The San Francisco Call. Newspaper, December 13, 1895, Page 8

8 THE SAN FRANCISCO CALL, FRIDAY, DECEMBER 13, 1895. S e s e T e e N s e b i B Y e sy e R e e Pep e e ATTORNEY DELMAS' ELOQUENT ARGUMENT, 1 His Magnificent Appeal in| Behalf of a Widow. SCORING A SPENDTHRIFT How a Cattle King Obtained Control of His Partner’s Property. THE GREAT MILLER & LUX CASE. Millions of Dollars and Thousands of Acres of Land in This State Are Involved. No more wonderful romance has ever heen woven by Alexander Dumas, Eugene Sue or Victor Hugo than Attorney D. M. Delmas exploited Wednesday in the court- at Redwood City in his masterly ment in the great Miller & Lux case, involving millions of dollars. “ighting for the widow of Charles Lux, rose all has been jeopardized by a spend- thrift relative, Mr. Delmas’ eloquence held one within the bearing of his voice and into room ever spelibound for hours clear the ght. Not since the days of Henry FEdgerton has any argument n a courtroom had such fan effect d when it was over the listeners sat en-’ tranced, wrapped in the ramifications of the story just told them and through which the capable barrister had led them step by step. i It was like the perusal of a marvelous | | tale of wealth and wan inter- spersed with pathos and sentiment, and couched in such English eldom heard in these days in any court. [ie CALL presents herewith the ver- batim report of Mr. Delmas’ argument : Ire the co as follows: N Iressed iness, as i May it please your Honor, when some future | moralist, descanting upon the vanity of riches and the emy of human ambition, shall n the annals of eur jurisprudence an ex- | le to enf lies he will find none sher in il tion than that afforded by the proceed: fore the court. We have here side & man already nearing the 1 life still restless in the fever. wealth—wealth which affords the increase of appetite what if feeds on; the scope of the 1 expanding the higher the ascent; the s by which the pursuit is followed de- stroying ihe possibility of enjoying the reward. On the other hand the sad lesson taught of the lity with which the prodigality of descend- | its may in lavish hour seatter to tha winds the hoarded aceumulations of years reaped by the patient toil and labor of the an- | cestor. 1 But it isnot from a moral, but from a legal aspect, that your Honor has to deal with these questions. M considerations interest us 1o further than in so far as they may affect the legal rights of others. | This'is a proceeding to Temove an executor | from ofice. We admit at the outset that the | burden of showing legal cause for that removal | is upon us. As well remarked by my learned friend at my left in an argument which, | though I had not the pleasure of listening to | it. I read with renewed admiration of his | ability, his candor, his power of clear, orderly | and forcible statement, the testimony is valu- | able only in so far as it relates to three proposi- | tions, which he has thus stated: The three grounds upon which it is urged a case has been made are these: at the respondent is incompetent to dis- 5 of his office by reason of a want hat the respondent fs duties of his trust by rees proy Third, that the respondent bave entered into a conspiracy fraud this estate amd those interested in it. The whole field of inquiry is thus clearly ed. The three propositions upon w case must turn are thus cleariy and cinctly stated. 1 shall adopt those three propo- silions as the text of what 1 have to say,and shall follow, as my lesrned antagonist has done, the order of the statement. THE QUESTION OF INTEGRITY. 1 will address myself first to the question of lack of integrity. Do we find in the respondent, Potter, that lack of integrity which disquali: fles him from executing the duties of this im- portant trust? Who is Jesse Sheldon Potter? He is the step- son of the deceased Charles Lux, the offspring of his wife by a former marriage. cousin of the present wife ot Henry Miller, with whom he spent tbe hours of hischild. hood and boyhood, and the nephew of Henry Miller’s first wife, who was a sister of his ow mother. He has been trained in business as an inmate of Henry Miller's house for eight years when he was a lad and by Henry Miller himseli. He naturally glided irom there into the employ of this large, wealthy ard influen- ial firm, entering as a_mere youth and c tinuing in more 'or less important capacities up to the present time. In commenting upon the conduct of Mr. Potter and the actions of Mr. Miller, as I shall do at some length, I shall do 50 in no offensive sense, void of any personal animosity egainst these parties, and in the simple discharge of an imperative duty, giving no more pain to elther party than the facts of the case abund- antly warrant. 1say, then, at the outset, using the epithets borrowed from Henry Miller himself, that for | tive years before his stepiather's death, Jesse Sheldon Potter was & defaulter and an em- bezzler; that his defalcations and these em bezzlements commenced as early as 1882, starting, as such things generally do, with emall amounts, increasing with varying fluctu- ons as crime or conscience and remorse alternatively had sway, until, at the death of Charles Lux on the 15th of Maren, 1887, his pilferings had amounted to the large sum of 526,000 and over. A '‘charge of this gravity is not made without reflection and deliberation and a painstaking and anxious examination of the testimony by which it is supported. That testimony reveals the fact that, during Charles Lux’s lifetime, Jesse Sheldon Poter occupied in the firm the yers important position of being manager of its “slaughter-houses and collector of the thousands and hundreds of thousands of dol- lars from its customers. Neither Lux nor Miller wasaman of leiters. On the other hand Potter liad received a certain modicum of collegiate education. He, therefore, naturally discharged umportant duties with Teference to the office and the books of account of this firm. DEFALCATIONS MOST PROMINENT. It were tedious to go through the ve: erous items which constitnte these tions. There are two, however, which stand out in bold prominence and with marked features before our eves, and 1o these two I shall address my remarks. first is a collection made in October and November, 1882, from the Occidental aud O ental Steamship Company smounting to thirty- three hundred and odd dollars. This company was a large customer of the firm of Miller & Lux, its purchases amounting all the way from £1500 (o $3000 per magith. The documentary evidence—the books and vouchers—shows beyond question that Potter collected from this corporation thiough D. D. Stubbs, their secretary, the sum of $3356 for meats deiivered for the two months of Sep- tember and October, 1882; that this collection was made in two installments; that the pay- ment was made by Mr. Stubbs in'person to Pou himself and was made in coin and no> by check; that this coin went into_the hiands of Potter as the collector of his emplovers, Miller & Lux: that he has never to this day paid this money over to its owners: that nine years afterward, the matter having lain hidden ana dormant during that time, he was charged by Miller with the defalcation and then nowledged it, giving his promissory note forthe amount, with iuterest from the date of col- lection to the date of the note, which was the 17th of February, 1891. 1f reasoning be the process of ascertalning the unknown from the known we Start out with a firm grasp upon this much knowledge. This we Know; this much is conceded. These circumstances stand out as beacon lights by which, as mariners, we are %0 determine our course through the uncertain fluc- tuations of the sea of testimony which lies be- fore us. It is admitted oy Potter that this money, though collected by him, has not been paid over. He was usked the tolle ng questions and gave the follow- ing snswers: .—You bad collected from the company B2356 57 for meats, furnished L0 ther steamers, by you or under your orders? A.—Yes, sir. Had you éver paid that money to Miller & ? A.—No,sir. It 1 had I sbould not have glven the note for it. 2y Vou had not paid for it? A.—No,sir.” he facts standing with the zroup of admit- iller to cneat and de- nd Henry i Ty mum- efalca- That ¢ | that the request could be refused. I3e | & Lux to look for that note when the echo of hi | pre He is the | ted circumstances that I bave stated and read in the light of those circumstances are sufficient, if explained, to base a charge and warrant & verdict of em bezziement against this man cannot be dis- puted. BUT ONE EXPLANATION. What is Potter’s explanation? He gives but one. Your Honor will recall that he was first sworn on the 21st day of October of this year to give testimony In this case, and at that time the explanation of his failure to pay this money over 10 its owners was that he had loaned the bulk of 000—to a man whose name he would not then reveal, and had taken his note, which note had never been paid. He declined to state the nature of the transaction because it was a business transaction. e said that he had & voucher for this amount, and, when asked what it was, declined to state, on the ground that, to use his own language, “being connected with the business, he is not at liberty to do 0.7 He states “it was a business transaction in connection with the steamer business; & man's note. ‘Q—Whose note? A.—I refuse to state.’ He goes on to say: I reported that fact to the office after the money was returned. 1told them I had loaned the money, and as soon as 1 got it 1 would return it. I told him (Rodolph, the book- keeper) that I had loaned the money, but did not tell him to whom, nor show him the note.” Asked what has become of that note he says: “The note? 1 have got it. Q.—You still have it? A.—Yes, sir. Q. —Where is it? A.