for the witness. The writ was in due form, and served within the territorial jurisdiction of the court in a lawful manner by an officer authorized by law to serve it. The rule has long been settled that no imprisonment by virtue of a legal writ in due form, issued by a court of competent jurisdiction, and served in a lawful manner, is false imprisonment. It matters not that upon a presentation of all the facts it appears that the writ was improvidently or wrongfully issued. The existence of such facts does not make the writ void or irregular, or impair its efficacy as a complete defense to an action for false imprisonment brought against the officer serving it, or the party who procured it to be issued and instigated its service. In such cases, if the party procuring the issuance of the writ acts maliciously and without probable cause, he may be liable to an action for malicious prosecution, but he is not liable to an action for false imprisonment.

In Marks v. Townsend, 97 N. Y. 590, the court said:

"The facts stated in the affidavit upon which the warrant was issued were sufficient to give the judge who issued it jurisdiction; and in issuing it he acted judicially, and made a judicial determination. The warrant was

not, therefore, void or voidable or irregular. It was the result of the regular judicial action of a judicial officer having jurisdiction upon the facts presented to him to issue it. It was subsequently set aside by the judge who issued it, when a new fact, to wit, that the plaintiff had been before arrested in an action against him by these defendants upon an order of arrest issued in the action for the same cause, and upon substantially the same grounds, was brought to his attention. The existence of this fact did not make the warrant void or irregular. When brought to his attention, it furnished the judge a ground for the dismissal of the warrant in the exercise of further judicial action. It matters not whether the warrant was dismissed in the exercise of judicial discretion, or upon the claim by the plaintiff that he could not be twice arrested for the same cause, and hence that he had the absolute legal right to be discharged from the second arrest. It was at most a case where the plaintiff was erroneously arrested. An error was committed, which, upon a proper presentation of the facts, was to be corrected by further judicial action A warrant granted under such circumstances protects against an action for false imprisonment not only the judge who granted it, but the party who procured it and instigated its service. 串 * If a warrant of attachment or an order of arrest is issued

in an action upon facts giving the judge jurisdiction, and the defendant appears, and by showing new facts, or denying those alleged against him, procures the attachment or the order to be set aside, the process is not void or voidable or irregular, but simply erroneous, and protects the judge and the party who procures it, although it is set aside, against an action for trespass or false imprisonment. In all such cases these are regular judicial methods, and that which was legally done at the time cannot be converted into a wrong by relation after the process has by judicial action been set aside. This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances without the risk of undue punishment for their own ignorance of the law or for the errors of courts and judicial officers. * * Even malicious motives and the absence

of probable cause do not give a party arrested an action for false imprisoninent. They may aggravate his damage, but have nothing whatever to do with the cause of action. Hence, if in this case the defendant had intentionally withheld from the judge who granted the warrant the fact of the plaintiff's prior arrest, that fact would have been quite pertinent to maintain an action for malicious prosecution, but would not have laid the foundation for a recovery in an action for false imprisonment."

In Williams v. Smith, 14 C. B. (N. S.) 596, Willes, J., said:

"It by no means follows that, because a writ or an attachment is set aside, an action for false imprisonment lies against those who procured it to be issued. If that were so, this absurd consequence would follow that every person concerned in enforcing the execution of a judgment would be held responsible for its correctness. Where an execution is set aside on the ground of an erroneous judgment, the plaintiff or his attorney is no more liable to an action than the sheriff who executes the process is."

See, further, to the same effect, Chrisman v. Carney, 33 Ark. 321; Finley v. Gutter Co., 99 Mo. 559, 13 S. W. 87; Fischer v. Langbein, 103 N. Y. 84, 8 N. E. 251; Day v. Bach, 87 N. Y. 56.

