only," eto. "The liability of this company is limited in all cases to," etc. "This company shall not be liable unless," etc. Doubtless the policy should receive a reasonable construction as a whole, but the court is not justified in disregarding any condition of liability stated; still less may it disregard these conditions when they all agree in excluding the defendant's liability in the case at bar.

Plaintiff relies upon the "Sue and Labor Clause," so called. In Cunard Steamship Co. v. Marten (1903) 2 K. B. 511, the Court of Appeals held that the ordinary "Sue and Labor Clause" was inapplicable to a contract of liability insurance, and so, being a meaningless survival, might be neglected. If, on the other hand, the clause be given its full meaning as an independent provision, it is concerned with the defense and safeguard of vessels other than the tug, and so does not aid the plaintiff.

The cases which have construed policies of this sort are few, and none of them are precisely in point. In Xenos v. Fox, L. R. 4 C. P. 665, and in Cornell v. Travelers' Ins. Co., 175 N. Y. 239, 67 N. E. 578, the court held that the expenses of a successful defense could not be recovered under a liability insurance policy. In those cases the policies were not precisely like that here in question, but the reasoning of the courts was largely applicable. In Egbert v. St. Paul Ins. Co. (D. C.) 92 Fed. 517, the costs recovered were those of a suit in which the iiability of the insured had been established.

There must be judgment for the defendant.

THE MARY P. MOSQUITO (two cases).

(District Court, E. D. Virginia. May 18, 1906.)

COLLISION-STEAMER AND SCHOONER-MUTUAL FAULT.

A schooner and steamer both held in fault for a collision between them at night in Chesapeake Bay, the schooner for changing her course so as to cross that of the steamer, and the latter for failing to sooner see the schooner, and for afterward continuing her speed of 15 miles an hour with only a slight change of course, when there was at least risk of collision in so doing.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Collision, § 52.]

In Adiniralty. Cross-libels for collision.

On the evening of 18th of March, 1906, about 7:30 o'clock, the steamer Norfolk, a vessel of 1.248 gross tons burden, length 246 feet, beam 46 feet, one of the line of steamers plying between the cities of Norfolk, Va., and Washington, D. C.. while en route to Washington, at a point in Chesapeake Bay between Old Point and Thimble Light, and about midway between said places, collided with the schooner Mary P. Mosquito, a two-masted fishing vessel of 45 tons burden, about 85 feet long, 22 feet 7 inches beam; that the steamer was proceeding outward at the time on a course about east three-quarters north, and the schooner inward on a course west half south. The tide was ebb, wind blowing about 10 miles an hour from the southeast. the sea smooth and otherwise unobstructed, save by the vessels in collision. The steamer's contention is, briefly, that while proceeding outward she first observed the green light of the schooner about a quarter of a mile away, from a quarter to half a point on the starboard bow, when she sounded two whistles, starboarded her wheel, with a view of giving greater fairway, and,

without slackening her speed, proceeded on her journey at her full speed of 15 miles an hour; that suddenly the schooner changed her course by shutting in her green and showing her red light, apparently proceeding across the steamer's course, when danger signals were sounded, the jingle rung, and the engines reversed, and everything done to avoid a collision, but which proved ineffective. and the vessels collided; the schooner's bowsprit cutting into the steamer's starboard bow, and extending considerably into and across the ship, causing serious injury. The schooner's contention, on the other hand, is that, while proceeding on her course, she observed the steamer about a mile off, slightly on her port bow, showing both green and red lights; that the vessels thus approached each other until within a short distance apart, when the steamer sounded two blasts of her whistle, and suddenly changed her course to port. apparently with the intention of attempting to cross the schooner's bow, and, upon seeing this maneuver on the part of the steamer, orders were given to hard starboard the helm, with a view of swinging to port, and avoiding the collision, but which proved too late, and the vessels came together, the bowsprit of the schooner catching in the joiner work of the steamer on the latter's starboard side, breaking the schooner's jibboom, carrying away her topmast and head gear, and damaging her stem. Each vessel charges negligence on the part of the other-the steamer that the schooner failed to keep her course and speed, and changed her course suddenly; that she attempted to cross the steamer's bow; her failure to have a competent master. crew, and lookout; and, on the part of the schooner, that the steamer was also without a proper lookout; that she did not keep out of the way of the schooner, or allow sufficient space for safe navigation: that she failed to slacken her speed and stop or reverse; that she improperly changed her course; that she attempted to cross ahead of the schooner, and failed timely to observe the schooner approaching. Considerable evidence was taken, and it is largely upon a correct determination of the facts that the case turns.

