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considered necessary by Judge Severens in Tuck v. Olds, 29 Fed., at page 883, quoted by counsel. The decisions of the United States courts are not harmonious on this point. In Nichols v. Brunswick, 3 Cliff. 88, Fed. Cas. No. 10,239, Justice Clifford, on circuit, held that a party called and examined as a witness on his own behalf is not entitled to fees as a witness for travel and attendance. In The Elizabeth & Helen, 4 Ben. 101, Fed. Cas. No. 4,354, Blatchford, J., held the same rule binding on him, quoting Steere v. Miller, 28 How. Prac. 266, approved in the New York court of appeals. 30 How. Prac. 7. The case quoted above from Judge Severens holds to the contrary, provided the affidavit be filed. The question never has come up in this court. But the reasons given by Mr. Justice Clifford seem conclusive:
“When a party is called and examined in his own behalf, he is not entitled to travel and attendance as a witness. He may be sworn, or not, in his own favor, at his election, but he cannot claim compensation for doing what he may omit if he sees fit. In other words, the law gives him the privilege to introduce his own testimony, if he sees fit, but he cannot require the opposite party to pay him for exercising the privilege which the law confers."
Fees to witnesses owe their origin to a period when none but disinterested parties could be witnesses. When, therefore, a person was compelled by the process of the court, or could be so compelled to leave his business and attend the court for the purpose of testifying in a matter in which he had no interest, fair dealing required that he should be indemnified for the expense at which he was put,-going, staying, and returning. But a party to the cause, either plaintiff or defendant, going to testify in his own behalf, does not come within the reasons of this rule. The exception is overruled.
Another exception is the disallowance of the fee paid for a copy of the testimony taken de bene esse. By consent, counsel on both sides were allowed to obtain a copy of the testimony taken in New York. Properly, this is no part of the costs of the case. The copies were solely for the convenience of counsel. In the absence of any agreement that it should be included in the costs, that cannot be done. Counsel for the plaintiffs deny that there was any such agreement, and no stipulation in writing to that effect is in the record. The exception is overruled.
PARKER V. ROBINSON.
NATIONAL BANKS–STOCK ASSESSMENT-EXECUTOR'S LIABILITY.
An executor who receives certificates of national bank stock as part of the assets of decedent's estate, and inciudes them in his inventory returned to tue probate court, is a shareholder, and liable as such for an assessment, under Rev. St. § 5151, subject to the relief granted by section 5152.
In Error to the Circuit Court of the United States for the District of Massachusetts.
Action by William S. O'B. Robinson, receiver, against Gustavus D. Parker, executor and trustee. There was a judgment in favor of plaintiff, and defendant brings error.
Edward Avery, for plaintiff in error.
Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge.
PUTYAM, Circuit Judge. David Parker, the testator of the defendant below, now plaintiff in error, died February 22, 1887, and the defendant was qualified as coexecutor of his will, March or May, 1887. Prior to and at his decease David Parker was the unquestioned owner of 50 shares of the capital stock of the First National Bank of Wilmington. At his death the bank was solvent. The certificate of stock came into the hands of the executors, and the shares were included in their inventory of his estate which was returned to the probate court. They thus accepted them, and by the common law, which prevails in the jurisdiction where they were so qualified, they were thus vested with the legal title to the stock. Subsequently the coexecutor of the defendant below deceased, leaving him sole surviving executor. In November, 1891, the bank became insolvent. December 21, 1891, the comptroller of the currency appointed the plaintiff below its receiver, and May 6, 1892, he ordered the assessment in controversy here. This assessment was for the full par of the stock, so in no event can the jurisdiction at law be properly questioned.