In the case at bar the issuance and service of the writ was regular and proper, and the response of the witness did not show it to be otherwise. It is a contempt of court for a witness who is duly served with a subpœna to appear and testify to treat the command of the court with silent contempt, and neither appear nor take any means of bringing to the attention of the court the existence of facts which would excuse him from attending. The service of the writ of subpœna imposes upon a witness the duty of treating the process of the court with decent respect, and of either attending the court in person or causing to be brought to the attention of the court the facts which in law will excuse him from attending. If he does not do this, he justly subjects himself to an attachment which is not necessarily purged by simply showing that his employment was such as exempted him from attending court as a witness, or that he was not subject to be subpoenaed because of the distance he resided from the place where the court was held. These are facts of which the court can no more take judicial notice than it can of the age or condition of health of the witness. They are facts which it is the duty of the witness, when it is reasonably within his power, to bring to the attention of the court in some proper manner, and, failing to do so, he may be attached and punished for contempt. The disclosure of these facts after he has been attached is not a bar to his punishment for contempt, though they may serve to mitigate it; and the court, on account of them, may, in its discretion, condone the offense altogether. One sued for a debt which he knows he has paid may have to pay it a second time if he treats with indifference a summons issued out of a court of competent jurisdiction in an action brought on that same debt. One who ignores the personal service of process upon him, issued by a court of competent jurisdiction, does so at his peril. If he has a good answer to the exigencies of the writ, he must bring it to the attention of the court in apt time and manner on pain of being treated precisely as though he had no defense whatever. The judgment of the circuit court is affirmed.

DUBUQUE & S. C. R. CO. v. PIERSON.

December 16, 1895.)

(Circuit Court of Appeals, Eighth Circuit.

REHEARING Denied.

No. 466.

This was an action at law by Philo B. Pierson, as administrator with the will annexed of Mary B. Wood, against the Dubuque & Sioux City Railroad Company, upon a covenant of warranty. In the circuit court there was a verdict for plaintiff, and judgment accordingly. The defendant brought the case on error to this court, which, on October 1, 1895, rendered an opinion affirming the judgment. 70 Fed. 303. The defendant has applied for a rehearing.

PER CURIAM. In the petition for a rehearing which has been filed in the above-entitled case it is contended, in substance, by the counsel for the plaintiff in error, that this court has found as a matter of fact that the defendant railroad company made a new promise, which had the effect of removing the bar of the statute of limitations; and that in so finding it has usurped the functions of the jury, and at the same time deprived the defendant company of its right to a jury trial upon that issue. This contention is founded upon a misconception of the points ruled in the opinion. heretofore announced. This court did not decide that the letters and correspondence referred to therein constituted a new promise which removed the bar of the statute of limitations that would otherwise have been effectual to extinguish the plaintiff's claim, but it did hold that the letters written by the railroad company, and the promises therein contained, were sufficient, as a matter of law, to waive its right to pay the plaintiff's demand in the common stock of the railroad company. This is made apparent, we think, by the following paragraph of the opinion:

"The bonds of the old company which she [Mrs. Wood] paid for the lands extinguished that amount of the bonded debt of the company, and benefited to that amount the old company as well as the new. She demanded payment of her claim arising out of the breach of this warranty from the new company. When this demand was made, the company did not offer or propose to pay her in its common stock. It distinctly and explicitly acknowledged its liability in the event that her title failed, and agreed in writing in that event to pay her the purchase money and 6 per cent. interest. The promise to pay on the happening of the event mentioned was absolute and unconditional. This was a waiver of its right to pay her in its common stock, and it is now too late to withdraw that waiver."

In the succeeding paragraph of the opinion the remark was made, in substance, that it was unnecessary to consider the statute of limitations, but such remark must not be understood as implying that this court was of opinion that the statute of limitations had probably run against the plaintiff's demand but for the promises contained in the letters of the railroad company. On the contrary, the majority of the court were agreed that on the state of

