and made part of this record, and is in words and figures as follows, to wit:

S74 THE UNITED SPraTES OF AMERICA:

To the Rocky Mountain National Bank of Central City, Colorado, greeting:

You are hereby cited and admonished to be and appear at a Supreme Court of the United States. to be holden at Washington, on the second Monday of October next, pursuant to a writ of error filed in the clerk's office of the supreme court of Colorado Territory, wherein the Union Gold-Mining Company of Colorado is plaintiff in error, and you are defendant in error, to show cause, if any there be, why judgment rendered against the said plaintiff in error, as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalt.

Witness the honorable Moses Hallett, chief justice of the supreme court of the Territory of Colorado, this twenty-seventh day of February, in the year of our Lord one thousand eight hundred and seventy-tive.

MOSES HALLETT, Chieft- Justice.

On this 2nd day of Mareh, A. 1D. 1875, personally appeared Hugh Butler betore me, the subscriber, John W. Webster. clerk of the S79) supreme court of Colorado Territory, and makes oath that he delivered a true copy of the within citation to Henry M. Teller, one of the attorneys of the said Rocky Mountain National Bank of Central City. HUGH BUTLER.

Subseribed and sworn to betore me this 2nd day of Mareh, A. D. 13805. SEAL. | JNO. W. WEBSTER, Clerk Supreme Court Colorado Territory.

8753 (Endorsed :) The Union Gold-Mining Company of Colorado,

plaintiff in error, vs. The Rocky Mountain National Bank, of Central City, Colorado, defendant in error. Citation. Filed Mareh 2d, 1s75. Jno. W. Webster, clerk.

® 262 U.G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

Sib And afterwards, on, to wit, the 17th day of April, A. D. 1875,

there was filed in the office of the clerk of the supreme court ot the Territory of Colorado, by the plaintiff in error. its bond in error, which said bond is in words and figures as follows, to wit :

Know all men by these presents, that we, Theodore TH. Deeker, of thie county of Gilpin and Territory of Colorado, as principal, and Frederic A. Potts, of Pittstown, Hunterdon County, State of New Jerseys. and Kdward A. Quintard, of the city. county, and State of New York, and Samuel Bonnell, froof Elizabeth, Union County, State of New Jersey, as sur/ties, are held and firmly bound unto the Roeky Mountain Na tional Bank, of Central City, Colorado, in the full and just sum of thirty-five thousand (355.000) dollars, lawful money of the United States. for the payment of which sum, well and traly to be made to the Rocks Mountain National Bank, of Central City, Colorado, its successors 01 assigns, we bind ourselves, our heirs, executors, and administrators,

jointly, severally, and firmly by these presents. Witness Sia our hands and seals, and dated this 2eth day of Mareh. A.D. Sto.

Whereas, on the third (5d) dav of December, A.D. IS75, in the dis. trict court of the second (2d) judicial district of the Territory ot Colorado, in and for the county of Jefferson, in a suit) depending ino said court between the Roeky Mountain National Bank, of Central City. Colorado, plaintiff, and the Union Gold-Mining Company of Colorado, defendant, judgment was rendered against the said Union Gold- Mining Company of Colorado ; and whereas the Union Gold- Mining Company of Colorado afterwards appealed from said judgment of said) court to the supreme court of the Territory of Colorado: and whereas the said supreme court of the Territory of Colorado did, on the eighteenth (Psth) day of February, A. D. 1St0, render a judgment in favor of the said Rocky Mountain National Bank, of Central City, Colorado, and against the Union Gold-Mining Company of Colorado, affirming the judgment of the said district court, and the said Union Gold-Mining Company of Colorado having obtained a writ of error from: said) supreme court ot the Territory of Colorado to the Supreme Court of the United States

to reverse the said judgment : Sis Now the conditions of this obligation is such that = the said Union Gold- Mining Company of Colorado shall prosecute said suit to effect and pay said judgment and answer all damages and costs, and if it failto make good its pleas, chen the above obligation to be void, else to remain in tall foree and ettect. THEODORE TL BECKER. (SEAL.

F. A. POTTS. (SEAL. | RDWARD AL QUINTARD. (SEAL. |! SAM. BONNELL, Ur. SEAL. |

Witness: CHARLES NETTLETON.

STATE OF NEW YORK, City & Comnty of New York. xs:

Frederic A. Potts, one of the subseribers to the foregoing undertaking, being duly sworn, says that heis a resident and treeholder in the State ot New Jersey. and is worth the sum of titty thousand (O00) dollars over all lus debts and habilities, and exclusive of property exempt by law from execution,

F. A. Potts.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 263

Subscribed and sworn to betore me this 27th day of Mareh, A. D. 18...

Witness my hand and official seal.

Seal. Charles Nettleton,

Commissioner for Colorado in New York.

So CO STATE OF NEW YORK, City & County of New York, ss:

Kdward A. Quintara, one of the subseribers to the toregoing undertaking, being duly sworn. says that he is a resident and ftreeholder Within the State of New York, and is worth the sum of fifty thousand thousand (SOOO) dollars over ail his debts and liabilities, and ex- Clusive of property exempt by law from exeeution.

Edward A. Quintard.

Subscribed and sworn to before me this 27th dav of Mareh, A. D. S75. as witness mv hand & offieral seal.

Witness my hand and official seal,

Seal. | Charles Nettleton,

('om missioner for Colorado in New York.

STATE OF NEW YORK, ('ity if County of New York, ss:

Samuel Bonnell, jr, one of the subseribers to the foregoing undertaking, being duly sworn, says that he is a resident and freeholder in the State of New Jersey, (of Elizabeth, New Jersey.) and is worth the

sum of one hundred thousand ($100,000) dollars over all his debts SSO) and liabilities, and exclusive of property exempt by law from execution, SAM. BONNELL, FR.

Subseribed and sworn to betore me this 27th day of March, A. D. 1S75., Witness my hand and official seal. SEAL, | , CHARLES NETTLETON, : ('om issioner for Colorado in New York. STATE OF NEW YORK, | City and County of New York, ss: be it remembered that on this 27th day of Mareh, A. D. 1875, before me, Charles Nettleton, a comtmissiouer of the Territory of Colorado in and tor the State of New York, residing in said city of New York, personally appeared Theodore H. Becker, Frederie A. Potts, Edward A. Quintard, and Samuel Bonnell, jr, personally known to me to be the same persons described in and who executed the foregoing Instrument, as parties thereto, who acknowledged to me that they had exeeuted the same freely and voluntarily for the uses and purposes therein mentioned, and that the same was their free and voluntary act and deed.

SS] fn) Witness whereof [ have hereunto set mv hand and affixed mv oficial seal this 27th day of Mareh, A. D. 1875. SEAL, CHARLES NETTLETON,

Conon issioner for Colorado in New York. 117 Broadiay, N. Y. City. NEW YORK CITY, N. ¥ a April Ist, 18%. The foregoing bond is such as I would approve as to sufficiency of

264 Ou. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

sureties, if given for a similar purpose in the supreme court of New York, if bondsmen were residents of this State, as required by our statute. JNO. KR. BRADY. Justice Supreme Court, State New York.

The foregoing affidavits of Messrs Potts. Quintard, and Bonnell are presented to me as satisfactory evidence that they, as sur/ties in the foregoing bond, are ample and good for the amount of such bond. | regard such atlidavits as satisfactory evidence of such facet.

April 6th, lav.

SAM L BLATCHFORD. District Suidye of the (Cnited States for the Nouthern District of New York.

S820 UNITED SLATES OF AMERICA, Southern District of New York, ss:

I, George IF. Betts, clerk of the district court of the United States of America, tor the southern district of New York. do hereby certity that lf am well acquainted with the handwriting of Samuel Blatchford, Whose name is subseribed to the annexed approval of surfties, and that the signature to the same is in his proper handwriting. And | do further certify that he was, at the time of signing the same—the said Samuel Blatchford was judge of the district court tor the United States of America, for the southern district of New York.

In testimony whereot, IT have hereunto subscribed my name and aflixed the seal of the said district court, seventh day of April, in the year of our Lord one thousand eight hundred and seventy-tive, and ot the Independence of these United States the ninety-uinth.

Clerk U.S. District Court for the Nouthern District of New York.

SS3 (Endorsed:) Taken & approved by me this 16 day of April, A. D. 1875.) Moses Hallett, ¢. j). sup. court Col. Ter. Filed April 17th, ISTH. Ino. W. Webster, clerk.

And afterwards, on, to wit, the 2Ist day ot May, A. D. 1575, there was filed in the office of the clerk of the supreme court of the Territory of Colorado the opinion of the court, upon final hereing ot the above eause, Which is hereto annexed in accordance with amendment to rule Sth of the Supreme Court of the United States, to be transmitted herewith, and is in werds and figures as follows, to wit:

Sup. court, Feb'y term, 1875.

"x

THe Rocky MOUNTAIN NATIONAL Bann. S

SS4 Hallett, C. J.:

Three trials, resulting in the same verdict. have been had iu this cause, and the tacts, so often determined upon substanctally the same evidence, May now be accepted as well established.

We have, also, considered the rales ot law which should govern the action, and have now to ascertain whether those rules were correctly ap

U. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CIfy. 265

plied at the last trial. Certain questions, considered and determined at former hearings, may be laid out of view, as they are not now in any manner Open to luvestigation in this court. Such is tne corporate existence of appellee, and its right to maintain an action for money loaned, exceeding in amount ten per cent. of ifs capital stock. Such, also, is the alleged misappropriation of the funds of the bank by its officers Which, it Was supposed, would render the transactions between the parties fraudulent, and thus defeat the action.

The authority of appellant to borrow money, not being expressed in

its charter, was also denied; but we were of the opinion that, as SSO.) debts might be created, in prosecuting its enterprises, which the

corporation would be legally bound to pay, money, might be borrowed for the same purpose, if the corporation was not expressly prohibited from doing so. We further declared that the tact of Sabin's aveney Was material to be shown, in order that it might appear whether he had authority to borrow money, and, if he lad no such authority, then as affecting the ratification of his acts by appellant.

Objections to the evidence offered to prove the tact, now again earnestly urged, were then discussed, and one conclusion Was that. in the absence of better evidence to prove an-agency, resort may be had to tacts Which tend to show recognition by the principal of the alleged avent's authority. That an agency may be proved by the habit and eourse of dealing between the parties is clear upon principle and authority. (Franklin vs. The Globe Insnrance Company, 52 Mo., p. 461.)

