In re SANDSTROM. 14 F. (2d) 675 tions are concerned, is entitled to citizenship. (District Court, E. D. Virginia. November 2, It appears, however, from records present 1925.) Aliens 65-Alien, who served three years in Coast Guard service, held not entitled to naturalization on affirmative proof that he had not been a resident for five years (Comp. St. $$ 4352, 4360). ed to the court, that he has not continuous- "No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States." The provision of Act June 29, 1906, § 4, subd. 7, as amended by Act May 9, 1918, 88 1-3 (Comp. St. § 4352), authorizing an alien who has served for three years in the Army, Navy, Coast Guard, etc., to petition for naturalization "without proof of the required five years' residence, if * it is shown that such residence cannot be established," and providing that his certificate of honorable discharge "shall be deemed prima facie evidence to satisfy all of the requirements of residence," did not repeal Rev. St. § 2170 (Comp. St. § 4360), requiring five years' residence, and the prima facie evidence of the certificate may be overcome, and the right to naturalization defeated, by proof that the alien has not resided in the for admission. It does not say that service United States for five years. Petition for Naturalization. In the matter of the petition of Emil Sandstrom for naturalization. Dismissed. GRONER, District Judge (orally). In the matter of petition for naturalization, No. 2411, petitioner, Sandstrom, who is now and for some time past has been an enlisted man in the United States Coast Guard, stationed at Norfolk, Va., applies for naturalization under subdivision 7, section 4, of the Act of June 29, 1906, as amended by the Act of May 9, 1918 (Comp. St. § 4352). The amendment provides a special procedure for the admission of an alien who has been honorably discharged from the United States Coast Guard. The subdivision referred to, after providing that the alien must make the regular declaration of intention, provides as follows: "The honorable discharge certificate, signed by a duly authorized officer, shall be deemed prima facie evi I am clearly of opinion that the lastnamed statute is not repealed by the amendment of 1918. The last-mentioned statute makes an honorable discharge from the Coast Guard service "prima facie" evidence of all the conditions which the law requires in the Coast Guard and an honorable discharge therefrom shall in itself entitle an alien to admission as a citizen; and, if the fact otherwise appears by competent evidence that those conditions which are prerequisite to admission do not obtain, it necessarily follows that the prima facie case made by the certificate is overcome, and the case must be determined upon the facts as they really are. Since the petition may only be granted when it appears that the petitioner has resided five years prior to its filing in the United States, and since it appears in this case that petitioner has not so resided five years continuously, the petition must be dismissed, with leave to petitioner to renew the same at any time after June 1, 1926. In re DE BOCK. dence to satisfy all of the requirements of (District Court, N. D. California, S. D. May 9, residence within the United States and with- Applicant has complied in all respects with these provisions of the law; that is to say, he has shown enlistment in the Coast Guard and an honorable discharge therefrom, as well as a re-enlistment not yet terminated. He has been duly identified by the two witnesses required by the statute, and, so far as character and personal qualifica 1925.) Nos. 1263, 1264. 1. Bankruptcy 421 (1)—Judgment in unlawful detainer action to recover property purchased on execution sale under judgment for alienation of affections is dischargeable in bankruptcy (Bankruptcy Act, § 17 [Comp. St. § 9601]). Though judgment in action for alienation of affections, in whatever form, is nondischargeable under Bankruptcy Act, § 17 (Comp. St. § 9601), judgment in unlawful detainer action to recover property purchased on execution sale under alienation judgment is dischargeable; that plaintiff in alienation action became purchaser at execution sale being immaterial. 2. Bankruptcy 315(1). In absence of stay or supersedeas, appeal from judgment against bankrupt in unlawful detainer action does not render judgment nonprovable in bankruptcy. In Bankruptcy. In the matter of Clara E. De Bock, bankrupt. On motions to dismiss application for discharge. Motions denied. Thomas B. Leeper, of Sacramento, for objecting creditor. Hughes, Bradford, Cross & Prior, of Sacramento, for bankrupt. cannot properly be said to assert a claim bas- Hence, without passing on the question whether or not the failure of creditors to present claims deprives a court of bankruptcy of jurisdiction to grant a discharge, the motions will be denied, and it is so ordered. KERRIGAN, District Judge. These matters rise out of an action for alienation of affections, in which Catherine M. Johnston, here an objecting creditor, obtained a judgment for $5,000 against the present bankrupts. Said Catherine M. Johnston also is purchaser of certain real property which was sold to her on execution sale to satisfy the judgment thus obtained. She also is holder of an unsatisfied judgment against the bankrupts, rendered in an action brought by her for the unlawful detainer of said property after its purchase by her. From the second judgment bankrupts have prosecuted an appeal to the Supreme Court of California, and (District Court, S. D. Florida. September 16, said appeal is now pending. 