"choking1 in swallowing." It is true the policy should be construed most favorably to the.insured, but the courts cannot undertake to make" a new contract. The plain meaning of the language is that the company is not liable for the injuries which may arise from whatever thing of any kind or character, poisonous or not, which the insured might voluntarily and consciously swallow as food or drink. There is no doubt that the oysters were consciously and voluntarily swallowed by the assured. A large number of cases are cifed, and Pollock v. United States Mutual Accident Association, 102 Pa. 234, 48 Amer ican Reporter 204, is quoted from to the effect that where a certificate declares that the benefits thereunder shall not extend to death caused by the taking of poison, it is not necessary that the poison should be taken intentionally, even though when taken innocently it may be said to have been taken accidentally. In conclusion the court says that it is claimed that while the taking of the oysters was not accidental, the eating of spoiled oysters was accidental because un intentional; that the accident consisted in the state of the thing swallowed. Admitting that this shadowy distinction is sound, it does not take the case out of the exception in the policy; for the spoiled oysters were a "thing" which was "taken," and from which the in jury resulted, which brings the case within the exception. ADMIRALTY. (FEDERAL JURISDICTION OVER ERIE CANAL—CASAL BOATS AS VESSELS— REPAIRS IN • DRY DOCK—UNCONSTITUTIONALLY, OK STATE STATUTE ENFORCING LIEN.) UNITED STATUS SUPREME COURT.
In Perry v. Haines, 24 Supreme Court Re porter 8, Mr. Justice Brown, speaking for the majority of the United States Supreme Court, holds that the- admiralty jurisdiction of the Federal courts extends to the Erie Canal, and is exclusive in character. The case arose under an attempt to take advan tage of the remedy provided by New York laws, 1897, c. 418 sections 30, 35, for the en forcement in the State courts by proceedings in rent of a lien for repairs made in a dry
dock to a canal boat engaged in navigating the Erie Canal and the Hudson River. The court says that a State may provide for liens • arising from maritime contracts to furnish a vessel with necessaries, such liens to be en forced by proceedings in rent in the United States District Courts. Also for causes of action not cognizable in admiralty, the States may not only grant liens, but may provide remedies for their enforcement. But if the repairs furnished to the canal boat were made under a maritime contract, the denial of ex clusive jurisdiction on the part of the ad miralty courts to enforce the lien was wrong. This conclusion is reached by first holding that the Erie Canal is a navigable water of the United States. The court says that the old test of tidal effect has long been aban doned. Those rivers must be regarded as public navigable rivers in law which are navigable in fact, and they constitute navig able waters of the United States when they form a continuous highway over which inter state or foreign commerce is carried. The only distinction between canals and other navigable waters is that they are rendered navigable by artificial means, and sometimes, not always, are wholly within a particular State. This, however, creates no distinction in principle. The Avon, Brown, Adm. 170 Fed eral Cases, No. 680 is cited as an instance in which admiralty took jurisdiction of a colli sion occuring on a canal in British territory, and a number of English cases of similar im port are referred to. Ex parte Boyer, 109 United States 629, 27 L. Ed. 105, 3 Supreme Court Reporter 434, is another instance in which admiralty' took jurisdiction of a col lision between canal boats occurring in the Illinois and Lake Michigan Canal. In this case it was observed that navigable water used as a highway for commerce between dif ferent States was public water of the United States, even though wholly artificial and wholly within the body of the State. Having secured jurisdiction of the canal, the next question considered by the court is whether canal boats are ships or vessels with in the meaning of the admiralty law. It is pointed out that canal boats of from one