The circumstance that Sabin was in possession of appellant's mine,

carrying on business in its name, and was in communication with SSO its president, most certainly tends to prove the agency.

In addition to this, he testified that he was agent to appellant, and if his deelarations during the continuance of the agenev were drawn out, it Was not for the purpose of establishing that faet. but to explain his dealings with the bank.

It is not contended that au agency may be proved by the declarations of the alleged agent; but. the fact being otherwise established, tis declarations made during the continuance of the agency may be given in evidence to prove other taets. (Rowell vs. Klein, 44 Indiana. p. 297.)

The theory advanced in the opinions heretofore pronounced, that appellant must be hable upon its ratification of Sabin's acts, if at ail. was adopted upon the trial below. It has never been claimed that, lu virtue of his authority as superintendent of the mine, Sabin could borrow money In appellant's name, or that the promise of its president te pay the money obtained by Sabin would be binding upon appellant. Burt it Was supposed that appeliant. being advised of what had been done by

its avent in its name, and failing to disavow his authority within Soi oa reasonable tine thereatter, might thereby manifest its asseut to the transaction.

It was not, however, contended that appellant would be estopped to deny its ability upon any equitable principle. bat merely that its fall ure to respond to appellant's importunate demand would be evidence ot assent for the consideration of the jury. Po repeat the arguments and again refer to the authorities Qpon which this conclusion was founded would serve no useful purpose,

But it is said that the Jaw was net thus stated to the jury. snasmuch as they were told that aif the detendant did disavow the aets of Sabin in borrowing the motes from the piaratilt, if Was ineumbent ou the defendant to notity the plarititf of such disavowal, and to prove the giving

of such notice.

266 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

This fact of the charge should be read in connection with another, in Which the jury were advised to find as matter of fact, whether by its fuilure to disavow the agency appellant assented to the act of borrowing the money. So read, it means ouly that to make its disavowal

effectual and prevent the inference which the jury were at liberty SSS. to draw from its silence, appellant must notonly deny the authority

of the agent within a reasonable time, but notity appellee of the fact,

It was not said that appellant would be concluded by omitting to disavow Sabin's agency within a reasonable time after notice, or to give notice of its disavowal, but that such omission was evidence of acquiescence and assent, ipon which the jury might determine the fact. The authorities cited in our former opinion abundantly support this as the correct principle, and in addition thereto reference may be made to Ihelsev vs. The National Bank of Crawford County, 69 Penusyivania St., 426.

That was a ease in which the eashier of a bank, with the knowledge and approval of the directors, (but without express authority for that purpose.) had offered a large reward for the detection of thieves who had stolen money trom the bank. The plaintiff, having acted upon tie proclamation of the cashier, sought to recover the reward, and was resisted upon the ground that the cashier had no authority from the bank to make the offer; butait was held that if the bauk had notice of

the offer and didi not dissent from it, ratification and assent must Ss? be presumed. [Tt was also held that it Was not necessary to give

notice to the directors when sitting in their official capacity. It they were personally cognizint of the offer made by the cashier, it was their duty to call a meeting of the board and disavow the act if) they were unwilling that the bank should be bound by it. [tis trae that the plaintiff had acted upon the proclamation of the cashier. and, therefore, the bank could not deny his authority without iajustice.

But the rule laid down is quite as applicable to the case in which the Silence of the principal is regarded as evidence of his assent to the act of the agent, which the jury may, or may not, accept as sufficient to prove the fact as to that in which the principal is estopped to deny the authority of the agent, upon the ground that in doing so he would perpetrate a fraud upon him, or upon a third party.

In both cases the piineipal must disavow the unauthorized act of his agent within a reasonable time, but the consequence of his not doing

so Is not the same in each. In one case the conduct of the SOO) principal may be interpreted by the Jury as evidence of his assent

tog What has been done in bis name, and in the other he is estopped to deny the authority of the agent. In either case his conduct affords evidence of an intention to ratify, but it differs in degree and In the principle of law by which it is tested.

It, therefore, in the ease cited, it Was necessary that the bank should disavow the act of its cashier in order to avoid lability. tu the case at bar it was equally necessary that appellant should repudiate the debt ereated by its agent. in order to avoid the inference which might be drawnh trom its silence. Notice to appellee of the disavowal was a necessary part of the act itself. Thomo other way could appellant break the silence: which the biw regards as atfording evidence ot an intention to ratify.

No error appears in this part of the charge, and other portions of it appear to be in harmony with the principles heretofore announced as goverming the action.

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 267

Further support to our conclusion, that notice to the president

SUL of appellant, and his undertaking to bring the matter before the board of directors, was suflicient to charge the corporation with notice of Sabin's dealings with the bank, may be found in the case last cited. In that ease it was said that if the directors were personally cognizant of the offer made by the cashier, it was their duty to eall a meeting of the board and disavow the act: so here the officers of the bank were seeking to obtain satistaction of their demand against appellant through its president, and, as we have repeatedly declared, it was the duty of appellant to act upon the information thus obtained, if it desired to repel any presumption that might be drawn trom its silence.

A kindred principle controls the objection that a portion of the work at the mine was upon property owned by Sabin and Becker, adjacent to appellants. The president of the corporation had fuil knowledge of the character of the work, and much of it was done by his direction. It is said that notice to an agent of a corporation of any matter under

his management and control will etteet the corporation, although S02 not actually communicated to the latter. The Pittsburg Railway Company vs. Ruby, 58 [diana, p. d22

The president was allowed to exercise general authority respeeting the operations at the mine, and, according to what we have heretofore said in this case, the company must be responsible for his management. The pretence that this work was done tor the purpose of Improving the property owned by Sabin and Becker is not supported by the evidence. In one of his letters to Sabin, Becker, who was then president of appellant, directed him to extend Ins adits so that more ore could be reached, and this was done quite successfully, half the valuable ore being obtained trom No. 5, west: upon that claim the vein was stoped out trom sixty to eighty feet in height, a circumstance which is altogether inconsistent with the theory that the level was ran for development oniy. In the west half of discovery claim but little was done, probably tor the reason that it Was unproductive, and, as to the whole,

we were entirely correct in our last opinion in saying that the S95) mining done upon the property of the president and agent of the

company Was quite as much the act of the company as that done upon ifs owh property.

Reconsideration of the authorities upon which we determined that proof might be offered to show that the money obtained from the bank was expended in the mine, and that it was beneficial to appellant, as affecting the question of ratification, has not shaken our conclusion, and we have nothing to add to what was said upon that point when the case was last betore the court.

Two promissory notespfnade by Sabin in appellant's name, and payable to appellee, were offered ip evidence by appellant for the purpose of showing payment of the amount therein speeified, and also as a material part of Sabin's dealings with the bank: and it is urged that the court should have received them. That no portion of the debt was discharged by them is a proposition that it is not necessary to discuss, tor itis well settled * that nothing can be justiv considered as payvinent

in tact but that which is in truth such. unlesss something else is SO4 expressiv agreed to be received in its place. The Kimball, 4 Wallace, p. o7.

Here there Was noagreement that the votes should be accepted tn payment of the sum tor which they Were given, or of any sum: and whether Sabin had or had uot authority. to execute them. the rule ts the Same, Nor is it perceived that Thie\V Were Hecessary To explain the }O-

26% 1. G. M. CO. VS. ROCKY MT. NAT. BK. OF CENTRAL CITY. e

sitions of the parties Appellee was not seeking to charge appellant upon these notes, and they had been cancelled in open court at a previous term. If in giving them Sabin assumed to act as appellant's agent, he had already done so in creating the indebtedness to the bank, and this, at the utmost, was a promise in another form to pay an indebtedness Which then existed. As appellee was not relying upon the notes, it is difficult to perceive how they could affect the question at issue.

The minutes of proceedings of two meetings of the board of directors and one meeting of the stockholders of appellant, offered ino evidence upon the trial below, and excluded by the court, were not shown

to have been made by the proper otticer of the company. The S95 president of the corporation testified that he was present at the

meetings, and that the record was correct: but the secretary, by Whom the minutes were kept, was not called, nor was his absence explained,

Whether all of the facts recited in the minutes might be proved by the books of the corporation is a question of some difficulty, which 1 is not necessary to discuss. The most important of those facts was the rejection of appellee's demand and the disavowal of Sabin's agency, which is alleged to have occurred at a meeting of the stockholders held April 5, 1569, That such rejection and disavowal Is a Corporate act, of Which the record would be the best memorial, is) plain enough, and therefore oral evidence as to the proceedings of that meeting was properly excluded. Angell & Ames on Corporations, § 679. But proot that the book was kept by the corporation as a record ot its proceed. ings Was hot asuflicient authentication without further evidence to siiow that the entries were made by the proper officer. Whitman vs. Granite

Chureh, 24 Maine, p. 256. SO Generally it appears to be necessary to eall the clerk or office who made the entries, if he is living, and if he is dead, to prove his handwriting. Stebbens vs. Merrill, 10 Cush., p. 27, and Union Bank vs. Knapp, 3 Piek., p. 196.

Obviously, a corporation relying upon its own record to establish its acts, With all the evidence of correctness at its command, should be held to strict proof, and that offered by appellant was clearly insuthcient. Another reason for rejecting the proceedings of April o, 1869, is that the affairs of the corporation were in the hands of trustees or «l- rectors, and the stockholders had wo authority in the premises. Gash- iVeler vs. Willis, 5 California, p. 12. 7

Doubtless the stockholders might instruet the trustees as to the course to be pursued, but the power of the COPPOrATION Wats vested In the trustees, and thes only eould CXPTess Its will.

ln conclusion upon this point, it should be observed that ali evidence tending to prove repudiation of the debt, or disavowal of Sabins au thority, by appellant or its officers, communieated to appellee or its

Officers, Was betore the jury, and if it was not accepted by them, Soe it was probably beeanse if was strongly econtreverted by o ler testimony,

examination of the jurors Natt and Perrin disclosed pretty me arly the same tacts, and we shal) necessarily determine the competency of both of them in considering the objection to M'r Perrin, who sat at the trial, The record does not state whether the challenge was for prine) part eause orto the favor: but, as the eround ot objection Was that the Juror had formed and expressed a disqualitying opinion upon the merits of the case, We may assume that it Was tor principal cause.

lt we should regard the challenge as made to the favor, the decision

®

®

/ U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 269

of the court upon the evidence as to the supposed bias or partiality of the juror would not be open to review in this court. Solander vs. The People, February term, 1875, and Sanchez vs. The People, 22 N. Y., p. 147.

