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a guarantor, who was not promised security On December 17, 1920, be declared his intenat the time of the guaranty, subsequently re tion to become a citizen of the United States ceived security.

in the United States District Court at NorBill dismissed, with costs.

folk, Va.

On November 3, 1925, under subdivision 7 of section 4 of the Act of June 29, 1906 (34 Stat. pt. 1, p. 596), as amended by the

Act of May 9, 1918 (40 Stat. pt. 1, p. 542, in re JENSEN.

§ 1 [Comp. St. 1918, Comp. St. Ann. Supp. (District Court, E. D. Louisiana. February 1919, $ 4352]), he filed his petition for nat26, 1926.)

uralization, which came on to be heard here No. 5811.

November 5, 1925. The petitioner exhibits 1. Aliens 62—Alien unlawfully in country, able service on American merchant vessels,

discharges showing over three years honorwithout formal admission and without paying head tax, is incapable of acquiring legal resi commencing June 4, 1921, and ending Nodence as predicate for declaration of inten- vember 2, 1925, just one day preceding the tion, and is not entitled to citizenship (Act filing of his petition. June 29, 1906, § 4, subd. 7, as amended by Act May 9, 1918, § 1 [Comp. St. 1918, Comp.

The Naturalization Examiner of the DeSt. Ann. Supp. 1919, § 4352]).

partment of Labor objects to his admission Alien, applying for naturalization under Act to citizenship on the ground that his declaraJune 29, 1906, § 4, subd. 7, as amended by Act tion of intention and residence was based upMay 9, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, $ 4352) who unlawfully en

on an unlawful entry into the United States, tered country, without examination and formal without inspection by the Immigration Buadmission, and without paying head tax, is in- reau, and without paying the head tax imcapable of acquiring legal residence on which posed by law. In support of this the Exto predicate a valid declaration of intention, aminer points to a notation on the alien's and is not entitled to citizenship.

certificate of arrival, issued by the Commis2. Aliens 68(4)–Provisions of Immigration sioner of Immigration, which reads: "Jens Law must be strictly construed against alien, Marinus Jensen arrived at the port of Norwho has burden to show compliance there. with, precedent to application for naturaliza. folk, Virginia, November 20, 1920, S. S. Calition.

fornia (Danish). Deserting seaman-did Statutory provisions of Immigration Law not pay head tax." must be strictly construed against alien, on

The Examiner testifies and states in his whom burden rests to affirmatively show his brief that, when the alien was shown this reccompliance therewith as condition precedent to filing application for citizenship under Natural. ord of his arrival, he tendered $8 in payization Law.

ment of the head tax, which was accepted by 3. Aliens em 68(4)-As affects declaration of the Naturalization Examiner, under the reg.

intent and petition for naturalization, resi- ulations of the Naturalization Bureau, but dence of alien is presumptively unlawful, un- that he advised and informed the alien that less lawful arrival and formal admission is affirmatively shown (Naturalization Act June

this acceptance, and the issuance of a certif29, 1906, § 4, subd. 2 [Comp. St. 4352]).

icate of arrival by the Immigration Bureau, Unless lawful arrival and formal admission was not to be understood as an admission on after inspection by Immigration Bureau is af- the part of the Department of Labor that he firmatively shown, as by certificate of arrival,

was entitled to be admitted to residence; under Naturalization Act, 4, subd. 2 (Comp. St. § 4352), residence of alien, either actuai that, on the contrary, it was issued as a mator constructive, is presumptively unlawful, and ter of duty on the part of the naturalization vitiates his proof of residence, declaration of officer concerned, merely in order to afford intention, and petition for naturalization ab him an opportunity to have his case judicialinitio.

ly determined. Naturalization Petition. Petition of Jens [1] In support of his opposition, the NatMarinus Jensen, for naturalization. Petition uralization Examiner cites the decision of

District Judge Campbell in the case entitled denied.

