author: MR COMMISSIONER CLAYBERG

text:
    BULLARD, Appellant, v. SMITH, Respondent.
    (No. 1,588.)
    (Submitted May 27, 1903.
    Decided June 10, 1903.)

      Promissory Notes — Negotiability — Provisions for Attorney’s Fees — Amendment of Statute Affecting Negotiability — Constitutionality — Retroactive Operation — Consideration — Duress — Burden of Proof — Evidence — Witnesses — Impeachment — Instructions.

      1. Laws of 1S99, page 115, amending Section 3996, Civil Code, so as to permit a negotiable instrument to contain a provision for reasonable attorney fee, was prospective in its operation only, and did not make' negotiable a note, given before its passage, which was non-negotiable by reason of its containing a provision for attorney’s fees.
    2. The circumstances under which a contract is made, or the intent of the parties existing at the time, are only material when the contract is ambiguous in some of its terms.
    3. A party cannot impeach an opposing witness by introducing evidence contradictory of testimony elicited from him for the first time on cross-examination.

      4. Where, on asking a question, counsel, in response to a query by tbe court, stated -the purpose of tbe testimony sought to be brought out, he was precluded from thereafter claiming a different purpose.
    5. Alleged error in failing to require a witness to answer a question, which he refused to answer on the ground that it involved .a privileged communication from a client, was not cause for reversal, where the evidence sought to be elicited was inadmissible, though no objection was made at the time.
    6. where plaintiff believed that certain property had been stolen from him, and that defendant was connected with the theft, and the latter gave a note to plaintiff for the damages occasioned by the theft, there was a sufficient consideration for the note.
    7. Evidence considered, and held, insufficient to sustain.a jury finding that the note sued on was executed under duress.
    S. The giving of an instruction having no foundation in the evidence is error.
    9. when a suit is brought by an indorsee or assignee of a non-negotiable note, the burden of proof is upon him to show that the note was originally issued upon valuable consideration, and that he is a hona fide holder thereof, but the burden does not also rest upon him to show that no other defense exists to the note.
    10. In an action on a note, the burden of proving duress is on defendant.

      Appeal from District Court, Custer County; C. H. Loud. ■Judge.

    ActioN by W. H. Bullard against H. A. Smith. From a judgment for defendant, and from án order denying a new trial, plaintiff appeals.
    Reversed.

      Mr. Sydney Scunner, and Mr. T. J. Porter, for Appellant.
    The note in suit is negotiable, because the Act of 1899, amending Section 3996, Civil Code, is remedial, to be liberally construed, and is properly applicable to the note in suit. (Blade on Interpretation of Laws, pp. 261-263, 307-312; Ins. Co. v. Talbot, 3 Am. St. Rep. 655; Bank v. Fuqua, 11 Mont. 282; Wilson S. M. Co. v. Moreno, 7 Fed. 806'; Salisbury v. Stewart, 62 Am. St. Rep. 934; Williams v. Flozvers, 24 Am. St. Rep. 772; Montgomery v. Crosstlwaite, 24 Am. St. Rep. 832; Shenandoah Bank v-. Marsh, 48 Am. St. Rep. 381; Sperry v. Horr, 32 Iowa, 104; Carriers v. Minium, 5 Cal. 435; Monroe v. Fohl, 72 Cal. 571; White v. Alla,it, 87 Cal. 248; Barton v. Farmers’ Bank, 122 Ill. 352; Bank of British North America v. Ellis, 2 Fed. Rep. 48; Bank of Colfax v. Anglin, 33 Pac. 1056; Seaton v. Scovill, 26 Am. Rep. 779; 1 Daniel, Neg. Inst. - (3d Ed.), p. 70; Black, Interpretation of Laws, pp. 252, 254, 261-3, 265-7; Sutherland, Stat. Const. Secs. 206, 207, 408, 409, 482; U. P. By. Co. v. De Busk, 13 Am. St. Rep. 221; Lane v. White, 21 Atl. 437; Judkins v. Taffe, 27 Pac. 221; Dobbins v. Bank, 112 Ill. 553; Jackson v. Warren, 32 Ill. 339; Smith v. Stevens, 82 Ill. 554; Iludler v. Golden, 36 N. T. 446; People v. Spicer, 99 N. Y. 225; Cullerton v. Mead, 22 Cal. 98; Quackenbosh y. Reed, 102 Cal. 494; Fisher v. Hervey, 6 Colo. 16.)
    The Act of March 3, 1899, is entitled to be judged by the general rules of construction independent of Section 4651 of the Civil Code. An act of the legislature cannot control the acts of subsequent legislatures, nor bind them, nor prevail over their iute.ntion. (1 Cooley’s Blackstone, 90; In re Madeira Irrig. Dist., 92 Cal. 296.) Nor can it be logically contended that this cc i.elusion is obnoxious to the principle of the integrity of contracts or that it violates any vested rights. No man has a vested right in a rule of procedure; legislatures may change the proceedings of courts to suit their convenience, and unless such change acts as an absolute denial of all rights it is not open to complaint. (Sutherland, Statutory Construction, Sec. 483, et cit.) The following cases are analogous to the case at bar and are decisive of this question, in our opinion: Tompkins v. Forestal, 55 N. W. 813 (Minn.) ; Jackson v. Lamphire, 3 Peters, 280; Satterlee v. Matthewson, 2 Peters, 406; Sampeyreac v. U. S., 7 Peters, 220; Dwell v. Daggs, 108 IT. S. 150; Gross v. U. S. Mortgage Go., 108 IT. S: 488; Mason v. Haile, 12 Wheaton, 370; Drehman v. Stifel, 8 Wall. 595, affirming 97 Am. Dec. 268; Insurance Go. v. Talbot, 3 Am. St. Rep.- 655; Gage v. Stewart, 11 Am. St. Rep. 116; Wistar v. Foster, 24 Am. St. Rep. 241; Summers v. Mitchell, 30 Am. St. Rep. 106; Shields v. Glifton, Hill Land Co., 45 Am. St. Rep. 704; Donley v. Pittsburgh, 30 Am. St. Rep. 738; Whitney v. Pittsburgh, 30 Am. St. Rep. 740; Bellevieiv v. Peacock, 25 Am. St. Rep. 55; Bichman v. Muscatine Go., 14 Am. St. Rep. 308; Judlcins v. Taffe, 27 Pac. 221; OullahanY. Siueeney, 79 Cal. 537; Gordon v. San Diego, 101 Cal. 522; Dunne v. Mastick, 50 Cal. 244; Cummings v. Howard, 68 Cal. 503; Bentzel v. Woldie, 30 Cal. 139; Wood v. Westborough, 140 Mass. 403; Simmons v. Hanover, 23 Pick. 192-3; Kempton v. Saunders, 130 Mass. 236; Lyman v. B. & W. B. B. Go., 4 Cushing, 288; Tate v. Stoolzfoos, 16 Am. Dec. 546; Duanesburgh v. Jenhins, 57 N.‘ Y. 191; People v. Supervisors, 70 N. Y. 233; Pcwi Bensselaer v. Snyder, 13 N. Y. 299; Morse v. Gould, 1 Neman (N. Y.), 281; Stocking v. Hunt, 3 Denio (N. Y.), 274; Conkeyv. Hart, 14 N. Y. 22. See, ¿Iso, Civil Code, Secs. 4240, 2204, 4604; Mandervilie v ■ Bank, 9 Grancb, 9; 1 Daniel’s Negotiable Instruments (3d Ed.), Secs. 106-107; 1 Bandolpb on Commercial Paper, See. 177.
    Statements made by a client to bis attorney in tbe presence of third parties, or to third parties in tbe presence of'bis attorney, are not privileged because they have by the act of tbe client keen given publicity. (Saiierlee v. Bliss, 35 Cal’. 507; Chirac v. Beinicker, 11 Wheat. 280; 1 Greenleaf on Evidence, See. 245; 3 Jónes on Evidence, Sec. 770 and note 14; 3 Jones on Evidence, Sec. 774; Weeks on Attorneys, Sec. 151, pp. 280-282; Weeks on Attorneys, Sec. 159, p. 289.; Note to 15 Am. St Bep. 818 et cit.j Micheál v. Foil, 6 Am. St Bepi 577; Goodwin Gas Co. Appeal, 1-Am. St. Bep. 696; House v. House, 1 Am. St. Bep. 570; Cady v. Walker, 4 Am. St. Bepi 834.)
    Tbe court having sustained an objection to the competency of tbe witness based upon bis supposed professional relationship with tbe defendant, it became of no moment what were the terms of tbe offer of proof, or whether any offer was made. It will be presumed under these circumstances that tbe testimony was material, competent and relevant to tbe issue. {McGinniss v. State, 31 Pac. 978; Owens v. Frank, 53 Pac. 282.)
    Tbe instruction of tbe court upon tbe question of the consideration of tbe note was erroneous. (Beath v. Chapoton, 115 Midi. 506; Thorn v. Pinkham, 84 Maine, 101; Mascólo v. Mon-tesanto, 29 Am. St. Bep. 170.)
    Mere threats, to which no one pays serious attention, which put no one in fear, which arouse no- just apprehension, are not sufficient to avoid a contract. {Barrett v. Mahriken,, 71 Am. St. Bep. 953; 6 Am. & Eng. Eincy. Law (1st Ed.), p. 64 et cit.; Adams- v. Stringer, 78 Ind. 175.)
    If there be no reason for the prosecution, one threatened unjustly has his remedy at law, and if there be reason for the prosecution, then the threat of such is not a threat of unlawful imprisonment, and the holding out to one of the alternative of prosecution or fair dealing does not constitute duress and will not avoid a contract. {Beath v. Chapoton, 115 Mich. 506 et cit.; Wolff v. Blulirn, 60 Am. St. Bep. 115; Thorn v. Pinkham, 84 Maine, 101; Mascólo v. Montesanto, 29 Am. St. Bep. 170; 6 Am. & Eng. Ehey. Law (1st Ed.), pp. 62, 69, 70 et cit.; Town Council v. Burnett, 34 Ala. 400; Knapp v. Hyde, 60 Barb. (N. Y.), 80; Buchanan v. Sahlein, 9 Mo. App. 533; Compton v. Bunker Hill Bank, 96 Ill. 301.)

