The administration of the bankrupt's estate having come into the court of bankruptcy, and the trustee as an officer of the court holding title to the bankrupt's property for the benefit of all the creditors of the estate, the holder of the third mortgage, knowing of the existence of the taxes and electing to sue out a judgment on his bond and sell the property, without notice to the trustee, must be presumed to have taken the property subject to its burdens. Having elected to proceed without recognition of the bankruptcy proceedings, or notice to the trustee, and without affording him an opportunity to protect the interests of the estate, he is in no position now to come into a court administering equity and ask to be reimbursed the amount of the taxes out of the general funds of the estate under a plea of their being part of the expenses of the administration.

The petition for review is dismissed, and the order of the referee affirmed.

In re KREUTER et al.

(District Court, S. D. California, S. D. May 25, 1917.)

No. 2452.

ALIENS 61-NATURALIZATION-ALIEN ENEMIES-APPLICATION PRIOR TO DECLARATION OF WAR.

A subject of the Imperial German Government, who has resided in the United States the required length of time, and who filed his petition for naturalization before the declaration of war with the German government, is not debarred from admission to citizenship since such declaration by Rev. St. § 2171 (Comp. St. 1916, § 4362), which provides that no allen citizen or subject of any country with which the United States is at war "at the time of his application shall be then admitted to become a citizen of the United States."

[Ed. Note. For other cases, see Aliens, Cent. Dig. §§ 119-122.]

In the matter of the applications of Louis Kreuter and others for admission to citizenship. Applications granted.

TRIPPET, District Judge. Section 2171 of the Revised Statutes. (Comp. St. 1916, § 4362) of the United States provides that:

"No alien who is a native citizen or subject, or a denizen of any country. state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States."

Further on in this section the aliens referred to in the sentence quoted are called, in two places, "alien enemies."

The question is now presented whether or not a citizen of the Imperial German Government can be admitted to citizenship in the United States who filed his petition to become a citizen prior to the declaration of war. The question involved in the controversy is whether or not filing a petition in writing prior to a declaration of war is the ap

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

plication, or equivalent to the application, to become a citizen, mentioned in section 2171 of the Revised Statutes. This section of the Revised Statutes was enacted July 30, 1813, at a time when we were at war with Great Britain. The reports of the courts do not indicate that this section has been called into use since the general revision of the Naturalization Law adopted in 1906 (Act June 29, 1906, c. 3592, 34 Stat. 596). There exists certainly an ambiguity in the statutes, and the question of interpretation is now for the courts.

I have made up my mind to admit these applicants for citizenship who are citizens of the Imperial German Government. These people have lived here among us for more than five years, and more than two years ago made a declaration that they intended to renounce their allegiance to the Imperial German Government and to become citizens of the United States, and they now propose to take an oath as prescribed by law in which they will renounce their allegiance to the Imperial German Government and especially the Emperor of Germany.

In the President's message to Congress, which brought forth from that body the declaration that a state of war existed between the German government and the United States, the President stated that we accept the gage of battle "for the ultimate peace of the world and for the liberation of its peoples, the German peoples included." In another sentence of the President's message he declares: "We have no quarrel with the German people." Again the President says:

"We are, let me say again, the sincere friends of the German people. * We shall, happily, still have an opportunity to prove that friendship in our daily attitude and actions toward the millions of men and women of German birth and native sympathy who live amongst us and share our life. and we shall be proud to prove it towards all who are in fact loyal to their neighbors and to the government in the hour of test."

This is a war waged, as I understand it, by the Hohenzollerns and Hapsburgs, and not by the German people. My idea is that section 2171 of the Revised Statutes is aimed to prevent the admission to citizenship of "alien enemies." In view of what is said above, it would be hard for me to realize that these applicants fall within the letter of the statute in question, and I could not realize that they fall within the spirit of the statute.

