a guarantor, who was not promised security at the time of the guaranty, subsequently received security. Bill dismissed, with costs. In re JENSEN. (District Court, E. D. Louisiana. 26, 1926.) No. 5841. On December 17, 1920, he declared his intention to become a citizen of the United States in the United States District Court at Norfolk, 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, § 1 [Comp. St. 1918, Comp. St. Ann. Supp. February 1919, § 4352]), he filed his petition for naturalization, which came on to be heard here November 5, 1925. The petitioner exhibits able service on American merchant vessels, discharges showing over three years honorcommencing June 4, 1921, and ending November 2, 1925, just one day preceding the filing of his petition. 1. Aliens 62-Alien unlawfully in country, without formal admission and without paying head tax, is incapable of acquiring legal residence as predicate for declaration of intention, and is not entitled to citizenship (Act June 29, 1906, § 4, subd. 7, as amended by Act May 9, 1918, § I [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352]). Alien, applying for naturalization under Act June 29, 1906, § 4, subd. 7, as amended by Act May 9, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352) who unlawfully entered country, without examination and formal admission, and without paying head tax, is incapable of acquiring legal residence on which to predicate a valid declaration of intention, and is not entitled to citizenship. 2. Aliens 68 (4)-Provisions of Immigration Law must be strictly construed against alien, who has burden to show compliance therewith, precedent to application for naturaliza tion. 3. Aliens 68 (4)-As affects declaration of intent and petition for naturalization, residence of alien is presumptively unlawful, unless lawful arrival and formal admission is affirmatively shown (Naturalization Act June 29, 1906, § 4, subd. 2 [Comp. St. 4352]). Unless lawful arrival and formal admission after inspection by Immigration Bureau is affirmatively shown, as by certificate of arrival, under Naturalization Act, § 4, subd. 2 (Comp. St. § 4352), residence of alien, either actual or constructive, is presumptively unlawful, and vitiates his proof of residence, declaration of intention, and petition for naturalization ab initio. Naturalization Petition. Petition of Jens Marinus Jensen, for naturalization. Petition The Naturalization Examiner of the Department of Labor objects to his admission to citizenship on the ground that his declaration of intention and residence was based upon an unlawful entry into the United States, without inspection by the Immigration Bureau, and without paying the head tax imposed by law. In support of this the Examiner points to a notation on the alien's certificate of arrival, issued by the Commissioner of Immigration, which reads: "Jens Marinus Jensen arrived at the port of Norfolk, Virginia, November 20, 1920, S. S. California (Danish). Deserting seaman-did not pay head tax." The Examiner testifies and states in his brief that, when the alien was shown this record of his arrival, he tendered $8 in payment of the head tax, which was accepted by the Naturalization Examiner, under the regulations of the Naturalization Bureau, but that he advised and informed the alien that this acceptance, and the issuance of a certificate of arrival by the Immigration Bureau, was not to be understood as an admission on the part of the Department of Labor that he was entitled to be admitted to residence; that, on the contrary, it was issued as a matter of duty on the part of the naturalization officer concerned, merely in order to afford him an opportunity to have his case judicially determined. [1] In support of his opposition, the Naturalization Examiner cites the decision of District Judge Campbell in the case entitled In re Alexander Connal (D. C.) 8 F.(2d) Walter Wheatley, District Director of 374, in which case a seaman was shown by Naturalization, of New Orleans, La. denied. BURNS, District Judge. The petitioner, an alien, native of Denmark, arrived at Norfolk, Va., as a seaman of the crew of the Danisk steamship California, November 20, 1920. his certificate of arrival to have been discharged to reship foreign, and clandestinely remained in this country, and because of this his petition was denied. I find the reasoning of District Judge Campbell in that case highly persuasive, and applicable to the case at 11 F.