      Mr. George IF. Myers, for Bespondent.
    An interpretation that would construe the Act of March 3, 1899, to be remedial would also have to hold that said Act was retroactive, which would be in violation of the mandatory and prohibitive language of the constitution. (Constitution of Montana, Art. Ill, Sec. 11; Robinson v. Magee, 9 Cal. 81; People v. Bond, 10 Cal. 162, 572; Garland v. Lewis, 26 Oal. 46; People v. Senter, 28 Cal. 506. See notes under Sec. 10, Art. I, Constitution II. S.; Dewey v. Lambier, 7 Cal. 347; Cohen v. Davis, 20 Cal. 195; Billings v. Hall, 7,Cal. 1; Tuo-leume Redemption Co. v. Sedgewick, 15 Cal. 515; Hibernia S. & L. Soc. v. Hayes, 56 Oal. 303; Pignaz v. Burnett, 119 Cal. 157.)
    The note in suit is a non-ncgotiable note, made so by the provisions of the Civil Code which were in force at the time the note was made. (Civil Code, Secs. 3991, 3992, 3994, 3996, 3997; Adams v. Semans, 82 Cal. 636; Btadler et al. v. First National Bank of Helena, 22 Mont. 190; Bank v. Babcock, 94 Cal. 96; Bank v. Basuier, 12 C. C. A, 517, 65 Eed, 58.)

      When a legislature borrows a statute from another state, the legislature will ordinarily be presumed to hare adopted the statute with the interpretation theretofore given it by the courts of that state. (Stadler v. First Nat’l Batik, 22 Mont. 190; First Nai’l Bank v. Bell 8. & G. Mm. Go., 8 Mont 32; Territory v. Sears, 2 Mont. 324; Stackpole v. Hallaban, 16 Mont. 40; State v. O’Brien, 18 Mont. 1, 43 Pac. 1091; Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, and 43 Pac. 714; State v. Butte City Water Go., 18 Mont. 199; Largey v. Chapman, 18 Mont. 563.)
    An attorney cannot without the consent of his client be required to answer any questions respecting communications made by his client to him, or upon advice given by the attorney to his client in the course of professional employment. (Code of Civil Procedure, Sec. 3163, Subd. 3; 1 Greenl. Ev. (13th Ed.), Sec. 240 and eases there cited, also Sec. 243; Gray v. Fox, 97 Am. Dec. 416; Jones on Law of E!v. Secs. 766, 767, and cases cited; Deirich v. Mitchell, 92 Am. Dec. 101; Bank of Utica v. Mersereau, 49 Am. Dec. 221.)
    A witness cannot be impeached as to collateral or immaterial matter brought out on cross-examination. (Denver Tramway Go. v. Owens, 36 Pac. 853; Mullen v. McKim, 45 Pac. 417; 1 Greenl. See. 462 et seq.; Jordan v. McKinney, 144 Mass. 438 ; Farnum v. Farnrnn, 13 Gray, 508; Kaler v. Builders’ Ins. Go\, 120 Mass. 333; Trambing v. Gal. Nax. etc. Go., 121 Cal. 144; Barkley v. Gopeland, 86 Cal. 488; People v. Dye, 75 Cal. 112.)
    To sustain an exception to the rejection of evidence counsel should make his offer in such plain and unequivocal terms as to leave no room for doubt as to what is intended. If he léaves the offer fairly open to two constructions, he cannot insist in a court of review on the construction most favorable to himself, unless it is justly inferrable that he was so understood by the judge who rejected the evidence. (Palmer v. McMaster, 10 Mont. 398; Chamberlain v. Vance, 51 Cal. 75; Smith v. Fast Branch Go., 54 Cal. 164; Schroder v. Smith, 74 Cal. 459.)

      If our theory of the case is correct and tbe note in suit is a non-negotiable note, tben it is not only incumbent upon appellant to show by a preponderance of tbe evidence that tbe note in suit was made by defendant Smith to Donaldson, for a good and valuable consideration, but also to establish by a preponderance of tbe evidence, all tbe propositions upon which bis ease rests. (Bradner on Ev. See. 4, p. 343; Wilder v. Coivles, 100 Mass. 487; Rossiter v. Loeber, 18 Mont. 372; Harrington v. £. & M. Co., 19 Mont. 411; Wilder v. Cowles, 4 Brown, 100 Mass. 487; Scott v. Wood, 81 Oal. 398, cited 21 Nev. 349; Thamling v. Duffey, 14 Mont. 567; Vosburgh v. Diefendorf, 119 N. Y. 357; 2 Greenl. on Ev. Sec. 172; Munroe v. Cooper, 5 Pick. 412; First Nat’l Bank v. Green, 43 N. Y. 298 ; Smith v. Livingston, 111 Mass. 342.)
    To compound a crime is to agree not to prosecute it when tbe party so agreeing knows it to have been committed. (Penal Code, Sec. 280; 2 Wharton, Grim. Law (8th Ed.), Sec. 1559; 4 Blaekstone’s Com. 124-136.) Notes given by tbe maker for the purpose of stifling prosecution by tbe payee, of a criminal charge made by them against a third person, are invalid and unenforceable. (Leggatt v. Brown, 29 Out. Rep1. 530 ¡'Commonwealth v. Pease, 16 Mass. 91; Ream v. Saurian, 43 Pac. 982; First Nat’l.Bank v. Greeg, 1 Mo. A. Répr. 293; Murphy v. Bottomer, 40,Mo. 67; Cheltenham F. B. Co. v. Cook, 44 Mo. 29; Oiven v. Green, 45 S. W. 84; McCormick Harvesting Co. v. Miller, 74 N. W. 1061; Sylvester-Bleckley Co. v. Goodwin, S. E. Rep. 3.) -
    It is not incumbent upon defendant to establish by a preponderance of all the evidence that he was actually put in fear of prosecution for grand larceny or of death or of bodily harm, but it is upon the plaintiff to make out his case by a preponderance of the evidence and to entirely overcome the presumptions arising from the evidence produced by defendant. (Rossiter v. Loeber, 18 Mont. 372; Vosburgh v. Diefendorf, 119 N. Y. 365.)

