Page:Federal Reporter, 1st Series, Volume 6.djvu/157

 ECNKLE V. OITIZENS' INS. 00. OF PITTSBURGH, PENN. 146 �he commenced business a survey of his distillery had been made, and its true spirit-producing capacity had been esti- mated and determined, and reported in accordance with the provisions of, and regulations under, the internai revenue laws. It f urther appears that for a short period of time the distiller had produeed spirits in excess of the surveyed capac- ity of the distillery; that ail the spirits produeed by him, including the excess, were drawn from the receiving cisterns and placed in the government warehouse, were duly reported and assessed, and that the taxes upon ail of said spirits thus produeed had been paid, and that the commissioner of internai revenue had made an assessment of 70 cents on tho gallon for the spirits produeed in excess of the surveyed capacity, and directed the collection thereof; that the col- lector had placed this upon his list and had issued his dis- traint warrant, under which he had seized the distillery and sold it ; and that some months af ter, and before the fire, the plaintiff had paid the amount of the taxes thus assessed, ■with interest, penalty, and costs, and had applied to the gov- ernment to have them refunded. If this tax was legally assessed, it had undoubtedly, by the provisions of the law, and the seizure and levy upon it by the distress warrant, beeome a lien upon the property which the plaintiff should have disclosed under his application; but whether it was legally assessed will be diseussed in connection with the provision of the policy in regard to the change of possession. The policy provided "that if the property be sold or trans- ferred, or any change take place in the title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, it shall avoid the policy." The lan- guage of this provision is "legal process or judicial decree." If this tax had been legally assessed against the property, and the distraint was legally issued, and the property seized by virtne of the distraint, and possession taken thereof, and a sale made under these proceedings, by which the possession was changed, then it would be a change of possession ! hy virtue of legal process which would work a forfeiture of the policy. �v.6,no.2— 10 ��� �