Circuit Court of Appeals, Eighth Circuit. July 12, 1927.

No. 6860.

Appeal from the District Court of the United States for the District of Wyoming.

J. M. Hodgson, of Denver, Colo. (Floyd E. Pendell, of Denver, Colo.,,on the brief), for appellant.

Harold D. Roberts, of Denver, Colo. (Tyson S. Dines and Peter H. Holme, both of Denver, Colo., on the brief), for appellee.

Before SANBORN, STONE, and KENYON, Circuit Judges.

STONE, Circuit Judge, delivered the opinion of the court. This is an appeal from a decree (297 F. 269) entered upon dismissal of a bill in equity seeking to establish a right to a one-eighth interest in an oil and gas lease upon 160 acres of land in Wyoming, granted appellee under section 18 of the Act of February 25, 1920, 41 Stat. 437 (Comp. St. § 464041). This case is one of several, differing mainly in the lessee involved and in the land covered. The first of these cases (James M. Hodgson v. Federal Oil & Development Co. et al.) was determined in this court (5 F. [2d] 442) and passed, by appeal, to the Supreme Court. Because of the pendency of that case in the Supreme Court and because

the main issues of law were identical in that case and in this case, this case has been held on submission to await the result in the Supreme Court. April 11, 1927, that case was determined (James M. Hodgson v. Federal Oil & Development Co., 47 S. Ct. 502, 71 L. Ed. -), against appellant on the main issues of law involved therein. Those same issues are in this case and the determination in that case is directly controlling here. The result is that the decree herein must be and is affirmed.

2

PACIFIC FIRE INSURANCE CO., Plaintiff in
Error, v. AMERICAN TOBACCO COMPA-
NY (Incorporated), Defendant in Error.
Circuit Court of Appeals, Second Circuit.
June 16, 1927.
No. 365.

In Error to the District Court of the United States for the Southern District of New York.

Fox & Weller, of New York City (Hugo Wintner, of New York City, Joseph S. Laur

in error.

3

Appellee, v. VILLAGE OF LE ROY, Defendant Appellant.

Circuit Court of Appeals, Second Circuit. July 5, 1927.

No. 388.

Appeal from the District Court of the United States for the Western District of New York.

Mayer, Warfield & Watson, of New York City (F. P. Warfield, Lawrence Bristol and C. A. L. Massie, all of New York City, of counsel), for appellant.

Cooper, Kerr & Dunham and Wood, Molloy & France, all of New York City (Loren N. Wood, of New York City, and J. Wm. El

lis, of Buffalo, N. Y., of counsel), for appellee.

2

UNITED STATES ex rel. Wm. H. WOHL-
STATTER, Next Friend of Jew Lee, Relator
Appellant, v. Alfred W. BROUGH, Chinese
Inspector in Charge at the Port of New York,
Respondent Appellee.

Circuit Court of Appeals, Second Circuit.
June 6, 1927.

No. 353.

Appeal from the District Court of the United States for the Southern District of New York.

James C. Thomas, of New York City, for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Nathan R. Margold, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

PER CURIAM. Order (16 F.[2d] 492) affirmed.

M. & J. Tracy, Inc., as Owner of the Barge
CAPE WILSON, Libelant Appellee, v. Steam
Tug WYOMISSING; Port Reading Railroad
Company, Claimant Appellee, and Morris &
Cumings Dredging Company, Respondent Ap-
pellant.

Circuit Court of Appeals, Second Circuit.
June 6, 1927.

No. 290.

Appeal from the District Court of the United States for the Eastern District of New York.

James D. Carpenter, Jr., of Jersey City, N. J., for appellant.

Foley & Martin, of New York City (James A. Martin, of New York City, of counsel), for libelant appellee.

