at the canvass of the ballots containing the names of the persons designated for that office. The judges of election and the police or other officers attending at such election district specified in said certificate, shall make a passage for such person to the said judges, and the said judges shall permit him to be present at the canvass of all the ballots in the box containing the ballots for the office specified in the said certificate, and so near to them that he can see that such canvass, and the statement required of the votes found in each box, are correctly made. And no judges of election, or board of judges or police or other officer, shall allow such person to be molested or removed during the canvass of such ballots, or until such statement has been made, completed and signed, miles he shall be personally guilty of fraudulent or disorderly conduct.Seo.88. [SameComparison of lists.]The canvass shall commence by a comparison of the poll-lists, from the commencement, and a correction of any mistakes that may be found therein, and such comparison shall be continued until the poll-lists agree as to the number of ballots deposited in each box; when they have been made to agree, one of the judges shall publicly announce, in a load voice, the number of ballots deposited in each box as shown by the poll-lists.Sec.89. [SameOrder of canvassOpening boxes.]-The boxes shall then be opened, and the ballots therein canvassed, in the order prescribed in this section, and the canvass of the ballots found in one box shall be completed before another box is opened. The boxes shall be canvassed in the following order: 1. President. 2. State. 8. Congress. 4. Legislature. 5. City. 6. Judiciary. 7. Local.Sec.40. [Double ballots.]When the box is opened, the ballots contained therein shall be taken out and counted unopened, except so far as to ascertain that each ballot is single. If two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed
obloquy.It Is appellants’ contention that such publications were privileged, in that they were criticisms and comments upon the qualifications of the plaintiff as a public officer, and as a candidate for an office of trust and confidence before the people, appearing in a newspaper the management and control of the policy of which was undertaken by defendants merely ,to purify politics and Improve the public service, and, further, that the finding of the court In Its findings of fact that such publications were not privileged was an Insufficient finding. It is sufficient, with reference to this last suggestionto say, when the facts and circumstances under which an alleged defamatory publication is made are undisputed, It is a question of law for the court to determine whether it was privileged or not Dauphlny v. Buhne Cal.Pac and such conclusion of law loses none of Its force by being Incorporated In the findings of fact That the publications were actually made with good intentions and for Justifiable ends without malice, and under honest belief of their truth, does not render the same privileged, provided the same are false In fact Dauphlny v. Buhne, supra. In measuring the right to discuss in public print the character and conduct of one who Is a public officer, or a candidate for public office, all persons stand upon an equal plane. It matters not that one causing such publication may be in the publishing business as a means of livelihood, or for a less selfish purpose, while another committing the same act maybe engaged in some other pursuit Neither may print or publish any matter which falsely charges such person so in office, or a candidate, with the commission of a crime without Incurring a liability for the injury occasioned thereby. The law tolerates public criticism of such officer or candidate in so far as his moral delinquencies so made public may affect his official character or fitness to assume the public duties to which he aspires, upon the theory that the general tley may intelligently exercise the elective franchise, or, In the case of a public officer, fce advised of the manner In which those in office are discharging the duties of their Oust. But in assuming to discuss in print the private character of such candidate or officer one may not publish any matter false ia fact. While facts may be published, falsehoods may not, and he who would justify a charge of specific acts of misconduct against a candidate for office must do so by proof of the truth of the charge, or he does not justify at all. Dauphiny v. Buhne, sapra.There is no merit In the contention that the nonsuit should have been granted. The preliminary proof upon the part of plaintiff was sufficient to make a prima facie ease, and warranted the denial of such motion.We find no error in the record, and the Judgment and order are affirmed.We concur: SHAW, J TAGGART, J.CLAPP v. VATCHER. CivIConrt of Apnea, Second District. Talifornia. Dec.Rehearing Denied by Supreme Court Jan. L Wills PbobateQuestionsCONCLUDED.Under Code Civ. Proc. profiling that an order in respect to the probate of a will is conclusive as to the will, etc an orier admitting a will to probate determines fist the will has been duly executed bv a testafr who possessed legal capacity, and that it has sot been revoked.fEd. Note.For other cases, see Wills, Cent. Dig.f ; Dec. Dig… JcdgmestResJudicata ProBateQuestionsConcluded.In proceedings to probate a will contestant tlkged that testator had executed a later will aad a deed conveying all his property. Proponent alleged that testator was incompetent to make a will when the later will was executed, Ittiymake a deed when the deed was executed. The earlier will was admitted to probate. Heldtiat, since under Civ. Code,-, the ister will, if valid, and under section . the ifvalid, revoked the will, the unsoundness ofthe mind of testator at the time of the execution of the later will and the deed was necessarily adjudged, and was conclusive on the partie is a subsequent action to set aside the
