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need not wait for years or forever. It may divisions and subdivisions of not less than at once take lieu lands and sell them to its 320 acres in one location on public land, excitizens or to the persons authorized by cept such as is or may be reserved from sale statute to receive them. It makes no differ- by any law of Congress or proclamation of ence to the state as to whether it sells the the President of the United States." The sixteenth and thirty-sixth sections or lands Supreme Court of the United States, in disin lieu thereof, because the price is the same cussing the clause, said: “There seems to be in either case. When the reservation exists- no good reason why the selections of the preno matter how long it may continue and emptioner should be restricted within narthe state is deprived of the lands in place, rower limits than those of the state, and we it immediately has the right to select and cannot believe it was the intention of Contake other lands in lieu of the lands with- gress to give a state the power to take lands held from it. This right continues as long under section 8 which had actually been reas the withdrawal or reservation continues. served by the United States for any purpose We know of no decision or rule of law that whatever.” In Wolcott v. Des Moines Nav. requires the state to try the question as to Co., 5 Wall. (U. S.) 681, 18 L. Ed. 689, the the time the United States may desire to question was as to whether or not certain keep the land in reserve. The view we have lands, which were within the limits of a grant taken seems to us to be the view of common made while they were withdrawn under ausense and justice. Under it the state will thority of the Land Department of the Unitget no more land than it is entitled to, and ed States, passed by the grant to the railroad the United States will be deprived of no more company. The granting act contained a proof its public domain than if the state had viso that "any and all lands heretofore rewaited and taken the section in place. The served by competent authority should not statute is to be given a liberal construction, pass by the grant," and the court held that so as to do justice and promote its objects the temporary withdrawal of them by the and purposes.

order of the Commissioner was such a reserWhile there are few decisions bearing upon

vation as excluded them from the grant. the question that are directly in point, there In Northern Pacific Railroad Company v. are decisions which tend to sustain the view Musser Sauntry Land, etc., Co., 168 U. S. we have taken. In a decision rendered by 604, 18 Sup. Ct. 205, 42 L. Ed. 596, the quesSecretary Smith April 13, 1895 (20 Land. tion was whether a departmental withdrawal Dec. Dep. Int. 327), it appeared that the state of certain lands within the indemnity limits of California had made a lieu selection in lieu of a railroad grant until it should be seen if of an unsurveyed sixteenth section included they should be needed to satisfy that grant within a withdrawal. The Commissioner of was a reservation, and the court held that it the General Land Office had rejected the

In the opinion it is said: “The withselection, holding that the law granting the drawal by the Secretary in aid of the grant lieu right must be held to apply only to to the state of Wisconsin was valid, and opreservations created by an act of Congress or erated to withdraw the odd-numbered secby proclamation of the President, and not to tions within its limits from disposal by the a mere temporary withdrawal of lands pend- land officers of the government under the ing an investigation as to the character of general land laws. The act of the Secretary the trees growing thereon. From this deci- was in effect a reservation." The following sion the state appealed, so that the matter cases have more or less bearing upon the came up before the Secretary squarely up- question: Riley v. Welles, 14 Sup. Ct. 1166, on the question of law. The Secretary in 154 U. S. 578, 19 L. Ed. 618; Dubuque Co. his opinion held that the state might take V. Des Moines R. R. Co., 103 U. S. 329, 3 other lands, and said: “It is not necessary Sup. Ct. 188, 27 L. Ed. 932; Bullard v. Des that the reservation of said section 16 be of

