United States. Congress. Senate. Committee on Fore.

Compilation of reports of Committee ... 1789-1901, First Congress, first session, to Fifty-sixth Congress, second session .. online

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The Chairman. Yes.

By Mr. Kjennedy :

Q. Will you state whether Kittelle did or did not make reports to you
in regard to the interviews that he had with Exall when the detectives
or either of them were present f — A. Allow me to say first that I did
take Mr. Kittelle there to introduce him to Mr. Exall. Then I will go
on and answer your question. That is what you want to know, I sup-
pose, anyhow.

Q. You will not be allowed to state what the reports were. My ques-
tion is to draw out the fact that there were reports. — A. Yes, 1 under-
stand that. Mr. Kittelle did on several occasions make reports to me
of what he said had transpired between him and Weed and between
him and Fisher — ^a man by the name of Thomas Fisher, another detect-
ive.

Q. How long did this negotiation continue ? — A. I only know by the
reports which Mr. Kittelle made to me, and they run along — well,Ishoold
say nearly a month before the last one was reported to me. I think there
was quite a hiatus. There were a number for several days and then
there was quite a lapse of time before the last one occurred.

Mr. Kennedy. That is all, Mr. Chairman.

The Witness. I should think the whole time covered was about a
month.

The Chairman. Mr. Foster, have you any questions for this witness!

Mr. Foster. If Mr. Kennedy is entirely through with him f

Mr. Kennedy. Yes.

By Mr. Foster:
Q. State what, if any, search you have made for the original books,
records, and correspondence of La Abra Company. — A. I went to the
office of the building where this office used to be kept in 1878; I
mean I went in 1878, you understand — not kept in 1878 — ^I went in
1878 to the building where the office of the company used to be kept,
and a janitor and 1 went through the boxes in the attic of the building.
1 do not mean I went into all of them, but we overhauled them. Those
that were nailed up and had other names on them of course we did not
touch, but those that could be opened of course we looked into them
to see what they contained. I also went into the cellar of the same
building with the janitor and overhauled the contents there. That is
the only place I knew to go where they might possibly be. I requested



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THE LA ABRA SILVER MINING COMPANY. 955

Mr. Garth to make a search. I do not know as that comes into your
qaestiou.

Q. No ; just what you did yourself and what you know was done! —
A. Yes; I understand.

Q. Whose office was this yon speak of; an office in a building where
you supposed they might be found !— A. I said I went to the building
where the office of the company had been kept. That office was occu-
pied by W. N. Worthington.

Q. Did the company Keep an office? — ^A. That was its office, so far as
I know. I do not know that it had any other office.

Q. Well, was that the office of the company or the office of Worth-
ington, where he kept the books of the company ? — A. Well, I have
understood it was the office of the company. Of course it might have
been his private office, for all I know. He might have had his office
there too. I don't know anything about that.

Q. Who else occupied that same office!— A. Nobody that I know of;
I never saw anybody occupy it but himself.

Q. Was it not in the same building and connected with the office of
Mr. Oarth and his associates? — A. Yes, sir.

Q. Was not the entrance through Mr. Garth's office! — A. Yes; I
don't remember whether it had a side entrance to the hall or not. There
was an entrance through Mr. Oarth's office, and I think that is the way
it was usually reached.

Q. Was Mr. Garth occupying the office at the time you made the
search ! — A. No, sir ; not at the time I made the search.

Q. Who was ! — I don't know.

Q. Did you go into that office ! — A. I don't think I did.

Q. You made no inquiry of the persons who occupied the office ! — A.
No, sir.

Q. You simply went to the janitor of the building ! — A. To the janitor,
and went into the attic and we overhauled the boxes.

Q. Did any person accompany you ! — A. No, sir.

Q. What was the object of the search at that time ! — A. The object
was to find the correspondence especially. That is what I was after.
It was when I learned of this Slaughter pamphlet here. I wanted to
get at the original correspondence ; I wanted to see what it was.

Q. What office or building did Mr. Garth occupy at the time you
made your search ! — A. Well, I do not think he was in business in New
York at that time. His son's place of business was in Broad street, and
I think he made his headquarters there.

Q. Well, was not his son the successor in his business! — A. Yes; in
the tobacco business, not in the banking business. He had no successor
in the banking business. He closed up entirely.

