transaction are partners in the popular sense of the word, and considering the obvious intendment of the statute, it should apply in case of a surviving witness in the popular as well as the technical sense. Therefore Guie was a competent. witness to prove what occurred between himself and the defendants.

It was clearly competent for the plaintiff to call Wells and Doan. Any party in any civil action may compel any adverse party to testify in his behalf in the same manner and subject to the same rules as other witnesses. Act March 27, 1865, P. L. 38. This statute is not affected by the act of 1869. Wells and Doan were not called to prove the liability of any deceased member of the lodge, and no objection was made on that ground. It was immaterial to the plaintiff in this trial whether the deceased members were liable. He has a right to prove everything he can by the adverse party which will establish his case. The adverse party is called against his interest, and the statute places him in a different position from a party proposing to testify in his own behalf.

The act of March 22, 1861, (P. L. 186), provides that in no case on any joint obligation shall a plea be entertained on the part of any heir or personal representative that one of the joint debtors has deceased since the commenceincat of the action, but the same shall be proceeded in against the estate of said decedent as though the suit had been commenced against the decedent alone. Literally and strictly upon the death of a party to the record, jointly sued with others, the further progress of the action against his estate is the same as if he had been sued separately. A liberal construction of the statute permits the plaintiff to bring in the executor or administrator, and proceed against him and the survivor at the same time to judgment. Dingman v. Amsink, 27 P. F. S. 114. But it does not follow that he is compelled to do this, or that the representatives of the decedent may come in and have trial with the survivors against the plaintiff's consent; much less can the survivors claim delay till the representatives be substituted. There was no error in directing the jury to be sworn as to the survivors.

It is difficult to conceive of a meritorious defense by those who actually got the money, some of whom signed the certificate and others actually participated in the giving of it. They have a legal right to refuse payment until judgment be recovered according to law. But they cannot complain if the plaintiff fails to include every one in the action who is liable, or fails to discover proof against every one included. In the nature of the case it is difficult for the plaintiff to determine in advance the precise individuals who are liable, though he be sure of some of them, and the court below has not been and will not likely be slow to allow necessary amendments

authorized by the statutes.

Judgment reversed and venire de novo awarded.

KENTUCKY COURT OF APPEALS. ROBINSON v. DUVALL, &C.

SEPTEMBER 18, 1880.

1. A life policy as between the assured and the insurer is strictly and only a contract, and is subject to the general rules which govern in the interpretation of other contracts, but with respect to the beneficiaries it is held to be a testamentary provision rather than a contract.

2. The share of one of the beneficiaries upon his death, will pass to the surviving beneficiaries and their heirs, and does not result to the assured, where the policy is renewed by the payment of the annual premium, and no contrary intention appears.

3. A policy of insurance on the life of any person expressed to be for the use of any married woman, whether procured by herself, her husband, or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effecting the same or his creditors." Section 30, Act of March 12th, 1870.

4. The assured had no right to assign the benefit of the policy, in this case, where the policy was for the benefit of his wife and children, so as to defeat the heir at law of one of the beneficiaries who died before the assured. COFER, C. J.

April 1, 1872, B. F. Crowfoot insured his life in the Connecticut Mutual Life Insuranc Company for the sum of $5,000, payable to his wife and children or their representatives. At the date of the policy the insured had three children, all minors and unmarried. In a few days thereafter his wife died. He continued to pay the annual premiums, as they fell due, until April 7, 1878, when he died, having survived all his children, two of whom died in infancy and unmarried, and one, having married, left an only child, the appellee W. T. Duvall, and her husband surviving her.

Before his death, and after the death of all his children, the insured assigned and delivered the policy to his niece, the appellant, Hattie E. Robinson, intending it as a gift to her.

The executor of the insured, the guardian of the infant grandson, W. T. Duvall, and Hattie E. Robinson all claiming the proceeds of the policy, the insurance company brought its petition of interpleader and paid the money into court, and the court having adjudged it to W. T. Duvall, Robinson alone has appealed.

