Page:Federal Reporter, 1st Series, Volume 9.djvu/267

 252 FEDERAL REPORTER. �of an inflammatory type, is a question to be settled upon medical testimony, and I am not persuaded that we have sufficient evidence here to solve that question. There is, perhaps, some evidence tend- ing to show that on one occasion this disease affected his knee joints, or one of them. There is also evidence that on several occasions, when suiiering from rheumatism, he was confined to the houae ; but it is by no means clear that this confinement occurred during the period of time covered by Dr. Little's answer. Upon the whole, I am not satisfied that there is sufficient evidence in the case to justify me in submitting to you the question, whether the answers touching the health of Broekway were untrue ; and I therefore instruct you to disregard this particular defence, and to dismiss it altogether from your consideration. �The seventeenth question addressed to Beckwith S. Broekway, and his answer thereto, are as follows: Question. "Name and residence of the party's usual medical attendant, or of the medical attendant of his family, to be referred to for information as to his health." Answer. "E. H. Little, Berwick, Pennsylvania." This answer is alleged to be untrue. But I am of the opinion that the evidence upon this subject would not justify a verdict for the defendant, and I therefore instruct you to disregard and dismiss from your consideration this particular defence. �This brings us to a branch of the defence which deserves your most serions consideration. The thirteenth question propounded to Beck- with S. Broekway, and his answers thereto, are in these words : Ques- tion. "Is the party [Beckwith S. Broekway] sober and temperate?" Answer. "Yes." Question. "Hashe alwaysbeenso?" Answer, "Yes." �The defendant alleges that these answers are untrue, and a very large number of witnesses have been examined in your presence and hearing, and many depositions have been read on the part of the defendant, to show the untruthfulness of these answers in respect to Brockway's sobriety and temperance. On the other hand, the plain- tiff lias submitted a great deal of testimony, oral and by depositions, to rebut the defendant's evidence on this point, and to sustain the truth of these answers. �The question of fact is for your determination: Was Beckwith S. Broekway, on March 8, 1868, the date of his declaration and answers, a "sober and temperate man? and had he been always so?" This you should decide according to the weight of the evidence. You wil] observe that Brockway's answers had respect not only to the date thereof, March 8, 1868, but to his whole previoua life. "Is the party ��� �