the plaintiff lost the sight of one eye (which had to be removed), and would be in constant danger of losing the other eye. I have examined a number of cases involving damages for mental anguish, and find the amounts sustained by the courts are, in practically every case, much less than the amount of this verdict.

The motion for a new trial will be granted, unless within 30 days from the filing of this opinion the plaintiff enters a remittitur in the sum of $1,458, in which event the motion for a new trial will be denied, and judgment entered for the plaintiff in the sum of $1,000.

(District Court, D. Maine. April 5, 1924.) 1. Aliens 46-"Admits," as used in statute providing for deportation of alien admitting. crime, defined.

"Admits." as used in Immigration Act. § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, $ 42894jj), providing for deportation of alien "who admits the commission, prior to entry, of a felony," etc., means an unequivocal acknowledgment of guilt, leaving no ground for doubt, and, if inclusive of statement made outside of deportation proceedings, it must be acknowledged by alien in those proceedings, and amount to a confession.

[Ed. Note. For other definitions, see Words and Phrases, Admit.]

2. Aliens 46-Admission of facts deemed to establish alien's guilt of crime not an admission of crime, warranting deportation.

Admissions of fact by alien deemed sufficient by immigration officials to establish his guilt of crime were not admissions of commission of a crime, within Immigration Act. § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj), providing for deportation; it being not a proper function of immigration tribunals to balance facts and decide when they establish an alien's guilt.

3. Aliens 46-Alien's testimony in extraneous case held not an admission of crime, warranting deportation.

Alien's testimony in prosecution of another held not to warrant finding that he therein admitted commission of crime, and justify his deportation, under Immigration Act, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj).

Habeas Corpus. Proceeding by Frederic M. Tozier against the Commissioner of Immigration. Petitioner discharged.

John F. A. Merrill, of Portland, Me., for appellant.

The petitioner came to this country from Canada in 1912, and has for many years practiced medicine in and near Portland. In January, 1923, and for some time previous, he conducted a sanitarium for the treatment of drug addicts and persons suffering from alcoholism. He owns real estate worth $25,000 or $30,000, subject to an incumbrance, according to the testimony, of only $1,000. On or about January 24, 1923, he went to Montreal, Canada, to see a friend. He returned to this country two days later, on January 26, 1923. At that time he was not an American citizen, nor had he declared his intention of becoming one. passed whatever inspection and examination was required at the frontier and was duly admitted. As he was a resident alien, long domiciled in this country, the examination was hardly more than a formality. There is no question but what at that time, and at his original entrance in 1912, he complied with all the requirements of law.

He

In 1922 several indictments had been returned into the United States District Court of Maine against various persons, among them Ruth and Fry, who were United States narcotic inspectors, for a conspiracy to extort money from physicians and others by threats of prosecution for violations of the Narcotic Drugs Act (Comp. St. §§ 6287g6287q). Two indictments were returned against the petitioner in this connection. In one indictment against Ruth and Fry, the petitioner was named as one of the conspirators, but not as one of the defendants. When this indictment was tried before Judge Peters and a jury in December, 1922, the petitioner was called and testified as a government witness. It was the understanding of the United States attorney and of the District Judge, as appears by his letter in the file, that Tozier would not be prosecuted if he so testified, and assurances to that effect were given him by the United States attorney. Ruth was acquitted, and Fry was convicted and is now serving prison

sentence.

In February, 1923, deportation proceedings were instituted against Tozier, based upon allegations that at the time of his return to this country from Montreal on Jan

MORTON, District Judge. Habeas corpus to the Commissioner of Immigration to secure the discharge of the petitioner, who is held for deportation. The facts, which for the most part are not seriously in dispute, are as follows:

*Decree affirmed 3 F. (2d)

public charge, and had been convicted of or had admitted the commission of the crimes of extortion, bribery, or conspiracy. There were several hearings under this warrant. Eventually the proceedings were dropped and the warrant canceled.

In July, 1923, another warrant proceeding was instituted against him upon the

same grounds, viz. that "he was a person likely to become a public charge at the time of his entry, and that he has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry, to wit, bribery, conspiracy to defraud, or extortion" (warrant of July 6, 1923). Several hearings were held under this warrant, at which the petitioner was represented by counsel. Inspector Howes, by whom the case was heard in the first instance, reported: "He [the alien] does not admit in so many words the commission of a felony, or other crime of misdemeanor involving moral turpitude; but prior to his departure from the United States he admitted that he was guilty of extortion, as evidenced by his testimony given as a witness" in the case against Fry and Ruth. The inspector further found that, as there were outstanding indictments against Tozier on which he might be convicted, he was therefore a person likely to become a public charge. On appeal the Board of Review, on whose findings the Second Assistant Secretary acted in ordering deportation, found in favor of the alien on the allegation that he was likely to become a public charge. There was no evidence that he had ever been convicted of any crime, and this ground was not relied on by the government. The board found that the transcript of Tozier's testimony in U. S. v. Fry sustained the charge that he had admitted the commission of a crime sufficient to warrant deportation.

