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

. (page 89 of 156)
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claim by said commission, and paid to said company or to any officer or agent thereof ;
all of wnich will more fully appear by reference to said agreement, a copy whereof is
hereto attached as aforesaid.

(5) Pursuant to said agreement the defendant Adams employed the plaintiffs and
one Robert Rose and the defendant William W. Boyce as the counsel on behulTof
the said company to institute the requisite proceedings before the said commission
and prosecute the said claim* to final adjudication, and for that purpose a contract in
writing was made and entered into by the defendant Adams with the plaintiffs and
the said Rose and Boyce on the 25tb day of August, 1870, a copy of which is hereto
attached and made a part of this bill, and for identity marked Exhibit B. This agree-
ment although signed by theplaintifi' Stanton alone, was an engagement of hislaw firm
composed of both the plaintiffs, Bartley and Stanton, and was so understootl at the time,
and the ease was« at the time, placed on the docketof that firm, and prosecuted by the
firm with the other cases and business of the firm. And by the addition to the said
la8t*mentioned agreement appearing in the said Exhibit B, it was further stipulatetl by
the parties that the terms and conditions of the foregoing contract in reference to the
claim of La Abra Silver Mining Company shonld be extended and made applicable to
the following cases in which the dereudant Adams had a like authority and interest
as above, and all which cases were prosecuted in like manner before said comminsion
by the plaintiffs with said other counsel, to wir., the cases of Daniel Green, Alfred A.
Qreen, James Tobin, William Blumhardt, Messrs. Hodapp Zuber, John Cole, Alfred
Howell, Charles Bouttier, Francis F. Dana, and George & Lewis.

And by the said contract, shown in Exhibit B, duly signed and sealed by said defend-
ant Adams and the plaintiffs and other parties thereto, the plaintiffs so associated
aforesaid undertook to prosecute before said commission the said claim of La Al>ra
Silver Mining Company, and also the claims of the said other parties so named in the
contract as aforesaid as the attorneys for the said several claimants and also for said
defendant Adams, in consideration of which the said Adams stipulated to pay and
assign to plaintiffs, and did so assign to them and the counsel so associated with tbem,
the one-tnird part of the amount agreed by the sai<l company to be paid to him, the
said Adams as aforesaid ; that is to say, one-ninth of the award which may be made by
the said commission to said La Abra Silver Mining Company, and also the same pro-
portion which may be allowed in the said several other cas^s.

It WH8 also further stipnlated therein that if it should be necessary or desirable to
employ other counsel to secure success in said cases, or either of them, the said at-

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)ald pay the fees of fiicIi additional counBel out of the ainonut
them as aforesaid. Of ooursi^ an.v siuli emidoyiiieut of addi-
at leaMi the approval of the plaintittH and their aaid associate
B aver that no such iiecertsity existed for the eujpio,\nieiit of
e;1, aud that uo additional conusel wen* enipl«>\ed in the said
with the consent and approval of plaintiffs, or either of their
contract; and the plaintiifs aver that they have alwa.^s been
allow or contribute to the payment of uny expenses impOHe<l
s of the said contract ; and they further aver that they went
I said several claims before said joint commission and fully
>d their duties and part of the said contract, and were snccess-
itiouH, as follows, to wit: In the case of La Abra Silver Min-
[I was rendered in favor of the company for the amount of

day of 1876 (including the interest to the date of the

Mexico to the said company. In the case of John Cole an
efore the commission for $71,109.38 ; iu case of Daniel Green
the case of Alfred Uarell for $1,137.56; making iu the aggre-

aforesaid between the United States and Mexico the excess
r of citizens of the United States were to be paid by annual
' each ; and three of said installments had been |iaid up to the
k'heQ the proportion of the same due to La Abra Mining Coni-
buudred and forty- two thousand dollars, which was paid to

le day of , 1879. Of this sum the said defendaut

der his said agreement with the said company, to an amount
thousand dollars. A fourth installmeot of said award was
United States on the Ist day of February, 1880, and of the
m to defendant La Abra Silver Mining Company nearly fifty
[It to be paid to said company by the Secretary of State of the