—At my house.” Ts that story true? ls that an explanation of the failure 1o turn over this $3000 to its true owne: I shall endeavor to show tofyour Honor,and I feel confident I will be able to prove that there is 10t one particle of truth in that explanation. As 1 have already stated, the amount collected was some $3000. It wasnot collected in one sum orat one time. It was collected in two_amounts— the first, on_October 25, 1862, was $844 20; the second, on November 17, 1882, was $2512 37. 1t will be noticed, of course, that neither of these sums makes up by itself the full sum of $3000, which he says he loaned to this unknown man. He could not have made that $3000 loan with the first collection, because it amounted to only $800. That was Teceived, as I have stated, on the 25th of ober. He must have carried it over from the th of October to the 17th of November, and added it to tne $2500 which he then collected in rder 1o get 33000 to loan to this unknown stranger. ‘There is no pretense that he loaned that $800 between the 25th of October and the 17th of November. What reason, then, was there for not immediately turning over'that money in the or- dinary and honest course of business to its true owners? Where did Potter keep that $800 for this period of four weeks? It was coiv, not & check. He did not 10an it. The explanation of a loan will not fit that case. DEAD MEN CANNOT SPEAK. His story about the note, if your Honor please, is inherently untrue. We have a mysterious note, given toa man who must remain unnamed because the transaction is not such as wiil bear the light of day. This is given when Jesse Potter goes on the stand the first time. His mind upon this sub- ject, 5o far as the examination was concerned, was virgin of any impression. He could not tell, he id not know that we would question him, or that | we knew anything about that transaction. Hence, : at that time the name of the payee of the note is refused, although he teils us the note is in his possession at that time: it s at his house: he can produce it. He thinks he Is safe against_detection because the rampart which he has thrown before hits, that this was a business transaction, will be a | sufficient protection against further questionings. | He is subsequently undeceived in that proposi- | tion, because, before he leaves the stand. we de- mand, as of right, the production of that note. The counsel who represent him here were, of course, 100 well versed ‘n law to suppose for & moment | The rampart which he had built up, of declining to produce it, | d of declining soon to give us the name of the payee, vanishes. Upon the reassembling of the cort what happens? We are then told that the name of the payee is a Mr. Reynolds. In selecting from _the wholé mass of people who might have 1 its payee Mr. Potter is careful to name a man who has been in his grave for three or four years, and_who, therefore, could, by no possibility, con tradict him. And what of the note which he had at his house the dav before? We are informed that he has hunted for it in his box in the safe of Miller & Lux, and it 1s not there. The note cannot be produced. Why did he £o that evening to the safe of Miller testimony that the note was at his house had not died within these walls? He had seen the note, he tells us, a-vear and a haif before. He had keptthe clous document from 1882 until 1893, a period of eleven and a half years, and, lo, at the very moment of his utmost neea it has vanished—it had wercolated throngh the iron walls of the safe of & Lux. It cannot be produced. first version, if your Houor please,of this ter, on the 2ist of Oclober,is that he had loaned the money to this mysterious man, and that he had told Rodoiph, the bookkeeper: **As soon as I get this money back from this man I will turn it in.”" There can be no question that at that time the exculpation of Potter was placed upon the the- ory of a loan for which a note, payable at a future time, had been taken, because, your Honor will re- | m ber, he swore that he had tried repeatedly to | coliect that note, but had been unable, and_he had kept the note in his possession from 1882 until a vear and & half ago-nearly twelve years—as B. 1nble piece of paper. His second version 0f the transaction Involves jolds. His defense is thus placed ieory of a payment to Reynolds of this ney, to be spent by Reynolds for the thie’ firm, to use a vulgar phrase, “wher- | it would do the most good. Then, it was not ex- Then, the the upo su be Then, it was not a loan. pected that it was to be paid back. story of an effort to collect it back is not” true, It is not true, either, that he ever told Rudolph that he had 16aned this man, or any man, this money. Nor is it true that he told ckel that he had loaned this man any money id this for 0 obvious reasons: Rodolph is hi: own personal and intimate friend. He is the only witness—because the witnesses to Potter's business capacity amount to nothing in this case—he is the only I say, that Potter has summoned in his behalf. AS STLENT AS THE GRAVE. The tie between them is so intimate that Rodolph is willing to make himself a petitioner in a proceeding to remove the executor of Potter's mother’s will upon the mere casual suggestion of Potter. Rodolph i sworn. Does he say that Pot- ter ever 10ld_him it was a joan? Does he say that he ever told him that he bad taken a note from Reynolds or from any other man® Does he say that he told him that, when he collected the money back, he would pay it to him? Does say that he ever saw the note? DoesJ. LeRoy Nickel, the duplicate and representative of Henry | Mitier, who sat _here in court from the beginning | to the end_of this triai—does J. LeRoy Nickel go | on the stand and say tnat Potter ever told him {that it was @& loan, that he ever dreamed it was a loan; that he ever saw thig | note: that when he charged Jesse Potter with | having embezzled this money, Potter exculpated | himself upon the ground thit he had given the | money to a man to be spent for the benefit of the | firm?” No. Nickel 1s as sllent as the grave, and | Rotolph does not dare swear that Potter ever told him anything of the kind. | Then remember, if your Honor please, that this very same Mr. Nickel and Mr. Miller, in the be ginning of 1891, confronted Jesse Potter with this defalcation of $3300, charged him with it, and de- manded restitution. Potter at that time had Rey- nolds’ note, if he hiad it all, for he swears he had it aslatess 1893. Did he exhibit that note 1o his employer Miller, or his representative Nickel, or Itodolph the bookkeeper? Did he say ““This is my explanation; I did not steal the money. I may have been injudicious in giving it to Reynoids, but Tdid it in your interest. 1 may have been wrong, but here is the voucher, here is the paper which exonerates me, at Jeast, of being a thief.” 0! Confronted with his defalcation, he admits it. Having in bLis hands, he says, the means of refuting the charge, he does not produce them. Yer, these were Dot strangers or enemies. Henry Miller was his relative by marriage twice over, his friend, his preceptor, his mentor. If when Henry Miller charged this man, for whom he says he en- tertained a ratherly love 'and solicitude, with the mning evidence of the books, Jesse had said, Why, there 15 10 Wrong in this; here is the evi- dencé of my innocence,” would he not have gladly accepted it? Jesse never produced it. Miller never saw it, never heard of it. He sternly de- manded from the unfaithfal employe the return of the full amount with interest from the date of the collection. Mr. Potter says further, that at th2 time that these transactions took place he reported them to Rodolph, the bookkeeper, his friend, ald that, to use his own language, ~Rodolph mdrked it down as a credit for them (the Oriental and Occidental Steamship L'nmnnn)‘ and devited me with it in & memorandum which he putin an envelope.” False, if your slonor please, in both propositions; false, because Kodolph, called upon the stand, I not questioned as 0 that memorandum; false, be- canse if there was 10 be a credit given by the book- keeper 1o the Occidental and Oriental Steamship Company, who had paid their money in_satisfac- tion of iheir debt, the proper place to give them edit was on the booKs, not in & slip of paper placed in an envelope, while they appeared debtors upon the books. Whatever Jesse Potter might have done with the money, as between the firm of Miller & Lux and the steamship company, the debt was can- celed. And if Potter was to be debited with the amount, and it was an honest transaction, why shouid he not be debited with it upon his account current with the firm of Milier & Lux, for he had a running sccount then amounting 1 over $40002 A MYTHICAL MEMORANDUM. He says further that that memorandum can be produced. Has it been produced? Fearing that we might demand {t, knowing in his mind that it never existed, he subsequently says the mem- oranaum was destroyed on the 17th of February, 1891, when he gave his promissory note in satls: faction of this defalcation. Who saw that memorandum? Rodolph made it, Potter says. Does Rodolph say he made it? Does he say he even saw 1t? It was destroyed at the time the note was given, Potter says. Does Miller say he ever saw it? Does he say it was destroyed? Nickel demanded the note as the agent of Miller. Did Nickel ever see the memorandum? Did he destroy it or see it destroyed, at the time the note was given? No ese ever rested npon thgg memorandum save the eye of Jesse Seldon Pouter's imagination. 1¢ this was an_honest transaction why did Mr. Potter keep it a secret from 1882 to February, 1891? 