Considered as a challenge propter affectuim, the question is whether

the juror had formed and expressed a fixed and determinate opinion as to the matter in issue, for if his opinion was conditional ouly, it

SUS) owas. ground for challenge to the favor. Pringle vs. Huse, 1 Cowen, p. 456, note.

And upon this point it is to be observed that the juror obtained his Information main'y from one Evans, who sat as a juror at a former trial, and, when asked by the court Whether Mr Evans' statement would have any influence upon his mind in the trial of the cause, he auswered, "| think it would."

The question was then repeated in another form: ' You think you would be governed, to some extent, by what he said?" To which the juror replied: ** It he related to me the facts as he considered."

From this it is apparent that the juror had no opinion, or only such Opinion as one vets from the casual statement of another, as to the truth of what he bad heard: but. if such statement of facts was correct, he then had an opinion as to the justice of the ease. This is a lhypothetieal or conditional opinion, such as any one will form when the tacts out of which a controversy has arisen are stated in his hearing.

Formerly it Was supposed that almost any report of the facts in the

ease Would so affect the mind of one who heard it that he would S09 be Incompetent to sit at the trial of the same case, but since

newspapers and telegraphs have come into use as a means of spreading intelligence of all events, it has been found necessary to adopt a ditterent rule, of the necessity the case at bar affords an excellent Hlustration. Twice tried in a small community, it is doubttul whether so many as twelve men who had never heard of the case could have been found in the county at the time of the third trial: and if they could have been found, it is more doubttul whether they would have been fit persons to decide the issue.

We now say that an opinion founded upon rumor or uncertain report, Which has not taken firm hold of the mind, shall not disqualify, and our legislative assembly has said that in criminal cases no opinion whatevel shall disqualify, if the court shall be satisfied that the juror will render an impartial verdict. 9 Sess. 4.

This rule relates more to the quality of the opinion than to the

900 evidence upon which it is based, for the real question is whether

the Juror stands indifferent between the parties. The veneral

rule that he who has heard rumors and reports only is competent, and

he who has had a full relation of the facts from witnesses or parties Is

disqualified, is intended as a guide to general results, and is not without

eXceptions, One man may forma tixed and decided opinion upon Vague

rumor, While another remains quite indifferent after hearing all the evidence,

Much depends upon the intelligence, candor, and mental constitution of the juror, lis associations with and relations to the parties, and therefore the court where the cause is tried, having an opportunity to Observe lis manner and hear lis auswers to questions, can judge more

orvectly as to lis fituess than any appellate triounal Much relance Is peut Upon his Own estimate of tits ability fo 6@sist aby Li pressions that .}@ may have received, and although it is entitled to great consideration it is not always controling. One who confidently asserts that

270 U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

he ean disregard all that he has heard respecting a case may be 'H) I no better able to do so than another who is more regardtul ot his

duty or less confident of his strength in resisting impressions Which he has received,

[tis urged that M'r Perrin wis of the opinion that what he lad heard from M'r Evans would affect his conclusions in the case, but, evidently, these expressions tell out of a scrupulous and tender care tor the duty Which he was called to perform. Tle was not acquainted with any of the officers of either corporation, and le felt no interest In the result of the controversy. Tle had not talked with any witness, nor had the credit of any of them been discussed in his prese:ce. It dges net appear that he was acquainted with any of the witnesses, and all the information that he had respecting the matters in issue was the gossip of social lite concerning a notable cause. Tle was willing to discharge his duty as a juror, and he perfectly understood what that duty was. But

for his fear as to the effect of the report which he had heard, 902 upon his mind, no one would doubt his competenes, and, considering

all the circumstances, If is impossible to believe that such report would create in his mind a fixed and determined opinion dangerous to the rights of the parties.

For an elaborate discussion of the views here suggested on this point counsel are referred to Jackson vs. Cane. 23 Grattan, p. 919.

Other questions presented in the briefs of Counsel have been discussed in the first and second opinions filed in this cause, and, as we now find no error in the record, the judgment must be atlirmed,

Mr Justice Wells dissenting.

(Endorsed:) L54—20. Union Gold-Mining Company vs. Tie Rocky Mountain National Bank. Opinion. Recorded. Filed May 21, 1575. Jno. W. Webster, clerk.

905 TERRITORY OF COLORADO, ss:

[, Jno. W. Webster, clerk of the supreme court of the Territory of Colorado, do hereby certity that the above and foregoing is a true, correct, and complete copy of the transeript of record, and that I have compared the writings annexed to this certificate and they are true copies of their respective originals, except the writ of error and citation, the originals of which are hereto attached, and are correct transeripts of all proceedings had in the supreme court of the Territory of Colorado now on file and remaining of record in my office in the suit of The The Union Gold-Mining Company of Colorado vs. The Rocky Mountain National Bank of Central City, Colorado.

' testimony whereot | have hereunto set my hand and aftixed the seal of the supreme court of Colorado Territory, at Denver, this 28th day of August, A. D. 1875.

[SEAL. | JNO. W. WEBSTER. Clerk Supreme Court Colorado Territory.

4 Clerk's fees for transeript: 1,671 folios @ 20, $354.20; certit' & seal, $1.00; total, $335.20, Received payment of Theodore H. Beeker. INO. W. WEBSTER. Clerk Supreme Court Colorado Territory.

ee ee Ree SE

one ee SEE

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 271

-

QOD Fee bill.

Gi. D. No. 154, term No. 20. Record-book 1, page 436. Fee-book 1, page 3l1o.

In the supreme court, February term, A. D. 1875.

UNITED STATES OF AMERICA, Territory of Colorado, SS :

IN THE MATTER OF THE UNION GOLD-MINING | Company of Colorado, appellant. | Appeal from district rersus > court Jetterson THE Rocky MOUNTAIN NATIONAL BANK OF | County. Central City, Colorado, appellee. \

Fees.

Dal. clerk's fees supreme court, unpaid, -dok tng suit,

25.00; index'g, 50; filg appeal, $2.00 2. 2... ....-.-. Got Rat. o8 3 trial @E, @ Day Geiaew + nos. eis cecden es sense Boe Ent. app. dattUy, @ 25. 81.25; ent. 2 mo. & 5 ord., @ 50, Dats ans ences + eat ea ae ae aes le ae eee iv 2a Ent. final judg'ts, $1.00 00.00... ji nha: ae ee eee 1 OV Recording opinion, 55 fo's, @ 2, SS.70 0.2.0 22. we ee. 8 G5 Copy of final order, certit.. & seal, ¥2.00; filing 5 papers, @ 25, $2.00........ ee 2s eae ee Ree a 2 Pom Bi a Ge Oe SU 5k ho hk a ie set enets: cow " 00 Iss. writ of error to U.S. Sup. Court ........-. w-wh oe ee GR AOE... i. a dba bes he eae e eee B30 25 Pane OY BROT, GEE FOO <6n sce s dnb eeccwanes ender 10 OO eo CS 8 ee ee ee ee ree ihe Sates iva ae Fees for transcript of record U.S. Supreme Court, 1,671 to's, @ 20, SORBO: corte. GH weths Bs os nce ee ckul eviaweens -«o. oo OGRE Ceeee 6 TOOW WINE 6 a ko. oc is 6k ence edeeeenee #555 45

Received pay't oft— SEPT. ZSTH, 1875. Received payment in full of the within of Theodore H. Becker. JNO. W. WEBSTER, Clerk.

I hereby certify the foregoing to be a true copy trom my fee-book of

the balance ot taxed bill of costs herein. INO. W. WEBSTER, Clerk.

90 Know all men by these presents that we, The Union Gold-

Mining Company of Colorado & Frederick A. Potts, kdward JA. Quintard., and Samuel Bonnell. fro are held & firmly bound unto the Rocky Mountain National Bank of Central City, Colorado, in the full & just sum of thirty five thousand dollars, (335,000,) to be paid to the said Rocky Mountain National Bank. its certain attorney, successors, Or as- Sicha, to Which payvineniy well and truly to be made, we bind ourselves, our belrs., executors, & administrators, joluthy and severally, by these

272 =U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City.

presents, sealed with our seals & dated this fifteenth day of May, in the vear of our Lord one thousand eight hundred & seventy-six.

Whereas lately at a term of the supreme court in the Territory of Colorado, in a suit depending in said court between The Rocky Mountain National Bank, plaintiff, & The Union Gold-Mining Company, defendant, a judgment was rendered against the said gold-mining company, & the said gold-mining company having obtained a writ of error, & filed a copy thereof in the clerk's office of the said court, to reverse the judgment

in the aforesaid suit, & a citation directed to the said na- 907 tional bank, citing & admonishing it to be & appear at a

Supreme Court of the United States to be holden at Washington the second Monday of October, 1575:

Now, the condition of the above obligation is such that if the said Union Gold-Mining Company shall proseeute its said writ of. error to effect, & answer all damages & costs with just damages for delay if it fail to make its said plea good, then the above obligation to be void; else to remain in full force & virtue.

THE UNION GOLD-MINING COMPANY OF COLORADO, [SEAL. | gy BF. A. COTTS, Secretary. FE. A. COTTS. |SEAL. | EK. A. QUINTARD. [SEAL.| SAM. BONNELL, J'R. [SEAL. | Sealed & delivered in presence of— DAN'L SEYMOUR.

SOUTHERN DISTRICT OF NEW YORK, 88: I'. A. Potts, of Pittstown, New Jersey ; Edward A. Quintard, of 908 No,38 West J8th street, city of New York; Samuel Bonnell, junior, of Elizabeth, New Jersey, being severally duly sworn, do each depose and say that they are householders, and that they are worth the sum of seventy thousand dollars over and above their just debts and liabilities and property exempt by law from execution. KF. A, COTTS. EK. A. QUINTARD. S. BONNELL, JR.

Subseribed and sworn to betore me this loth day of May, 1876. [SEAL. | JOHN A. SHIELDS, L. NS. Commissioner S. D. of N.Y.