In re Alexander Connal (D. C.) 8 F.(20) Walter Wheatley, District Director of 374, in which case a seaman was shown by Naturalization, of New Orleans, La.

his certificate of arrival to have been dis

charged to reship foreign, and clandestinely BURNS, District Judge. The petitioner, remained in this country, and because of this an alien, native of Denmark, arrived at Nor- his petition was denied. I find the reasoning folk, Va., as a seaman of the crew of the Dan- of District Judge Campbell in that case highisb steamship California, November 20, 1920. ly persuasive, and applicable to the case at

11 F.(20) 416 bar. In the instant case it clearly appears uralization ab initio. Such an alien is inthat the alien avoided inspection by the Im- capable of acquiring a legal, bona fide resimigration Bureau of the Department of La- dence upon which to predicate a valid declabor, and remained unlawfully in this coun- ration of intention under the Naturalization try, without examination and formal admis- Law, and not entitled to favorable considerasion, and without paying the head tax. tion on a petition for naturalization. 12] In my opinion, a comprehensive view The petition will accordingly be denied. should be taken in the consideration of these cases of the purpose of Congress in devising these Bureaus of Immigration and Naturalization in the Department of Labor as agencies for the administration of the laws gov- OKLAHOMA GAS & ELECTRIC CO, V. erning immigration and naturalization. The

BATES EXPANDED STEEL

TRUSS CO. Immigration Bureau is vested with an almost plenary power over aliens. The Secretary (District Court, D. Delaware. February 17, of Labor and the Commissioner General of

1926.) Immigration are given authority to make

No. 3. such regulations as they may deem necessary 1. Pleading ul. to carry the Immigration Law into effect, and

Rules of pleading are but juridical instrualso quasi judiciary authority to decide all mentalities to further justice, by reducing conquestions arising under that law with respect 'troversy to precise issues of law or fact. to the admission, exclusion, or deportation of 2. Pleading 26. aliens, and the decision of the Secretary is Good pleading must allege facts sufficient in made final.

law to avail pleader and with due regard to

form. The Naturalization Bureau, likewise under the direction of the Secretary of Labor, 3. Pleading Em 64(1). is charged with the administration of the Rule against duplicity is directed to form, Naturalization Law, except that the jurisdic- not substance, of pleading. tion of applications for naturalization is vest. 4. Pleading ml-Common-law pleading adapted in the courts. The Immigration Law de

able to exigencies by courts, particularly in

matters of form. fines the terms on which aliens may be admitted into the country, whilst the Naturalization mainly only a codification of principles estab

System of common-law pleading, being Law prescribes how they may subsequently lished by judicial decision, is peculiarly adaptaapply for the privilege of citizenship, which ble by courts, particularly in matters of form, can in no case be claimed by them as a mat

to exigencies of every age. ter of right. These statutory provisions must

5. Courts 347. therefore be strictly construed against the

Under Rev. St. § 914 (Comp. St. 1537), alien, upon whom the burden rests to affirma- District Court for Delaware, in passing on tively show by competent evidence his com- pleadings, must be guided by laws of Delaware. pliance in detail with the Immigration Law

6. Pleading Oml-Forms of common-law and regulations, as a condition precedent to pleading in Delaware should not be blindly the filing of an application for citizenship adhered to under changed conditions, domi. under the Naturalization Law.

nant principle being conciseness, brevity, and (3] The Supreme Court has held that the

plainness (Rev. Code Del. 1915, 88 4164,

4165, 4420). certificate of arrival prescribed by section 4,

In view of Rev. Code Del. 1915, 88'4164, subd. 2, of the Naturalization Act, is an es

4165, 4420, forms of common-law pleading presential prerequisite to a valid decree or order vailing in such state should not be blindly and of naturalization; that it is a matter of sub- unnecessarily adhered to under changed condistance, and is indispensable to the filing of tions, but dominant principle respecting form

should be conciseness, brevity, and plainness. a petition; that it was designed to prevent aliens from procuring illegal and fraudulent 7. Pleading 64(2)-Counts alleging breach certificates of naturalization. United States of separate contracts for sale of same kind

of articles under like conditions will not be v. Ness, 38 S. Ct. 118, 245 U. S. 319, 62 L.