      Where the evidence is conflicting, an order denying' a new trial will not be reversed on the ground that the evidence does not justify the verdict. (Bedstead v. M. U. By. Go., 19 Mont. 147; Harrington v. B. <& B. M. Co., 19 Mont. 411; Crystal Lake Ice Co. v. McAulay, 75 Cal. 631; Reardon v. Patterson, 19 Mont. 231; Ray v. Cowan, 18 Mont. 259; McIntyre v. Mc-Cabe, 19 Mont. 333; Antoine Co. v. Ridge Co., 23 Oal. 219; Maiihai v. Matthai, 49 Cal. 90; Kinna v. Horn, 1 Mont. 598; Barry v. Coughlin, 90 Cal. 220; Grosset v. Whelan, 44 Cal. 200; Heinlen v. Iieilbum, 97 Cal. 101; Reary v. Butler, 95 Cal. 206; Wilson v. Fitch, 41 Cal. 363; Johnson v. Brown, 115 Cal. 694.)
   MR COMMISSIONER CLAYBERG

prepared the opinion for the court.

Action on promissory note dated November 29, 1898,’ fox $1,000, made, executed and delivered by respondent to one James Donaldson, and transferred to appellant for a valuable consideration before maturity. The note in question was in the following form: “Miles City, Montana, Nov. 29, 1898. $1,000.00. Sixty days, without grace after date I promise to pay to the order of James Donaldson, one thousand dollars, at the First National Bank of Miles City, with interest at ten (10) per cent, per annum from and after M. until paid, for value received with attorney’s fees in addition to other costs in case the holder is obliged to enforce payment at law. H. A. Smith. The State National Bank. No. 13,282. [Five revenue stamps —a one, two two’s, one five, one ten.]” Indorsed on face': “Protested this 28th day of January, 1899, for nonpayment. Jno. E. De Carle, Notary Public.” Indorsed on back: “Pay to W. H. Bullard. James Donaldson. Pay State National Bank or order. W. H. Bullard.”

The complaint contained the ordinary allegations in a suit on a promissory note. The answer, after certain denials of allegations of plaintiff’s complaint, alleged affirmatively that Donaldson, by duress, force, and threats, compelled the execution of tbe note; that it was without consideration, and that Donaldson knew that fact; that plaintiff knew that the note was void at the time of its purchase; and that he was not a tona fide holder. The replication denied all these affirmative allegations, and alleged that the note was executed voluntarily in part settlement of an existing indebtedness. Upon a trial of the issues thus raised, a great amount of testimony was introduced, all of which is set forth in the transcript. Plaintiff made a prima facie casé on the trial by the introduction of the note, proof of a purchase'before maturity, and proof of the reasonable value of the attorney’s fees provided for in the note, and then rested. Defendant was sivorn as a witness in his own behalf, and testified to- facts which his counsel insists show that.the note was given under duress, and then rested. Plaintiff then introduced testimony tending to show that he purchased the note prior to maturity for $900 cash, and that the note was given Donaldson voluntarily, and in consideration of damages he had suffered because of the theft of certain of his sheep, with which it was insisted defendant was connected.

1. The first question to be considered by this- court is whether the note sued upon was negotiable. The court below held it to be nonnegotiable, and it followed from such holding that the defendant was entitled to make proof of each and every defense which he might have asserted, had the suit been brought by Donaldson, the original payee of the note. If the note was negotiable, and it appeared that plaintiff obtained it prior to maturity, for a valuable consideration, and without notice of the defenses which the defendant might have interposed against the original payee, he was entitled to recover.

Prior to the passage of the Code of 1895, notes of this character were negotiable.’ (Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Pac. 291, 14 L. R. A. 588, 28 Am. St. Rep. 461.) By Sections 3991 to 3997, Civil Code, they were made nonnegotiable. Section 3992 provides: “A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment.” Section 3997 provides: “A negotiable instrument must not contain any other contract than such as is specified in this article.” Section 3996 provides: “A negotiable instrument may contain a pledge of collateral security, with authority to dispose thereof.” By virtue of these provisions of the statute, the supreme court held in the case of Stadler v. First National Bank of Helena, 22 Mont. 190, 56 Pac. 111, 74 Am. St. Rep. 582, that no instrument was negotiable which contained a contract to pay attorney’s fees, because of Section 3997, and because a contract of that character is not mentioned in the statute. By the statute of 1895, making such notes nonnegotiable, the legislature provided, in effect, that the maker of a note might plead defenses of the character asserted here in a suit brought by an indorsee or assignee of the note. Thus the statute of 1895 created a defense which the maker might for the first time in this state plead in a suit brought upon a note similar to the one in question by an indorsee or holder thereof. There is no doubt but that the legislature had power to pass this Act, and that it was constitutional' in every regard.

The decision of Stadler v. Bank, supra, was rendered on February 20, 1899. The legislature of Montana was then in session, and passed an Act amending Section 3996 so as to read as follows : “A negotiable instrument may contain a pledge of collateral security with authority to dispose thereof, alsoi a provision for reasonable attorney fee or both.” By Section 2 of the same Act, the legislature further provided, “AH Acts and parts of Aetd inconsistent herewith are hereby repealed.” (Laws of 1899, p. 124.) By this action of the legislature, notes which under the statute of 1895, as construed by this court in Btadler v. Bank, supra, were nonnegotiable, were made negotiable. In effect, the legislature took away from the maker of a. note a de-' fense which he was allowed to assert only by virtue of the provision of the Code of 1895.

There is no prohibition in our constitution against retrospective legislation, other than that which is stated in Section 11, Article III, which is as follows: “No ex post facto law, nor law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises or immunities shall be passed by the legislative assembly.” It follows that the legislature was therefore untrammeled and free, in so far as constitutional provisions were concerned, to pass any retrospective laws which did not violate the obligations of contracts or interfere with any vested rights.

While there is no. constitutional provision against retrospective legislation, the Civil Code of 1895, in which the sections above quoted are found, contains these prolusions:

“Sec. 4650. This Code takes effect at twelve o’clock noon on the first day of July, 1895.
“Sec. 4651. No part of it is retroactive unless expressly so declared.”

We find similar’ provisions in the Political Code and Code of Civil Procedure, passed at the same time.

We are therefore called upon to construe the amendment to Section 3996, passed by the legislature of 1899, in connection with Section 4651, Code of 1895. By the last-mentioned section the power of the legislature to enact retroactive or retrospective laws is recognized, but a limitation is placed upon the exercise of such power, by requiring that, in case of the passage of such Acts, they must be expressly declared to be retroactive in their operation. We do not find in the amendment of 1899 any express declaration mentioned in Section 4651, that the Act should be retroactive in its operation. A general rule of construction of statutes is that the meaning and intent of the legislature must, be arrived at and enforced. ( United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830.) In order to arrive at this legislative intent, we must investigate the history of the passage of the Act of 1899. Upon examination of the original bill on file in the office of the secretary of state, we find the following facts:

On January 23, 1899, this Act was introduced in the senate as Senate Bill No. 36, in the following .form:

“A Bill for an Act to amend Section 3996, Title XV, Chapter 1, Article 1, of the Civil Code of the State of Montana, relating to negotiable instruments.
“Be it enacted by the Legislative Assembly of the State of Montana:
“Section 1. That Section 3996, Title XV, Chapter 1, Article I, of the Civil Code of the State of Montana, be amended so as to read as follows: Section 3996. A negotiable instrument may contain a pledge of collateral security with the authority to dispose thereof, also a provision for reasonable attorney fee, or both.”