There are two questions: (1) Whether the finding is sufficient on its face to justify the action taken; (2) whether there was any evidence in support of it.

[1] The act excludes, inter alia, any alien "who was convicted, or who admits the commission, prior to entry, of a felony or other erime or misdemeanor involving moral turpitude." Section 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj). Of course, bribery, extortion, and conspiracy of the kind here in question are such crimes. So the real question is: What is meant by the expression "admits the commission of" a crime. The dictionary synonyms for "admit" are "acknowledge"; "confess." See Ziang Sun Wan v. U. S., 53 App. D. C. 250, 289 F. 908, 1913; Commonwealth v. Dascalakis, 243 Mass. 519, 137 N. E. 879. In law the word "admission" is used in a broader sense as including any statement made by a party to the proceedings which has probative bearing upon the issue.

The extreme government position as to the meaning of the statute is that it would be competent for the immigration tribunals to receive evidence that the alien had admitted to another person at some previous time the commission of a crime, and, if they believed the evidence, to debar or deport on this ground, although the alien denied ever having made the statement or committed the crime, and that it would not be necessary for the admission to take the form of an express acknowledgment of guilt, but that any statement of facts from which guilt could be inferred would constitute an admission. It is obvious that this is opening a very wide door. No decision whatever upon the point has come to my attention, nor any discussion of the statute in Congress which would be helpful in throwing light on the meaning of the words used.

Conviction for a major crime is in all civilized countries a definite matter, and, as far as I am informed, a matter of record. There can be little room for argument about it, except upon the point of identity between the person convicted and the alien. Following this surely ascertainable ground comes the word "admits." It speaks in the present tense, and on first reading one would naturally suppose it to refer to the proceedings before the immigration tribunal, and to make a confession in those proceedings the equivalent of a proved conviction. The statute contemplates, I think, indisputable proof or unequivocal acknowledgment of guilt-an acknowledgment which shall leave no fair ground for doubt or debate. There is a difference between admitting facts from which an inference of guilt may be drawn and admitting the commission of a crime. If the statement relied upon as an admission may be made outside of the deportation proceedings-a point which it is unnecessary to decide-it must in any event be acknowledged by the alien in those proceedings, and it must amount to a confession of guilt, or must state facts of such conclusive character as to be tantamount to an out-and-out confession.

[2] The Board of Review found that, "although in that record it is not disclosed that the alien in so many words admitted the commission of any of the offenses charged in the department's warrant of arrest, he nevertheless made admissions of fact sufficient not only to convict his associates but also to establish [italics mine] as a matter of fact and law his own guilt." In effect it ruled that "admissions of fact sufficient to establish guilt" were

ant.

WOLVERTON, District Judge. At the time of the transactions hereinafter noted,

the Federal Reserve Bank of San Francisco (to be, for convenience, called the bank) was the holder, by indorsement of McCornick & Co., Bankers, of three promissory notes, aggregating $40,000, of which InterMountain Milling Company was the maker, bearing date, respectively, February 28,

March 7, and March 9, 1921. The Pacific

Grain Company, by J. E. MacAlpine, its authorized agent, wrote the Federal Reserve Bank, Salt Lake City, Utah, as follows:

"Salt Lake City, Utah, June 17, 1921. "Federal Reserve Bank, Salt Lake City, Utah-Gentlemen: In conformity with arrangements made on all of the outstanding paper of the Inter-Mountain Milling Company, held by other banks, we will state to you that, in consideration of your extending note you hold of $40,000 for a period of 30 days from date, we will at the expiration of that time indorse the paper on the understanding that arrangements can be made for a further extension or renewal.

"Yours truly,

"Pacific Grain Company,

"By J. E. MacAlpine, Agt." The proposition couched in the letter was made in pursuance of previous conversations between the writer and Louis H. Moore, who at the time was the authorized collecting agent of the bank; that is, the Federal Reserve Bank of San Francisco.

At this time the Grain Company was the owner of 70 per cent. of the stock of the Milling Company.. The two companies had interlocking directorates; that is to say, three members of the board of directors of the Grain Company, who were owners of qualifying shares in the Milling Company, were also directors of the latter company, and constituted a majority of the board. Hoben was secretary of the Grain Company, and Kennedy of the Milling Com

pany. cerns.

Draper was president of both conThe dealings between the two companies in respect to the transactions relating to the sale of grain out of which the debt in suit arose that is, the total during the season-amounted to a very large sum of money. Mr. Max Houser was the prin

cipal owner of the Grain Company, and Kennedy was his confidential employee, and handled business more or less for the Grain Company.

At about the same date as the proposition by MacAlpine, agent, was made for an indorsement of the bank's paper, the Grain newal of the Milling Company's note with Company, through Kennedy, procured a reWalker Bros., Bankers, and further endeavMilling Company's properties. So it may ored to secure a loan of a large sum on the be said that there was then existing an interrelation between the two companies re

the

specting their business organization and affairs. In the meantime the Milling Company has gone into the hands of a receiver, Grain Company has presented to the receivthrough voluntary liquidation, and er for payment its claim for a large sum, which claim is being held by the receiver in process of inquiry whether to allow or disallow the same.

