tions, however, are but rational inferences from the given state of facts, which so many courts have agreed that reasonable men, in the exercise of sound judgment, would naturally draw, that they have become rules of action and of decision. They are, after all, only presumptions of fact; and, when the state of facts from which they are drawn is modified, the presumptions or inferences drawn from it must and ought to change. It is conceded that when one who is last seen in a state of imminent peril, that might probably result in his death, is never again heard from, though diligent search for him is made, the inference of immediate death may justly be drawn. It goes without saying that if a guilty man, who has been indicted for a heinous crime, flees in the full vigor of health from impending disgrace and just punishment, and his friends and acquaintances hear from him no more, the inference of continued life after the expiration of seven years might well be drawn, and no presumption could arise from that state of facts that his life had ceased within that period. The various facts of numberless cases will range them between the extreme cases we have supposed. Two cases of disappearance in which the facts are exactly alike will probably never arise, and the strength of the presumption of life or death will never be the same in any two cases. The facts and circumstances surrounding each disappearance which tend to affect the inference of continued life or early death that the minds of reasonable men, anxious only to arrive at the truth, would draw, should be received in evidence in the trial of these cases; and then, guided by the established presumption that one who disappears under ordinary circumstances is presumed to live for seven years thereafter, the fact of continued life or previous death at the important date should be determined by the jury if there is sufficient evidence in the case to warrant a finding that the established presumption has been varied, and by the court if there is no such evidence. On the trial of this case there was no request for a peremptory instruction to the jury to find this important fact either way, and hence the question whether or not there was sufficient evidence in the case to warrant the finding of the death of the insured before the commencement of these actions is not presented for our consideration. That question was sent to the jury by common consent. Stevens disappeared on August 22, 1892. The actions were commenced on July 31, 1893. The established presumption of fact from the disappearance of an individual under ordinary circumstances, from whom his relatives and acquaintances have never afterwards heard, is that he continues to live for seven years after his disappearance. this presumption was unaffected by countervailing facts, it would continue in the case at bar until August 22, 1899; but this presumption of fact is not conclusive. It may be overcome, not only when the testimony of those who saw the insured die or saw his body after his death is produced, or when he was last seen in a peril that might probably cause his death, but also when all the facts and circumstances of the case-the possible motives, if any, of the lost one to absent and conceal himself in view of approach

If

ing failure, disgrace, or punishment, his possible motives, if any, for returning to his family and occupation, his attachments to the members of his family and his friends, his interest and prospects in his business or occupation, and the extent of the unavailing search that has been made for him-are such that they would take the case out of the category of an ordinary disappearance, and would lead the unprejudiced minds of reasonable men, exercising their best judgment, guided by the established rule that life is presumed to continue seven years after an unexplained disappearance, to the conviction that death had intervened at an earlier date. Davie v. Briggs, 97 U. S. 628, 634; Hyde Park v. Canton, 130 Mass. 505, 509; State v. Plym, 43 Minn. 385, 45 N. W. 848; Waite v. Coaracy (Minn.) 47 N. W. 537; Tisdale v. Insurance Co., 26 Iowa, 170, 176, 177, 28 Iowa, 12; Seeds v. Grand Lodge (Iowa) 61 N. W. 411; Cox v. Ellsworth, 18 Neb. 664, 26 N. W. 460; Hancock v. Insurance Co., 62 Mo. 26, 31; Newman v. Jenkins, 10 Pick. 515; Montgomery v. Bevans, 1 Sawy. 653, 666, Fed. Cas. No. 9,735; Ashbury v. Sanders, 8 Cal. 62, 64; Hall's Deposition, Fed. Cas. No. 5,924. The jury should have been instructed accordingly. If, under such instructions, they were convinced by a fair preponderance of the evidence, in view of the established presumption of life for seven years in ordinary cases of disappearance, that the insured died before the commencement of these suits, we are unwilling to hold that they might not lawfully find that fact, although there was no proof that the insured was last seen in the presence of an imminent peril, that might probably cause his death. The exceptions to these instructions cannot be sustained.