Under the circumstances, the defendant below became in law the owner of the stock, although he held it in his capacity as executor, and was holden to account for it as such. He thus became a shareholder, and liable, as such, under section 5151 of the Revised Statutes. Under these circumstances no questions of survivorship of actions or of limitation arise, and the circuit court properly entered judgment against him. The provisions of section 5152, relating to stock held by executors, administrators, guardians, or trustees, are purely supplementary, and are intended only to relieve the classes of persons named therein from execution against their individual assets, and they do not qualify the general rule of liability under section 5151. The plaintiff in error claims that the assets of a tes. tate person under the laws of Massachusetts, where he qualified as executor, are in custodia legis, under authority of the state judicial tribunals, and so are not subject to an execution issued by a federal court. But the question now before us is only as to the validity of the judgment, and not at all as to the manner of its enforcement. The record does not show that any execution has been ordered, and no error has been assigned touching any such matter. The judgment of the circuit court is affirmed, with costs of this court against the plaintiff in error personally,
NORTHWESTERN MUT. LIFE INS. CO. V. STEVENS et al.
BANKERS' LIFE ASS'N OF MINNESOTA V. SAME.
Nos. 635 and 636.
In an action on a policy on the life of one who disappeared about a year before the commencement of suit, it is proper to charge that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing exposure to danger which might prob
ably result in his death. 2. SAME.
It is also proper to charge that, while seven years is the period at which the presumption of continued life ceases, this period may be shortened by proof of such facts and circumstances connected with the person whose life is the subject of inquiry as, submitted to the test of reason and experience, would force a conviction of death within a shorter
period. 3. SAME-INSTRUCTION NOT APPLICABLE.
An instruction based upon the assumed state of facts to which no evi
dence applies is erroneous. 4. CHARGE TO JURY--APPEAL TO SYMPATHIES.
In an action against an insurance company by the widow and child of the insured, the court opened his charge by stating that, when women and children were connected with a case, he made it a rule to say as little as possible to the jury, because his sympathies frequently got the better of his judgment, and he subsequently said that, while he always tried to close his eyes to the fact that a woman and child had an interest in a suit, he could not always do it, and did not suppose the jury could, and proceeded: “It is not expected. If a man can do that, he is no better than a brute. He is as bad as the heathen is supposed to be, and worse than the horse thief is thought to be. If he could close his eyes to that fact, lose all sense of decency and self-respect, he would not be fit for a juror.” Held, that this was ground for reversal of a judgment in favor of plaintiffs.
In Error to the Circuit Court of the United States for the District of Nebraska.
Actions by Jennie S. Stevens and Jennie S. Stevens as next friend of Maud Stevens,—one against the Northwestern Mutual Life Insurance Company, and the other against the Bankers' Life Association of Minnesota. Judgments were rendered in favor of plaintiffs in each case, and defendants bring error. Reversed.
J. W. Deweese (F. M. Hall was with him on the brief), for the Northwestern Mut. Life Ins. Co.
James W. Dawes (Joseph R. Webster was with him on the brief), for the Bankers' Life Ass'n of Minnesota.
F. I. Foss (Geo. H. Hastings, E. E. McGintie, and W. R. Matson were with him on the brief), for defendants in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
SANBORN, Circuit Judge. The life of George D. Stevens was insured by each of the plaintiffs in error for the benefit of his wife and child, the defendants in error. The latter brought actions
against the insurance companies for his death. In their complaints they alleged that Stevens was dead, and that they had given notice and made the proof of his death in July, 1893. The policies provided that the companies would pay the amounts insured 60 days after notice and due proof of the death of the insured. The companies denied in their answers that the insured was dead, and denied that the defendants in error had given them notice of proof of his death 60 days before the actions were commenced. The two actions were tried at the same time and to the same jury, who returned verdicts against the companies. The errors assigned are to the charge of the court; and they relate principally to the rules that should govern a jury in determining whether a man who disappeared less than seven years before an action for his death was commenced was dead before the commencement of the action.