SOUTHERN DISTRICT OF NEW YORK, ss:

On this 15th day of May, A. D. 1876, personally appeared before me I', A, Potts, secretary of the Union Gold-M.ning Company of Colorado, KF. A. Potts individually, Edward A. Quintard, and Samuel Bonnell, junior, who, being by me duly sworn, did depose that they are the persons described in and who exeeuted the within bond, and acknow!l- edged betore me that they executed the same for the purposes therein set torth.

909 Foregoing bond approved as to suificiencey of the sureties and as to form & manner of execution.

May 2d, 1876, WARD HUNT, Asso. Just. Sup. Ct U.S,

U. G. M. Co. Vs. Rocky Mt. Nat. Bk. Of Central City. 273

Southern District Of New York, 88:

The foregoing affidavit, signed & sworn to by Frederick A. Potts, Edward A. Quintard, and Samuel Bonnell, junior, and the foregoing acknowledgment made by said persons are presented to me as satisfactory evidence that said persons as sureties on the foregoing bond are ample and good for the amount of said bond, and that said bond is duly executed. I regard such affidavit and acknowledgment as evidence sufficient and satisfactery of such facts, and the bond is such as I would approve as to its due execution and the sufficiency of the sureties if the approval were within my judicial province.

SAM. BLATCHFORD, District Judge of the United States for the | Southern District of New York.

(Indorsed :) Sup. Court U.S. 1876, Oeto. term. No. 393. The Union Gold-Mining Co., pitt in error, vs. The Rocky Mountain National Bank of Central City, Colorado. Additional supersedeas bond. Filed 23 May, 1576.

(Indorsed:) The Union Gold-Mining Company of Colorado, plaintiff

in error, vs. The Rocky Mountain National Bank of Central City, Colorado, defendants in error. Error to the supreme court of Colorado Territory. 'Transcript.

(Indorsement on cover:) No.157. The Union Gold-Mining Company of Colorado, plaintiff in error, vs. The Rocky Mountain National Bank of Central City, Colorado. Colorado Terr'y sup. court. Filed 6th October, 1875.

Rec. 157—18

oO

Supreme Court

Of The United States.

Pret

THe UNton Goitp MINING Com- PANY OF COLORADO, Plaintiff in Lrror,

against

THe Rocky MouNTAIN NATIONAL BANK OF CENTRAL Ciry, CoL- ORADO,

Defendant in error.

Krror to the Supreme Court of the Territory of

Colorado. STATEMENT OF CASE,

The plainti® in erroris a New York mining cor, poration, organized under the general laws of that State, and was defendant below. Defendant in error Is a National Banking Association in Central City, Colorado.

The Bank sued the Mining Company in assumpsit for over-drafts on a bank account (Record, p. 5). A

copy of the account is attached to the declaration

aren

down, and the ofliee rented.

2

Defendant pleaded the general issue and seven special pleas (pp. 16 to 19). The second special plea was afterwards withdrawn (p. 25). To the other special pleas plaintiff below demurred (pp. 19, 20), and the demurrers were sustained (p. 26).

On the general issue the Bank had a verdict and judgment. Defendant below made a bill of exceptions, Which contains all the evidence.

The case presented on the trial was this:

Defendant below was a New York mining corporation, organized under general laws, and owned some mining property in Colorado. Tn April, 1865, defendant was working some of its mines, and had employed one George Ik. Sabin as its) superintendent. [fis instructions were ino writing—indicated the special work to be done, and required it to be done by contract.. In April, 1866, Sabin resigned his position as superintendent, and = thereatter the defendant ceased working its mines in Colorado, and had its property there stored, and directed its officers to loan its funds on undoubted eollateral security (pp. L72-175). In) October, TS866, Sabin proposed to defendant to himself work one of defendant's mines on lis own account and at his own expense, and as a royalty therefor to pile up for defendant all the first quality of ore, reserving tor himself the second and third quality ore,

Conder this arrangement Sabin returned to Colorado in latter part of November or December, 1866: and took possession of the Companys mine and commented to work it "on his own hook."

While Sabin was away the Companys property had been ineare of a watchman, its books and papers had been removed trom = its offiee, its sign taken

A A, Oi, RA te tly Ee ee ee

ee ee ee

om — Hx

LA in, ty ts tly ely matte ef ee }

eel, Mi

ee

om -—— Px

Sabin borrowed some money of his friends and

started work on the mine on his own account, in November or December, TS66.

fu March, S867, Sabin opened an account with the defendant in error, plaintiff below, in the name of defendant below. The account appears on page 7 et seq. of the record, and it is a suggestive feature of the account that it should lave commenced with over-drafts; the first deposit of $445.75 on Mareh S0th, apparently being made to balance the two checks that had been paid on the sth and 25th Mareh.

Sabin had no authority to open this account in the name of the defendant below,-and no authority to borrow money for defendant by over-dratt or other- Wise,

The account canon through PS67 and TS68, with a gradually inereasing balance of over-dratt, until on the 16th December, IS6S, it amounted to over twenty-one thousand dollars.

Upto this day there is no question but that the opening of this account, and the ineurring of this Indebtedness by Sabin, were unauthorized by the defendant below. The Court so charged the jury Ih clireet terins. |

The only question for the jury, and the only question submitted to the jury, was whether, subsequent to that date and the l6th day of April, 1869, when the suit was commented, the detendant had not ratified these acts of Sabin, and thus become responsible as if Sabin had been authorized.

In relation to ratification the evidence was this:

On the 16th December, ISOS, Potter. a hookkeeper of the Bank, called on Becker, President of defendant

. Becker had large mining interests of his own

wr hor Waa ays

XS ce Ss "Oba: ee ee ee ee =~ _

s 4

in Colorado, and happened then to be in Central City.

Potter told Beekerof the account Sabin had made, and asked for its payment or that it be secured,

Becker repudiated the debt, but on the assurance that it had been lawfully incurred, assured Potter that it was all right.

fn further conversations with officers of the Bank, Beeker was assured that) the money overdrawn had been used by Sabin for the defendant below, and then promised to write to the company in New York and see what they would do about it. Phe Bank offieers tried to get Beeker to sign some contract or agreement to payoas President of the Company. Becker refused to sign anything as President, but finally, as an individual, stoned a letter to the Bank wherein he reecoonized the over-draftt as a debt of the Company. This was on the dst January, PS6o. Beeker then wrote to the Company in New York enquiring whether any new arrangement had been made with Sabin, giving him authority. to open a bank account in their name, and overdraw, and was

answered in the negative, and so informed the Bank;

and afterwards, at meeting of the stockholders of

the Company, the stockholders refused to acknowledge the debt or make an assessment to pay it, and the Bank was informed of it. The evidence as to the Bank being notified of this refusal, is somewhat contlieting as to details, but there can be no doubt it was so notified.

The Court charged the jury that Sabin had no original power; that silence by the Company after notice of What Sabin had done might be considered by the jury as evidence of a ratification of his aets.

Certainly there was no other evidence of ratifica-

> LO AA A et a

>» an ey

5

tion in the case. The Bank had a verdiet, and a motion for a new trial being overruled, judgment was entered, and an appeal to the Supreme Court of the Territory was affirmed, and a writ of error taken to this Court. |

The evidence shows that there was no question as to the actual relations between the defendant below and the man Sabin.

Sabin himself, and the officers and records of the defendant, were the only witnesses on that point, and all the testimony agrees that Sabin was merely allowed to work the mine on payment of a royalty of the first class ore.

The only evidence produced by plaintiff below on that point, except Sabin's, was that of persons who said Sabin was agent because they saw him running the mine, and some letters of Beeker addressed to him as Superintendent. In a word, assumptions of being agent were offered as evidence of the fact.

Podln Ts.

Firs¢.—The Court below erred in sustaining the demurrer to the special pleas.

These special pleas in substance averred that the plaintiff below was a National Bank with a capital of but $50,000, and by the Statute had no power to loan the defendant below the sum sued for, or any sum exceeding $5,000.

These pleas are tonnded on © 29 of the Act of 1864, 15 Stat. at Large, p. 108, being See. 0,200 of the Revised Statutes.

6

The Section provides that the total liabilities toa bank of any person shall not exceed one-tenth of its capital actually paid in.

The Court below, on the demurrer, held these pleas bad,on the ground that they were pleaded to the whole declaration, and could be a defense only to the count for money loaned (see report of this case, Ist Colorado Rep., 551); but the Court say that inasmuch as on another trial the question may be made on the evidence, they willdecide on the merits of the plea as to the count for money loaned,

On this trial the question was raised on the evidence.

Defendant's question, p. 206, fol. G91, " What was the capital stock of your bank tn 1867 and IS6S8 ? Objected to; objection sustained, and exception by defendant. Defendant offered — to prove by the witness that In L867 and T868_ the capital of the plaintiff below was $50,000 and no more. Objeeted to; objection sustained, and defendant exeepted."

The Court below, in considering the question raised by these pleas, and this offer of evidence, argued that the Statute was rather in the nature of a direction to the officers of a bank than restrictive of its powers; also, that penalties had been provided in' the Act for a violation of this provision, and therefore such loans were not void (see Ist Colorado, 551).

The language of the Act, however, is not directory. The language is: ' The total labilities to any association, of any person, ete., for money borrowed, shall at no time exceed one. tenth part of the amount of the capital stock of

oe Sada

Sd -

=o a

7

such association actually paid in." The language is not that the directors, or even that the association, shall not dend—it is absolute prohibition that the liability of any person to a bank shall exceed, in this case, five thousand dollars.

In other words, the statute is conclusive that no one person or corporation owes to this bank, having a capital of 850,000, more than five thousand dollars.

Again, > 55 of the Act of 1864, being § 5239 of the Revised Statutes, provides no penalty for a Violation of this section. That section provides the penalty of forfeiture of the tranchise of any bank * whose directors shall knowingly violate or knowingly permit any of its officers to violate any of the provisions of the Act." In such forteiture knowledge of the directors is an essential element, While in the 29th section R.S., 5200, no reference is made to knowledge or directors. and the existence of the Indebtedness is prohibited.

The argument that, to hold the loan void would be to defeat the objeet of the Act, by destroying the very property it was intended to protect, Is not sound.