Moines Co., 122 U. S. 107; Wilcox v. Jacka permanent character to justify indemnity son, 13 Pet. (U. S.) 498, 16 L. Ed. 261. selection made by the state.” In Wolsey V. Under Section 3398 of the Political Code, Chapman, 11 Otto (U. S.) 755, 25 L. Ed. 915,

the surveyor general is the general agent of a construction was given to section 8 of an the state for the location in the United States act to appropriate the proceeds of the sales land office of the unsold portions of the 500.of public lands and to grant pre-emption 000 acres of land granted to the state for rights. 5 Stat. p. 453, c. 16. The section con- school purposes, and the sixteenth and thirtained the proviso "that to each of the said ty-sixth sections granted for the use of pubstates which has already received grants for

lic schools, and lands in lieu thereof. When said purposes there is hereby granted no more any person desires to purchase any portio than the quantity of land which shall, togeth- of these lands, and makes the proper aifidavit er with the amount such state has already re- as prescribed in the Code, it is the duty of ceived as aforesaid, make 500.000 acres; the the surveyor general to file such application. selections in all the states to be made within Section 3406 of the Political Code provides their limits respectively in such a manner as follows: "Duty of Surveyor General on as the Legislature thereof shall direct, and Application for Purchase. The surveyor genlocated in parcels conformable to sectional | eral must, whenever application is made to him for any portion of the lands mentioned | note in his own name to plaintiff for part of in section 3398, communicate with the United the money loaned, and then executed in the

names of fictitious persons other notes to plainStates land office, and ask that the lands de

tiff for the balance. After he had absconded, scribed in the application be accepted in part plaintiff discovered the fraud, and went to desatisfaction of the grant under which it is fendant, who executed the note sued on for the sought to be located." It is thus made by

entire amount. Held, that such facts were suf

ficient to support a finding that defendant's note the section the ministerial duty of the survey- was made in consideration of plaintiff's forbearor general by reason of his office to commu- ance to sue the son on his own note, and was nicate with the United States land office, not therefore void as a contract to refrain from and ask that the lands described in the ap

prosecuting the son for forgery. plication be accepted in part satisfaction of

On Rehearing. the said grant to the state. It is not our 5. BILLS AND NOTES - CONSIDERATION - PREbusiness to anticipate the rulings of the Unit

SUMPTION. ed States Land Department upon the question

Where a note sued on is proved and offered

in evidence, it raises a presumption that it is herein deciiled, nor as to whether or not

based on a sufficient consideration, in the abthey will receive the application and grant sence of evidence to the contrary. the lieu land in place of the said sixteenth [Ed. Note.-For cases in point, see Cent. Dig. section. We must presume that the officers

vol. 7, Bills and Notes, $ 1653.] of the Land Department will obey the law,

6. APPEAL-EVIDENCE-REVIEW. and we cannot in this decision anticipate any

Where there was evidence justifying a

finding that the consideration for a note sued of its rulings.

on was plaintiff's forbearance to sue the makIt follows from what has been said that a er's son in a civil action on certain other inwrit of mandate should issue, directing and

debtedness, and such finding by a jury was sus.

tained by the trial judge, it could not be set commanding the defendant, as surveyor gen- aside on appeal, because there was other evieral and ex officio registrar of the state land dence that the note was given to save defendoffice, and as locating agent of the state of

ant's son from prosecution for forgery. California, to receive and file the plaintiff's

[Ed. Note.-For cases in point, see ('ent. Dig.

vol. 3, Appeal and Error, 88 3948–3950.] application on payment of the lawful filing fee therefor, and thereupon to communicate Appeal from Superior Court, San Joaquin with the United States land office, and ask County; F. H. Smith, Judge. that the lands described in plaintiff's ap- Action by Mary L. Keating against Mary J. plication be accepted in part satisfaction of

Morrissey. From a judgment in favor of the grant under which said lands are sought | plaintiff, and from an order denying defendto be located: and it is so ordered.

ant's motion for a new trial, she appeals.

Affirmed. We concur: HALL, J.; KERRIGAN, J. Arthur L. Levinsky, for appellant. Ash

ley & Neumiller, for respondent.

