Blossburg and Corning Railroad Company v. Tioga Railroad Company.

has not been examined ;) and, as the defendants have committed the first substantial fault in pleading, the plaintiffs are now entitled to judgment upon the defendant's demurrer.

This conclusion renders it unnecessary to consider the form or substance of the surrejoinder, which was a mere reiteration of the allegations of the replication; but, as the new allegations of the rejoinder were no answer to the replication, and as the rejoinder concluded with a verification, I see no objection to the course pursued by the plaintiffs. If the rejoinder had concluded to the country, the plaintiffs might at once have gone to trial upon the issue already joined, and they had a right to reiterate the allegations of the replication and conclude to the country, in order to go to trial upon the issues of fact, without the delay to be occasioned by a demurrer. Even if I am wrong in this, no objection to the course taken can be made available on this demurrer, as the first fault in pleading, in matter of substance, is clearly on the part of the defendants.

As these questions of special pleading involve only the costs upon the demurrer, I have not thought it necessary to enter upon any critical examination of authorities, or to review my early studies of elementary books. If we may judge from the experience of the last forty years, the practice of special pleading will, at no distant day, under the progress of modern innovation, be classed among "the lost arts;" and, under the present pressure of the business in our Courts, a Judge may be excused, if he prefers to dispose of a mere question of costs almost wholly upon his recollection of the rules of special pleading, without searching for authorities, or undertaking the labor of a critical examination of the cases, especially when none were cited by the counsel upon the argument.

The plaintiffs are entitled to judgment upon the demurrer, with leave to the defendants to amend their plea or rejoinder within twenty days, on payment of costs.

The Scranton and The William F. Burden.

THE SCRANTON AND THE WILLIAM F. Burden.

A steam-tug, with a heavy tow on her port side, was coming up along the Brooklyn shore, in an eddy, the tide being half ebb and strong in the river. A steamboat was coming down the river, and, when near the tug, their combined speed being ten or eleven miles an hour, starboarded her helm and sheered across the track of the tug, and then blew two whistles, and the tug ported her helm and slowed, and a collision ensued between the tow and the steamboat: Held, in a suit brought by the tow against the tug and the steamboat, that the latter was in fault, in these respects: (1) The danger of a collision was incurred before the two whistles were blown; (2) The vessels were too near to justify a call on the tug to starboard her helm; (3) The steamboat had no right, in the position of the two vessels, to do otherwise than port her helm, or slow or stop till the tug had passed her.

Held, also, that any error in the movement of the tug at the time was not a fault, as the steamboat was responsible for the perilous condition in which the tug was placed.

(Before NELSON, J., Southern District of New York, June 6th, 1867.)

THIS was a libel in rem, filed in the District Court, by the owners of the canal boat McCord and her cargo, against the steamboat Scranton and the steam propeller William F. Burden to recover damages for a collision which occurred about eleven o'clock A. M., on the 9th of December, 1863, between the canal boat and the Scranton, in the East river, just below the Fulton ferry, on the Brooklyn side. The canal boat, heavily loaded with grain, was lashed to the port side of the propeller Burden, at the Atlantic docks, to be carried to pier No. 44, up the river, on the New York side. The Burden left the docks with her tow, about eleven o'clock A. M., and passed up, hugging the Brooklyn shore, in the eddy, or reflex tide, the tide in the river at that time being about half ebb and strong. The Scranton had started from Corlaers Hook, on the New York side, with two empty coal boats lashed to each side, and was coming down the river, and intending to cross over to the Fulton ferry, to take up another boat lying

The Scranton and The William F. Burden.

below the lower slip of the ferry. It was near this point, somewhat lower down, that the collision took place, the Scranton striking, nearly end on, somewhat a slanting blow, on the port side of the canal boat, while lashed to the Burden, breaking it in, and doing considerable damage. The District Court condemned the Scranton and the Burden, and the claimants of both of them appealed to this Court.

Cornelius Van Santvoord, for the libellants.

Freeman J. Fithian, for the Scranton.

Erastus C. Benedict, for the Burden.