held bad for duplicity, especially where deEd. 321. It follows that, unless the lawful fendant would not be prejudiced. arrival and formal admission, after inspec- Counts of declaration, alleging separate and tion by the Immigration Bureau, is affirma- distinct breach of four separate contracts for tively shown, the residence of an alien, either sale by defendant to plaintiff

, under like condi

tions, of additional quantities of same kind of actual or constructive, is presumptively un

articles, for same use, will not be held bad on lawful, and vitiates his proof of residence, demurrer for duplicity, particularly where dedeclaration of intention, and petition for nat- fendant would not be prejudiced.

Action in case by the Oklahoma Gas & [2,3] To all good pleading there are, of. Electric Company against the Bates Ex- course, two indispensable requisites—that panded Steel Truss Company. On demurrer the facts alleged be sufficient in law to avail to declaration. Demurrer overruled.

the party who pleads them, and that such See, also, 296 F. 281.

facts be pleaded with due regard to form. Robert H. Richards, of Wilmington, Del., The rule against duplicity is directed to the for plaintiff.

form, and not to the substance, of the pleadWm. S. Hilles, of Wilmington, Del., for ing. Even under the early common law, dudefendant.

plicity was regarded as a defect of such

slight significance that certain modes of pracMORRIS, District Judge. To the first tice developed by which the effect of the rule and second counts of the amended declaration pertaining thereto was materially qualified

and evaded. These consisted of the use of filed by Oklahoma Gas & Electric Company in its action in case brought against Bates several counts, and the allowance of several Expanded Steel Truss Company, the defend- pleas; the former being grounded on ancient ant has demurred specially on the ground of practice, the latter on the Statute of 4 Ann., duplicity. As I understand those counts, 313. Again, prior to the Statute of 27 Eliz

.

C. 16. Perry on Common-law Pleading, p. each is duplicitous. That pleadings must not be double is a common-law rule of remote

c. 4, a party was at liberty to take advantage antiquity. If that rule is absolute and per

on general demurrer of every objection, save emptory; if, regardless of the facts pleaded, one, to a pleading. The sole exception was it is the dominant criterion of a pleading Pleading, p. 663; 3 Salk. 122. In no other

the informality of duplicity. Chitty on challenged for duplicity by special demurrer instance was a special demurrer required. --the conclusion that the counts are duplici- Chitty on Pleading, p. *663; 11 East, 565. tous is determinative of the judgment here to [4] Moreover, it has been said that the rules be entered. If, however, the forms of common-law pleading have not become rigid and of pleading requiring adherence to establishunadaptable to changing conditions; if the Die. "Pleadings.” But, be that as it may,

ed forms are but rules of caution. Bouv. rule against duplicity is not to be applied the system of common-law pleading, being in blindly and mechanically, without regard to

the main only a codification of principles esother canons of pleading, or to the facts con

tablished by judicial decision, is peculiarly stituting the causes of action; if the force to be given to that rule in a particular case is a

adaptable by the courts themselves, particumatter for judicial determination—the facts

larly in matters of form, to the exigencies of pleaded must be further examined.

every age. See Flynn v. Staples, 31 App. D. [1] Stephen, in his book on Pleading, tells C. 92, 27 L. R. A. (N. S.) 792; 21 R. C. L

437. us, at pages 2 and 123, that the manner of allegation in the English courts was first [5,6] Nor do the laws of Delaware, to which, methodically formed and cultivated as

under the conformity statute (R. S. 914 science in the reign of Edward I; that none