1f he owed this money honestly and in- tended to pay it why did he not say £0? "If he did noi owe it. and the truth was that he had loaned it for the firm and taken a promissory note why did he not report the truth? Why did he not report to the bookkeeper that the Oriental and Occidental Steamship Company had paid their bill and were entitled to a credit upon the books; that he, acting as the representative of the firm, had made a loan of the money, and had taken a note for the firm, to 4 man nanicd H. D. Reynolds? Why did he not have cash debited and bills receivable credited with that amount? That would have been the or- dinary, the usual, the proper way in which the | no loan to Reyr | | | Jesse S. Potter on 15th Mareh, transaction would have appeared upon the books if it had been an honest transaction. It does no 80 appeer. It isdown upon the books as a dis- honest transaction. As a dishonest transaction it was treated by Henry Miller. As an ordinary em- bezzler the man who had misappropriated the money in October, 1882, was, in egruazy, 1591, discovered, caught and compeiled to make good the defalcation. The explanation of this painful episode is so plain, any comparison of the books of account of these two corporations makes it so manifest, that the testimony is crushing and overwhelming. 1 have had placed for your Honor’s convenience upon this sheet the compared statement of the Dooks of Miller & Lux and of the Oriental and Occidental Steamship Company. A very slight examination of this sheet wili show that the pecu- lations of Jesse Potter had commencei 8s early as January, 1882, had continued down 10 November, 1882, during which time ne collected the moneys from the Orfental and Occldental Steamship Com- pany, and, then, could go'no further, and were brought toa stop in November, 1882, becaus? the collecting then was taken from his hands and put into the hands of another. POTTER PAID THE MONEY. From this sheet your Honor will percefve this state of facts: January 25, 1882, Miller & Lux sold the Oriental and_Occidental Steamship Com- pany for the steamer Belgic $769 74 worth of meat. The books of the Oriental and Occidental Steam- ship Company show that that money was paid by them to Pottér. The company holds and produces the receipt for the amount sizned by him on_that day in coin, on the 5tn ot February, 1882. Your Honor will find by turning back to the books of Miller & Lux that Potter did not _pay that money to Miller & Lux until the 16th of May, 1882. Feb- ruary 20, 1882, there was sold for the steamer Gaelic $812 84 worth of meat. That money was paid by the company to Jesse Potter in coin on the 12th of April, 1882." They have his receipt of that date. He kept the money until the 16th of M 1882, and then, and then only, pald over to the firm. March 15, 1882, it there was sold for the Oceanic $791 64 worth of meat. That money was paid by the company to Potier in coin on the 12th of April, 1882. They hold his Teceipt of that date. He did not pay it over to Miller & Lux until the 20th of June, 1882, And 50 it goes on, if your Honor please, to the end, showing, bevond question. that the moneys wer: not paid over by the collector into Miller & Lux at the time they were collected, but that the moneys which were collected, for’ instance, in March, instead of going to pay the March bills were applied to pay the February or January bills: that the monéys which were collected in June went to pay the April bills: and so he continued two months behind his accounts, until we come down to the bills in question in October and No- vember, 1882, which were applied to pay the Au- gust bills. After the 17th of November the collec- tions being taken from him and placed in the hands of Rodolph, the next collections being made by Rodolph, Potter did not have the money to catch up with the past delinquencies and became from that time on a defaulter. Mr. McEnerney—Now, Mr. Delmas, you will pardon me, but there is not any testimony in this record that the collections were taken away from Mr. Potter at that time. Mir. Delmas—I beg your pardon. The collections made immediately after the two which I have stated—which are £800 and the $2500—were made by Mr. Rodolph and not by Mr. Potter. Mr. McEnerney—Yes, sir; during that year; during the next month Mr. Rodolph collected, but Mr. Potter did n ase to collect, and there is no tes'imony to snow 1t. 2 r. Delmas—There is testimony to show ex- actly what I state, if your Honor please, that the colle:tions made aiter November. the next collec tion which would have been some $3000 and suf- fic:ent to cateh up with this defalcation, were made by Mir. Rodolph and not by Mr. Potter. 'l 10 testimony that Mr. Potier made any coll afterward. Hence, Potter became delinquent and had no means wherewith to catch up. That is the simple explanation of this whole matier. He had been paying the back bills with moneys collected thereafter, and the moment collecting was taken from him, the back bills remained unpaid. In other words, if your Horor please, the thirty- three hundred and odd dollars which he coliected, $800 on the 25th of October, 1882, and 82500 on the 17th of November, 1882, Instead of being applied to the bills which Mr. Stubbs paid, were applied_to bilis of two or three months pre- vious, which Mr. Stubbs had paid long before, but the woney for which Mr. Potter had not turned over, and then when Mr. Potter was deprived of the power of making collections in December, the collections which were made in December could not be applied by him to meet the payments or to meet the bills which he had received payment of in October and November, and therefore these re- mained on the books unpaid and he was delinquent. HE WAS AN EMBEZZLER. Now, let us take the other transaction to which I have'referred. I have said that, at the time of Charles Lux’s death, Jesse Potter had been, inde- pendent of this item, a_defaulter and embezzler to the extent of about $23,000. Under date of January 3, 1891, four years after Charles Lux’s death, we find an entry 11 the books of Miller & Lux in these words: “Jesse S. Potter in account with Miller & Lux. Indettedness of 1887. Amounts collected from sundries not accounted for, $23,- 937 06.” Mr. Potter is asked upon that subject: “Q. Mr. Potter, does that $23,947 06 mean that on the 15th of March, 1887, vou had collected for the firm of Miller & J'ix that amount_of money 4 not accounted to them for 1t? A.—Yes, sir. ~When it that you collected this $23,- 947 067 A.—Previous to Mr. Lux’s death. “Q.—ITow many years previous? A.—A great many years. +Q.—~When did you commence to collect moneys for the firm of Miller & Lux and fall to pay them over to them? 'A.—It commenced in 1882, “Q.—And ran down to Mr. Lux's death, a period of five years? A,—Yes, sir. a period of five years. “Q.—And during that riod of five years these sums gradually accumulated to something over 830,000 Yes, sir. “Q.—You say that that is shown by the booki? —1It is shown by the books: yes, sir.”” Now, this defaication of twenty-three thonsand and 0dd hundred dollars remained a secret untl the beginning of 1891, when Potter was confronted with it and acknowledged 1t. Mr. Miller, then, his relative, his friend, the husband of his cousin, the husband of his aunt in his first marriage, his co- xecator upon the will of Charles Lux, instead of sending him to the penitentiary, as he says he might and perhaps ought to have done, out of ten- derness for his mother would not punish him, and | contented himself with taking his note for the smount of his defalcation. What motive, what ultimate purpose this harsh and unsentimental man had in dofng this act of apparent magna- nimity I will show hereafter. It does not belong 10 this part of my argument. Before examining, however, into the explanation which Potter gives of these defalcations of §23,000 let us examine into their origin, thelr progress and their final culmination. As I have stated, Potter ran the business of the slaughter-houses and made sales of meat for cash there paid him. In the or- dinary course of business these moneys would have been turned over every day into the strong- box of Miller & Lux, to which they belonged. In- stead of doing so Potter began in 1882 to be short | in his returns. It commenced at first with a few | hundred dollars. Tt fluctuated, and then reaches at his stepfather’s death the very considerable sum of 23,947 06. It remained in this condition, un- known. hidden in the mass of accounts, unsus- pected by Henry Miljer or by any of his represen- tatives, until 1891, when it was brought to light and Potzer confronted with the fact, Potter then acknowledging his liability and glving in restora- tion his promissory note. HOW THE MONEY WENT. What is his explanation® He is asked: “Q.—What had yon done with the moneys after you had collected” them? A.—Some of it I had spent for the business. *Q.—What with the other? A.—1 spent it myself. +‘Q.—How much had you spent for the busines g of this §23,047? A.—L could not state the amount of it.” e now claims that much of it was spent for the benefit of the firm. That claim, it was urged, was to0 1o extent recognized hy Miller. That no evi- dence of it was offered to him at that time is mani- fest from the fact that he demanded and received his note for the fuil amount 10 a cent of the de- falcation. He is asked “Did Mr. Miller insist that you should repay this amount? A.—Certainly. “Q.— The whole amount? A.—The whole amount. : “Q.—Did you tell Mr. Miller at that time that you Dhad spent & part of this money legitimately for the business of the firm ? A.—Not till afterward. Q.—Did you have any vouchers at all for any of this twenty-three thousand and odd dollars that yOu state you spent for the firm ? A.—Yes, sir. “Q.—Where are they * A.—In my desk at Buich- erto wn. Q.—When you Eave your note for this amount the vouchers which showed you did not owe that sum Lo the firm were there at Buichertown ? 4.— s, sir. “Q.