Page:Federal Reporter, 1st Series, Volume 6.djvu/688

 676 ���FEDERAL REPORIEB. ���ment to do or omit, such act." In this policy such statement and declaration is, in substance, incorporated into and made part of the policy. The language in regard to future perni- cious habits is far more than a declaration of intention. It is a positive representation of a future fact, and is not to be regarded as an expression of the expectation or belief of the insured. �I am, therefore, led to the conclusion that the clause in the policy imports an agreement that future pernicious habits shall not be entered into, and that if the insured thereafter practices any pernicious habit that obviously tends to shorten life, the policy will be thereby avoided. The evidence is ad- mitted. ���PicKEL V. IsGEiGG and others. [Oireuit Court, D. Indiana. April 2, 1881.) �1. Dbmttbeer to Evidence— Ween Ax.lo-wablb. �The evidence of a party, upon the affirmation sida of an issue of fact before a jury, may be demurred to by the adverse party under cer- tain conditions ; but the party upon whom the burden of the issue resta is not permitted to demur to the evidence of the other party, for he cannot be allowed to assume that he haa made out his case. �2. Same — Admissions of Fact. �If there is any evidence tending to prove a fact, that fact must be distinctiy admitted in the demurrer to be absolutely true, so that the court will have nothing to do but apply the law to the established facts. �3. Same — Admissions of Rboosd. �Unless the necessary admissions are distinctiy made of record, no judgment can be pronounced on the demurrer, for the court is not substituted for the jury to weigh the evidence. �4. Same — Joindeb in Demuheek. �It is also necessary that there should be a joinder in such demur- rer.— [Ed. �Baker, Hind ce Hendricks and George Carter, for plaintiff. Claybaugh e Higinhotham and Herr e Alexander, for de- fendants. ��� �