The intent was absolutely to prohibit loans to one person beyond the ten per cent., because of the great danger of such loans. Holding them void in one case of course deprives that one bank of any recourse against that debtor, but it provides a rule which prevents any recurrence of such a case; while to say that a loan in exeess is mere ground for forfeiture, provided it shown to have been made with knowl-can

be edge of the directors, Is so to emaseculate the

i en

8

provision of the statute that it becomes practically worthless as a protection. |

In a very similar statute as to moneyed corporations in New York (Ist R.S., p. 589, $1, or 2d R.S., Banks, 6th ed., p. 297, § 1), prohibiting the making of loans to directors to an aggregate amount exceeding one-third of the capital stock, it was thought necessary to add the special clause that no securities taken for such loans should be invalid.

The general rule is familiar. A contract prohibited by statute is void, though the statute does not in express terms declare such contracts void (Story on Contracts, $615). This doetrine is clearly stated by this Court in Harris v. Runnels, 12 HLloward, 79.

True, in that case the Court avoided holding the contract void, but the reasons do not apply to the ease at bar.

The soundness of the decision, too, may well be doubted. Two very able Judges dissented, and the ease lays down no clear or definite rule. It was rather an illustration of the maxim that hard cases make bad law.

The rule that a eontraect prohibited: is a eon-tract void, is simple, clear, and certain. = It attains the desired object. To fritter away such general principles on the occasion of hard eases is one of the most dangerous tendencies of Judge-made law. Certainty, which is the best clement of the law, ean only be found Dy astriet adherence to its clear prineiples. We cite a tew illustrative eases:

Seneca Co. Bank ¢«. Lamb, 26 Barb., 595,

q and cases cited in the able opinion of | Davis, J. i )

ae Libby v. Downey, 5 Allen, 299. '

Ferg asson «. Norman, 5 Bing. N. C., 76. H

39 Eng. Com. Law Rep., 51; Ernest v. Nichols, 6 Louse et Lords Cases, 401.

second.—The Court erred in admitting and rejeeting evidence, and in charging and refusing to

| : charge the jury in the following instances : Before dwelling on specific errors, a brief reference to the general character of the case may

not be out of place.

| The Court charged, and the evidence, to say

the least, showed that, whether the defendant

below had ratified an unauthorized act was the

only question submitted to or passed on by the

jury. The whole evidence is printed in' the

record, and we submit that the record is absolutely

bare of evidence of ratification.

When in January, 1869, the President of defendant below, while in Colorado, is) intormed of what was done, he discharges the man who had assumed to do the act. The defendant below was doing no mining and transacting no business in Colorado. It was merely a New York corporation owning mines in Colorado, but not working them. |

At this time, then, the President of defendant below wrote to his Company, informing

2 them of what had been done; and as soon as

10

time would allow, received reply that it was | totally unauthorized. | Defendant's President says he communicated this reply to the plaintiffs officers. They deny it. This—and testimony that the pretended agent used some of the money borrowed in defendant

's mine, though working it on his own ae-count

for a stipulated roy. Ity—is the only evidence

of ratification. 7 + This was submitted to a jury, and although |

they found for the plaintiff, it is but an illustration

of the soundness of the Lord Chancellor's

remarks in' Ernest vs. Nicholls, 6 HL. Loids' Cases, 422: "ITtis a captivating argument tor a jury, and jurymen are very often misled by it in these cases of joint-stock companies, but it , is very likely to produce = injustice—that the company has had the benefit of the plaintiffs yl goods, or service or money; Whereas, for the

purposes of contract, the company exists only : in the directors and officers acting by and according to the deed," and is not liable ' for the act of ene or more of its members who are distinct persons by law."

Third.—The Court erred in overruling the defendant

's challenge tor cause to the juror Perrin. (Record, pp. 44, 45, 46.)

The Juror testified that he had formed and expressed an opinion, p. 40. That he formed it from conversations with persons who had been jurors on a former trial. Oue conversation was

as oo wt Fw te

oo

—

nin

Pm

a — Pe eee

11

but three weeks ago with a juror named Evans, and Evans must have been an hour telling him about it, p. 46. He thought what vans told him would intluenece him as a juror.

The jurer also said that the conversation had given him some prejudice, and that he was biased to one side.

There was not a word to modify this bald statement that the juror had in a long econversation talked over the case with a juror on a former trial, and had from that formed and expressed an opinion which: he believed would influence him as a juror, and gave him a prejudice and a bias.

The Court below was mistaken as to the faet when in its opinion it stated that the record "does not state whether the challenge was for principal cause or tor favor," p. 268. The record does state "Here the defendant challenged the juror Perrin for caise" p. 46, and the overruling of the challenge and exception,

We urgently request the Court to read the testimony of the juror Perrin, and compare it with the partial extracts made by the Court below in its opinion. The testimony shows an opinion formed not from hearsay or rumor or casual statement, but from an hour's conversation with one who had been a juror on a former trial, and who of course spoke from his investigation. If such an opinion will not sustain a challenge for principal cause, none ean.

12

3 Fourth.—The Court erred in excluding the ques- | tions on cross-examination to the witness Sabin, respecting the giving of the notes, and what was said on that occasion (pp. SL to 54 inclusive, and pp. 86 and 91).

Sabin had testified, on direct) examination, that he had opene Lan account with plaintiff in name of defendant, and that he drew cheeks on that account as agent. To prove his authority as avent, he had testified that he used the cheeks

in paying for labor and material in working de-ee

fendants mine. Sabin had also testified that there was an indebtedness of defendant to plaintiff on the Ist October, 1868. That he did) not remember the amount, and that it afterwards Increased, and that the total indebtedness in December was some $25,000 (p. 55).

Now the testimony asked for by defendant, and excluded by the Court,was to the effect "that on the 5d Oetober, 1868, this aeeount stood on plaintifPs books a little over 810,000 against the defendant. That the account was then credited $10,000—the amount of certain notes

defendant. That at that time Sabin told the

plaintifPs cashier that he had no authority to

give the notes, and no authority to run the Com-

"pany in debt. That Goodspeed, plaintiffs eashier, still urged him to give the notes, and that he finally consented on condition that knowledge of the facet should) be kept from Becker, defendant's Presideut, who was then in town, which was agreed to, and knowledge thereof was kept from him."

It is no objection to the admissibility of this

that Sabin had assumed to give on aeecount of

13

evidence that the notes are not sued on, or that they were afterwards canceled.

The evidence tends to show that at this time, when the over-draft was but ten thousand dollars, this pretended agent Sabin in direct terms informed pla' atiffs cashier that he (Sabin) had no authority to run the defendant in debt, and that he looked te the proceeds of the mine to pay the debt.

That being so, there could be no decent pretense that the subsequent over-drafts could have been made on aeceount of defendant. That cheeks were drawn in defendant's name is noth- Ing, if both Bank and Sabin knew, as thereafter they certainly did know, that Sabin had no authority to draw in the name of defendant, and was really only transacting his own business under defendant's name.

Surely, if the Bank did not intend to lend, defendant knew Sabin had no right to borrow for defendant really dealt with Sabin in defendant's name, it cannot recover in this action.

But this evidence was admissible as part of the res gestae. It was part of the dealing with this very account sued for—a part of the very transaction on which the suit is brought. The account itself on the books of the bank shows the tredit of the notes, and the credit then erased, and defendant had a right to know all that took place in relation thereto, notwithstanding that the giving of the notes might be no payment.

14

Fifth.—The Court erred in excluding the answer of the witness Sabin, to cross-interrogatory 126, page 85: " Do you know from any officer of plaintiff, that the defendant in New York repudiated and denied the debt with plaintiff in January, 1869 7"

To this question the witness said, that Mr. Goodspeed, plaintiffs cashier, came to him in January or February, 1869, and told him = that Mr. Beeker had received a letter from New York, utterly repudiating the debt, Xe.

By turning tothe charge of the Court on the trial, and to the fourth instruetion given at the request of plaintiff (p. 221), it appears that the jury were instructed, that not only repudiation of Sabin's agency by defendant, but notice

' thereof to plaintiff}, was necessary. (See also, opinion of Court below, p. 266, fol. 8838.

Now, the excluded testimony showed directly that plaintiff had such notice. Not because Gioodspecd, its cashier, said so, but because his saying so was In itself knowledge of the fact notice of which the Court says must be brought home to the bank, and the knowledge of the eashier is the knowledge of the bank.

Sixth—The Court erred in exeluding the answer to the 127th cross-interrogatory, p. 85. The testimony excluded was to the effect that the witness had had a conversation with plaintiff's President, and had fully stated the ease to him, and that thereatter the President had told Lim that

15

he, Sabin, was liable for the amount. Surely defendant had aright thus to show the conditions under which the witness testified, and that it was his interest that the plaintiff should recover of the defendant that the witness might escape.

Seventh.—The Court below erred in admitting in evidence the statements of Beeker, President of defendant. It was mere hearsay.

This point was raised by a great many exceptions throughout the trial.

On page 94, the witness, Goodspeed, plaintiffs eashier, was asked: " Did you have any conversation after you returned in' January, 1869, with Theodore HL. Becker, concerning this indebtedness, or with reference to this account ?"

To this defendant objected, on the ground that Beeker had no authority to bind the defendant. The objection was overruled; the defendant excepted, aid the witness answered that he had such a conversation, and that Becker said that the debt should be paid.

A part of the answer was specially excepted to, fols. 300 to 301.

On the next page, also, the witness was inter-

. rotated about a conversation with Becker on the

| 9th March. The testimony was objected to,

allowed, and defendant excepted (fols. 304

i and 305). : The same kind of evidence was offered, objected

to, allowed and exception on page 102

Hore 0 sector AC, ICE ee, 5,

16

—top of page; also on balance of that page, and on page 105.

On page 102 the witness, Potter, testified to a letter Becker had written at the solicitation of Mr. Kountze, an officer of plaintiff. On his cross-examination, this witness testified that Kountze had proffered another paper, which Becker had refused to sign, and that he, Becker, was asked to sign this letter in an official capacity, and refused, p. 107.

Plaintiff then offered the letter in evidence. It was objected to by defendant, admitted, and an exception taken. The letter is printed on page 108.

In the testimony of Charles B. Kountze, p. 116, the question was also raised with this additional feature, that the witness stating the conversations of Becker with the witness was not even an officer of the plaintiff. This witness also says that he asked Becker to sign same paper and that he refused, and that he refused to sign the letter presented on page LOS as president, p. 117.

(The officers of plaintiff were Tlerman Kountze, President ; Goodspeed, Cashier; and Potter, Assistant Cashier, p. 124.)