—And the vouchers, which would have shown that this amount of 823,000 charged against you was excessive and which would have exonerated you to that extent at least, weze there, accessible toyou? A.—Yes, sir. “Q.—In your own desk—a desk to which you had access? A.—Yes. sir. Q.—And you did not get them? A.—T did not. Q.—Did you produce any of them? A.—Idid not.” What! A man Is confronted by his employer with being a thief. A transaction which had lain dormant for nearly ten years is unearthed from the books. The damning evidence is cast into his teeth. He has the written proof that he is an in- nocent man and he does not produce it! And this in dealing not with an enemy, not wich a stranger, but with his friend, his employer, his relative, his benefactor. Where was Butchertown? Was it in some re- mote, undiscovered of the world, inaccessible to Jesse Potter? Was the place in ‘which these vouchers were secreted some cavern guarded by fabled dragons prohibiting his_entrance? No. Butchertown was at the very threshold of the City of San Francisco, three miles at most from the place where he was charged with these pecula- tions. He was a daily and constant visitor there, for there were the sluughter-houses in_which he transected his business. e had been there on the very day in which these things were charged against him. He would be there, and was there, the very next day. . ME HELD THE VOUCHERS. These vouchers were in his own desk, his own property, the solemn evidence of his innocence, the means of refuting the charge that had been made against him—and he never went for them, he never produced them, he never breathed a syl: lableto his employer that he had them or couid produce them. Who can believe such a story e sees himself, further on, that that explana- tion will not do. Another one has to be suggesced: and what I8 it? An explanation that makes the first one worse, and wiilch, if there could be any doubt of its utter falsiy, removes all possibie doubt. After stating that the vouchers were the and he did not go after them, he is asked: Why? Because, he answers, 1 intended to bring them up after awhile. What! He was charged with the defulcation. Then, it ever, Jesse Sheldon Potter, was your time, not later! Not yours to plead guilty when you had' the means of vindication in your own bands. Not yours, then, to trust to chance of time o produce tle proofs which you then had. Did yon ever produce these vouchers® Yeu intended to bring them up_ after awhile, you say. Well, did Jou ever bring them up? No.' “They remuined in your desk at Butchertown. Yes. How long did ihey remain there? Until 1892—one whole_ year. During that year did you bring them up?” No. A And what has now become, in this your hour of need, when in a court of justice you are openly ana publicly charged with this embezzlement— What has now become of the precious evidences of your innocence which you then had? Can you produce them now? No. They, 100, are gone! Gone, Jesse Potter, with the Reynolds note, which found its way through the iron and steel-ribbed walls of the safe of Henry Miller. Gone, Jesse Potter. with all hope of your ever establishing your innocence. Gone, Jesse Potter, with your Char- acter as an honest man. The Good Book says somewhere, if you Honor please. if my memory is not at fault, “¥'or he that hath, to him shall be given: and he that hath not, from him shall be taken away, even that which he hath.” Jesse Sheldon Potter exemplified but in part the truthof this Bibilcal quotation. To the Yvouchers that he says he had no more were given, but the vouchers which he had not even these were taken away. Now, if your Honor please, what is the explana- tion of all this? What answer is made to this damning evidence? Wny. forsooth, that Charles Lux knew all about the misdoings of his stepson. Charles Lux was a hones: man, who bore that rej utation In this State in a degree as fall and co; lete as any man that ever lived within its borders. e was a £00d man. His will shows him to have been & kind-hearted and just man. Did Charles Lux, the possessor of milllons un- told. conspire with this boy to peculate in the mat- ter of A few thousand dollars?> Did Charl Lux, the trusted partner of ~Miller. in whose svecial charge the office and the books were placed, corvive with this young man to rob his partner to the extent of a few paltry thousand dollars? 1s it believable? If that is not believ- able, is it possible to imagine for a moment that Charles Lux knew what was going on? - DEFENDING THE DEAD. Let us not lose ourselves in glittering generalt- tles, which but confuse the mind and make the reason wander. Let ustake one specific transac- tion because if he knew it all he knew the parts, and let us see how that Imputed knowledge squares with the facts and with the character of this dead man who is not here to defend himself. Did Charles Lux know that Potter had collected from the Oriental and Qccidental Steamship Com- any $3300, for which he had given the recelpt of Miller & Lux? Did he know that the coin of that company had gone into the hands of his stepson, Jesse Sheldon Potter, in payment of a legitimate bill in the ordinary courseof business? Did he know tha this customer appeared upon the books in the office as still indebt. for the amount? Did he then sanction that mode Of doing busines Does any one believe it? Did Charles Lux know that Jesse Sheldon Potter had taken this money and appropriated it to his own use? Did he sanc- tion the withdrawal of the money from the firm And did he not then direct that a charge should be made against Potter in bls current account upon the book of the 3000 which he had thus taken, with his sanction. as a legitimate business transac- tion? Does uny one believe that? Did Charles Lux know that Potter had taken $3000 of the money of Miller & Lux and had loaned it for purposes of their business to a man named Revnoids, and had taken his promissory note therefor? Ana did he then not direct that the Orfental and Occidental Steamship Company should receive proper credit for the money they bad paid, and that this transaction should be car- rled into'the ordinary account of bills recetvable? Does any one believe that? Does any one believe that for & period of five years Charles Lux saw his stepson abstracting at first a couple of hundred dollars, swelling the amount gradually from $500, $800, $2000. £3000, $10,000, $18,000 to $23,000, and did he putno stop 10'it? Did he give no warn ing voice? "Did he not insist that the books of the firm should show the truth to his other partner? A COWARDLY ATTACK. The truth Is, if your Honor please, that this is a cruel, unwarranted, unjustifiable—I had almost said ‘cowardly—attack upon the dead. It is the last resort of a bad cause (0 throw the blame of thecrimeof the living upon those who. in the cere- ments of the tomb, are helpless to detend them- selves. But ‘there Is a man who is not dead. “There i8 8 man Who knew. There is a man who was familiar with all the facts and circumstances which could shed_any light upon that transaction. That man is Henry Miller. W t did Henry Mii- ler say of Jesse Sheldon Potter at the time when there was no temptation to swerve his mind from the truth, when he was speaking from his heart, and not with that cunning evasion which has been characteristic of the whole of his testimony here? ‘What judgment did Henry Miller pronounce upon Jesse Sheldon Potter in 1891, when he com- | pelled him to repay these embezzled moneys by his note? What judgment did Henry Miller pro- nounce upon Jesse Sheldon Potter in 1893, when he depicted him to Judge Francis E. Spencer of San Jose? What did he ssy of him then? He said he was a defaulter. He said he had embezzled from the firm from $60,000 to $65,000, xnd the books would show it in part. He sald he was a felon, whom he could have sent to State Priso) ouly spared him out of tenderness for his mother. That was the judgment of Henry Miller in 1898, What was the judgment of Mr. Miller of Potter in 1894, as expressed to Major Poit? That Jesse Sheldon Potter was a defavlter, an embezeler, and had embezzled collections which he had made for the firm of Miller & Lux; that he could have sent him to the State Prison, but did not, out of con- sideration for his mother, Does Mr. Miller deny these conversations? Does he deny that he 50 stated to the venerable Judge who testified here? Does he deny that he stated so to Major Pott? e does not. Does he deny that he compefled Jesse Sheldon Potter to refund these moneys? He does not. Does he claim that at_the time hie exacted this repayment any explanation, any palliation of this crime was made or suggestec He does not. L anticipate that it will be said: Why did Miller, from 1891 to 1893, keep Potter in his employ if he was aud he knew him 10 be an embezzler and a thief? Why does he continne him to-day transact- ing his business, if he knows him to be such? I will not now answer that proposition at length. I simply wish to note here that I do not overlook it. The purpose which Mr. Henry Miller had fn_view in thus acting fs, I will show hereatter, perfectly manifest. “That disposes of what T have tosay upon the firstof the heads to which the learned counsel has adverted in his argument—the question of Iack of Integrity, with this exception, tha, fur- ther on In my ‘argument I will advert to & transac- tlon connected with the Jeasing of the Las Animas Rancho in March, 1887, within a week after Charles Lux's death, which might belong to this branch of the subject, but which, in order to avoid repetition, I will treat of under that. This transac- tion, I shll claim, when the facts are stated, was a dishonest transaction of both Mr. Miller and Mr. Potter—a flagrant breach of trust by both, prompted by mercenary motives on both sides. 