[Comp. St. $ 1537]), I must turn, at least for of the rules of statement seem to have been general guidance, tend to place matters of originally of legislative enactment, or to have pure form in pleading upon any higher plano had any authority, except usage or judicial than that occupied by them at common law. regulation; and that the common-law system Section 4420 of the Revised Code of Delaof pleading "has been gradually molded into ware provides: "Upon a demurrer, the court “

a its present form by the wisdom of succeed- shall not consider any defects not specially ing ages.” The rules of pleading are but ju- alleged, if, upon the whole matter appearing, ridical instrumentalities for the furtherance judgment can be given according to the merof justice. See Rex v. Phillips, 1 Burr. pt. its of the case.” Section 4164 empowers the IV, 301. Their object is to reduce the con- judges of the Superior Court to make rules troversy to certain precise issues of law, or touching pleadings. Section 4165 reads fact, on which, as containing the pretensions thus: "Such rules shall be so framed as to or claims of the parties, the opinion of the promote and require conciseness, brevity and court or the verdict of the jury may be tak- plainness in pleading, without regarding en, and a judgment had in accordance with form, further than it is necessary, or conduthe principles of justice. Polk, Assignee, cive to these objects." etc., v. Bull's Adm'r, 1 Harr. (Del.) 433, I fail to find in Delaware, or elsewhere, 436n; State, to Use of Godwin, v. Collins et any rule or decision of any court to the effect al., 1 Harr. (Del.) 216.

that every special demurrer challenging a

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11 F.(20) 417 duplicitous pleading on the ground of duplic- of removal, held that transferees, under Act ity must be sustained. On the contrary, the March 3, 1851, § 3 (Rev. St. 4283, Comp. St.

§ 8021); Rev. St. § 4284, as amended by Act Delaware statute, section 4165, discloses

Feb. 27, 1877 (Comp. St. $ 8022), and Act å general intent that the common-law system June 26, 1881, § 18 (Comp. St. & 8028), in proof pleading prevailing in this state should ceeding for limitation of liability, were not ennot be made rigid and thus destroyed by judgment pending proceedings; it being based

titled to order restraining enforcement of such blind and unnecessary adherence to the forms

on personal contract for the purchase of the of pleading established under a simplicity of sunken vessel. social conditions and human relationships that no longer exists, but that the dominant In Admiralty. Petition by M. Nieder and principle with respect to form should here Ben Marcus, copartners doing business as be the broad, elastic, flexible, and adaptable Nieder & Marcus, owners of the vessel Fresone of "conciseness, brevity, and plainness.” no, for limitation of liability. On exception [7] While in each of the counts here demur- of the North Pacific Sea Products Company red to there is alleged the separate and dis- to petition, and motions for dismissal theretinct breach of four separate contracts made of and for vacation of order restraining suits between the plaintiff and the defendant, yet pending proceedings. Exceptions sustained as set up in the counts in question each suc- in part; motion to dismiss denied; motion to ceeding contract was for the sale by the de- vacate granted in part. fendant to the plaintiff, under like condi

Vince H. Faben, of Seattle, Wash., for tions, of additional quantities of the same

petitioners. kinds of articles, for the same use as those which constituted the subject matter of the Wash., for respondent.

Bronson, Robinson & Jones, of Seattle,

first contract. The challenged counts cover 40 large typewritten pages. Were the plaintiff required to confine each count of its dec

CUSHMAN, District Judge. The petilaration to the breach of only one of these tioners pray limitation of liability. It apcontracts, the length of the declaration would pears by the petition that in April, 1923, the be increased several fold. Such a result barge Fresno was partially destroyed by fire would violate the common-law rule against and was no longer of any value to the then prolixity, as well as the local rule making owner, North Pacific Sea Products Compa“conciseness, brevity, and plainness” in ny; that she sank upon the bottom and shore pleading the dominant principle in matters of Lake Washington, and became a derelict of form.

without the privity or knowledge of the ownConsequently, and as it does not now ap

er; that thereafter the petitioners and the pear that the defendant would be at all prej

owner entered into the following contract: udiced by its being so ordered, the demurrer

"Seattle, Washington, April 9th, 1923. must be overruled.