The evidence of the four witnesses, Kountze is filled with testimony and exceptions of this character, pp. 116, 118, 122, 129, and the conversations are testified to as taking place in Central City, Omaha and New York.

Indeed, substantially the whole of plaintiff's case rested on these conversations.

We submit that, in admitting them, the Court erred.

ee eee —

on al dl ti Ti

~~ty8

eet A le —

i i f

q

17

The general law under which defendant was organized, provided that its affairs should be

managed by « Board of Directors, p. 224.

Beeker himself, as president, had no power to borrow money of plaintiff (Fulton Bank vs. N. YL. & 8. Co. 4 Page, 1273; Ins. Co. vs. Ins. Co., 7 Wend., 51), and having no original power, of course had no power to ratify (Hotchin vs. Kent, 8 Mich., 520).

What Becker said then was not admissible as proving ratification of the acts of Sabin. As Becker could not himself have done the aet, he could not ratify its unauthorized doing by others.

The rule is familiar that the declarations of an agent are admissible only when and as they form part ot the res geste . in other words, when they themselves constitute the contract or aet to be proved. Properly speaking, they are not declarations or admissions at all, and whenever they are admissions only, are not admissible.

Ist Greenleat Ev., § 113.

Bowen vs. Bank of Newport, 18 New York Supreme Court Rep, 226, and eases cited.

Trustees vs. Ins. Co., 28 N. Y., 153-159.

In Luby vrs. R. R. Co., 17 N. Y., 133, the Court said: The deelarations " must constitute the daet to be proved, and must not be the mere admission of some other facet."

See also Bank vs. Bank, 60 N. Y., 278.

The Court, in its charge to the jury (p. 299) said that this evidence had been received

a

18

not to bind defendant by Becker's promise, but to show the demand made by plaintiff upon defendant for this money.

The very apparent answer to this excuse for the admission of such statements is, that the testimony was not so limited. The testimony, as given and allowed, is not restricted to showing a demand by plaintiff, nor would reading or hearing it in the least degree disclose any such intent.

Much of it, as on page 95 and pp. 102, 103, did not refer to any demand.

The evidence was clearly given as an admission binding on the defendant, and was doubtless so understood by the jury.

It was confessedly tnadmissible for any such purpose, and the error is not cured by the attempt in the charge to limit its effect.

The poison had had too much effect before the antidote was administered.

Green vs. R. RR. Co., 32 Barb., 25-54, and

eases eited.

But it is equally inadmissible for the purpose of showing a demand,

Much of it shows no such demand, but is a mere statement by Beeker of his views of the matter, e. g., the letter.

That plaintiff demanded the money of defendant is totally immaterial, and if it were, the President had no authority to respond to the demand.

The utmost that eould legally be claimed as to President Becker is, that he was a proper

"&

"®

a=

EES a er

19

person to receive notice of what plaintiff claimed Sabin had assumed to do.

The question then would be, did plaintiff give defendant notice of what Sabin had assumed to do so as to put upon defendant the burden of ratifying or repudiating what Sabin had done, and so that the silence of the defendant might be evidence of its ratification ?

As Becker could be considered as agent only to receive notice and transmit it to the directors, what he (Becker) said on receiving such notice is wholly irrelevant.

It was not admissible to show that such notice was given to him. That must be proved by Becker himself, or by a witness who gave it or heard it given.

It was not admissible to show the action of defendant on the notice. It was, therefore, admissible for no purpose.

Nor ean it be said that the charge of the judge took away the injurious effect of such evidence. The whole case is tilled with it. To say toa jury, at the end ot the trial, that such amass of testimony, otherwise inadmissible, was admitted only to prove notice to Becker—a notice which no one denied—is absurd. The effect of its admission was there —the injury was done—the error committed —the charge did not cure it.

Green vs. R. R. Co., 32 Barb., 25-34, and

eases eited.

20

Eighth.—The Court erred in allowing the witness , Goodspeed, cashier of plaintiff, to testify that | certain goods bought by Sabin from other parties were charged to defendant (p. 96, fol. = © 306.)

The error here would seem palpable. | | ~

/ Ninth.—The Court erred in admitting in evidence

=~ / the so-called books of the defendant (p. 100, fols. YX 320, 321).

| f \ These books were admitted on the testimony

i of plaintiff's cashier, Goodspeed, that he made

the entries in them as directed by Sabin. The

name of defendant did not appear in or on the

books. From their appearance, and from the

entries, they could just as well have been the

books of Sabin (p. 98, fol. 35143) pp. 96, 97). " Plaintiff stated that these books were offered

to show that plaintiff's money had gone to defendant

's use.

Clearly these entries, joined with the testimony of Goodspeed, excepted to on page 97, had no tendency to prove that faet, and were inadmissible for that purpose. They were mere hearsay of Sabin, stated in writing by Goodspeed, and indefinite in themselves.

Tenth.—The Court erred in excluding defendant's question to the witness Goodspeed as to what

a em AGI OL LEONA A BELLE LE LENE Le LR ON Py ll An tl 9 a ee AO rk oan ~ roan ~ ne ne

21

other property than defendant's Sabin had been mining (p. 98).

Plaintitf had attempted to show Sabin's authority by showing him in possession of defendant's mincs, and that he had used the borrowed money in working such mines. The whole of witness Goodspeed's direct-examination was to that effect. Defendant then had the right to show that Sabin worked other mines, and that the money went into them. The Court denied defendant that right, and therein erred.

Eleventh.—The Court erred in excluding on the

cross-examination of plaintiffs witness Potter, evidence that in the summer of 1868 the plaintiff, by its officers, knew that Sabin was using the money borrowed from the bank in working mines belonging to Sabin himself and to Becker (p. 106, fol. 343). If evidence to show that the borrowed money ras used in defendant's mines was competent, clearly it Was competent to defendant to show that it was not so used, but was used in other mines.

Twelfth.—The Court erred in excluding evidence

that while Sabin was the agent of defendant, no bank account in name of defendant was kept in Colorado (p. 167).

22

/ Thirteenth.—The Court erred in excluding the letter of Becker, defendant's president, to Sabin of April 12, 1868, p. 185. It was a letter of instructions to Sabin. Plaintiff objeeted on the ground that it was a party's proving his own declarations (p. 185).

The letter is not a declaration. It is the actual

instructions to Sabin.

Fourteenth.—The Court erred in refusing to allow defendant to prove on cross-examination of witness Charles B. Kountze that Augustus Kountze, In Omaha and New York, was authorized to represent plaintiff, and to receive notices for it in relation to this demand (p. 211).

The materiality of this testimony is apparent from the charge to the jury (p. 221, sub. 5). It was error to exclude it.

Fifteenth—The Court erred in its charge, and in its refusals to charge as requested by defendant.

a. Detendant asked the Court to charge " that there ean be no ratifieation of the unauthorized acts of another by silence or aequiescence unless the party sought to be charged had full knowledge of all the material facts necessary toa complete understanding of the transactions, and that the burden of proving such

23

knowledge in the possession of the person sought to be charged is on the party claiming such ratification, and therefore, if the jury believe from the evidence that the defendant corporation had no knowledge prior to 'the 16th day of April, 1869, when this suit was brought, that the money obtained by Sabin from plaintiff was employed and used in working the west half of the discovery claim and claim numbered three west on the Bates lode, and running the Douglass mill, and in paying Sabin a pretended salary, and as hire for the use of his engine while doing his own work, then that silence on the part of the defendant, and a failure to disown or repudiate the demand of plaintiff, cannot be considered as any evidence of ratification on its part of the acts of Sabin in contracting the liability in question" (p. 214, Sth request).

The Court refused so to charge, and defendant excepted (p. 220, fols. 740 to 741).

This request substantially presents the point whether the use by Sabin of part of the money borrowed for his own purposes, and not on the defendant's property, was a material faet, which defendant ha) a right to be informed of before deciding whether to ratify.

That it was so in this case would seem clear.

If the money borrowed had all been expended on defendant's property and for defendant's benefit, detendant might coneede to a kind of moral obligation to ratify; but if expended elsewhere, the moral obligation would be totally wanting. It would seem as

bh.

24

if no fxuet connected with the transaction ecould be more material.

Defendant asked the Court to charge that 'if the Jury believed from the evidence that on the 16th day of December, A.D. 186s, T- H. Becker, the President of the defendant, communicated to his company tin New York by letter the claims made by the plaintiff against the defendant on that date to him, and received from the officers of the company In New York letters disowning and repudiat- Ing the transaction, and commemuteated such disavowal or repudiation to the officers of the plaintiff, then such communication of the disavowal or repudiation was notice to the plaintiff of the taet of such disavowal or repudiation on the part of defendant; and that in determining the facet whether or not such disavoWal or repudiation Was Communicated to the officer ov officers of plaintiff, the jury will take into consideration all the evidence in regard to conversations had between officers of the plaintiffiand the President of the defendant up to the 19th Mareh, 1S69, in regard to the President of defendant going to New York, calling a meeting of the shareholders of defendant, and laying the matter before them at the annual meeting in April, IS69, and trying to vet them to assume and assess the stock for its payment." The Court retused and detendant excepted (p. 214, LOth request).

[It seems difficult to understand why this request was refused. It Becker told the truth

"@

"@

25

and did communicate to defendant's officers the contents 'of his correspondence, as exhibited p. 169 and 170, it certainly was a repudiation of the agency assumed by Sabin. After the date of these letters, the whole aim of plaintiff's officers was to get Becker to lay the matter before the stochholders at the April meeting. The stockholders could, of course, overrule the directors ; and the faet of such negotiations being pending was certainly proper To be considered by the jury on the question of knowledge by plaintiff of the refusal of the directors or officers to ratify.

Defendant asked the Court to charge:

"That to prove a ratification of a contract made without authority from the defendant corporation, it must clearly appear from the evidence in the case that the defendant had full knowledge of such contract, and that such acts of the defendant, relied upon by the plaintiff as a ratifieation, were Intended) by said defendant to relate tothe performance of such unauthorized act." Court refused, and defendant excepted (p. 216, sth request).

This refusal may be considered in conneetion with the charge that the Court did give: That "if the defendant did disavow the aets of Sabin in borrowing the money trom the plaintiff, it was incumbent on the defendant to notify the plaintiff of said disavowal, and it is necessary for the defendant to prove the giving of such notice" (p. 221), to which charge defendant excepted.