1 now passon to the second branch of this argu- ment, which relates to improvidence. . JESSE POTTER A FAST LIVER. Jesse Sheldon Potter, as he has presented him- self tous here, appears to bea man of easy dis- position. ‘The evidence abundantly proves and the admissions abundantly attest the character: of life which he has been leading for the last few years. To put it very mildly, from the vear 1882 to the present time Jesse Potter has been a fast liver. “The amount of money that he spent over ana above his salary between 1882 and 1887, in- cluding the defalcations which 1 have adverted to, including the moneys which he borrowed from Miller & Lux upon his note, and including the moneys which he drew from the firm on current account, amount to $36,000. This, over and above the salary of $300 which he was then recetving, and such benefaction and gratuities as he may have received from a loving mother, whose only child he was, and from his wealthy steptather. The cold fact confrdhts us now that, since the death of his father to the present time, a period of less thun nine years, Jesse Sheldon’ Potter has squandered, in round numbers, $200.000 in de- bauched pieasures. Who has furnished him this money, for what ulterior purpose was it furnished him, and what purport_the man who furnished it had in view I will advett o presently. Your Honor remembers the questions that were asked of Mr. Potter. We were upon the very boundary of that subject, which bad excited some curiosity, and vere advancing with the caution hesitating and reluctant steps with which & ma; proceeds who is compelled by inexorable duty to make an investigation into the private life or per- sonal sins and offenses of another. At that time nothing could prevent us from making that exam- ination. because the debauched life of Jesse Potter was averred in our petition, and was denied by the answer. The burden being with us we would have been compelled, however painful the operation, to enter into that forbidding region. That was the condition of the pleadings then. They were at that time amended, and without further comment it is sufficient for me to refer your Honor to the pleadings as they are now. In ihe amendments which were filed in'this court it is averred under oath: hat said Potter I8 and has been since March 15, 1887, incompetent to execnte the dutles of his trust, and incompetent to act as such executor by reason of his improvidence, and in that behalt these complainants aver thacsaid Potter is and since March 17, 1887, has been, wholly insolvent; that he has since said date reccived from time to time divers large sums of money from his mother, Miranda W, Lux, now deceaséd, and divers other hu‘}e sums of money from Henry Miller, the sur- viving partner of the firm of Miller & Lux, which firm until the death of said decedent was com- posed of said Henry Miller and sald decedent, and from Henry Miller individually and from other sources; that such sums aggregate over §200,000; that all 'sums 8o received except a sum not exceed: Ing §300 a month up to March, 1895, and §500 a month thereafter, have been expended and squan- dered by suid Potter in fast living and on_dissolute associates.” SQUANDERED A FORTUNE. That averment s now admitted to the extent of $175,000. Tt is admitted_that, during this period, whild his family has bedn 1iving on $300 & month, Jesse Sheldon Potter has expended and squandered in fast living and on diasolute associates the sum of $176,000. it now remains to be determined by the court, upon this charge of improvidence, what is the legal value of the fact that the executor of an estate stands before it. not unguardedly, but de- libérately, with full advice of able and devoted counsel.” confessing to the court that during the time he has been an incumbent of this office he has squandered—squandered confessedly—8175, 000 in fast living, and on dissolute associates. Now, if your Honor please, this vast amount was not spent in equal or proportionate sums during the various years that go to make up this period. By far the greater part of it has been spent, squan- dered in this manner, within the last two years, furnished during that period to this man who was thus squandering it by Mr. Henry Miller. How spent? How squandered? e Is asked: “Q.—You borrowed from the 11th of Ociober, 1898. to the 11th of October of the present year, in {wo years, from Heury Miller, §82,0007 Yes, “Q. Again, on October 17 of this year, yon bor- rowedrom Henry Miller $11,0009 A—Yes, ir. *Q.—Ts the $11,000 of October 17 of the present gear (and these quetions were asked him on the st ot Oe‘t’:)b:r,lut 8 few days afterward). a tew e last note st you have iven Mr. Milert X —Yes, sir. 1t the last indebtednessthat you have in- curred to him ? A.—Yes, sir.” The money borrowed then from Henry Miller for two years from the 11th of October. 1893, to the 17th of October. 1895, reaches the enormous amount of $78,000. But that does not give the total amount for these two vears. On the 17th of November, 1894, Potter received $30,000, the sum which, in ber maternal solicitude, sne iad provided for him by insuring her life for his benefit. Of this $17,000 went to Henry Miller to repay him in part 813,000 was spent between the 17th of Novem- ber, 1594, and the 1st of January,1895. The money and price of his mother’s life was thus spent in six weeks. We must further add $300 a month, the salary which he received from his mother, from May, 1893, to September, 1894; the date of his mother's death, say. in round numbers, §5000. Add that to the 873,000 from Miller and $13,000 from the mother’s life {nsurance, and it appears that this man, in the two vears immediately preceding this proceeding, spent $91,000 in fast living and on dissolute associates. In one single week, just be- fore this contest, he spent $3000 in the same w: yoQ;Did you shend "that §3000 Ina week? A— s, sir. 3 ““Q.—In your personal expenses? A.—In my per- sonal expenses s, Sir. “Q.—In the way of pleasure? A.—In the way of pleasure, ves, sir.” And in the month of July, 1894, he spent $9000 borrowed from Henry Miller in the same way. Mr. Miller is asked: #Q.—That_makes $8000 in the month of July, 18942 A.—It must be correet, sir. *‘Q.—You did not stop to think that was rather a large aniount for a man (o spend in one month? A.—Ithought so, yes, sir.’”” Thus In two vears of idleness this man had squandered in licentious pleasures more than what the vast majority can by s lifetime of painful and honorable toil succeed in accumulating. COMPLETING THE PICTURE. But this does not complete the picture, for dur- ing the time that he was spending at the rate of 83000 a week and $9000 2 month and $45,000 or $50,000 a year for pleasure his wife und child were supported upon $200 or $300 4 month, furnished by Mr. Miller as a beggarly charity. He 1s asked: ““Q.—Can you tell usiu_what manner you spent these large amounts of money that you borrowed during this period? A.—I spent it for pleasure. ““Q.—The amounts that went {0 the support of your family are correctly indicated upon these ac- counts that T have read? A.—Yes.sir. “Q.—Amounting to some §200 or $300 a month? A.—Yes, sir. .—And the balance you spent for yonr pleasure and amusement? A.—Yeés, sir.”” What kind of pleasure, if your Honor please? Intellectual pursnits?—the love of art—of painting —of statuary—of literature—of beautiful, Artistic and ennobling surroundings? No. Pleasures such as are sought and found by men who lead & fast life in the company of dissolute associates. What was the consequence? 1t is said that a man can spend his money as he pleases. That is true. 1 know of no power to prevent & man from spending $3000 in one week or $9000 In one month for pleasnre—aye, even thongh, at the same time, bis wife and child are stinted in the necessa- Ties ana certainly in the comforts of life. Men may be so constituted: and if they are, the Iaw has N0 means to prevent the consequences of their recklessness or their injustice. But between that and saying that it 1s from men thus acting that & court of Justice is o select its ministers to carry out the wishes of the dead and Pprotect the rights of the living there is & wide gulf, It has been said here: “Grant thet Potter did spend $50,000 a year; that was not_one-half of the income from his mother’s estate.” The counsel who make that argument fail to recall that, at the time Mr. Potter was spending this money, his mother was not dead; that the property was still hers, not his; that she might dispose of it by will to whomsoever she pleased: that he had at best but an expectation in her estate, Is it then come to this, that a man, having an ex- pectation of income to_come after the death of one whose life intervencs, gives evidence of providence and fitness to take charge of the affairs of others by borrowing from a stranger the whoie of that an- tictpated income, to be squandered in profilzacy— borrowing, too. by giving in pawn to the lender everything he has in the present and all he hopes to have in the future? Where is Jesse Sheldon Potter's property to- day ? The very house in which his child and wife live is pawned to Miller. Where are the fees gnd emoluments and commissions which he may be entitled to receive in this proceeding ? Pawned to Miller. Where is his expectation as heir in his mother’s estate ? Pawned to Miller. TIE STAVE OF HIS MASTER. Stripped of eversthing he has—land, home, moneys, expectations, all—he is a very slave in the hands of his master, who has furnished and still furnishes him money and leads him on to ruin, in order that he may the more effectually mold him to his will. Listen to this testimony: Mr. Miller says that he has loaned Mr. Potter these amounts of money upon security, and concludes: “1loaned him just as much 28 [ éxpected his security was ample.” “Q.