Q. Well, he quit the banking business in what year, or about what
time! — A. I think he quit it, sir, about — well, I should dislike to say
about that. I should think it was about 1877— no ; the banking busi-
ness he must have gone out of before. I think he quit business in New
York in 1877. When he went out of the banking business he went into
the tobacco business again.

Q. Well, he was the treasurer of the company, was he not !— A. He
was the treasurer ; yes, sir.

Q. And he went from that building to another building in the city
and carried on business, did he not !« A. Well, I would not like to say,
but went into business direct; I think he did.

Q. Do not you know now that he went into the tobacco business and



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956 THE LA ABRA SILVER MINING COMPANY.

his son succeeded him is that business f — A. I think he did, bnt I could
not sa^' positively.

Q. Did you go to the building where Mr. Garth's tobacco business was
carried on, or had been carried on, and make search t — A. No, sir; I
did not.

Q. Was noc it as likely that Mr. Garth would have charge of those
books as the janitor! — A. Quite as hkely.

Q. Is this the only search you made f — A. That is the only search I
made.

Q. Did Mr. Garth's son become, or was he at that time, or did he
afterwards become a stockholder, or an officer of the company f — A.
Mr. Garth's son had one share of the stock transferred to him and he
became a stockholder to that extent.

Q. What was the object of the transfer t— A. To make him a trustee*

Q. To represent his father's interest! — A. Yes; I assume that is so.

Q. Did yoang Mr. Garth occupy that position as a stockholder or
trustee at the time you made this search ! — A. I am unable to say ; I
am an ible to say about that. It was about that time. It might have
been a little before or a little after; I could not fix the date.

Q. I think you answered that this was the only search you ever
made ! — A. That is the only search I ever made; yes.

Q. Did you cause any other search to be made by any other per-
son ? — A. Yes : if requestiug the party to make it would be causing it,
I caused it to l>e made.

Q. Who was that party !— A. D. J. Garth.

Q. When was that ! — A. In 1878. I went to the store of his son and
there I met Mr. Garth, and told him what I was in quest of, and I asked
him where I could find them. He replied they might possibly be down
at his old tobacco store in Water street.

Q. DiO you make request of any other person for a search ! — A. No,
sir ; none other.

Q. At that time or at any sbsequent time ! — A. No, sir ; no other.

Q. When did Mr. Baldwin become president of the company ! — A.
In the year 1876, 1 think ; my best recollection of the time.

Q. Did you never request him to make a search for the books! — A.
No, sir.

Q. Did he ever request you to make a search for the books f — A.
No, sir.

Q. There was a suit pending against the company by the Bank of
Galitoruia, was there not ! — A. No, sir ; never.

Q. Never was a suit!— A. Never was a suit against the company by
the Bank of California.

Q. Well, individual members as stockholders! — A. The suit was
brought against the trustees as individuals to make them liable, per-
sonally, for a penalty for supposed neglect of duty in filiug an annual
report. The company was never sued by the Bank of California.

Q. What was the basis of that suit! — A. The basis of that suit was
that the Bank of California had made an advance to the company of
$5,000 in gold, and that the trustees of the company, who were made
defendants in the suit, had omitted to file certain annual reports which
the law of New York specified should be done, and that by reason of
that failure the trustees had become individually liable to pay all the
debts of the company, and the bank sought to fasten upon them all
that individual liability.

Q. Was that a penalty ! — A. It is a penalty, yes; a penalty for the
omission to supply their annual reports.



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THE LA ABBA SILYEB MININQ COMPANY. 957

Q. The money they had loaned was in the shape of cashing a draft
drawn by the saperinteudent of the company, was it or not! — A. The
complaint did not say any otherwise than it was for money advanced.
I will admit, if yon wish that to be so, that it was for a draft for money
advanced to the superintendent by the Bank of California in cashing
some draft that was drawn by the superintendent on that bank. At all
events it was a $5,000 loan— an advance for the use of the company.

Q. What was the advance you understood to be for the company f — A.
The company did not advance — that was

Q. I mean the parties of the suit! — ^A. It was held they were not in-
dividually liable for the debts of the corporation.

Q. Did you raise the question of the incorporation of the Bank of Cali-
fornia f — A. That was raised in the trial ; yes.

Q. What was the result of the suit! — A. The Bank of California was
defeated.

Q. When was the suit finally disposed of T — A. The trial was ended
in 1874. There were some other proceedings after that if you would
like to know what they are.