Her counsel argues, in effect, that upon the delivery of the policy Mrs. Crowfoot and the three children of the insured became invested each with a one-fourth interest in it, and that upon the death of Mrs. Crowfoot her interest passed to her husband under the statute of dis tributions, and that at the death of the unmar

ried daughters their interest passed to their father in the same way, and at the death of Mrs. Duvall, during the life of her father, her interest lapsed as if it had been a legacy, and in this way the insured became the owner of the entire policy and could invest the appellant with a good title.

A life policy, as between the assured and the insurer, is strictly and only a contract for the payment of money upon the happening of a contingency, uncertain only as to the time when it will occur, and is subject to the general

rules which govern in the interpretation of other contracts. But when considered with respect to the rights of those who claim to be beneficiaries, especially when they are the natural objects of the affection and bounty of the person procuring and paying for the insurance, should be regarded in the light of a testamentary provision rather

than of a contract.

The object of all interpretation of acts or words is to arrive at the intentions of the person whose acts or words are to be interpreted, and the nature of the transaction and the relation of the parties are frequently important, and sometimes controling factors in the problem.

In taking the policy the insured was not providing for himself, but for his wife and children after his death, and it would be unreasonable to suppose that he intended, in case one of these objects of his affection should die during his life, that the interest of the one so dying should pass to himself and at his death to his personal representative. It would be more consistent with his evident design in insuring his life for the benefit of all his family, wife and children alike, to suppose that his intention was that, in case one or more should die before himself, without leaving children, the share to which those dying would have been entitled, had they survived him, should go to the survivors. He dedicated the whole to his family, share and share alike, and as the family was reduced by death and he came to renew the policy by paying the annual premiums, it can scarcely be doubted that he did so in order to provide for those who still survived, and this evident intention ought not to be defeated unless there are insurmountable legal obstacles in the way of effectuating it.

So far as any interest the wife of the insured had in the policy is concerned, the rights of the parties are regulated by statute in harmony with the view just expressed.

"A policy of insurance on the life of any person, expressed to be for the use of any married woman, whether procured by herself, her husband, or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effecting the same or his creditors." Section 30, Act 12th, March, 1870; 1 Acts '71. When Mrs. Crowfoot died, her interest in the policy inured, under this statute, to the benefit of her children.

When one of the children subsequently died without living issue, and the policy was again renewed by the payment of the annual premium, there was, in a modified sense, a new contract (Thompson v. Cundiff, 11 Bush, 573), which inured to the benefit of the children then living, there being no issue of those who were dead. So that at the death of Mrs. Duvall, the last survivor of the children of the insured, she was the sole beneficiary.

Section 32 of the statute, supra, provides that, "When a policy is effected by any person on his own life, or on the life of another, expressed to be for the benefit of ***** a third person,

the person for whose benefit it was made shall be entitled thereto against the creditors and the representatives of the person effecting the same."

At the time the policy was last renewed before her death, Mrs. Duvall was the only surviving child of the insured, and as she was the only living person answering the description of beneficiaries as contained in the policy, as the other beneficiaries had died without issue, it is to be taken to have been renewed for her sole benefit. When it was last renewed she was dead, and there was no person living answering the description except her surviving child, who, in our opinion, is her representative within the meaning of that word as used in the policy.

In Insurance Company v. Palmer, 42 Conn., 50, the policy was payable to the wife if she survived her husband, if not, to their children. The husband survived the wife, and one of the children died, during the life of the father, leaving issue. It was held that the issue took the interest to which his father would have been entitled if he had survived the insured.

This is a much stronger case for the issue of the deceased child than that.

There the policy, in the contingency that had happened, was payable to the children, here it is payable to the children or "their representatives." This expression shows that the possibility of the death of some or all of the children during the life of the insured was not overlooked, and that such an event was intended to be provided for.

And when we consider the nature and design of life insurance and the relation of the parties, we think the policy should be construed as if it were payable to such of the children as should survive the insured and the surviving issue of such as might die during his life.

We are therefore of the opinion that the insured had no interest in the policy, and that the assignment made by him to the appellant gave her no right to any part of its proceeds, and the judgment is affirmed.