—Y ou Joaned him up to the. limit of his se- curity? A —Yes, sit. “Q.—Do you know, as a result, that the very money which supports his household, bis wife and child, is furmished from vour oflice, and has been for months? A.—Probably it is." % The very bread which Potter's child eats to-day is Miller's. Tlie very roof which protects his wife is Millers. Well might this wretched man ex- claim, as did once the-deposed ionarch of Eng- and : ur lanas, our lives and all are Bolingbroke's!”” Miller knows full well—Potter thoroughly un- derstands that Miller knows full well—in what manner these moneys have been spent. The very magnitode of (he AMOURLS is suggestive. No man like Potter could honestly spend these amounts of money during this period. Miller knows now much of these amounts go every month to Jesse's wife and child—two or three hundred dollars. He Kknows, 100, that the thousands o to Jesse, and the manner in which they are spent. Miller js then asked: Q.—You hiave no idea of how he was spending his money —1I have some slight idea. “Q.—He was not prudent in his habits? A.— Well, If aman spends the amourt of money he states he has gpent, he can't be very prudent in hjs habits. “Q.—Yon know whatthe meaning of the word improvident’ is? A.—Yes, sir, I do. Q.—He was improvident in bis habits? A.—Yes, sir, 10 some extent. Miller's own words under oath in 1894 were that Potter was throwing himself away.” Throwing himself awsy—with whose money? Henry Miller's. Leading & fast life—with whose money? Henry Miller's. Squandering a fortune upon dissolute assoclates— with whose money? Henry Milier's. The most melancholy feature of this picture is that these moneys were furnished to Poiter by Miller in spite Of the protests, the prayers, the tears of his mother. She begged Miller not to permit her son to draw any more_money from the firm than the $300 & month_which she himself was giving him. She deemed that sum ample. She considered that more was only enabling him to lead that life the end of which is ruin. Would you believe it that, in spite of this mothers protest and prayer, this man_continued to furnish these lavish amounts to this wayward and unfortunate victim? You would mnot be- lLieve upon any less assurance than that of Henry Milier himself, would you? MOTHER AGAINST SON. The mother said, in substance: sake, Miller, don’t give Jesse any more money. You know how he employing it. You know what kind of life he isleading, You know what associates he is consorting with. You yourself ac- knowledge that he 18 throwing himself away. Help me to redeem him. fet mé furnish him money enough to support him, his wife and his child,’ More he does not need and should not have. Do not give him more to be squandered in the manner that you and I full weill know he squanders it."” What answer did Henry Miller make? He said, in substance, to the mother's supplication: “Woman, you are unreasonable. It is unreason- able to limit this man to $300 a month. Let me furnish him rather $3000 a week. Le: me fur- nish him rather 39000 a month. Let me furnish bim rather $80,000 in two vears. Let me supply him with the means of continuing to lead the life he is leading, Let me take from him in pawn home, lands, commissions, fees, expectations. Let me bind him haod and foot, that he may be my slave and minister to my wishes,” ‘That is the dialogue which. if not spoken by the lips, was spoken by the acts of these parties. Having now disposed of the first two subdi- visions of the argument, I purpose addressing my- self now briefly to the tuird, denomigated here by my learned friend that of conspiracy. He cor- rectly states in the main what the charge is, in these words: “The wnole theory of that charge is this: That for five years iast past ‘Mr. Miller and Mr. Potter have been working to prevent the settlement of this estate and to keep it open, and perhaps t o rob it: that the respondent and Henry Miller have entered into a conspimcy to cheat and defraud this estate and those interested jn it, which con- spiracy includes a plan or scheme to postpone the settlement of this estate and to keep those entitled to the distribution thereof out of what is justly and le{llly thefrs.” adopt_these general outlines of this charge of conspiracy, o rather, I should say, co-operation to do wrong. 4 In that cohnection’ my learned friend very properly says that “in determining whether a con- spiracy exists or not, it is well, at. the commence- ment of an investigation, to inquire who the actors in the conspiracy are, what their relations to the situation may be, and what their motive may be.” Iagree with him that that is the orderly way of presenting this matter, and, following the custom of the dramatic authors who, in the frontispiece of their manuseripts, are accustomed to give, not only the name of the characters, but also some general designation showing the role they are to fill, T will briefly ask, Who is Henry Miller? ‘Who is Jesse Sheldon Potter? What role do they play Hm:“fn. tothe testimony presented before your lonor! “For God's are or ‘WHO IS HENRY MILLER? And. first, who is Henry Miller? He fills such a place in the history of the devel- ©opment of this State that your Honor might take judicial cognizance who Henry Miller is. Weare authorized to infer that he isa German by birth. He came to this State at an early day, stlll n the prime of manhood. He is evidently & manof slender education, and, if we may judge from his mode of speech and the letters produced here, even lacking in cuiture, almost, to the degree of illiteracy; still, undoubtedly a man of marked lines ot character—character in which the curious gxplorer might, perhaps, find standing out in bold rellef stubbornness, love of success, and, especially, & morbid dread of being outwitted and over. reached. Endowed with wonderful energy and great business ability, he is restless in his purpose to supplement by Success tire deficiencies of his {ollectua i wastl v whiSh semamaies iy o which separates him from more favored lndlvifuunls. ey It were a curious study of human nature to ex- plore the secret springs of his ambition. These Possessions, which, from slender beginnings at an early day, have now expanded until they cover vast areas in three differend States and in thirty or forty different connties, the love of which old age cannot abate—do they denote the peasant’s love of land, so vividly portrayed by the novelist, Zola, which sometimes carries Its victim even into the confines of crime? 1s that love the offspring of that emulation of the nobies of his own country whose power and ancestral pride rest upon their landed possessions? 8 Inhis own sphere Hlnr‘y Miller boasts that he has distanced &Il competitors. It is his special Pride that, owing to more perfect organization, the profits of his business are one-fifth larger then those of any other butcher. He Mpilmfi any sac- rifice 10 be the cattle king of the ific gulb. “The love of rule, a dominant passion in some men, is in bim developed to an almost abnormal degree. We find him at an early day taking as his part- per Charles Lux, a man who. endowed with a more conservative temperament, was well fitted to be & balauce wheel to the vaulting'ambition of his more | | i i | | | | on thel | your own heirs, woul daring associate. The death of that partner, in 1887, de'ayed for a while, but for a while only, the accom- plishment of Heury Miller's ambition. ' He paused ut for a moment only upon the brink of the grave. He hesitated but for & moment only before the possible lezal impediments standing in his way. Then he boldiy resolved to plunge and keep on his course, regardless of law, heedless of others rights, determined to brave down all obstacles. From that time to this, a period now of some nine years. he has never for a minute lost sight of that object. What mattered it to him that others had legal rights in this property? They were to be treated as intruders—to be cajoled into subserviency or crushed into submission. His partner’s ashes were scarce cold, the tears of the mourners were scarce dry upon their cheeks, when he began to contrive and conspire and to win overand make subservient 10 bis purposes the widow and the stepson of his deceased partner. His signature to the petition {or the probate of the will of that partner had scarcely been written when he schemed to sabiect {0 his control the whole of the partnership property by himself naming and dictating the appointment of its lezal representatives. From that time to this he has managed the property regardless of the Tights of others, as )f Lie was its sole and absolute master. 