In the Southern district of New York, where there are three United States District Judges, these judges concurred in a judgment admitting German citizens to citizenship in the United States, and the Circuit Court of Appeals has affirmed that judgment. I am informed that the Department of Justice was requested by the Department of Labor to take the matter to the Supreme Court of the United States, and the Department of Justice replied that after consideration of the subject it declined to take the case to the Supreme Court of the United States. I therefore regard the precedent set by the Circuit Court of Appeals as one that should be followed by this court. In accordance with this view, I will admit all applicants to citizenship who filed their petition prior to the declaration of war with Germany. There is another matter to which I should refer. If it should appear to the Department of Justice that any one who will be admitted

to citizenship of the United States under this ruling is in fact disloyal, and that his proof here has been false and a pretense, the government has a right to institute proceedings and have his citizenship papers canceled.

PLEADING

WILSON et al. v. LEIGH BANANA CASE CO.

(District Court, N. D. Ohio, E. D. March 23, 1917.)

No. 9319.

→369(2)—ELECTION BETWEEN CAUSES OF ACTION.

In an action for breach of a contract, where only a single breach is alleged, though as matter of evidence the breach may be shown to consist in a refusal to pay the amount earned by plaintiffs upon performance, or in defendant's interference or default preventing performance, plaintiffs will be required to elect between two separate statements of a cause of action, or, at their option, to amend their petition, since, while separate causes of action may be set up in the same petition, and alternative causes of action, upon which only a single recovery can be had, may be set up, this rule does not apply where there is only one cause of action. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 1199.]

At Law. Action by Porter Wilson and another against the Leigh Banana Case Company. On motion to require election between different causes of action. Motion granted.

I. T. Siddall, of Cleveland, Ohio, and H. R. Loomis, of Ravenna, Ohio, for plaintiffs.

Hoyt, Dustin, Kelley, McKeehan & Andrews, of Cleveland, Ohio, for defendant.

WESTENHAVER, District Judge. Defendant's motion asks that plaintiffs be required to elect as between the first and second cause of action stated in their amended petition herein, upon which they will stand, for the reason that under the facts alleged there is really but one cause of action, and that the two causes attempted to be set forth are inconsistent. This motion is opposed.

If there were in fact two causes of action set forth in the petition, the motion to elect should be denied. Different causes of action may be set up in the same petition, subject only to the limitations of section 11305, General Code of Ohio. In Dick v. Hyer, 114 N. E. 251, decided by the Supreme Court of Ohio June 23, 1916, reported in Ohio Law Reporter issued January 1, 1917, this section is held to permit the setting up in a petition of alternative causes of action, upon which, however, a single recovery only can be had. It is essential, however, to this rule, that there should be separate causes of action, even though but one recovery is sought or can be had. In the case cited a single recovery only was asked, but one cause of action was upon a promissory note, to which the defense made was that it had been altered; and the second, or alternative cause of action, was upon the original

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

indebtedness, for which the note had been given. It was held to be error to require an election.

In the present case there is, in my opinion, but one cause of action, and not two separate causes of action, nor alternative causes of action, permitting only of a single recovery. The contract set up is a single and entire contract. A single breach only of that contract is alleged. As a matter of evidence, the breach may result from a refusal to pay because plaintiffs had successfully operated the plant described, producing crates at a cost of 62 cents each, and had thereby earned the $10,000, which the defendant, it is alleged, refuses to pay, or it may be that they might have done so, and could by evidence prove this fact, except for the interference or default of the defendant; but the uncertainty as to the facts from which this result, or the plaintiff's right to recover, flows, or the evidential facts by which the same can be established, does not create two causes of action, or alternative causes of action for a single recovery. In my opinion, plaintiffs' petition falls within the rule laid down in the following cases: Sturgess v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582; Ferguson v. Gilbert, 16 Ohio St. 88; Gartner v. Corwine, 57 Ohio St. 246, 48 N. E. 945; Railway Co. v. Hedges, 41 Ohio St. 233.

Inasmuch as this memorandum is intended only to show counsel the basis upon which our ruling rests, no review of these authorities is required. The principle clearly appears in the first two headnotes of Sturgess v. Burton, which are as follows:

1. "When the plaintiff has but one cause of action, the facts cannot be subdivided, so as to present, fictitiously, as might have been done under commonlaw pleading, two or more causes of action.