Q. Yes ; we would be glad to hear them.

The Chairman. Do the records show f

Mr. FosTBB. Mr. Baldwin has testified that pending the suit he made
a search about 1883.

The Chairman. You want to fix the time.

Mr. Foster. Only when Mr. Ely made a search at his request.

The Chairman. Of course the record is the best evidence of what
the suit is brought for. Yon have got that here.

Mr. Kennedy. Yes, we have got that.

Mr. Foster. 1 am free to say that my intention is to test his memory
as to his search.

The Chairman. In that connection the examination can go on.

By Mr. Foster:

Q. You can proceed, Mr. Ely.— A. The suit was tried in 1874 and the
circuit judge dismissed the complaint for failure of proof, to which the
defendant excepted, and it was directed that the exception should be
heard at the general term before a judgment was entered — the geueral
term is the court in banc of three judges. That exception was argued
at the general term, and the geueral term decided that tbe circuit judge
had decided rightly and ordered judgment for the defendants. Then
after that Mr. Collins died, and some time after that a motion was made
by the Bank of California to revive the suit as against the executors.
Tliat motion .

Q. Who were his executors! — ^A. His son and his widow, I think.
That is my recollection of it.

Q. Well, when was that proceeding finally ended ! — A, That is what
I was proceeding to tell you.

Q. Well, I think we can shorten your testimony.— A. Very well ; that
was ended about 1877 or 1878.

Q. Were there other proceedings about the year 1883!— A. The
Bank of California ¥

Q. Yes. — ^A. None, whatever, sir.

Q. You never went to see Mr. Baldwin in relation to that suit or that
claim of the Bank of California about the year 1883 ! — A. No, sir ; Mr.
Baldwin is mistaken as to time ; he has got confused as to dates. I
did caU and see him about 1878.

Q. What books aoid papers are now in existence belonging to La Abra

S. Doc. 231, pt 2 62



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958 THE LA ABBA SILVEB MINING COMPANY.

CompaDj ? — A. Well, sir, I have a check-book bei^ron in the year 1879,
and I have minntes of the proceedings since 1876, and I have what yoa
call, I suppose, a stock ledger.

Q. Have you completed the list f — A. I think a certificate book-
yes, a stock certificate book.

Q. Were these books made up by you, or some other person f — A.
They were made up by me, except the stock certificate book.

Q. From what data or memoranda! — A. The minutes of course
would be made from the proceedings. The check-book would be the
payments and would state the moneys deposited and paid of course.

Q. How was the stock made up f — A. The stock-book was made up
from the certificates.

Q. On the certificates that the stockholders held Y — A. Yes, sir. '

Q. How did you know who were the stockholders? — A. From the
stubs of the certificates in the certificate book.

Q. What certificate book? — A. The certificate book of La Abra
Mining Company.

Q. That is the original book? — A. Yes ; the original stock- book.

Q. From which the stock had been cut ofif? — A. Gut off, yes; the
stubs were there.

Q. When did that book begin to be used ? — A. When the company
was organized, in 1865.

Q. What other books have you of the company that were used at the
organization, or soon after the organization ?— A. None other whatever.

Q. From whom did you obtain this book ? — A. I got it fh)m the safe
of Mr. Collins.

Q. When did you get it? — ^A. 1 got it in July, 1876, when I became a
trustee.

Q. Did you at that time make any effort to obtain the other books ?— -
A. Ko, sir; I had no occasion for any other.

Q. What use had you for that rather than the others ?— A. We had
to transfer stock. A share was transferred to me to make me a member.

Q. That was after the award had been rendered? — A. Yes.

Q. You came into the active management, or participation, in the
management of the company after the award ? — A. Yes, in July, 1876.

Q. You had nothing to do with the management of the company pre-
vious to that time? — A. Kot a thing: no, sir. I was occasionally con-
sulted as attorney the same as any otner lawyer would be; nothing else.

Q. Were you consulted by the company when Bxall returned from
the mines in 1868 ? — A. Well, I was spoken to by Mr. Collins; whether
you would call it consultation with the company or not, I don't know.
If you would like me to tell you what occurred, I will do so with pleas-
nrie.

Q. Did you attend any of the meetings of the trustees at that time ? —
A. No, sir ; not before I became a member myself.

Q. Did you know anything about the meetings of the trustees after
Mr. ExalPs return ? — A. No, sir.

By the Chairman :

Q. You speak of getting this book from Mr. Collins's safe? — A. Yes.

Q. Was there any other paper or letter or memorandum or book re-
lating to the business of this company in that safe at that time ? — ^A.
Not that I saw or know of.