(6 Cal. App. 163)

HART, J. This is an action upon a promisKEATING v. MORRISSEY. (Civ. 340.) sory note for the sum of $5,041, with interest (Court of Appeal. Third District, California. at the rate of 5 per cent. per annum. Said

July 31, 1.907. On Rehearing, Aug. 29, 1907. note was made and delivered by the defendRehearing Denied by Supreme Court Sept. 26, 1907.)

ant to the plaintiff in the county of San Joa

quin on the 16th day of July, 1902, payable 1. BILLS AND NOTES-ACTION ON NOTE-PRIMA FACIE CASE-BURDEN OF PROOF.

one year after date. The case was tried by Offer and receipt in evidence of a note jury, a verdict returned in favor of plaintiff sued on constituted prima facie proof that the for the sum of $5,631.33, representing the note was given for a sufficient consideration, as provided by Code Civ. Proc. $ 1963, subd. 21,

principal and interest on said note, and a and Civ. Code, $ 1614.

judgment entered accordingly. The answer [Ed. Note.--For cases in point, see Cent. Dig. sets out with minute particularity the circumvo). 7. Bills and Notes, § 1816.)

stances which, it is alleged, attended the 2. SAME-WANT OF COXSIDERATION-BURDEN transaction resulting in the execution of the or PROOF.

note, the substance of all which is that said Where a note sued on is offered in evidence, the burden of proving want of consideration is

note was secured from the defendant by the on the defenılant, as provided by Civ. Code, s plaintiff by means of threats or duress, and 1615.

that therefore there was no valid consiclera. [Ed. Note.--For cases in point, see Cent. Dig. tion for the same. The defendant prosecutes vol. 7, Bills and Notes, $ 16.54.)

this appeal from the order denying her mo3. COXTRACTS-CONSIDERATIOX-FORBEARANCE tion for a new trial, upon a bill of exreror PROSECT'TION OF ANOTHER FOR FELOXY. A note executed in consideration of a prom

tions. ise of the payee to refrain from prosecuting

The defense relied upon for the defeat of another for felony is void as opposed to public the action, as must be inferred from the allemorals and public policy.

gations of the answer, as we have briefly [Ed. Note.--- For cases in point, see Cent. Dig. stated them, was that the note which forms vol. 11. Contracts, $ 633.]

the basis of the suit was without sufficient or 4. SAME -- FORBEARANCE OF CIVIL ACTION EVIDENCE

any consideration. We will proceed to an exDefendant's son, while acting as plaintiff's amination of the recorul for the purpose of ngent for the loaning of her money, executed a determining this question. The undisputed

facts of the case, as developed by the proofs, allegations of her answer, stating that on are: Several years prior to the execution of both occasions of the visit of the plaintiff at the note which is the subject of this suit, the her residence the latter declared that she had plaintiff made Walter Morrissey, a son of the investigated the great register and tax roll defendant, her agent, with full power to nego- of the county, and that neither contained tiate loans of money for her. While so act- names corresponding with those attached to ing in that capacity for plaintiff, said Morris- the notes delivered to her by Walter Morrissey loaned, or pretended to have loaned, cer- sey; that she submitteil to the defendant for tain sums of money to different parties, tak- inspection the 14 notes, said they were forgering in the name of plaintiff what purported to ies, and Walter was guilty of forgery, and, be their promissory notes therefor. These unless she was reimbursed or indemnified notes, 14 in number, were delivered to the against the loss which it was probable she plaintiff by Morrissey. All of these notes, would sustain through the criminal acts of with the exception of one which was made so said Walter, she would cause him to be aras to mature one year after the date of its rested and prosecuted for a felony and punexecution, were made payable "one day after ished therefor by imprisonment in the state date," and represented amounts varying from penitentiary. The defendant further testified $150 to $800; the sum total of the money so that when the conversations Occurred she claimed to have been loaned being $3,011. was and had been for some time prior there. Some of these notes were made in the year to in ill health, and, keenly realizing the hu1899, others in the year 1900, and one in the miliation and chagrin which the disgrace ocyear 1901. Three of these notes bear upon casioned by the prosecution of her son upon a the backs thereof an indorsement, signed by felony charge would entail upon herself and the plaintiff, acknowledging the receipt of her family, and influenced by no other mothe interest which had accrued thereon. The tive or consideration, readily agreed, on the plaintiff did not, at the several times at which occasion of the first interview between plainshe received said notes from Morrissey, either tiff and herself, to adjust the matter. On personally or by reputation, know persons the following day, so defendant testified, the bearing the names represented by the signa- plaintiff returned to the residence of the tures subscribed to the notes. A short time former, and, presenting to her a printed before the making and delivery of the note