26

By this refusal and charge, the Court held two propositions :

Ist. That the defendant, by mere neglect or @ omission, might have blundered into a ratification without in the least intending it.

2d. That if defendant did disavow the agency, even most unequivocally, vet it} was still charged, unless it gave notice of such disavowal to plaintiff.

There is a very large class of cases generally arising between principal and agent, where, owing to the course of business, the expectations of the parties, and the relation of the subject-matter, the principal, on being advised of the unauthorizod act of his agent, is bound forthwith to ratify or reject, and if he is silent it is equivalent to ratification.

The law of such eases is equivalent) or analogous to the law of estoppel dia pais. [t issimply the demand of geod faith. It is based on the correlative principle that the agent can make no profit from his principal's goods or business other than his regular commission, and to allow the principal to keep silent and await the result of the transaction, and then ratify it if profitable, and repudiate it if otherwise, would be unjust and unequitable.

The case of Haryard vs. Spears, 4 Keyes

St

aw

Rep., 469, New York Court of Appeals, in which the opinion of the Court was given by Mr. Justice Hunt, then of that Court, is a cood illustration of that class of cases. The agent had advised his principal of a certain act. The principal did not repudiate, but did not ratify and purposely kept silent, as he testified, in order to await events (see p. 483, citing Baily, J., in Prinse vs. Clark, 8 Eng. Com. Law Rep., 80). " The principal has no right to pause and await the fluctuation of the market in order to aseertain whether the purchase is likely to be-beneficial. He is bound, if he dissents, to notify his determinas

tion Within a reasonable time."

The case cited by the Court below, of Kelsey vs. Bank, &e., 69 Penn St., 426 (Record, p. 266), is of a similar character. The bank having kept silent, and allowed plaintiff to act, could not without injustice have repudiated the act of its cashier.

Where, however, a right of election to approve or disapprove, or in other words a delay of decision as to approval or the contrary, would be attended with no advantage to the principal, or injury to the other party, no duty of immediate decision is imposed upon the principal—no inference of ratification ean be drawn from silence, and clearly no obligation to notify the other party of the decision ean exist.

Amory vs. Hamilton, 17 Mass., 109.

Dunlap's Paley, 172, note q.

Armstrong vs. Gilchrist, 2 Jolimson's Cases, (A. G.,) 4560, note.

See also Peters vs. Ballistier, 56 Piek., 495, Where it was held that commencing an action Of assuimpsit was not a ratification, it being afterwards discontinued

,

Whartom's Commentary on Agency and Agents, uses this language: * Permanent acquiescence Th oan agents tnauthorized act, isa strong proof of ratification, it being the duty of the principal to repudiate the act if repudiation would avail to put parties dealing with the agent on their guard; but mere knowledge on the part of the principal of anagent's unauthorized action will not make non-interference amount toa ratified-tion, unless either the agent, or parties deal- Ing with the agent, are thereby misled or prejudiced. On the other hand, whenever the usage of business requires a prompt re- MY, ae, ae."

[in Walters rs. Monroe, 17 Md., 150, it was held that silence cannot amount to a ratification where the party did not know of the unauthorized use of lis mame on a note until after the note beeame due.

See also White es. Langdon, 500 Vt., o99,

Fitzsimmons "s. Joslin, 2b Vt. 129.

Dougherty vs. Crowell, 5 Stoekton, 2OL.

Livermore on Agency, vol. 1, p. 48, says:

29

" But the reception of a letter not con-contradicted, does not always amount to a ratification unless it is accompanied with circumstances capable of showing an inten-od tion to ratify." "In the above case" (that of a son borrowing money for his father in his absence) "the relation of the parties, conjunctionis favor, joined to the silence of the father, caused a ratification to be presumed. In favor of commerce, the same presumption has been introduced among merchants. "The principal who does-not answer the letter by which lis agents explain to him What they have done, is considered to have approved of their conduct, although they | may have exeeeded their authority." Doubtless the trial Court in the case of Hayard cs. Speares, 4 Keyes, was techni- } eally wrong in refusing to charge, as asked, that there could be no ratification without an intention to ratify.

It should have so charged, and added that the receipt of the knowledge, and failure to disavow the aet of the agent, was conclusive evidence of an Intent to ratify. An unintentional ratification is a confusion of terms. Such evidence is conclusive on precisely the same ground that evidence making an estoppel en pais is conclusive.

The rule and its reason are well stated by this Court in Law rs. Cross, 1 Black, 539: "He cannot by holding his peace and ap-

30

parent acquiescence, have the benefit of the contract if it should afterwards turn out to be profitable, and retain a right te repudiate it

otherwise."

Now, applying these doctrines to the case at bar—

Sabin had assumed to borrow money for the detendant, and to make certain use of it. When the whole thing was finished, the money borrowed, used, and payment not only demanded, but demanded with threats and violence from the agent, and after Knowledge of it while being incurred, had been kept from the defendant by plaintiff and the agent; the defendant is informed of what had been done.

No benefit can acerue to detendant, and no injury to platntiff, by defendant's non-action. Defendant owes no duly to any one, at onee or at all, to ratify or refuse.

No fair inference of intent to ratify ean be drawn from its silenee, because there ean be no object ino speaking unless to ratify. Silence in such a ease is refusal.

Defendant might well have asked a ruling that there was absolutely no evidence of ratification in the case. It was unnecessary to go so far. It only insisted that in this case no burden rested on it to advise the plaintiff that it did not ratify: that the fact of non-ratification was enough. No — obligation rested on it to do more.

[In such a ease, too, mere silence does not

show the intent to ratify.

31

The conjunctive circumstances referred to by Mr. Livermore as necessary to give it that effect are wanting (see also 27th request to charge).

The Courv erred in submitting to the jury the question whether Sabin was defendant's agent.

There was not the slightest evidence in the case of such agency.

Sabin testified to his being agent in 1865, and to his being appointed but once, and that he took possession of defendant's mine in Spring of 1866, under an agreement to work the same for a royalty.

All defendant's officers testify to same thing. Sabin's resignation as agent, or superintendent, 1s in evidence. The acts he did, e.g. Working the mine, &¢., are as consistent with his actual relation as with that ofageney. Surely he cannot ratify his own act, and nothing of his acting in the name of the defendant is known till December 16, 1868, when the whole proceeding is finished. The ease is bare of evidence of agency.

The judgment should be reversed, and a

new trial ordered.

WHEELER H. PECKHAM, Of Counsel for Plaintiff in Error.

Supreme Court of the alnited States.

No. 10 'a

THE UNION GOLD MINING COMPANY, Pruaintirr

In Brror.

Thre Rocky Mountain National Bank.

a Briefand Points for Defendant in Error. erent . @e-—

k'irst Pormnt

No assignment of Errors has been made in this case. It

is a case specially calling tor one. The record of 275 pages

contains the writs, with the returns thereto, and all the tes- | timony at length, with forty requests to charge the jury, and exceptions without number. This court and the defendant | in error need to be directed through all this mass, to the " matters upon which the plaintiff in error relies to reverse the judgment ; much more than where the points of objec- | tion are clearly and shortly presented by a bill of exceptions, | properly framed. | Treat v. Jamison, 20 Wall... 652. y SECOND POINT. | — The action was assumpsit, to recover a large sum of money, alleged to have been loaned and advanced by the defendant

its ed 4 i i pt ty Pett) Lv] ' i te) eon fe 3? | Pha boitlitn ] j = ' . oa ' ii ies dl or . ' , ' . } badd a Capital of SoU OOO onivi and, therefore, Under the

National Penk act. breed pet the eompefencyv to howan or

~ ry? } selvanee to one party more than S5.000, i these pleas the > , ! oo: ee ee ee ryy} Pank demurred and the demurrer was sustatned., hie . ? ver) ti y} 1} { ind Wiis gh | ptt] [Wo PSS

g The pleas went to the whole matter of the declaration.

Which alleged the loan im divers sums. each much less than

~~ na ca: ® se ' 1 iad ' y * ae : e }

S000. ven af the law were as claimed, there was a nelht > — '° : , "= ' cs : % . ; ' > _ . ?) : ]

of action for the 85.000, which the Bank could legally loan

to the plarmtiffin error, ae [1 1S the rule ot tliis Copy. CAPriyv established alti iiformiy enforced, that all parties, whether natural persons

° 1 " P ' ) Or corporations, Who recerve the Money of another, should

; ad repav ie according to therm contract,

Mer. Justice TIunt expressed it ia The Mavor e. Rav. 19 W ati.. has, shortly, thus? st Lt isn- a reneral rile, applicable to adl persons and corporations. anc moa dictate of plain honestv. that. whoever. knowing the tnets of the ease. re- . ' Pe a —_— — Pais sthickh Uses tonev reeeirVec? DOV ab aerenft iol his account, cannot repudiate the contract on which if is reeerved."' Qdne rule by which to test the validity of pleas ot this sort

is that when the statute prohibits a contract or the making

7

of a contract In oa certain manner, tn order to protect one of the partios, no action can be maintatned. (Maller 7. Post Allen, foot.) And ail the CAsSCS eited CT} dehalt of fhe platntith in error, tall within that role, « xcepyl ernest

Nicholls, 6 Ef. ot d.. Cases, 401. fn that ease the statute expressly provided that the contract should not be entorced,

When the ease was before the Lord Justices under the name oof Re the Sea, Fire and Lite Assurance Co., ex wife. Port of London Co... 6 De G, M. & G., 465, the point on which at went off in the Tloase of Lords was not raised, batat was rude upon another point made upon the competeney oof the company to enter inte the engagement.

» & a7 2.8 ies | P . '> as ' 2 _ } " a \\ err cb eu PrCHaSse? hh: S ftakeh pPossessron of ane enjoved

eee =e

B ns

the subieet-matter of a contract. if ois. in ry

duty of theeourt te make every reasonab presumption in 1iv\ to? the Virliehits coy Ube Contract

A consideration of the Bank Act, amd 1 place in it of the proviston tT question, shaws vers plea Hiv that Coneress

Caufious enotet to perth a party t yhoeome bable teat fos i ' | , . ' , » ' ¢ ; ra] . , 4 t ¥ + gr CXC see ¢ ! 124d « MLOUK { } tj}is real Py «i ) ¢*] i' ae ' >)? } 4 } ] j } , ' | The entire qevot. with ilé Oued Ch y FLIS throtV Tree Preah 1] »° } } : ; 4 aii eraeleeee . | ; . | | ea ££) 7 ¢ ti tl] € Runa fiS. eg A (+).