informed aud now charge that the defendants Adams and La
have had some settlement between themselves as to the in-
I on said company's award, and also as to those hereafter to be
ire not informed of the particulars thereof, and the defendaut
bs from plaintiffs and insists that he has received a very small
. However this may be, plain titl's believe and charge that
;he company against said Adams were for sums advanced by
r assumed to be paid by said company for the personal ex-
br his personal obligations, and for which the plaintiifs were not
'esponsible, either iu whole or in pai-t. But on this as a pretext
to allow and pay the plaintiffs any part of the said first three
1 as aforesaid, of which his (the said Adams) part, out of which
ciates were entitled to their one-third, is over $47,000. Plaint-
I to the expenses incurred by said Adams in taking rebutting
^y» hy their agreement aforesaid of Aug. 25, la70, were to pay
sms were fixed and settled by another agreement made on the
Aeen said defendants Adams and Ely and the plaintiffs: This
h1 to plaintiffs by defendant Ely and was signed by them ou
it was correct and true ; and the plaintiffs ai-e now ready and
terms, although they believe the charges therein to be exces-

This paper fixes the expenses of taking rebutting testimony
^hich, with some other small items, is cnargeable against the
ciate counsel aforesaid to the extent of the one-third thereof,
itioned agreement in the handwriting of the said Adams, and
eto attached, marked exhibit C, and made a part of this bill,
lams refuses to pay to plaintiffs anything whatever out of the
il ou said award, and evades a compliance with his said con-
rent pretences, and among them, tnat he had agreed to pay
er cent, on the whole amount of th^ award, amounting to
irger amount to Hon. George H. Williams, as counsel em-
«e, and that these amounts shall be set off against plaintiffs'

brought into the case on employment of said Adams alone,
to the umpire and had been argued and submitted by plaint-
s was brought into the case in the same way after the award
[ when the case was pending on a motion for a rehearing be-
Ithough eminent and respectable as lawyers, as both Judge
imsaro, the plaintiffs, understanding the case, did not deem it
10 employ either of them in the case, and they were so employed
IS, without consulting the plaintiffs and without their consent
tiffs aver that by no rational interpretation of the said contract

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ander which they were employed conid the Haid Adams havo frittered away all their
ft^esandcompeusation for several years of professional labour by thus briuging iuto the
emo additional coimsel. So that whatever compensation said Adams may have stip-
alated to pay either of these attorneys, whether reasonable or extravagant, it could
not be used as a reduction, and much less as a total abnegation of all compensation
for many years (»f the labour of the plaintiffs. On these several pretexts the said de-
fendant Adams now refuses to pay the plaintiffs any part of the amount received on
the said first three instalments, of which his part amounted, as aforesaid, to over
$47,000; and, further, most unjustly and unreasonably claims t>o withhold large
amonnt-8 from his part of the future instalments in order to defeat the plaintiffs' just
participation therein. Plaintifis allege that under any fair construction of the sev-
eral contracts aforesaid no greater amount than some six or seven thousand dollars
can be claimed <ia a set-off against the plaintiffs and their associates in said contract
for their fees on their third part of the said i|47,000, due the said Adams out of the
said instalments already paid over; and said Adams is therefore liable to pay the
plaiutiffn and their 'associate counsel, under said contract, for their fees, at least nine
thousand dollars out of the said money already received.

(9) Plaintiffs further state that said Adams has received the amount of money due
him on the said three other awards, to wit, that of John Cole, Daniel Green, and Alfred
Howell, out of the said three instalments paid over by Mexico. And the said Adams
has not rendered an account to plaintiffs, although requested so to do, of the amount
of money so received by him on said three last-mentioned awards, but plaintiffs aver
that the amount so received by him to exceed the amount of |7,400, and that the
amount coming to the ]>Iaintiffs and their associates in said contract out of that fund
exceeds $2,469.35, on which they have received only $453.61, leaving a balance of
§2,015.74 due plaintiffs on said three awards out of the instalments alrea<ly paid over
to said Adams.