New York City (Paul Speer, of New York Macklin, Brown, Lenahan & Speer, of City, of counsel), for other appellees.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

I. GROUNDS AND CONDITIONS PRE-
CEDENT.

6 (U.S.C.C.A.III.) Suit to remove cloud
on title to long-term leasehold held not barred
on ground that only declaratory decree was
asked.-Chicago Auditorium Ass'n v. Willing,
20 F.(2d) 837, reversing decree (D. C.) Chica-
go Auditorium Ass'n v. Cramer, 8 F.(2d) 998.
6 (U.S.D.C.Wash.) Action to enjoin im-
proper transfer of utility funds did not become
moot because of subsequent transfers to pay
prior improper transfers.-Vonherberg v. City
of Seattle, 20 F.(2d) 247.

IV. COMMENCEMENT,

PROSECUTION,

AND TERMINATION.

69 (App.D.C.) Lessee's suit to enjoin les-
sor from suing for possession held improperly
stayed to await lessor's action in municipal
court (Code, § 1535c, as amended by Act March
4, 1923 [42 Stat. 1506]).-Sambataro v. Caffo,
20 F.(2d) 276.

ADMIRALTY.

1. JURISDICTION.

5 (U.S.C.C.A.N.Y.) Whether to take juris-
diction of controversy involving foreign vessel's
liability to alien seaman for injuries rested in
District Court's discretion.-The Falco, 20 F.
(2d) 362, affirming decree (D. C.) 15 F. (2d)
604.

Disputes arising out of seaman's employment
are normally referred to tribunals of flag, but
admiralty court will satisfy itself that he will
not be without remedy.—Id.

District Court properly declined jurisdiction
of suit by alien seaman against foreign vessel
for injuries resulting from falling through un-
lighted coal hatch (Jones Act [41 Stat. 988]).
-Id.

20 F. (2d)-65

20 (U.S.C.C.A.N.J.) Ship carpenter's in-
jury while repairing completed ship in navi-
gable waters of United States, due to employ-
er's negligence, is "maritime tort."-Kuhlman
v. W. & A. Fletcher Co., 20 F. (2d) 465.

II. REMEDIES IN PERSONAM AND IN

REM.

26 (U.S.D.C.La.) Suits in Admiralty Act
merely substitutes remedy in personam against
United States for one in rem (Suits in Ad-
miralty Act, §§ 1, 2 [Comp. St. §§ 12514.
1251a]). The Minnesota, 20 F. (2d) 926.

III. PARTIES, PROCESS, CLAIMS. AND
STIPULATIONS OR OTHER SECURITY.
48 (U.S.D.C.N.Y.) Libelant, failing to issue
process against vessel through reliance on
agreement to bond, held entitled to modifica-
tion of injunction in proceedings to limit lia-
bility brought in another district (Comp. St. §§
8021-8023).-In re Atlantic Gulf & West In-
dies S. S. Lines, 20 F.(2d) 975.

57 (U.S.C.C.A.N.J.) After decree for for-
feiture of vessel, claimant has 20 days to make
payment before summary judgment may be en-
20 F. (2d) 314.
tered on bond (Comp. St. § 1564).-The Ruth,

IV. PLEADING, PETITIONS,

TIONS.

AND MO-

59 (U.S.D.C.Wash.) When in doubt as to
vital fact or law, plea in alternative on ten-
dered issue is permissible.-Olivier Produce
Corporation v. U. S., 20 F. (2d) 214.

66 (U.S.D.C.Wash.) Affirmative defense
held allowable in amended
Produce Corporation v. U. S., 20 F. (2d) 214.
answer.-Olivier

VIII. DECREE AND ENFORCEMENT
THEREOF.

88 (U.S.C.C.A.N.J.) In suit for forfeiture
of vessel, decree of forfeiture must run against
vessel. The Ruth, 20 F. (2d) 314.

Recitals preceding formal decree are not part

thereof.-Id. IX. APPEAL.

118 (U.S.C.C.A.N.Y.) Trial court's findings
as to liability for stranding are conclusive, un-
less certain error can be found.-U. S. Mexi-
can Oil Corporation v. Pennsylvania R. Co., 20
F. (2d) 385.