1By what means he has sought to accom- plish and has so far succeeded in accompli oy Se titude purpose the present proceeding and his therein suticiently attest. . WHO IS JESSE POTTER? Who, on the other hand, is Jesse Sheldon Potter? Mark, at the outset, how admirably fashioned by gecident or nature 'to subserve the purposes of Henry Miller. He is the stepson of his deceased partuer. He is one of the three executors named inthat partner's will. He is nearly related to Henry Miller. He is ‘his own pupil, whose char- acter has been molded during his youth, under his own care, in his own house. He is revealed to us as a man fond of pleasure, delighting in the com- panionship of the depraved and dissolute, having 1o propercy of his own and yet needing vast sums to minister to his debauched appetites. ‘Theonly child of a widowed mother, who idolized to the end her wayward boy; and who, herself, incapaci- tated by Inexperience, the gentieness of her dispo- sition, and the infirmities that bore down upon her, only tog gladly surrendered to him the abso- lute manag@ent of her affairs. Miller saw at once that through him he could manage the mother, and controlling him control ihe estate of Charles Lux. Potter's {mprovidence was early made the lever with which to move him. Mark now how completely Miller has ensnared and fettered him—how his very improvidence and dissoluteness have been availed of to bring him As early as 1891, when lLe was being pressed in this court by the German heirs, it became opportune to Henry Miller to hoid over the head of Jesse Potter the terror of his misdo- ings, as they were revealed by the books of the firm. His extravagance was made the means of leading him to borrowing, pledging, mortgaging all he had, until at_length, stripped of everything in the worid, he stands to-day before his master dependent for the very sustenance of his wite and child upon Miller’s bounty. ‘These being the characters before us, let us ex- amine into the facts constituting a co-operation toward a given intent by them. Let us first ex- amine whether the purpose of Henry Miller be what I have stated it a moment ago. From the very start. after the death of his part- ner. Miller assumed the attitude that be, and he alone, was the arcnitect of this vast fortune, the creator of these more than princely possessions. To his genius it was due, in his conception, that the Janded holdings of Miller & Lux threw into the shade all inferior possessors of the soil in this State; t0 his management. and to his alone, that their vast herds, numbered by the hundreds of thousands, roumed over every plain and mountain in three States. member what he told Judge Spencer in 1883, that “his own individual efforts had produced nearly all the partnership property, and in justice it substantially all belonged to him. Mr. Lux had done little oF nothing to produce it, that in justice .and right he should have it all; that he had worked for it all and that Mr. Lux had sat down there in San Francisco and had done little or nothing toward earning the property, while he had been delving and exposing himself and working on the outside and amassing this fortune.” MBS. LUX HAD DONE NOTHING. 1 quote the Judge’s own language as given upon the ‘stand. Miller says himself, in his testimony, that not only he, but his wife “Had slaved and worked to serve the farm, while Mrs. Lux had never n(l(ludupflm)’ to that property. Mrs. Lux had done ne:hing.” e repeats this further on when he states that by nig. t and by day, In son- shine and in storm, without Yrest and without en- Joyment, he had devoted himself entirely tothe xpuusion of the wealth and possessious of this rm. With these ideas in_his mind. it was not a difii- cult task to persuade himself at he had toiled to accumulate these acquisitions, and as the others had not, they in justice at least be- longed to him. He was reminded, of course, that the heirs of his partner had some légal claims, but he wholly repudiated any moral or equitable rights r part, and early resolved to deal with the property, in absolute ignorance of such rights. This may seem an exaggerated statement, if your Honor please, to be made in a court of justice, and vet I may quote the very words of Mr. Miller. ‘Asked: “Had you been tlie absolute owner of thi property and intending to enjoy it to its most bene- ficial extent during your lifetime and trausmit it to you have acted differently in the management from what you have acted since Mr. Lux’s death?” he answers: “I have done it with the impartial expectation to make this prop- erty valuable for myself alone.” Asked further, “You carried on your business after Mr. Lux's death just the same as_yon did be- fore?’’ he answers, ‘‘Just the same.” Again, “You did not contract it or take any other steps in car- rying it on than you did during Mr. Lux’s life- time?” he answers, “No. sir, I did not.” And still further: “You carried on the business just as vou did in Mr. Lux's lifetime, without any change? he answe hat was my intention. He claimed, and he ultimately made those who listened to him acknowledge, that, under some fancied power granted him in_an agreement with is dead partner, he, for seveu years, at least, could do just exactly what he pleased with this vast estate. It matiered not who gainsald that proposition, he held on to it with dogged and char- acteristic aetermination in spite of ali obstacles. Y our Honor might aamonish him of his position as surviving partner and its duties. You did so admonish him with all the authority which be- lones to your exalted office, for you told him here in this very court, “I never believed that that wil conferred upon Mr. Miller, or that the will conld possibly be construed to’ vest in Mr. Milier the | power t0 reinvest the income of that estate in en- Jarging it. 1 think it was the duty of the execu- tors to compel Mr. Miller to cease that work. I don’t think that seven vears contemplates an en- largement of the estate by any mexns.” He heard, but paid no attention to ihe admonition. His lawyers, it Is true, might at first put in a protest. HE HEARD BOUT DID NOT HEED. They did admonish him at the very siart of the necessary limitations upon his authority. Within a fortnight of his partner's death hls own chosen attorneys, Messrs. Mastick, Belcher and Mastick, advised him that he could 1o longer “buy property without it was absolutely necessary.” These are his own words. On the 29th of March, 1887, fourteen days after Mr. Lux’s death, Mr. Miller's secretary, after a conference with thesé gentlemen, wrote him as follows: “I feel sure that Mr. Mastick understands your position and wants to have everything done 80 a8 to Interfere as littie as possible with your run- ning the business according to your own judgment. He says he told you that any small purchases ot la- d that were necessary o the successful manage- ment of the business he believed to be within the meaning of the partnership articles, althongn that article says not a word about ‘buying.’ Mr, Mas- tick thought you ought to be informed sbout this lest you might make some important purchases that might be objected 10 by the parties interested in C. Lux’s estate and so lead to trouble.”” Did he heed the warning? We fina_him within a fortnight from that admonition purchasing—and this was before his partner’s will was probuted— for the partnership $55,219 worth of land: justi- fied upon 1o other tenable proposition than that it was & profitable specu'ation: and, within less than a month fron: the death of his partner, he had in- creased his purchases in the same line to the ex- tent of §62.000. As to his co-executors, Miranda W. Lux and Jesse Sheldon_Potter, they did not join in_the ad- monitions of the court or the warnings of thelr lawyers. They murmured not, mor complained, nor offered_any obstacle. He took care from the start to subject them completely to his power. Hence, with what he did, they were entirely satls fied. So completely, so absolutely passive, were they that, in May, 1892, your Honor was fuliy war- ranted in saying, and did say from this bench. “Whatever has been done in this estate = *# * Das all been done with the approval of Mr. Potter and Mrs. Lux, whatever Miller has done.”” Everyihing had to vield to the iron will of this man. The advice of his lawyers was scouted. The admonition of the court fell as upon barren rocks, The legal duty of the executors was but a rope of sand. He was resolved irrevocably to accomplish his purpose and to retain to the end the control and the power incident to the control of this vast prop- erty. He neutralized your Honor's admonition by making friends and allies of those who might, in the exercise of their office and their duty, have en- forced by legal process the justice of those admoni- tions, e controlled Mrs. Lux through Jesse Pot- ter, her son. A NOBLE WOMAN. In saying so I wish it to be distinctly understood that I make o charge, cast no_aspersion, utter no complaint of the course pursued by this lady. 1t was my privilege to see her once, and but once, in May, 1892, in this court. A gentler, more lovable, more notle and generous-minded woman the spacious world cannot again afford. She looked up to Henry Miller ¢s & man incapable of doing wrong. T her he was the embodiment of ability and goodness. She herself had been cared for by the tenderness of her husband and knew nothing about business. Upon this subject I quote Mr. Miller's own words, “Never has she taken any ATt in the administration of this estate.” All her owers were delegated to her son. He acted for er. Miller never consuited her. Everything was done through her son. Now, it favored Miller's position that his dead partner had in 8 moment of blind confidence ap- pointed him one of the executorsof his will. His lawyers soon advised Lim—as must have been manfest to the dullest understanding of layman or lawyer—that the position 0f surviving partner and of executor of the estate of a deceased partner were absolutely antagonistic, that their duties were Lostile and confiicting, and that no man could with honor, however much he might profit, under- take the task of occupying both. Miller paid no attention to the admonition. The position of executor of his dead partner's will gave him an advantage, and what mattered it that a sense of delicacy, of propriety or of justice would have made & high-minded max spurn the advantage? It was nothing to Henry Miller. He seized upon the advantage and made the most of it. His position was cleariy outlined by his own connsel, Mr. Eu- gene R. Garber, upon the accounting, where he said: 4480 far a8 the first seven years subsequent to the death of Mr. Lux is concerned, under and by vir- tue of the contract between them, and under the advice of counsel, thera was no occasion for him to contract the business. And, moreover, Mr. Lux was there, and Mr. Potter was there, and Mrs. Lux under the will of Caarles Lux could 'have objcoted to Miller’s going on. and there never was any ob- Jection.” And