facts disclosed by the record the plaintiff's cause of action for breach of warranty did not accrue until 1883, when it was definitely determined that the plaintiff had no title. The circuit court entertained the same opinion, and instructed the jury to that effect, which action met with our entire approval. And, inasmuch as the circuit court rightly decided that the plea of the statute was not applicable to the case, it was unnecessary for this court to decide whether the circuit court was also right in holding that the defendant company was estopped by its conduct from relying upon the statute. It cannot be said, therefore, that the court has erroneously usurped the functions of the jury, or that it has failed to notice any material question of law that is raised by the record. In the petition for a rehearing counsel for the plaintiff in error repeat, in a measure, the argument formerly advanced that the representations and promises contained in the letters written by J. R. Dumont to Mrs. Wood were not authorized by, and are not binding upon, the defendant company. This proposition was considered at some length in the opinion heretofore rendered. In addition to what was then said, it is only necessary to observe that all the letters written by J. R. Dumont appear to have been written by him in answer to letters of Mrs. Wood, which were addressed to M. K. Jessup, the president and chief executive officer of the defendant company. From this circumstance alone a strong presumption arises that the letters signed by J. R. Dumont, either as assistant secretary or as treasurer of the defendant company, were written by direction of the chief executive officer of the company. It is reasonable to assume that the letters of Mrs. Wood in due course of mail reached the person to whom they were addressed, and that the answers thereto were written with his knowledge and sanction. This presumption is strengthened by the testimony of Mr. Jessup himself. Moreover, the letter of M. K. Jessup, of date December 8, 1875, shows conclusively, as we think, that he was fully aware of the statements and representations that had been made to Mrs. Wood in the course of the previous correspondence. In view of these considerations, there can be no reasonable doubt that the letters in question were duly authorized by the defendant company, that the company is bound by the representations and statements therein contained, and that they were properly admitted in evidence against the defendant company. We see no reason, therefore, to alter or modify the views heretofore expressed. We entertain no doubt that the judgment of the circuit court was for the right party, and for the right amount. The petition for a rehearing is accordingly denied.

ERSKINE v. CHINO VAL. BEET-SUGAR CO.

(Circuit Court, S. D. California.

December 20, 1895.)

No. 655.

1. INJURY TO EMPLOYE-DEFECTIVE APPLIANCE.

An employer is not liable for injuries to an employé resulting from a defective appliance unless he had actual knowledge of the defect, or by ordinary care could have obtained such knowledge, in time to prevent the injury.

2. SAME.

An employer is not liable for injuries to an employé caused by a defective rope when there was nothing in the appearance of the rope to suggest a defect.

3. SAME-CONTRIBUTORY NEGLIGENCE.

An employé injured through defects in a rope, while engaged in cleaning windows, is guilty of contributory negligence if he voluntarily chose to do the work by suspending himself by rope and tackle at a high elevation outside the building, when, as he knew, he might have done it from the inside of the building without assuming such risk. 4. SAME-INSPECTION OF APPLIANCES.

If an employé, injured by the breaking of a rope in a rigging appliance, had at the time charge of all the rigging, ropes, and tackles of his employer, and was charged with the duty of inspecting them, and he selected the rope and tackle used at the time of the accident, he cannot recover for his injuries.

Action by Maria S. Erskine, executrix of the last will of Wilbur F. Erskine, against the Chino Valley Beet-Sugar Company, a corporation. On motion by defendant for peremptory instructions.

Plaintiff, as executrix of the last will of her late husband, Wilbur F. Erskine, deceased, brought this action to recover of the defendant damages for the death of said Erskine. Upon the trial of the case, and at the close of the plaintiff's evidence, the defendant moved the court to instruct the jury to return a verdict for the defendant. The proof showed that deceased was killed on November 9, 1894. At that time he was in the employ of the defendant, and had been continuously for several years prior thereto, with the exception of an interval of about two weeks, between October 15 and November 1, 1894. At the time of the accident he was engaged in cleaning the windows of defendant's factory, and, for this purpose, was suspended, on the outside of the building, by a rope and attached appliances, at an elevation of about 50 feet from the ground. While the deceased was thus suspended, the rope broke, and, in consequence thereof, deceased fell to the ground, and was killed by the fall. The rope, at the place where the break occurred, was badly decayed, although it was not discolored; nor was there anything in its appearance before it broke, to create even a suspicion that it was defective. The other pertinent facts are indicated in the opinion of the court.

S. O. Houghton, for plaintiff.

Graves, O'Melveny & Shankland, for defendant.

WELLBORN, District Judge. The grounds upon which the defendant moves the court for peremptory instructions, although more numerously stated in the motion itself, may be comprehended under three heads, as follows: First, that the evidence fails to establish the representative capacity of the plaintiff, or, in other words, that she is the duly appointed and qualified executrix of the last will.