118 (U.S.C.C.A.Or.) Rule that fact find-
ings on conflicting evidence will not be dis-
turbed on appeal has little force, where testi-
mony was taken by deposition.-Yamashita
Kisen Kabushiki Kaisha v. McCormick Inter-
coastal S. S. Co., 20 F. (2d) 25, reversing decree
(D. C.) The Charles R. McCormick, 15 F.(2d)
386.

118 (U.S.C.C.A.Or.) Lower court findings,
involving largely questions of fact, should not
be lightly disregarded, where nearly all tes-
timony was taken in court's presence.-The
Boston Maru, 20 F. (2d) 508.

X. COSTS.

124 (U.S.D.C.Cal.) Proctor appearing in
each of three libels for cargo damages, tried to-
gether for convenience, held entitled to sepa-
rate docket fees for each.-The Mississippi, 20
F. (2d) 1015.

ADOPTION.

(U.S.C.C.A.Kan.) Where state law re-
quires judicial proceedings, legal adoption can-
not be otherwise shown (Rev. St. Kan. 1923,
38-105 to 38-107).-Nichols v. Nichols, 20
F. (2d) 474.

AFFIDAVITS.

18 (U.S.D.C.Wash.) Issuable facts may
not be determined on ex parte affidavits.-Von-
herberg v. City of Seattle, 20 F. (2d) 247.

ALIENS.

II. EXCLUSION OR EXPULSION.

32(1) (U.S.C.C.A.Mass.) Lapse of time
does not bar deportation proceedings under
Chinese Exclusion Act (Comp. St. § 4315 et
seq.).—Ah Lin v. U. S., 20 F. (2d) 107.

Deportation proceedings are in nature civil,
and constitutional rights of accused in crimi-
nal proceedings do not apply.-Id.

32 (5) (U.S.C.C.A.Mass.) Burden of proof
is on Chinese person claiming right to remain
in United States because born therein (Chi-
nese Exclusion Act [Comp. St. § 4315 et seq.]).
-Ah Lin v. U. S., 20 F. (2d) 107.

Burden on Chinese person of proving that
he was native-born citizen held not sustained
by evidence in deportation proceedings (Chi-
nese Exclusion Act, § 3 [Comp. St. § 4317]).
-Id.

32(5) (U.S.D.C.Wash.) Alien, seeking ad-
mission as citizen, has burden of proof of
citizenship.-Ex parte Ng Suey Hi, 20 F.(2d)

266.

32 (6) (U.S.D.C.Cal.) Registers of birth
certificates, kept by clergymen or other proper
officers, are competent in proceeding before im-
migration authorities.-Ex parte Dong Ming, 20
F. (2d) 388.

32(8) (U.S.D.C.Cal.) Evidence held to show
applicant was son of native-born citizen of
Chinese race (Comp. St. § 3947).-Ex parte
Dong Ming, 20 F. (2d) 388.

32(8) (U.S.D.C.Wash.) Department may
not disregard testimony that applicant is minor
son of resident Chinese merchant, because fa-
ther falsely testified in former hearing.-Ex
parte Ng Bin Fong, 20 F. (2d) 1014.

32(9) (U.S.D.C.Wash.) Alien, denied ad-
mission as son of native-born Chinese citizen,
held not denied fair hearing in view of evi-
dence.-Ex parte Wong Tung Dung, 20 F.
(2d) 149.

32(13) (U.S.C.C.A.Mass.) Admissibility of
evidence not raised by assignment of error is
not reviewable on appeal.-Ah Lin v. U. S., 20
F. (2d) 107.

32(13) (U.S.D.C.Wash.) Evidence held to
support exclusion of one seeking admission as
son of citizen (Comp. St. § 3947).-Ex parte
Wong Suey Sem, 20 F. (2d) 148.

III. IMMIGRATION.

39 (U.S.D.C.Ala.) Congress may exclude
aliens, or prescribe terms on which they may
come into or remain in county.-U. S. v. Na-
tional Surety Co., 20 F. (2d) 972.