(10) Plaintiffs further say that although they were employed by said Adams they
were so employed by him as the agent of the said company, and were the attorneys
of the said company in the prosecution of said cases, and the said company was the
beneficiary of their professional services, faithfully ami efficiently rendered, through
a period of more than ten years in said several cases; and it was the duty of said
company, when the money aforesaid came into its hands, to protect the plaintiffs in
their rightn and see that they were paid their just and legal compensation therein ;
and pluintifift further state that before any of said moneys were paid over by the Sec-
retary of State U. S., apprehending difficulty in getting from the defendant Adams
their said just compensation, they notified the general agent and treasurer of the
company, the said defendant Ely, of that fact, and appealed to him and through him
to said company to be protected in their rights against the apprehended wrong and
rapacity of the said Adams. And the .suid Ely, admitting that the said apprehensions
of plaiutifis were not without foundation, promised the plaiutifis that if the said
moneys were paid over to him for the said company that he would protect and see
to the protection of the plaiutifis in their said rights. And although tlie said moneys
were paid over to the said Ely, as aforesaid, yet he did not nor did said company
observe their said duties to the plaiutifis in this regard, but they have proceeded to
settle with said Adams and have paid the money over to him regardless of the rights
of the plain tifl's in the premises. And plaiutifis are informed and believe that the
said company allowed and paid the saul Ely the sum of thirty thousand dollars as
compensation for his services wholly regardless of the compensation of plaiu tiffs for
their said services. And plaiutifis aver that they are also thus left wnoUy uupro-
tected in their rights and at the mere mercy and discretion of said Adams in regard
to the money coming to them out of the future iustallments hereafter to be paid on
the said awards.

(11) The plaintifi's say further that the said Adams has put his property out of his
own nands, and is not responsible and nothing can be recovered from him by execu-
tion on a judgment at law. And if the said company and its treasurer, the defend-
ant Ely, shall pay over to said Adams the money due and coming to plaintifi's on
their fees under the contract aforesaid, plaintiffs are liable to lose and will be
wronged oat of r>he whole amount justly due them for their exertions and labors
aforesaid, running through the last t.eu years.

(12) Plaintiffs also say that the said Robert Rose, named as one of the associate
founsel in the contract for fees afuresaid, died shortly after the proceedings for the
prosecution of said claims were instituted, and the administrator of the estate of
said Rose does not claim auy distributive share of the said money so payable on said
awards as aforesaid.

(13) Plaintiffs further say that the defendant William W. Boyce claims a part of the
fund stipulated to be paid for the servict^H of the counsel employed under the said con-
tract of the 2r>tb of August, 1870, shown in Exhibit B, and so far as the said Boyce is
entitled to be compensated out of said fund provided for attorney's fees in said last-
mentioned contract, the same will operate to reduce the amount to which the plain-

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) same fund ; so that the iDtereet of the said Bovce herein
the plaintiffs, who here now cull npou the said Boyce to
ces he rendered in the pronecutiou ot the said cases, and
iaid fees are claimed hy him and to which he is entitled

kt they are entitled, together with their said associate
d thousand dollars coming to them out of the said three
I over to said company, to the further sum of at least five
;ributive share out of the fourth instalment now in the
of State, as aforesaid, making in all at least fourteen
lent of which the said company, as well as the said Adams,
'^ of equity and justice; and, also, there is due and codi-
aid associate counsel, out of the money received by thesaid
(foresaid of John Cole, Daniel Green, and Alfred Howall,
further sum of |820 out of the fourth instalment now
dtary of State, making in all the sum of ^,S35.74 on the
Eirds, for the payment of which to the plaintiffs and their
d Adams is bound and also the claimants in the said
Is, in the proportion of the several amounts thereof,
ihat they are the assignees (»f the said several funds under
a of the said Adams with the saidseveral claimants, and
(rith the said plaintiffis, as the attorneys to prosecute the
le original attorneys in the prosecution of the said sev-
od diligently prosecuted the same to a successful termi-
iutiffs have an equitable lien upon the money so recov-
ftud set up against the said coii.pany and the said Adams
ney applicable thereto, and against the said Adams and
ely, in the cases of the said three other awards.


iiat the said parties named as defendants above in the
]e party defendants to this bill *of complaint, and that
irer each and every allegation thereof as fully as if the
ly repeated, and they and each of them particularly inter-
cially that they state the particulars, and give all the
before made between said Adams and the said company,
ettlement between the said Ely and the said compauy.-
^msand the said company may be required severally to
the amount justly due them bu their said contract ft>r
;o plaintiffs their just proportion of the said instalmenta
ipany, and for such other and further relief in the prem*
y require.