J. W. Willcox, for Norfolk & Washington Steamboat Company. H. H. Little, for The Mary P. Mosquito.

WADDILL, District Judge (after stating the facts as above). There is considerable conflict in the evidence, and as to some of which it is difficult to reconcile the apparent contradictions; and, without attempting to do so as to many of the details, the conclusion reached by the court upon what seems to it to be the essential and material questions is as follows:

First. That the schooner was negligent in that she failed to maintain her course and speed up to the time of the collision, which largely brought about the same. It is true she insists that the only change in her course was made when the collision was inevitable, and that that was to port, and not to starboard, with a view of lightening the blow of the collision as far as possible. But, taking all the facts and circumstances into account, including the injury to the steamer, and particularly that of witnesses not connected with the navigation of either vessel, the court finds that the version of the steamer as to the movements of the schooner at and about the time of the collision is sustained by the evidence, and that the vessels were proceeding green to green, as claimed by the steamer, until the schooner suddenly changed her course to starboard, and across the steamer's bow.

Second. That while it is true the schooner was negligent in changing her course as indicated, it by no means follows that the steamer was free from fault in bringing about this collision. The failure of her navigators earlier to see and observe the schooner's lights cannot

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be overlooked, nor can she be said to be free from fault in her navigation after they observed one of the schooner's lights. What was done might have proven harmless had not the schooner changed her course; but it was clearly negligence on the part of the steamer, on observing the green light a quarter to half a point on her starboard bow, and only a quarter of a mile away, to have proceeded at the speed of 15 miles an hour, only slightly varying her course to port. It was her duty to avoid the risk of collision, as well as the collision, and this she utterly failed to do, even after she saw the schooner.

Third. The schooner insists that the steamer was negligent in failing to have a competent lookout properly stationed at the time of the collision. The court is not prepared to say in this case that the location of the steamer's lookout, namely, on the forward part of the hurricane deck, immediately in front of the pilot house, instead of on the bow of the ship on the main deck, was not proper; but certain it is it does not appear to have entered materially into this collision, as it is quite apparent from the size of the two vessels, the character of the night, and the formation of the steamer's deck, that observation could have been made as well from the place the lookout was stationed as from the bow of the ship, which is usually and may be said to be the preferable place for the lookout to be stationed.

Fourth. Counsel for the schooner also insists that whatever error was committed by the schooner respecting her change of course was error in extremis, caused by the negligent navigation of the steamer, and for which the schooner should not be held liable. In this view the court does not concur. It is true that, had the collision occurred as claimed by the schooner, namely, that she was showing her red instead of her green light to the steamer, and that the steamer suddenly cut across her bows, and the schooner then changed her course to port to lighten the blow of the collision, the doctrine of error in extremis might apply. But this is not the way the collision occurred. The vessels approached each other green to green, and the steamer having ported, with a view of giving wider passageway, the sailing vessel neither continued on her course nor went to port, but, on the contrary, starboarded, thereby making a collision almost inevitable. The fact that the steamer starboarded shortly before the collision, and that the schooner did not at that time change her course to port, as claimed by her, is sustained by the evidence overwhelmingly. Indeed, there is much in her own evidence tending to show that the maneuver was to starboard, instead of to port.

It follows from what has been said that the collision was brought about by the combined negligence of the two vessels, and that, as a consequence, the damages arising therefrom, including the costs of court, should be borne equally by them.

ALLEN et al. v. SHERIDAN.

(Circuit Court, E. D. Missouri, E. D. June 1, 1906.)

No. 5,321.

INTERNAL REVENUE-ENFORCEMENT OF TAX-REPLEVIN OF PROPERTY SOLD— REMEDY IN FEDERAL COURT-EXCLUSIVENESS.

Property seized and sold by a collector, in the enforcement of the internal revenue laws, cannot be replevied from the purchasers by the former owner under process from a state court, and such a proceeding will not be tolerated by a federal court; the remedy for a wrongful seizure given by the statute being exclusive.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Internal Revenue, § 78.]