An exception was taken to the following portion of the charge: "The jury is instructed that when an honored and upright citizen, who through a long life has enjoyed the fullest confidence of all who knew him, prosperous in business, and successful in the accumulation of wealth, rich in the affection of wife and children, and attached to their society, contented in the enjoyment of his possessions, fond of the associations of his friends, with no habits or affections contrary to these traits of character, journeys from his home to a distant city, and is never afterwards heard of, then a strong, if not conclusive, presumption arises in favor of his death." This is a quotation from the opinion of the supreme court of Iowa in Tisdale v. Insurance Co., supra; and we do not call attention to it to criticise or dissent from it in a case to which it is applicable. But a banker over 40 years of age, whose capital has been impaired more than 75 per cent., whose bank is insolvent, who has been notified by the state authorities that his bank must close unless he restores its capital, and who has striven in vain to restore it, can hardly be called "prosperous in business." Such a banker, who has accumulated $20,000 worth of real estate in a small town, who owes $17,000 to banks, and who has received from an estate of which he is administrator $2,000 or $3,000 more, for which he has failed to account after repeated demands, cannot be deemed to be very successful in the accumulation of wealth. The

difficulty with this instruction is that it was not applicable to this case, and for that reason it ought not to have been given. An instruction upon an assumed state of facts, to which no evidence applies, tends to withdraw the attention of the jury from the issues actually involved, to mislead them to determine the case upon false issues, and thus to reach an erroneous result. Railroad Co. v. Houston, 95 U. S. 703; Railroad Co. v. Blessing, 14 C. C. A. 394, 67 Fed. 277, 281.

The plaintiffs in error excepted to the following portions of the charge. In opening his charge to the jury the court below said: "Wherever there are women or children connected with a case, I make it a rule to say as little as possible to the jury when the matter is finally submitted to them for their consideration, because I have frequently found that my sympathies would get the better of my judgment. So I have found it advisable, as a rule, to say as little as possible to the jury, so that they might take a full and fair view of the duties they are called upon to perform." At the close of his charge, the court below said: "Now, gentlemen of the jury, I try to close my eyes, as well as I can, to the fact that a woman and child have any interest whatever in the result of a controversy when it is brought into court. I cannot always do it. I don't suppose you can. 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. But, so far as it is possible for you to do that, you do so, and decide the case precisely as you would if it was between man and man, or between a woman and a woman. Of course, neither one has any greater or more extensive rights than the other, but both must be tried according to the same rule; both must be adjudged by the same law, so far as it is possible for human ingenuity to do it. And what I have said to you in reference to myself I ask you to do on behalf of your own selves. Take the case, and decide it according to the testimony, and according to the weight of the testimony, as it has been presented to you for consideration, and then let your verdict speak for yourself." In our system of trial by jury, the province and duty of the presiding judge is to fix the attention of the jury upon the issues on trial, and upon the evidence that is material to their determination, to guard them against the consideration of irrelevant and incompetent testimony, and against the influence of sympathy, passion, or prejudice, and to secure a fair and impartial trial of the issues presented. The main issue which this jury was trying was whether or not the insured had died before these actions were commenced. The consideration of what party or parties would be benefited or damaged by the determination of that issue in one way or the other was utterly irrelevant to this question. It could not tend in any way to assist in correctly deciding it. It was worse than irrelevant and immaterial. It was positively pernicious. The natural and inevitable

effect of its consideration was to excite the sympathies and to warp the judgment of the jurors, as it evidently did those of the judge; and to produce a decision founded, not upon the evidence as to the life or death of the insured, but upon a consideration of the question whether or not the insurance companies could afford to lose the amounts of these policies better than the woman and child could afford to do without them. The charge of the court was an open invitation to the jury to substitute the latter question for the former, and to permit its determination to control their verdict. It not only invited but it taught them so to do, both by precept and example, for the judge himself devoted this very forcible portion of his charge to the consideration of this very question. The influence of the presiding judge in a jury trial can hardly be overestimated. His learning, his ability, his long experience in the trial of causes, and the rule that his view of the law must control, combine to command for him the respect of the jury, and to enable him often, by a word or a look, to lead them to a decision of a doubtful case. Juries are none too anxious to divest themselves of passion, prejudice, and sympathy, and courts cannot be too diligent in guarding themselves and their juries against their influence. The portion of the charge under consideration is its own condemnation. Nothing that we can say will make its fatal error more glaring and apparent than its perusal.