(2d) 415 bar. In the instant case it clearly appears that the alien avoided inspection by the Immigration Bureau of the Department of Labor, and remained unlawfully in this country, without examination and formal admission, and without paying the head tax. uralization ab initio. Such an alien is incapable of acquiring a legal, bona fide residence upon which to predicate a valid declaration of intention under the Naturalization Law, and not entitled to favorable consideration on a petition for naturalization. The petition will accordingly be denied. OKLAHOMA GAS & ELECTRIC CO. v. [2] In my opinion, a comprehensive view 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 governing immigration and naturalization. The 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 Immigration are given authority to make such regulations as they may deem necessary to carry the Immigration Law into effect, and also quasi judiciary authority to decide all questions arising under that law with respect to the admission, exclusion, or deportation of aliens, and the decision of the Secretary is made final. The Naturalization Bureau, likewise under the direction of the Secretary of Labor, is charged with the administration of the Naturalization Law, except that the jurisdiction of applications for naturalization is vested in the courts. The Immigration Law defines the terms on which aliens may be admitted into the country, whilst the Naturalization Law prescribes how they may subsequently apply for the privilege of citizenship, which can in no case be claimed by them as a matter of right. These statutory provisions must therefore be strictly construed against the alien, upon whom the burden rests to affirmatively show by competent evidence his compliance in detail with the Immigration Law and regulations, as a condition precedent to the filing of an application for citizenship under the Naturalization Law. [3] The Supreme Court has held that the certificate of arrival prescribed by section 4, subd. 2, of the Naturalization Act, is an essential prerequisite to a valid decree or order of naturalization; that it is a matter of substance, and is indispensable to the filing of a petition; that it was designed to prevent aliens from procuring illegal and fraudulent certificates of naturalization. United States v. Ness, 38 S. Ct. 118, 245 U. S. 319, 62 L. Ed. 321. It follows that, unless the lawful arrival and formal admission, after inspection by the Immigration Bureau, is affirmatively shown, the residence of an alien, either actual or constructive, is presumptively unlawful, and vitiates his proof of residence, declaration of intention, and petition for nat 1. Pleading ml. 1926.) Rules of pleading are but juridical instrumentalities to further justice, by reducing controversy to precise issues of law or fact. 2. Pleading 26. Good pleading must allege facts sufficient in law to avail pleader and with due regard to form. 3. Pleading 64(1). Rule against duplicity is directed to form, not substance, of pleading. 4. Pleading-Common-law pleading adaptable to exigencies by courts, particularly in matters of form. mainly only a codification of principles estabSystem of common-law pleading, being lished by judicial decision, is peculiarly adaptable by courts, particularly in matters of form, to exigencies of every age. 5. Courts 347. Under Rev. St. § 914 (Comp. St. § 1537), District Court for Delaware, in passing on pleadings, must be guided by laws of Delaware. 6. Pleading 1-Forms of common-law pleading in Delaware should not be blindly adhered to under changed conditions, dominant principle being conciseness, brevity, and plainness (Rev. Code Del. 1915, §§ 4164, 4165, 4420). In view of Rev. Code Del. 1915, §§ 4164, 4165, 4420, forms of common-law pleading prevailing in such state should not be blindly and unnecessarily adhered to under changed conditions, but dominant principle respecting form should be conciseness, brevity, and plainness. 7. Pleading 64 (2)-Counts alleging breach of separate contracts for sale of same kind of articles under like conditions will not be held bad for duplicity, especially where defendant would not be prejudiced. Counts of declaration, alleging separate and distinct breach of four separate contracts for sale by defendant to plaintiff, under like conditions, of additional quantities of same kind of articles, for same use, will not be held bad on demurrer for duplicity, particularly where defendant would not be prejudiced. Action in case by the Oklahoma Gas & Electric Company against the Bates Expanded Steel Truss Company. On demurrer to declaration. Demurrer overruled. See, also, 296 F. 281. Robert H. Richards, of Wilmington, Del., for