On February 6th it was considered by the committee of the whole, and amended as follows: “After the word both ‘and the negotiability of all promissory notes and instruments outstanding, and the teams and conditions thereof unfulfilled, at the time this Act takes effect shall be determined and governed by the provisions hereof. Section 2. All Acts and parts of Acts inconsistent herewith are hereby repealed.’ ”

On February 7 th it was passed as amended. It was then referred to the house, where the following action was taken: On February 16th it was reported bade by the judiciary committee with an amendment striking out the words “and the negotiability of all promissory notes and instruments outstanding and the terms1 and conditions thereof unfulfilled at the time this Act takes effect shall be determined and governed by the provisions hereof.” On February 24th it was passed by the house as amended therein. . It was then transmitted to the senate. Februaiy 27th, in the senate, the house amendments were concurred in, and the bill was passed and signed.

It thus conclusively appears from the legislative history of the Act of 1899 that the legislative intent was to make the Act prospective in its operation only. Section 4651 not only applies to the Code of which it is a part, but to all amendments to such Code thei’eafter made. (Central Pac. R. R. Co. v. Shackleford, 63 Cal. 261; Teralta Land and Water Co. v. Shaffer, 116 Cal. 518, 48 Fac. 613, 58 Am. St. Rep. 194; Dodge v. Nevada Na tional Bank, 109 Fed. 726, 48 C. C. A. 626; Ely v. Holton, 15 N. Y. 595.)

The point urged by counsel for appellant, that one legislature cannot limit the power of a subsequent legislature, is not material to this case. The only limitation claimed is based upon the provisions of Section 4651. It is apparent from an examination of this section that it does not seek or purport to limit the power of future legislatures to pass retroactive laws, but merely provides a condition which must be conformed to when by the passage of such Acts it is intended to render them retroactive in operation.

We therefore conclude that the note was nonnegotiable, and was not made negotiable by the Act of 1899.

This conclusion renders it unnecessary to consider the question whether or not, if the legislature had intended to make the Act of 1899 retroactive in its operation, it would have been open to the objection that it impairs the operation of contracts.

Counsel for appellant claim that the note was rendered negotiable under the provisions of Sections 2204, 4240, and 4604 of the Civil Code. We do not find anything in either of these sections, nor in the chapter of the Code upon the interpretation of contracts, which is referred to in Section 4240, which authorizes us to hold that the note in question is negotiable. The language of the note is plain and unambiguous, and seems to express clearly the intention of the parties when it was made. It is a well-settled rule of law that the circumstances under which a contract is made, or the intent of the parties existing at that time, are only material when the contract is ambiguous in some of its terms. If it is plain and unambiguous, it needs no construction, and it is the duty of the court to enforce the contract as made by the parties. It is not alleged or claimed in any of the pleadings that the intention of the parties to the note was not fully and fairly expressed therein, or that the defendant waived, or intended to waive, any benefit conferred by law upon him.

2. It is next claimed that the court erred in not requiring witness Geo. B. Milburn to answer tba following question: “Whose attorney were you at that time ?” The witness declined to answer the question because to do so might violate his obligation as an attorney. Thereupon counsel for appellant made an offer in writing of what he proposed to prove by the witness, which was in the following language: “Plaintiff offers to prove by this witness, Milburn, that he was the attorney of H. A. Smith, the defendant herein, at the time of the trial of the case of the State against Broadbent, and that he was not discharged as such attorney for said Smith either on October 25, 1898, or on November 25, 1898, or before the trial of the said State against Broadbent, or at all. This evidence is offered in contradiction of the testimony of said defendant, Smith.” After the offer had been made, the court asked: “Is there any objection to the offer ?” To which counsel for the defendant replied: “We haven’t any particular objection, so far as we are concerned, to the offer.” This offer was then shown to the witness, and the court propounded to him the following question: “What do you say to the court now ? Do you feel that, by giving testimony in conformity with the offer which you have read, it would violate your obligation as an attorney ?” To which the witness answered: “I would say this, if your honor please: Without the express personal consent of Mr. Smith for me to give what may be legal and proper evidence in response to that offer, I shall decline to do so.” Whereupon the court said: “The court will not compel you to do so, then.”

Counsel for appellant only argues the alleged .error of the court in not requiring the witness to answer the question, and makes no reference to the ruling of the court upon the offer. There is no doubt but the question asked was objectionable upon the ground that it sought to contradict the defendant as to his statements made while on the witness stand. This is conclusively shown by the reply of appellant’s counsel to the question of the court, viz., “What is the object of the testimony?” “The object of the testimony is this: Smith testified upon the stand that Judge Milburn bad been Ms attorney; that he had hired him somewhere about the 16th or 20th of October; that he had discharged him on the 26th of October. This question is preliminary, for the purpose and simply by way of contradiction of Mr. Smith.” A reference to the record discloses that the testimony of defendant wMch it was sought to thus contradict was brought ou>t on cross-examination by plaintiff’s counsel. No reference is made to; any question of the employment of an attorney by defendant in his direct examination. So that this cross-examination was clearly upon a collateral matter. The rule is well settled that a witness cannot be contradicted as to collateral matters brought out upon cross-examination. (Green-leaf on Evidence, Sec: 462 et seq.)

Counsel say that the question was “preliminary, for the purpose and simply by way of contradiction of Mr. Smith.” True, such purpose was apparent, but the question was in no sense preliminary to such purpose. If the witness had answered the question by saying' that he was Mr. Smith’s attorney at that time, this would have been a direct contradiction of Smith’s testimony, and, as such, would have been inadmissible. Counsel for appellant, in his argument, very ingeniously maintains that this question was merely preliminary to a purpose to adduce testimony from the witness tending “to' show that Smith had in the presence of Judge Milburn, at various times, admitted his complicity in the larceny to Donaldson, and had made repeated offers of settlement.” Such purpose was not disclosed in the offer of testimony, made, and the law does not permit counsel to thus play “fast and loose.” He offered to prove by the witness certain facts. By this offer he confined such facts to the contradiction of the testimony of defendant. He cannot now be allowed to enlarge or extend the scope of such offer beyond the limits then placed upon it. But even if he could, such testimony would have been absolutely inadmissible, because no foundation was laid by the original examination of defendant. We are therefore of the opinion that if error was committed by the court in this regard, which we do not decide, it was not reversible error.

3. Did the evidence disclose a sufficient consideration for the note in question ? The burden of proof was upon the plaintiff in the'suit to show by a preponderance of the evidence that the note was given by respondent to Donaldson upon a good and valuable consideration. This consideration was claimed by Donaldson to rest upon the following facts, viz.: In the latter part of September, 1898, some horses and a large number of sheep were stolen from him. He claims that among the sheep stolen were a large number of ewes, with their lambs; that, upon making a search for these ewes and lambs, he found a portion of the ewes at a point some thirty-five miles distant from his ranch, from which they had been stolen; that he was told by respondent, who aided in the search, that -the lambs were on his ranch with a band of sheep, and that they were turned over to him, as he supposed, as his share of lambs from a band of sheep belonging .to him or his wife, which one Broadbent was running on shares. ■ Donaldson proceeded to respondent’s ranch, and 560 of these lambs were turned over to him. He claims that he did not receive back the entire number of sheep and lambs which had been stolen from him. He then caused the arrest of Broad-bent and two other men, by the names of Beatty and Hand. It seems that Beatty, while confined upon this arrest, confessed tp .the theft of the sheep and lambs, and implicated respondent in such theft. • Immediately upon the discovery of this, Donaldson saw respondent, and told him of Beatty’s disclosure, and accused him of complicity. Whereupon, according to the testimony of Donaldson, respondent wanted to settle with him, and they concluded a tentative arrangement, which is denied by respondent. Broadbent was tried at Glendive the latter part of November, 1898. Donaldson, becoming satisfied during the trial that Broadbent would probably be acquitted, demanded of respondent a settlement of his damages caused by the theft. Upon this settlement, respondent gave Donaldson the note in question, together with others. As to the circumstances of this settlement, Donaldson’s testimony and that of respondent is entirely irreconcilable, but of this we shall speak later.

In regard to- tbe consideration of this note and the others, it is sufficient to say that from the evidence it conclusively appears that certain sheep had been stolen from Donaldson; that he believed respondent was connected in some way with this theft, and was therefore liable,for the damages occasioned thereby; that he. took the note in question, in part settlement of these damages, from .respondent. Under these facts, it true, there can be no doubt but that a good and valuable consideration existed for the note.

