Page:Federal Reporter, 1st Series, Volume 9.djvu/264

BEOCKWAY V. MUTUAL BBNEFIT LIFE INS. CO. 249 �plaint and the judgment in ejectment were affeeted by that judgment. It is true that the suit continued to be entitled as it was originally docketed, and the word "defendants" appears at times in the plead- ings and record, instead of the word "defendant," but this was, per- haps, a misuse of the plural ; and the -whole record sufficiently shows that the controversy which was submitted to the court was between the plaintiffs and Smale only. �After dismissing as to Smale's co-defendants, as the plaintiffs in effect did by their amended complaint, — to the extent, at least, of the lands described in that complaint, — and taking judgment against Smale alone for those lands, the plaintiffs could claim nothing under that judgment against any one but Smale. No one being concluded by the judgment but Smale, it follows that no one was entitled to a new trial but Smale, his heirs, assigns, or representatives. The judgment in ejectment, as already stated, was limited to Smale only. It is only at the conclusion of the judgment that the plaintiffs are shown to have recovered costs of the "defendants."' Neither at the time of vacating the judgment of ejectment, nor at any subsequent time until to-day, bas it been made to appear that Smale died leaving heirs, assigns, or representatives. �The new trial was taken at a subsequent term, and it does not appear from the record, or any evidence before the court, that the plaintiffs have lost their right to have the erroneous order granting a new trial vacated. ���Bbockwat, Adm'r, v. Mutual Benefit Life Ins. Co. �[Circuit Court, W. I). Penniylcania. May, 1881.) �1. LiFB Insurance — "Bober and Tbmpeeatb." �The answers in the application, -wheii made the hasis of the agreeraent, are a material part of the contract, and, if untrue, the policy is void. But the bur- den of proof is on the company. The answers alleged that the applicant was sober and temperate, and had always been so. �HM, that the words "sober and temperate" are to be understood in their ordinary sensc. They do not imply total abstinence. A moderate and temperate use of alcoholic stimulants ia consistent with sobriety, but if used to such an extent as to produce frequent intoxication, the applicant is not sober and temperate. �2. Evidence — Negative— Positive. �Testimony of positive witnesses that they have seen the party intnxif ated is not to be rejected on account of the negative testimony of others who have not. ��� �