weeks ago, in the solitude of my own home, bowed down by a great personal sorrow, the news of the death of JohnA. Loganflashed over the wires I could not but feel that another personal grief had come to my heart. For every man in this nation who loves liberty and loyalty and law loved him in whose memory these words of eulogy are being spoken to-day.It was not my good fortune to intimately know General Logan,yet when I came to Washington in December, , it was my priv ilege to bring a letter of introduction from one of his warmest personal friends, and I shall never forget the warmth of the greeting then received, or the kind request, frequently afterward repeated as we casually met, to visit him at his home. That pleasure was still in anticipation when death so suddenly removed the noble man and brave soldier, and carried to that household the darkness of desolation and the overwhelming grief of crushed and bleeding hearts.But it was not necessary for one to personally know General Loganto gain a knowledge of his character and attributes. His record is written on every page of the history of his country since the troublous times commencing in . When that great conflict came and the nation needed brave men to defend it Loganthrew all his energy, strength, and heroism into the scale, and came out of that terrible struggle with a record for bravery and military skill equal at least to that of any man who fought on either side. Rapidly rising from a private to major-general, he was the pride and glory of the men whom he commanded.His battles were nearly all victories, and in them he was a conspicuous figure, inspiring his men by deeds of daring unexcelled in the military history of the world. What wonder that he was the idol of the veterans of our late war! What wonder that the common soldier, recalling the events of that great conflict, turned to JohnA. Loganas his best friend! What wonder that wherever soldiers congregatedaround the camp-fire and at their z-eunionsthe mention of Logan’sname was always greeted with manifestations of delight! And surely this record alonethe love and honor of the men who left home and dear ones to do brave battle for the Constitution and the Unionis enough to immortalize the memory of one of the greatest generals of modern times.But Loganwas not only a great soldierhe was equally a great civil leader. Examine the long record of his public life, and not a blot is on the page. Earnest, aggressive, and eloquent, his words always reflected honest convictions and high purposes. The arts of the demagogue were unknown to him, the tricks of the mere politician were antagonistic to his ideas of public duty. As so many have testified to-day, he loved truth for truth’s sake and despised pretense and shams of every kind. Loyal to his country, he was equally loyal to his convictions on all public matters, and wherever the finger of duty beckoned he followed fearlessly and triumphantly.In every department of lifewhether as soldier, legislator, counselor, or friendin the army, in the Senate, or anywhere among his fellow-men, he was the circle of profound respect and loving adniiration, while in the sacred precincts of his own home he was the light, the joy, and the inspiration, and the deep and overwhelming grief that to-day sweeps over the heart of the loving companion of his life-work is, after all, the most eloquent tribute that can be paid to his memory.Loganwas a great man in the best meaning of that word. He was both physically and intellectually strong. He towered above the masses as some great tree towers above its fellows.In my own State, on a lofty mountain peak, is the perfect face of a man, formed by the rocks without the aid of human intelligence or human effort. Tourists from distant lands come to gaze upon ” the great stone face,” and go away with feelings of awe and admiration. It is a grand facegrand in its dignity and its impressivenessa face that haunts one in after years, and tells the story of nature’s
General Logan.The soldier of that grand army mourns his loss to-day as ” one who will not be comforted.”You will call to mind, Mr. President, General Logan’sspeeches on education, on the needs of the Army, his defense of General Grant, and his arraignment of General Fitz John Porter. These constitute an important part of the records of Senatorial debates, and should be classed among the ablest and most exhaustive speeches ever made in the Senate. As a political leader General Loganwas conspicuously successful.He was naturally in the front rank, whether on the field of battle or in political contests. Living in an era when corruption was not uncommon, when strong men of both parties sometimes stood aghast and saw their reputations blasted by public exposure, he remained throughout his long public career above suspicion. Wealth could not tempt him to soil his spotless name. He never used the opportunities of his official position as a means of obtaining gold. He died as he had lived, a poor man.Throughout his long and conspicuous public career he came many times before the people, but there never was a ghost of dishonor in his past to rise up and cry upon him shame. May his children “rejoice and be glad” in the example of a father of whom the whole nation could rise up and say, “There was an honest man.”But let us not indulge in adulation. General Loganwas not a perfect man. Faults had he, “child of Adam’s stem,” but they were small, and served by comparison but to enhance his virtues. His prejudices were sometimes narrow, but he was never a hypocrite. He never professed to be what he was not. He sometimes erred, for he was possessed of like passions with other men. He sometimes alienated a friend, as every strong, independent man must in the course of a public career. He had his bitter enemies, but, in the words of a revered and venerable friend of General Logan’s,exSenator Simon Cameron, “a man who makes no enemies is never a positive force.” Loganwas a positive force. He took his position on questions as they came up, and was always ready to defend it with all his power.Mr. President, few men in American history have left so positive an impress on the public mind and so glorious a record to be known and read of all men as has General Logan.The pen of the historian cannot fail to write the name of Loganas one prominently identified with the great movements and measures which have saved the Union and made the nation free and great and glorious within the last thirty years.Like Lincoln, his heart and hand were ever for the people. He came up from the ranks of the people, believed in the purity and integrity of the masses, and was always ready and eager to speak for them. He was a true republican and believed firmly in republican government. He despised tyranny in all its forms wherever he found it. He was always true to his convictions and to his friends, and no power or influence could induce him to forsake either.His sturdy character has been so often demonstrated upon this floor and