On Petition for an Order on Defendants to Deliver Certain Personal Property to Plaintiffs.

D. P. Dyer, U. S. Atty., E. P. Johnson, Asst. U. S. Atty., for plaintiff.

Blodgett & Davis, for defendant.

POLLOCK, District Judge. Plaintiff Allen is collector of internal revenue for the First collection district of Missouri, and the other plaintiffs were purchasers at a sale of certain personal property, levied upon by a deputy collector, under a warrant of distress issued upon an assessment of taxes against one J. C. Knott, in the sum of $900 for taxes due the United States by him as a manufacturer of oleomargarine. The defendant immediately after said sale, as constable, under color of a writ of replevin issued by William J. Hanley, Esq., a justice of the peace, seized said property and withheld the same from the possession of the plaintiffs, to whom it was sold by said deputy, and the plaintiffs joined in a petition setting forth said facts and stating that said replevin was not authorized by law, was executed in violation of the laws of the United States, for the purpose of hindering, delaying, and defrauding the United States out of the aforesaid taxes. Defendant filed a general demurrer to the petition, which the court overruled.

Heretofore there was presented to this court a bill for injunction to restrain the sale made by the collector in the Knott case. Under the positive mandate of Congress an injunctive order to restrain the collector from making the sale was, of course, denied. It is perhaps well, and this court is gratified at the thought, that the parties bringing this replevin action, the defendants here, and those advising the bringing of the same, have fallen into such kindly hands as the law officer of this court, Col. Dyer, or in all probability we would be confronted this morning with a very different proceeding than that now presented. The mistake made by counsel representing the defendants in the present case is as to the nature of the title passed by the government at sales made in the collection of the revenues of the country. It is contended that defendants have been deprived of their property without due process of law. Not so. The revenues of a country are its life blood. The power to levy and collect revenue is full and ample under the acts of Congress made in pursuance of constitutional provi

sions, and such acts are the supreme law of the land, binding upon all parties, at all times. Not only will sales of property by the collector not be enjoined, but such property seized in the hands of the officer is not the subject of replevin. The sale cuts off all prior rights, and the title passed at such sale is an underlying title. Not only are the collection laws drastic, but, that they might be made effective, severe penal laws exist, and are strenuously enforced against those who do not pay the revenues assessed, and as well against those who interfere to prevent sales by the collector in the enforcement of the revenue laws. It would defeat the end of such laws, and put a stop to government itself, could such proceedings as have been attempted by defendants in this matter be tolerated, or should the purchaser at such a sale be prevented from bidding the full and fair value of the property offered, from the fact that he might be called upon to defend the title passed by the government at a sale made. Such is not the law. The defendants here have their remedy under the law, but it is an exclusive remedy. Necessity has given rise to the present scheme for the levy and collection of the revenues. All of the states at all times have not been as friendly to the enforcement of the revenue laws of this country as is this state at the present time, and drastic laws firmly enforced have been a necessity of government. The proceedings attempted by defendants to replevin the property sold by the collector in this case, in the enforcement of the revenue laws, cannot be tolerated.

The demurrers will be overruled, and the orders asked for the return of the property will be granted.

ELLIOTT v. GILMORE et al.

(Circuit Court, E. D. Pennsylvania. May 17, 1906.)

No. 60.

TRIAL AMENDMENT OF VERDICT BY COURT-ADDITION OF INTEREST.

A verdict may be amended by the court by the addition of interest where it is conclusively shown by the affidavit of all of the jurors that it was their intention that interest should be computed on the amount awarded from a prior date.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 799.] On Motion to Amend Verdict.

Keator & Johnson, for plaintiff.

Albert B. Weimer and John G. Johnson, for defendants.

HOLLAND, District Judge. It is very evident that the jury in this case intended to render a verdict in favor of the plaintiff for $2,500, with interest from the 1st day of July, 1902, to the date of the rendition of the verdict, which was April 20, 1906, so that the verdict should have been for $3,070.40 instead of $2,500. The verdict was rendered late in the day, and the jury separated. The following day, however, all the jurors signed an affidavit that it was their intention that the verdict should be for $2,500, with interest thereon from July 1, 1902. Under the circumstances we are of the opinion.