for an injunction herein as follows, to wit : That defend-
[ enjoined from receiving or demanding from said com-
of State of the United States any further payments on
r contract with said compauy or any of said claimaurs
v^hether now ready for payment or hereafter to be pai<l,
s court ; that the said company be restrained and eu-
ams any part of the money now held or hereafter to l>e
from making any assignment of any interest in its said
any other person for nis interest or benefit until the
[SO that the defendant, William M. Evarts, be restrained
'er to the said Adams, and also to the said company,
coming to the plaintiffs, a« aforesaid, out of the moneys
e said several awards aforesaid, until the further order
;iffs pray for such other further and different relief in
stice require.

kubpcBna and injunction directed to the said several de-
ftnd plaintiffs as iu duty bound will ever pray, &c.

T. W. Bartley, &c.,
F. P. Stanton,

Jessup Miller,


iworn in due form of law, deposes and says that he is one
above bill aud has read aud knows the contents thereof;

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that the matters and things therein stated on the pergonal knowledge of the plaintiffH
are tme and those therein stated on information and bt^lief be believes to be true.

T. W, Bartlky.

Subscribed and sworn to the 2nd day of Jnly, A. D. 18^*0, before

R. J. Mrigs,

By M. A, Clancy,

Asi't Clerk.

I certify that the foregoing is a true copy of the bill on file in said court, and far-
ther that the two exhibits herein referred to as A and are missing from the filCeof
said court.
[seal.] R. J. Meiqs,

By M. a. Clancy,

A88t Clerk,


A. B. Elder, sworn and examined.
By Mr. Foster:

Q. State your name, age, residence, and occupation! — A. My name
in A. B. Elder; my residence is in Santa Clara County, Cal. ; Santa
CiarH is my post office address.

Q^ Your age!— A. My age is fifty tbrcb.

Q. What is your present occupation! — A. T have an orchard and
vineyard; that is my business.

Q. In what State were you born! — A. The State of Ohio.

Q. What was your occupation? — A. My father was a farifier. I
lenrned the carpenter's trade when I was nineteen years of age, so that I
went for myself. In 1853 I went to California across tfee plains.

Q. In what were you engaged in California! — ^^A. In placer mining
about up to 1858 or 1859. Then 1 went to Virginia City to the silver
mines there; was there lor a time mining and prospecting, and on the
9th of May, 1861,' I landed in Mazatlan, Mexico. Christmas eve, 1867,
I left there. Most of the time from 1861 to 1867 I was in Mexico.
While there I was mining.

Q. After you landed in Mexico in 1801 where did you first go! — A. I
took an interpreter and another man and went out to the mines ; was
gone some three or four months and brought up at La Puerta in the
State of Sinaloa, Mexico. There I arranged for a contract on a mine,
went back to C^liiornia, organized a company, and returned to Mexico
with machinery to work the mine.

Q. What time did you begin working the mines at La Puerta ! — A.
Well, I have not any memorandum of when we commenced, our com-
pany, but I think it was in 1862 that we got our mill re^y to run ; some
time in 1862.

Q. How long were you occupied at La Pueita ! — A. I was there until
in June, 1866, I think.

Q. What were you engaged in at La Puerta! — A. I was erecting and
running a mill.

Q. That is, a mill for reducing ores ! — A. For the reduction of silver
ores; yes, sir.

Q. Were you there in 1865! — A. Yes, sir; I was there until June,

Q. Have you any knowledge of the coming to that region of Messrs.
Garth and Bartholow ! If so, state what you know about it.^-A. I first

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r. Hardy came there, aud afterwards, some time,

les came.

tiesf-T-A. I think Bartholow and Garth and Grif-

ras a man named GriflBth with the party. They

a on the way out, our place being about I'i miles


ey stay with you f — A. I think that probably they

; was a long ride to get to our place; they staid

3 did they go next day! — A. They went to Tayol-

t, were they there befoie they returned ! — A. That
a-ny definite time they spent in Tayoltita. I know
went up and was there as interpreter in the nego-
as in our employ.

gone weeks or months t — A. I think that our man
ks away from home. He would j;o and come, but
aks a greater portion of his time was spent there,
tand what tlieir object was in going to Tayoltita I
e moment, please. That question, it seems to nie,
le witness understood, but what was said to him.
k that is the best form of question, what he learned


e the word "learned^' for "understood." What
em as to the object of their visit to Tayoltita t —
\ interpreter what 1 learned was that they were
i hacienda from Don Juan Castillo.