COMMISSIONERS OF APPEALS-TEXAS.

MECHANIC'S LIEN-WHEN THE WIFE'S SEPARATE
PROPERTY AND THE HOMESTEAD SUBJECT
TO PLEADING.

BLEVINS ET AL v. CAMERON AND MAYFIELD.

May 12, 1881.

I. In order to subject the wife's separate property to mechanic's lien for improvements, contracted for by the husband, it must be alleged and proven that the husband was acting as her authorized agent at the time; and it will not be presumed that he was such agent because he was her husband. The averment of her knowledge of such purchase and the purpose for which it was made, does not supply, by implication, that essential ingredient of her liability.

II. In order to subject the homestead to mechanic's lien, it is necessary that the wife's consent to thus encumber the homestead, be evidenced in the mode prescribed by law for the alienation of her separate property. Appeal from Grayson County.

This suit was brought in June, 1874, by the appellees

against the appellants, as husband and wife, on account for lumber sold and delivered by them to the husband, amounting to $294.42, for the purpose of constructing a dwelling house and out houses on two certain lots in the town of Sherman, the title to which was in Mrs. Blevins, the wife. The plaintiffs alleged that it was not known to them at the time they furnished the lumber, that she owned the lots; that her title to them was not then recorded, and that the lumber was used in the construction of said houses with the knowledge of the wife; that the lots before and until said houses were constructed, were vacant, and not worth more than onefifth part as much as they were afterwards, by reason of the improvements so made upon them; that after the houses were constructed the defendants resided upon the lots as their homestead, and that they had no other homestead in the county or in the State, so far as plaintiffs know or believe. The plaintiffs allege that they fixed their lien upon said property within the time and in the mode prescribed by law, setting forth the facts in respect thereto.

The plaintiffs prayed to subject the houses and lots to their lien and for general relief. The defendants filed a general demurrer, which does not appear to have been relied upon as no action was taken upon it by the court, nor to have been called to the court's atttention. They also filed a general denial.

The plaintiffs account was attached, as an exhibit, to the petition, and its correctness sworn to. They also introduced, in evidence, their sworn and duly recorded statement of the verbal contract between themselves and Wm. Blevins, for the sale of the lumber which had been recorded in the proper office, in order to fix their statutory lien. This instrument recited, among other things, "that the lumber was purchased and used for the purpose, by said Blevins, of erecting and repairing a building situated in the town of Sherman," * * upon the lots described in the petition. The plaintiff also proved the facts by one of their witnesses that the houses and lots,described in the petition, are the homestead of defendants "and was their homestead at the time mentioned in the account, at which said lumber was furnished; that he (witness) and his wife sold the lots mentioned in the petition, to Mrs. Blevins."

Verdict for the plaintiffs for the amount sued for with interest, and finding the property subject to the plaintiffs' lien, the court rendered judgment accordingly, decreeing sale to be made of the property in the usual form, with order to issue execution for any unsatisfied balance of the judgment against Wm. Blevins.

The defendants appealed to the Supreme Court and assign eight grounds of error which, so far as they need be considered, in the proper disposition of this appeal, it may be stated, relate to the charge of the court, the refusal to give instructions asked for by the defendants, and the admission of certain evidence over their objections.

WALKER, J.

Delivered the opinion of the court.

The plaintiffs' petition admitted that the wife had the title to the lots at the time of the transaction with her husband in relation to the sale of the lumber, nor does the petition attempt to qualify the implication from that admission, that she was the legal and equitable owner of the property. The averments in the pleadings of a party will be taken most strongly against him. Indeed, so far from seeking to charge the property to be community property, notwithstanding the fact that the title was held, as they allege, by her, the plaintiffs rest their right

to subject the property to their supposed lien, upon the wife's knowledge and silence or acquiescence in the acts of her husband in contracting for, and making improvements upon her property, and not upon the allegation that it was, in fact, property belonging to the community.

