Clarke

This appeal is from an order denying defendant’s motion for a new trial, based upon alleged errors of law occurring upon the trial, and upon the further ground that the verdict of the jury was not justified by the evidence.

After the jury was sworn counsel for plaintiff read the pleadings and moved the court to direct the defendant to first introduce evidence in support of his affirmative defense. The court so directed, and the defendant excepted, and assigns this ruling as one of the errors upon which he relies for a reversal of the order.

The plaintiffs are the widow and minor son of C. W. Clarke, deceased, and the complaint alleged that said C. W. Clarke, on the twenty-first day of February, 1881, took out a certain policy of insurance, upon his own life, in the sum of five thousand dollars, payable upon his death “to his heirs, executors, administrators, and assigns”; that on February 13, 1885, said policy being in full force, said C. W. Clarke assigned it to the defend ant by way of mortgage to secure the repayment of the sum of two hundred dollars loaned by defendant to him on that day; that said C. W. Clarke died on August 6, 1895, intestate; that on October 23, 1895, the…