plaintiff. Wm. S. Hilles, of Wilmington, Del., for defendant. MORRIS, District Judge. To the first and second counts of the amended declaration filed by Oklahoma Gas & Electric Company in its action in case brought against Bates Expanded Steel Truss Company, the defendant has demurred specially on the ground of duplicity. As I understand those counts, each is duplicitous. That pleadings must not be double is a common-law rule of remote antiquity. If that rule is absolute and peremptory; if, regardless of the facts pleaded, it is the dominant criterion of a pleading challenged for duplicity by special demurrer -the conclusion that the counts are duplicitous is determinative of the judgment here to be entered. If, however, the forms of com a mon-law pleading have not become rigid and unadaptable to changing conditions; if the rule against duplicity is not to be applied blindly and mechanically, without regard to other canons of pleading, or to the facts constituting the causes of action; if the force to be given to that rule in a particular case is a matter for judicial determination-the facts pleaded must be further examined. [1] Stephen, in his book on Pleading, tells us, at pages 2 and 123, that the manner of allegation in the English courts was first methodically formed and cultivated as science in the reign of Edward I; that none of the rules of statement seem to have been originally of legislative enactment, or to have had any authority, except usage or judicial regulation; and that the common-law system of pleading "has been gradually molded into its present form by the wisdom of succeeding ages." The rules of pleading are but juridical instrumentalities for the furtherance of justice. See Rex v. Phillips, 1 Burr. pt. IV, 301. Their object is to reduce the controversy to certain precise issues of law, or fact, on which, as containing the pretensions or claims of the parties, the opinion of the court or the verdict of the jury may be taken, and a judgment had in accordance with the principles of justice. Polk, Assignee, etc., v. Bull's Adm'r, 1 Harr. (Del.) 433, 436n; State, to Use of Godwin, v. Collins et al., 1 Harr. (Del.) 216. [2, 3] To all good pleading there are, of course, two indispensable requisites-that the facts alleged be sufficient in law to avail the party who pleads them, and that such facts be pleaded with due regard to form. The rule against duplicity is directed to the form, and not to the substance, of the pleading. Even under the early common law, duplicity was regarded as a defect of such slight significance that certain modes of practice developed by which the effect of the rule pertaining thereto was materially qualified and evaded. These consisted of the use of several counts, and the allowance of several pleas; the former being grounded on ancient practice, the latter on the Statute of 4 Ann., 313. Again, prior to the Statute of 27 Eliz. c. 16. Perry on Common-law Pleading, p. c. 4, a party was at liberty to take advantage on general demurrer of every objection, save one, to a pleading. The sole exception was Pleading, p. 663; 3 Salk. 122. In no other the informality of duplicity. Chitty on Chitty on Pleading, p. 663; 11 East, 565. instance was a special demurrer required. [4] Moreover, it has been said that the rules of pleading requiring adherence to establishDic. "Pleadings." But, be that as it may, the system of common-law pleading, being in ed forms are but rules of caution. Bouv. the main only a codification of principles established by judicial decision, is peculiarly adaptable by the courts themselves, particularly in matters of form, to the exigencies of every age. See Flynn v. Staples, 34 App. D. C. 92, 27 L. R. A. (N. S.) 792; 21 R. C. L 437. [5,6] Nor do the laws of Delaware, to which, under the conformity statute (R. S. 914 [Comp. St. § 1537]), I must turn, at least for general guidance, tend to place matters of pure form in pleading upon any higher plane than that occupied by them at common law. Section 4420 of the Revised Code of Delaware provides: "Upon a demurrer, the court shall not consider any defects not specially alleged, if, upon the whole matter appearing, judgment can be given according to the merits of the case." Section 4164 empowers the judges of the Superior Court to make rules touching pleadings. Section 4165 reads thus: "Such rules shall be so framed as to promote and require conciseness, brevity and plainness in pleading, without regarding form, further than it is necessary, or conducive to these objects." I fail to find in Delaware, or elsewhere, any rule or decision of any court to the effect that every special demurrer challenging a 11 F.