4. Respondent claims that the notes were given under duress, and,therefore are void.

■ The defense of duresfe or menace is based upon the proposition that the consent of the party to the contract over whom it was' exercised was not free.

Section 2112 of the Civil Code provides:

“An apparent consent is not real or free when obtained through (-1) duress; (2) menace; (3) fraud; (4) undue influence; or (5) mistake.”

Sections 2114 and 2115 provide as follows:

“Sec.- 2114. Duress consists in (1)- unlawful confinement of the person of the party, or of the husband or wife of such party, or of- an- ancestor, descendant, or adopted child of such party, husband:or-wife; (2) unlawful detention of the property of any. such person; or (3.) confinement of such person, lawful in form, but'fraudulently obtained, or fraudulently made- unjustly harassing or oppressive.”
“Sec. 2115. Menace consists in a threat (1) of such duress as is specified in subdivisions 1 and 3 of the last section; (2) of unlawful and violent injury to. the person or property of any such person, as is specified in the last section; or (3) of injury to the character of any-such person.”

According to respondent’s testimony, on November 29, 1898, while he and Donaldson were at. Glehdive, attending the trial of Broadbent, as witnesses, Donaldson cam© to his room and dc-rpgnded of him a complete settlement of the damages occasioned’by the theft of the sheep, as above-stated.His- evidence does not disclose that any warrant had been issued against respondent^ upon which he might have been arrested for the theft, or complicity therein.' Donaldson threatened respondent at that conversation that, if the settlement was not made, he (Donaldson) would cause respondent’s arrest. Respondent says: “I didn’t suppose, under my own course, I could be arrested. Still, I had nothing to fear, and after he had made three threats of having me arrested, and so on, and I still said I wouldn’t do anything of the kind, and ordered him again out of my room, he got up and walked to the door and says, ‘I will not leave this room until I get this thing fixed as I want it, and neither will you.’ ” It thus appears by respondent’s own testimony that he had no fear of arrest. He then continues: “And he put his hand down under his vest and he drew! a six-shooter up like that; didn’t draw it below like that. Under the circumstances, the man was in a passion — he had passion and whiskey mixed together; and I honestly believe that, if I had not made those notes as I did, that he would have attempted to murder me in that room.” Again he says, on cross-examination: “Donaldson said that Broadbent was going to get loose, and he wasn’t going to get anything out of him, and he was going to make me put it up. He said he was going to make me put up the amount, of $7,000. I asked him what it was for, and he said that he had lost the sheep-, and that he had a cinch on me; and I told him the best thing he could do, then, was to go ahead and find out. We argued the point awhile. I don’t just remember what was said while we were arguing the question. I know that we talked about the sheep that he said he had lost, and about the condition they were in, and so on. He claimed that he had lost 2,000, and didn’t know whether he had lost them out of the one band or the other. Well, after we argued awhile there, he concluded that he would take these lambs of Broadbent’s that belonged to me and $3,000 in cash. He thought he was getting it up pretty steep-, I suppose, is what induced him toi come down from $7,000 to $3,000. He admitted as much, anyway. I said I would give it to him. Well, he goes around there awhile, and wben I told bim to go out of tbe room be said be would go out wben be got ready, and be went ,to tbe door, and I think be turned tbe key in it — I am not positive of that — and be pulled out a gun, and said if I didn’t make these notes to satisfy him, and fix this thing up so be could get bis own, I would never get out of that room. He was standing with bis back against tbe door. I was sitting’ on tbe bed. We were probably nine or ten feet apart. He did not point tbe gun at me. He bad it pulled from under tbe waistband of bis pants, and bad it in bis band. He made no demonstration with it towards me with tbe gun, other than that he drew it out. * ' * * I didn’t make tbe notes at tbe mouth of tbe pistol at all. After I consented be stood there and said, ‘Will you make these notes now, or not?’ and I said that, ‘under tbe circumstances, I believe I will be obliged to,’ and be put bis gun away then. I don’t know what effect this bad — bis threats — on me physically. They bad tbe effect of getting tbe notes. I don’t think it disturbed me physically very much. I don’t know as I was exactly afraid of bim, but I believe that be would have executed bis threats if I bad not complied with them. * * * It did not put me in a tremulous sweat. I am not of a nervous disposition. My nerves were good and steady-then.' * * * I was not nervous at all at tbe time I made tbe notes; had nothing to fear as long as I complied with bis request. Wben I executed them I was not in fear.”

In respondent’s testimony, which, by tbe way, wás all tbe testimony given at tbe trial upon tbe question of menace or duress, we do not find any denial of bis connection with or complicity in tbe theft, and be bases duress solely upon tbe fact that Donaldson drew a revolver, and said respondent should not leave tbe room until tbe matter was settled; yet be says, “I did not make tbe notes at tbe mouth of a pistol at all,” and “wben I executed them I was not in fear.” He; places tbe entire ground of menace upon tbe threats of Donaldson to have bim arrested for tbe theft of tbe sheep’; yet be nowhere says or even intimates that be claimed or insisted in any manner to Donaldson that be was not guilty of complicity in or connection with such theft. In this connection it is important to refer to. the fact that Donaldson. absolutely and unequivocally denies that he ever was in respondent’s room at Grlendive during the Broad-bent tidal, except on the night of the 21th of November; that the conversation related by respondent ever occurred; that he had a revolver on his person at that time, or that he ever “pulled it” on respondent. His testimony further discloses that -from the time of Beatty’s confession, and his detailing the substance thereof to respondent, respondent evinced great anxiety' to have the entire matter settled, and importuned him (Donaldson) almost daily for such purpose. He further says that on October 31, 1898, which was subsequent to the confession of Beatty, the respondent gave him in cash, in part settlement of the transaction, $1,000. He details on cross-examination circumstances of the receipt of this money, as follows: “I got this $1,000 for damages done, and he asked me for this note in ease this should be found out, and he would give me this money. He says, ‘If this is found out, they will know that I was in the sheep-stealing.’ He says, ‘After this thing blows over, I will give you the note. * * *’ I had the1 $1,000 before he asked that of me. He asked me to do it, and I signed it. I gave him his way all the way through. * * * I signed that note after I had had the money, or after it was supposed to be turned over to me. I don’t know which. Before we left the room I signed it.” Bespondent acknowledged that,he gave Donaldson the $1,000 and took his note, and during the trial of the ease offered the note in evidence, but insists that it was for money loaned to him at that date. This note is dated "October 31, 1898.

' The law relative to duress at common law — and it is not materially changed by our statute — is well stated by Judge Walton in the case of Hilborn v. Bucknam, 78 Me. 482-485, 7 Atl. 272; 57 Am. Rep. 816. In that case the defendants had lost large quantities of meal from their mill, and they had obtained such proof as satisfied them that the plaintiff, in collusion with the miller, had taken much, if not the whole, of it. After negotiations the plaintiff paid the defendant $1,075 in cash, .and gave a secured note for the further sum of $425. Afterwards plaintiff brought suit to recover the sum of $1,075 so paid from the defendant. The court said: “The plaintiff was at no time arrested. He was not in express terms threatened with arrest. It may be true, as contended by his counsel, that he was made to believe that he would be arrested if he did not settle, but no direct threats of arrest were made. But suppose such threats had been made — suppose that, instead of leaving it to inference, he had been told in so many words that if he did not settle he would be prosecuted both civilly and criminally — still, such threats under the circumstances disclosed in this case, would not constitute duress. It is not duress for one who believes that he has been wronged to threaten the wrongdoer with a civil suit. And if the wrong includes a violation of the criminal law, it is not duress to threaten him with a criminal prosecution. It is not to be supposed that a man smarting under a sense of wrong and injury, such as the defendants in this case had suffered, will not use some such threats. It is not in .human nature to exercise such restraint It is unreasonable to expect it, and the law does not require it. The law regards it as the duty of every one who knows of the commission of a crime to' take measures to have the offender brought to justice, and it does not involve itself in the absurdity of making it unlawful for one to express to the offender an intention of doing what the law makes it his duty to do. There can be no doubt that the defendants believed, and had reason to believe, that they were sufferers by the plaintiff’s wrong. By collusion with their miller, he had taken their corn or meal without their knowledge or consent, and had not accounted to them for it. He knew better than they how much he had taken. He consented to pay them one thousand and seventy-five dollars, and, in the opinion of the court, the evidence fails to disclose any legal or equitable ground for his recovering it back.”