blank form of a promissory note, requesteil by the defendant to the plaintiff. Morrissey, her to fill it out and sign it, at the same time without previously apprising the plaintiff or

repeating her threat to prosecute Walter unany of his other acquaintances of his inten

less the note was given by defendant. The tion to do so, departed from San Joaquin defendant thereupon filled out the note for county, or at least could not be found at his the sum of $5,011, with interest at the rate home or in that county. The plaintiff was of 5 per cent., and attached her signature desirous of securing the payment of the in

thereto. Upon the suggestion of the plaintiff, terest which was due upon the notes, and, the note was executed for the sum of $5,041, not being able to find her agent, and, as stat

although the interest due on the 14 notes ed, not knowing anything of or about the turned over to plaintiff by Walter Morrissey parties who were represented to have made amounted to the sum of $600. Plaintiff waivthe notes, proceeded to make an investigation ed her right to said interest, saying to the into the matter. She sought the aid and ad

defendant that she would be satisfied with a vice of a Mr. Crane, of Stockton, and, as he note for the principal sum so obtained from was not acquainted with any persons of the her by Walter. A majority of these 14 notes names attached to the notes as representing

called for interest at the rate of 8 per cent. the makers thereof, the great register and the per annum: the remainder provided for intax roll of the county were carefully exain

terest at the rate of 9 and 10 per cent. One ined, with the result that neither contained of the 14 notes, so delivered to plaintiff by the names attached to the notes. Thereupon said Walter, purported to have been executed the plaintiff called at the residence of the de- by "W. A. Morrissey" and one "Geo. L. fendant and obtained from her the note, to Brown," and the defendant, while under crosssecure the payment of which this action was examination as a witness, admitted that her instituted.

son's name was "W. A. Morrissey," and that At the trial, the plaintiff offered, and the the signature to the note of which we are same was received in evidence. the note in speaking appeared to be in the handwriting dispute, and then rested her case. This ('on- of her son. The defendant's version of the stituted, of course, prima facie proof of all

transaction was corroborated to some extent that the note purported to be. The presum?)

by her daughter, who testified that, being in tion is that the note was given for a sufficient a room adjoining the one in which occurred consideration. Section 1903, subd. 21, Cole the conversation between the parties on the Civ. Proc.: section 101-1. Civ. Code. The bur- day upon which the note was made, she overden of proving want of consideration sufi- heard the plaintiff say "that, if a paper was cient to support the note was upon the de- not signed, she would have my brother Waltfendant. Section 1615, Civ. Code. The de,

er arrested.” At the conclusion of the testifendant, having been sworn as a witness, mony thus giren on behalf of the defendant. gave testimony directed to the support of the the defense rested


, and not only denied making the

The plaintiff was sworn as a witness in re- but in lieu of proof of the facts, and that, ,

when the fact is proven contrary to the pre threats to which the defendant and her sumption, no conflict arises, but the predaughter testified or using any language from sumption is simply overcome and dispelled, which it might be inferred that she threaten- citing Savings, etc., Soc. v. Burnett, 106 Cal. ed to prosecute Walter for or even accused 514, 39 Pac. 922. This is true. Against a him of cominitting forgery, but also gave, in proved fact, or a fact admitted, a disputable full and in detail, what she claimed to have presumption has no weight; but, where it been said by both herself and the defendant is undertaken to prove the fact against the during the course of the only conversations presumption, it still remains with the jury held between the parties involving the trans- to say whether or not the fact has been provaction resulting in the execution of the note. en, and, if they are not satisfied with the She was exhaustively cross-examined, but proof offered in its support, they are at libnothing was thus brought out showing affirm- erty to accept the evidence of the presumpatively or otherwise that there was not a tion." valid consideration for the note. In other It is, of course, at orice to be conceded that words, there was nothing stated by her as a a note executed in consideration of a promwitness which tended affirmatively to over- ise to refrain from prosecuting a person for come the presumption of a consideration. a felony would be absolutely void, for such Among other things, she declared that the a contract would be opposed to public mordefendant, in the first conversation, said that als, as well as public policy. In fact, such she had previously made efforts to secure for a consideration in this case, if a forgery had Walter the necessary money with which to been committed by Walter, would itself conreimburse the plaintiff, thus showing at stitute or involve the commission of a crime. least, that the defendant knew of the finan- But, as we have indicated, the jury found cial transactions between her son and the against the contention of the defendant as plaintiff, and that she had before the con- to the circumstances under which the note versations formed an intention to aid Walter was given, and we are bound by that findin discharging his obligation to plaintiff. ing. It is also to be admitted that, if there This part of the conversation was not dis- is shown by the evidence, either by presumpputed.