Q. Do you know how this book happened to get separated from the
balance of the papers ?— A. I could not tell you positively. I could tell
you how 1 think it was.



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THE IiA ABRA SILVER MINING COMPANY. 959

Q. If you know apythiDg about it ! — A. Mr. Collins was an elderly
man and Mr. Worthington a young man, and their offices quite a dis-
tance apart, and as Mr. Collins would have to sign all the certificates as
president, I suppose that Mr. Worthington, instead of lugging that book
down there and back, took it down there and left it, and it was put in
Mr. Collinses safe. Now, I don't know anything about that. That is
the way I suppose it was.

Q. In what business was Mr. Worthington engaged at the time of this
company! — A. I don't think he was engaged in any. He was a man of
means and a bachelor.

Q. Where did he keep his office! — A. I suppose the office he had
was with D. J. Garth & Co.

Q. Did he continue to occupy that office ! — A. I think he did until
he left New York City.

Q. When did he leave New York City! — A. My impression is that
he left the latter part of 1868.

Q. Did you make up the allotment of these two installments of this
award between the persons entitled to it ; from what memoranda or
data did you make it up ! — A. Well, from the data which was furnished
to me by the members themselves ; the stockholders themselves.

Q. Each individual man came up and stated his account! — A. No,
sir ; the statements were sent — some stockholders' statements were sent
by other stockholders.

Q. In making up this allotment of the money on this award did you
have no reference at all to any record or book kept by that company ! —
A. No, sir ; none whatever.

Q. Did these respective gentlemen hold evidences of debt against the
company ? — A. Well, I don't know, I can not say it could be called
evidence of debt. I don't know how that would be.

Q. Any memorandum or note or bill f — A. Nothing signed by the
company ; no, sir. I understand now your question. I would say
they did not have any evidence of debt.

Q. So that you made up this distribution entirely firom their own
statements of what the company was owing them !— A. Yes, sir; they
were all parties in interest.

Q. Well, that would have been a good time for your having these
books, would it not !— A. Yes, if

Q. Did you make any search at that time ! — A. Not at all.

Q. At the time you made the allotment of this fund you made no
search for the books ! — A. None at all.

Q. How did you ascertain what was due Oeneral Adams ! — ^A. By
his contract with the company.

Q. Was the contract there present ! — A. Well, there was a contract
there; yes, sir. His was there, I think.

Q. Was he there! — A. His contract was. He was not there in at-
tendance as a member of the board of trustees. He was out and in.

Q. Was he present at the time the allotment was made to him ! —
A. Yes, sir.

Q. Now, there is testimony in this record of what was called advance-
ments or contributions, assessments made upon the different members
of this corporation for the purpose of paying legal expenses, such as
taking depositions and other incidental expenses to the prosecution of
this case before the Joint High Commission. Is there any memoranda in
your possession showing what the expenses were and who paid each
item of expense! — A. Well, I don't know whether there is or not. I



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960 THE LA ABBA SILVER MINING COMPANY.

6hoald think there was not. There may possibly be some memorandib
left.

Q. Now, in the distribution of this award, you first, as I understand
it, set apart the amount of money that was due to these various i>ers4)ii8
who had made advancements ? — A. I can not say whether that was the
first thing done or not.

Q. Well that was done ? — A. Yes, sir ; they were paid.

Q. How did you ascertain the amount paid each T — A. From the
memoranda which liad been submitted by these persons.

Q. Each man would come up and state what he had exjiendedT — A
No, sir ; I have not said that ; I said some sent their statements by
other parties.

Q. Well, they came up or sent what was the expense! — ^A. A state-
ment was furnished of the amount furnished by each.

Q. Were there many of tliem t— A. Well, I should think there might
be a dozen, ])erhaps more. I do not know whether that would be re-
garded as money or not.

Q. In the distribution of this fund was any part of it paid on the
original stock subscription of the company! — A. No, sir.

Q. You did not get to that? — A. No, sir.

Q. The exi)enses of one kin<l and another absorbed this entire
amount without the stockholders receiving from it anything? — A. And
General Adams under his contract.