In the ease of Higgins v. Brown, 78 Me. 473, 5 Atl. 269, the court bolds that mei’e threats of criminal prosecution, when no warrant has been issued or proceeding commenced, do> not constitute duress. The court say: “Thei’e is not any evidence of threats, of impending danger, or personal violence. The threats, as stated by the defendant himself, amounted to nothing more than that the plaintiff was going to commence criminal proceedings. These threats were not connected with any prosecution then pending. No warrant had been issued, or proceedings commenced. Assuming the testimony of the defendant to be true, he does not exhibit such a state of affairs as would constitute duress according to the well-settled rules of law.”

The question as to whether respondent was acting under duress in the'morning of November 29th, because of Donaldson’s acts with reference- to the revolver, becomes immaterial in this case, because an examination of the record discloses the fact that the note sued upon was. not given by the respondent-on the morning of November 29th, hut later on the same day, and under other circumstances, as disclosed by respondent in his testimony, as follows: . “In the evening he came bach into my room after supper, somewhere about seven o’clock on the sámé day, and said that he wanted the notes made, so that he could realizé money readily for them; and I said the same as I did in the morning that I had no ready money, and that I wouldn’t have anything more to do with it; and he made the same threats as he made in the morning — threatened to prosecute me and everything as he did in the first place-, with the exception of exhibiting the gun — and he also held out the proposition that, if I would give him ready cash, I could make it $500 less. I couldn’t sea any particular harm in changing it then, even if I had had it in my own way, but I says I had the same threats held over me that I did in the morning, and I changed the $2,000 note. I gave him one note — this note here —for $1,000, due in GO days, and I gave him another, for $600, due in two years, bearing 5 per cent, interest after maturity, and the agreement was that he would return the $2,000 note over for this one and the $500 note.” Donaldson testifies to the fact that the notes given .by Smith on the morning of the 29th of November were not satisfactory to him, and that he took them bade to him in the evening, surrendered them, and took new notes, one of which new notes is the note sued upon. So that it appears conclusively from the evidence of respondent that the only duress exercised against him in the evening of November 29th, when the note in question was given, was the same threats which he testifies were made to him in the morning of the 29th. He admits that in the evening no gun “was pulled,” and no threat of taking his life was made.

Other significant circumstances were disclosed by the testimony: Respondent testifies that the threats and duress exercised on the morning of the 29th were in a room in a hotel in the town of Glendive. Respondent does not disclose that he made any outcry, or sought in any way or manner to1 obtain assistance to relieve him from conceived danger. Again, he says, although he had many friends in Glendive, whom he saw immediately after the alleged duress in the room on the morning of November 29th, he did not tell any of them about what had occurred. He says that the only person with whom, he consulted was his attorney at Miles City, after he had returned from Glendive. It seems singular to us that, under all these circumstánces, if his testimony of the transaction is true, he should have kept absolutely silent about it.

We are satisfied, from all the evidence introduced in the court below, that there is not sufficient evidence to sustain the verdict on the proposition that the note in question was made under duress or threats.

5. The court charged the jury as follows: “You are further instructed that if you should find from a preponderance of the evidence that there was some sheep stolen from the said Donaldson, and that the said Smith was connected with the larceny of the said sheep, and that the said Donaldson did not recover all of his sheep, and was damaged by reason of the larceny, such damage might form a legal consideration for a promissory note; but you are further instructed that if you find from tbe evidence that there was connected with the same transaction a promise, either expressed or implied, on the part of Donaldson, not to prosecute or have the defendant, Smith,' arrested, then such promise, whether éxpressed or implied, would vitiate and render null and void the entire transaction, and the note would then be without legal consideration, and it would be your duty to find for the defendant.”

It appears that after the jury had retired, and before returning their verdict, they made a request in writing for further instructions, as follows: ■ ■

“The definition or meaning of the words ‘expressed. or implied/ ” ■ ' ...

Whereupon the court further instructed the jury as follows:

■ “ ‘Expressed’ means stated or declared in direct terms.. That which is made definitely known in direct terms, and not left to implication. It is a rule that, when a matter or thing is expressed, it ceases to be implied by law. ■. •
“ ‘Implied’ is defined as contained in substance or essence, or by fair and reasonable inference or deduction, but not actually expressed; deducible by fair and reasonable inference.”

The first part of the charge above quoted is correct, but. we do- not believe that the evidence adduced on the trial warranted the modification thereof found in the latter part of the charge quoted. We do not find in the evidence, after a careful and conscientious search, that any promise on the part of Donaldson that he would not prosecute, or have the defendant, Smith, arrested, was shown in any way or manner’. Even the testimony of respondent does not disclose a scintilla of evidence tending to show that Donaldson promised him that, if the settlement was made, the respondent would hot be prosecuted or arrested. Nor does it show any language or acts on the part of Donaldson from which such promise could'be in any wise implied. So that, from all the testimony given in the case, we are of the opinion that the latter part of the charge above quoted was not based upon any testimony introduced at the trial,- and was therefore erroneous. It is quite apparent that the jury eon-sidered the erroneous, part of tbis instruction in their deliberations, and it is impossible to determine to wbat extent the verdict was influenced thereby.

6. The further question for consideration is as to the charge of the court upon the burden of proof. The charge, as given, contains no direct or separate instruction as to the burden of proof upon the defense pleaded — that the note in suit .was executed under duress. By instruction No. 4 the jury was told that it devolved upon plaintiff to show not only that he secured the note in good faith and for a valuable consideration, but also that the note was made by defendant, for a good and valuable consideration. Instruction No. 6 was in the following form: '“The jury 'are further instructed that the burden of proof in this class of cases is always upon the party holding the affirmative. That would be upon the plaintiff'in this action. And you are instructed that any matter asserted by one party and denied by the other can only be proved in law by a preponderance of the evidence. If you find 'that the evidence bearing upon the plaintiff’s ease is evenly balanced, or that it preponderates in favor of the defendant, then the plaintiff cannot recover, and you should find in favor of the defendant.” The court refused plaintiff’s instructions Nos. “h” and “i,” requested upon the question of duress; being misled, possibly, by the language of this court in the case of Rossiter v. Loeber, 18 Mont. 372, 45 Pac. 560.

By this action we are led to believe that, in the view of the court below, the burden was upon the plaintiff to show by a preponderance of evidence, in addition to the matters specified in instruction No. 4, or as included therein, that the note sued upon was executed without duress. In this view the court was, in our opinion, wrong, but blamelessly so,-because of the somewhat careless and inaccurate language of this court used in the case of Bossiter v. Loeber, supra. There is no doubt but that, when a suit is brought by an indorsee or assignee of a nonnegotiable 'note, the burdén of proof is upon him to show that the note was originally issued upon a valuable consideration,' and tbat be is a bom fide bolder thereof; but, in our judgment, there is no warrant in the law for bolding' tbat tbe burden is also upon bim to show tbat no other defense existed to tbe note.