244 P. 330. Applications for discharges in bankruptcy have been duly made to this court, and the statutory period for proof of claims has elapsed. Various debts were listed in the schedules filed, but a single claim alone has been presented to the referee in each case; one based on the judgment in unlawful detainer. The objecting creditor now asserts that there is no jurisdiction to grant a discharge, and moves that the proceedings be dismissed, alleging that said claim is nondischargeable; and, if dischargeable, nevertheless nonprovable. [1] The first objection is untenable, because the judgment in question did not, as has been urged, arise out of an action "for willful and malicious injuries to the person or property of another." Bankruptcy Act, § 17 (Comp. St. § 9601). The original alienation judgment was, it is true, based on such an injury; and in whatever form now existing, would be held to be nondischargeable. 7 C. J. 402; In re Colaluca (D. C. Mass.) 133 F. 255, 13 Am. Bankr. Rep. 292; Blackstock v. Blackstock (C. C. A. 8th Cir.) 265 F. 249, 45 Am. Bankr. Rep. 192. But a purchaser on execution sale, illegally restrained by the judgment debtor from the use of property there purchased, In re SOUTHERN FRUIT & PRODUCE Bankruptcy 1926.) No. 3092. 89(1)-Answer to Involuntary petition held insufficient to raise issue as to alleged acts of bankruptcy (equity rule 30). In view of equity rule 30 as to contents of answer, an involuntary petition alleging that the debtor, within four months and while insolvent, executed a chattel mortgage to a creditor to secure a pre-existing indebtedness, with intent to hinder and defraud creditors and to prefer the mortgagee, held not met by an answer containing only a general denial and deecution of the mortgage and not denying innial of intent to defraud, while admitting exsolvency or intent to prefer. In Bankruptcy. In the matter of the Southern Fruit & Produce Company, alleged bankrupt. On motion of petitioning creditors for adjudication on petition and answer. Granted. Harry Katz, of Jacksonville, Fla., for bankrupt. David J. Lewis, of Jacksonville, Fla., for petitioners. CALL, District Judge. This cause comes on for a hearing upon the motion of the petitioning creditors for the adjudication of the bankrupt on the petition and the bankrupt's answer. 14 F. (2d) 677 There are three acts of bankruptcy charged. The first is that the bankrupt, with intent to hinder, delay, and defraud its creditors, executed and delivered to one of its creditors, to secure a pre-existing debt, a chattel mortgage covering its stock of goods and all other property, real, personal, and mixed, owned by it; that said mortgage contained the provision authorizing the said bankrupt to nial of insolvency; no denial of intent to prefer, as alleged in the last two acts of bankruptcy alleged. I can reach no other conclusion than that the motion for an adjudication must be granted. It will be so ordered. sell and dispose of any of its goods and chat- In re TROY PURE FOOD PRODUCTS CO., tels in the ordinary course of its business, the Inc. 14, 1926.) 1. Intoxicating liquors 256-Searches and seizures 5-Motion in court where no suit Is pending is not proper procedure to obtain return of property unlawfully seized, but remedy is by mandamus to compel institution of libel proceedings (Comp. St. § 101384 et seq.). only restriction being against bulk sales; that (District Court, N. D. New York. September no provision was made for accounting to the mortgagee for any such sales made. The second act charged is that the bankrupt, within four months before the filing of the petition and while insolvent, with intent to prefer the creditor, did execute and deliver to it the mortgage before described. The third act charged is that, within four months before filing the petition, while insolvent, and with intent to prefer said creditor, the bankrupt paid to said creditor $250 on indebtedness owed to it. The bankrupt answered, and alleged in the first paragraph that it did not commit either of the acts of bankruptcy set forth in the petition. The second admits the making of the mortgage mentioned in the first and second acts of bankruptcy set forth in the petition, but that said mortgage was not given with the intent to hinder, delay, or defraud its creditors. It then prays that the petition be dismissed. The question raised by the motion is: Are the allegations in the answer sufficient to prevent an adjudication, taking the allegations in the answer well pleaded to be true? Bankruptcy proceedings are governed by the equity practice and rules. Rule 30, promulgated by the Supreme Court, provided that the answer shall, in short and simple terms, set out the defense to each claim asserted, and avoiding any general denial, but specifically admitting or denying or explaining any facts relied upon by the other party. Applying the rule to the facts of this case, the general denial in the first paragraph of the answer cannot be taken as putting in issue the acts of bankruptcy alleged, remembering that the rule goes further, and ordains that averments other than of value or amount of damages, if not denied, shall be deemed confessed. We thus have the answer of the bankrupt, admitting the making of the mortgage to secure a past-due indebtedness, which mortgage is, under the decisions of the Supreme Court of Florida, void as against existing creditors, but denying the intent to hinder, delay, or defraud the creditors; no de Where property has been unlawfully seized, without a search warrant, for violation of the seq.), and no criminal action is brought, the apNational Prohibition Act (Comp. St. § 101384 et propriate remedy of claimant is not a motion in court for return of the property but by petition for mandamus to compel institution of libel proceedings, in which his rights may be deter mined. 