Fox

This cause is S. F. No. 1040, but it is the same cause as S. F. No. 1016, decided this day, and was argued jointly upon the same briefs. No. 1016 is an appeal from the judgment. No. 1040 is an appeal from the order denying plaintiff's motion for a new trial, and is now before us upon a separate record. Upon this appeal it is contended, that the evidence is insufficient to support the findings of fact. A brief summary of various facts which gave rise to the present litigation is set forth in the opinion of the court upon the appeal from the judgment. Mackay was a director in the Nevada Bank, and the Nevada Bank was treasurer of the mining company defendant. Patton, superintendent of the mine, was indebted to the Nevada Bank by note in the sum of about fifty thousand dollars. It may be said that the theory of plaintiff's case is that Flood and Mackay, in the interest of the bank, formed a conspiracy to get the payment of Patton’s note by inducing the directors of the mining company, whom they controlled, to vote Patton a gratuity of fifty thousand dollars, it being understood that the money when paid should be applied to the payment of Patton’s indebtedness to the bank.

Upon the…