(2d) 417 duplicitous pleading on the ground of duplicity must be sustained. On the contrary, the Delaware statute, section 4165, discloses a general intent that the common-law system of pleading prevailing in this state should not be made rigid and thus destroyed by blind and unnecessary adherence to the forms of pleading established under a simplicity of social conditions and human relationships that no longer exists, but that the dominant principle with respect to form should here be the broad, elastic, flexible, and adaptable one of "conciseness, brevity, and plainness." [7] While in each of the counts here demurred to there is alleged the separate and distinct breach of four separate contracts made between the plaintiff and the defendant, yet as set up in the counts in question each succeeding contract was for the sale by the defendant to the plaintiff, under like conditions, of additional quantities of the same kinds of articles, for the same use as those which constituted the subject-matter of the first contract. The challenged counts cover 40 large typewritten pages. Were the plaintiff required to confine each count of its declaration to the breach of only one of these contracts, the length of the declaration would be increased several fold. Such a result would violate the common-law rule against prolixity, as well as the local rule making "conciseness, brevity, and plainness" in pleading the dominant principle in matters of form. Consequently, and as it does not now appear that the defendant would be at all prejudiced by its being so ordered, the demurrer must be overruled. In re NIEDER et al. THE FRESNO. (District Court, W. D. Washington, .N. D. March 4, 1926.) No. 10352. Shipping 207-Purchasers of sunken vessel, against whom judgment for costs of removal was recovered, held not entitied in proceedings for limitation of liability to order re straining enforcement of judgment pending proceeding (Act March 3, 1851, § 3 [Rev. St. § 4283, Comp. St. § 8021]; Rev. St. § 4284, as amended by Act Feb. 27, 1877, § I [Comp. St. § 8022]; Act June 26, 1884, § 18 [Comp. St. § 8028]). Where owner of sunken vessel, after con reying her in consideration of $1 to persons who agreed to remove her, recovered judgment, in state court, against such persons for costs 11 F. (2d)-27 of removal, held that transferees, under Act March 3, 1851, § 3 (Rev. St. 4283, Comp. St. § 8021); Rev. St. § 4284, as amended by Act Feb. 27, 1877 (Comp. St. § 8022), and Act June 26, 1881, § 18 (Comp. St. § 8028), in proceeding for limitation of liability, were not enjudgment pending proceedings; it being based titled to order restraining enforcement of such on personal contract for the purchase of the sunken vessel. In Admiralty. Petition by M. Nieder and Ben Marcus, copartners doing business as Nieder & Marcus, owners of the vessel Fresno, for limitation of liability. On exception of the North Pacific Sea Products Company to petition, and motions for dismissal thereof and for vacation of order restraining suits pending proceedings. Exceptions sustained in part; motion to dismiss denied; motion to vacate granted in part. Vince H. Faben, of Seattle, Wash., for petitioners. Bronson, Robinson & Jones, of Seattle, Wash., for respondent. CUSHMAN, District Judge. The petitioners pray limitation of liability. It appears by the petition that in April, 1923, the barge Fresno was partially destroyed by fire and was no longer of any value to the then owner, North Pacific Sea Products Company; that she sank upon the bottom and shore of Lake Washington, and became a derelict without the privity or knowledge of the owner; that thereafter the petitioners and the owner entered into the following contract: "Seattle, Washington, April 9th, 1923. "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 alongside the dock at Belleview, Wash. It is agreed that, as a further consideration, the undersigned purchasers, Nieder & Marcus, will entirely and completely remove the said Fresno from Meydenbauer Bay within 30 days from this date. [Sgd.] North Pacific Sea Products Co., by Wm. Schupp, President. Nieder & Marcus, by M. Nieder." Subsequently, in a suit by the North Pacific Sea Products Company in the state court, judgment was recovered against the petitioners for the cost by plaintiff incurred in the removal of such derelict. The North Pacific Sea Products Company excepts to the petition for limitation of liability, and moves for the dismissal thereof and for the