This court, in Bossiter v. Loeher, supra, said: “Written obligations, whether for a debt due or not, made under such circumstances, will not be enforced at tbe instance of the person who takes them with notice of tbe circumstances connected with their inception, as plaintiff in this case clearly did, if tbe maker plead and prove such duress as a valid defense. Duress having been proved on tbe trial, tbe question of no consideration is immaterial to tbe further discussion of tbe case. Accordingly it was error in tbe district court to instruct tbat it was incumbent upon the defendant to establish bis defense of duress and compulsion mid want of consideration by a preponderance of tbe evidence, and, if be failed to do1 so, plaintiff should recover. He was not bound to prove both such defenses. Either, if established, would defeat a recovery by plaintiff.” Thus far no misunderstanding of what this court meant could arise, but from tbe following language, which was merely by way of dictum, some confusion might, and doubtless would, arise: “What we have heretofore laid down, namely, tbat tbe burden of proving tbat plaintiff was a holder in good faith was always upon .him, relieved defendant of establishing tbe defense of duress by a preponderance of evidence. It was always upon plaintiff alone, who acquired this note subject to tbe defenses which might be interposed by defendant against its payment, to prove bis bom fides, to entitle bim to recover.” Tbe opinion in tbat case, upon careful examination, does not disclose tbe fact tbat plaintiff introduced, or even offered, any evidence tending to show that be purchased tbe note for a valuable consideration in the regular course of business; and it does disclose tbat be acquired tbe same with full knowledge of tbe duress practiced upon tbe defendant. So tbat tbe presumption which attaches to a bolder in good faith for a valuable consideration, without notice of defenses, did not arise. Speaking generally, duress, like fraud, may be pleaded as a defense to a contract; but tbe burdeu of proving suck defense by -a preponderance óf the evidence is upon tbe party alleging it, except under special circumstances, none of which appear in this case. Therefore, if the holdings announced in this opinion are in conflict with those announced in Rossiter v. Loeber, supra, that case is overruled to the extent of such conflict.

Many other errors are relied upon, but we believe that sufficient has been said to fully present our views of the entire case in such manner as to enable the court below to try the case correctly.

We recommend that the judgment and order appealed from be reversed.

Per Curiam. — -Por the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded.

Mu. Justice MilburN, disqualified.


source: Caselaw Access Project

author: MR. COMMISSIONER CALLAWAY

license: Public Domain

text:
    SMALL, Appellant, v. RAKESTRAW, Respondent.
    (No. 1,592.)
    (Submitted May 29, 1903.
    Decided June 16, 1903.)

      Public Lands — Homestead — Residence — Decision by Land Department — Review■ by the Courts — Patents — Trustee— Evidence.

      1 A residence for voting purposes in another precinct than that in which land is situated precludes an entryman from claiming residence at the same time on the land for homestead purposes.
    2. The question of an entryman’s residence upon the land and the liona /ides of his settlement thereon is one of fact the determination of which by the officers of the land department is conclusive upon the courts, in the absence of fraud or imposition.
    3. It not appearing that the secretary of the interior, in holding that one claiming under the homestead law had not complied therewith ,as to residence, had no other evidence before him than that he had a residence for voting purposes in another precinct, it cannot be said that his decision was on an erroneous construction of the law, so as to allow interference by a court, even if his holding .that residence for voting purposes in one precinct precluded his claiming residence at the same time on land in another precinct for homestead purposes was wrong.
    4 That the holder of the legal title under a patent may be adjudged to hold it as trustee for plaintiff, because of an erroneous ruling of the land department, it is necessary to show not only that defendant was not entitled to the patent, but that plaintiff was so entitled.

      Appeal from, District Court, Flathead County; D. F. Smith, Judge.

    ActioN by Walter W. Small against Samuel 0. Rakestraw. Judgement for defendant. Plaintiff appeals.
    Affirmed.

      Messrs. Foot & Pomeroy, for Appellants.
    A court of equity will not permit a nonjudicial or a quasi-judicial officer, in any proceedings before him, by tbe misconstruction of any law, to take property from one person, under the law entitled to it, and give it to another. . (Johnson v. Tows-ley, 13 Wall. 72; Sanford v.. Sanford, 139 U. S. 642; Hawley v. Diller, 178 TJ. S. 476, 20 Sup. Ot. Rep. 986; Baldwin v. Starks, 107 TJ. S, 463, 465, 27 L, Ed. 526, 2 Sup. Ct. Rep; 473; Cornelius v. Kessel, 128 TJ. S. 456, 461, 32 L. Ed. 482, 9 Sup.-Ct. Rep. 122; Quiriby v. Conlon, 104 TJ. S. 420, 426, 26 L. Ed. 800, 802; Rector v. Gibbon, 111 TJ. S. 276, 4 Sup. Ct. Rep. 605, 612; Bernier v. Bernier, 147 TJ. S. 242, 13 Sup; Ct. 244, 246; Northern Pac. R. Co. v. Colburn, 164 TJ. S. 383, 17 Sup-. Ct. Rep-. 98; Northern Pacific R.,Co<. v. McCormick, 19 C. 0. A. 165, 167; United States v. Northern Pacific R. Co., 37 G. C. A. 290, 296; Note 2 in Iiartman v. Warren, 22 C. C. A. 40 ; Hartman v. Smith, 7 Mont. 19-29; Colburn v. Northern Pac. R. Co’., 13 Mont. 476; Moore v. N. P. R. Co., 18 Mont. 290; Murray v. Mont. Lumber & M. Co., 25 Mont. 14.)
    Voting in a different precipct from that in which the land is located may be an illegal act, and as such subject the-entryman to punishment for illegal voting, but it does not necessarily work a forfeiture of his established place of residence or property rights. (Spaulding v. Steele (Mich.), 88 N. W. 627; Dickenson v. Inhabitants of Brookline (Mass.), 63 N. E; 331; Hoscall v. Hafford (Tenn.), 65 S. W. 423; California v. Sevoy, 9 L. D. 142.)
    A residence once established or acquired is presumed to continue until it is shown to have been changed. (5 Ency. Law (1st Ed.), p. 865, paragraph 4, note 1; 6 Ency. Law (1st Ed.), p. 123 and notes; Vol. I, Nice on Evidence, p. 85, citing Mitchell v. United Statesj 88 IJ. S., 21 Wall. 350, 22 L. Ed. 584; Wharton on Evidence, Vol. 2, Sec. 1285, p. 465.)
    Before abandonment can be established, change of residence must be clearly shown. The most important and the all necessary element in establishing or changing a residence is the intention of the party. With this must be coupled the act. .The union of the two is indispensable. . This rule is recognized by the department in the case of Anderson v. Anderson, 5 L. D. 6, 7, and in William Penrose, 5 L. D. 179. C£To constitute the new domicile two things are indispensable: Eirst, residence in the new locality; and, second, the intention . to remain there. The change cannot be except facto et animo. Both are alike necessary. Either without the other is insufficient.” (Mitchell v. United States, 88 U. S. 21 Wall. 350, 22 L. Ed. 584, 588.) The place where a person lives and makes his home in his domicile. (Id.) The land department has recognized that domicile and residence are convertible terms in the decision of Secretary Lamar In re James Woodley, 4 L. D. 198, 200.
    “A settlement cannot be made upon public lands already occupied; as against existing occupants, the settlement of another is ineffectual to establish a preemptive right. Such is the purport of the decisions in Atherton v. Fowler, 96 U. S. 513, XXIV, 732, and Hosmer v. Wallace, 97 IT. S. 575, XXIV, 1130.” (Quinby v. Conlon, 104 U. S. 420-427, 26 L. Ed. 800-80.1.) The findings are that the plaintiff and the man sent by Mm to cultivate the land were driven from it. by defendant in the year 1891. “One who occupies public land against the will and over the protest of one having a homestead entry upon such land is a trespasser.” (Glover v. Swartz, 58 Pac. (Oída.) 943, 944, and many cases therein cited.) “An adverse claimant will not be allowed to' take advantage of his own wrongful acts in preventing' an entryman from maintaining a continuous residence.” (Secretary Smith in Johnston v. Harris, 20' L. E!d. 183; Vaughan v. Gammon, 27 L. D. 438, 444.) A court of equity will decree that the defendant holds the legal title as trustee for the plaintiff. {Starts v. Starr, 73 IJ. S., 6 Wall. 102, 18 L. Ed. 925; Gornelius v. Kessel, Bald-wm v. Starts, Hawley v. Diller, Rector v. Gibbon, Quinby v. Gonion, and numerous other cases cited supra.)