m that acted as interpreter f — A. Yes ; it was from

lerson you speak of, the interpreter ? — A. A man

lerican ? — A. Yes, sir ; originally from New York

[)anish fluently f — A. He spoke Spanish very well,
ish at that time very well, and consequently was
usacted all our business.

w, of course, we object to anything Mr. Farrell said
:ard to the transactions of Garth and Bartholow
Jastillo del Valle on the other.


arned through the interpreter. in conversation with

the interpreter f — A. He merely stated to me what
[J Castillo and these parties; that was all I learned
id to me.

parties! — A. Between Bartholow, Garth, and
I Castillo; that they were buying the mines and

inderstand, Mr. Chairman, that when the inter-
in Tayoltita he reported to the witness what had

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happened there, but this report was not made in the presence of Oarth
and Bartholow.

Mr. DoLPH. I am not certain that the witness might not state, no
matter how he obtained the information, that he learned the parties
were there for that purpose. It certainly can not be a very material
question, as the fact of the purchase is not denied, but when it comes
down to any representations that may become material we will consider
the question further.

By Mr. Foster :

Q. Who paid this interpreter t — A. He was paid by Don Juan Cas-

Q. Do you know what his compensation was for that service f — A.
Well, he stated to me that he was to get $1,000 for it. Don Juan, he
said, was very liberal, a very generous man.

Mr. Kennedy. Now, Mr. Chairman, it seems to me that this is going
to be quite an important matter. This witness states that the inter-
preter told him that the vendor of the mines was to pay him, the inter-
preter, $1,000. It surely need not be said that that is hearsay, ei^pe-
cially as it does not appear whether this man Farrell hus been sought
for by the Mexican Government and is not now alive and within reach.

Mr. Foster. We will not pursue that inquiry further.

Mr. Kennedy. Yes, but you have got it out, you see; that is the

Mr. DoLPH. The proper way would be for the counsel to say, " I object
to the answer on account of hearsay," to save trouble. We spend the
most of the time in these discussions between counsel over these ques-
tions. The ruling is that the question of the counsel will be reserved
until the committee comes to pass upon other questions of a similar

By Mr. Foster :

Q. Do you know whether Garth and Bartholow effected their sale ;
did they make the purchase of the mines at Tayoltita! — ^A. They did.

Q. Who was left as superintendent of the mines at the first operations
of the company f — A. Mr. Hardy was at that time.

Q. Who afterwards f — A. Bartholow was the next.

Q. Did Bartholow Visit your hacienda during the time he was super-
intendent! — A. Oh, he was there quite frequently ; yes, sir.

Q. Who succeeded Bartholow as superintendent? — A. Colonel De

Q. Did De Lagnel visit your mining- property f — A. Yes, sir ; he was
at our place.

Q. Often T — A. Several times ; he came there once and was with me
all of one day. 1 made some assays ibr him.

Q. State whether or not you went to Tayoltita under engagement
with De Lagnel. — A. I did. 1 went there in June, 1866. I went there
as mill man, a man to take charge of the mill, but the men all left, all
struck and went away, and it was left to me to finish the mill. I fin-
ished the mill almost alone, I being the only American on the place
that understood it.*

Q. What men left T — A. The mechanics.

Q. Who were they ; were they Americans ? — A. They were Ameri-

Q. Where were they Irom! — A. San Francisco.

Q. Did they return to California f — A. Yes, sir.

Q. Then you meant to say when you said you did the work, that you

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pl abra silver mining company.

sft in charg:e, you had the assistauce of the Mexi-
u ! — A. Ye8, sir.

reason for leaving La Puerta and going to Tayol-
(uspended work on onr place there,
ispend workt — A. There was a good deal of dif-
' supplies such as we needed for working, such as

occasion of those difficulties t— A. Well, the war

rniies, it was <)ifficult to get through.

rhat powers t — A. Between France and Mexico.

etweeu the French and Mexicans interrupt your

terially ; Jes, sir.

ow it interrupted your work. — ^A. Well, the armies

limes our miners would all go away, run oflf for fear

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 89 of 156)