in his work and in his powerful speeches in every part of the country, always showing his most earnest devotion to the Union, his never flagging zeal in behalf of his comrades-in-arms, his love of liberty and human equality, his belief in universal education as in the interest of the happiness of the people and of the perpetuity of republican government, his adherence at all times to his convictions of duty, his unfaltering determination to stand by his friendsthat it seems needless for me to dwell upon it longer.In his remarks in this Senate upon an occasion similar to this, inspeaking of a once distinguished member of this body, the lamentedChandler, General Loganused the following language:Tis true the grave in its silence gives forth no voice nor whispers of the morrow, but there is a voice borne upon the hps of the morning zephyrs that lets fall a whisper, quickening the heart with a knowledge that there is an abode beyond the tomb. Sir, our lamps are burning now,
demurrer was Interposed and Tsrc-perly overruled, is sufficient to sustain the judgment rendered in favor of plaintiff, it is immaterial as to the rulings made by the court upon the demurrers to the second md third counts. Even if such rulings wereerroneous, it would, at most, constitute harmless error. However, we may say that a cursory examination discloses no merit in the special objections urged to these counts. The judgment is affirmed.shipped a case of crockery and oriental goods from San Bernardino to Los Angeles, addressed to Elias A. Shedoudy, Los Angeles, Cal via the Santa FRailway. This case of goods was delivered to the defendant, as a warehouse keeper, at Los Angeles by the railway company, on August to be stored until plaintiff should claim it. On November plaintiff called at defendant’s warehouse in said city, and in a conversation with defendant’s representative was told that defendant had the case of goods, and the charges on them were $. to November th, and would becents a month thereafter. Plaintiff said he wouldlike to leave the goods in storage, and was told that defendant would keep them as long as you want. He then stated that he was going on a long trip, and that when he located he would send defendant a letter to send the goods C. O. D. The representative replied: We might not send them C. O. D. You better send the moneyand upon plaintiff suggesting that he might forget the amount, defendant’s agent wrote upon a card, Charges to Novc. per mo. thereafter, and handed it to plaintiff. To a suggestion made by the representative of defendant that the goods might not be worth the money evidently referring to the charges that might accrue from storage, shipping, etc In case the goods were sent C. O. D. plaintiff replied, there is abont $, worth of goods in that case. Plaintiff went away to the old country, and on reaching New York on his return wrote to defendant, under date of April asking for a bill of the charges on the goods, and stating that, as soon as located, he would write where to send them. In response to this he received a postal card saying, Your shipment was sold for unpaid charges more than a year ago. The evidence discloses that the case of goods was sold at public auction, without being opened, for $, on April the unpaid charges at that time being $ and that the sale was made in accordance with the provisions of sectionsandof the Political Code. It is practically conceded that if defendant was authorized to sell under these sections, it has a good defense to the plaintiff’s cause of action; otherwise not.We think the fundamental question to be answered here is, Was there a contract between the parties? It must be admitted that If the defendant had expressly agreed to keep the goods until a specified date, the limitation ofdays fixed by the statute after which sale might be made would have had no application. And so, If the agreement had been that they were to be kept by defendant while the plaintiff made an extended trip to Europe, It is evident that a sale Indays would not have been authorized. it is apparent, then, that the sections of the Code in question are to be considered as stating the terms of the contract Implied by law where none has actually been made. The finding of the court that there was an agreement made between plaintiff and defendant, on November whereby the defendant agreed and undertook that it would continue to bold and warehouse said goods for and on behalf of plaintiff, and to deliver them to the tetter’s order, is sustained by the evidence and is conclusive upon us that there was a contract. We do not think It material to tbe determination of the applicability to this case of the sections above mentioned that the name of plaintiff was known to defendant. He might have been as effectually unknown to defendant, for all tbe purposes of the law In question, from a lack of knowledge of his address as be would have been if his name kad been unknown. And, again, property belonging to a known owner may be unclaimed, as well as that which belongs to
elderly people leaned forward, beaming through the “how, Kallstrom, you have a place in the thiscommunity how to say, you have to move so fast? “his glasses, saideagerly:” This is Beijing, the United States, it is the Beijing United States.” “No, Kallstrom, whether or not the United States, it is also Youwork Kallstrom, Kars Lindstrom, saving you ..”Since then, Sun days a week Kallstrom appeared steady pressure, do not say so many things, but it is a good one-stop andpassing word. But by Monday morning Gunsmith forwardsteadily he was ready to leave. On Sunday, I saw ScotchPreacher, found him confused how to do it. I do not know yetpositively, he was a hand in this, but I doubt it, but Mondayafternoon Charles Baxter on the way home to his carriage abroken see the tOwn. This is a Charles Baxter, I do not think any work has been rival artists Kallstrom declined. Butthis morning, when I go to tOwn and Kallstrom I foundthe Gunsmith shop than ever before to stop humming. “Ah, Carl Strom, when we say good?” I asked. “I do not go,” he said, my sleeve, he led the Don bench me, I saw him fix it. Now, to see is a broken genius GSF repairer high test. Togetherso leaves the music, will be completely smooth, so that the teeth matchaccurately, is an art, even today, several workers tried. “Charles Baxter put it replied:” Old Gunsmith, not toconceal his delight. “He thinks I can not make up for it!” For a true artist, nothing can be equal to opponent’s approval.