   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

On demurrer to complaint. The substance of the complaint is that in a contest for a tract of land between the plaintiff here, Walter W. Small, and the defendant here, Samuel O. Rake-straw, before the land department, the secretary of the interior erroneously decided in favor of Rakestraw, and that, had it not been for the wrongful acts of the defendant, and the erroneous ruling of the secretary, patent for the land would have issued to plaintiff. The prayer of the complaint is that the defendant shall be decreed to. hold the title to the land in trust for the plaintiff, and convey it to him. Tb this complaint the defendant interposed a demurrer, alleging that “the court has no jurisdiction of the canse, or the subject-matter thereof,” and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff refusing to amend, judgment was entered for defendant for costs. From this judgment, the plaintiff appeals.

Plaintiff alleges that he settled upon the land in controversy during the latter part of the year 1886, and resided thereon continuously until after be submitted, final proof upon bis homestead claim to tbe land department. Tbe lands became subject to entry on August 16, 1891, under tbe laws of tbe United States, and on tbe day following tbe plaintiff entered tbe same under tbe homestead law, and on January 26, 1892, made final proof in furtherance of such entry. March 26, 1892, Rake-straw filed an affidavit of contest against appellant’s homestead entry, charging that Small bad failed to comply with tbe United States law as to residence. Tbe bearing was bad before tbe register and receiver of tbe local land office, which resulted in favor of Rakestraw. Small thereupon appealed to tbe commissioner of tbe general land office, who found in bis favor, and ordered tbe contest dismissed. Rakestraw then appealed to tbe secretary of the interior, who reversed tbe decision of tbe commissioner, and ordered Small’s homestead entry canceled. In giving bis opinion, tbe secretary said: “Plaintiff filed bis affidavit of contest against tbe defendant’s homestead entry, charging that tbe entryman bad failed to comply with tbe law as to residence. Tbe testimony of Small himself is that be never voted in the precinct in which bis homestead entry lies, but did vote at other points, a long distance from bis homestead, at least twice during tbe time be- claims be was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use bis own words, ‘determined to return to tbe ranch only often enough to keep a good showing of habitation.’ His excuse for that was that tbe plaintiff threatened him with violence if be undertook to stay on tbe land. Without passing upon any other question, it is enough to say that a residence for voting purposes in another precinct from tbe land precludes an entryman from claiming residence at tbe same time on tbe land for homestead purposes. (George T. Burns, 4 L. D. 62; Hart v. McHugh, 17 L. D. 176; Edwards v. Ford and O’Connor, decided June 18, 1894.)”

Plaintiff contends that, in saying “a residence for voting purposes in another precinct from tbe land precludes tbe entry-man from claiming residence at tbe same time on the land for homestead purposes,” the secretary committed such “a gross mistake and misapplication and misconstruction of the law” as brings this case within the rule that whenever it is made to appear to a court of equity that the officers of the land department have issued a patent to the wrong person by reason of a. mistaken application of the law to the facts in the case, the court will, in a proper proceeding, interfere, and control the determination of the department so as to- secure the just rights of the parties injuriously affected. In coming to his determination as to the plaintiff’s residence upon the land, and the bona fides of his settlement thereon, the secretary passed upon questions of fact,- whereof he was the exclusive judge, in the absence of fraud or imposition, and neither is shown in this case.

Plaintiff says that the secretary was in error in drawing a conclusive presumption of abandonment from the fact- that plaintiff voted in Granite and Bonner, precincts other than the one in which his homestead claim was. Granite is in another county. What other evidence touching the question of plaintiff’s residence for voting purposes may have been before the secretary, we do not know, as it does not appear from the complaint that the only facts before him on that subject were those relating -to plaintiff’s voting at Granite and Bonner. The question of residence is one of fact. (McHarry v. Stewart (Cal.), 35 Pac. 141; Stewart v. McHarry, 159 U. S. 643, 16 Sup. Ct 117, 40 L. Ed. 290.)

From the facts before him, the secretary decided that the plaintiff had not resided upon his homestead continuously for the five years prior to January 26, 1892. On the contrary, he found that the plaintiff had established a residence elsewhere for voting purposes during that time. And we think the secretary’s statement that “a residence for voting purposes in another precinct from the land precludes an entryman from claiming residence at the same time on the land for homestead purposes” is correct. Whether the secretary erred in his finding upon the facts submitted to him is immaterial in this inquiry. It makes no difference what our conclusion on the subject might be. (Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61)

“The officers of tbe land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to se¡-cure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties, founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department.” (Shepley v. Cowan, 91 U. S. 340, 23 L. Ed. 424, quoted in Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 848.)

In Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29, L. Ed. 570, Mr. Justice Eield, speaking for the court, said: “Without going into any detail of the evidence presented to the commisr sioner and the secretary of the interior, but taking the general statement of its nature, which we have given, it is clear that their attention was' drawn by it to the character of the settlement of Johnson, and that they considered whether his entry was made to acquire a home for himself or for his son-in-law, whether his residence had been sufficiently personal and continuous to save and perfect any right, if in fact he had' ever initiated and, and whether or not he had abandoned the land. The findings of the secretary upon any of these matters must be taken as conclusive, in the absence of any fraud and imposition such as we have mentioned. ITpon this point it is only necessary to refer to the cases where this conclusive character of the action of the department upon matters of fact cognizable by it has been expressly affirmed. Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U. S. 330, 340, 23 L. Ed. 424; Moore v. Robbins, 96 U. S. 530, 535, 24 L. Ed. 848; Quinby v. Conlan, 104 U. S. 420, 426, 26 L. Ed. 800; Smelting Co. v. Kemp, 104 U. S. 636, 640, 26 L. Ed. 875; Steel v. Smelting Co., 106 U. S. 447, 450, 27 L. Ed. 226.” (And see Murray v. Montana Lumber & Manufacturing Co., 25 Mont. 14, 63 Pac. 719; Sanford v. Sanford, 139 U. S. 642, 11 Sup. Ct. 666, 35 L. Ed. 290.)

“It would lead to’ endless litigation and be fruitful of evil, if a supervisory power were vested in tbe courts over tbe action of tbe numerous officers of tbe land department, on mere questions of fact presented for tbeir consideration.” (Quinby v. Conlan, 104 U. S. 430, 26 L. Ed. 800.)

Tbe following language in Moore v. Northern Pacific Railroad Company, 18 Mont 290, 45 Pac. 215, is applicable to this case: “Counsel for appellant contends tbat decisions of the secretary of tbe interior, made solely on tbe construction of tbe law, may be attacked in ibis proceeding; but it nowbere appears tbat tbe land contest between plaintiff and defendant was determined by tbe secretary of tbe interior upon a construction of tbe law only. As far as tbe record shows, tbe secretary passed upon tbe facts, and we cannot say tbat bis decision was arrived at from a construction of tbe law only. Decisions are generally rendered upon a consideration of botb law and facts.” (See Power v. Sla, 24 Mont. 243, 61 Pac. 468.)

Tbe plaintiff contends, however, tbat a settlement cannot be made upon public lands already occupied, and therefore tbe defendant bad no right to obtain tbe patent, for tbe reason tbat be initiated bis claim to tbe land in controversy by trespass upon tbe plaintiff. In answer to* this contention, we quote tbe following from tbe opinion of tbe court in Bohall v. Lilia, supra: “To charge the bolder of the legal title to land under a patent of tbe United States, as a trustee of another, and to compel him to transfer the title, tbe claimant must present such a case as will show tbat be himseslf was entitled to tbe patent from tbe gpverament, and that, in consequence of erroneous rulings of tbe officers of tbe land department upon tbe law applicable to the facts found, it was refused to him. It is not sufficient to show tbat there may have been error in adjudging tbe title to tbe patentee. It must appear tbat by tbe law, properly administered, the title sbonld have been awarded to the claimant. (Smelting Co. v. Kemp, 104 U. S. 636, 647, 26 L. Ed. 875; Boggs v. Merced Mining Co., 14 Cal. 279, 363.) It is therefore immaterial for the decision of this case what our judgment may'be upon the conclusions of those officers as to the possession of the patentee.”

We are of the opinion that the complaint does not state facts sufficient to invoke the action of a court of equity, and therefore the judgment should be affirmed.

Pee CuriaM. — For the reasons given in the foregoing opinion, the judgment is affirmed.