Considered, then, as her property, the question which is first presented is, whether the facts, which are alleged, show a cause of action against the wife to subject her property to sale for the payment of the debt contracted by the husband for lumber to improve it. It was held directly, in Warren v. Smith, 44 Texas, 245, that the statute regulating marital rights, and prescribing in what cases the wife's separate estate may be bound, will control the creation of mechanic's lien on her estate. Her estate cannot be made liable for improvements thereon not authorized by her. The rule is thoroughly established by many decisions of our Supreme court, construing the statute referred to, and the rights of the wife and her liabilities under it, that to make the wife's separate property liable for a debt it must be contracted by the wife herself, or by her authority. Warren v. Smith, supra; Magee v. White, 23 Tex. 180. The third section of that act, Art. 4643 P. D., provides that the husband and wife may be jointly sued for all debts contracted by the wife for necessaries furnished herself or children, and for all the expenses which may have been incurred by the wife for the benefit of her separate property. The contract by the wife, her consent given expressly or impliedly, is necessary to maintain a suit against her with her husband, whether for necessaries or for the purpose of benefitting her separate property. The husband, it is true, may be her agent to make contracts that will bind her separate estate, but it is not to be presumed that he is her agent, because he is her husband. The agency must be such, in fact, and not a thing to be presumed, because of the relation of husband and wife. Magee v. White, 180.

There was no averment in the petition of such agency, or that it was her contract. The averment of her knowledge of such purchase, and the purposes for which it was made, do not supply, by implication, that essential ingredient of her liability. The husband was entitled to the use and enjoyment, as well as to the care and management of her separate property, and both husband and wife expected to occupy together the homestead for which the lumber was designed, and it is quite as consistent with reason, to suppose that the wife relied upon the husband to purchase the lumber upon the responsibility of their community interest, as that she empowered him to contract for her, as her agent, to buy the lumber for her, in order to improve the place on her separate responsibility.

Chief Justice Hemphill, in a suit to subject the property of the wife to the payment of a debt alleged to have been contracted by a married woman for necessaries, under that statute, used this clear and emphatic language: "A fundamental principle in relation to suits to bind the separate estate of the wife's is this, that such estate can not be held liable unless in cases clearly, strictly and fully authorized by the statutes or the equitable principles of the laws of the land." McFadden v. Crumpler, 20 Tex. 376. This rule was re-affirmed in Stansberry v. Nichols, 30 Tex. 149, where is said: "In order to charge the separate estate of a married woman under the statute, the fact relied on must be explicitly averred and must be such, being true, as to exclude a fair and substantial doubt of her liability, otherwise no sufficient basis is laid for a judgment against her." It is

clear that there was neither averment nor proof of the main and essential facts, either that the contract was that of the wife, or that the husband professed, in any mode, to act as her agent in making the purchase of the lumber, and, evidently, there was no sufficient basis laid in the petition on which to rest a decree against the wife, and to subject her separate estate to the debt sued on. Stansberry v. Nichols, 30 Tex. 149.

It is not necessary to consider what may have been the plaintiffs' rights and remedies, if any they had, on general principles of equity, because the plaintiffs' case is presented upon the legal statutory right to enforce the specific remedy under the law giving a lien to mechanics and material men. But if they had relied upon such relief as a court of equity could afford them, the allegations contained in their petition were equally insufficient to support a decree against the wife. Stansberry r. Nichols, supra; Brown v. Ector. 19 Tex. 346; Haynes ". Stovall, 23 Tex. 625.

But the evidence adduced by the plaintiffs on the trial, and none whatever, indeed, was introduced by the defendants without contradicting the fact, that the lots in question were, in truth, the separate property of the wife, showed, besides, that the property was the homestead of the defendants at the time of the lumber contract, and the recorded statement of the contract made by the plaintiffs and read in evidence, indicate that there existed a house or houses on the lots at that time.

Under such facts, treating the property as then being the homestead of the defendants, there existed the same necessity for the wife to enter into the contract whereby the property should be subjected to the lien of a material man who furnished material to make improvements on the homestead, as is necessary in the case of her separate property. Thus to affect her homestead rights it seems, too, that it would be necessary that her consent, thus to encumber the homestead must be evidenced in the mode prescribed by the law for the alienation of her separate property. Gaylord v. Loughridge, 50 Tex. 576; Campbell v. Fields, 35 Tex. 754.

