134 FEDERAL REPORTER.

a state of facts such as plaintiffs plead herein, the cause of action cannot be joint. Believing that the servants are improperly joined as defendants with the railroad company, the company has a right to have the suit tried in this court.

The motion to remand is denied.

DONOVAN v. SALEM & P. NAV. CO.

(District Court, E. D. Pennsylvania. December 20, 1904.)

No. 56.

1. ADMIRALTY-SUIT IN FORMA PAUPERIS-SHOWING Required.

A showing to obtain leave to maintain a suit in admiralty in forma pauperis, although made in conformity to rules of the court long in force, must also conform to the requirements of Act July 20, 1892, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706]; but when process has issued without such showing, and a motion has been made to require security for costs, libelant may be permitted to supply the omission, as contemplated by section 2 of the act.

In Admiralty. On motion for order on libelant to enter security for costs.

Willard M. Harris, for libelant.

J. Warren Coulston and Adolph Scherve, for respondent.

J. B. MCPHERSON, District Judge. On August 26, 1904, the libelant filed a libel in personam, averring that he was employed by the respondent to command a steamboat, that the tender of his services as such master was afterwards refused, and that he had suffered certain damage by this breach of contract. The libel also contained the averment "that the libelant, by reason of poverty, is unable to defray the expenses of litigation, and prays that process may issue and be served in forma pauperis." His proctor also certified "that in my opinion there is reasonable cause for suit." Process was accordingly issued in forma pauperis, and the suit has proceeded so far that the libelant has finished taking his testimony. The respondent now comes forward with a motion that the libelant be directed to deposit the estimated costs of the cause or give security therefor, the motion being based upon the papers on record, and upon the facts disclosed by the depositions; these depositions disproving (so it is said) the averment of poverty contained in the libel, and showing, moreover, that the libelant is not the only person interested in the result of the litigation.

There are some differences in scope between admiralty rules 4 and 5 of this district and the act of July 20, 1892, 27 Stat. 252, 2 Supp. Rev. St. 41 [U. S. Comp. St. 1901, p. 706], as will appear by comparing the statute and the rules. The latter are as follows:

"4. No process shall issue in a plenary proceeding until the estimated costs of the cause shall have been deposited or secured by the libelant, except in a case of seamen's wages, unless by the special order of the court.

"5. But if it shall appear that a party seeking redress is unable by reason of poverty to defray the expenses of litigation, a proctor will be assigned

him by the court, and on demand of such proctor, and his certificate that there is reasonable cause for suit, process shall issue and be served in forma pauperis."

These rules have been in force for many years in this district, and the libel now under consideration was evidently drawn with exclusive reference to them, and without regard to the statute, whose provisions, as I have already stated, are not identical. The act is in these words:

"Be it enacted, &c., that any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action.

"Sec. 2. That after any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affidavit, and wilful false swearing in any affidavit provided for in this or the previous section, shall be punishable as perjury is in other cases.

"Sec. 3. That the officers of court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases.

"Sec. 4. That the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.

"Sec. 5. That judgment may be rendered for costs at the conclusion of the suit as in other cases.

"Provided, that the United States shall not be liable for any of the costs thus incurred."

So far as the act differs from the rules, the former must prevail, and the consequence is that the libelant did not bring himself within the protection of the statute. He did not aver that he is a citizen of the United States-what privilege of suing in forma pauperis an alien may have is a matter for future consideration-and he did not make affidavit that he is unable to give security for the costs, or that he believes he is entitled to the redress he seeks. These are statutory requirements that are not to be evaded, and they should. appear, in all such cases, either by a separate affidavit or by appropriate averments in the libel, before process is issued. But the second section of the statute seems to contemplate that during the progress of the trial the respondent may see cause to demand fees or security for costs, although the suit may have been begun without deposit or bond, and it therefore provides that "the plaintiff may answer and avoid" such demand "by filing a like affidavit.” Under this section, therefore, the libelant is entitled to an opportunity to answer the pending motion, and an appropriate order must be made for that purpose. The court will then be in a position to determine, from all the evidence in the case, whether the libel should be dismissed under the provisions of section 4-to which

Judge Holland referred in Our Friend v. Majestic (D. C.) 131 Fed. 395 or should go on without deposit or security to the final hearing. In this connection I may, perhaps, say that it may be worth while to inquire hereafter, as bearing upon the truthfulness of the libelant's averment that poverty prevents the entry of security (if such an averment shall be made), whether any other person has a possible interest in the recovery, and may, therefore, be properly required to come to the libelant's assistance in this respect. Boyle v. Great Northern Railway (C. C.) 63 Fed. 539.

The libelant is hereby granted leave to file a sworn answer to the pending motion within 10 days; proceedings to stay meanwhile.

CUNARD S. S. CO., Limited, v. STRANAHAN.

(Circuit Court, S. D. New York. November 16, 1904.)

1. ALIENS-PENALTY FOR BRINGING IN DISEASED IMMIGRANTS-ConstruCTION OF STATUTE.

Section 9 of Act March 3, 1903 (32 Stat, 1215 [U. S. Comp. St. Supp. 1903, p. 175]), making it unlawful for any person, transportation company, etc., to bring to the United States any alien afflicted with a loathsome or with a dangerous contagious disease, and providing that, if it shall appear to the satisfaction of the Secretary of Commerce and Labor that any alien so brought to the United States was afflicted with such a disease "at the time of foreign embarkation and that the existence of such disease might have been detected by means of a competent medical examination at such time," such person or transportation company shall pay a fine to the collector, to be enforced by withholding clearance papers from the vessel until its payment, is intended to apply only to a case where a diseased person is brought in by a vessel as a passenger or voluntarily, and when the vessel owner or transportation company has an opportunity to discover the existence of the disease by means of a medical examination before the alien is taken on board, and a vessel owner cannot be subjected to the penalty for bringing into port an alien who has stolen his passage, and whose presence on the vessel was not discovered before her sailing.

