ERROR to the Circuit Court for the Southern District of Mississippi.

Mahone and wife brought debt on a policy of life insurance issued by the American Life Insurance Company, August 30th, 1870, for $5000, on the life of one Dillard. The policy was issued to him, but to be paid to Mrs. Malone, one of the plaintiffs, his sister, within sixty days after notice of his death, with proviso, that it should be void 'if he shall become so far intemperate as to impair his health.'

Dillard died November 4th, 1870, at a place called Edwards's Depot.

The general nature of the defence was that the policy had been issued on the faith of false and fraudulent representations made by Dillard, whose life was insured, and that those representations were by the express agreement of the parties declared to be warranties.

Among the questions propounded to Dillard, and answered in the 'proposals for insurance,' was the following:

'Is the party temperate and regular in his habits?'

To which the answer 'yes' was appended. This was question and answer No. 5.

Question No. 16 was:

'Is the applicant aware that any untrue or fraudulent answer to the above queries, or any suppression of facts in regard to health, habits, or circumstances, will vitiate the policy?'

To this the answer 'yes' was also appended.

One issue was whether Dillard had falsely and fraudulently answered 'yes' to the question No. 5.

None of the answers were written by Dillard, though he signed his name at the foot of them all. They were written by one Yeiser, the agent of the company, and, as he testified, read over to Dillard, who then signed them, and immediately afterwards signed a declaration filled up by the agent, which was, in effect, an agreement that if the said proposals, answers, and declarations returned to the company should be found fraudulent or untrue in any respect, or if there should be any wilful misrepresentation or concealment in the said declaration, the policy should be void. Evidence of all this was introduced by the defendants, and after its introduction the plaintiffs were permitted, against the objection of the defendants, to call a witness, one Cox, and to prove by him that he was present when Yeiser propounded question No. 5 to Dillard, and that Dillard's answer was not 'yes,' but that 'I never refuse to take a drink,' or 'I always take my drinks,' and that the answer 'yes' was improperly written down without the knowledge or consent of Dillard. The reception of this testimony of Cox constituted the basis of the first assignment of error.

Another issue in the case was:

'Whether after the execution of the policy Dillard had become so far intempeate as to impair his health.'

There was no issue as to his health prior to the insurance.

The second assignment complained of the exclusion of the testimony of Dr. Alexander, a medical witness.

This witness was offered to prove that, as the medical examiner of another insurance company, he had examined Dillard in June, 1870, and had given his opinion in writing to that company that Dillard was not worthy of insurance. This offer the court overruled.

The same witness was also asked whether he was acquainted with the condition and state of health of Dillard in June, 1870; and, if so, what it was, and the nature of his disease or malady, if any; and to this question, also, the court refused to permit an answer.

The third assignment was this: The plaintiffs were allowed in the cross-examination of one of the defendants' witnesses to ask whether a certain Dearing, the general travelling agent and supervisor of the defendants in the Southern States, did not, some time after the death of Dillard, visit Edwards's Depot (the place at which Dillard died) for the purpose of examining into the claim of the plaintiffs to have payment of the policy; and if so, whether he did make such examination, and whether he expressed an opinion as to whether or not the payment should be made? The witness under exception answered, 'that Dearing did some time after Dillard's death visit Edwards's Depot for the purpose, as he stated, of examining into the liability of the insurance company upon the policy sued on; that the witness introduced Dearing to a number of the leading citizens of the place for the purpose of enabling him to ascertain the facts; that he remained some hours, and before going away expressed to the witness that in his opinion it would be best for the company to accept the situation and pay the amount of the policy.'

The fourth and fifth assignments of error were these:

It had been stipulated by the parties that all the original papers filed in the cause, and which were competent evidence for either side, should be read in evidence. Against the objection of the defendants below, the plaintiffs below were allowed to read in evidence the certificate of one Harris, medical examiner of the company, and also a written statement of Yeiser, agent of the company, both made at the time of Dillard's application for insurance, and both certifying to the insurance company that Dillard was a first-class risk. These two papers were appended to the proposals for insurance and declaration, and the proposals and declaration by name were made part of the first and third pleas. The court allowed them to be read, and the company excepted.

A sixth assignment of error was to the charge. It presented in that form the same question as did the first, to the evidence.

Verdict and judgment having been given for the plaintiffs, the insurance company brought the case here.

Messrs. Isaac Hazlehurst and E. L. Stanton, for the plaintiffs in error; Messrs. J. M. Carlisle and J. D. McPherson, contra.

Mr. Justice STRONG delivered the opinion of the court.