Thus it appears that neither, under the facts stated in the petition, nor those which were proved on the trial, were the plaintiffs entitled to a decree against Mrs. Blevins; there was no basis for a decree subjecting the houses or lots to the payment of the debt, under either the case made by the pleadings or that which was developed by the evidence.

The charge of the court was predicated upon the assumption that whether the property was community estate, the wife's separate estate, or constituted the homestead, if the plaintiffs had complied with the statute prescribing the mode of fixing their lien, and without service upon Mrs. Blevins, of a copy of the bill of particulars of the account provided for in the lien statute, that if the plaintiffs were otherwise entitled to recover for the debt, they would also be entitled to have a lien upon the property described in the petition, and the jury were so instructed. The defendants excepted to the charge in these respects, by asking instructions which presented counter propositions of law, which were refused. Neither the charge nor the instructions need be more specifically stated. The jury were, of course, misled in following the charge to a wrong result, to the injury of the appellants.

The questions presented as to the admissibility of evidence, in view of the conclusion we have reached need not be discussed. As the cause will be remanded for another trial, we will make the simple remark, that we do not consider the objection to the admissibility of the affi

dayit of plaintiff's agent well taken by the defendants. The court did not err in admitting it in evidence; the grounds of objection urged in the brief of appellants' counsel, in support of their second assignment of error, therefore, we consider untenable.

If the plaintiffs are entitled to a lien on the property, to satisfy their debt (the justness of which does not appear to be doubted) the facts which show its existence should be presented on another trial, by appropriate allegations, in an amended petition. The views of the law, applicable to the plaintiffs' case, as it was presented on the trial, under both the pleadings and the evidence, which were entertained by the judge who presided, and which seem to have been held, also, by the plaintiffs' counsel, may have influenced the latter, not to rely on or present other facts, or to ask for other relief in some shape or other, consistent with the rights of the plaintiff under the law. Therefore, although there is no error in the finding of the jury in favor of the plaintiffs for the amount of the debt and, notwithstanding their finding the property to be subject to the lien is erroneous, would not preclude the Appellate Court from discarding such erroneous part of the verdict, and proceed to render such judgment as should have been rendered in the court below. We conclude, for the reason above given, that the proper disposition of this appeal is to reverse the judgment and remand the cause to be tried again under further proceedings.

Report of Commissioners examined, opinion adopted and judgment reversed. GEO. F. MOORE, Chief Justice.

A COUNTRY Justice of the Peace in Kansas has gone back on the Supreme Court of the State, and declared the liquor law unconstitutional.

"Why, your Honor," exclaimed the prosecuting attorney, "the Supreme Court has affirmed its constitutionality."

"Let 'em affirmed and be blanked," responded the learned court, "I know my business."

SUPREME COURT RECORD.

[New cases filed since our last report, up to Sept. 14, 1881.

1163. Adam Orth adm'r v. The L. S. & M. S. Ry. Co. Error to the District ourt of Fulton County. W. C. Kelly and C. H. Scribner for plaintiff.

1164. Springfield, Jackson & Pomeroy R. R. Co. v. Ambrose Scott. Error to the District Court of Jackson County. Irvine Dungan for plaintiff.

1165. Evan Brock et al. v. Urban Hidy et al. executors. Error to the District Court of Fayette County. M. J. Williams and Mills Gardner for plaintiffs; M. Barclay and Savage & Hidy for defendants."

1166. Homestead, Building and Loan Association et al. v. Continental Life insurance Company et al. Error to the District Court of Fayette County. M. J. Williams and M. Millard for plaintiffs; Maynard & Hadley and S. N. Yeoman for defendants.

1167. Continental Life Insurance Co. v. Benjamin Kaup. Error to the District Court of Seneca County. Sayler & Sayler for plaintiff; George E. Seney for defendant.