There were two manifest errors in the admission of testimony in these cases. One was the receipt of a copy of a judgment of a state court of California certified by the clerk alone, without the certificate of a judge, chief justice, or presiding magistrate that the attestation was in due form of law. Rev. St. § 905; Code Civ. Proc. Neb. § 414; U. S. v. Biebusch, 1 Fed. 213, 215. The other was the admission of the testimony of Mrs. Stevens as to certain statements made to her by Mrs. Young in a conversation relative to the account of Stevens with the estate of Jarrett Young. This testimony was mere hearsay.

The judgments below must be reversed, with costs, and the cases remanded, with directions to grant new trials; and it is so ordered.

CARMAN v. EMERSON.

(Circuit Court of Appeals. Eighth Circuit. December 16, 1895.)

No. 670.

1. FALSE IMPRISONMENT-JUSTIFICATION-LEGAL WRIT.

Imprisonment by virtue of a legal writ in due form, issued by a court of competent jurisdiction, and served in a lawful manner, is not false imprisonment, though the writ was wrongfully issued.

2. CONTEMPT OF COURT-DISREGARD OF SUBPOENA.

One duly served with a subpoena, who neither appears nor takes means to bring to the court's attention facts excusing him from attending, is guilty of contempt, and the disclosure of such facts after his attachment for contempt is not a bar to his punishment therefor.

In Error to the Circuit Court of the United States for the Eastern District of Arkansas.

Action by Robert C. Carman against Reuben L. Emerson. Α judgment was rendered for defendant, and plaintiff brings error.

In an action pending in the circuit court of Columbia county, Ark., wherein the defendant in error was plaintiff and J. G. Kelso was defendant, a subpœna was duly issued out of that court for R. C. Carman, the plaintiff in error, commanding him to appear and testify on the part of the plaintiff in that action. This subpoena was returned duly served, and, the witness failing to appear according to its command, the court ordered an attachment to issue against him, and an attachment was accordingly issued, upon which he was arrested by the proper sheriff, and brought before the court to answer for his alleged contempt.

In his response to the attachment, the witness admitted the subpoena had been served upon him, and that he refused, upon advice of counsel, to obey its command for the following reasons: That he did not reside in the county in which the action was pending, or in an adjoining county; that he was the cashier of a bank; that he resided more than 30 miles from the place where the court was held; and that by reason of these facts he could not, under the statutes of Arkansas, be lawfully compelled to attend the court in Columbia county as a witness.

The statute of Arkansas provides that depositions may be used in the trial of any action where the witness does not reside in the county where the action is pending or in an adjoining county, or where the witness is a cashier of a bank, or resides 30 or more miles from the place where the court sits in which the action is pending; and that a witness shall not be compelled to attend a court for oral examination where his deposition may be used. Sand. & H. Dig. St. Ark. §§ 2977-2979.

Upon consideration of the matter the court discharged the rule for contempt, and thereupon the plaintiff brought this action against the defendant, alleging as his sole cause of action that the defendant "unlawfully and without probable cause caused plaintiff to be arrested and falsely imprisoned." The answer denied the allegations of the complaint. There was a trial to a jury, and at the close of the evidence the court instructed the jury to return a verdict for the defendant, which was done; and, a judgment having been rendered thereon, the plaintiff sued out this writ of error.

Oscar D. Scott and Paul Jones filed brief for plaintiff in error. Hamilton P. Smead and John R. Thornton filed brief for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

The circuit court of Columbia county is a court of general, original jurisdiction. It has jurisdiction to issue writs of subpoena for witnesses in cases pending before it, and to enforce obedience to the exigencies of such writs by attachment. The subpoena was regu

larly issued, and the return of the sheriff thereon showed a due and legal service thereof on the witness, and neither the subpoena nor the return disclosed any fact which showed that the witness was not under legal obligation to obey the subpoena. Upon this state of the record the presumption was that the witness was under a legal obligation to attend, and was in contempt of court for failing to do so, It was, therefore, the duty of the court to issue the writ of attachment