The salient facts in the case were undisputed, and they were these: On August 19, 1892, Stevens lived at Crete, in the state of Nebraska. He was the owner of all but five shares, of $100 each, of the State Bank of Nebraska, and was its cashier and manager. His wife owned the other five shares. The capital of the bank was originally $50,000, but that capital had been impaired to the extent of $38,000, The state bank examiner had discovered this fact in July of that year, and had notified Stevens that the bank would undoubtedly be closed unless the capital was restored to $50,000. Stevens had been endeav. oring for many days to sell $38,000 of the stock of the bank, which was unissued, in order to restore its capital, but he had failed. The bank was insolvent. Stevens had some real estate in Crete, which was worth about $20,000; but he was also insolvent. He owed the bank about $8,000 on his own note. He had persuaded his assistant cashier, as a favor to him, and without any consideration, to give his note for $5,000, and Stevens had indorsed and delivered it to the bank, by which it was carried as a part of its assets. He owed to other banks $5,000 on promissory notes, which he had signed, and had persuaded a friend to sign with him as an accommodation. For six years he had been the administrator of the estate of one Jarrett Young. As such administrator he had received at least $2,000, but he had never accounted for or paid over to the heirs of the estate any part of it. The widow bad demanded an account of him in vain. One of the heirs had repeatedly demanded an account of him, and had asked to know where the money of the estate was, but Stevens had continually put him off. In the latter part of July he demanded the account again, and told Stevens that they must ask him to do something pretty soon, or they would have to commence proceedings to make him do so. The community in which Stevens lived was not aware of these facts. In that community he was respected and esteemed. He was a member of the Congregational Church, a member of the Modern Woodmen, and belonged to various other societies. His moral and financial reputation was yet good. He was between 40 and 50 years of age. He had a wife and two children, and was an affectionate husband and an indulgent father. He was attached to his family, and his domestic relations were agreeable. On Saturday, August 19, 1892, he took $60 in money and a draft on a Chicago bank
for $75 from his bank in Crete, gave his wife $15 and his servant $5, took two valises, one of which contained nothing but an overcoat, and went to Chicago. He registered at an hotel in that city on Sunday morning, and visited the exposition grounds on that day. He remained at this hotel until about 11 o'clock in the forenoon on Tuesday, August 22, 1892, when he paid his bill, took his valises, said that he was going to Milwaukee, but intended to stop at Racine on the way, and left. A few moments later he met a friend in a ticket broker's office, where he asked for a ticket, and said he was going somewhere for a couple of days, then to Milwaukee, and then to his home. None of his family, his friends, or his acquaintances have ever seen or heard from him since that moment, unless the witness Hamilton did.
He testified that he knew him well, and that he met, recog. nized, and conversed with him in San Francisco about September 5, 1893; but some of Hamilton's acquaintances testified that his reputation for veracity was bad in the community in which he had lived. Strenuous efforts were made by Mrs. Stevens and some of the citizens of Crete to find her husband. His picture and a notice of his strange disappearance were published in the paper of the Modern Woodmen, which has a circulation of 150,000. The police officers of Chicago searched the hotels of that city for a trace of him, and scattered 5,000 circulars containing descriptions of him over the United States and Canada. Some of the daily papers of Chicago and Boston contained extended notices of his disappearance, but no further tidings of him or of his whereabouts were received.
Upon this state of facts, the court charged the jury at considerable length, and gave 14 requests for instructions. that were submitted by counsel, either in the forms in which they were submitted or with modifications that suggested themselves to the court. Exceptions were taken to many parts of the charge of the court. Two of the requests given to which exceptions were taken were: "1) The jury is instructed that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which might probably result in his death. (2) The jury is instructed that seven years is the period at which the presumption of continued life ceases. But this period may be shortened by proof of such facts and circumstances connected with the person whose life is the subject of inquiry as, submitted to the test of reason and experience, would force the conviction of death within a shorter period.”
It is a general rule that a state of facts once shown to exist is presumed to continue until a change, or facts and circumstances inconsistent with its continued existence, are proved. A living man is presumed to continue to live until the contrary is shown or is presumed from the nature of the case. All the authorities concur in the general proposition that the presumption of life continues seven years after the unexplained disappearance of a man under ordinary circumstances, from whom no tidings return to his friends or acquaintances, and that then the presumption of life ceases and the presumption of death arises.