2. "Where one cause of action is set forth in two counts, as at common law, the court may, on motion of the defendant, require the plaintiff to elect upon which count he will proceed."

An order may be prepared and entered, requiring the plaintiffs to elect within 10 days upon which statement of their cause of action they will stand and go to trial, or, at their option, permitting them to redraft and amend their petition within 10 days, stating the facts as one cause of action, in conformity to this ruling.

An exception to this ruling may be noted in behalf of plaintiffs.

BALL ENGINEERING CO. v. J. G. WHITE & CO. (Circuit Court of Appeals, Second Circuit. April 17, 1917.) No. 209. In Error to the District Court of the United States for the District of Connecticut. Cummings & Lockwood, of Stamford, Conn. (Charles D. Lockwood, of Stamford, Conn., S. L. Swarts, of St. Louis, Mo., and William M. Parke, of New York City, of counsel), for plaintiff in error. J. Kemp Bartlett, of Baltimore, Md., and Lewis Sperry and Harry W. Reynolds, both of Hartford, Conn., for defendant in error. William C. Herron, Huston Thompson, Asst. Atty. Gen., and Thomas J. Spellacy, U. S. Atty., of Hartford, Conn., amici curiæ. Before WARD, ROGERS, and HOUGH, Circuit Judges. See, also, 212 Fed. 1009. PER CURIAM. Having examined the record presented by this writ, we are of opinion that it differs in no material fact from that considered in 223 Fed. 618, C. C. A. Therefore the decision then made is binding, the issues have been adjudicated, and the judgment below is affirmed, with costs.

CENTRAL NAT. BANK OF BATTLE CREEK, MICH., v. INTERSTATE TRUST & BANKING CO. (Circuit Court of Appeals. Fifth Circuit. April 26, 1917.) No. 2992. In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Action by the Central National Bank of Battle Creek, Mich., against the Interstate Trust & Banking Company. Judgment for defendant, and plaintiff brings error. Affirmed. Edwin T. Merrick and Ralph J. Schwarz, both of New Orleans, La., for plaintiff in error. Robert H. Marr, of New Orleans, La., for defendant in error. Before PARDEE, WALKER, and BATTS, Circuit Judges.

PER CURIAM. The plaintiff in error brought suit against the Interstate Trust & Banking Company to recover $5,000, with 8 per cent. per annum interest from November 23, 1910. It sets up two distinct conflicting causes of action. The first contention is that the Interstate Trust & Banking Company, having sold to it a certain promissory note which had attached to it bad collateral, is bound as a warrantor. The other contention is that in the transaction for the matter of sale and purchase of the said promissory note the Interstate Trust & Banking Company acted as a broker, and that, owing to the gross and negligent manner in which it discharged its duties as broker, it added to and provoked the injury resulting to the plaintiff. The plaintiff set up in its answer that in the transaction recited it acted as broker for a disclosed principal, and that it exercised due care in the discharge of that duty. At the close of the evidence, both plaintiff and defendant moved the court to direct a verdict; the plaintiff at the same time submitting special charges to be given in the event that its motion to direct was refused. The trial judge granted the motion of the defendant, and directed a verdict in its favor. We have carefully read the evidence submitted in the case, and conclude, as did the trial judge, that the evidence not only warranted, but required, a verdict for the defendant, and that the plaintiff's motion to direct a verdict in its favor was properly refused, as were the special charges requested. The judgment of the District Court is affirmed.

FUQUA v. ST. LOUIS & S. F. RY. CO. et al. (Circuit Court of Appeals, Fifth Circuit. April 26, 1917.) No. 2775. In Error to the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge. George T. Mitchell, of Tupelo, Miss., for plaintiff in error. J. W. Canada, of Memphis, Tenn., for defendants in error. Before PARDEE, WALKER, and BATTS, Circuit Judges.

PER CURIAM. The plaintiff in error brought suit in the District Court to recover damages suffered by him as a car repairer in the service of the defendant. On the trial of the case at the close of the evidence the trial