2. Intoxicating liquors 250-Action of prohibition administrator in returning property seized by his agents held not to prevent forfeiture proceedings. Decision of a prohibition administrator' in proceedings for revocation of a permit after seizure of property of the permittee by his agents, that there had been no violation of law, and directing return of the property, is not binding on a court, and does not prevent a libel Whether action of prohibition administrator in returning liquors while court proceeding for their return is pending, is contempt of courtquære. At Law. In the matter of the application of the Troy Pure Food Products Company, Inc., for an order directing return of certain real estate and personal property seized by prohibition agents. Denied. M. William Bray, of Utica, N. Y., Donald P. Gorman, of Syracuse, N. Y., and Roscoe Irwin, of Albany, N. Y., for petitioner. Oliver D. Burden, U. S. Atty., of Syracuse, N. Y. COOPER, District Judge. This is a motion by the Troy Pure Food Products Company for an order directing the federal prohibition administrator to deliver to the said company certain malt liquors, beer manufacturing implements, and other personal property seized by prohibition agents in the brewery occupied by the said company in the city of Troy, N. Y., and also for the return of the said brewery premises. The prohibition agents, on or about June 16, 1926, seized the premises and the personal property therein contained without a search warrant, claiming that the law was to their personal knowledge being violated by the claimant company at that time. On July 1, 1926, the said company made this motion for the return of the real and personal property, asserting that it was the holder of a permit for the manufacture of cereal beverages, which was in effect and unrevoked, and that it had not violated the law, and that the seizure was unlawful in all respects. The United States attorney opposed the motion and presented opposing affidavits by the prohibition agents who made the seizure, showing, if true, that the said company was caught in the very act of violating the law and the regulations thereunder. The United States attorney also raised the question that a motion was not the appropriate procedure to obtain the relief sought and that the said company was not properly in court. He also contended that the court should in these proceedings order the destruction of the liquids and other personal property seized. Decision was reserved and the matter was held open to enable the respective counsel to submit briefs as to whether the motion was an appropriate proceeding to obtain the relief sought, the court intimating that, if it decided that the proceeding was appropriate, in view of such a conflict of fact as was disclosed by the affidavits, it would need to take proof to determine whether or not the law was being violated and the seizure was legal. The court also stated that the detention of the real property for any considerable time was clearly illegal. Counsel for the Troy Pure Food Products Company submitted no brief on the law, and after the lapse of some weeks the court further requested the counsel for claimant company to submit its brief, but none was submitted until about September 10th, when the counsel for claimant company submitted a memorandum containing the following: "The petitioner submits for the information of the court that the revocation proceedings taken under section 9 of the National Prohibition Act were decided in favor of the petitioner, and order made by the federal prohibition administrator of this district on September 7, 1926, ordering a dismissal of the revocation proceedings and the citation issued thereon, and order was also made by the administrator for the removal of the agents of said administrator from the permit premises of the petitioner." The final statement in this brief or memorandum reads as follows: "The federal prohibition administrator determined the revocation proceedings in favor of the permittee, holding in effect that there was no violation of the National Prohibition Law or the regulation on the part of said permittee, the petitioner therein, and it follows that there is no proper cause for a libel proceeding, or any other proceeding against the petitioner, his agents, or servants herein." It thus appears that, while the matter was thus pending in court, revocation proceedings were begun and carried on to completion by the federal prohibition administrator and his counsel, who is not the United States attorney, said prohibition administrator being a branch of the administrative or executive branch of the government, and that following that decision the prohibition administrator, apparently without notice to the United States attorney and certainly without application to the court, promptly withdrew his agents from the custody of the personal property and the brewery premises, and surrendered and returned the same to the said claimant, the Troy Pure Food Products Company. In effect, therefore, the prohibition administration has ousted the court from jurisdiction over the matter pending before it, and has given the Troy Pure Food Products Company the very relief which it sought from the court. It is not altogether clear but that such conduct borders on contempt of court. While it is exclusively the function of the prohibition administrator or his subordinates to grant and revoke in the first instance permits to manufacture cereal beverages, it would not