44 (U.S.D.C.Ala.) Determination of immi-
gration officer or Secretary of Labor as to bona
fides of alien seamen, regarding right to shore
leave in American port, is final, if examination
is fair (Comp. St. § 8392; Immigration Act
1924, §§ 3, 19 [Comp. St. §§ 428934 aa, 428934 ii,
42894j]).-U. S. v. National Surety Co., 20 F.
(2d) 972.

54 (5) (U.S.C.C.A.N.Y.) Warrant for depor-
tation of alien seaman unlawfully remaining in
country must issue within three years, rather
than five, under statute (Immigration Act 1917,
§§ 19, 34 [Comp. St. §§ 42894jj, 42894s]).—
U. S. ex rel. Danikas v. Day, 20 F.(2d) 733.

Under statute, date when alien is taken into
custody, rather than date of issuance of war-
rant of arrest, determines whether proceedings
were commenced within three-year period of
limitation (Immigration Act 1917, § 34 [Comp.
St. § 428948]).-Id.

~54 (7) (U.S.C.C.A.N.Y.) Alien seaman,
claiming exemption from provision excluding
seamen from admission, has burden of proving
intention to reship (Quota Act, § 19 [Comp.
St. § 42894ii]; Comp. St. § 42894rr).-U.
S. ex rel. D'Istria v. Day, 20 F. (2d) 302.

54(10) (U.S.C.C.A.N.Y.) Detaining alien
seaman without fair hearing relative to inten-
tion to reship held unlawful (Comp. St. §
42894 rr).-U. S. ex rel. D'Istria v. Day, 20
F. (2d) 302.

54(14) (U.S.C.C.A.N.Y.) Alien seaman, de-
tained by commissioner of immigration, is not
entitled to hearing before board of inquiry or
appeal to Secretary of Labor (Comp. St. §
428941; Quota Act, § 20 [Comp. St. §
428941).-U. S. ex rel. D'Istria v. Day, 20
F. (2d) 302.

IV. NATURALIZATION.

62(1) (U.S.D.C.Cal.) Not ground for nat-
uralization that it would aid entry of petition-
er's wife as immigrant.-Petition of Oganesoff,
20 F.(2d) 978.

62(3) (U.S.D.C.Cal.) "Domicile" and "resi-
dence" are synonymous in naturalization pro-
ceedings.-Petition of Oganesoff, 20 F. (2d) 978.

62 (3) (U.S.D.C.N.C.) Alien's absence of
petition because of sickness did not preclude
more than one year of five-year period before
naturalization (Act June 26, 1848 [9 Stat.
240]; Comp. St. § 4360).-Hantzopoulos v. U.
S., 20 F. (2d) 146.

62 (5) (U.S.D.C.Cal.) Applicant for nat-
uralization, attempting to influence judge by
gift of money, held to have shown lack of good
moral character (8 USCA § 382 [Comp. St.
§ 4352]).-Petition of Oganesoff, 20 F. (2d) 978.
68(1) (U.S.D.C.Cal.) Requirements of nat-
uralization statutes must be strictly met.-Peti-
tion of Oganesoff, 20 F. (2d) 978.

68(5) (U.S.D.C.Cal.) General rules of evi-
dence govern proof of domicile or residence in
naturalization cases.-Petition of Oganesoff, 20
F. (2d) 978.

Petitioner for naturalization held not to have
established residence for five years (8 USCA
§ 382 [Comp. St. § 4352]).—Id."

712(1)(U.S.D.C.Mich.) In suit by the
United States to cancel certificate of citizen-
ship, previous decision of court granting such
certificate is not res judicata (S USCA §
405).-U. S. v. Ali, 20 F. (2d) 998, denying mo-
tion to set aside decree 7 F. (2d) 728.

APPEAL AND ERROR.

1. NATURE AND FORM OF REMEDY.
(U.S.D.C.N.Y.) Right of appeal is not in-
herent, but statutory.-In re Maryanov, 20 F.
(2d). 939.