discovered in the vicinity of the land until after the contract was executed was admissible, under allegations that when the contract was signed, the only known minerals were on the surface, and that by reason of the subsequent discovery of oil in the neighborhood plaintiffs’ land became more valuable.Ed. Note.For other cases, see Quieting Title, Cent. Dig. g ; Dec Dig. g .Department . Appeal from Superior Court, San Luis Obispo County; E. P. Unangst, Judge.Action by N. M. Payne and others against Vlctorine Nlvard Neuval and others. From a Judgment for plaintiffs, and from an order denying a new trial, defendants appeal. Affirmed.Sullivan &Sullivan, Theo. J. Roche, and Thos. A. Norton, for appellants. C. P. Kaetzel and Wm. Shipsey Frank P. Deering, of counsel, for respondents.MELVIN, J. This Is an appeal from a judgment for plaintiffs, and from an order denying the motion of defendants for a new trial. The action was one to quiet title, and around a certain document set forth In the complaint cluster all of the problems presented by this appeal. The instrument In question was executed by the grantors of plaintiffs In favor of defendants’ decedent. It is in substantially the following language: In consideration of one dollar to me paid by F. Nlvard Neuval, the receipt of which is hereby acknowledged, and the further sum of twenty cents per ton, I, the undersigned, grant to said F. Nlvard Neuval all the bituminous rock, petroleum, asphaltum and other mineral which he may choose to mine, quarry and take from my land in San Luis Obispo county, state of California. Here follows a description of the property. Together with the right of free ingress and egress and also the right to erect and maintain on said land stables, shed, house, side track and other structures necessary to the business of mining and transferring such mineral to market. In case said land fails to produce such mineral in paying quantities or of good quality said F. Nlvard Neuval may upon thirty days’ notice given to me in writing, abandon and relinquish to me all right hereby conferred and granted, and whereas I have a portion of my land cultirated and have planted vine and an orchard such portion now Improved will be free from any mining and quarrying. P. N. Neuval agrees to take at least three hundred tons a year or to pay the royalty on that amount whether taken or not. This Instrument was duly acknowledged and recorded on AprilImmediately thereafter P. Nlvard Neuval entered upon Bickmore’s land, quarried and took awaytons of bituminous rock, after which he removed his machinery, both from that and from an adjoining tract of land, and never pursued any further mining or other operations in that vicinity. However, he paid the royalty mentioned in the agreement up to April After that no more royalty was paid by or for Mr. Neuval. It was admitted by the parties that on the th day of OctoberNeuval died testate, being at the time of his death a resident of the city and county of San Francisco; also that by decree of distribution, given, made, and entered in the superior court of said city and county, all of the property belonging to said deceased at the time of his death was distributed to the appellants. Appellants’ counsel contend that the instrument in question constituted a grant of all minerals, including petroleum and asphaltum, contained in the premises Involved in this action; that no adverse possession has been shown; that If we regard the instrument as one which created an easement, title by adverse possession could not be acquired; and that, assuming an abandonment, plaintiffs waived it by demanding and obtaining a deduction In the purchase price of the property after learning of the existence of the agreement.Great stress is placed by counsel for appellant upon the word grant used in the agreement here considered. With great force and ingenuity they argue that, although no words of inheritance or succession are used, none are necessary section , Oiv. Code, and that, as a