s0.in conformity with that, in the accounting suit which was oronght by Miller's own attorneys, Messrs. Mastick, Belcher & Mas- he outset that, as | tick, against him in paragraph 11 of the complaint is averred : S at the suid detendant (Henry Miller) has not taken any steps whatever to liquidate the business of sald copartnership or to wind up or settle its affairs, but_on the contrary, bas ever since the death of the said Charles Lux continued to carry on the business of the said copartnership in all re- spects as if the said Charles Lux were stiil living and as if said copartnership were still subsisting, and has used the greater portion of the profits and proceeds of said business in the purchase of large quantities of land and personal property, and has Dby such purchases greatly increased the amount of land and of cattle aud other personal property heid by said coparinership.’” This is not my lan- guage. Tt 1§ the language of Messrs. Mastisck, Belcher & Mastick, Mr. Miller's own attorneys. REVERSING THE SITUATION. The resuits of this policy and of this manage- ment have responded to the wildest imaginations. At Charles Lux’s death. March 15, 1887, Henry Miller owed the firm of Miller & Lux $82,000, while Charles Lux owed it nothing. Through bis management since that time the position is re- versed. The firm of Miller & Lux now owes Henry Miller $500,000: and the_estate and helrs of Charles Lux (including Jesse Potter as an heir in his mother’s right) are brought in debt to the firm $531,000. The position of the parties in nine years of Miller's manazement has changed some- What. Furthermore, the copartnership agreement be- tween Miller & Lux, which is incorporated into and made & part of the will of L;harleu Lux, pro- vides (Iquoie the exact language) : 50 [m::ch of tue rents, issues and profits and proceeds of sales which may be necessary for the support of the family of the deceased shall be paid monthly to such family or its Proper representa- tive.” Has Henry Miller ever complied with_thls wise and beneficent and_humane provision? Never. TReceiving millions of profits, making tens of mil- lons of sales since the death af his deceased part ner, never has he paid to his widow one cent of such profits or sales. 1 speak literally, it your he never Honor please. and not metaphorically. Dbas recelved a cent from this vast éstate, to one- fourth of which, amounting to three, four, five or more millions, she was entitled. She never has received a cent. She has had to borrow money 1o live on. ‘1he very family allowance which your Honor and your Honor's predecessor, in accord- ance with the humanity of the law, made for her support to this lady, who was entitled (0 receive from two to three hundred thousand dollars of profits per annum, she had to borrow from Henry Miller. and he has charged her interest on it to this very day. He tried to hold her exactly where he held Jesse Potter and his wife and child, making them all Teel that they were dependent upon him. ‘Theoretically they might be the owners of millions, Dbut they had to beg their bread from Henry Miller. What has become, then of the vast income ot thisestate? It has been used and appropriated Miller tofurther his own eain desire to become theautocrat of the cattle market of this coast. He has gone on regardless of the provisions of thu partnership agreement, heedless of your Honor's admonitions. in spite of all dictates of propriety and justice, investing. and expanding, until now he can boust that he has one-third more cattle than when Charles Lux died, twice as many sheep. and he has three times as many Lorses and four times as many hozs. He has invested in land and permanent im- provements of land alone the enormons sum of £2,150,000 ot of the profits of this business. And | this while the brothers and sisters of Charles Lux, the beneficiaries under bis witl, were going empty~ handed to their graves, never having received 1 penny of the vast fortune which belonged to them. All ihis while the widow 0f bis dead partner was_compelled to borrow the means upon which she lived. MILLER FOUND EXCUSE Of course, for pursuing schemes thus abhorrent to all jnstice and propriety. some plansible excuse had {0 be found. Itis only when a man becomies absolutely depraved, when copscience is absolutely dead in his bosom, that from the depth of his degra- dauon and despair be exclaims, as did Manired: * & % Ihave ceased 0 justity my deeds unto myselt— The last infirmity of evil.” So Miller found excuses, and what were they? First, his dead partner and his wife, it seems, had not been sufliciently appreciative of his vast ser- vices in their behalf. It seems to he_says, { with_childish petulance, “I was trested like a | beast of burden. The moment the beast of burden is not serviceable, his good qualities are forgotten It appeared to me very strongly that way. 1 have spent every day of this time, I haven’t had a day to myself.” Through mability Ilost about four or five days durlug that time, and then I seen the un- | grateful position I was placed under.” I have al- ready read to your Honor the passage in which he states that his wife had toiled and slaved whilo Mrs. Lux had never worked. It has another justification, and it comes in in connection with the Las Animas lease, to which I alluded this morning. ‘That was & nefarfons transaction, as I will show. | It was the result of an agreement which he entered into with the coexecutors of his partner's will throngh Mr Potter, one week after his partn death, before there was any tegal representat appointed, before his will had been probated, so ranged that it resulted in Miller's receiving as re tal tor certain lands which he heid in the La: mas Rancho twice the rental that he had received during his partner's life, and_the other side re- ceived for the rental of the Burri Burri Ranc about one-third more than Miller himself valued Mr. Miller is asked why this was doue; why, within a week after bis partner’s death, he had en’ tered into this agreement so vasily his advan- tage, and what is his justification—for he does jus. tity the act? Michael Reese, it seems, had appointed Charles Lux the executor of his will. The estate of Michael Reese was vast. Upon the final distribution the court allowed the executor the compensation fixed by law. Years aitefwards Charles Lux died. After his death, becanse'it had never oceurred to his mind to divide his eornmis- sions with Henry Miller, Henry Miller, aftér hav- ing allowed years to roll on, making no complaint, proffering no claim, now, when his partner was in his grave, equalized matters by entering into a piot with his stepson to defraud his estate. Bestdes, he finds some justification in the con- tempt that he feels for Mrs. Lux. Yes. Not con- tent with despoiling her, not content with depriv- ing her of her own, he turns upon her and over- whelms her with objurgation and contempt. He say: Mrs. Lux has never added a penay to that prop- erty. My wife has slaved and worked to serve the firm: Mrs. Lux has done nothing, and for that woman”—Thave shame to say it—-1 have only con- tempt” (lookingat her with contempt). The gentle lady that we huve seen here in court, the long-sufter- ing, uncomplaining and afilicted mother of this wayward son, is looked upon with coniempt by him who has made her ¢ osing years full of sorrow! He will not call her Mrs. Lux; he calls her Mrs. Potter, as if he deemed her unworthy to bear the name of her deac husband. Now note, if your Houor please, how prompt after he had made up his mind, this man was t st in the line which e had marked out for him- seif. 0 THE LAS ANIMAS LEASE. I advert to the transaction of the Las Ani- mas lease, to which I have already referred. The matter stands thus: Mr. Potter acted throughout for Mrs. Lux, she being well aware that he was to attend to the business for her, for Miller says (I quote his own language:) “Mrs. Lux and I had To business conversations at all; [ demt with her representativ | done no transaction with Mrs. Lux, she alway did it through some one else: she would not give me a chauce to talk business.” In this condition of affairs, and while Mrs. Lux was stiil plunged in grief, within one week after Charles Lux's death, within less than five days from the time he was ut under the sod—Miller, in conjunction witi otter, acting for himself and as the representa- tive of bis mother. as I have shown, entered into an agreement that the firm of Miller & Lux should pay a cash rent of §0 an acre for the Burri Burri ancho, belonging to_the estate of Charles Lux, which, according to Miller's own testimony, was about '81.50 per acre more than it was worth ' (the whole rent amounting to $8000 or $10,000), in consideration of Miller's heing allowed (o charge the firm a cash rent of $45.385 95 for the lands he owned in the Las Animas Rancho, which was double the rent that he had been accustomed to charge during Charles Lux’s Iifetime. In other words. Miller was willing that the estate should collect about one-third more rent upon an amount of $10,000, providing he was allowed to collect one-half more rent than was just upon an amount of $45,000. That nefario#s transaction, which to-day, mine years having elapsed, amounts toa profit to Miller NEW TO-DAY. " GOLDEN OPPORTUNITY ‘We have been compelled to change ourlocation to 111 Montgomery street, and com mencing at 11 A. M, daily we ‘will resume our AUCTION Of WATCHES, DIAMONDS, JEWELRY and SILVERWARE, Commenced in our old store on Sutter street. We are positively retirin, g from business, and everything must be sold at any sacrifice. If you want a suitable CHRISTMAS PRESENT, Elegant Plate Service or Jewelry for yourself, yon can name your own price AND GET THE BEST. Salesat 11 A, M.and 2 P. M, M. WUNSCH &C0, (NEW STORE), llll Montgomery Street..