"In consideration of one dollar ($1.00), receipt whereof is hereby acknowledged, the undersigned hereby sells and conveys to Nieder & Marcus the barge Fresno, her apparel,

tackle, and appurtenances as she now lies In re NIEDER et al.

alongside the dock at Belleview, Wash. It is THE FRESNO.

agreed that, as a further consideration, the

undersigned purchasers, Nieder & Marcus, (District Court, W. D. Washington, .N. D. will entirely and completely remove the said March 4, 1926.)

Fresno from Meydenbauer Bay within 30 No. 10352.

days from this date. [Sgd.] North Pacific Shipping 207–Purchasers of sunken vessel,

Sea Products Co., by Wm. Schupp, Presiagainst whom judgment for costs of removal

dent. Nieder & Marcus, by M. Nieder." was recovered, held not entitied in proceed- Subsequently, in a suit by the North Paings for limitation of liability to order re. cific Sea Products Company in the state straining enforcement of judgment pending proceeding (Act March 3, 1851, § 3 [Rev. St. court, judgment was recovered against the $ 4283, Comp. St. § 8021); Rev. st. 4284, as petitioners for the cost by plaintiff incurred amended by Act Feb. 27, 1877, 8 i (Comp. in the removal of such derelict. St. $ 8022]; Act June 26, 1884, § 18 [Comp. The North Pacific Sea Products Company St. $ 8028]).

excepts to the petition for limitation of liaWhere owner of sunken vessel, after conreying her in consideration of $1' to persons bility, and moves for the dismissal thereof who agreed to remove her, recovered judgment, and for the vacation of the order restraining in state court, against such persons for costs suits pending proceedings herein.

11 F.(20)-27

>

100;

Petitioners cite, among others, the follow- 248 U. S. 139, at 149, 63 L. Ed. 170, 1 A. L. ing cases: Norwich & N. Y. Transp. Co. v. R. 1522; Capitol Transp. Co. v. Cambria Wright, 13 Wall, 104, 20 L. Ed. 585; Hugh- Steel Co., 39 S. Ct. 292, 249 U. S. 334, 63 L. es, Admiralty, p. 321; National Steam N. Co. Ed. 631—that the Act of March 3, 1851, c. v. Dyer, 105 Ū. S. 24–26, 26 L. Ed. 1001; 43, § 3, 9 Stat. 635 (R. S. § 4283, Comp. White v. Island Tr. Co., 34 S. Ct. 589, 233 Stat. § 802; R. S. § 4284), as amended in U. S. 346, 58 L. Ed. 993; Eastern S. S. Co. 1877 (chapter 69, § 1, 19 Stat. 251; Comp. v. Great Lakes Dredge, 256 F. 497, 168 C. St. § 8022), Act June 26, 1884, c. 121, section C. A. 3. (D. C.) 250 F. 916; The O'Brien 18, 23 Stat. p. 57 (Comp. Stat. $ 8028), proBros. (D. C.) 252 F. 185; Waring & Dalmin, viding for limitation of liability, does not reOwners of De Soto, etc., v. Clarke, 5 How. lieve the owner from liability on his person441, 12 L. Ed. 226; Benedict's Admiralty al contracts, even those relating to the voy(4th Ed.) § 520; The Katie (D. C.) 40 F. age. See, also, Benedict on Admiralty (5th 480, 7 L. R. A. 55; In re Whitelaw et al. (D. Ed.) § 478. The reasons for such holding C.) 71 F. 733; The Defender (D. C.) 214 F. are even stronger in a case such as the pres316; Providence, etc., Steamship Co. v. Hillent, where the contract is one whereby the Mfg. Co., 3 S. Ct. 379, 109 U. S. 589, 27 L. petitioners first acquired any ownership or Ed. 1038; In re Morrison, 13 S. Ct. 246, 147 interest in the vessel. U. S. 34, 37 L. Ed. 60; The Garden City (D. Reaching this conclusion, it is not necC.) 26 F. 768; Levinson v. Oceanic Steam essary to consider other matters discussed up. Nav. Co., 15 Fed. Cas. No. 8292; Quinlan v. on the hearing. Pew, 56 F. 119, 5 C: C. A. 438; In re Steam Respondent's exceptions to the petition Propeller Epsilon, Fed. Cas. No. 4506, 6 Ben.