tive, or positive proof, any valid consideration. It is only elementary to say that the jury, whatever for the note if for instance, the or court trying an issue of fact, as the ex- note was signed upon an agreement or promclusive judge of the weight of all evidence ise upon the part of the payee that she would submitted upon such issue and of the credi- refrain from instituting suit on the one note bility of the witnesses, has the right to dis- of the fourteen bearing the signature of Walcredit the witnesses or disregard altogether ter Morrissey—there would then be in law a evidence offered in support of a material is- sufficient consideration for the support of sue in the case. And in the case at bar it the note, for "the law will not attempt to was within the exclusive province of the ju- measure the amount or weigh the quantum ry to declare whether the evidence offered to of the consideration." Whelan v. Swain, 132 overcome the presumption of consideration Cal. 391, 64 Pac. 560; Pillans V. Mierop, for the note was of sufficient strength to do Lang. S. C. L. Cont., p. 177. We think the so or not. Having determined that it was evidence, both circumstantial and direct, fairnot, the verdict so returned is, as to the ly warrants the inference that Mrs. Morrisfacts, unimpeachable, so far as this court is sey, in executing the note, was influenced by concerned. A court or jury is not bound to the consideration that, for so doing, the believe an interested witness as against a plaintiff would forbear bringing a civil acpresumption, if the latter satisfies its mind. tion against her son for the recovery of the Code Civ. Proc. $ 2061, subd. 2; Adams v. money due plaintiff from him. If the facts Hopkins, 144 Cal. 36, 77 Pac. 712; People v. of the transactions between plaintiff and Milner, 122 Cal. 179, 54 Pac. 833. In the Walter were such as the record seems to inlast-mentioned case, the court, through Mr. dicate them to have been, it is just as logiJustice Henshaw, thus states the rule: "By cal to infer that Mrs. Morrissey was almost section 2061, subd. 2, of the Code of Civil as much in dread of the consequences of a Procedure, jurors are to be instructed 'that civil as a criminal action, for it is only a rethey are not bound to decide in conformity sponse to the natural sentiment and love of with the declarations of any number of wit- a mother that she should spare no efforts to nesses which do not produce conviction in save her son from the disgrace and loss their minds, against a less number, or against of confidence of the public generally which a presumption or other evidence satisfying would follow the exposure through a lawtheir minds.' In this is a distinct recogni- suit of bad faith and dishonesty in him in tion of the facts: (1) That a presumption his business dealings with another party. is eridence; and (2) that it is evidence Besides, the desire to save herself and famwhich may outweigh the positive testimony ily and family name from being linked with of witnesses against it. It has been said transactions of a shady nature or involving that disputable presumptions are allowed to fraud or the elements of a public crime stand, not against the facts they represent, would serve as a strong incentive or induce