vacation of the order restraining suits pending proceedings herein. Petitioners cite, among others, the following cases: Norwich & N. Y. Transp. Co. v. Wright, 13 Wall. 104, 20 L. Ed. 585; Hughes, Admiralty, p. 321; National Steam N. Co. v. Dyer, 105 U. S. 24–26, 26 L. Ed. 1001; White v. Island Tr. Co., 34 S. Ct. 589, 233 U. S. 346, 58 L. Ed. 993; Eastern S. S. Co. v. Great Lakes Dredge, 256 F. 497, 168 C. C. A. 3 (D. C.) 250 F. 916; The O'Brien Bros. (D. C.) 252 F. 185; Waring & Dalmin, Owners of De Soto, etc., v. Clarke, 5 How. 441, 12 L. Ed. 226; Benedict's Admiralty (4th Ed.) § 520; The Katie (D. C.) 40 F. 480, 7 L. R. A. 55; In re Whitelaw et al. (D. C.) 71 F. 733; The Defender (D. C.) 214 F. 316; Providence, etc., Steamship Co. v. Hill Mfg. Co., 3 S. Ct. 379, 109 U. S. 589, 27 L. Ed. 1038; In re Morrison, 13 S. Ct. 246, 147 U. S. 34, 37 L. Ed. 60; The Garden City (D. C.) 26 F. 768; Levinson v. Oceanic Steam Nav. Co., 15 Fed. Cas. No. 8292; Quinlan v. Pew, 56 F. 119, 5 C. C. A. 438; In re Steam Propeller Epsilon, Fed. Cas. No. 4506, 6 Ben. 378; In re Goodrich Transp. Co. (D. C.) 26 F. 715; In re Leonard (D. C.) 14 F. 55; The Benefactor, 103 U. S. 243, 26 L. Ed. 351; Gleason v. Duffy, 116 F. 301, 54 C. C. A. 100; In re Meyer (D. C.) 74 F. 884; Oregon R., etc., Co. v. Balfour, 90 F. 298, 33 C. C. A. 57; The City of Columbus (D. C.) 22 F. 461. 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 A (D. C.) 217 F. 617; In re P. Sanford Ross (D. C.) 196 F. 921; Benedict's Admiralty, (5th Ed.) § 63, pp. 84, 85; Benedict's Admiralty (5th Ed.) § 476, p. 567; Pendleton v. Benner Line, 38 S. Ct. 330, 246 U. S. 353, 62 L. Ed. 770; Luckenbach v. McCahan Sugar Ref. Co., 39 S. Ct. 53, 248 U. S. 139, 63 L. Ed. 170, 1 A. L. R. 1522; Capital Transp. Co. v. Cambria Steel Co., 39 S. Ct. 292, 249 U. S. 334, 63 L. Ed. 631; The Loyal, 123 C. C. A. 252, 204 F. 930; Great Lakes Towing Co. v. Mills Transp. Co., 155 F. 11, 83 C. C. A. 607, 22 L. R. A. (N. S.) 769; The Laforrest L. Simmons (D. C.) 276 F. 61; Richardson v. Harmon, 32 S. Ct. 27, 222 U. S. 96, 56 L. Ed. 110; Benedict on Admiralty (5th Ed.) § 481, p. 573; Monongahela River, etc., Co. v. Hurst, 200 F. 711, 119 C. C. A. 127. It has been held in the following cases cited: Richardson v. Harmon, 32 S. Ct. 27, 222 U. S. 96, at 106, 56 L. Ed. 110; Pendleton v. Benner Line, 38 S. Ct. 330, 246 U. S. 353, 62 L. Ed. 770; Luckenbach et al. v. McCahan Sugar Refining Co., etc., 39 S. Ct. 53, 248 U. S. 139, at 149, 63 L. Ed. 170, 1 A. L. R. 1522; Capitol Transp. Co. v. Cambria Steel Co., 39 S. Ct. 292, 249 U. S. 334, 63 L. Ed. 631-that the Act of March 3, 1851, c. 43, § 3, 9 Stat. 635 (R. S. § 4283, Comp. Stat. § 802; R. S. § 4284), as amended in 1877 (chapter 69, § 1, 19 Stat. 251; Comp. St. § 8022), Act June 26, 1884, c. 121, section 18, 23 Stat. p. 57 (Comp. Stat. § 8028), providing for limitation of liability, does not relieve the owner from liability on his personal contracts, even those relating to the voyage. See, also, Benedict on Admiralty (5th Ed.) § 478. The reasons for such holding are even stronger in a case such as the present, where the contract is one whereby the petitioners first acquired any ownership or interest in the vessel. Reaching this conclusion, it is not necessary to consider other matters discussed upon the hearing. Respondent's exceptions to the petition are sustained, in so far as the petition seeks limitation of liability on account of the judgment in respondent's favor, and, in so far as petitioners seek to restrain the collection of that judgment. The motion to dismiss the petition is denied. The motion to vacate the restraining order is granted, in so far as it seeks to restrain the collection of such judg 2. Removal causes of 31-Stockholders' suit to cancel mortgage of nonresident oil companies given to nonresident trust company is separable controversy, to which directors were not necessary parties, and was properly removed to federal court. Suit by stockholders to cancel mortgage given by nonresident oil companies to nonresident trust company constitutes separable controversy, to which resident directors of corporations were not necessary parties, and hence was properly removed to federal court on motion of corporations. 3. Removal of causes 31-Stockholders' suit to set aside stock issued by nonresident oil companies to nonresident defendant is separable controversy, to which directors were not necessary parties, and was properly removable to federal court. Suit by stockholders to cancel stock issued by nonresident oil companies to nonresident de |