Q. That is ])art of the expenses? — A. Well, if you call it expenseSy
that is part of it.

Q. And your $10,000 ?— A. Yes; that is, part of it.

A. Was anything paid to the assignees of this award? — A. I don't
know that there were any other assignees at that time. It may be
that some of the counsel

Q. Have you recollection of about who was paid and who was not?—
A. I think all the counsel were paid their proportion, whatever it was.
If there were any assignments I could not state

Q. Well, have you any book now that shows the distribution of that
award ! — A. Yes, sir.

Q. You have a book ? — A. I have a l>ook.

Q. Did you have a subpoena duces tecum to bring that book here ?—
A. I did not.

Q. You did not ? — A. No, sir.

Q. Was not it served upon you I — A. No, sir.

Q. There was no subpoBua sers^ed upon you until this morning? — A.
No, sir.

Q. Where have you been the last two or three weeks?— A. Part of
the time in Chicajro and part of the time here.

Q. When did you leave New York? — A. Not over three weeks ago

Q. Have you re(;eived any notice from counsel or any one here that
you were expected here and that a subpoena was out for you to bring
those books and papers here ! — A. No, sir.

Q. You received no information ? — A. No; I received no informatioD
about books or anything of that kind.

Q. You have not been In communication with your counsel, have yon,
during the last three weeks ? — A. No, sir. I had a telegram

Q. Have you sent them any papers within three weeks? — A. No, sir;
I have not within three weeks sent them papers. I did just before!
left New York

Q. How long ago was that? — ^A. I left the 4th of February. That is
my recollection.



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THE LA ABBA SILVER MINING COMPANY. 96l

Q. Where did you go 5 back to New York ? — A. I have not been back
there.

Q. Yon came from Chicago here ? — A. Yes, sir.

Q. Were you in communication with counsel here ; did they know
where yoa were I — A One of the counsel knew where I was — Mr. Bird-
sell.

Q. Does he reside in the city f — A. His ofi&ce is in New York ; he re-
sides on Long Island.

Q. Did any of the counsel here in Washington know your where-
abouts! — A. No, sir; not at that time.

By Mr. Lines:

Q. Mr. Birdsell is in the city, I think ; is he not, Mr. Kennedy f
By the Chairman :

Q. Is Mr. Birdsell here now f — A. Yes, sir.

Q. How long has he been hereT — A. I can not say that. I saw him
yesterday.

Q. You do not know when he came here ? — A, No, sir; I do not.

Q. Now state what distributions were made to counsel out of this
award.

Mr. Kennedy. I think that is a matter of record.

By the Chaibm an :

Q. Each one f — A. Well, I respectfully decline to answer. I think
that is the private affair of this corporation, and it is not within the pur-
view of this examinatioD.

Q. You decline to answer ? — A. I do, and I do that most respectfidly.

Q. Oh, of course, it is all done very respectfully ; but at the same time
how much money was distributed to counsel t — A. That I could not tell
you.

Q. About how much! — A. That I could not say. I could tell you
about how much in whole was distributed very nearly, but how much
was distributed to couusel I could not tell you.

Q. You could not answer, then, how much wuh distributed to each of
the counsel f — A. No ; I have the means of iiruliug out, but do not know.

Q. You have the means of finding out ? — A. Of course I could find
out.

Mr. Kennedy. Mr. Chairman, I would like to enter a brief objection
to that on the ground that this distribution of money to counsel and
others was after the award, and is not within thescope of this investiga-
tion.

By the Ohaibman :

Q. What other expenses were paid out of this award besides the ex-
penses of counsel f — A. All expenses that are incident to the prosecution
of this claim.

Q. What are they ? — A. Oh, T could not tell you.

Q. Name some of them f — A. No, sir.

Q. Can not tell any of them 1 — A. One of them would be the expense,
and, of course, the money that went to General Adams for his part of
the services.

Q. What elset — A. One item would be lawyer's expenses.

Q. What else f — A. And one item would be expenses for contributions.

Q. For contributions! — A. Yes.

Q. Contributions to what? — A. Contributions — money that went to
pay expenses in prosecuting the award.



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962 THE LA ABRA SILVER MINING COMPANY.

Q. Well, what expenses were paid out of these contributions f — A.
What is the question f

Q. What expenses were paid out of these contributions you speak of
towards this case ? — A. [ do not know of any other except the expenses
that were incurred by Greneral Adams — general expenses.



Online LibraryUnited States. Congress. Senate. Committee on ForeCompilation of reports of Committee ... 1789-1901, First Congress, first session, to Fifty-sixth Congress, second session .. → online text (page 141 of 156)