Page:Federal Reporter, 1st Series, Volume 4.djvu/371

 BEHB V. CONNZCTICUT UUT. LIFE INS. 00. 357 �Behb T. CoNNEOTiOBT Mut. Life-'TN3. Co. �{Ovreuit OùurtfW, D. Tennessee. , 1880.) �L New Tbial— Charge of thb Cotot— Weight of TESTnioinr.— The court may comment on the facts, but, in doing so, should be careful not to assume to decide the matter of fagt^itself, nor to take from the jury the right of weighing the evidence and determining ita force and eHect to prove the entire issue. Therefore, an instruction which, in Beeking to explain the meaning of certain ■ffords or phrases, overlooks or ignores aU the proof offered by the other side,and calls the atten- tion of the jury only to the strong features in the party's own favor, ■was propefly" refused as a charge upon the weight of testimony, and a new trial should not be granted for such refusai �S. Evidence — ^Estoppbl bt a Sworn Statement — Rule Stated.— It ia misleading a jury to call the rule of public policy which ooncludes a party from contradicting her oath deliberately made, in the course of judicial proceedings, an estoppel. ît is an established rule of evidence in Tennessee that such an oath, made with a wilfiil intention to swear falsely, cannot be contradicted ; but it does not operate as an estoppel unless the opposite party has acted upon it, or been prejudjced by it, in whicn case it cannot be contradicted at ail, however innocently made. Where, however, it does not assume the character of a techni- cal estoppel, the jury may flnd the truth from the proof at large, if the party shows satisfactorily that the oath was not made with the in- tention to swear falsely. �Motion for New Trial. �The plaintiff having sued the defendent Company on a pol- icy of life insurance, and procured a verdict and judgment for $2,881, the defendant moved for a new trial. The defence was that at the time the policy issued the life assured, con- trary to the warranty in the policy and application, was ad- dieted to the use of spirituous liquors; that after it issued he acquired the habit of intemperance so as to impair his health or produce delirium tremena, and that he committed suicide by drowning. Prior to the death of her husband the plaintiff filed in the proper state court a petition for divorce, on the ground of habituai drunkenness, in which she stated that her husband had been tôt four years an habituai drunkard and for two years Bubject to mania a potu. This petition, being sworn to, was introduced in evidence by the defendant company against the plaintiff, and, if true, conclusively established that he was a ����