On Demurrer to Complaint.

Lord, Day & Lord, for complainant.

Henry L. Burnett, U. S. Atty., and Wm. Michael Byrne, Asst. U. S. Atty., for defendant.

WALLACE, Circuit Judge. I find that in giving my reasons, at the close of the argument, for overruling the demurrer to the complaint, I was under a misapprehension in assuming that the collector required the payment of the so-called "fines" without express authority; that is, that the statute did not provide any specific method of enforcing their payment. Upon this assumption I expressed the opinion that the penalty or fine could only be enforced by judicial proceedings, overlooking the clause authorizing the collector to refuse clearance papers to the vessel while the penalty remains unpaid. In view of this provision, I have no doubt that in a proper case the collector can enforce payment of the sum specified

by the method prescribed, and that it is of no consequence that the sum is termed a "fine." My opinion, however, remains unchanged that the conditions did not exist which authorized him to exact the penalty in the case of the four aliens who were not brought in by the vessel as passengers, but who were stowaways. I think the statute is intended only to apply to a case where a diseased person is brought in by the vessel as a passenger, or voluntarily, and when the vessel owner or transportation company has an opportunity to discover the existence of the disease by means of a medical examination at the time or before the alien is taken on board. Before the Secretary of Commerce and Labor can pass judgment upon the question whether the existence of the disease might have been detected by means of a competent medical examination, the conditions must exist which call for the exercise of his judgment, otherwise he has no jurisdiction to pass upon it. This jurisdiction can attach only when the vessel owner has brought the diseased alien into a port of this country. I think the word "bring" is used in the sense of "import." The statute refers to the disease as one that existed at the time of the "foreign embarkation" of the alien, and which could have been discovered at that time by a competent medical examination. This can be fairly read as meaning the time when the alien is taken on board the vessel in a foreign country to be imported into this country. The purpose is not to be imputed to Congress, in the absence of plain language, to penalize an act innocent of intentional wrong. It would be an unnecessary, and it seems to me an unwarranted, construction to read the statute as intended to subject the vessel owner to a penalty for bringing into the port an alien who has stolen his passage, and whose presence on the vessel may not have been discovered before her arrival. Such a person is not "imported" within the ordinary meaning of penal laws. The Brig Wilson v. United States, 1 Brock. 423, Fed. Cas. No. 17,846; Schooner Mary and Cargo, 1 Gall. 206, Fed. Cas. No. 9,183; Schooner Boston and Cargo, 1 Gall. 239, Fed. Cas. No. 1,670.

In re ANDERSON.

(District Court, D. Montana. January 16, 1905.)

No. 270.

1. BANKRUPTCY-DISCHARGE-APPLICATION-FILING-TIME-EXTENSION. Where a bankrupt failed to file his application for a discharge within a year after adjudication, as provided by Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], and made no affidavit in support of an application for an extension of time, an affidavit by one member of a firm of attorneys who had represented him in the bankruptcy proceedings, alleging that two members of the firm were absent for a considerable period before expiration of the time within which the petition for a discharge should have been filed, etc., and that affiant, who was the only remaining member of the firm, had been unable to keep up with the firm's business, and that the filing of the -petition was overlooked, was insufficient.

Huntoon, Worden & Smith, for bankrupt.

HUNT, District Judge. The bankrupt has filed a petition praying that he be allowed to file a petition for his discharge. The petition is dated December 7, 1904. Accompanying it is the affidavit of E. G. Worden, who states that he is a member of the law firm of Huntoon, Worden & Smith, of Lewistown, Fergus county, Mont., attorneys for Steve D. Anderson. Affiant states that Steve D. Anderson was duly adjudged a bankrupt on September 1, 1903, but that he failed to file his petition for discharge before one year after September 1st because one of the members of the law firm of Huntoon, Worden & Smith was absent for a period of three and one-half months immediately prior to the 27th of September, 1904, and in consequence was unable to attend to any part of the business of the said law firm; that another member of the said law firm was absent from the city of Lewistown, county of Fergus, upon urgent business, for a period of about seven weeks during the same time that the other member was so absent, and that it was practically impossible for the affiant, who was the other member of the firm, to keep up the work of said law firm during said. absences; and that it became impossible for the two members to attend to the new business and to the accumulated business of the said law firm during the few weeks when one of the members was present to assist affiant in the business of the firm, while the other member was absent; and owing to these facts, and to the further fact that said matter had lain for about a year, the filing of the petition of the bankrupt for discharge was overlooked.

Section 14 of the bankrupt act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], provides that:

"After the expiration of one month, and within the next twelve months subsequent to being adjudged a bankrupt, any person may file an application for discharge in the court of bankruptcy in which the proceedings are pending; if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within, but not after, the expiration of the next six months."

The showing made by the affidavit is far from sufficient to justify a court in concluding therefrom that the bankrupt was unavoidably prevented from filing his petition within the time prescribed. The bankrupt himself makes no affidavit, and must therefore be bound by the excuses offered by his counsel. These being plainly insufficient, his petition for leave to file a petition for discharge is denied.