The instant suit is one to compel specific performance on the part of the Grain Company, in that it be required to indorse the bank's paper, and be held to liability thereon, and to restrain it from disposing of its claim against the Milling Company, and for further relief.

[1] The first contention of the defendant is that it has not been shown that the Grain Company had such an interest in the Milling Company as to take the case out of the rule that one corporation cannot indorse paper for another. I am of the view, however, that the application of the rule is obviated under the facts appearing in the foregoing statement.

[2] The next question arising is, as it is pertinently stated by counsel for the defendant: "Did the Pacific Grain Company contract to indorse the notes?" This leads to an examination of the letter, or it might otherwise be termed the proposition or offer of June 17th. The pertinent context is: "That, in consideration of your extending note you hold of $40,000 for a period of 30 days from date, we will at the expiration of that time indorse the paper on the understanding that arrangements can be made for a further extension or renewal."

Let us analyze the paper, as far as is essential. The last clause, namely, "on the understanding," etc., is somewhat ambiguous. If read as a proviso (of which it has some of the earmarks), it would seem to render the proposition clearer, and there is some indication from evidence aliunde that such was the understanding. Moore, the

collecting agent for the Reserve Bank, had previously had a conference with MacAlpine with respect to the Milling Company's obligations then held by the bank, and touching which the bank was desirous of obtaining the indorsement of the Grain Company. The financial condition of the Milling Company was more than likely in the minds of the agents at the time, and the interlocking relations of the two companies were probably understood by both such agents. Further, it appears that about the same time that the proposition was made for indorsement by agent MacAlpine, namely, June 17, 1921, the Grain Company arranged with Walker Bros., Bankers, at Salt Lake City, for a renewal of a note of the Milling Company.

These matters of evidence throw some light upon what was meant by the words "further extension or renewal." Evidently "extension" pertained to an act that required the assent of the bank, while "renewal" is referable to an act that could be performed only by the Milling Company; it being the maker of the notes held by the bank. So that, read in the light of the evidence, the indorsement was to be made provided "arrangements can be made" for an extension on the part of the bank, or a renewal on the part of the Milling Company. In either event, if accomplished, the Grain Company was to indorse.

But, however it may be, whether we treat the clause as a proviso or adhere to the literal, it is clear that it was contemplated that there should be an accord between the parties pertaining to a further extension or renewal as a condition to the indorsement of the notes by the Grain Company.

The consideration for the proposition was an extension of time for payment of the notes. The notes became due May 29th, June 5th, and June 7th, respectively, and the bank was already extending grace when the proposition was made June 17th, and thence continued to refrain from enforcing payment of the obligations. The act of the bank in thus continuing to refrain from enforcing the obligations was a sufficient consideration on its part for sustaining the proposition.

It is argued that the proposition was never accepted by the bank, and therefore failed as an agreement between the parties. But the very act which supplied the consideration was also the equivalent of an acceptance of the proposition on the part of the bank, and it then became an agreement to be fulfilled by the parties according to

its terms and conditions. It is quite apparent that the proposition put in writing was but a confirmation of the understanding touching the matter that was previously reached orally.

The question of larger difficulty arises in view of the stipulation for indorsement of the paper. It includes and contemplates

an arrangement for further extension or renewal, which involves the element of time, and this, from the very nature of things, is necessarily to be arrived at as a condition to the indorsement; that is to say, a further agreement as to the time the obligations were to run is within the intendment of the stipulation, and that is essentially a prerequisite to the requirement for indorse

ment.

Further reference to the correspondence of the parties will be helpful. On June 21, 1921, the Grain Company, by J. P. Hoben, secretary, wrote the Federal Reserve Bank of Salt Lake City, confirming the authority of MacAlpine to sign the letter. On August 8th following, Moore, the collecting agent, addressed to the Grain Company an inquiry touching what action it expected to take respecting the letter of the 17th. On August 12th the Grain Company made reply, addressed to the Salt Lake City Bank, as follows:

"We have your letter of August 8th, and wish to state that we have been endeavoring to arrive at some definite conclusion regarding the affairs of the Inter-Mountain Milling Company. A meeting is to be held next week, and at that time we hope to be able to advise you just what can be done in the matter, but will say at this time that the outlook is not promising."

On September 15th Moore directed a letter to the Grain Company requesting that it fulfill its agreement to indorse the paper, and advising that he was sending it to the Portland Branch Bank, so as to make it available for that purpose. The Branch Bank notified the Grain Company that it had the paper, and sought to know the company's attitude with respect to indorsement of it, and was referred, first to Kennedy, and then to Malpas, chairman of a bankers' committee which at the time had the affairs of the Grain Company in charge, and finally to Houser, who repudiated all authority of any one for writing the letter agreeing to indorse the obligations held by the bank, and stated that, so far as he felt, there existed no legal or moral obligation on the part of the Grain Company to indorse the paper. This leads to no other re