I dissent. When this case was before the court upon the former appeal, I felt compelled to dissent from the conclusion then declared. By that conclusion it was held that the evidence was insufficient to justify the finding of fact made by the trial court to the effect that seventy-four per cent in bullion of the car-sample assay should have been returned to the Hale & Norcross Mining Company by the milling company. Upon the second trial of the case by the superior court, all the evidence introduced at the first trial was admitted, and in addition thereto other important evidence was introduced, bearing upon the issue as to the amount of bullion which should have been returned to the mining company. Upon the second trial the court found as a fact that sixty-seven per cent of the bullion as indicated by the car-sample assay would be a fair return to the mining company. It thus appears that at the second trial the percentage of bullion was reduced by the court, and at the same time the evidence upon the point strengthened. I am fully convinced that the evidence, as disclosed by the record, is amply sufficient to support this finding of fact made by the trial court. And I am therefore again compelled to dissent from that portion of the principal opinion wherein this particular issue is considered. Other questions of grave importance are involved in the appeal, and carefully considered in the opinion of the court. Owing to the press of other duties, I have not considered them, for the reason that my conclusion would not change the result of the litigation, even if by possibility such conclusion should happen to look in an opposite direction to the views therein declared.
*1005ON REHEARING.
May 9, 1898.
Rehearing.—A Reversal of a Judgment on Appeal will he Set Aside, on the ex parte application of the respondent for leave to remit a portion thereof, and for an affirmance of the remainder, to enable the court to consider such application on a rehearing, which will be limited to that proposition.
On application for rehearing. Granted.
PER CURIAM.—The respondent having made an ex parte motion for a modification of the judgment of reversal heretofore given, it is ordered that the said judgment be vacated and set aside in order that the court may consider the application of the respondent for leave to remit a portion thereof, and for an aifirmance of the remainder. The rehearing will be limited to this proposition, and the respondent will serve notice of his motion upon the appellants.
McFARLAND, J.—I dissent from the whole of the foregoing order.
VAN FLEET, J.—I dissent. If the judgment of this court is to be set aside for any purpose, I think the order should be general.