, , . . ,. ¢ ¢ . > " 4 } ,*) > *-« A dimitting t] tror Perrinto sit as aduror., netwithstand- . pricy f { Me Was hot error,

B

fuabinw

- : . , i , * } , - } se. ration Chiut about three weeks betore the trial. he tallked . ' . , " 4 ; . _ ' - . POP ah Potr With off lnvans, Who'was a puUroOr ot a Tormey : . ea > . | rt trin| {) T}) . f ak bo atis Teo} Rg ©] )t} Wiiat bie had Tene Genel 7% } ¢ ' . ra . } - ' » Out abot tiie Case, Ut bel not comment on tire testimony a ] = ee ee , hor e@NPPFCSS alby Opn } bas to the CreadibilltyVy of the wit- a .

OV Whia mVahks Salad. it he reiated the tae

)) ' , i eee ; it * ? ¢ ' y, 7% . a

(dit Ne nit ' Li): hsv aus Liicecqlit it Wil a , +) ' ] }

thine avainst tt evidence, li he sat as

id Tira

Smith's Case, 6 Grattan. 696. Jackson v. Cane, 23 I[d., 919. Castigan v. Cuyler, 21 N. Y¥., 134. Sanchez +. The People, 22 Id., 823. Bodine v. The People, | Dento, 308. Freeman v. The People, 4 Demio, 34.

State v. Potter, 18 Conn., 173.

Qn amatter of this sort the utmost respect is due to the decision of the trial court. It sees the juror, and can judge better from his appearance and manner, together with his answers, than the appellate court can from the simple record of his examination.

It knows, too, the condition of the county, the circumstances of impanneling juries, and the probabilities of securing Competent Jurors,

Judee Hallett presided at the trial, and delivered the opinion of the Supreme Court of the Territory. In-his

opinion, at folio SYD. he Saves:

Formerly, it was supposed that almost any report of the tacts in the case, would so affect the mind of one who heard it, that he would be Incompetent to sit at the trial of the SAC Case - but since hewspapers and telegraphs have Come Into Use, as a Means of spreading intelligence of all events, it has been found necessary to adopt a different rule, of the necessity of which the case at bar affords an excellent ilustration. 'Pwice tried ina small community, it is doubtful whether so many as twelve men who had never heard of the case could have been found in the county at the time of the third trial: and if they eould have been found, if 1s more doubttul whether they would have been tit persons to decide the issue."

2. The adnission of a person to sit cannot be alleged tor error When the objection is for favor,

Formerly, the Compelency of the person called to sit, when challenged for that reason, was tried by his fellows, and the question Was of fact, so that error could not be alleged ot their determination Now, the trial is generally to the

court: but the nature of the question and the decision of it

ay

is unchanged, Pringle v. Heese, 1 Cowen, 439, note. State v. Potter, 18 Conn., 173. Costigan v. Cuvler, 21 N. Y¥., 134. Sanchez v. The People, 22 Id., 150. O'Brien v. The People, 36 Id., 279.

The statute of Colorado has declared the rule in criminal cases to be, that no opinion disqualifies if the trial court shall think the juror can render an impartial verdict. (Opinion of Judge Hallett, p. 269 of the Record.)

This does not in terms apply to civil cases, but it shows

the mind of the legislature.

FourtH Porn.

The rulings of the court Upon the objections to Sabin's

deposition, 12} reference to the two notes which he rave the

bank, and which were applied on the account, do not entitle the plaintiffin error to a new trial.

|. There was no error in the ruling.

The account was opened March 18, 1867, and was closed December ou, IS6s. In ( Wetober, ISGS, the notes were clven, being two in number, each for 85.000. They were signed Phe Union Gold Mining Co., Geo. K. Sabin, agent.' (P. 82.) Goodspeed, the cashier of the bank, asked Sabin to give them to apply on the overdraft. Sabin told him he had not authority to give notes of the company, consulted an attorney on the subject. and at last gave them, and the qiount Was passed to the credit ot the COTM pany on the account, Afterwards the credit Was erased, and On the second trial of the eause they were brouctht into court and eanceled. (PP. 104.)

It was understood by all parties that the notes were void tor want of authority in Sabin to make them. Of course, thie V did het perv any hart of the debt. anid thre bank could disre card them and sue tor the Maney advanced, aS if thev

f;

had not been given. This it did, and therefore they entirely disappeared from the transaetion.,

The testimony was sought, not for the purpose of showing awant of authority in Sabin to contract any debt avainst the company, but to claim the credit of the amount of the notes; and the answers, which were excepted to, do not disclose that the bank was at that time advised that Sabin was without authority to contract any debt, but only that he had not authority to draw drafts or stan notes in the company's name,

2. But even if there were error in excluding Sabin's answers, it was remedied by the testimony of Potter. He Was permitted by the partios, Without objection, to testity, and he did testify to every fact which Sabin's excluded answers contamed. (See Record, page 104.)

3. The point was not saved by a proper exception.

Pirern Porn. The objection to the cross-interrogatories [26 and 127, p. 85, was, that they were not proper cross-examination,

and were well taken. and it was not error to exclude them.

SIXTH PoiNr.

The evidence of Becker's statements and conversations

was competent, and rightly admitted. "The mining company was a New York corporation, and its board of directors

met in New York city. Becker was its president, and came

from New York to Colorado on the business of the company, and assumed echaree thereot on his arrival. What his

powers were, We are not tuformed, except by what he did.

We know that he drew drafts on the treasurer of the company and applied the proceeds to pay Sabin his salary as superintendent, and other debts, discharged Sabin as superintendent, inquired into the state of the account with the bank, and entered Inte dis HUISS1OD with its oftieers about

2 Of ee eee eo

From these and other such like facts, as well as his official title, we are justified in assuming that he was the chief exceutive officer of the compahy. What he said about the debt, his promises about it, his recognition of its validity, and the company's obligation to pay i it, were very Important evidence.

This appears especially so in view of the questions at Issue.

'* The defendant ought to avoid its liability for this debt—not : by saving that the bank had not advanced the money—not

even by saving that the money had not been used in working

' its property, but by saying that Sabin, although formerly

its agent and superintendent, was, at the time covered by

this account, its lessee. and as such not authorized to borrow the Money In Its name,

What the president said in the wav of recognizing the

debt was very material in determining Sabin's authority.

The court, in its charge, limited this testimony to the i matter of a demand by the bank for the payment of money. " This was much more favorable to the defendant than anything

it was entitled to.

SEVENTH Po.nt.

The question pout to Goodspeed, whether the supplies

purchased by Sahin were chargesl to the defendant, Was

! proper: but whether it was or not, he did not answer it. All he said was, *'f want to explain that the only way I do know (whether they were charged to the defendant) was ' by seeing the bills made out py these parties.'' (See p. 96,

folio 306.

Ereutu Pont.

The defendant's books were rightly admitted. The circumstance that Goodspeed, the cashier of the bank, wrote them up did not affect their character. He did so from bills and vouchers furnished him for the purpose by Sabin.

Ninth Point.

It was immaterial what other property than defendant s Sabin was mining, and the question to Goodspeed was properly excluded. The material fact was, that he knew Sabin was working other property than the Company's and that Goodspeed testified to.

TENTH Porn.

There was no error in the refusal to permit Potter to answer the question, whether the bank knew that the claim No. 2 or 3 and the mill were being worked with the Company's funds.

It had appeared by the previous answer of the witness that the mill belonged to Becker, and that Sabin was using it in working the Company's mines, and that for its use Sabin was to work No. 2 or 3. These circumstances showed that the mill was being worked by the Company for its own use, and it was immaterial that it was being worked with its funds.

And as to the claim: the company owned No. | and No. 2. They were the mines which Sabin was working in the company's name. No. 3 belonged to Becker, and the work, whatever it was, being done by Sabin, was in payment for the use of the mill, so that it was immaterial that the company's money was being expended in working No. 3.

The testimony already given by the witness, disclosed the facts sought to be emphasized by the question, and the fact otherwise appeared. The court evidently saw an effort to direct the attention of the jury toan immaterial and irrelevant matter, and in the exercise of a just discretion, refused

to permit it.

ELEVENTH Pornt.

[t was not error to refuse to permit Becker to testify that, while Sabin was its agent in 1865, the defendant Kept no bank account in Colorado.

It was, at the most, very remotely connected with the

Chai

PE TL IEE 2 PRAT: SDMA IMI LLL EF i REBT E CIRO NX as ' . wae alt . . 3 " EOE SRL IEEE LETTE ARO IIR Oa

9

question of Sabin's authority in 1867 and 1868. Whether the company, at that time, conducted its business by sending the product of the mine to New York, and returning to him the proceeds, as Beeker says it did, in 1865, or sold the product in Colorado, realizing on it there, and for that purpose keeping an account in the bank, was quite immaterial.

It appears by the uncontradicted testimony of Potter, that the sale of the ore, and applying the proceeds to the expenses, Was within the usual duties of a superintendent, so that the question of the mode of doing the business, concerned the defendant alone, and could not aid the determination

of Sabin's agency. Twk Frit Porn.

decker's letter to Sabin of April 12, 1868, was properly excluded. |

At most, if was a letter of advice only. But unaccompanied with an offer to trace a knowledge of its contents

to the bank. If Was Incompetent. THIRTEENTIL Pont.

It was immaterial whether Augustus Kountze was authorized to represent the bank in New York without more definitely fixing the time and nature of such authority,

FOURTEENTH Pont.

It was not error to refuse the instructions to the jury asked tor by the detendant.

They were forty in number. They cover over eight pages of the Record. Almost every one, was, for some

Teasonh. objectionable PIRTEENTH Pont.

The instructions given by the court, as well upon the request of the defendants as of its own motion, gave the case

af

me

10

to the jury much more favorably than to the plaintiff, and

the defendant has no ground of complaint, SIXTEENTIL Pont. The case was fairly tried for the defendant, and justice

fried three times with

has been t ene result,

Was done, I t. No wood could come trom a fourth tri

Tor @ 7 Csr ¢ Cote SOF

OT coemieedneel

SA ie tt Te: RTS IS

oer WL. ieee