NELSON, J. It is admitted by the captain of the Scranton, that he did not see the Burden till his boat was opposite the coal dock of Marston & Powers, which is the first dock above the Fulton ferry slips, and that the Burden was then about as far below the ferry slips as the Scranton was above them. The two vessels were, of course, near each other, and approaching at a combined speed of about ten or eleven miles an hourthe Scranton seven miles, and the Burden between three and four. While the two vessels were in this position and relation to each other, the Scranton made a movement to go in below. the lower slip of the Fulton ferry, to take up the boat lying there, by fastening a line to the boat and backing, so as to tow her out into the river. As is apparent, in order to accomplish this movement, it became necessary for her to cross the track of the Burden with her tow, the Burden being but a few hundred yards below, and in a stage of the water in the river, the tide being half ebb, that could not fail to endanger an immediate collision. The captain of the Scranton, as if aware that this movement was inexcusable under the circumstances, seeks to avoid the error, and, at the same time, turn it against the Burden, by setting up that he gave notice to the latter, by blowing two whistles, that he intended to pass to the left.

One answer to this is, that the Scranton starboarded her helm and sheered in towards the Brooklyn side, across the

vol. v.-26

The Scranton and The William F. Burden.

track of the Burden, before she blew her whistles. This is stated in the answer and testified to by Morris, the wheelsman, with whom the captain was at the time. The danger of a collision was incurred by this movement, before the notice was given.

Another answer is, that the boats had approached each other too near to justify a call on the Burden to make the manoeuvre, by starboarding her helm, to pass on the left. She had to come out of the eddy into a head tide, with a heavy tow on her port side, which required time and exposed her to danger, from the near proximity of the Scranton.

A third answer is, that, in the position of the two vessels, the Scranton had no right to insist upon a departure from the settled rule of navigation, when two vessels are meeting in opposite directions, that each shall port her helm and pass to the right. In the present case, it was the duty of the Scranton to have slowed or stopped till the Burden had passed her, or to have passed under her stern, instead of across her bow, in order to get at the boat she was after. I think the better opinion is, also, that the Scranton was not in shore, but considerably out in the river, when she undertook, by starboarding her helm, to cross the track of the Burden; that she was, under the circumstances, bound to keep out and pass on the right; and that it was gross error in navigation to make the movement which she admits was made. The weight of the proofs is, that the captain of the Burden did not hear the two whistles; and, if he had heard them, no time was given for the answer, as the change of course was taken by the Scranton before the whistles were blown. I think the Burden was justified, under the circumstances, in keeping her course, and that she adopted the only movement practicable for her at the time, to avoid the collision, namely, to port her helm and slow. Even if she erred, in the impending danger, it is not to be attributed as a fault, as the Scranton was responsible for the critical and perilous condition in which she was placed.

The decree below is affirmed as to the Scranton, and reversed as to the Burden.

United States v. One Still, &c.

THE UNITED STATES VS. ONE STILL, &c.

Under the 48th section of the Internal Revenue Act of June 30th, 1864, (13 U. S. Stat. at Large, 240,) as amended by the 9th section of the Act of July 13th, 1866, (14 Id., 111,) where personal property is seized, because it is found in the place or building, or within the yard or enclosure, where the articles or raw materials previously mentioned in that section are found, the fraudulent intent or purpose of the person in the possession, or having the control, of such personal property, does not constitute an element of the ground of forfeiture.

Where personal property is found in the condition specified in such 48th section, the onus is on the claimant of it, to make out that its situation was consistent with his entire innocence of complicity with the offences for which such articles or raw materials were seized.

Such 48th section embraces the article of distilled spirits.

Where the evidence on a question is all one way, the Court is justified in not submitting the question as one of fact to the jury.

(Before NELSON and BENEDICT, JJ., Eastern District of New York, June 10th, 1867.)

THIS was an information against certain personal property seized for a violation of the Internal Revenue laws. The property consisted of two stills and their appurtenances and some whiskey, and also of a dwelling-house and a lager beer saloon and a brewery and its appurtenances, the whole being enclosed in one enclosure by a high board fence. The stills and their appurtenances, and the whiskey were condemned by default. On a trial as to the brewery and its appurtenances, a verdict was rendered for the Government, and the claimant now moved for a new trial.

Benjamin F. Tracy, (District Attorney,) for the United States.

William H. Hollis, for the claimant.

NELSON, J. The seizure, in this case, was made during the night of the 13th of January, 1867. Barrels of whiskey were