seem to be an appropriate exercise of his functions, without notice or knowledge of the court, to change the status of the real and personal property thus seized, after the jurisdiction of the court had been invoked to determine the legality of the seizure, and, if illegal, to order the return of the property seized; the same being constructively in the custody of the court. [1] Counsel for the claimant brewery urges in his memorandum of September 10th that libel is the appropriate proceeding for determining the legality of seizures made without search warrant and for ordering the destruction thereof. With this the court is inclined to agree, and where, as here, the United States attorney unduly delays the commencement of the libel proceeding, the appropriate remedy for the one claiming that his property was unlawfully seized without search warrant for 14 F. (2d) 679 violation of the Prohibition Law, and where there is apparently no criminal action pending, and even if, perhaps, there be search warrant, is for the claimant to seek mandamus of the court, compelling the United States. attorney to institute a libel proceeding, rather than by a mere motion as in the case at bar. See United States ex rel. Soeder v. Crossen (D. C.) 264 F. 459. [2, 3] The United States attorney should not have contented himself with opposing such motion after it was made, but should, of his own motion, have brought libel proceedings, or have consented to the granting of the order sought. The contention by claimant company that, because the prohibition administrator, an executive officer, had decided not to revoke the permit, "no libel proceeding, or any other proceeding," would lie, is without merit. Libel proceedings against the seized property and criminal proceedings against the claimant, and other persons arrested, charged with violation of the law, may still be brought and prosecuted. There would probably be difficulty in establishing the identity of the liquids, which might be found after a successful outcome of the libel proceedings, or even seized by the marshal at the commencement of such proceedings, with those which were seized on June 16th and surrendered by the prohibition authorities after the determination of the proceedings to revoke the permit, but it is probable that the other personal property used in the manufacture of the beverage could still be identified and be subject to the order of the court. Of course, the criminal proceedings are not affected in any way. The action of the prohibition administrator, with his limited power of subpoena, in finding that cause for the revocation of the permit had not been established by such evidence, as he could procure in the proceedings before him or his subordinates, is not binding or controlling in a libel proceeding or criminal proceeding in the court. Not only is the action or decision in no wise controlling, but it is not even competent evidence in such proceedings, at least not competent in any aspect, except possibly as an admission, or impeaching evidence of the prohibition administrator's subordinate, who is called the hearing judge, or of the administrator himself, if he approved the findings of the hearing judge, if either were called as witnesses by the government; but the possibility of such persons being called as witnesses is so slight that it may be disregarded. In view of the fact that, by the action of the federal prohibition administrator the res UNITED STATES ex rel. JOHANSON v. PHELPS, Immigration Inspector, and three other cases. (District Court, D. Vermont. August 16, 1926.) 1. Aliens 39-Execution order and rule of State Department requiring alien visitors to present passports visaed by consul held authorized and effective (Comp. St. § 7628hh). Executive order of the President of January 12, 1925, requiring all aliens, being nonimmigrants, to present as a condition of entry into the country passports duly visaed by consular officers of the United States, and rule 42 of the Secretary of State of September 30, 1925, made pursuant to such order, instructing consuls, before issuing visitors visas, to satisfy themselves of the temporary nature of the proposed visit, held authorized by Act March 2, 1921 (Comp. St. § 7628hh), and effective, and under them the issuance of a visa by a consul is not a ministerial act, but involves discretion and his discretion cannot be controlled or reviewed by the courts. 2. Aliens 46-Exclusion of aliens applying for admission as visitors approved. Action of a special board of inquiry approved in excluding aliens applying for admission as temporary visitors, on the ground that they were without passports visaed by an American consul; the consul to whom they applied having refused visas. 3. Words and phrases-"Visa." A "visa" is recognition by country ad quem of validity of passport issued by country a quo. Habeas Corpus. Petitions by the United States, on the separate relations of Tamara Johanson, Isabel London, Solomon Simkin, and Leontine Leskova, against Clifford D. Phelps, Immigration Inspector. Writs discharged, and relators remanded. Hearing upon writs of habeas corpus, held at Windsor, Vt., on July 28, 1926. Mrs. Johanson is a widow, aged 44, a citizen of Finland, and by occupation a dressmaker. She holds an unexpired Finnish passport, and arrived in Canada in June, 1926, where she has remained until now, not seeking occupation, although her means are practically nil. She declares that she has no relatives in Finland, and none in Canada; in New York is a second cousin; otherwise, so far as disclosed by the record, she is alone in the world. Mrs. London is also a widow, aged 54, |