ment in a mother to prevent the institution as shown by the record the case should be of a civil action which would expose to the rerersed, because said presumption was, in public the questionable circumstances giving truth, overcome. The language referred to rise to the suit. But, as we have declared, reads: "It will be presumed that there was we are not called upon to hunt for the spe- a good consideration for the written release, cific reasons which moved the defendant in in the absence of evidence to the contrary.” signing the note. It is enough to know that, The rule as thus stated is undoubtedly sound after all the evidence was introduced and and applicable to all disputable presumptions considered, the jurors, guided presumably by of fact. In truth, their very characterization all the criteria by which the law says they by the Code provision as "disputable premust be governed in weighing evidence, de- sumptions" carries with it necessarily the cided that the presumption of a sufficient right to controvert them by other evidence consideration for the support of the instru- and the complete exhaustion of their force ment was not dispelled, or that such pre- when evidence has been introduced suffisumption satisfied their minds as against the cient to destroy the verity of the facts for other evidence which failed to possess such which, until then, the law, for reasons of persuasive power.

expediency, makes them responsible vouchers. We have consulted with painstaking care The presumption of a consideration is, inall the authorities cited by counsel represent-deed, enough to support the note, in the abing both sides of this controversy. There is sence of evidence to the contrary. But in no conflict between the views here and those whom is vested, under our system, the exexpressed in the cases to which our atten- clusive province of determining when there tion has been called. There is a large num- is evidence to the contrary? There must be, ber of specifications of alleged error, involv- as counsel will concede, a determination by ing rulings of the court in the reception and somebody that there is in fact evidence to rejection of evidence and in the giving and the contrary. The fact that the record here refusal of instructions. It would require un- seems to show "evidence to the contrary" necessary labor to give all the assignments is not enough, so far as our power over the of error special notice. We may say, how- verdict and findings is concerned. It must ever, that we have given much time to an ex- have been "evidence to the contrary" to amination of the record and to a considera- which the proper tribunal has given such tion of all the points urged, and we may weight as to enable it to say that such "evistate, generally, that we think the court care- dence to the contrary" has overcome and fully, fully, and correctly declared to the ju- dispelled the presumption. The learned counry the law applicable to the issues and the sel's argument would be valid and might be facts, and that in the rulings upon the recep- sound addressed to a jury or court trying the tion and rejection of evidence we find noth- facts, but. when addressed to this court, it ing which in any degree prejudiced the rights overlooks the constitutional provision limitof appellant. It is noticeable that in all in- ing the power of the appellate courts of this stances where questions were propounded to state to the determination of questions of a witness and to which objections were sus- law alone, and that, therefore, the Supreme tained, the same questions to the same wit- and this court would clearly transcend their ness were at some other time during her ex- appellate jurisdiction, as outlined by the amination allowed. The rulings of the court Constitution, were they to engage in the were therefore not erroneous. We think the business of indiscriminately setting aside case was fairly tried, and that the appellant verdicts of juries and findings and judgments therefore suffered no prejudice either from of trial courts upon the ground of the insufthe rulings of the court upon the admission ficiency of the evidence to sustain them, exand rejection of testimony, or from the giv- cept, of course, in such cases only in which ing and refusing of instructions.

it can truly be said that. as a matter of law, The order is affirmed.

the evidence is not strong enough to uphold

such verdicts, findings, or judgments. HowWe concur: CHIPMAN, P. J.; BUR

ever differently the record evidence may NETT, J.

strike different minds, it is evident that the

jury trying the issues of fact did not think On Rebearing.

the evidence was strong enough to overcome HART, J. In his petition for a rehearing, the presumption, and it is equally evident counsel for appellant insists that this court that the trial judge, who presided at the was justified in declaring that the evidence bearing of the cause, and who heard the introduced both upon the part of the defend- evidence, was of the same opinion when he ant and the plaintiff, after the proof of the made the order denying appellant's motion note upon which the action was brought, for a new trial. The weight of the evidence was sufficient to and did overcome the pre- and the credibility of the witnesses were sumption of a consideration for said note. matters peculiarly within the duty of the He calls our attention to certain language jury to determine, and, having decided the used in the case of Adams v. Hopkins, 144 facts against the appellant, and having, it is Cal. 36, 77 Pac. 712, which, he claims, sus- clearly apparent, in reaching their conclusion, tains his contention that upon the evidence disregarded or discredited the testimony of

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