1168. Samuel T. Billingsley v. The State of Ohio. Error to the Court of Common Pleas of Franklin County. E. L. Taylor, D. K. Watson and H. J. Booth for plaintiff; George K. Nash for the State.

1169. Carrie E. Conkling et al. v. Francis L. Reahard. Error to the District Court of Clinton County. Slone & Walker for plaintiffs; A. C. Diball and Mills & Van Pelt for defendant.

The days of mourning are upon this Nation to-day, brought about by the assassin's hand, which has laid low a Chief Magistrate, whose inany noble qualities had endeared him to all hearts, both at home and abroad. After suffering untold pain and agony in bravely struggling to overcome the effects of the pistol wound received on the morning of July 2d last, President James A. Garfield was called from earth away at 10:35 on Monday evening last. He died at Long Branch, surrounded by his wife, the celebrated physicians and his few faithful friends who had proved so devoted in his last days. The ways of Providence are wrapped in nystery. In His wisdom He has seen fit to visit us with great affliction and bring distress upon us; yet we bow in humble submission to His omnipotent will, and more fervently ask His aid and guidance in the future.

President Arthur deserves, and we doubt not he will receive the confidence, support and encouragement of every loyal citizen of the country in his trying position. The President's assassin, Guiteau, should be speedily dealt with in strict accordance with the law. All thoughts of mob violence should be banished from every mind, for the law is fully adequate to dispose of his case, although it can never bring back the dead or restore the peace and happiness which was our former lot.

WE unconditionally surrender the columns of the LAW JOURNAL this week to the very interesting address delivered by Judge Matthews, before the New York State Bar Association, at Albany, on Tuesday, the 20th inst. We could not find more valuable or instructive matter for our paper, or anything more welcome to our readers.

When Stanley Matthews' name was proposed to fill the vacancy in the roster of Supreme Judges, there was more or less opposition to his

course.

confirmation by political and partisan men and newspapers. This was to be expected as of The opposition, however, which exuded from IRVINGE BROWNE, of the ALBANY LAW JOURNAL, was made up of the most villainous imbecility that ever entered into a contest of the kind. This self-adored Fadladeen proclaimed from the pinnacle of his superb vanity, that "Matthews did not have the proper Judicial mind which a Judge of the Supreme Court must possess," and that "being from Ohio he was not fit for a Judge."

This invitation to Judge Matthews is a mark of the high esteem in which he is justly held by the New York Bar, and such a rebuke to Browne as would overwhelm any man less hedged about with a panoply of self-conceit.

THE professional card of Messrs. Banning & Davidson, of Cincinnati, will be found in our advertising columns this week, and henceforth. These gentlemen have reduced the practice of the law to a science. Their business is so extensive as to require the presence and labor of eight trained lawyers as assistants, each of whom has his own special department at the office and at the Courts. Whether or not this thorough and systematic dispo ition of business has given them their wide and enviable reputation as lawyers, we do not know; but the fact is that their practice is extensive and still rapidly increasing. Personally, Messrs. Banning, & Davidson are as pleasant and agreeable as they are successful professionally.

CONCEALED WEAPONS.

In an article on the prevalence of crime in the United States, the Toronto Globe pays a sensible tribute to the manly American habit of carrying revolvers, as follows:

"Some of the American papers are crying out for a tax on revolvers. They propose to tax them, as they have done their shipping, out of existence. This would be to make the revolver a luxury for the rich, and would, we fancy, make it more, rather than less popular in certain circles on that account. There is a more excellent way. Let them settle it as a principle that the carrying of weapons of any kind is a relic of barbarism/ and un, worthy of citizens of a free and enlightened State. Let the carrying of a deadly weapon be made a crime against the State-accounted prima facie evidence of some evil intent, and punished by fine or imprisonment. Thus alone can the brand of criminality be put upon the practice, and the presence of a revolver in the pocket made to appear, in the eyes of Young America, in its true light as a sign of cowardice rather than of the manly, fearless courage of conscious rectitude."

THE Supreme Court Room of the State of Ohio, has been thoroughly cleaned, re-painted, and re-carpeted, and looks bright and inviting for the Court, which is expected to convene next week.