are sustained, in so far as the petition seeks 378; In re Goodrich Transp. Co. (D. C.) 26 limitation of liability on account of the judgF. 715; In re Leonard (D. C.) 14 F. 55; Thement in respondent's favor, and, in so far as Benefactor, 103 U. S. 243, 26 L. Ed. 351; petitioners seek to restrain the collection of Gleason v. Duffy, 116 F. 301, 54 C. C. A. that judgment. The motion to dismiss the

In re Meyer (D. C.) 74 F. 884; Oregon petition is denied. The motion to vacate the R., etc., Co. v. Balfour, 90 F. 298, 33 C. C. restraining order is granted, in so far as it A. 57; The City of Columbus (D. C.) 22 F. seeks to restrain the collection of such judg461.

ment. Respondent cites, among others, the following cases : McRae v. Bowers Dredging Co. (C. C.) 86 F. 344; Chas. Barnes v. One Dredge Boat (D. C.) 169 F. 895; The Dredge KEENAN et al. v. GLADYS BELLE OIL CO.

et al. A (D. C.) 217 F. 617; In re P. Sanford Ross (D. C.) 196 F. 921; Benedict's Admiralty, (District Court, N. D. Oklahoma. February, (5th Ed.) $ 63, pp. 84, 85; Benedict's Admi

1926.) ralty (5th Ed.) § 476, p. 567; Pendleton v. 1. Pleading Ouw64(1). Benner Line, 38 S. Ct. 330, 246 U. S. 353, A suit may, consistently with the rules of 62 L. Ed. 770; Luckenbach v. McCahan Sug- pleading, embrace several distinct controver

sies. ar Ref. Co., 39 S. Ct. 53, 248 U. S. 139, 63 L. Ed. 170, 1 A. L. R. 1522;- Capital Transp. 2. Removal of

m31-Stockholders'

suit to cancel mortgage of nonresident oil Co. v. Cambria Steel Co., 39 S. Ct. 292, 249

companies given to nonresident trust com. U. S. 334, 63 L. Ed. 631; The Loyal, 123 C. pany is separable controversy, to which direcC. A. 252, 204 F. 930; Great Lakes Towing

tors were not necessary parties, and was

properly removed to federal court. Co. v. Mills Transp. Co., 155 F. 11, 83 C. C.

Suit by stockholders to cancel mortgage A. 607, 22 L. R. A. (N. S.) 769; The Lafor- given by nonresident oil companies to nonrest L. Simmons (D. C.) 276 F. 61; Richard- resident trust company constitutes separable son v. Harmon, 32 S. Ct. 27, 222 U. S. 96, controversy, to which resident directors of cor56 L. Ed. 110; Benedict on Admiralty (5th porations were not necessary parties, and hence

was properly removed to federal court on moEd.) § 481, p. 573; Monongahela River, etc., tion of corporations. Co. v. Hurst, 200 F. 711, 119 C. C. A. 127.

3. Removal of causes On 31-Stockholders' suit It has been held in the following cases to set aside stock issued by nonresident oil cited: Richardson v. Harmon, 32 S. Ct. 27, companies to nonresident defendant is separ.

able controversy, to vhich directors were 222 U. S. 96, at 106, 56 L. Ed. 110; Pendle

not necessary parties, and was properly reton v. Benner Line, 38 S. Ct. 330, 246 U. S.

movable to federal court. 353, 62 L. Ed. 770; Luckenbach et al. v. Mc

Suit by stockholders to cancel stock issued Cahan Sugar Refining Co., etc., 39 S. Ct. 53, by nonresident oil companies to nonresident de

causes

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